Racist Federal Judge Gets Down In The Political Mud

Federal Judge Richard Cebull should resign — immediately.

Although this post deals with politics, it is not a political statement; it is a statement on how our current brand of mean-spirited destructive politics has integrated every segment of society, including the federal judiciary. It is also about the phrase “independence of the judiciary” and why that concept is a two way street: The legislative and executive branches of government should not apply undue pressure on the judiciary so as to impair its independence; however, the judiciary also must maintain its independence by refraining from the kind of political mud-slinging which others practice.

An Associated Press news story:
HELENA, Mont. (AP) Montana’s chief federal judge said Wednesday that he forwarded an email that contained a joke involving bestiality and President Barack Obama’s mother, but he did so because he dislikes the president and not because he’s racist.
Judge Richard Cebull, of Billings, forwarded the email from his chambers to six other people on Feb. 20, The Great Falls Tribune reported.
Cebull told the newspaper that his brother sent him the email, which he forwarded to six “old buddies” and acquaintances. He prefaced the email with the message: “Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.”

Further details: [Politico] “The email, first obtained by the Great Falls Tribune, was forwarded by Chief U.S. District Judge Richard Cebull last week from his court email account to seven recipients — including his own personal email address — under the subject line, “A MOM’S MEMORY.”

I will not post the text of the joke, although I am tempted to do so because it is vile and racist in the extreme. If you really want to read it, I’m sure you can find it online as easily as I did.

It is unbelievably despicable that a federal judge would engage in this type of conduct. Although he suggests he is not racist, but instead merely anti-Obama, one could not possibly enjoy this “joke” unless that person is accepting of racist attitudes. A non-racist reads that “joke” and thinks, “Uggh, another idiotic racist statement” and then hits the DELETE button. A person who is either racist or completely accepting of racism thinks “Ha, that’s funny; I’m going to send that on to my friends and family.”

We know which route Chief Judge Richard Cebull took. He sent it on to others to “enjoy,” and all because (as he says) he doesn’t like our President.

Judge Cebull should resign. In my opinion, his conduct is a violation of four of the five canons of conduct applicable to federal judges.

Judicial Code of Conduct for United States Judges:

CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY
A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.

CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY
[Judge Cebull did not technically violate this Canon only because we do not know that he allowed these racist views to actually affect litigation pending before him.]

CANON 4: A JUDGE MAY ENGAGE IN EXTRAJUDICIAL ACTIVITIES THAT ARE CONSISTENT WITH THE OBLIGATIONS OF JUDICIAL OFFICE
A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY
(A) General Prohibitions. A judge should not: … (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office;

We’ve known for a while that public trust in government has gone down. I haven’t done detailed up to the minute research on the polling results but the most recent Gallup poll I reviewed (from September 2010) shows public trust in the legislative branch at 36% and in the executive branch at 49%. The judiciary, however, was at a relatively good 66%.

I suggest these polling results for the judiciary are the result of a view that federal judges try to stay above the fray.

Judge Richard Cebull’s email, which is both racist and maliciously political, will go a long way to destroy the public’s trustful perception of the federal judiciary. If he were a person of honor, he would immediately resign.

I suppose, however, we already know he is not a person of honor based on his actions, so I won’t hold my breath waiting for him to do the right thing.

Racist Federal Judge Gets Down In The Political Mud

Federal Judge Richard Cebull should resign — immediately.

Although this post deals with politics, it is not a political statement; it is a statement on how our current brand of mean-spirited destructive politics has integrated every segment of society, including the federal judiciary. It is also about the phrase “independence of the judiciary” and why that concept is a two way street: The legislative and executive branches of government should not apply undue pressure on the judiciary so as to impair its independence; however, the judiciary also must maintain its independence by refraining from the kind of political mud-slinging which others practice.

An Associated Press news story:

HELENA, Mont. (AP)  Montana’s chief federal judge said Wednesday that he forwarded an email that contained a joke involving bestiality and President Barack Obama’s mother, but he did so because he dislikes the president and not because he’s racist.

Judge Richard Cebull, of Billings, forwarded the email from his chambers to six other people on Feb. 20, The Great Falls Tribune reported.

Cebull told the newspaper that his brother sent him the email, which he forwarded to six “old buddies” and acquaintances. He prefaced the email with the message: “Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.”

Further details: [Politico] “The email, first obtained by the Great Falls Tribune, was forwarded by Chief U.S. District Judge Richard Cebull last week from his court email account to seven recipients — including his own personal email address — under the subject line, “A MOM’S MEMORY.”

I will not post the text of the joke, although I am tempted to do so because it is vile and racist in the extreme. If you really want to read it, I’m sure you can find it online as easily as I did.

　

It is unbelievably despicable that a federal judge would engage in this type of conduct. Although he suggests he is not racist, but instead merely anti-Obama, one could not possibly enjoy this “joke” unless that person is accepting of racist attitudes. A non-racist reads that “joke” and thinks, “Uggh, another idiotic racist statement” and then hits the DELETE button. A person who is either racist or completely accepting of racism thinks “Ha, that’s funny; I’m going to send that on to my friends and family.”

We know which route CHIEF Judge Richard Cebull took. He sent it on to others to “enjoy,” and all because (as he says) he doesn’t like our President.

Judge Cebull should resign. In my opinion, his conduct is a violation of four of the five canons of conduct applicable to federal judges.

Judicial Code of Conduct for United States Judges:

CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.

CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES

Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.

CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY

[Judge Cebull did not technically violate this Canon only because we do not know that he allowed these racist views to actually affect litigation pending before him.]

CANON 4: A JUDGE MAY ENGAGE IN EXTRAJUDICIAL ACTIVITIES THAT ARE CONSISTENT WITH THE OBLIGATIONS OF JUDICIAL OFFICE

A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

CANON 5: A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY

(A) General Prohibitions. A judge should not: … (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office;

We’ve known for a while that public trust in government has gone down. I haven’t done detailed up to the minute research on the polling results but the most recent Gallup poll I reviewed (from September 2010) shows public trust in the legislative branch at 36% and in the executive branch at 49%. The judiciary, however, was at a relatively good 66%.

I suggest these polling results for the judiciary are the result of a view that federal judges try to stay above the fray.

Judge Richard Cebull’s email, which is both racist and maliciously political, will go a long way to destroy the public’s trustful perception of the federal judiciary. If he were a person of honor, he would immediately resign.

I suppose, however, we already know he is not a person of honor based on his actions, so I won’t hold my breath waiting for him to do the right thing.

Racist Federal Judge Gets Down In The Political Mud

Illinois Supreme Court Allows Free Public Access to Jury Instructions

Today, the Illinois Supreme Court announced that Illinois Pattern Jury Instructions will be freely accessible at the Court’s website. Until now, lawyers had to pay a hefty fee to private companies to be able to obtain that access, even though the jury instructions were drafted by lawyers who received no pay for their services but were appointed by the Illinois Supreme Court.

This is another huge step on the path which Illinois is taking to promote public digital access to the judicial system. Here is the link to the civil jury instructions:

http://www.state.il.us/court/CircuitCourt/CivilJuryInstructions/default.asp

Unnecessary Changes to Illinois Civil Jury Instructions

 

In the last ten years, we have witnessed an unprecedented number of changes to the Illinois Pattern Jury Instructions (Civil), including changes to longstanding and well established instructions. One of these changes was the 2006 revision to instruction 105.01 which sets forth the standards to be applied in professional negligence cases. This week, the Illinois Supreme Court indicated that the 2006 revision is an incorrect statement of the law. Studt v. Sherman Health Systems, ___ Ill. 2d ___ (No. 108182 June 16, 2011). A pdf copy of the Court’s recent decision may be found at the official Illinois courts website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/June/108182.pdf

Without going into great detail on the reasons for the 2006 revision to instruction number 105.01, it should be sufficient to say that the prior version indicated that the professional “must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified [professional].” The revised 2006 version states that professional negligence “is the failure to do something that a reasonably careful [professional] would do, or the doing of something that a reasonably careful [professional] would not do, under circumstances similar to those shown by the evidence.” The change was said to have a subtle but pronounced effect on the way in which jurors could apply evidence of professional misconduct of individual professionals (as opposed to institutional defendants such as hospitals).

 

When the 2006 revision was implemented, many of us did not understand why the change was made. After all, the prior version had not been the subject of any great controversy and it had been used for a very long time without apparent concern. Moreover, there had not been a notable change in case law on the standards to be applied to doctors and other professionals in malpractice cases.

 

Since the revision was put in place five years ago, many professional malpractice trials have proceeded in which the trial judges have had to struggle with the question of whether to instruct the jury using the revised pattern jury instruction or to use the prior (or some other) version of instruction 105.01. It appeared to many judges that the new instruction was an incorrect statement of the law. Many Cook County judges created their own jury instruction on the issue in recognition of the problem created by the 2006 revision. A few appellate court cases have pivoted on the issue as well, causing unnecessary delay in the final disposition of these matters. See, e.g., Lasalle Bank, N.A. v. C/HCA Devel. Corp., 384 Ill. App. 3d 806 (1^st Dist. 2008) and Matarese v. Buka, 386 Ill. App. 3d 176 (1^st Dist. 2008).

 

I hope that this week’s decision by the Supreme Court in Studt will cause the Supreme Court’s Committee on Jury Instructions to take pause before they begin “fiddling” with established jury instructions. Perhaps the Supreme Court even needs to intervene to require closer scrutiny of changes recommended by the Committee because one of the most important elements of the justice system is a clear and unequivocal statement of the law which will be consistently applied at trial. When pattern jury instructions are frequently changed, the predictably of the law which will be applied is diminished, which means confidence in the system is damaged. The next change by the Committee, however, should be to formally revoke the 2006 revision to 105.01 with an explanation of why it acted imprudently in making that earlier alteration.

 

Uh oh … Will Supreme Court Rule 213 Become Old Rule 220?

 

Illinois Supreme Court Rule 220 no longer exists. It was eliminated because it became watered down and unworkable. Rule 220 was intended to provide a responsible framework for the disclosure of expert witness opinions. Over time, the reviewing courts in Illinois created exception after exception to the rule. Eventually, everyone agreed the rule had become ineffectual.

Thus sprang forth Illinois Supreme Court Rule 213, implemented to replace Rule 220. With some adjustments here and there, Rule 213 has been reasonably effective in setting out a clear, understandable and workable outline for expert discovery. A key to its potency has been its mechanism to bar experts whose opinions had not been properly disclosed.

Under Rule 213(f)(1), a party’s disclosure of non-experts “must identify the subjects on which the witness will testify.” Under 213(f)(2) and (3), a party’s disclosure of experts (either retained or independent experts) “must identify the subjects on which the witness will testify and the opinions the party expects to elicit” from the witness. [Note: This is the language applicable to independent experts; the language applicable to retained experts is similar but even more specific and also requires the bases for the opinions be disclosed.]

Rule 213 appears to be very clear that a party must be specific in identifying expert opinions. Of course, case law has also established that an expert “may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it.” Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 757 N.E.2d 533 (2001). Nevertheless, the opinion must be disclosed (along with the bases for the opinion).

Recently, in Timothy Whelan Law Associates, Ltd. v. Kruppe, ___ Ill. App. 3d ___ (2d Dist. No. 2_09_1234 March 31, 2011), the Second District Appellate Court issued a decision which opens a hole in Rule 213’s requirement that an expert’s opinions must be fully disclosed in advance of a trial. This was a lawsuit seeking collection of a lawyer’s unpaid fees. The plaintiff, an attorney, was identified in his Rule 213(f) disclosures as a witness who would testify

“regarding the existence of a contract between plaintiff and defendant, the nature of the services provided, and the damages it incurred as a result.”

At trial, the plaintiff/attorney was permitted to testify that the fees he charged to his client, the defendant, were reasonable. Clearly, the Rule 213(f) disclosure did not explicitly state he would so testify. The defendant objected to this trial testimony as not having been disclosed under Rule 213. The trial court overruled the objection, however, indicating the opinion was encompassed within the Rule 213 disclosure.

The appellate court sustained the trial court, finding that because the plaintiff had disclosed he would testify “regarding” his damages, that would reasonably include giving an opinion that his fees were reasonable.

I dissent.

There should be little doubt that the plaintiff’s Rule 213 disclosure was not sufficient to allow the opinion testimony permitted by the trial court. In fact, the plaintiff’s Rule 213 disclosure could only meet the requirement of Rule 213(f)(1), applicable to non-expert witnesses, that only the “subjects on which the witness will testify” be provided. Merely disclosing an expert will testify “regarding” an element of the cause of action does not indicate what that testimony will be or if it will be an expert opinion. If the disclosure made by plaintiff in the Whelan case had been for a non-expert witness, it would have been sufficient. The fact it was being offered as a disclosure of an expert witness opinion, however, requires more specificity and detail.

The modest disclosure that the plaintiff would testify “regarding” damages not only fails to identify the opinion regarding damages which was intended to be offered at trial, but it also fails to identify the bases for any such opinion (as required by Rule 213(f)(3)).

“The Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Rule 213 requires full disclosure of experts’ opinions and the bases for those opinions, and any deviation from the rule should not be allowed, even if proffered “in the interests of justice.” Dept. of Transp. v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998).

Illinois appellate courts have previously dealt situations similar to the Whelan case and found very general, non-specific disclosures to not comply with Rule 213. In Kim v. Mercedes_Benz, 353 Ill.App.3d 444, 818 N.E.2d 713 (2004), the court held a plaintiff’s general disclosure that he would testify at trial “about the matters alleged in plaintiff’s complaint” is insufficient and does not give adequate notice to the defendant of the plaintiff’s intention to offer opinions regarding his damages. Additionally, in Lisowski v. MacNeal Memorial Hospital Assn., 381 Ill.App.3d 275, 885 N.E.2d 1120 (2008), the court ruled where the plaintiff’s Rule 213 disclosures only indicated the expert would testify to “all of the other problems” of the plaintiff, but the topics “depression” and “suicide” were never mentioned in the disclosures, the catchall phase “all of the other problems” was found to not be specific enough to meet the strict requirements of Rule 213, so the expert was properly barred from testifying that plaintiff became suicidal and depressed.

The Second District’s decision in Whelan backs off of Rule 213’s strict requirements of full and complete disclosure of expert opinions. Let’s hope the decision becomes an isolated, unaccepted part of Rule 213’s background. Otherwise, we should already start thinking about which rule is going to replace Rule 213 — just as Rule 213 replaced old Rule 220.

Riding Roughshod Over The Constitution

Shame on the House of Representatives for today passing H.R. 1255.

This is not a Republican vs. Democrat issue. This is an issue of respect for the U.S. Constitution and I am deeply disturbed at those congressional memebrs who voted in favor of H.R. 1255. The bill passed the House 221 to 202, mostly along party lines (15 brave Republicans voted against it along with all Democrats).

H.R. 1255 attempts to change the constitutional procedures for enacting a bill into law. The Constitution has served us well in this process for a very long time: One chamber of Congress passes a bill; the bill then goes to the next chamber where the bill is considered; the second chamber either passes it, rejects it or modifies it; if modified, then the two chambers try to reach a compromise and if they can’’t, the bill dies; once both chambers agree on a bill, it is sent to the President for his/her signature or veto; if the President signs it, the bill becomes law.

H.R. 1255 says that if the Senate does not consider by April 6^th a particular bill (a budget bill) already passed by the House, then that bill will automatically become law —— forget about the manner in which the Constitution says a bill may become law. The statement of constitutional authority filed by the bill’’s sponsors indicates this provision is authorized by the “rulemaking” powers given to Congress. In other words, it is OK to change the way the Constitution tells us laws may be enacted if the Congress decides to change its own internal rules.

I do not care whether this was a bill from Republicans or Democrats. Any congressional representative who would vote for such a blatantly unconstitutional bill has no respect for the Constitution. Not one of those House members who voted in favor of H.R. 1255 any longer has the right to make public statements that he/she values the Constitution because this action today unequivocally demonstrates that if it is a question of complying with the Constitution or disregarding it in the face of politics, then that person is willing to throw away the Constitution.

I am a lawyer. In spite of the cynical opinions many people hold regarding lawyers, I (and many others like me) became an attorney because of a fundamental belief in the integrity, dignity and soundness of the United States Constitution. Many of us hold it in such high regard that when we see others attempt to toss the Constitution aside for mere politics, it is deeply offensive.

One need not be a lawyer, however, to be offended by the passage of H.R. 1255. Every citizen, regardless of political affiliation, should be distressed by it, and in my view let that feeling be known to those congressional members who voted in favor of the bill. In the event anyone would like to see the roll call of those who voted for and against it, this link can take one to the official website of the GOP of the House of Representatives:

http://www.gop.gov/votes/112/1/224

Health Care Lienholders Need Not Pay a Portion of the Expenses of a Lawsuit Which Permitted Recovery for the Lien

The recent Illinois Supreme Court decision of Wendling v. Southern Illinois Hospital Services, ___ Ill. 2d ___ (Nos. 110199, 110200 cons. March 24, 2011) clarified a point of law which lawyers and others too often misunderstand. Importantly, the Court explained the differences between a statutory lien claim and a subrogation claim. If you wish to review a copy of the decision from the official Illinois courts website, you may access it here: http://is.gd/N1nI1u

In Wendling, the Court reasserted that the “common fund doctrine” does not apply to statutorily created health care liens such as those imposed by hospitals which have billed for care they provided. Thus, in the event of a settlement or judgment on behalf of an injured plaintiff, the health care provider’s lien must be satisfied in full and no deduction can be retained by the plaintiff either for attorney’s fees or the costs of the litigation.

In Illinois, health care providers may assert a lien on the value of the services which they have provided to a personal injury plaintiff. The lien is permitted only because a statute created that right: The Health Care Services Lien Act, 770 ILCS 23/1 et seq. Under the Act, the total amount of all health care liens is limited to 40% of the judgment or settlement. However, if the total amount of the providers’ bills were not satisfied completely, the providers still have the right to pursue the patient directly for the remaining amount of the bills which were not satisfied by the lien recovery. 770 ILCS 23/45.

As explained by the Wendling Court, the Illinois version of the “common fund” doctrine provides “‘a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole.’ [cit. omitted] Underlying the doctrine is the equitable concept that the beneficiaries of a fund will be unjustly enriched by the attorney’s services unless they contribute to the costs of the litigation. [cits. omitted] Courts have applied the common fund doctrine in numerous types of civil litigation, including insurance subrogation claims, class actions, and wrongful_death cases involving an intervenor.[cits. omitted]” In other words, if an entity has paid funds which it would not ordinarily be able recover from anyone, for example an insurance company which was contractually obligated to pay for its insured’s medical expenses, and a lawyer creates a fund (settlement or judgment amount) which permits that entity to recover those outlays, then the entity must share a part of the recovery to pay the party for its costs in creating the fund.

In Wendling, the plaintiff tried to claim that a hospital which had a statutorily created lien, not a subrogation claim, should pay a portion of its lien for the plaintiff’s attorney’s fees and the costs of the lawsuit. Many of us believed this issue had already been decided by the Supreme Court in Maynard v. Parker, 75 Ill. 2d 73, 387 N.E.2d 298, 25 Ill. Dec. 642 (1979), but this time there were powerful amicus curiae briefs filed by the trial lawyers. In the end, the Supreme Court reaffirmed its 1979 holding in Maynard.

Along the way, the Supreme Court noted the differences between subrogation interests and lien claims. Primarily of interest for this decision, the holder of a statutorily created lien has the right to be paid for the lien amount irrespective of whether a recovery is made in the plaintiff’s lawsuit. In essence, the health care provider is the creditor and the plaintiff is the debtor, and the plaintiff must pay for his/her medical bills regardless of what happens in the P.I. lawsuit. In contrast, the holder of a subrogation claim does not ordinarily have an independent right to recover the amounts which were paid to or on behalf of the P.I. plaintiff. The only way the subrogation claimholder can recover is if a fund is created by settlement or judgment in the underlying lawsuit. Accordingly, the Supreme Court noted it to be fair that the subrogation claimant pay a part of the plaintiff’s costs of creating the “common fund” which allowed reimbursement to the subrogee. However, a health care provider with a statutory lien does not need the “common fund” to get paid for its services as the P.I. plaintiff will be required to pay the provider even if a lawsuit has not been filed.

It should be noted that trial lawyers are already trying to have the Illinois legislature enact a law which would get around the holding of this case (and the case law since 1979) by seeking to amend the Health Care Services Lien Act.

Disputes Between Lawyers and Their Experts

 

Usually, there is a close relationship between an expert witness and the attorneys for a party on whose behalf the expert has agreed to testify — usually, but not always. When things go wrong between an expert and the lawyers who retained him/her, they can go very wrong.

The recent Illinois appellate court decision in McNally v. Morrison, ___ Ill. App. 3d ___ (1st Dist. No. 1-09-2643 March 15, 2011) shows how bad things can get, although the holding of the case is really just about personal jurisdiction. A link from the official Illinois courts website to a pdf copy of the case follows: http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/March/1092643.pdf

The appellate court case resolves an issue of personal jurisdiction in a suit filed by plaintiffs (attorneys who represented a plaintiff in an underlying medical malpractice case) against their own out-of-state expert witness. The lawsuit alleged the expert from Ohio conferred with the Illinois lawyers and gave them an opinion that the defendant doctor was guilty of professional negligence, but then at his deposition, the expert completely changed his mind and opined the defendant acted appropriately. This lawsuit alleged that just prior to the deposition, the expert disclosed he had not actually reviewed critical deposition testimony and evidence. The lawyers sued the expert for breach of contract, consumer fraud, fraud and professional negligence.

To be clear, the only issue of this case is a matter of civil procedure: Whether the Illinois court has personal jurisdiction over the Ohio expert. The court decided that such jurisdiction exists over the non-Illinois resident because the expert’s work was done for Illinois attorneys to serve as an expert in an Illinois suit and was intended to produce a result in Illinois. The appellate court rejected the expert’s argument that all of his work was performed in Ohio. Instead, the court found the expert’s services were pursuant to a contract with Illinois lawyers and directed at Illinois residents. Further, the court held that Illinois has a “substantial interest” in adjudicating a dispute which concerns an expert witness in an Illinois lawsuit. Thus, the appellate court decided that “sufficient minimum contacts” existed between Illinois and the expert such that the expert should reasonably ancipate being brought into court in Illinois, and accordingly, Illinois courts have personal jurisdiction over him.

However, there is a broader issue here: How can lawyers avoid disputes with their experts?

The answer is full honesty by both sides, but also a lawyer’s willingness to challenge the expert to be sure the expert is being forthright.

The attorney must provide all relevant information to the expert to allow the expert to be aware of all facts and issues. Additionally, the attorney must spend a lot of time with the expert to ensure he/she is thoroughly familiar with those facts and issues. Sometimes, that effort can be through telephone calls, especially for simple matters, but it is vastly preferable that the communications be face to face. Yes, that will mean the litigation expense will be slightly higher, but the risk of a problem occurring between expert and lawyer will be substantially reduced.

To be certain the expert has all necessary information, the lawyer must also be thoroughly familiar with that same information. The attorney must then be willing to “quiz” the expert about the evidence which has been provided. If the expert has only “skimmed” over deposition transcripts or other information, he/she will not be able to properly answer the lawyer’s “quiz” questions and the lawyer will know that more time must be spent by both lawyer and expert.

The nightmare of litigation involving expert witnesses is exactly that which occurred in the McNally appellate court case: The lawyer who retained the expert is in the pre-deposition meeting with the expert and suddenly discovers the expert is not thoroughly familiar with the relevant evidence. The worst possible time to discover that the expert is unprepared is when the expert is from out-of-state, is being deposed in his/her home state, and the opposing counsel is about to walk through the office door to begin the deposition. Most of the time, the expert disclosure deadline has already passed so cancelling the deposition will not be a viable option. Therefore, the time to ensure the expert is adequately prepared is before the expert is even disclosed.

Of course, the responsibility should not be solely placed upon the lawyer. The expert has an obligation to be prepared and clear about his/her opinions. However, only the lawyer owes ethical obligations to the client, so the lawyer must take all steps necessary to be sure the client is well represented. Therefore, the lawyer miust ask the expert about his/her qualifications; ask about the information reviewed; determine whether additional information is needed; identify the issues raised by the other side; and assist the expert in understanding the questions which opposing counsel will ask.

Doing these things could be perceived as a discourteous “challenge” of one’s own expert, but it need not necessarily be so perceived. When dealing with experts, a lawyer should always tell them that the goal is to avoid having the expert be embarrassed in any manner at the time of questioning by opposing counsel. The expert must be made to appreciate that the “challenge” of one’s own expert is intended to prevent the expert from looking foolish.

At a time when so many complex lawsuits are decided by a “battle of the experts,” an attorney must advise the client that the handling of expert witnesses is one of the most critical phases of litigation. As such, time spent in detailed communications with experts is time well spent.

Supreme Court Rectifies “Open-Ended Liability” For Construction Contractors and Engineers

On January 21, 2111, the Illinois Supreme Court handed down its unanimous decision in Thompson v. Gordon. The Court reversed the holding of the appellate court. I previously commented on the appellate court’s decision, noting the appellate court misapplied the law which sets forth duties of construction entities, and I expressed my hope the Supreme Court would resolve the issues raised by the appellate court’s decision. (See https://triallaw.wordpress.com/2010/06/02/open-ended-liability-for-contractorsengineers/).

Today, the Supreme Court rectified the appellate court’s errant analysis. A copy of the Supreme Court’s decision can be accessed here through the court’s official website: http://www.state.il.us/court/Opinions/SupremeCourt/2011/January/110066.pdf

The case involves a construction engineer who signed a contract to “replace” a bridge. A motorist traveling through the section of replaced bridge was killed in an accident. Her estate sued the engineer alleging he should have done more than just “replace” the prior bridgework but should have improved it to add better median barriers which might have prevented the death.  The appellate court ruled (1) the scope of services section of the construction contract only required “replacement” of the bridge (not improvement), but (2) the portion of the contract which required the engineer to meet professional practice standards raised a question of fact as to whether he should have also suggested and implemented “improvements” to the bridgework.

The Supreme Court ruled that the appellate court was incorrect in determining the scope of the duty by applying a professional negligence standard of care duty, even though the actual scope of the engineer’s duty was contractually established as mere replacement of the prior bridgework. Although the contract indicated the engineer would apply the same skills as other engineers, the Supreme Court held the skill was only that which would be applied to the scope of the contract work, namely the “replacement” of the bridgework (not its improvement).

Importantly, the Supreme Court reinforced its earlier ruling in Ferentchak v. Village of Frankfort, 105 Ill. 2d 474 (1985). Here, the Court stated that Ferentchak‘s “actual holding … was that the degree of skill and care required of the civil engineer depended on his contractual obligation, and the scope of that duty was defined by the contract.”

This Supreme Court decision  which developed after the appellate court’s ruling. They were concerned about being held liable for work which was done completely according to contractual requirements, but which an “expert” would criticize after the fact as not having been enough in spite of complying with the contract.

Now, with this decision, it seems clear that courts addressing claims against construction entities must first determine the scope of the services contracted for, and second, determine if the work done only on that scope of services was done properly.

This is a good decision which reestablishes long-held law, clarifies the analysis to be used by trial courts, and allows construction entities to have more certainty about the litigation risks to which they might be exposed.

Illinois Adopts Rules of Evidence

 

Until now, the admissibility of evidence in Illinois was primarily governed by the developing case law of reviewing court decisions. Recently, however, the Illinois Supreme Court adopted formal, codified Rules of Evidence. These Rules take effect January 1, 2010. A copy of the Rules may be found here:

http://www.state.il.us/court/SupremeCourt/Announce/2010/092710_2.pdf

As an older lawyer who has worked with the case law pronouncements of our evidentiary rules, I do not fully understand why formal, codified Rules of Evidence must now be imposed. This is especially true given the fact that the Rules of Evidence, as stated in the Commentary accompanying the Rules indicates that these codified Rules for the most part merely restate the case law development of evidentiary rules. In any event, this is the statement  of the Supreme Court committee as to why these Rules were promulgated:

Currently, Illinois rules of evidence are dispersed throughout case law, statutes, and Illinois Supreme Court rules, requiring that they be researched and ascertained from a number of sources. Trial practice requires that the most frequently used rules of evidence be readily accessible, preferably in an authoritative form. The Committee believes that having all of the basic rules of evidence in one easily accessible, authoritative source will substantially increase the efficiency of the trial process as well as expedite the resolution of cases on trial for the benefit of the practicing bar, the judiciary, and the litigants involved. The Committee further believes that the codification and promulgation of the Illinois Rules of Evidence will serve to improve the trial process itself as well as the quality of justice in Illinois.

Truthfully, I don’t believe the presence of these Rules will significantly affect trial practice. Analogous to the adage, “the devil is in the details,”  trial court rulings on the admissibility of evidence will depend on how the appellate courts interpret the general statements of law found in these Rules of Evidence. To the extent that will be founded upon the pre-Rules of Evidence case law, I guess I won’t have to throw out my case law trial book which is 600 pages long in 10 point type and which I have maintained for the last 25 years — thank goodness.

Litigation as “Performance Art”?

One of Rod Blagojevich’s trial attorneys, Sam Adams, Jr., is famously cited as saying that trials are a kind of “performance art” where the best “show” wins.

Certainly I agree that a trial lawyer must have some “performance” acumen to get the jurors’ attention and effectively make points. However, Adams appears to want it all boiled down to a “show.” He’s wrong and most effective civil trial lawyers would agree he is wrong.

Maybe there is more of a “show” aspect to criminal trials, which is Adams’ milieu. In civil court, however, the effective communication of details are key. Strangely enough, in criminal actions which involve the life and liberty of people, the specific requirements to obtain conviction or acquittal are simpler than the requirements in civil court to obtain a finding of guilty or not guilty. In criminal cases, often, the number of witnesses and evidentiary documents are fewer than the number in civil matters. Further, there are often times more nuances to civil cases than in criminal court.

I am offended by persons such as Adams who try to boil down a trial to a few actors who use emotion to manipulate jurors.

Don’t misunderstand me. I’ve yelled and whispered to jurors; I’ve faked a limp in front of jurors to show how anyone can fake an injury; I’ve thrown my hands in the air and paced the courtroom; and I’ve given theatrical closing arguments. In between all of that, however, I’ve understood there must be substance behind what a trial lawyer conveys or most juries will properly reject the lawyer’s arguments. Preparation and attention to details are at least as important as the lawyer’s emotional status in presenting a case.

At trial, effective communication of a party’s position is key to obtaining the ultimate goal of a verdict favorable to one’s client. Telling people that a trial is all about “show” and “performance art” only serves to reinforce negative stereotypes of lawyers as manipulative liars who will twist words and do whatever it takes to get the desired result. 

I will prepare for my trials. I will attend to the details of the case. I will effectively present my client’s case to the jury and I will do it with genuine emotion. I will not, however, make myself or others look like circus clowns. Most jurors in sophisticated civil litigation are too smart for that.

Blago Trial Winners and Losers

 

John Kass wrote an interesting piece in the Chicago Tribune regarding the “winners” and “losers” of the Blagojevich trial even before the verdict is rendered. Here is a link to his article:

http://www.chicagotribune.com/news/columnists/ct-met-kass-0725-20100725,0,347144.column?page=1

To me, the one big “loser” in all of this is the citizenry of Illinois. The jury will decide whether Blago’s actions were criminal or just good ole’ politics. Regardless of the verdict, however, all of the State’s other politicians are breathing easier because this trial is desensitizing Illinoisans to the fact that politicians’ actions are “OK” even if they are not in the State’s best interests. At best, and the conclusion which Blago’s lawyers want reached, the evidence shows that all of the State’s politicians are willing to compromise, trade and negotiate on their positions if they are given enough to do it.

It is extremely difficult to get good legislation passed in Springfield, regardless of which party is in power, unless the legislators get something for it. They don’t necessarily demand money, but they certainly look for support in other ways.

Why can’t we get Illinois policy action just for the sole reason that it is good for the State? Blago wants us to believe that getting something in exchange for something else is nothing worse than the way things are done in Illinois. The sad truth is he’s correct and it has nothing to do with political party labels; that’s just the way it is.

Blago’s verdict will come soon enough but even before this trial started, all of us were the big losers.

When Negligence Becomes Manslaughter

 

I’ve been following the New York criminal trial of a crane master rigger. He was charged with seven counts of manslaughter after a crane which he “jumped” had collapsed, causing the deaths of several workers. Today, the judge entered not guilty verdicts in favor of the rigger on all seven counts. I’m sure that is one relieved construction worker who never thought he could end up in a criminal courtroom for his acts on a construction site. Here is a copy of the first report of the verdict from New York Construction.com:  http://is.gd/dConm

 

I have grave concerns about any time when someone is criminally charged with an offense after some type of accident. This crane rigger, for example, appeared to have gotten swept up in a political issue of crane safety in New York City which might have played some role in having him criminally charged for his actions. New York has been the site of several crane collapses in recent years, each of which has caused an uproar about safety. These incidents have drawn a great deal of attention on the City’s inspection procedures. When that type of focus is aimed at a governmental unit, the result can be politically based decisions to criminally prosecute in order to draw away the fire from the government.

 

I’ve experienced other situations in which there a civil suit has been filed or was about to be filed but in which there have also been pending criminal prosecutions. Much of the time, this occurs following a serious motor vehicle accident so it is almost a routine action. Nevertheless, there is sometimes much pressure brought to bear on the prosecutors by the victim’s civil attorney to obtain a conviction. If it is minor traffic offense, then a finding of guilty after the defendant pleaded not guilty will not be admissible as evidence in a later civil suit. The law on that issue is as follows:

 

It is the general rule in Illinois that a plea of guilty to a traffic citation is admissible at a subsequent civil proceeding as evidence of the defendant’s admission to guilt of the underlying incident, but that a conviction for the same offense following a not guilty plea cannot be considered evidence in the later civil proceeding. Thurmond v. Monroe, 159 Ill.2d 240, 636 N.E.2d 544, 201 Ill.Dec. 112 (1994); Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988); Hengles v. Gilski, 127 Ill. App. 3d 894, 469 N.E.2d 708 (1984), relying on Smith v. Andrews, 54 Ill.App.2d 51, 62, 203 N.E.2d 160, 166 (1965); Hartigan v. Robertson, 87 Ill. App. 3d 732, 738, 409 N.E.2d 366, 371 (1980). The guilty plea is treated differently than a conviction following a not guilty plea because the plea of guilty is taken as a judicial admission made by the defendant. Spircoff v. Stranski, 301 Ill.App.3d 10, 703 N.E.2d 431, 234 Ill.Dec. 570 (1st Dist. 1998).

 

In a few of the situations I’ve seen where a plaintiff’s lawyer is putting pressure on a prosecutor, that pressure is directed to seeking a guilty plea (so it can be used as evidence in the civil suit) rather than on obtaining a conviction to see that “justice is done.” I can’t blame the plaintiff attorneys for this as it is attempting to obtain the best position for their clients in the civil case.

 

The real problem is the role of prosecutors in attempting to assuage public or political outcry by carrying out prosecutorial discretion in a manner which deviates from the normal exercise of discretion.

 

I cannot make a definitive statement about the motivations of the New York prosecutors in pressing criminal charges against a construction worker. All I know is that when the political system gets involved in attempting to find “justice” following accidents, we should all be careful.

 

Voir Dire: Lessons From the Blagojevich Trial (Let’s find some smart jurors)

 

The “Ward Room” blog posted an interesting item authored by Phil Rogers titled “Surprise: Some Jurors Don’t Know a Thing About Blago.” It can be found at: http://is.gd/cKwiY

The piece reviewed the voir dire process in the corruption trial of ex-Governor Rod Blagojevich. Among the interesting bits of information about the potential jurors for the case was the fact that several of them stated they knew NOTHING about the whole Blagojevich scandal.

Really? They knew nothing about Blagojevich’s impeachment? They knew nothing about Blagojevich being plastered across our TV screens for the past year or more?

OK, fine, let’s assume they are telling the truth and that they know nothing about the allegations against Blago. I suppose that inherently means they must be able to be fair to our ex-Governor during the trial.

I wonder though: Do we really want people who are completely ignorant of the world around them being jurors in one of the most celebrated political corruption trials in history?

I know we cannot and should not impose intelligence requirements on jurors. Nor can we require that prospective jurors read a certain number of newspaper per year. But it is absolutely amazing to me that we can live in a society in which we are constantly bombarded by information and still find people who choose to shield themselves from all of it.

Are people who claim utter ignorance of the world around them necessarily felt to be “good” jurors merely because they can say they have not prejudged the case? This is where I part ways with the philosophy of a good many judges who say that lawyers are only entitled to an extremely limited voir dire which serves the sole purpose of finding jurors who can be “fair” to all sides.

I believe the voir dire system should aspire to more than just finding people who are blank slates. It is important to have jurors who have a sense of curiosity; who are willing to absorb information; who will use their common sense to see the evidence for what it really is; who will be willing to challenge the ideas posited by the attorneys.

In sum, I want smart jurors. And, I don’t want to have my wrist slapped by a trial judge because I want to find out which magazines they read, or the types of websites they visit. Lawyers should be given the tools they need to find jurors who are sufficiently intellectually curious to allow people to have confidence that the justice system comes to the correct result.

Open-Ended Liability for Contractors/Engineers?

 NOTE: SEE POST OF JANUARY 21, 2111 FOR THE UPDATE ON THE SUPREME COURT’S RESOLUTION OF THIS ISSUE. THE SUPREME COURT REVERSED THE APPELLATE COURT’S HOLDING DISCUSSED BELOW.

A controversial appellate court decision which included an especially aggressive dissent (not to mention a modified opinion issued three months after the first opinion) has been accepted by the Illinois Supreme Court for further review. The case is Thompson v. Gordon, ___ Ill. App. 3d ___ (2d Dist. No. 2-07-0667 February 3, 2010). A copy of the decision as made available on the Illinois courts’ official website can be accessed here:

http://www.state.il.us/court/Opinions/AppellateCourt/2009/2ndDistrict/November/2070667.pdf 

This personal injury case came to the appellate court on a motion for summary judgment filed by a defendant construction engineer who asserted it was only required to implement the contractual plans and specifications. The plaintiff sued the engineer on a bridge replacement job for failing to include a median barrier in the rebuilt bridge lanes. Plaintiff alleged that if a median barrier had been provided, the decedents would not have gotten into the accident which killed them. The contract for the engineer did not ask it to add median barriers and the contract merely sought replacement of the original work. Plaintiff presented an engineering expert who testified that that the defendant engineer owed a duty beyond the terms of the contract to consider other safety issues. The trial court granted summary judgment to the defendant engineer by ruling the engineer owed no duty under the contract to do a complete redesign of the bridge, but rather only to replace it.

In November, 2009, the majority opinion from the appellate court reversed the summary judgment to the defendant finding there to be a question of fact as to whether the defendant owed a duty beyond the contract. The construction contract stated the engineer was to use “the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services” and requires the engineer “to act within the prescribed standard of care.” The court concluded that as a result of these contractual terms, the engineer “owed a duty to perform that contractual task using the degree of skill and diligence normally employed by professional engineers.” Accordingly, in determining whether the defendant engineer owed a duty to do a certain thing under the contract, the court must also consider evidence outside of the contract, such as an engineer’s expert affidavit indicating what was required under the professional standard of care (regardless of what was in the contract). Thus, the court concluded that the defendant engineer’s motion for summary judgment should have been denied as there was an issue of material fact as to the scope of the defendant engineer’s duty.

The court distinguished the Supreme Court’s decision in Ferentchak v. Village of Frankfort, 105 Ill. 2d 474 (1985), as a case which holds only that a defendant engineer will not be held responsible for obligations outside of the contract where that contract specifically indicated the engineer was not to be involved in the other work and it would not have been possible for the engineer to have done the other work. In this case, however, unlike the engineer in Ferentchak, the engineer defendant was “charged with designing precisely the object (the median barrier) that plaintiff claims was defective … and also unlike the engineer in Ferentchak, had full knowledge of all relevant aspects of the allegedly defective design.” The court also distinguished the doctrine of Hunt v. Blasius, 74 Ill. 2d 203 (1978) that an independent contractor or engineer owes no duty to a motorist to utilize his judgment in exercising reasonable care in the design, construction, and installation of roadway features when the State of Illinois’ specifications are not so obviously dangerous that no competent engineer would follow them. Here, the Court stated that the plaintiff’s engineering expert’s affidavit qualified for the exception to Hunt v. Blasius that an independent contractor cannot follow others’ designs when they are so obviously dangerous that no competent engineer would follow them because the affidavit said the defendant should have done something different under the professional standard of care.

The supplemental opinion filed by the court on February 3, 2010, denying the defendant’s motion for rehearing, included new emphasis by the majority opinion that its decision merely holds that summary judgment cannot be granted because there is a fact question as to whether the engineer had a duty which extended beyond the terms of the contract, as identified by plaintiff’s engineering expert.

This opinion had an aggressive dissent which indicates that the question of duty is a question of law to be decided by the court and is not subject to a fact issue. The dissent stated that, as a matter of law, the engineer defendant’s duty was only as provided in the written contract. It further noted that long established Illinois law concludes a party has no duty beyond the words of the contract and that the majority’s opinion improperly imposed such an extra-contractual duty.

The appellate court decision caused shock waves in some parts of the construction industry which feel the appellate court’s holding opens engineer’s and contractors to new liability not anticipated by the contract documents. Let’s hope the Illinois Supreme Court resolves the issues raised by this decision.

Jackson v. Reid: Party Experts and Bases For Their Opinions

A new opinion out of the third district appellate court clarifies some evidentiary and witness rules at trial. The decision is Jackson v. Reid, ___ Ill. App. 3d ___ (3d Dist. No. 3–09–0512 May 24, 2010). It can be found on the Illinois courts’ official website at http://www.state.il.us/court/Opinions/AppellateCourt/2010/3rdDistrict/May/3090512.pdf

The case holds as follows:

(1) A party who is also disclosed as an expert under 213(f)(3) must disclose his/her research and publications reviewed, regardless of whether the material is solely relied upon by the witness in support of his/her opinions. Further, the opposing party has the right to fully cross-examine the party-witness on those results. The court makes clear that research done by a party-expert (whether to educate the party’s attorney or for the party’s own opinions) is not protected by attorney-client or work product privileges.

(2) A chart prepared by the author of an article which merely summarizes certain professional guidelines but does not state them precisely (word for word) cannot be admitted as an independent evidentiary exhibit as it does not represent the actual guidelines or industry standards authorized and issued by the professional society. In “Illinois, scientific and medical treatises are hearsay and are inadmissible as proof of the statements contained therein.”

(3) One cannot admit medical records as business records unless there is a witness who can testify that he/she is familiar with the doctor’s record-keeping practices, the records were made in the regular course of business, and it was the regular course of the business to make such records (per Supreme Court Rule 236).

It’s OK to Look beyond the Plaintiff’s Complaint to Determine Duty to Defend

 

Today, the Illinois Supreme Court made clear that in deciding whether an insurer owes a duty to defend, a trial court may look beyond the mere allegations of plaintiff’s complaint. The decision is Pekin Insurance Co. v. Wilson, ___ Ill. 2d ___ (No. 108799 May 20, 2010). A copy of it may be found on the official website of the Illinois courts at http://www.state.il.us/court/Opinions/Supreme court/2010/May/108799.pdf

This Court ruled that where a plaintiff’s complaint against the insured alleges intentional acts of violence which caused harm, but the insured’s counterclaim asserts his actions were in self-defense, a duty to defend the insured may be triggered by the insured’s counterclaim’s allegations of self-defense in response to the underlying complaint. Here, the policy contained an exclusion for intentional acts, but also a self-defense exception to that exclusion. The Supreme Court agrees with the decisions of American Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d 1017 (2008) and Fidelity & Casualty Co. of New York v. Envirodyne Engineers, Inc., 122 Ill. App. 3d 301, 304-05 (1983) that a circuit court may, under certain circumstances, look beyond the underlying complaint in order to determine an insurer’s duty to defend. Holabird and Envirodyne were summary judgment cases, but the Court applied the analysis here to a motion to dismiss on the pleadings.

The decision settles some controversy which existed because of “loose” language used by prior court decisions which suggested a court must look to the plaintiff’s complaint to determine the duty to defend. The Supreme Court made clear today, however, that those other decisions did not squarely address the question of whether the only thing a trial court may look to in determining the scope of the duty to defend is the plaintiff’s complaint.

Good decision.

Let Lawyers Do Their Jobs in Selecting Juries!

 

Some people say that the composition of the jury is the most important part of a jury trial. Without dissent, lawyers will agree that jury selection is very important in any high stakes trial.

So, why are some judges so insistent on drastically limiting jury selection?

Clearly, there must be efficiency in all aspects of a jury trial, but when judges try to rush lawyers through the voir dire process, it does nothing but lead to a lack of confidence in the jury system. Litigants need to feel they have been given an adequate opportunity to identify those prospective jurors who might be biased against them. And, in spite of what many judges might think, merely having a juror say he/she can be fair does not mean that juror can be fair. It is only through a vigorous voir dire process that parties in a case can be assured that the people deciding the fates of the parties are fair-minded, disinterested and competent to make such decisions.

The case of York v. El-Ganzouri, 353 Ill.App.3d 1, 817 N.E.2d 1179, 288 Ill.Dec. 529 (1st Dist. 2004) is instructive on the attitudes of some trial judges regarding voir dire. In this complex medical malpractice case in which the plaintiff’s attorney was asking for a multi-million dollar verdict, the trial judge allowed each side twenty minutes to pick fourteen jurors. For the two defendants, that meant they each had just TEN MINUTES to ask questions of the venire! On appeal, the appellate court approved of this strict time limitation.

In my opinion, it is crazy to believe that a litigant in a case can be expected to perceive he/she has been given a full and fair opportunity to pick a jury (and two alternate jurors) in just ten minutes. Apparently, I’m not alone in that feeling. In 2006, the Illinois State Bar Association conducted a two day conference dedicated to the subject of jury issues. Attendees at the conference included equal percentages of judges, plaintiff lawyers and defendant lawyers.  The York case was discussed and the attendees were then asked whether they agreed (strongly agreed or agreed), disagreed (strongly disagreed or disagreed) or held no opinion on the following statement regarding that case:

“The time limits for voir dire indicated in the York v. El-Ganzouri case were unreasonably short.”

The results? Not one person attending the conference disagreed with the above statement. 95% of the lawyers and judges answering that question agreed the time limits in the York case were too short, with approximately 85% of those people strongly agreeing the time limits were too short.

So, how could a three judge appellate court panel find that the 20 minute per side time limit was acceptable when almost every judge and lawyer analyzing the case at the ISBA conference found it unacceptable? Of course, one answer is that appellate courts will do whatever they can to uphold a trial court’s ruling.

However, there is something more going on there and trial lawyers see it every day in the courthouse: Trial judges just do not like to let lawyers get into detailed questioning of prospective jurors. I’m not sure of the reasons why, but I believe a good number of judges just want to get the trial started and don’t want to “waste time” on the selection of jurors. That is a flawed perspective, however, because the quicker judges want to move through voir dire, the greater the feeling on the part of litigants that they are not being given a fair shake.

One quick war story on jury selection: The absolute worst jury I ever had was in a case in which the trial judge attempted to control every last detail of the trial and gave very little discretion to the lawyers on how to proceed. She imposed strict time limits on voir dire and she even refused to allow the selection of a single alternate juror even though the trial was expected to last two weeks. The pool of prospective jurors who were trotted into her courtroom at the end of the day was horrific to a defense attorney, and in spite of best efforts, this was reflected in the final twelve jurors who were empaneled. That evening, I conferred with my clients and told them we might have to reassess the likely outcome because of the poor jury. The clients gave me additional settlement authority (which would not have been necessary with an average jury). The plaintiff’s lawyer got cocky and raised his demand.

Then, a funny thing happened: On the first day of trial, one of the selected jurors did not show up and no one could reach her. We waited for two hours, but she was a no-show. The trial judge finally said to the lawyers something like “OK, let’s just go with a unanimous jury of eleven.”

Here’s the thing: Illinois requires jury verdicts to be unanimous; all twelve jurors must agree in this type of case. So, when the judge said we should just go with the verdict of eleven of the worst jurors I had ever seen, I responded “Judge, the defense objects.” It was not good to watch the judge’s face turn red and tell me what a horrible person I was being. I didn’t even have to remind her, however, that I had been the lawyer who requested the selection of an alternate juror and that she had denied my request although it would have avoided this problem. The judge kept pressure on me to accept eleven jurors.

Sometimes, the trial lawyer must be willing to aggravate a judge to promote his/her client’s best interests. At that moment, I knew I would have to take a substitution from that trial judge if I were ever assigned to her in the future or she might choose to recuse herself, but I refused to waive my cleint’s right to twelve jurors. To say the judge was unhappy when she declared the mistrial is an understatement and she made a point of letting the jury panel know they were being dismissed because the defense lawyer refused to proceed with them. Nevertheless, the mistrial was declared and that judge refused to keep the case for its retrial. The matter settled on terms which were very beneficial to my clients when we were assigned out to a different judge and a different jury was selected, so my clients were very pleased.

The question though is, why would a trial judge allow concerns about “efficiency” of a trial to so overwhelm a case that it risks the perception of fundamental “justice?”  Trial judges need to remember that the purpose behind the civil justice system is to provide a forum for people to air their grievances in a civil manner. For them to have faith in that system, the parties must feel assured they will be given a full opportunity to have their cases decided as fairly as possible. Preventing litigants from having enough time to conduct voir dire does not give parties that opportunity.

We don’t need to let trial lawyers have as much time to pick a jury as they want to take. We need to remember, however, that litigants and their attorneys must be permitted to have a good amount of discretion about the manner in which a trial is to be conducted or we will lose the perception that justice is being meted out in a fair way.

Where are the new trial lawyers coming from?

I was lucky.

I began my career at a time when there were still a fair number of cases going to trial. I also began my career at a time when clients believed that not every case required an attorney with twenty years of trial experience to handle all aspects of the matter. Accordingly, I was lucky enough to take a substantial number of cases to trial.

Things are different now.

We are looking at a time when fewer and fewer cases end up going to trial. Therefore, there are fewer opportunities for young lawyers to get the trial experience they need to call themselves “trial” lawyers. Additionally, clients increasingly demand that their cases be handled exclusively by the most experienced “trial” lawyers, even to the point of requiring the senior lawyers to attend all depositions and court hearings. Thus, the chance for a young lawyer to get into a trial setting further diminishes.

The result is that we now have a generation of “litigation” lawyers instead of “trial” lawyers. I practice in a relatively small firm which for the most part is comprised of very experienced lawyers, so we naturally accomodate the demands of clients who want experienced lawyers on their cases. However, we also make it a point to get younger attorneys sitting in as second chairs in our trials so they can become comfortable with the trial setting. I am concerned though about the way which other young lawyers elsewhere will get the experience they need to one day receive those case assignments from clients.

Twenty years from now, will there be a pool of “trial” lawyers who are ready to handle client cases from beginning to end? I don’t know the answer.

I see large law firms with fleets of young, and not so young, lawyers who rarely see the inside of a courtroom, much less a trial. Nevertheless, they are called “trial” lawyers on their law firm websites. The publications and organizations which deal almost exclusively with the large, AmLaw 100 type law firms, praise the results of “trial” lawyers who get to trial once every five years or so.

I started my career before the old days when lawyers tried 30 cases a year. I felt good, however, when I was assigned out to trial 14 times in one year. Unfortunately, all but two of those cases settled for ridiculously low amounts (or amounts which we had offered months before trial) or they were voluntarily dismissed.

The number of trial assignments has decreased in recent years, as it has for all of us. Still, I think I’ve earned the right to call myself a “trial” lawyer. Unfortunately, we need to wonder how young lawyers will earn that right in the future.