Illinois Supreme Court Allows Free Public Access to Jury Instructions

December 8, 2011

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

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

April 8, 2011

 

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.


Blago Trial Winners and Losers

July 26, 2010

 

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.


“Guessing” at Responses to Requests to Admit

April 16, 2010

 

The Illinois First District Appellate Court recently issued an opinion which has broad implications for the duties imposed upon parties responding to requests to admit under Illinois Supreme Court Rule 216. The decision is Oelze v. Score Sports Venture, LLC, ___ Ill. App. 3d ___ (1st Dist. No. 1-09-1476 March 30, 2010). A link to the opinion on the Illinois Courts official website is here: http://tinyurl.com/y4t8sub

Among the issues in the case is one which relates to Rule 216 requests to admit. The plaintiff submitted requests to have the defendant admit that her attached medical bills were reasonable, necessary and resultant from the underlying occurrence. Such a request to admit is valid under the holding of Szczeblewski v. Gossett, 342 Ill. App. 3d 344, 348, 795 N.E.2d 368, 371 (5th Dist. 2003). Although I still believe the 2003 Szczeblewski decision was incorrectly decided, because it requires a defendant to have expert knowledge, it is the law of Illinois and the requests to admit here were proper.

The defendant responded to each itemized request by neither denying nor admitting the requests and instead stating that, having “made reasonable inquiry and the information known or readily available within the Defendant’s control [being] insufficient to admit or deny,” and not being a physician or nurse, having no training in medical billing and practice rates or treatments described in plaintiff’s bills reasonable and necessary medical diagnosis, care or treatment,” she could not admit or deny the request to admit.

This responsive language completely tracked the Szczeblewski opinion as to the manner in which a defendant would have to respond to such requests to make it a valid response. However, in this 2010 appellate court opinion in Oelze, the Court ruled this response was insufficient because the defendant must also “explain why its resources are lacking to such an the extent that it cannot answer the requests.” The court felt the defendant had sufficient means to either admit or deny because it had already received plaintiff’s medical records and it had “access to its insurance company and the insurer’s databases of claims and necessary treatments and expenses, [so it] could make a pretty good guess at the reasonableness of the expenses and treatments claimed and contest those, if necessary.” Thus, these “boilerplate responses” were deemed by the court to be admissions of the requested information.

In my view, this is a very bad decision and makes little sense.

First, the earlier appellate court decision in Szczeblewski merely stated the following about the manner in which such requests to admit should be answered:

“To ensure that the laudable purpose of Rule 216 is accomplished, a party has a good-faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party’s reasonable control. In this case that would include the defendant’s attorney and insurance company investigators or representatives.”

The defendant here in Oelze responded completely consistently, and in fact identically, with the earlier decision’s language. The 2010 appellate court decision, however, now adds on a further requirement found nowhere in Supreme Court Rule 216 that the defendant responding to the request to admit must now EXPLAIN its response. Rule 216(c) refers to responses as follows:

“Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either

(1) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or

(2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.

If written objections to a part of the request are made, the remainder of the request shall be answered within the period designated in the request. A denial shall fairly meet the substance of the requested admission. If good faith requires that a party deny only a part, or requires qualification, of a matter of which an admission is requested, he shall specify so much of it as is true and deny only the remainder. Any objection to a request or to an answer shall be heard by the court upon prompt notice and motion of the party making the request.”

Yes, the Rule requires the responder to set “forth in detail the reasons why he cannot truthfully admit or deny” the request, but it does not indicate the detail which is necessary. Certainly there is no case law in Illinois which identifies the detail necessary to provide an adequate basis to explain why the responder can neither admit nor deny. Here, the defendant already indicated its specific reasons for non-admission of denial by using the language approved of by the appellate court in Szczeblewski.

So, how detailed must the “explanation” be? Are responders to requests to admit going to be subject to deemed admissions on the basis they did not give enough detailed explanation when there are no standards to say what is enough detail to provide? Based on this brand new requirement of the detail of explanation required by the Rule, the appellate court deemed the responses as admissions, which even the court in Szczeblewski did not do. Instead, the Szczeblewski court remanded the issue back to the trial court for a ruling on whether the defendant would be permitted to amend the response. In another case, the appellate court even accepted the explanations for the non-denial based on the reasons provided not only in the response but also the information provided to the court at the time of the hearing on the motion to compel an answer. Favia v. Ford Motor Co., 381 Ill.App.3d 809, 886 N.E.2d 1182, 320 Ill.Dec. 113 (1st Dist. 2008).

Second, the appellate court in Oelze stuck its neck out to describe the defendant’s responses to these requests to admit as “boilerplate.” I question how a court can describe the responses as “boilerplate” when a prior appellate court (Szczeblewski) was the one to state the language would be appropriate.

Third, the Oelze court went out on another limb by suggesting, apparently without any evidence in the record, that the defendant had “access to its insurance company and the insurer’s databases of claims and necessary treatments and expenses….” In 25 years of practice, I have never heard of some type of casualty insurance company “database of claims and necessary treatments and expenses.” Maybe medical insurance companies have that kind of information available to them because they make decisions on necessary treatments and expenses every day, but casualty insurers do not. In any event, how can the appellate court take judicial notice of such a fact? Further, the facts of each case are significantly different, so how can an insurer’s “database” provide the basis for an admission?

The most significant problem with the Oelze decision, however, is its statement that information available to a defendant is such that it “could make a pretty good guess at the reasonableness of the expenses and treatments claimed.”

A “pretty good guess?”

So, now parties are expected to make judicial and evidentiary admissions based on “a pretty good guess?” Respectfully, I disagree. Rule 216 requests to admit should not be answered on whether the responding party has a “pretty good guess” about the answer. Prior case law disagrees with this decision as well. In a case in which the appellate court also deemed the defendant’s responses as admitted, the appellate court rejected the responder’s non-response only because the non-response was impossible to be correct. In that case, the trial court was found to have not committed error in deeming as admitted the defendant’s response to a request to admit which asked defendant to admit it owned the property where the accident occurred. The defendant’s response that it did not have sufficient information to respond was rejected by the appellate court because the defendant “must” have known whether it owned the property. Fritzsche v. Union Pacific RR Co., 303 Ill.App.3d 276, 707 N.E.2d 721, 236 Ill.Dec. 594 (5th Dist. 1998).

Without doubt, the defendant’s response in Oelze does not fall within the category of information which it “must” have known. Whether a person owns property is something which that person uniquely must know. However, the appropriateness of medical bills and treatment to another person are not the type of thing which a responding party “must” know.

Unfortunately, the Oelze opinion imposes a significant higher burden on parties responding to requests to admit. From now on, they must not only “know” whether the request to admit is true, they must have “a pretty good guess” about whether it is true.

No one’s asking, but I dissent.


Pride in the Profession: No Marketing or Adversarial Process; Just Devotion to Ethics

March 30, 2010

Since 1953, the Illinois State Bar Association’s Standing Committee on Professional  Conduct has prepared opinions relating to issues of ethical conduct of Illinois lawyers. All such opinions are reviewed by the ISBA’s Board of Governor’s for final determination on the propriety of issuing those opinions. More than 1,200 ethics opinions have been issued by the ISBA.

I am a member of the ISBA’s Professional Conduct Committee so I can confidently state that those members of that committee painstakingly review the circumstances of the ethical issues on which opinions are to be issued and carefully draft opinions analyzing the application of professional conduct rules to those circumstances.

The committee is presently engaged in a complete review of ALL ethics opinions issued by the ISBA to determine their continued vitality in light of the new Rules of Professional Conduct adopted by the Illinois Supreme Court and made effective January 1, 2010. Thus far, committee members have spent in excess of 20 hours just in meetings to review those opinions, and many more hours back at members’ offices in preparation for the meetings. At least two more full days of meetings are scheduled to complete the task.

The committee includes members with far greater experience than me on issues relating to the professional conduct rules and some of these lawyers have been on the committee for much of their professional careers; some even developed the new rules which are now in effect.

So, why am I bringing up the work of this committee?

The answer is to demonstrate that in a legal world of marketing, creating revenue streams, hustle and bustle legal work and adversarial processes, it is good to remember that “the law” is a profession with time honored ethical requirements. There will always be those who deviate from the rules, but the vast majority of lawyers are honorable hard-working professionals who not only practice in a moral and ethical manner, but they insist that others in the profession do so as well. This commitment to professional standards runs deep and even compels lawyers to give up much of their personal time to upholding the standards of the profession.

Because of the manner in which CLE credits may be earned, Professional Conduct Committee members receive just one hour of CLE credit for each daylong meeting to review the old ethics opinions and nothing for their pre-meeting preparation. Of course, there is no payment for their hard work. They do it out of devotion to the ethics of “the law.”

I am awed by the commitment shown by members of that committee who have been doing this work for so many years. They are inspirational to the rest of us who sometimes give too much attention to the “business” of our profession. It is extremely satisfying to be able to sit next to them in those committee rooms steadfastly analyzing opinions issued thirty years ago to discern their continuing strength for our profession. They have my gratitude, and I hope the gratitude of other Illinois lawyers.