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.

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Litigation as “Performance Art”?

August 18, 2010

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.


Where are the new trial lawyers coming from?

May 2, 2010

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.


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.


Writing Court Orders

March 17, 2010

The comments of a bankruptcy judge regarding the problems with lawyers who write out orders have been making the rounds for a while. Judge Kressel identified a list of Do’s and Don’ts for attorneys. Attached is that list along with the judge’s additional comments which were recently published in the Illinois State Bar Association’s Bench and Bar Section Council Newsletter:

Judge Kressel on Writing Orders

I am generally in favor of simplifying the language of court orders but Illinois courts do not always make it easy to do. The most prominent example of this are the “magic words” which must be placed in any order entered pursuant to Illinois Supreme Court Rule 304 (“…there is no just cause or reason to delay the appeal or enforcement ….”). Also, there is case law suggesting certain magic words must be used when a case is dismissed pursuant to settlement in order to permit the court to retain jurisdiction to enforce the settlement agreement.

Additionally, some judges like the use of old style legal jargon. In the end, a court order is the judge’s order so we must do what he/she wants. For me, Judge Kressel’s comments are common sense directions.


“McCarthyism” — Is It now “Grassleyism”?

March 10, 2010

 

Recent attention has been given to the efforts of some politicians and political commentators to demean lawyers who have represented Guantanamo Bay detainees in the various types of legal proceedings against them. Special focus has been on attorneys who work in the Justice Department but while in private practice represented some of those at Guantanamo. Liz Cheney has called then the “Al Qaeda Seven.”

Shame on any Senator — Republican or Democrat — who presses on the identification of Justice Department lawyers who previously represented Guantanamo detainees. Sen, Charles Grassley of Iowa has been pushing hard for the Justice Department to identify all such lawyers. So, are Grassley’s efforts merely the new McCarthyism?

Anyone can try to justify it any way they want, but these recent actions are still a legislator (like McCarthy) trying to “get names” of people in the executive branch merely because of their past associations and activities (like McCarthy). More importantly, however, an attempt to get the names of lawyers is particularly despicable because it demonstrates an acute misunderstanding of the role which lawyers play in our justice system. Attorneys do NOT represent clients because they love the clients or agree with the clients’ views or actions. In fact, to the contrary, lawyers represent clients in spite of those views. Rule 1.2(b) of the American Bar Association’s Model Rules of Professional Conduct states the following:

A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

Not one single lawyer who represented a Guantanamo detainee did so because he/she supports Al Qaeda or terrorism; rather, those lawyers did so because they believe in the justice system and the idea that everyone deserves legal representation. There is no legitimate purpose served by trying to “flush out” those government lawyers. None of them believe in Al Qaeda’s goals; they just believe in American justice.

Shame on those who are being demagogues on this issue. It is so simple to criticize lawyers who take on the least appealing clients in the world, but the American legal system requires it to be done, and it is why so much of the rest of the world admires us. In essence, those who are critical of lawyers who represented Guantanamo detainees are actually critical of the U.S. justice system as established by the Constitution.

So, the question is, will Charles Grassley’s legacy be that he started “Grassleyism”? I hope it doesn’t get that far.


Illinois Supreme Court Strikes Down Caps on Damages

February 4, 2010

Today (February 4. 2010), the Illinois Supreme Court, in a  4 to 2 decision,  struck down the legislative caps on non-economic damages in medical malpractice cases as an unconstitutional violation of the separation of powers between the judiciary and the legislature. Lebron v. Gottlieb Memorial Hospital, ___ Ill. 2d ___ (Nos. 105741 and 105745 cons. Feburary 4, 2010). The full opinion can be found here:  ttp://www.state.il.us/court/Opinions/SupremeCourt/2010/February/105741.pdf

Interestingly, the sole basis for the Court’s decision is the separation of powers. The Court indicated that trial court judges have the inherent authority to correct an abnormally high jury verdict by exercising the power of remittitur. The Court reasoned that because this legislation forces judges to reduce any jury award on non-economic damages which is greater than the amounts indicated in the statute ($1 million against hospitals, $500,000 against doctors), this imposes on a judge’s authority to determine whether an award is excessive.

My view:  The Court’s opinion is awkwardly decided and uncomfortably stretches the separation of powers doctrine to reach the result. The doctrine of remittitur is founded upon a judge’s application of existing law relating to the total amount recoverable in damages, and if a judge decides the jury has improperly applied the current law of damages to award an excessive amount, the judge can reduce the verdict amount (or permit a new trial). The legislation capping non-economic damages set new law which the jury is to apply, so the judge’s remittitur power is not really affected. Under the law, if a jury awarded an amount which was too high under the statute as applied (e.g., the pain and suffering award against a hospital for $1 million was excessive), then the statute does not affect the ability of the trial judge to remit the verdict under available law.

There are other potential bases for striking down the damages caps law but those did not form the rationale of this opinion. The Supreme Court should be honest about why it is striking something down.

The old law professor maxim is “bad facts make bad law.”

Here, it should be “a bad law makes bad law.”