Monday, January 29, 2018

The truly pernicious effect of collateral fee cases

Like a lot of you, I'm sure, I've spent the past six weeks hacking and wheezing with various degrees of severity, rallying occasionally, as (thankfully) on Christmas Eve, but falling apart before and after.

As a solo practitioner, I have had more freedom than most to work from home while battling this plague. When I have had to come downtown, I've chosen to drive. Al Gore might be displeased, but anyone who might otherwise have been forced to sit beside me on the Blue Line---red-eyed, bleary, dabbing at drips of one kind or another---would probably absolve me. I have yet to try out my new Ventra card.

If that sounds like virtue-signaling (am I using that right?) keep in mind that while I have been heroically saving CTA passengers from my own sniffling and snorting, I have also been quite consciously avoiding theirs....

During my semi-confinement, I have had occasion to watch a lot of early local news broadcasts. And, while the political commercials are starting to crowd them out, even in my enfeebled condition, I have been unable to ignore the fact that a great many sponsors of the early evening newscasts are personal injury lawyers.

The taglines are all similar: If you don't win, we don't get paid! Or, putting an even more positive spin on it: We don't get paid unless you do! The word 'contingent' is never used but, of course, contingent fee arrangements are what these TV-spokeslawyers are touting.

If you've clicked here hoping for a nice screed against 'greedy trial lawyers,' I'm afraid I must disappoint. If there are some abuses (and there are), the contingent fee arrangement in personal injury cases usually serves the laudable purpose of getting representation for and, sometimes, compensation to persons who could not otherwise hope to afford a lawyer. And, while it's true, as the Judicial Hellhole folks charge, that there are some personal injury lawyers who rake in millions and millions from the misfortunes of their fellow human beings, that is only because these superior lawyers, through hard work and expertise, and demonstrated good results, have conditioned their fellow lawyers to bring them only the most substantial cases, from which they may pick and choose, and be quite picky about it. In short, the really good PI lawyers have any number of number 1 draft picks, and they hardly ever take Ryan Leaf. One might be sometimes jealous of their success---one can hardly be human otherwise---but the miniscule elite atop the PI pyramid have earned their wealth and fame.

And then there's the rest of us.

For most personal injury lawyers, including the TV pitchmen, a contingent fee case is by no means a sure thing. In one case, a settlement might make the lawyer a seemingly handsome hourly rate -- but the fee from the next file on the shelf, prorated over the hours expended, might not amount to minimum wage. And there are cases that seem so full of promise when the lawyer signs them up, only to learn that the clients were less than candid about this or that and the resulting fee---just like in the television commercials---turns out to be nothing at all. It seems counterintuitive, but a contingent fee lawyer's best, hardest, or most creative work often results in the least remuneration.

And then there's the fact that a lot of us lawyers don't work for contingent fees.

At least, not on purpose.

Although you'd never know it from the TV commercials, the contingent fee arrangement is not appropriate in a great many types of cases. In domestic relations and criminal cases, contingent fees are entirely prohibited. (See, Rule 1.5(d) of the Illinois Rules of Professional Conduct.)

Except sometimes in collection matters, you hardly ever see contingent fee arrangements in business cases. Smith insists that Jones breached his contract and they resolve to fight the matter out in court. All well and good -- but, if they attempt to 'lawyer up,' Smith and Jones will both have to pay their respective attorneys by the hour -- or at least pursuant to some non-contingent arrangement. And, generally, corporations cannot appear in court except through an attorney.

There really is no such thing as a contingent fee defense. If Smith sues Jones for a million dollars and loses, Jones's lawyer doesn't get a third of what Smith didn't get. Can you imagine? Jones's lawyer tells Smith's lawyer afterwards... next time sue for $10 million; we'll split my fee and both retire?

And yet... the contingent fee has become so deeply embedded in the the public consciousness (thanks to the steady drumbeat of TV commercials) that people -- and, by 'people' I mean clients, as opposed to lawyers, although leading scientists insist that lawyers are people, too -- start to think that if they don't win their case, or if they don't win their case fast enough, they can stop paying their lawyer. If you don't win, the thinking seems to go, you're not getting paid.

And clients can be pretty impatient. After all, on television, the thorniest legal problems are usually wrapped up in 40 minutes or less, exclusive of credits and commercials.

All lawyers know this; some exploit it.

The TV pitchmen sometimes warn that insurance companies will stall and delay unless you, the injured viewer, has the good sense to sign up with the firm running the ad. But some lawyers---any is too many, if you ask me---will use discovery to stall (and bleed) the party on the other side who's paying for representation from his or her own pocket.

Have you ever seen a bullfight?

The matador does not fight the bull one on one; he does not go for the kill right away. He relies on picadors and banderilleros to poke and jab and bleed the bull, softening it up before the matador dares the killing stroke. Similarly, the unscrupulous attorney does not go for the merits of a case right away; written discovery, depositions, discovery motions, are all jabbed into the uninsured client's hide, softening the opponent for a low-ball settlement or even an unfair dismissal.

The bull is unrepresented, and must die at the end of the bullfight. The uninsured, but represented, client, paying from his or her pocket, has a chance to avoid the bull's fate, but too often the client's good judgment, bled by unnecessary (but tactical) discovery, becomes clouded. The lawyer's fee may slide from a debt of honor to contingent status.

We can almost never wrap up real-world legal dilemmas in 40 minutes. But we can involve the court more intimately in the discovery process -- requiring the court to decide what discovery may be propounded in the first place, not waiting until a dispute arises and then, perhaps unfairly, settling it.

I call this zero-based discovery. (You can read more about this by following the link. I hope you will.)

Zero-based discovery could help clients avoid the legal fatigue that comes from being bled by discovery -- and help their attorneys get paid in a timely, as opposed to improperly contingent, manner.

Tuesday, December 5, 2017

The night I bothered Mike Royko at the Billy Goat

The entry of Tom Sam Sianis, a member of the family that owns the Billy Goat Taverns, into the forthcoming judicial primary reminds me of my favorite Billy Goat story....

I was a big fan of Mike Royko from a very young age. I'll pause here while any Millennials in the audience decide if the unfamiliar name is worth a Google.

(Are we ready to move on, kids?)

It was a rite of passage when, as a first year law student, I could pick up my very own copy of the Daily News on my way to the 4:42 express train, where I’d sit next to my father and nod off, just like nearly everyone else in the car – but never, in my case, before reading Royko’s column.

The Daily News didn’t make it all the way through my first year of law school.

My law school extracurricular was Blackacre, the Loyola Law School newspaper. It was where old Loyola Phoenix editors went to die. I was never the editor of the Phoenix, but I was on the editorial board during my undergraduate years. I would eventually become co-editor of Blackacre along with my old Phoenix colleague, Phil Zukowsky.

Although we would usually slake our thirsts at Pippins or whatever they were calling Streeter’s Tavern in those days, Phil and I would occasionally venture south on, and under, Michigan Avenue to the original Billy Goat Tavern. We’d have a drink or two and read the walls and hope to run into Mike Royko. We didn’t.

Fast forward to the late 1980s: Royko had moved to the Tribune. Zukowsky was well on his way to becoming one of the leading lights of the tax bar of Dayton, Ohio. I was no longer taking express trains; I’d married and bought a house in Norwood Park. I was working in an insurance defense practice. I was only writing motions in those days, or discovery responses. But when Phil came through Chicago on this particular occasion, we decided to revisit the Billy Goat.

I don’t remember who spotted Royko first but, as I recall, Phil had more sense than to bother a legend taking his ease. I didn’t. No doubt a tad more eloquent than usual (after a couple of drinks) I intruded upon the great man and his companion, introducing myself and professing my sincere appreciation for his work.

Mr. Royko was unimpressed.

I think gruff and crusty were his default attitudes. I think my intrusion brought him down a couple of notches from there.

I don’t remember all the exact words used – if he included a profanity or two it was certainly his right, given that I was interrupting his evening – but the one thing I do remember, clearly, was that he called me a “yuppie.”

Yuppie was a fighting word insofar as I was concerned. I live in Chicago, I responded angrily, I have three kids (this puts the encounter somewhere between the Fall of 1987 and the Fall of 1989), I drive a Plymouth K-car – with a stick shift – and I do not own a pasta maker!

Roughly 30 years later, I can better imagine what must have been going through Royko’s mind: How can I make this crazy person go away? But, at the time, I thought his reply a complete vindication: “OK, kid, you’re not a yuppie.”

And Royko got what he no doubt wanted as well: I went away.

For more (and no doubt better) about Mr. Royko, and other things, consider this Neil Steinberg blog post from 2016. Steinberg re-ran the post this morning.

Monday, November 6, 2017

Solving the Pro Se Revolution, and putting lawyers back to work, too

The October 2017 issue of the Illinois Bar Journal features an article by Ed Finkel, "The Pro Se Revolution," concerning the May 2017 Strategic Plan issued by the Supreme Court's Commission on Access to Justice.

There have always been pro se litigants. In days of yore, it seemed like pro ses were mostly party plaintiffs, rumpled men or women with piercing stares and unshakable confidence in the merits of the most dubious cases. As a young lawyer, I knew, when arriving for a Law Division morning motion call, that if three or four deputy sheriffs were present, there was a pro se case on the call that day.

But if there are still pro se litigants like this, and there are, they are far outnumbered, these days, by normal, average people who simply can't afford, or who believe they can't afford, legal representation. From Mr. Finkel's article:
Data from the Administrative Office of the Illinois Courts ("AOIC") show that in 2015, nearly two-thirds of total civil cases outside Cook County - 65.2 percent - had at least one self-represented litigant. For certain types of cases, this figure rises as high as 80 percent. In addition, the court system is facing the facts that one out of five Illinois residents speaks a language other than English at home according to U.S. Census data, the number of Illinois residents below the poverty line has grown, and the number of pro bono attorneys has not kept pace.
Finkel quotes Appellate Court Justice Mary K. Rochford, who chairs the ATJ Commission, as saying "people cannot afford legal representation for many reasons beyond our control, and often parts of our state do not have enough legal aid attorneys - and legal aid attorneys are facing their own economic issues.... Our focus is on how we can help the self-represented litigant navigate the court system, and have a full opportunity to present their claims and defenses. We wish everybody could afford a lawyer."

There is a way.

But it will take a lot more than merely streamlining existing procedures.

Why have legal services been priced beyond the reach of so many civil litigants?

In a word, discovery. Largely unfettered, "routine" discovery grossly inflates the cost of any litigation. Frequently deployed as a strategic weapon -- the pious admonitions against this practice in the cases notwithstanding -- discovery too often bleeds an opponent into either submission or bankruptcy.

The word discovery appears twice in the ATJ's Strategic Report, first at page 2 of the Executive Summary:
If more than half of the users of the civil court system are unrepresented by counsel, is it still feasible to require strict adherence to rules of civil procedure, discovery, and evidence?
The second and final appearance of the word comes at p. 27 of the Report, under Initiative 5, concerning the possible simplification or streamlining of existing court processes. The Commission report notes that, in civil cases in which less than $10,000 is sought, the Illinois Supreme Court has, by rule, done away with discovery except as permitted by court order (Supreme Court Rules 281-289), and in other cases, in which less than $50,000 is sought, imposed some limitations on "routine" discovery (Supreme Court Rule 222).

These rules are on the books now and the pro se crisis is growing. The ATJ Commission "proposes to gather information about simplification efforts in Illinois and in other jurisdictions, with the goal of evaluating the potential benefits of such efforts in additional areas of law" (p. 27).

But further nibbling at the edges of the monster that is unfettered discovery will prove unavailing.

What is required is a fundamental shift in the attitude of judges and lawyers toward discovery. We need to go back to the future.

In Lincoln's day, a lawyer seeking discovery in a tort or contract case had to file a separate chancery action, a bill of discovery, in order to -- possibly -- obtain discovery. We don't need to go back to that model exactly.

But we do need to make judges the gatekeepers -- skeptical gatekeepers -- as to what sort of discovery may be allowed in any case. I call this zero-based discovery.

Right now, discovery is supposed to take place largely off stage. The filing of discovery requests and discovery responses is actually prohibited (Supreme Court Rule 201(m)). The success of discovery depends on the cooperation of counsel (or counsel and any self-represented parties). In other words, it is a system that too often fails on contact with unhappy reality.

When it comes to discovery matters, judges are like parents driving kids on a long-distance trip. Discovery is what goes on in the back seat -- and when the inevitable squabbling takes place, judges don't know who started it, or why, but they need it to stop, and stop now! Order was usually restored when Mom or Dad threatened to pull over, but justice was not necessarily served. So it is with discovery disputes.

On the other hand, the judge who agrees that certain interrogatories will advance the conclusion of case for either trial or settlement, and who agrees on the formulation of those interrogatories, has an expectation of what will be asked and how it will be answered. The discovery manipulator who is never satisfied with any response will be cut off quickly when the allegedly offending party shows that he or she has met the court's expectations.

I know that many of my colleagues may blanch at the prospect of so limiting discovery. Discovery is often the chief means for associates to bill hours -- and fuel partner bonuses. And senior partners, at mid- or big-sized firms, are riding in the front seat along with the judges when it comes to discovery matters: They're often not paying attention to what goes on in the back seat either... unless one of their associates gets sanctioned.

But, even with zero-based discovery, judges would not always have to say no to discovery: When big firms, representing well-heeled clients, want to go after each other a bit, jostling for advantage, it's common sense not to get between them. But the judge who turns the lawyers loose on each other will have an expectation of what will emerge from the joust before it begins. Meanwhile, in most cases, the cost of litigation could come down -- way down -- with judges asking simple questions about why this deposition is necessary, or what a party expects to find in her opponent's documents. Imagine being the judge who, for the first time ever, gets to ask why a party needs his opponent to identify "with particularity, each and every data or document source" that opponent has "searched in responding to" a proposed production request. Imagine a judge sitting down with the parties at the outset of a case, asking what do you need, plaintiff, to prove your case that you don't already have? What do you need, defendant, to establish your defense, that you don't already have? What are the most efficient ways to get what you need?

Bring down the cost of litigation, bring back employment opportunities for lawyers. With zero-based discovery, maybe everybody can afford a lawyer. Less lawyers answering discovery... but more handling cases? That increases access to justice, does it not?

For more on zero-based discovery, see:

Monday, October 30, 2017

Lost in the translation?

I tweet out links to most of my page one posts. It seems to have helped build traffic on my site and, apparently, some blog readers get alerts when I tweet; that way, they know for sure when they click over there will be at least one new post to read. I don't understand how any of this works, really; then again, my ignorance of how the Twitter-realm works is unlikely to trigger a nuclear exchange with North Korea. So I've got that going for me.

But then there are mornings like this one. I put up a post. I lined up the next couple of posts that must go up soon -- just as soon as I do a little legal work -- and I answered a few blog-related emails and put up the tweet that you see in the above image.

I thought the tweet was rather straightforward and written in plain, if pedestrian, English.

Twitter, apparently, thought otherwise. That can be the only explanation for the "Translate from Danish" button thoughtfully added by the folks at Twitter. I didn't have the heart to see what the 'translation' might be. All I can say is uff da!

Saturday, August 26, 2017

For those who came in late: Why I cover judicial stuff on my blog

I first ran for judge so long ago that Ed Vrdolyak and the late Ty Wansley were still holding down the afternoon drive slot on WLS-AM.

The reference is not a random one. In the run-up to the 1994 primary, Vrdolyak and Wansley encouraged down-ballot candidates (including judicial candidates, who are always at the very bottom of the ballot) to call in and make their pitch to the voters.

I called.

In an article written for the 1994 Law Day edition of the Chicago Daily Law Bulletin (optimistically---and inaccurately!---titled, "A neophyte learns what it takes to run for judge"), I recounted what happened next:
I waited two hours on hold only to have Wansley ask me how, if elected, I would make him feel safer.

A good politician might take this kind of a question and give a wholly unrelated, self-serving answer. I, on the other hand, had a self-destructive tendency to be literal....
I finally started stammering out something about how, as a new judge, I'd wind up in Traffic Court... and my answer kind of went downhill from there.

[Aside to the general public: Judges shouldn't make you feel safer, and they shouldn't promise to. Judges have to follow the law. In a given case, that might mean that a dangerous felon is removed from the streets. In another, as Cardozo famously said, "The criminal is to go free because the constable has blundered" (People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585(1926)). In a great many cases, probably most of them, the judge following the law ultimately means that somebody has to pay money. Or not. You want to feel safer? Buy a home security system.]

Anyway, I was awful at these 'beauty contest' questions---I still am, unless I have the time to think up a decent answer---but that was only one of my many defects as a candidate.

There are a host of other, better reasons why I lost: I was unslated. I was unknown. I didn't have a lot of money. What money I had, I spent badly (although, to be honest, even though I failed to include my punch number, I still think the billboards looked pretty snazzy). I have a terrible ballot name, made all the worse by my decision to appear on the ballot as Francis J. "Jack" Leyhane III. Ye gods and little fishes: Has a ballot name ever looked more pretentious than that? (Probably not in the 10th Subcircuit, I'll warrant.)

I was the Bob Uecker of judicial candidates. And I probably owe apologies to Mr. Uecker for making that analogy.

About the only thing I did right was to qualify for the ballot. I didn't know beans about politics (and I'm still several beans short of a casserole, I realize) but I was a decent lawyer. I could look stuff up. That -- and the fact that Jim Roche was one of my partners, and one of his ex-partners was election law expert Burt Odelson. So, let's be honest, I got lucky there (Burt asked one of his partners, Mat Delort, to do my petitions; yes, that's the same guy now sitting on the Appellate Court).

And, for all these many faults, I was arguably a "good" candidate -- at least I was rated qualified or recommended by all the bar associations.

As a practicing lawyer, I want only good candidates to become judges.

Like every lawyer (like every litigant) I want all judges to rule in my favor all the time. That's not possible, of course. Even Perry Mason lost three cases (at least he lost them temporarily). But if I can't win every case I take, I want the outcomes of the cases I do take on to be as predictable as possible: If I have correctly looked up the law, I should be able to tell, right from the start, where I will wind up. And if I haven't correctly understood the law, I want to learn something from the experience. I want the court to explain to me, so I can explain to my disappointed client, why we failed to prevail.

Even this is not possible, of course, but I want to move ever further in the direction of predictability and certainty in case results -- and good, competent, honest, smart, hard-working judges are necessary to bring that vision to life.

So I have a selfish motive.

And I also have another motive: I don't want future judicial candidates to stumble around as blindly as I did in 1994 (and 1996 -- but that's a story for a different day). I want judicial candidates to be able to get their names and their credentials and their messages out to the public. I want the public to have a place to go to find out about judicial candidates. I want to put to rest the stale nostrum that even interested voters can't find out anything about judicial candidates.

I never imagined, 10 years now into this project, that I'd still be one of the only ones doing this. I thought surely others would come along by now who would leave my amateurish journalistic efforts in the dust.

But here I am. Still. And here you are. Welcome. And thank you.

If you're really new here, you might not realize most of the judicial stuff is on page one of this blog. Well, I consider it page one. Blogger calls the site that you're visiting now an entirely different blog from For What It's Worth. But now you know differently.

Tuesday, June 13, 2017

Alcauter shows how Rule 137 sanctions lie where Rules of Professional Conduct ignored

This is the third (and last) post in a series. For part one, click here; for part two, scroll down or click here.

American Access Casualty Co. v. Alcauter, 2017 IL App (1st) 160775, is a (thankfully) rare case in which sanctions under Illinois Supreme Court Rule 137 were properly imposed and upheld on appeal. Alcauter also provides a good starting point for a discussion about the challenges faced by an insurer trying to defeat coverage on the grounds that its insured failed to cooperate. We’ve looked at the coverage issues in posts yesterday and the day before. Today, we finally get to the Rule 137 issue.

The operative language of Illinois Supreme Court Rule 137, for our purposes, is found in the fourth sentence of Rule 137(a):
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
In our practice, attorneys are supposed to be the first and most important bulwark against frivolous or baseless litigation. Illinois courts are not expected to sniff out baseless lawsuits on their own; in fact, our judges are entitled to assume that no attorney would ever bring a case to court that was false or fraudulent or without merit.

This expectation is entirely consistent with Illinois Rule of Professional Conduct 3.3, a rule which imposes a duty of candor on an attorney representing a client before any tribunal. Under RPC 3.3(a)(1), a lawyer shall not “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Under Illinois Rule of Professional Conduct 1.2(d), with very limited exceptions, “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”

Comment 3 to Rule 3.3 provides expressly, “The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation.” And Comment 11 to Rule 1.2 warns, “When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient....”

The Alcauter court does not mention the Rules of Professional Conduct in its opinion.

However, it is evident that, if AACC’s coverage counsel had adhered to these rules, he would never have been the object of a Rule 137 sanctions award.

You will recall that, in Alcauter, the trial court denied the insurer’s summary judgment motion (which depended on the alleged following of standard office procedures to prove notice to the insured) and set the case for trial. At the trial, the insurer repeated its presentation of office procedures, but Kimberly Krebs, the underlying plaintiff/judgment creditor, the party holding the $10,000 judgment that AACC’s coverage case sought to render worthless, put on evidence that Alcauter was in fact in prison on the day of the arbitration (on charges unrelated to the auto accident which was the subject of the underlying case). See, 2017 IL App (1st) 160775, ¶¶1, 18-21.

In finding that AACC owed coverage, the trial court admonished AACC and its counsel: “Nobody made a phone call. It’s outrageous to come in here and say you made a phone call on May 23rd.” (2017 IL App (1st) 160775, ¶22.)

AACC paid the judgment shortly thereafter. But Krebs filed a Rule 137 motion anyway. Keep in mind that, by this time, two years had elapsed since the arbitrators’ award.

In the 137 motion, Krebs contended that “AACC had failed to conduct a reasonable inquiry into Alcauter’s whereabouts because, if it had, it would have found out that he was incarcerated” and that coverage counsel had “falsely asserted that Alcauter had confirmed that he would attend the arbitration without conducting a reasonable inquiry into the basis for that claim” (2017 IL App (1st) 160775, ¶23).

But what really sunk AACC (and its coverage counsel – the trial court’s order imposed the sanctions on them both) was the April 9, 2015 letter that Krebs’ attorney sent to coverage counsel. “The letter listed the criminal case against Alcauter, including the case number. The letter also listed each of the exhibits that Krebs intended to introduce at trial, including the arrest report, prisoner data sheet, information, and IDOC documents” (2017 IL App (1st) 160775, ¶24). This letter was sent before trial, obviously, but after the summary judgment motion.

AACC and coverage counsel argued that this letter could not trigger 137 sanctions; the last pleading or motion that coverage counsel had signed on AACC’s behalf was, after all, the summary judgment motion (2017 IL App (1st) 160775, ¶41).

The Appellate Court rejected this interpretation of Rule 137 as “too narrow. The Illinois Supreme Court has stated that Rule 137 carries with it an implicit requirement ‘that an attorney promptly dismiss a lawsuit once it becomes evident that it is unfounded’” (2017 IL App (1st) 160775, ¶42, quoting Lake Environmental, Inc. v. Arnold, 2015 IL 118110, ¶13). At the very least, coverage counsel had an obligation to “forthrightly” advise the court once he learned of Alcauter’s incarceration. Instead, coverage counsel “filed a witness and exhibit list in anticipation of going to trial” and then “proceeded to put Krebs through the process of a bench trial on May 20, 2015, all the while knowing that he had no factual basis to support AACC’s position.” (2017 IL App (1st) 160775, ¶45.)

Coverage counsel did himself no favors by trying to fudge on when he received opposing counsel’s letter with the information regarding the incarceration of his insured – at one point saying he didn’t see the letter until “the eve of trial” and then backtracking to say that he’d not seen the letter until three or four weeks before trial (2017 IL App (1st) 160775, ¶28). Krebs’ attorney had the good sense to send the April 9 letter via certified mail – and had a green card proving delivery on April 13 (2017 IL App (1st) 160775, ¶27).

Nor did AACC or coverage counsel help their cause by offering to settle, after the April 9 letter was received, for the face amount of the arbitration award – $10,000. The 11th hour negotiations came to light at the hearing on the 137 motion. Before the coverage case went to trial, Krebs’ attorney offered to settle for $10,000 + costs + interest on the judgment. (2017 IL App (1st) 160775, ¶¶26, 28. After the trial, after sanctions were imposed, in addition to paying the judgment, costs of the original suit, and interest, AACC and its coverage counsel had to pay $12,678.75 in attorney fees and another $865.95 in costs (2017 IL App (1st) 160775, ¶29).

But, as shown, even though the Appellate Court never mentioned them by name, what really sank AACC and its coverage counsel in the Alcauterwas coverage counsel’s failure to follow the Rules of Professional Conduct. All this may be summarized as follows: Don’t file a baseless case – or if you do file a baseless case relying on what turns out to be the false representations of your client (or your client’s trial attorneys and staff) – withdraw the case. Recall—and abide by—the admonitions of Rule 1.2(d) and of Comment 11 to Rule 1.2.

Monday, June 12, 2017

The Alcauter case, continued: A detour for Direct Auto (why arbitrators' awards usually exceed trial results in arbitration cases)

This post is the second in a series of three. For part one, scroll down or click here.

We will, I promise, get to a discussion of why sanctions were imposed by the trial court and affirmed by the Appellate Court in American Access Casualty Co. v. Alcauter, 2017 IL App (1st) 160775. But I wanted to discuss insured non-cooperation cases generally first.

And, yesterday, we left off with the case of Direct Auto Ins. Co. v. Reed, 2017 IL App (1st) 162263. In Direct Auto, addressing a situation similar to Alcauter where the insured failed to show up for the arbitration and an order was subsequently entered barring the insured from rejecting the award, the Appellate Court expressly held, 2017 IL App (1st) 162263, ¶37, “substantial prejudice to an insurer does not automatically flow from the issuance of a debarring order preventing the insured from rejecting an unfavorable arbitration award.”

I left off with the suggestion that the Direct Auto court may have inadvertently confused matters when it added, 2017 IL App (1st) 162263, ¶38, “In so holding, we do not foreclose the possibility that an insurer might, under the circumstances of a particular case, be able to demonstrate actual, substantial prejudice from the issuance of a debarring order itself. But such a showing must be based on evidence that the insured would have obtained a better result at the trial than the insured obtained at arbitration.” In this installment, I submit that this showing may not be as difficult to make as this language might suggest.

In the Arbitration Reporter, the Law Bulletin Company “summarizes Cook County civil cases tried after the mandatory arbitration award was rejected.” In particular, this publication highlights, in each case, how the jury verdict differed from the arbitration award.

I am not a subscriber to that publication. But I do know that, at least at one time, defendants (meaning defendants’ insurers) typically did obtain better results at trial than at mandatory arbitration. The data, as compiled by the Arbitration Reporter, was brought up—pointedly—at a training seminar for Cook County arbitrators some years ago (I’ve been an arbitrator since the program started here). The presenters complained that the attorney-arbitrators were more generous to their colleagues in the plaintiffs’ bar than jurors drawn randomly from the voting rolls.

A lot of arbitrators, myself included, could agree that there was some anecdotal support for this contention: Arbitrators come from all areas of legal practice; some have never set foot in a courtroom. Attorneys with little or no courtroom experience were sometimes inclined to believe in the old ‘three-times-specials’ rule. Younger practitioners may have heard of this creature but liken it to a unicorn or dragon – mythical beasts that are wonderful to think about but which really never existed. Alas (or thankfully, depending on your background), the three-times-specials rule was more like the passenger pigeon or the dodo: It did exist once, but was hunted into extinction.

But the unwarranted generosity of some—a few—arbitrators was not the only, or even the major cause of the discrepancy. Rather, the difference in results is directly attributable to the differences in how medical damages evidence comes into the respective proceedings.

Illinois Supreme Court Rule 90(c) allows for the streamlined admission of medical records and bills at arbitration hearings; they merely have to be included in the 90(c) ‘package’ served on all counsel of record more than 30 days prior to the hearing. No doctor or other medical professional has to come in and explain or defend the records; the party offering the bills has only to specify whether they are, or are not, paid (paid bills carrying with them a legal presumption of reasonableness). Granted, the 2002 comments to Rule 90(c) do state, in pertinent part, “Regardless of the presumptive admissibility of the documents, the arbitrators will be required to apply the tests under established rules of evidence otherwise relating to admissibility and credibility and to determine, fairly, the weight to be given such evidence.” But, as a practical matter, in the typical arbitration case, there is not a lot of competing evidence or testimony to measure the bills and records against. In the ordinary arbitration case, the bills come in automatically and serve as the starting point for any award.

By contrast, at trial, a plaintiff has no such shortcuts available. As the Appellate Court explained recently in Klesowitch v. Smith, 2016 IL App (1st) 150414, ¶45, citing to both Arthur v. Catour, 216 Ill.2d 72 (2005), and Wills v. Foster, 229 Ill.2d 393 (2008), for support), in Illinois, “When evidence is admitted, through testimony or otherwise, that a medical bill was for treatment rendered and that the bill has been paid, the bill is prima facie reasonable. If the bill has not been paid, a plaintiff can establish reasonableness by introducing the testimony of a person having knowledge of the services rendered and the usual and customary charges for such services. Once the witness is shown to possess the requisite knowledge, the reasonableness requirement necessary for admission is satisfied if the witness testifies that the bills are fair and reasonable. The court in Wills did not overrule or abrogate Arthur, and under Arthur, when medical bills are discounted, a plaintiff cannot make a prima facie case of reasonableness based on the bill alone, because she cannot truthfully testify that the total billed amount has been paid. Instead, she must establish the reasonable cost by other means—just as she would have to do if the services had not yet been rendered, e.g., in the case of required future surgery, or if the bill remained unpaid” (internal citations and quotation marks omitted).

At trial, therefore, a doctor or other medical professional will have to testify in order for the medical bills to be admitted. If the medical professional can not also demonstrate that he or she “possessed knowledge of the usual and customary charges for” the services provided, any unpaid portion of the bills might not get in at all (2016 IL App (1st) 150414, ¶47). The necessity and efficacy of the treatment provided, the witness’s qualifications and training, his or her biases or prejudices, interests, the thoroughness of his or her examination, whether his or her findings were based solely on the plaintiff’s complaints or whether there was objective support for these findings – all of these will be fair game for cross examination of the medical professional.

Small wonder, then, that where testimony is required for the admission of medical bills instead of allowing them in automatically, plaintiffs’ awards might go down from the amounts awarded in arbitration.

In any event, to respond to the Direct Auto opinion, an insurer might be ‘actually and substantially prejudiced’ when its insured, after being duly noticed, fails to cooperate by appearing for arbitration because, in that case, the insurer will not be allowed to reject an arbitration award. Even where the insured has nothing particularly substantive (or helpful for the defense) to offer on liability (as in the case of a rear-end accident, for example), the inability to reject the award deprives the insurer of the opportunity to challenge, and perhaps reduce, plaintiff’s damages claim at trial. The difference between Rule 90(c) and the ordinary rules of evidence alone supports this argument. If the statistical pattern identified by the Arbitration Reporter some years ago still holds, this argument would be all the more compelling.

I would suggest that an insurer making this argument would be in a stronger position if it admitted liability, or at least admitted negligence, prior to the arbitration in the underlying case. An insurer later asserting the non-cooperation of its insured could point to that admission as evidence that its strategy was always to limit damages to an appropriate amount. The insured’s failure to appear for arbitration frustrates the implementation of this strategy if the insurer is prevented, on account of the insured’s failure to appear, from rejecting the arbitration award and proceeding to trial. Of course, in a case where liability is, or should be, admitted, defense counsel should seek to excuse the insured’s appearance at arbitration in advance, thereby preserving the insurer’s right to reject and avoiding any coverage inquiry.

In Alcauter, the issue of prejudice to the insurer was never reached; the case turned on whether the insured’s absence at the arbitration was really the result of his refusal to cooperate. A failure to cooperate should be established, in light of the insured’s contractual duties, by showing proof of notice to the insured, coupled with the fact of the insured’s nonattendance.

But, in Alcauter the insurer’s ‘proof’ of notice was entirely procedural. The same attorney whose affidavit had described the normal office procedures testified at trial. And, at trial, this attorney admitted that he had no personal recollection of this particular case (2017 IL App (1st) 160775, ¶14).

Meanwhile, the underlying plaintiff/judgment creditor put on proof that the insured could not have attended the arbitration even if he wanted to: Jose Alcauter was, at the time of the arbitration, in stir. In durance vile. Incarcerated.

This evidence called into question not only whether the insured was guilty of non-cooperation, it also raised doubts about whether the alleged office procedures had been followed. And, then, when the attorney for the underlying plaintiff/judgment creditor advised the court that proof of the insured’s incarceration had been bundled up and sent to the insurer’s coverage counsel before trial and coverage counsel proceeded to trial anyway without bringing that little factoid up in any way – well, that’s when we get, finally, to the Rule 137 discussion. That will be the subject of our next post.

Sunday, June 11, 2017

Noncooperation defense, propriety of sanctions illustrated in Alcauter case

American Access Casualty Co. v. Alcauter, 2017 IL App (1st) 160775, provides a useful illustration of a case where sanctions under Illinois Supreme Court Rule 137 were properly imposed and upheld on appeal. Alcauter also provides a good starting point for a discussion about the challenges faced by an insurer trying to defeat coverage on the grounds that its insured failed to cooperate. We’ll start with the coverage issues in this post and finish tomorrow. The Rule 137 issue will be the subject of a third installment.

AACC alleged that its insured, Jose Alcauter, failed to cooperate in the defense of an auto accident suit brought against him by Kimberly Krebs. If the court agreed, AACC would be excused from paying Krebs for the judgment against Alcauter.

Krebs obtained a $10,000 arbitration award against Alcauter in May 2013, according to the Circuit Court Clerk’s electronic docket in case no. 2012 M2 2067. Alcauter did not appear for the arbitration, according to the Appellate Court’s opinion, the arbitrators noting “that ‘no evidence was presented’ at the hearing and that Alcauter did not appear ‘despite having received’” a Rule 237 notice to appear (2017 IL App (1st) 160775, ¶7). Although a notice of rejection was filed, in August 2013, judgment was eventually entered on the award.

A few months later, in October 2013, AACC filed the declaratory action that gives rise to the reported opinion. Alcauter’s failure to appear was touted as a violation of his contractual duty to cooperate in the defense of any case brought against him. Alcauter did not appear in the declaratory case and was defaulted (2017 IL App (1st) 160775, ¶9). This is not unusual (United Automobile Ins. Co. v. Buckley, 2011 IL App (1st) 103666, notwithstanding): The real party in interest in these cases is typically the underlying plaintiff/judgment creditor. The tortfeasor’s liability policy is the only likely source of funds to satisfy the judgment.

AACC moved for summary judgment. The centerpiece of coverage counsel’s motion was the affidavit of a supervising partner in the firm that AACC had retained as trial counsel. In the affidavit, the partner detailed his firm’s regular procedures for notifying insureds of upcoming trial or arbitration dates. Two letters would be sent to the insured’s last known address advising of his obligations; then, the day before the arbitration, a phone call was made to the insured’s last known telephone number. Moreover, the attorney attested, because there was no motion to continue the arbitration in the file, the file “showed that, ‘based upon [his firm’s] practice and procedures, [the firm] called Jose Alcauter the day before the arbitration and confirmed his attendance’” (2017 IL App (1st) 160775, ¶11). The trial court denied the summary judgment motion.

Understandably, given its focus on the Rule 137 sanctions subsequently imposed by the trial court, the Alcauter court does not go into detail as to why the trial court denied the summary judgment motion, noting only the trial court’s remark “that it still had ‘some unanswered questions * * * that raise issues of fact as to the notice,’” (2017 IL App (1st) 160775, ¶12).

However, the reported cases make it clear that non-cooperation is not an easy defense for an Illinois insurer to establish.

Illinois has long recognized that the “character” of an automobile insurance policy is different from other types of contracts. In M.F.A. Mutual Ins. Co. v. Cheek, 66 Ill.2d 492, 498 (1977), the Illinois Supreme Court noted that “the public is the beneficiary of the automobile policy.” According to the M.F.A. Mutual court, an automobile liability policy “is more than a private agreement between the insured and the insurer against losses sustained as a result of the negligent operation of a motor vehicle” (66 Ill.2d at 499-500). Quoting a Washington case with approval, the M.F.A. Mutual court added (66 Ill.2d at 500) that automobile liability policies “are simply unlike traditional contracts, i.e., they are not purely private affairs but abound with public policy considerations, one of which is that the risk-spreading theory of such policies should operate to afford to affected members of the public—frequently innocent third persons—the maximum protection possible consonant with fairness to the insurer.” See also, Century Mutual Ins. Co. v. Tracy’s Treasures, Inc., 2014 IL App (1st) 123339, ¶103 (quoting M.F.A. Mutual and differentiating “the character of the automobile insurance policy” from the policy at issue in that case).

On the other hand, cooperation clauses in insurance contracts serve a useful purpose by preventing “collusion between the insured and injured and [enabling] an insurer to prepare its defense to a claim,” American Access Casualty Co. v. Alassouli, 2015 IL App (1st) 141413, ¶17 (citing Cheek). “Typically an insurer has little to no knowledge of the relevant facts, and is therefore dependent upon its insured for fair and complete disclosure. * * * While an insured has no duty to assist an insurer in any effort to defeat a proper claim for recovery, the insured must disclose all facts within his knowledge and otherwise help the insurer determine coverage under the policy.” Founders Insurance Co. v. Shaikh, 405 Ill.App.3d 367, 374 (1st Dist. 2010), citing Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 204 (1991).

Thus, the Illinois courts have struck a balance between the private contractual purpose of the cooperation clause and the public nature of liability insurance policies (particularly auto liability policies) by holding that, in order to establish non-cooperation of its insured, an insurer must prove “a breach by the insured (i.e., a showing that the insurer ‘exercised a reasonable degree of diligence in seeking the insured’s participation’ and ‘the insured’s absence was due to a refusal to cooperate’) and resulting substantial prejudice to the insurer” (Direct Auto Ins. Co. v. Reed, 2017 IL App (1st) 162263, ¶25, quoting Shaikh, 405 Ill.App.3d at 374). And in Direct Auto, addressing a situation similar to Alcauter where the insured failed to show up for the arbitration and an order was subsequently entered barring the insured from rejecting the award, the Appellate Court expressly held, 2017 IL App (1st) 162263, ¶37, “substantial prejudice to an insurer does not automatically flow from the issuance of a debarring order preventing the insured from rejecting an unfavorable arbitration award.”

The Direct Auto court attempted to explain that it was not saying that an insurer is never prejudiced by the failure of its insured to attend a mandatory arbitration hearing... but, in all honesty, the court injected some presumably unintended confusion when it added, 2017 IL App (1st) 162263, ¶38, “In so holding, we do not foreclose the possibility that an insurer might, under the circumstances of a particular case, be able to demonstrate actual, substantial prejudice from the issuance of a debarring order itself. But such a showing must be based on evidence that the insured would have obtained a better result at the trial than the insured obtained at arbitration.”

Addressing that potential confusion – and, in the course of same, addressing when and how an insurer is prejudiced by the failure of a non-cooperative insured to appear for a mandatory arbitration hearing – will be the subject of tomorrow’s post.

Thursday, May 11, 2017

On media, money, and recent headlines

Channel 11's Chicago Tonight featured a panel discussion a week ago Monday with Law Bulletin editor Marc Karlinsky, former Circuit Court Judge Edmund Ponce de Leon, and John Marshall Law School Professor Samuel V. Jones, a discussion that started with the current headlines---the indictment of Judge Jessica O'Brien and the resignation of Judge Richard Cooke---but was repeatedly steered (in my opinion) by moderator Carol Marin back to the typical local media talking points: "Merit" selection (and the public's ignorance of who serves in the judiciary), the unhealthy political control over the judicial election process, the inability to throw out judges in local retention elections, and the potentially corrupting influence of money in judicial races. Watch the video yourself to see if you agree.

Ms. Marin may have struck all the conventional notes but, in his discussions with the Chicago Sun-Times following his resignation, ex-Judge Richard Cooke departed from the traditional narrative:

Of course, FWIW readers are presumably unsurprised by allegations of politics going on behind closed doors at the county courthouses. We might prefer that our judges all be members of a contemplative commune of black-robed legal philosophers---or we might say that this is what we prefer---but the reality is that we choose these men and women in a political process. (Associate judges are chosen by the elected judges in a different, but at least equally political process).

I have no opinions about the alleged conflict that Cooke said made it inappropriate for him to report to Traffic Court. I have had no opportunity to independently assess whether Cooke's concerns were or were not well-founded.

I do know that almost all new judges start out in Traffic Court. Traffic courtrooms are generally high-volume courtrooms and I believe that handling a room like that would usually be quite different from anything a new judge might have done before. In Traffic Court, new judges get a crash course in commanding the attention of a busy courtroom, assessing witness credibility, functioning as a neutral (quite different from being an advocate of one side or the other), and in making prompt decisions (there's not a lot of room for let-me-get-back-to-you-on-this in Traffic Court). Most new judges have little or no specific Traffic Court experience before going on the bench, but Traffic Court is considered to present legal issues that most judges can pick up quickly -- after all, most judges at least drive cars and have some familiarity with traffic law if only from that.

But, if almost all new judges go through Traffic Court, that means that not all do. There is no statute or ordinance that has been called to my attention that requires new Cook County judges to serve an apprenticeship in Traffic Court. In fact, by coincidence, about six weeks ago, at an Appellate Lawyers luncheon, one of the justices at my table recounted how he had never sat one day in Traffic Court; because of his extensive trial experience he was put immediately in a small claims courtroom instead. These "11th floor courtrooms" -- non-jury civil courtrooms on the 11th floor of the Daley Center -- are often the second assignment for new judges after Traffic Court. But these rooms are also fairly high-volume courts where some of those same initial lessons in how to be a judge may also be learned.

I also know that our Cook County court system is one of the largest unified court systems in the world; there are a lot of different assignments. So I don't know that it was really necessary for Chief Judge Evans and new Judge Cooke to wind up at loggerheads. One can't help but think that there might have been some agreeable compromise available, if both sides were willing.

Having said all that, of course, I freely admit that, if I were offered the opportunity to sit in Traffic Court, I'd sprint for the Daley Center escalator before anyone could change their mind. I suppose that many FWIW readers would do the same.

In my case, I will never have to worry about it. Even if I did have $500,000 or $600,000 that I could squander on an election campaign (¡ojal√°!), those funds would probably not pave the kind of uncontested path to a judgeship that Mr. Cooke had.

Cooke was well-known to the political leaders in the 6th Subcircuit; he'd donated time and money to causes they held near and dear; he'd gained favorable attention from the operation of his legal clinic. I, on the other hand, would be---despite running this blog for many years---a stranger to most of the political operatives in my backyard (at best I'd be a nodding acquaintance). Sixth Subcircuit politicians had reason to believe that Cooke could (and would, if forced) spend his enormous war chest wisely and run a good campaign; on the other hand, politicians in my neck of the woods would at least be sorely tempted to see if I knew how to use my money effectively. And professional politicians can bleed a candidate, make no mistake. Petition challenges may be unfounded, but they are fraught with peril for the uninitiated, and expensive for all concerned. If I survived the inevitable challenges, and knocked any phantom candidates off the ballot, there would still be at least one well-funded challenger. Probably one with a much better-sounding Irish name than mine. Would I have enough savvy to seek out and enlist the aid of experienced political operatives (and follow their good advice) -- or would I throw away my money on buttons and newspaper advertisements? In my quest for good advice would I take on an adviser who was really working on behalf of maintaining the status quo? As the old saying goes, politics ain't beanbag.

Money alone, even large stacks of the stuff, carries with it no guarantee of success in the quest for any political office. (Remember how much money Jeb Bush had? That's why people who fret about the corrosive influence of money per se in politics are focused on a single tree in a tangled forest.) Richard Cooke was smart enough, and connected enough, to use his money as leverage to obtain his goal.

Cooke was no political naif. Thus, whatever the accuracy or merit of his specific contentions, Cooke's comments to the Sun-Times about a different level or species of politics being practiced within the judiciary suggest that clout outside the courthouse does not necessarily translate to clout within. As someone who believes in the importance of judicial independence, I find some comfort in this. A little, anyway.

Wednesday, April 26, 2017

Newly elected downstate judge benched after parolee-roommate arrested for murder

Ronald Duebbert, pictured at right, was elected to the Circuit Court in the far Downstate 20th Judicial Circuit just this past November. He began his judicial career in December -- and was banished to administrative duties in January.

Why? His sometime roommate, David E. Fields, a convicted felon, paroled after serving time for the battery of a pregnant woman, was arrested on a new charge of first degree murder in connection with the December 30, 2016 shooting death of one Carl Z. Silas. At the time, according to a January 6, 2017 story by Robert Patrick in the St. Louis Post-Dispatch, the St. Clair State's Attorney requested the appointment of a special prosecutor to investigate possible obstruction of justice charges against Judge Duebbert.

The Duebbert saga is in the news again this month because the Belleville News-Democrat, after a FOIA suit against the Prisoner Review Board and the Illinois Department of Records, has obtained records showing that Duebbert regularly visited Fields in jail prior to Fields' October 2016 release -- with some visits lasting up to eight hours.

Fields wanted to move in with Duebbert upon his release from prison, but that request was initially denied because Duebbert had guns in his home that he was, at that point, unwilling to relinquish. Then Fields did move in with Duebbert on November 4 -- just days before Duebbert was elected -- only to be "instructed to move from Duebbert’s home Dec. 2," according to Beth Hundsdorfer's article in the News-Democrat, "'because it was a denied host site.'"

According to Hundsdorfer's article, "St. Clair County Chief Judge Andrew Gleeson learned of Fields' residency situation and told Duebbert that he would not allow him to take the bench if Fields continued to reside at Duebbert's home." Duebbert, in turn, according to Hundsdorfer, did tell Fields he needed to move.

What is unclear, at least to me, after reading the various news accounts, is whether Fields in fact had moved from Duebbert's home by December 30, when Fields allegedly shot Silas in the face. Hundsdorfer's April 15 article quotes Duebbert's lawyer as saying, "They [parole authorities] knew where he [Fields] was. No one was trying to hide that."

As for the guns that had been in Duebbert's home, Hundsdorfer's article quotes Duebbert's lawyer as explaining that, after the shooting, Duebbert took police to the location where the guns were stored -- and all were present and accounted for.

The candidate that Duebbert defeated to win election last November was former 20th Circuit Judge John Baricevic. Baricevic and two other 20th Circuit judges, Robert Haida and Robert LeChien, resigned their posts effective December 4, 2016 (the last day of their terms) and entered the 2016 Democratic Primary, seeking to return to the bench in a new term beginning December 5. This maneuver was challenged on the basis that a sitting judge could only seek retention, not run in a partisan election, and the case went all the way to the Appellate Court which decided, in the case of Cook v. Illinois State Board of Elections, 2016 IL App (4th) 160160, that Baricevic et al. were free to do as they did.

In Baricevic's case, the maneuver failed. (Haida and LeChien were reelected; Duebbert beat Baricevic by just 839 votes out of 163,411 votes cast).

Why did these three jurists eschew the retention ballot in favor of running in a partisan primary and potentially contested election? (Haida was not opposed last November.)

Tim O'Neil, in a January 20, 2016 article for the St. Louis Post-Dispatch (accessed today on Lexis), explained Baricevic, Haida and LeChien were motivated by a "scandal involving former judges Michael Cook and Joe Christ.... Christ, a new associate judge, died of a cocaine overdose on March 10, 2013, at Judge Cook's family hunting lodge. Judge Cook later was sentenced to two years in federal prison for possession of heroin and for being a drug user in possession of a firearm." [See, Death of a Downstate judge, downfall of another (FWIW, May 31, 2013).] Barecevic and his colleagues wanted to respond to anticipated "smear campaigns" and Baricevic told O'Neil that they would not have the freedom to do this if they only stood for retention.

Wednesday, March 1, 2017

How the "first-come, first serve rule" applies in Illinois auto liability cases

It happens all too frequently in the real world: The at-fault driver causes damage to multiple vehicles, careening off this one, into that one, his vehicle finally coming to rest when it crumples the front of still another.

Even if no one is hurt in all the chaos, the aggregate damage to the three damaged vehicles may well exceed the available property damage coverage of the at-fault driver.

The owners of the three damaged vehicles have three different insurers. Each will eventually pay their insured’s claim and then want to subrogate against the at-fault driver.

But Company A settles with its insured far faster than Companies B or C settle with theirs. And Company A’s claim alone is for more than the at-fault driver’s PD limit. Company A makes a limits demand and it wants a check yesterday. Can the at-fault driver’s carrier settle with Company A?

Yes, it can.

Under Illinois law, an insurer is entitled to make payments under its policy on a first-come, first-serve basis as long as the settlements are made in good faith. The relevant section of the Illinois Vehicle Code is 625 ILCS 5/7-317(f)(3):

(f) Provisions Incorporated in Policy. -- Every motor vehicle liability policy is subject to the following provisions which need not be contained therein:

* * *

3. The insurance carrier shall, however, have the right to settle any claim covered by the policy, and if such settlement is made in good faith, the amount thereof shall be deductible from the limits of liability specified in the policy.

* * *
See also, State Farm v. Murphy, 38 Ill.App.3d 709, 348 N.E.2d 491 (2nd Dist. 1976). The Murphy court explained, 38 Ill.App.3d at 712, “The insurer is given the right both by policy and by statute to settle claims against its insured. [Citing, inter alia, to the Vehicle Code provision now codified at 625 ILCS 5/7-317(f)(3).] And it is provided in the statute that as long as the settlement is made in good faith the amount of the settlement is subtracted from the amount of the policy limits. This is true even though there are several claimants, as the insurer has the right to settle claims in good faith even though such payments exhaust the policy limits of the insured’s policy so that a subsequent judgment creditor cannot collect on the policy.”

As with every legal rule ever devised, there are exceptions. The Murphy court came up with two (Id.): “The insurer is not exonerated if the prior settlements were not in good faith (Obad v. Allstate Insurance Co. (1967), 27 App.Div.2d 795, 279 N.Y.S.2d 128), or if the insurer in some other way, such as a failure to inform the insured of the danger of excess liability, breached its duty of good faith towards its insured (Fireman’s Fund Insurance Co. v. Santoro (1st Cir. 1967), 376 F.2d 157).”

A prudent insurer will always keep its insured apprised of possible excess exposure. The question of what constitutes ‘good faith’ in this context is trickier; it does not appear to have been extensively litigated in Illinois. However, Sampson v. Cape Industries, Ltd., 185 Ill.App.3d 83, 540 N.E.2d 1143 (4th Dist. 1989), suggests that an insurer has broad discretion to settle claims in virtually any manner it wants: After being served with a garnishment summons, advising of a judgment against its insured and demanding payment under its two applicable liability policies, Zurich, the insurance carrier in the Sampson case, exhausted those policy limits by paying other claims. The Appellate Court reversed the summary judgment awarded Zurich on the garnishment claim, remanding the case for further proceedings – but did not find that Zurich had acted in bad faith.

The better practice for an insurer facing multiple claims which, in the aggregate, exceed its policy limit, may be to try and negotiate a pro rata settlement with all the pending claimants. But Illinois law does not require this. And stalling one claimant because another claimant (or two) might come forward may constitute a bad faith claims practice. See, §154.6(d) of the Illinois Insurance Code, 215 ILCS 5/154.6(d) (the failure to “effectuate prompt, fair and equitable settlement of claims... in which liability has become reasonably clear” may be a bad faith claims practice).

This principle hurts carriers hoping to pursue subrogation claims: By the time a carrier settles up with its own insured, the liability insurance available to the tortfeasor may have been completely paid out to other claimants. But the tortfeasor’s carrier can not be penalized in these circumstances.

Now let’s change the facts. Instead of presenting an excess claim, Company A presents a claim for, say, 75% of the at-fault driver’s PD coverage. The at-fault driver’s carrier settles with Company A for the amount claimed and obtains an appropriate release.

Now Company B comes straggling along. It, too, has a claim for 75% of the at-fault driver’s PD coverage and it is not at all pleased to find that all but 25% of the available policy limit has been paid out to Company A. Company B wants payment of its entire claim. It sues the at-fault driver. Must the at-fault driver’s carrier defend its insured?

Yes, it must.

And, no, the at-fault driver’s carrier cannot just shove its remaining policy limit at Company B and abandon its insured. See, Conway v. Country Casualty Ins. Co., 92 Ill.2d 388, 442 N.E.2d 245 (1982). From Conway on there are any number of Illinois cases which duly note that the duty to defend is broader than the duty to indemnify. Of course, in the example here, there is at least a question of whether the insured’s excess exposure is sufficient to trigger a conflict of interest. We will defer that question to another day.

Now, one more change of facts. Company B is eventually persuaded to accept the remaining policy limit. Its suit is dismissed; appropriate settlement documents are exchanged.

Now—finally—Company C shows up, arm extended, palm upright. It wants 50% of the at-fault driver’s PD limit – but that limit has been exhausted by the prior settlements. Company C is really unhappy when it gets this news. It sues the at-fault driver.

Does the at-fault driver’s carrier have an obligation to defend this suit?


Here, the rule of Zurich Ins. Co. v. Raymark Industries, Inc., 118 Ill.2d 23, 52, 514 N.E.2d 150 (1987), presumably applies (emphasis in original): “Where the insurer has exhausted its indemnity limits, however, the insurer cannot ultimately be obligated to indemnify the insured. Thus, the duty to defend is broader than the duty to indemnify only when the insurer has the potential obligation to indemnify. But when, as here, the insurer has no potential obligation to indemnify it has no duty to defend.”

In an ideal world, Companies B and C would get their respective acts together sooner. Company A would be willing to wait for the other carriers to come to the trough. With all claims presented (which, conveniently, for purposes of our example, add up to 200% of the available PD limit), the at-fault driver’s carrier can hopefully persuade Company’s A, B and C to accept 50¢ on the dollar and all go away at once. If not, there is always the remedy of interpleader, which in Illinois is provided for by §2-409 of our Code of Civil Procedure.

Thursday, December 15, 2016

Recovering lawyer posits plausible reason for nasty anonymous comments

For the cartoon-challenged, the above is yesterday's installment of Pearls Before Swine, drawn by recovering lawyer Stephan Pastis, a cartoon which runs in about half the newspapers left in the country, including our own Sun-Times.

Tuesday, December 13, 2016

Blogger interviewed on North Town News Magazine

Avy Meyers was kind enough to invite me to be a guest on his North Town News Magazine program. The interview, which airs this week, has now been posted online. No, I have no idea what I'm pointing at either.

NTNM can be seen Thursdays on CAN-TV at 7:30 p.m., and again on Fridays at 2:30 p.m. NTNM also airs on a number of suburban cable systems on Mondays. Check your local listings for air times. Meanwhile, with the permission of NTNM host and moderator Avy Meyers and his entire technical crew Sonny Hersh, you can watch the interview here.

Monday, November 21, 2016

Winning isn't everything; sometimes it's not even winning

According to Wikipedia, Vince Lombardi did not coin the phrase, "Winning isn't everything; it's the only thing." Wikipedia says Coach Lombardi borrowed it from a former UCLA football coach, Henry Russell ("Red") Sanders.

Regardless, Lombardi did use the saying, and several similar ones like, "If winning isn't everything, why do they keep score?" or "Winners never quit and quitters never win."

Vince Lombardi was a great football coach... but he might not have been nearly as successful as a litigator.

Lawyers don't necessarily think of our role in litigation in such stark, 1-0 terms. We think that our job is to provide quality representation, providing the best possible presentation of the client's case. This may involve a knowledgeable exposition of the applicable law; it may involve identifying the most persuasive way of presenting testimony and exhibits -- and it probably will involve both. Lawyers are famous, or infamous, for telling clients that we cannot "guarantee" results. What we mean by this is that, though we may do our job, as we understand it, in the best way possible, we can still lose.

Clients, however, are drawn to the Vince Lombardi model. Attorneys are engaged to win, not to lose. If we win, we've done an adequate job; if we lose, we're bums.

At least half the lawyers you see coming out of the Daley Center on any given day are, therefore, just a bunch of bums.

Fortunately, there is some positive correlation between providing quality representation and success in any case. Especially when the client has realistic expectations of what constitutes a "win."

Sophisticated clients, such as many large corporations and insurance companies, realize that, no matter what resources are devoted to any case, and no matter how knowledgeable their lawyers are or how capably their lawyers perform, their lawyers can not achieve a verdict in every case. But the sophisticated client still might "win."

And this is where Coach Lombardi might have come down with a migraine: In a given case a "win" might mean holding damages down below a certain threshold, for example, or simply minimizing bad publicity. For individual litigants, a "win" may be keeping the house (or gaining enough time to sell the house, getting time to pay off a debt, or avoiding the loss of joint custody). In criminal cases, a "win" may involve getting probation instead of jail time or getting a reduced sentence.

But understanding that clients are less concerned about the quality of our efforts and the logic of our arguments than about "winning" gives us lawyers the opportunity to eliminate misunderstandings at an early stage of a representation: What can a win look like in this case? Is a judgment in the client's favor likely? Or should a "win" in this case be seen as something different?

Compromise which prevents further disputes down the road may be far more in the client's interests than a "win" in a given case. Illinois lawyers are licensed to practice as attorneys and counselors at law.

Clients, when your lawyer tries to explain alternatives to trial, or recommends settlement, or explains to you the weaknesses of your case, or recommends a less-than-scorched-earth strategy, your lawyer is not necessarily "appeasing" your adversary or failing to 'represent or support' you.

Yes, clients, there are some hyper-aggressive lawyers out there who will drain your wallet and then suddenly turn pacifist. There are those who will talk a good fight and then 'roll over' at the first sign of resistance. There are also some who will pursue every motion, every remedy, and every argument, some who equate compromise with capitulation, some who will shout from the rooftops, "millions for defense, not one penny for tribute!" -- until your millions, or thousands, more likely, are gone. Then they slink away -- and withdraw from your case. What good has that done you?

There has to be a degree of trust between lawyer and client. The lawyer must be worthy of your trust. And you, client, must not be too quick to waver. But be clear in what you expect: If you want every weapon launched and no argument left unargued, don't beef about the bill. Conversely, after you've cried poor-mouth, and sent your fee payments in on tear-stained checks or, worse, fallen behind in your account, don't get upset when your lawyer starts suggesting compromises and stops being quite so aggressive.

Thursday, October 27, 2016

An open letter to my Cub Fan friends, neighbors and colleagues

Dear Cub Fan Friends, Neighbors, and Colleagues:

I wasn't camped out along LaSalle Street when the parade celebrating the White Sox 2005 World Series sweep rolled by. But I happened to be out---running errands, I guess---and I wandered over to see the throngs waiting for the double-decker buses.

And, as I got close, the tears welled up, unbidden but unashamed. It just hit me, all at once, that I really had witnessed this, that the Sox really did win the Series. My father lived his whole life (and he was granted more than the biblical three score and 10) without ever seeing a White Sox World Series Championship.

I remembered my first trip to the old Comiskey Park, with my grandmother. I don't know if this was before or after she went to Puerto Rico and brought me back an autographed picture of Juan Pizarro. The upper deck in the old park was about the height of the Club Level at the current U.S. Cellular Field (Guaranteed Rate Field as of Nov. 1) but it was still a height for the little boy I was then, and I remember looking from that vantage point out at the greenest grass I had ever seen.

When Julio Cruz scored the winning run (on a Harold Baines sac fly) to clinch the American League West Championship for the White Sox in 1983, I was already living on the Northwest Side. The game wasn't available on free TV (thank you, Eddie Einhorn -- not) but (if I recall correctly) Channel 32 was allowed to show the 9th inning. I was waiting for the air raid sirens to go off---like they did in 1959---but they didn't. I wanted to run outside and bang pots and pans, but my wife told me I'd probably get arrested.

She was probably right: When cable finally came to the Northwest Side in 1984 (it wouldn't come to the South Side for years thereafter which is why so many South Siders are confused in their loyalties to this day) the only question I had for the salesman was whether I could get the Sox games. "Gee," he said, "you're the first guy to ask." On the Northwest Side, I suppose I shouldn't have been surprised.

We had weekend season tickets in those days -- we were in a little group -- and our seats were in the last row of the Golden Boxes on the third base line. We got moved to 'equivalent' seats in the new park -- in the right field corner, where you had to twist to your left just to see the pitch (if you looked straight ahead from those seats all you could see was the fights in the center field stands -- although, sure, sometimes those were more entertaining than the product on the field). But we stayed with those seats, too, for a number of years until paying high school and college tuition became the paramount priority. One of my sons has weekend tickets now.

The point is, I was a Sox fan from birth. I'm a Sox fan now. I am not obligated to switch sides just because your team is now in the World Series.

I get that many of you are thinking of mothers, fathers, grandparents, especially those who are gone now, who introduced you to your team. I shared that experience---like I said at the outset---but I was introduced to the Sox, not the Cubs. Even should the Cubs win it all (and given the decimated state of Cleveland's starting pitching, that sure seems possible), there will be no cathartic release for me, no conversion experience. I won't be crying with joy and sadness and relief and gratitude at your parade; I'll probably be grumbling that I can't get across LaSalle Street with all of you in my way.

It's OK. You didn't think of your mothers, fathers, and grandparents in 2005 either. And I didn't expect you to. Why do you expect me to change now?

I'm watching the games. I'm just not living or dying with every pitch like you are. I'm happy for you, OK? Just stop demanding that I open my veins and bleed Cubby blue. And stop flapping that 'W' flag in my face before I lose it entirely. Are we clear on this?

Very truly yours, etc.

Sunday, October 16, 2016

Bob Dylan's Nobel Prize makes me think of Simon & Garfunkel

The announcement, just a few days ago, that Bob Dylan had won the 2016 Nobel Prize for Literature made me think immediately of Simon & Garfunkel.

No, Your Honor, I really can tie this up: See, in or about 1966, a half-century ago, Messrs. Simon and Garfunkel released an album entitled "Parsley, Sage, Rosemary & Thyme." On the record was a song titled "A Simple Desultory Philippic." The song is a sarcastic commentary on then-popular events and personalities -- and in this verse Mr. Simon makes a comment about the cultural arrogance of the youth of his day:
I knew a man, his brain was so small,
He couldn't think of nothing at all.
He's not the same as you and me.
He doesn't dig poetry. He's so unhip that
When you say Dylan, he thinks you're talking about Dylan Thomas,
Whoever he was.
The man ain't got no culture,
But it's alright, ma,
Everybody must get stoned.
Well, the youth of 1966 are the gray eminences of 2016. And, perhaps, everybody must get stoned, even the members of the august Swedish Academy.

Saturday, September 10, 2016

Creating real confidence in the legal system begins with admitting its limitations

We urge our clients to have confidence in the legal system.

But do we lawyers share that confidence?

I don't pretend to speak for all lawyers, or even any group. But I can say that my most honest answer is yes... and no.

First, the 'yes' part.

I was already practicing law when Operation Greylord exploded into the headlines in the mid-1980s. For those too young to remember, 15 Cook County judges were convicted as a result of this extensive FBI undercover investigation. Greylord trials showed that cases were 'fixed' by willing judges, aided by court personnel, including clerks and deputy sheriffs as 'bagmen,' taking payoffs from corrupt lawyers.

To be honest, I miss the days when lawyers could more or less freely wander the corridors behind the courtrooms, visiting chambers, schmoozing. I really didn't know any judges then; most of my acquaintances were law clerks -- you know, kids my age. But just in visiting with the clerks I could learn a little law and, I suppose, feel more a part of the greater legal system.

Now, of course, chambers are mini-fortresses, the back corridors more moats now than highways. With limited exceptions---usually scheduled---a lawyer's penetration of the inner sanctum these days is typically viewed with suspicion, if not alarm, and generally supervised.

But the trade-off is that our judges today are above reproach. Greylord could have shattered confidence in our judicial system; instead, it had a cleansing effect. We lament the lack of wider public participation in the judicial election process, but there is indisputably more public scrutiny of judicial hopefuls now than there was a generation ago. There is also greater involvement and attention from the bar generally. The Alliance of Bar Associations for Judicial Screening did not exist during Greylord; it is an integral part of the judicial selection process now (if still sometimes observed more in the breach). It is both right and reasonable to believe wholeheartedly in the personal integrity and honesty of the members of our judiciary.

But... and herewith we start on the 'no' part... not all judges are equally gifted. Some are more learned in the law, some are more practical, some are more diligent than others. Some have many of these gifts; others seem to have very few. And not all cases are created equally. That makes a difference: The scholarly judge may be less able to accurately determine which witness is lying and which is telling the truth. The judge who adheres strictly to the rules might be manipulated by a lawyer intent on abusing discovery. The absence of personal corruption is by no means a guarantee that a judge will achieve an appropriate result in any given case.

Judges are human, too, you know, and therefore prone to err.

So when we urge clients to have faith in the system, we must also not over-promise what the system can do.

We can safely promise an honest result in a given case; we can not promise that the result will be appropriate.

So we have confidence in the system -- but we know results are unpredictable.

We have confidence in the system -- but we caution that litigation is often cripplingly expensive, even for the eventual 'winner.'

We have confidence in the system -- but not so much confidence that we do not encourage settlement. Or ADR.

I know many non-lawyers find this difficult to understand. Clients sometimes accuse us of not having the courage of our convictions. If we believe in the system, why would we recommend compromise? Are we being inconsistent? Are we trying to have things both ways?

Contrary to the suspicions of some, this is not post-modern, relativistic angst. In the middle of the 19th Century, a prominent Downstate lawyer had this advice for his colleagues:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
The Downstate lawyer offering that advice? Abraham Lincoln.

Of course, there are some lawyers who think that the question of settlement should be reserved until the last tenth of a billable hour has been wrung from the case. That's incredibly wrong -- but that's a story for a different day.

Friday, August 5, 2016

Time to set clear the stage and reset it for November

Long past time, really; I know that. But I've been busy practicing law, playing with my grandchildren, worrying about the future. But, finally, today, I move the whole long list of 2016 Cook County Circuit Court judicial primary candidate websites over here to Page 2. A lot of these sites have already come down. The only Appellate Court candidate website already belongs to another hopeful in a different state.

Some of the websites listed below will stay up in hopes of 2018. Some will stay up from inertia. But interested persons (i.e., prospective candidates and their likely core supporters) can browse the sites that remain and harvest ideas for their own campaigns to come.

Call it "research," if you like.

Without further prologue, then, here is the list.
There is still a candidate list in the Sidebar on Page One -- but it will only have the names of those candidates who face contested elections in November. These are only in the 12th and 13th Subcircuits. If you compare the list above with the new list on Page One, you'll note two additions, both candidates for the Mathein vacancy in the 12th Subcircuit, Democrat Janet Cronin Mahoney (I probably didn't find her website until I was putting my Organizing the Data posts together) and Republican James Leonard Allegretti (whose website I didn't find during the primary season).

The only Cook County Circuit Court candidate in a contested race missing from the new Page One list is Thomas William Flannigan, Republican candidate for the Kazmierski vacancy in the 12th Subcircuit.

Updated January 24, 2017 to add the list of November candidates (and their sites, or one-time sites) to this archive:
For those tempted to say 'it took you long enough,' I can only agree. Sorry.