Arbitration cases are tried under very different rules

Judge Russell W. Hartigan, who is unopposed in his bid for the countywide Moran vacancy in Cook County, nevertheless took the time to respond to a questionnaire propounded by the Illinois Civil Justice League. One of the questions posed was this:

Are there civil litigation reforms that you would like to see enacted to remedy particular problems that you have detected, either as a practicing lawyer or as a sitting judge? Are there reforms that would benefit the civil justice system? What needs to be changed? Should the enactment of any such changes be the province of the legislature, the Supreme Court or by Constitutional amendment?

Judge Hartigan responded:

If an arbitration award is rejected and the case goes on to a jury trial, if the verdict does not exceed the arbitration amount, then some fine or penalty should be assessed. Too many rejections of arbitration awards for no legitimate reason are clogging the court system. The legislature would have to address this issue.

With respect, this approach would make some sense if plaintiffs were routinely rejecting arbitration awards and trying for larger awards before juries. It would make even more sense if plaintiffs were securing larger awards from allegedly generous Cook County juries.

But this is not how things work in Cook County.

Instead, contrary to Judge Hartigan's supposition, it is more often the defendant that rejects the arbitration award, forcing the plaintiff to the expense of trial. (I have observed this pattern of automatic rejection for years because I've served as an arbitrator in the Cook County Mandatory Court-Annexed Arbitration system since it started here, many years ago.) Not all defendants reject arbitration awards, of course, but litigants whose defenses are controlled by sub-standard insurers almost always do.

And the plaintiff, who has already been punished by being saddled with the extra expense of preparing for trial as a result of the rejection, typically winds up with less at trial than he or she was awarded at arbitration. Many times he or she winds up with nothing at all.

Kind of puts the fabled generosity of Cook County jurors into question, doesn't it?

But there's actually a very good reason why plaintiffs tend to recover less in Cook County jury trials than they do at arbitration: The arbitration and the trial are conducted under very different rules.

At arbitration, the plaintiff's medical records and bills are presumptively admissible under Supreme Court Rule 90(c). The original rule has been refined to require a plaintiff to specify whether a given medical bill is paid or unpaid, the latter opening the door, at least, to the argument that the amount of a particular bill is unreasonable. But this is a far lower burden than a plaintiff faces at trial, where the testimony of some medical provider must be provided, either live or by evidence deposition, to secure the admission of these vital pieces of evidence. The stack of paper that we practitioners call a 90(c) packet is not subject to cross-examination. The medical professional that generated those records and bills, the one who must be produced for trial, can be cross-examined. The 90(c) packet cost the plaintiff whatever the doctor charged for reproducing his or her records; you can bet that the doctor charges lots more than that to appear for trial or even for an evidence deposition. These additional costs are penalties enough for going to trial.

Whether judges, lawyers, or litigants like it or not, there is a very good reason why the sub-standards routinely reject arbitration awards: They can expect better results at trial. Imposing still another penalty on the party who recovers a meaningless award at arbitration will not deter sub-standards from the automatic rejection of arbitration awards; indeed, it would provide only another economic incentive for the sub-standards to be intransigent.

If the Supreme Court wishes to line up arbitration results with those reached after jury trials, it should think instead about tightening the requirements for admissibility under Rule 90(c). Of course, that would defeat the cost-savings that arbitration is supposed to provide over trials, but that's an issue for a different day.

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Related: ICJL begins posting responses to questionnaires