Illinois Supreme Court Turns Back Tort Reform
February 5, 2010
In a disappointing and tortured decision, the Illinois Supreme Court threw out limits on noneconomic damages in medical liability cases yesterday, overturning bipartisan legislation passed in 2005 that enjoyed broad public support. Ed Murnane, President of the Illinois Civil Justice League, blasted the court for “siding once again with the trial lawyers” over patients and doctors.
According to American Medical Association President James Rohack (who is quoted in today’s Chicago Tribune), when the Illinois Supreme Court overruled the state’s previous damage cap in 1997:
“Severe problems with patient access to care emerged as the unrestrained excesses of the state’s legal system forced Illinois physicians to limit services, retire early, or move to other states where liability premiums are more stable. Without a cap on noneconomic damages from 1997 to 2005, Chicago physicians saw their liability premiums increase an average of 10 to 12 percent each year. When the cap was reinstated in 2005, premiums for Chicago physicians stabilized and even began to shrink.”
This is the third time the Illinois high court has struck down medical liability limits, demonstrating that it “simply will not be bound by the duly enacted acts of the legislature when certain issues important to its lawyer constituency are at stake,” writes Walter Olson in a post at PointofLaw.com that picks apart the court’s legal analysis.
The Illinois court’s “lawless” decision (Olson) demonstrates beyond any doubt that the best tort reform is getting the right judges on the bench.
Missouri considers banned deceptive ads
August 25, 2009
Earlier this month, I applauded a federal judge’s ruling to uphold Louisiana’s rules prohibiting deceptive lawyer ads. Similar rules are under consideration in Missouri according to Travis Akin of Illinois Lawsuit Abuse Watch in an op-ed published earlier this week.
He writes:
The Board of Governors of the Missouri Bar will soon be considering new rules to tighten up regulations on personal injury lawyer advertising, a move many law firms are fighting.
The rules include bolstering the visibility of a required disclaimer and banning the use of celebrities in lawyer ads.
Akin laments Illinois’s unwillingness to take similar action:
While the Show Me State is actively refining its rules, Illinois has done very little to regulate personal injury lawyer advertising.
Illinois television viewers are treated to a barrage of ads that go far beyond informing people of their rights. Many of these ads almost dare viewers to file a lawsuit even if they have not been injured.
I stand with Akin in hoping that Illinois can follow in Missouri and Louisiana’s footsteps in curbing deceptive advertising.
Return Of The Rule Of Lawyers In Illinois?
May 7, 2009
Shortly after taking office from disgraced predecessor Rod Blagojevich, Illinois Governor Pat Quinn convened a Reform Commission and tasked it with developing a plan to clean up Illinois politics. Talk about clearing out the Augean Stables.
Now the commission is out with its recommendations, including one that will put the powerful Illinois trial bar back in control of the courts and restore the state’s notorious reputation as a dangerous place to do business. Some reform.
Illinois has long been a perennial bottom-dweller in any ranking of legal climates. Cook and Madison Counties continually pop up on the American Tort Reform Association’s Judicial Hellhole list, and it’s not hard to see why. For years, Illinois trial lawyers stacked the court with lawsuit-friendly judges, funneling campaign cash to candidates of their liking. The problem got so bad that 90 percent of campaign cash in Madison County was coming from lawyers, 75 percent from personal injury lawyers, according to a 2002 study, “Justice for Sale,” by the Illinois Civil Justice League. It was a nice insider game: trial lawyer elects judge; rakes in huge contingency fee arguing before that judge; ships more $$ to the next campaign.
Recently, doctors, medical providers, corporations and other victims of the Illinois litigation lottery began fighting back. They even succeeded in replacing some of the worst judges with fair and impartial jurists committed to following the rule of law, not the rule of lawyers.
That progress could easily be reversed if the Reform Commission’s plan to have taxpayers finance judicial campaigns and severely limit outside contributions becomes law. The end result will be to make it easier for judges backed by trial lawyers to reach the bench. As the Illinois Civil Justice League pointed out in a May 7 commentary, wealthy trial lawyers would still be able to band together to give upwards of $2 million to tort-friendly judges, or even use their personal fortunes to buy a seat on the court themselves. “Meanwhile job-producing businesses, healthcare providers, and other employers will be severely restricted in the ways they can contribute.”
Fixing the culture of corruption that plagues Illinois’ politics is a tall order, and I sympathize with the commissioners’ plight. But blaming the problem on “the system” – rather than corrupt individuals like Rod Blagojevich and trial lawyers who turn the legal system into their personal ATM machines – misses the point. The real answer to improving Illinois’ courts is to revise the venue rules so trial lawyers can’t shop around for easy jurisdictions or reform contingency fees so greedy personal injury lawyers have less incentive to file frivolous, job-killing lawsuits.
Some Back and Forth On Democratic Judicial Elections
March 16, 2009
An article in this Sunday’s Telegraph Herald (Dubuque, IA) rehashes the typical arguments against democratic judicial elections (too expensive, too nasty, too political) but also the comments of University of Wisconsin-La Crosse Professor Joe Heim, who rightly says elections make judges more accountable.
A Stimulus Bill For Trial Lawyers?
February 23, 2009
Travis Akin has a piece in the Madison County (IL) Record on a bill recently introduced in the Illinois Senate that “requires defendants in civil lawsuits to pay prejudgment interest on damage awards, and the clock starts ticking the moment the claim is filed.” Since it can easily take years between the day a lawsuit is filed and when the case actually comes to trial, corporate defendants could face huge new interest payments lumped on to any judgment.
The goal here is to raise the stakes for defendants who refuse to pay off trial lawyers to make them go away. As Akin points out:
“The intention behind the bill is to intimidate and force defendants into an early settlement long before the facts of the case are fully known.”
More settlements mean more easy $$ for Trial Lawyers, Inc. Can anyone think of an industry less deserving of any economic stimulus?
Will Illinois High Court Roll Back Medical Liability Success?
December 3, 2008
Three years ago, in response to a medical liability crisis that had doctors fleeing the state, the Illinois General Assembly passed legislation (signed by Democratic Governor Rod Blagojevich) to establish reasonable limits on medical liability awards. Since then, according to a Wall Street Journal editorial, insurance companies began competing again in the state, liability premiums have fallen by 30% and hospitals are having an easier time finding doctors.
But the personal injury bar is fighting back. Last year a Cook County trial court struck down the statutory limits – a decision that has been appealed to the Illinois Supreme Court. Twice before the state’s high court rejected attempts by the legislature to limit damage awards.
The new law was carefully crafted with those two cases in mind, but it’s an open question whether the high court will override the will of the legislature for a third time. As the Journal concludes, the Illinois Supreme Court will have to decide if it will “…once again do the bidding of the plaintiffs’ bar, or this time side with patients and the rule of law.”
Illinois and West Virginia Worst Places to Do Business Says Directorship Boardroom Guide
June 20, 2008
Illinois and West Virginia have the worst litigation climates for business, with Pennsylvania and California following close behind. The rankings come courtesy of the Annual Boardroom Guide to State Litigation Climates published by Directorship in collaboration with the American Justice Partnership Foundation (full disclosure: I am President of the AJP Foundation).
“The plaintiffs’ bar counts on being able to take company CEOs and directors by surprise when they file major lawsuits that are based on expanded or previously overlooked state liability laws,” says AJP Foundation Chairman Steve Hantler, the author of the report.
The 10 worst states are: Illinois, West Virginia, Rhode Island, Pennsylvania, California, Florida, Montana, New York, Maryland, Alabama.
Plaintiffs’ lawyers often file lawsuits in these states “to create the ‘perfect storm’ [of] unwarranted high demands while encouraging the news media to publicize sensational allegations of wrongdoing,” Hantler says. “Their goal is to create severe pressure in the marketplace and thus extort companies into agreeing to settle the claims for outrageous amounts.”
“No subject is so divisive, distracting, or erodes shareholder value more than frivolous but costly litigation,” says Jeffrey M. Cunningham, chairman and CEO of Directorship.com.
In an era where every lawsuit is potentially a bet-the-company proposition, company boards of directors and strategic advisers increasingly look at a state’s legal climate when determining where to open a new plant or office.