STIRRING UP TORT TROUBLE

The trial bar’s outsize profits come at the expense of Illinois health and prosperity.

Never stir up litigation,” wrote Abraham Lincoln in the 1850s. “A worse man can scarcely be found than one who does this.”[17]

It’s a lesson that the Land of Lincoln appears to have forgotten, and with disastrous effects. From 2000 through 2005, Illinois witnessed a net out-migration of 374,000 residents, the third-highest exodus from any state,[18] while its economy had the country’s fourth-lowest growth rate.[19] Fleeing residents and economic stagnation: these are the inevitable characteristics of a state dominated by Trial Lawyers, Inc.

Just how bad is Illinois’ litigation climate? The state is home to three of the five worst jurisdictions in the country, as ranked by the American Tort Reform Association (see table).[20] Across a host of measures, Illinois is among the worst states in the union: corporate litigators rank it near the bottom in terms of its judges’ impartiality and competence, its class action requirements, and its permissive rules on punitive damages.[21]

Choosing Where You Sue

Trial Lawyers, Inc.’s business strategy in Illinois begins with exploiting the state’s venue rules, which tort-friendly counties interpret loosely, to funnel cases into jurisdictions where defendants won’t get a fair
shake. As the graph on this page shows, tort filings are far from uniform in Illinois, where some counties have twice or even four times as much major civil litigation per capita as the state as a whole.[22]

Trial Lawyers, Inc.’s favorite jurisdictions are Madison and St. Clair Counties, on the Missouri border just east of St. Louis.[23] St. Clair has about twice as many lawsuits as similar-sized McHenry and Winnebago Counties, and Madison has over four times as many.[24] Madison County has been an all-too-willing host for national class action and asbestos litigation: class action filings there skyrocketed 5,000 percent from 1998 through 2003,[25] and the county’s filings for asbestos-related mesothelioma in 2003 constituted about one-fourth of the nation’s total.[26] St. Clair County can also boast of excessive class action suits and asbestos torts, but it is particularly notorious for its medical-malpractice bar, which has earned the county the state’s highest filing rates against doctors and hospitals. Fully 85 percent of these cases are so flimsy that they are eventually dismissed or resolved without payment.[27]

Chicagoland’s Cook County is also high on this unenviable list of U.S. litigation venues.[28] Illinois’ biggest county, Cook has nearly three times as many lawsuits per capita as the state’s second biggest county, neighboring DuPage.[29] One might expect a lot of litigation in a populous metropolitan hub like Chicago, but Cook County’s share of Illinois’ tort activity has grown alarmingly—from 47 percent to 64 percent over the last decade—even as its share of the state’s population has declined.[30] Cook is home to some of the nation’s largest-grossing plaintiffs’ lawyers —like Bob Clifford, whose firm is the top earner in the state.[31] Over the last two decades, Clifford has filed a suit after every major airline crash in the country.[32] He also profits handsomely off the unhealthy climate for medical-malpractice litigation in Cook County, where juries paidout a mind-boggling $161 million in med-mal verdicts in the 12 months ending in August 2004. Little wonder that malpractice coverage for Cook County obstetricians is up 67 percent since 2003.[33] What’s more, Cook is fast becoming an asbestos-litigation hotbed as well, having recently taken on some of Madison County’s overflow. Chicago lawyer John Cooney has already wrested two multibillion-dollar asbestos settlements from corporate coffers this year.[34]

Some Illinois counties have twice or even four times as much major civil litigation per capita as the state as a whole.

Smaller counties on Illinois’ southern tip have also begun to make tort litigation a cottage industry, with Williamson, Jefferson, Saline, and Franklin Counties emerging as centers for national silicosis litigation.[35] What’s clear is that litigation abuse in Illinois is not uniform across its 102 counties, but rather concentrated in plaintiff-friendly venues that accept cases from around the state and across the nation.

It’s the Judges, Stupid

To protect these county-court cash cows, the Illinois division of Trial Lawyers, Inc. has invested in a highly sophisticated government- and public-relations operation. Historically, the plaintiffs’ bar has handpicked judicial candidates in Illinois, from the local judges of Madison County right up to the state supreme court.

The relationship between Madison County’s plaintiffs’ attorneys and its judges is both neatly symbiotic and perversely incestuous. Randy Bono built a successful asbestos practice in the 1980s and early ’90s, became a judge on the Madison County bench, and then returned to private practice, where he earned hundreds of millions more and became one of the top contributors to state Democratic Party campaigns.[36] Morris Chapman, often considered the “godfather” of the Madison County bar, helped get his daughter and former law partner Melissa elected to the Madison County appellate bench, where she sits today.[37]

Besides packing the state’s courts, Trial Lawyers, Inc. exerts a tremendous influence on Illinois politics generally. In 2004, fully 78 percent of all contributions to the state Democratic Party came from plaintiffs’ lawyers.[38] Lawyers donated hundreds of thousands more to the saccharinesounding “Justice for All Foundation,” which spent heavily on behalf of the litigation industry’s favored state supreme court candidate.[39] And lawyers, of course, gave generously to the war chests of individual candidates for office in all branches of government.[40]

Controlling the judiciary, though, has been the crucial tactic for blocking reform. Illinois’ citizens, aware of excessive litigation’s effects on their economy and their access to vital medical services, have periodically pressed for the passage of reform legislation designed to curb lawsuit abuse, despite the trial bar’s powerful influence in the state legislature and the governor’s mansion.[41] But Trial Lawyers, Inc.’s handpicked allies on the state supreme court, in brazen acts of judicial activism, have overturned these democratic reforms twice in the last 30 years.[42]

Signs of Progress?

Recent signals suggest that Illinois could reverse its fortunes and return litigation to its rightful and rarely used place—offering reasonable redress for actual harms in accordance with the predictable norms that are inherent in the rule of law. During the 2004 state supreme court contest between Lloyd Karmeier and the tort bar’s anointed candidate, Gordon Maag, business groups and grassroots activists pooled resources to educate Illinois voters about the state’s broken legal system.[43] After the most expensive judicial race in the nation’s history, Karmeier won the seat. Further, Maag—a judge overseeing the Madison/St. Clair County region—became the first Illinois appeals judge ever to lose his retention election.[44] The newly reconstituted state supreme court has reversed massive class action verdicts, and judges in Madison County have even begun to turn away some asbestos cases.[45]

We’ve seen good news on the legislative front, as well. Last year, the Democrat-led state legislature made its third attempt in the last 30 years to fix the state’s medical-malpractice liability system, passing a comprehensive bill that antireform governor Rod Blagojevich signed into law under intense public pressure.[46] Will the state supreme court again overturn this popular legislation, as with the two earlier comprehensive reforms? Or will it serve the common good and let the democratic process speak?

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17. Abraham Lincoln, Fragment: Notes for a Law Lecture (July 1, 1850), in 2 Collected Works of Abraham Lincoln (Roy P. Basler, ed., Rutgers Univ. Press, 1953).
18. See William H. Frey, Housing Crunch, Milken Inst. Rev., Third Quarter 2006, at 6.
19. Derived from data collected from the U.S. Bureau of Economic Analysis, available at http://bea.gov/bea/regional/gsp/ (last visited Oct. 5, 2006) (spreadsheet on file).
20. American Tort Reform Foundation, Judicial Hellholes 7 (2005).
21. See ILR/Harris Poll, supra note 9, at 50.
22. See Illinois Civil Justice League, Litigation Imbalance 11 (Nov. 2005) [hereinafter Litigation Imbalance], available at http://icjl.org/LitigationIndexStudy.pdf.
23. See id. at 22–23.
24. See id. at 7 Fig. 3A.
25. See American Tort Reform Foundation, supra note 20, at 22.
26. See Andrew Harris, A Dubious Distinction, Nat’l Law J., May 10, 2004.
27. See Illinois Civil Justice League, The Dirty Little Secret: Medical Malpractice Lawsuits Against Metro East Doctors 6(June 29, 2004) [hereinafter Dirty Little Secrets], available at http://www.icjl.org/images/contentpdfs/040628_TheMedMalStudy.pdf.
28. See Litigation Imbalance, supra note 22, at 5.
29. See id. at 6, 8.
30. See id. at 9.
31. See Clifford Law Office, Our Attorneys: Robert Clifford, http://www.cliffordlaw.com/portal_memberdata/robertclifford (last visited Oct. 5, 2006) (noting that Clifford Law Offices “was the leading firm in 2005 with settlements topping $86 million”).
32. See id.
33. See Caleb Hale, Malpractice Reform Will Not Be Easy, S. Illinoisan, Feb. 25, 2004; Tanya Albert, Liability Increase Slowing, Yet Rates Remain at Record Highs, Am. Med. News, Nov. 15, 2004, available at http://amednews.com (citing Med. LIaBility Rate Monitor, 2004 Rate Survey).
34. See David Mitchell, $4 Billion Asbestos Accord Set, Chicago Daily L. Bull., Jan. 30, 2006; David Mitchell, $5.2 Billion Owens Corning Asbestos Trust, Chicago Daily L. Bull., May 10, 2006.
35. See Litigation Imbalance, supra note 22, at 15.
36. See Steve Gonzalez, Asbestos Lawyer Randall Bono Puts Up Another $200K, Madison County Rec., Oct. 8, 2004.
37. See Kevin McDermott, Plaintiffs’ Bar Gives Top Dollar to Judges’ Campaigns, St. Louis Post-Dispatch, Sept. 21, 2004, at A01.
38. Calculated from Illinois State Board of Elections data, available at http://www.elections.il.gov/CampaignDisclosure/CommitteeList.aspx (last visited Oct. 4, 2006) (spreadsheet on file).
39. See Gonzalez, supra note 36.
40. See id.
41. See American Tort Reform Association, Illinois Reforms, http://www.atra.org/states/IL (last visited Oct. 4, 2006).
42. Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997) (holding that reforms relating to punitive damages, noneconomic damages, product liability, and joint and several liability were unconstitutional); Bernier v. Burris, 497 N.E.2d 763 (Ill. 1986) (invalidating medical-malpractice liability reforms).
43. See, e.g., Ann Knef, Cash Flow Keeps Streaming Along, Madison County Rec., Oct. 26, 2004; Jeff Gelber, Big Money Raining Down on SC Race, Madison County Rec., Oct. 7, 2004.
44. See Gonzalez, supra note 13.
45. See Price v. Phillip Morris, Inc., No. 96236, 2005 Ill. LEXIS 2071 (Ill. 2005); Avery v. State Farm Mutual Auto. Ins. Co., 805 N.E.2d 801 (Ill. 2005); Gridley v. State Farm Mutual Auto. Ins. Co., 840 N.E.2d 269 (Ill. 2005). See also Adele Nicholas, Judicial Shakeup Signals Reform in Madison County, Corp. Legal Times, Jan. 2005, at 50.
46. IllinoIs Office of The Governor, Governor Blagojevich Signs Medical Malpratice Reform (Aug. 25, 2005); see 2005 Ill. Laws 667.