Vested Interest - April 2002 Issue

The President’s Thoughts

The primary results are in, and I believe we have the best slate of statewide candidates we have had since the 70’s. There are some important voting figures to be considered. There were about 1.25 million votes cast in the Democratic primary and about 900,000 votes cast in the Republican primary, based upon the governor’s races. These vote percentages closely reflect the percentages of the last presidential elections when Gore beat Bush about 56%-44%. Both Rod Blagojevich and Paul Vallas received more votes than Jim Ryan statewide.

We must all give our support to the outstanding group of candidates that won the primaries. One never wants to talk about once in a lifetime experiences, but I think I can say with some certainty that this is the first time in the life of most of our practices that any of us feel we might actually have a chance to help our clients. We might actually have a chance to get back some of what has been taken away from them over the last 20 years. This may be our last opportunity; we must seize it.

One of the activities I have enjoyed most about being President of this organization is the opportunity to meet trial lawyers throughout the State. I have made it as far south as Marion and have hit a fair number of the spots in-between with a few stops remaining in the future. The other night, I was in Aurora talking to several trial lawyers as we prepared for St. Patrick’s Day, and I asked them the same question I pose at our roundtables, “If you could change one thing about our legal system, what would it be?” I got the same answer I have been getting from lawyers and judges across the state: change Rule 213.

I'm happy to report that on March 28, 2002, the Illinois Supreme Court adopted long awaited amendments to Rule 213. In addition, there are changes to other Supreme Court Rules. These are all effective on July 1, 2002. If you would like a copy of these Rules, please contact the ITLA office.

Another change in our system, which comes in a close second at our roundtables, is our Courts use of Rule 23. I have spoken to many lawyers and several judges on this issue, and they are all incredulous over the broad use of this rule. The consensus opinion regarding this rule’s broad use is the cost of publication. I am assured by the appellate court justices I have spoken to on this issue that Rule 23 decisions are given every bit as much scrutiny and effort as the published decisions, but they are told the cost of publication overrides the value of the precedent.

I am also a member of the incredulous group. I do not understand the cost factor being a part of the decision to not publish a decision. If the appellate court’s decisions were still being produced on IBM Selectric typewriters (am I dating myself?), then I could understand the argument. But once any decision is rendered and saved in electronic form, we all know the cost of publication is no more than a few keystrokes and some very inexpensive hard disk space. There is no need to physically print decisions anymore. Publication to a website is all 95% of us need, and I believe most would agree it is a lot easier to do a search on a website than it is to plow through books. And the benefit is that we don’t have to kill any trees until we physically print the case to present in court.

I also believe the broad use of Rule 23, creates a very bad impression with the parties in the case. Hundreds and sometimes thousands of hours go into the preparation and trial of a lawsuit. Appeals can add several hundred additional hours. A party to a lawsuit that has endured this expense is entitled to believe their lawsuit received close scrutiny by the reviewing court, and even though I believe appellate justices when they tell me this occurs, I do not believe the parties do when they are told the case was not published.

Besides the bad impression I believe Rule 23 decisions give to the public, we as attorneys lose hundreds of cases each year as potential precedent. We all know cases are very much like snowflakes: no two are identical. We have also all been in a research situation where we have been trying to decide on whether we should file a lawsuit, only to discover there is no case exactly on point. The fact is, there probably was a case exactly on point, but it was not published. This is a waste of the litigant’s time and the court's.

We should also put discovery depositions to bed. At last count, I believe we are one of only two states in the country that have discovery depositions. They are an enormous waste of time and add millions of dollars to the cost of litigation in our State each year. This issue was being visited by our Supreme Court a couple of years ago, and I am not sure what happened to the momentum, but it needs to be resurrected and passed as a rule.

We stand together for the rights of victims.

Kim E. Presbrey, President
Illinois Trial Lawyers Association