Vested Interest - July 2001 Issue

The President’s Thoughts

We all need to concern ourselves with any statute or administrative rule that limits the access of our client's to their right to due process and fair compensation for their injury.

The limitation of access to a system of redress can take many forms. One form can be the cost of entering the system, another form can be the cost of prosecuting within the system, and another form can be limiting one's right to representation by limiting the fees a victim can pay for representation.

One of the reasons class action cases have proliferated is the cost of entering the system. Where a relatively small wrong has been inflicted on many people, the cost of filing an individual lawsuit for each person cannot be justified by the filing expense let alone the additional expenses that are incurred. However, if a corporation is able to make a small profit of as little as $50 as a result of this wrong on a million customers, that is a $50 million profit. Class actions provide a remedy to the people, and perhaps more importantly, stop the conduct of the defendant. Unfortunately, many small wrongs cannot be addressed in class action lawsuits, and because of the expense of merely filing a lawsuit, many are not subjected to due process.

It appears that our court system's method of recording proceedings will be changing. Court reporters will soon go the way of the wooden bat in baseball: only the high priced players will be able to use them. I have not seen the written rules, but it is my understanding that as court reporters retire or leave for any other reason, they will not be replaced in our courthouses. I am told electronic recording devices will replace them. Anyone who wants a court reporter at a proceeding will have to provide his or her own. This expense is easily justified in a multimillion-dollar lawsuit but not justified in a small auto case. In a system that already requires experts, opinions of experts, depositions of experts, and other discovery costs, will this expense limit access to even more victims? Who will bear the cost of a retrial if the recording is garbled at the time a reversible error occurs? Additional expense to the victim always limits access. Limiting the right to representation is another method of limiting access to due process. As many of you know, I have worked in the area of workers' compensation for many years and advised various organizations on the technical aspects of the Illinois Workers' Compensation statute.

Many aspects of this statute have remained unchanged since 1975. One example of a portion of the statute that has remained unchanged is attorneys' fees. Attorneys' fees for statutory losses have remained at $100 for the last 25 years. If my memory serves me correctly, you could buy a very nice car for $5,000 dollars in 1975.

But the point of this column is not about limiting the amount of money an attorney can earn; instead, it is about limiting the ability of a victim to hire an attorney. How much time and effort can an attorney expend on a case where their fee is limited to $100? An attorney is paid $100 to interview a client, file an application in Chicago with the Illinois Industrial Commission, appear at a status call to have the case set, appear on the setting day, and then prepare the settlement contracts. The contracts must then be sent to the client, the attorney for the employer, and the Industrial Commission for approval. Many victims are unable to find legal representation for such a low attorney fee.

Fortunately, many attorneys are still willing to take statutory cases on a quasi-charitable basis. If an attorney has a large practice and can justify taking the case because they will be in court anyway, the financial loss of representing the individual is a little easier to swallow. However, an attorney with a small practice in front of the Industrial Commission may have a difficult time justifying the acceptance of such a case. If the victim cannot find an attorney, they may go unrepresented for their statutory loss and receive no compensation.

Large corporations are now attempting to follow this same formula in the common law field by passing legislation at the state level to limit the access of victims to the court system by capping attorney's fees. Dubya and his fellow corporate buddies want to put an end to class actions at the state level and require class actions be filed in federal court. This can cause great expense to the victims if the class action case arises in multiple districts and is assigned to some district across the country from where the original action was filed. Large corporations can easily bear this expense, but raising the costs of litigation to this level often denies access to the victim.

At the state level, the limitation of damages on pain and suffering and the allowance of collateral sources without pre-judgment interest also limit access to the judicial system for victims. How often do we review cases where a finger has been lost or a substantial soft tissue injury has occurred and determined that because of the underlying litigation expense it is not financially feasible for our client to pursue damages for their injury? It is simply denial of representation by the creation of controls on litigation by legislation.

It seems antithetical that a political party that espouses free markets and freedom from governmental regulation so heartily endorses the same regulation when it comes to protecting them from culpability for their own conduct. They want quick and immediate access to the court system if you fail to pay for their product, but they want you to go half way across the country to collect damages for your missing arm, and they don't want to be punished for their conduct. As they say in "Corporate America," the bottom line is that they want governmental controls on us without any controls on them. I guess we would all want that if we had the financial ability to sell it.

We stand together for the rights of victims.

Kim E. Presbrey, President
Illinois Trial Lawyers Association