By: Martin J. Healy Jr.American Tort Reform Association (ATRA), is an organization whose membership includes some of the largest corporations in the country like Daimler Chrysler and Altria, parent of Philip Morris, some of the largest insurance companies like State Farm Insurance Company and drug manufacturing giants like Baxter, Pfizer and Wyeth and the petroleum industry. The association is critical of our system of laws, judges and the administration of our civil justice system in the courts. It is openly critical of the attorneys who represent consumers and those injured as a result of auto, trucking, product liability, medical malpractice and construction accidents. Speaking for major industries that have produced products like the now-recalled drug Vioxx, its takes the position that the tort system in the United States is inefficient and that it will be improved if the rights of seriously injured parties are restricted.
In an effort to dramatize its anti-consumer, pro-business positions, each year ATRA does a survey of various court systems throughout the United States and determines which in its opinion are the worst. It then uses name calling in an attempt to stigmatize the local judges and court systems.
ATRA has coined the phrase “Judicial Hell Hole” (in fact, it has registered it as a trademark). A judicial hell hole is one that allegedly allows frivolous lawsuits, and is anti-defendant. It is a given that no legitimate organization or court system favors or allows frivolous lawsuits. Where a lawsuit is determined to be frivolous, those filing it are subject to penalties.
The Circuit Court of Cook County is one of the largest unified court systems in the world and as a result employs thousands of individuals. There are over 400 judges and over 2 million new cases filed each year. As one of the principal commercial centers in the country, Chicago necessarily has much litigation. Such litigation, and all that is required for it, adds to the vitality of the Chicagoland area.
In the recently released survey, after reviewing a small number of non-representative, cherry-picked cases, ATRA ranked the Cook County Circuit Court as one of the worst “judicial hell holes.” In fact, it comes to the conclusion that the Circuit Court of Cook County is the second worst court system in the country from its viewpoint.
One would expect that ATRA, before making a decision like that, would have interviewed the ranking officials of the court system, or, at least, reviewed the statistics that are generated by the Clerk of the Circuit Court of Cook County. Apparently, such is not the case.
The ATRA report concludes that Cook County “has a long and growing reputation as a plaintiff-friendly venue and a known hostility to corporate defendants.” ATRA supports its conclusion in part, by referring to four cases which were not allowed to be transferred out of Cook County to a more defense-oriented county chosen by corporate defendants. The requests to transfer were based on the Doctrine of Forum Non Convenes (meaning that the location of the lawsuit is not convenient to the parties).
A review of statistics from the Clerk’s Office indicates that: First, there are very few such motions to transfer ever filed in cases and, Second, how the motions were resolved indicates no trend towards denying transfers. In fact, it showed the opposite.
The statistics indicate that in the year 2000 more than half (53%) of the motions to transfer were allowed. By the year 2004 and 2005, the rate allowing change had grown to 64% and 63% respectively. So the trend in recent years is toward allowing more motions to transfer rather than denying them. The motions are filed in only 3% of the cases, and where filed, approximately 2 of 3 are granted.
In responding to ATRA’s report and an editorial by a major Chicago newspaper endorsing the report, the Honorable William D. Maddux, Presiding Judge of Law Division (where all large personal injury lawsuits are handled) cited statistics from the Clerk’s Office. As to the “growing plaintiff-friendly venue” accusation, the statistics cited by Judge Maddux show the contrary to be the case.
Probably the most important statistic concerning the accusation is simply the win/loss record for cases tried over the last few years. ATRA would have you believe that there is a trend showing plaintiffs winning more and more cases. The opposite is true. In 2000, 66% of the verdicts were for the plaintiff and 34% for defendants. After 2000, there was a downward trend for plaintiffs, and by 2005, the winning rate for plaintiffs was down to 50%. So plaintiffs are winning only about half of the cases filed, down from winning 2/3rds. The statistics clearly show that in the current climate, plaintiffs are losing many more cases than in the past. Also, if these statistics were limited to medical malpractice cases in Cook County, it would show that, in the current climate, plaintiffs are losing significantly more cases than they are winning. It is estimated that plaintiffs lose 70-80% of the medical malpractice cases tried in Cook County.
In a letter to Crain’s Chicago Business, responding to the survey, the President of the Chicago Bar Association, stated: “The judiciary, bar and public all deserve an apology from ATRA for its caustic and misguided vilification.” It is very important that the judiciary remain independent and not be intimidated by “well-financed special-interest groups.”
All court systems can be the subject of constructive criticism and improvement. But it is imperative that the constructive criticism be based on accurate information. As mentioned by Judge Maddux: “Constructive criticism is helpful when supported by the facts justifying the criticism.” Apparently, ATRA didn’t feel the need to check the information and statistics.
Most who are not familiar with litigation are usually very surprised to learn that plaintiffs lose half of the cases they file and bring to trial, and lose up to four of five medical malpractice cases that they file and bring to trial. Over the last number of years, there has been an orchestrated and well-financed media attack on injured parties who file lawsuits against large corporations, insurance companies and the health care industry. They have convinced some that the corporate entities that reap huge profits from defective medicines, vehicles and consumer products, are the victims, rather than those they maim, kill and orphan. The attacks have been relentless and involve individuals all the way to the President of the United States. Trial lawyers have been a focus of very personal attacks, being described as “greedy, unscrupulous, and predatory.” They are accused of being responsible not only for problems with the civil justice system, but also for the cost of health care, unemployment and the state of the economy generally. While simple statistics refute the allegations and even the possibility of such an impact, the reason for the attack goes beyond the issue and is really political. Many trial lawyers give significant support to the opposition party and organizations that fight for consumer rights. The goal is to destroy trial attorneys as a source of political funding, so that big business, the health care industry and the oil, tobacco and insurance industries will be the only remaining sources for large donations.
The recent designation of “judicial hell hole” is part of the campaign to discredit the courts, trial attorneys and accident victims who file lawsuits. ATRA’s actions are not justified based on any valid statistics or argument, and should be summarily rejected. An ATRA apology should be sent to the officers, judges and employees of the Circuit Court of Cook County.