Some Good News?, Maybe -- But A 100-Year Warning

The weeks between Hanukkah and Christmas and the days surrounding both holidays are considered -- in fact, expected to be -- times of good feelings and joy.

So the news last week from the Tillinghast insurance consulting practice of Towers Perrin that tort costs in the US were down in 2006 is good news and adds to the feeling of joy. The $57 per person reduction from 2005 is a positive sign. But the cost per person in 2005 was $825 so there is still ample room for continued improvement.

The current downward trend is the first since 1997, according to the Tillinghast report. It is a positive report for several reasons.

Most significant is that the numbers translate -- or will translate -- into actual dollar savings for American families. The savings might not be realized in premium reductions overnight, but they can be realized in stable premiums or slower premium increases.

So if this study indicates a trend, it's good news for everyone who pays for insurance -- that even includes trial lawyers, who ought to have mixed reactions since they might be able to save money on their personal insurance payments, despite the fact that payments to trial lawyers might decline.

Some other good news may be brewing. The Edwardsville Intelligencer reported on Saturday on the very real and quantifiable changes taking place in Madison County. On three occasions last week, plaintiffs left Madison County courtrooms empty handed. That would not have happened two years ago or five years ago or anytime in the past 40 years in Madison County.

Madison County -- one of the reputed worst judicial "hellholes' in the United States -- appears to be changing.

The ICJL has reported on these changes repeatedly during the past year and what we have been reporting is true. Under the leadership and direction of Chief Judge Anne Callis, Madison County's judicial system is establishing itself as a fair and unbiased judiciary -- just like most of Illinois' 101 other counties.

We say "most" rather than all since there are still some problem jurisdictions in our state. Cook County, the largest of the 102 counties, remains a serious problem and is likely to underscore its performance record when the new American Tort Reform Association "judicial hellholes' report is released tomorrow. The report will be available on the ICJL website tomorrow.

Madison County's southern neighbor, St. Clair County, seems to be benefiting by being Madison's neighbor. The two counties are frequently linked, as in "Madison and St. Clair Counties are doing this, or are doing that..." and it's sometimes hard for outsiders to distinguish between the two.

But the fact is that Madison County is far ahead of St. Clair County in any effort to improve the judicial system and any effort to equate them is unfair to Madison County.

Nevertheless, that is likely to happen this week. St. Clair County's judicial system owes Madison County appreciation for helping shine a favorable light on it this week. The two St. Clair County judges who face a hearing today before the Illinois Courts Commission on drunk driving charges probably appreciate the favorable attention that Madison's Judge Callis is attracting to the region.

But wait. Despite the good news about insurance rates and the improvements in Madison County, there is a grinch lurking in the darkness.

He is Robert Peck, an attorney at the Center for Constitutional Litigation in Washington. Peck's firm is the law firm for trial lawyers -- they are the lawyers who strive to make sure than Illinois trial lawyers -- or personal injury trial lawyers in every state -- have the tools they need to pursue the cases they have filed.

One case in which they are heavily involved is the current Illinois challenge to the 2005 medical malpractice reform bill.

Read the news article below, from the National Law Journal. Here's an excerpt:

While organizations such as the American Tort Reform Association (ATRA) have spent 20 years backing state and federal legislation to rein in tort claims, Peck and his colleagues have been in court trying to knock the laws down nearly as long.

"The pendulum is moving more pro-defendant, but it's not a dramatic shift," said Richard Epstein, a visiting law professor at New York University School of Law and a professor at University of Chicago Law School.

Professor Ronen Avraham of Northwestern University School of Law, who has done research in the area, estimates that, overall, about a third of cases challenging tort-limiting laws are successful. It's a battle that will ebb and flow over time, depending on politics such as the upcoming presidential election, said George Mason University School of Law professor Michael Krauss. "It's a 100 years' war," he said.

So while Tillinghast and the upcoming ATRA "judicial hellholes" report may have some promise, the fact is this battle has years to go.

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A final note: The ICJL does not expect to get involved in the 2008 presidential campaign but if we did, John Edwards would be pretty low on our list of favorite candidates. Edwards, the former multi-millionaire trial lawyer, was on Face The Nation Sunday and continued his mantra of blaming the drug manufacturers and the insurance industry for most of the economic problems of middle class Americans.

Edwards easily overlooks the fact that the pharmaceutical manufacturers in the U.S. are responsible for most of the medical cures of the last century. He also overlooks the fact the American insurance industry provides comfort and protection for most Americans, and in fact, probably has provided him with a substantial portion of his millions.

Edwards made it clear that he does not favor discussion or negotiations with those entities with whom he disagrees. He wants to fight them.

-- Ed Murnane
Illinois Civil Justice League
December 17, 2007