The state of the civil litigation system has long been lamented by lawyers and laymen alike. How does Illinois’ civil litigation system rank? Not well, apparently. A recent study ranked Illinois’ justice system 48th out of the 50 states—a ranking Governor Bruce Rauner recently blasted as evidence of the state’s “abusive environment for lawsuits.”
Everyone today in Illinois is focused on our financial trouble in the city of Chicago and the state, the lack of balanced budgets, the debt, the deficit, Rauner said at press conference. We can’t fix these challenges unless we are growing. If we’re going to recruit more businesses here, create more jobs here, we need to be competitive. And that means being competitive in our lawsuit environment.
The Lawsuit Climate Survey
The study, the 2015 Lawsuit Climate Survey: Ranking the States, was conducted by Harris Poll on behalf of the U.S. Chamber Institute for Legal Reform. The Institute regularly commissions these studies to “to explore how fair and reasonable the states’ tort liability systems are perceived to be by U.S. businesses.” Historically, Illinois has not fared well in these studies, ranking 46 in 2012, 45 in 2010, 46 in 2008 and 2007, 45 in 2006, and 46 in 2005.
The 2015 study was conducted by surveying “a nationally representative sample of 1,203 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at companies with annual revenues of at least $100 million.” The survey took place online and by telephone between March 9, 2015, and June 24, 2015.
On average, each telephone respondent evaluated four states, and each online respondent evaluated five states. As a result, these 1,203 individual respondents represent a total of 5,346 responses or state evaluations.
Crucially, the majority of those surveyed underlined the importance of a state’s litigation environment. Three-quarters (75%) of the respondents reported that it was likely to impact important business decisions at their companies, such as where to locate or do business, a significant increase from 70% in 2012 and 67% in 2010.
Illinois’ “Passing” Grade
The numbers don’t look good for Illinois: it received a mean grade of around C in every study category.
Ratings on Key Elements of State Liability Systems (n=197)
Not all agree with this indictment of Illinois’ litigation system. The Illinois Trial Lawyers Association criticized the study and subsequent reaction to it. “The only lawsuit crisis in Illinois is the one conjured up by the imaginations of phony front groups funded by big businesses trying to saddle the state’s taxpayers with the costs of caring for those who are injured or the survivors of those killed due to corporate negligence or malfeasance,” the group’s president, Perry J. Browder, said in a news release available on the group’s website.
The group criticized the statistical soundness of the study—noting that the organization that conducted it received a D+ rating from Nate Silver’s FiveThirtyEight—and also focused on businesses rather than individuals, for whom civil litigation is decreasing in the state.
The reality is that very few injured Americans file lawsuits. The number of civil cases filed in Illinois has dropped 26 percent since 2007. More than 70 percent of the cases in our courts today are filed by businesses – the very ones seeking to take away our constitutionally protected rights – suing other business or individuals for money. As for medical malpractice cases, the number brought in our state has steadily declined over the past decade; it’s fallen more than 40 percent since 2003.
Fixing our Litigation System
Whether you agree with the study or not, there are still major problems with the litigation system both in Illinois and nationally. A 2009 survey by the American Bar Association revealed many litigators believe the cost of litigation, in particular the cost of discovery, is too expensive.
So how can we as a profession try to fix these things?
It starts with having a conversation at the local level. In 2009, the Institute for the Advancement of the American Legal System, the American College of Trial Lawyers Task Force on Discovery and Civil Justice released a set of 29 principles they believed should be discussed and implemented at the state and national level. These principles included things such as giving rule makers “the flexibility to create different sets of rules for certain types of cases so that they can be resolved more expeditiously and efficiently,” and replacing notice pleading with fact-based pleading to reduce discovery costs. Attorneys should review these principles and see if they apply to their local court system and what it would take to make needed changes.
Lawyers should also advocate for more investment in projects targeted to alleviate litigation problems. The Seventh Circuit is in the third phase of a pilot program to improve the e-Discovery process and states such as Texas, Colorado, Massachusetts and Utah have implemented other programs or rule changes aimed at streamlining the discovery process and improving overall judicial management of cases. Regardless of where we focus our efforts, continuing the conversation sparked by the 2015 Lawsuit Climate Survey is important.
Our legal intern from the University of Illinois college of Law, Lindsey Lusk, contributed to this post.