COURT-ANNEXED ADR PROGRAM 18 th JUDICIAL CIRCUIT DuPAGE COUNTY, ILLINOIS ANN B. JORGENSEN HOLLIS L. WEBSTER CHIEF JUDGE PRESIDING JUDGE LAW DIVISION KENNETH A. ABRAHAM LORETTA K. GLENNY SUPERVISING JUDGE ADR ADMINISTRATOR SUMMER 2006 ADR QUARTERLY IN THIS ISSUE: OPENING STATEMENT IN THE COURTROOM JUDICIAL TIPS CASE IN POINT ADR STATISTICS 18 TH JUDICIAL CIRCUIT COURT ADR Center 126 S. County Farm Road, Suite 2A Wheaton, IL 60187 Tel. (630) 653-5803 5803 FAX (630) 462-3726 http://www.dupageco.org/circuitcourt
ADR COMMITTEE OPENING STATEMENT During the last year, the DuPage County Bar Association ADR Committee expanded its scope to include mediation, arbitration and other forms of alternative dispute resolution. During the 2006-2007 year, the Committee will be under the able leadership of Brigid A. Duffield. Whether your interest is in family law or general civil law, you are encouraged to attend their meetings, which are scheduled for 09/19/06, 10/17/06, 11/21/06 (no meeting in December 2006) and 01/16/07. All meetings are held at the DuPage County Bar Center at 12:00 noon. ADR SEMINAR The editions of the ADR QUARTERLY and the QUESTION AND ANSWER BOOK are available through the County Web site, which can be accessed as follows: http://www.dupageco.org/circuitcourt Thank you to the many attorneys who have phoned, written and spoken to Judge Abraham and the ADR Center staff. We appreciate your opinions and concerns over issues important to the process. Many of your comments and concerns will be addressed and included in future editions. We encourage comments that will not only improve the process but also the result. The Mandatory Arbitration Program, 18th Judicial Circuit Court, DuPage County, Illinois, provides the ADR Quarterly as a service to the arbitrators and other interested parties. Any discussion contained in this publication is offered as general information only and should not be relied upon as a legal opinion regarding any specific matter. The ADR Quarterly is written and edited by Judge Hollis L. Webster, Judge Kenneth A. Abraham, Loretta K. Glenny and Carol A. Robles. Thanks to Dan Amati, Deputy Court Administrator, for running the graphics. On May 11, 2006 the ADR Committee held its annual Seminar. There were 71 attorneys in attendance. Not bad for a Committee which had not met as a separate committee for the last several years. Special thanks to the presenters and those dedicated attorneys who took time from their busy schedules to attend. A portion of the Seminar was devoted to Arbitrator Training. Twelve new arbitrators received their training at the seminar and have been added to the list of certified arbitrators. NEW BENCH BOOK New Arbitrator Bench Books are available at no charge from the ADR Center to those attorneys who serve the 18 th Judicial Circuit as Arbitrators. Please stop by the Center or wait until the next time you serve to pick up your copy. This is the first comprehensive revision since Chief Judge Jorgensen served as Supervising Judge of Arbitration. Judge Abraham, John Kincaid, Jim McCluskey and Fred Spitzzeri, all of who served as presenters at the Seminar, prepared the updated Bench Book. -1-
The contents of the Bench Book as well as the revised Question and Answer Book are available online by going to the Arbitration Center link at the following website: http://www.dupageco.org/emplibrary/june%202006%20- %20Complete%20BenchBook.pdf? ARBITRATOR PAY INCREASES On June 8, 2006, the ADR Committee of the Illinois Judicial Conference held its annual meeting with Supervising Judges and Administrators of the state s Arbitration program. One recommendation, which was unanimously approved, was to increase compensation for Arbitrators from $75 per case to $100 per case. This is the same proposal that Judge Abraham submitted in 2004. Let s hope the time is now right! A second proposal was to increase the rejection amount from $200 to $300 on awards not exceeding $30,000. Both proposals will be formally advanced to the ADR Committee and then to the Supreme Court later this year. IN THE COURTROOM On January 1, 2006 an amendment to Supreme Court Rule 281 increased the jurisdiction of Small Claims cases from $5,000 to $10,000. Amendment to local court rule requires that all jury cases seeking an amount not to exceed $50,000 be subject to Mandatory Arbitration. All cases filed after January 1, 2006 in the $5,000 - $10,000 range are given an SR designation and are assigned to Courtroom 2002. All SC (small claims $.01 - $5,000) cases with jury demands are also assigned to Courtroom 2002. Because of these changes, new AR case filings have dropped significantly. The call will still include the thousands of cases that are set for post-judgment proceedings. Since the largest category of cases affected by the change in jurisdictional amount are debt collection actions, the following impact on AR call is expected: A. The 9:00 A.M. summons return call will be shortened; B. The overall length of time between filing and disposition of AR cases will increase. This is largely due to the fact many of the SR cases in the $5,000 to $10,000 range (e.g. debt collection cases) were disposed of on the first of second court appearance and therefore, never proceeded to arbitration; and C. The percentage of pending cases that go to trial will increase. JUDGE KENNETH A. ABRAHAM SUPERVISING JUDGE -2- -3-
JUDICIAL TIPS SCHEDULING ARBITRATONS ATTORNEYS This summer's experience serves as a reminder of the necessity of knowing witnesses' schedules so that an arbitration is not set for a date when a witness is on vacation, is returning to school, etc. All too often last-minute motions are submitted seeking a continuance for a predictable event. As a courtesy to the Court, the ADR staff, opposing counsel and to the arbitrators who set aside time from their busy schedules only to find that the arbitration has been cancelled get all witnesses' schedules before setting the date for arbitration. HIGH-LOW AWARDS Other Circuits who have adopted Mandatory Arbitration have found some success with high-low awards. In cases where the parties desire to settle but have difficulty in reaching a number acceptable to all, they stipulate both to a binding arbitration and a high-low range. The ADR Administrator endeavors to find a panel of attorneys experienced in that area of law who agree to serve and agree to give counsel more leeway in time. While there has been no recent request for a high-low hearing, in our Circuit, we are certainly willing to accept such a stipulation, if embodied in an agreed order. If you have further interest, please contact Loretta Glenny, ADR Administrator, who will be glad to assist. MOTIONS IN LIMINE Attorneys are encouraged to review preliminary motions, including motions in limine, in advance of the hearing in order to preserve the time available for presentation of their case. Many of these motions contain boilerplate language, which can more quickly be reviewed by the attorneys familiar with the case than the arbitrators. At the outset of the hearing, inform the Chair of any agreed motions and those that remain undetermined. REJECTIONS BASED ON FAILURE TO DISCLOSE In order for the Chair to accurately rule on objections to exhibits or testimony where the legal basis is failure to disclose or incomplete disclosures, attorneys should be prepared to show the panel the discovery propounded and the responses. In addition, attorneys should have the Rule 222 disclosures. Remember, if disclosed under Rule 222, it may not need to have been disclosed under Rule 213. (See Kapsouris v. Rivera, 319 Ill.App.3d 844) INTERPRETERS ARBITRATORS Many of the tips contained in this section of the Quarterly arise as a result of questions or problems reported to the staff of the ADR Center. Please keep them coming! One recent inquiry resulted from the panel s belief that an interpreter was coaching a witness. If that arises, the Chair should admonish the interpreter that their duties are the same as if they were at trial. The oath administered to an interpreter is to -4- -5-
truly and accurately interpret not to embellish or coach a witness. Recognizing that certain words and phrases in the English language are not capable of being directly translated, the Chair should inform an interpreter that any variance in wording should be explained, in English. Since the interpreter serves as an officer of the court, the Chair has the authority to bar the interpreter. This discretion should be exercised only if all reasonable attempts to obtain compliance have been futile, and such a finding should be embodied in the Award. PRELIMINARY MOTIONS While the panel has the authority to hear preliminary motions, except motions for a continuance, the Chair should remind the attorneys that their two-hour time limit includes the presentation and argument of such motions. Therefore, if either party appears with a five-page motion in limine, the time spent on addressing these issues will be included. USE OF BENCHBOOK Arbitrators are encouraged to review the Bench Book for answers to common questions that may be encountered during the Arbitration. For example, experienced personal injury attorneys serving as arbitrators have complained that a fellow panel member was not familiar with tort law and didn't understand the elements that a party needed to prove. Included in the Bench Book are pattern jury instructions for personal injury and subrogation cases. This may be useful in defining the burden and terms commonly used. (e.g. loss of normal life) JUDGE KENNETH A. ABRAHAM SUPERVISING JUDGE CASE IN POINT CONTRACTUAL ARBITRATION CLAUSES It is more and more difficult for a consumer to enter into a commercial transaction, which does not include a provision requiring binding arbitration. Transactions ranging from automobile purchases and leases to cellular phone agreements contain such clauses. Appellate decisions throughout the United States have been varied and, in many cases, confusing. The Supreme Court of the United States has finally spoken to issues common to both in state and federal actions. Arguments often raised in attempting to defeat a motion seeking to stay the proceedings and to compel arbitration include the application of state law (e.g. CFDTPA, 815 ILCS 505/1 et. seq.) or common law fraud. Underlying those arguments is the proposition that if the contract is void, any arbitration clause contained in the contract must necessarily be a product of fraud and, therefore, void. Many of these arguments ignore the Federal Arbitration Act, 9 U.S.C.A. Sec. 2, et. seq. This Federal Act preempts state law. The vast body of case law interpreting this Act holds that the Federal Act must be applied to all transactions regardless of federal jurisdiction, provided that the clause is not unconscionable. In Buckeye Check Cashing, Inc. v. Cardegna, 126 S. Ct. 1204 (February, 2006), the Supreme Court of the United States clarified the applicability of the Federal Arbitration Act in holding that binding arbitration clauses are valid, irrevocable and enforceable; -6- -7-
unless the acceptance is revocable or the contract voidable. Since the arbitration clause is severable from the remainder of the contract, unless the challenge is to that clause itself, the arbitration deals with the validity of the contract "...in the first instance." The underlying state action that led to this decision was a putative class action alleging violations of state law that resulted when consumers entered into check cashing agreements containing a mandatory arbitration clause. The Florida Supreme Court held that enforcing an agreement to arbitrate contained within a contract, which may be unlawful could breathe life into a contract that not only violates state law, but also is criminal in nature The United States Supreme Court disagreed inasmuch as the arbitrator has the power to determine the validity of the agreement as a whole. However, when the attack is to the arbitration clause itself, independent of the contract, the test is whether the clause is unconscionable. ADR STATISTICS This section of the Quarterly has long focused on soft tissue injury cases. The reason this category has received so much attention is due to the higher rejection rate. While arbitration courts receive a wide variety of civil cases, both jury and non-jury, much of the court's trial time has necessarily been devoted to soft tissue actions where there is the filing of a jury demand. Several attorneys have inquired as to why the last edition did not report comparisons between awards and jury verdicts, as had been the practice over the course of the last two years. The reason is simply-during 2006 there has been a significant decline in the number of those cases that have gone to verdict. In fact during the first six months of 2005, 16 such cases were tried. However, during the same period this year, only 6 have reached trial. -8- The causes for this decline, I suggest, is directly related to the number of pre-trials conducted. Prior to 2002, pre-trials were rare. As we reported in the Spring 2005 edition, case filings in AR jumped 49.4% since 2001. Therefore, disposing of cases before trial became a necessity. Even though the other judges in the Law Division were generous in offering time to back up the 2018 jury call (in some years as many as 8 cases were set on the Monday jury call), those judges have their own cases dockets. The solution was to devote more time to settlement. Not only have more pre-trials been conducted (currently as many as eight per week), many attorneys have requested a pre-trial before arbitration setting. As a result: A. There are fewer arbitration hearings; B. These cases are disposed of at an earlier date; C. Plaintiffs expectations have not been set by an award, which on average was 60% higher than the actual jury verdicts; and D. Most plaintiffs have a greater level of satisfaction than otherwise occurs when the jury verdict is read. These results should encourage all attorneys to consider an early pre-trial, regardless of case type. In particular, whenever attorney s fees are an issue, an early intervention can minimize the potential of significant losses. -9- JUDGE KENNETH A. ABRAHAM SUPERVISING JUDGE