Can state lawmakers stop frivolous lawsuits?
Kevin Conway, president of the Illinois Trial Lawyers' Association
As Illinois courts face an increasing caseload burden, will state lawmakers follow federal government's attempts to crackdown on frivolous lawsuits by passing legislation to curtail such behavior?
In federal court, "Rule 11" gives judges power to sanction lawyers for "improper uses and misrepresentations" in civil proceedings. A recent amendment strengthening the Lawsuit Abuse Reduction Act (LARA) passed in the U.S. House last month, and begs the question whether Illinois legislators have the stomach to follow suit.
Republican state legislators would be willing to adopt a version of the federal rule, but doubt there is sufficient political muscle for passage.
Illinois House Republican Leader Tom Cross' (R-Oswego) spokesman David Dring, said, "Leader Cross would wholeheartedly support any legislation that would crack down on frivolous lawsuits in the state of Illinois."
"We would expect strong opposition to a state version of LARA-type sanctions to come from prestigious law firms in Madison County and groups lobbying on their behalf," Dring said.
Kevin Conway, president of the Illinois Trial Lawyers Association said "frivolous lawsuits" is just a buzzword for attacking meritorious cases.
"All they really want to do is immunize themselves from catastrophic damages," Conway said. "They want to cap damages limiting those most severely damaged. Those cases are not frivolous cases.
"In my opinion and in the opinion of the Association, one frivolous lawsuit is one too many. And you'll never hear them say in the same breath that one wrongful death from an unsafe product or medical negligence is one too many also," he said.
State Sen. Kirk Dillard (R-24), co-chair of Illinois Senate Judiciary Committee, agreed with limiting frivolous lawsuits in Illinois, but is not hopeful.
"While I would be a legislator who could support an Illinois statue similar to the new federal crackdown on lawsuit filing abuses, the Illinois Supreme Court has in the past decade reminded the General Assembly that it is the judicial branch that regulates the practice of law in our state," Dillard said.
Dillard cites precedence set by the Illinois Supreme Court regarding the state's 1995 tort reform legislation, where caps on non-economic damages sailed through a Republican-controlled legislature. Following legal challenge, the Court overturned the reform package, asserting its clear belief in their authority when dealing with matters of the courts.
Not surprisingly, Metro-East congressmen voted along party lines during last month's vote on the Rule 11 amendment.
Congressman Jerry Costello (D-Belleville) voted against the amendment citing the rights already granted to federal judges.
"I voted against the bill because federal judges currently have the ability to discipline, fine and report lawyers to the disciplinary commission who file frivolous lawsuits or otherwise abuse the system," Costello said.
Congressman John Shimkus (R-Collinsville), on the other hand,
supported the increase in sanctioning power that the legislation granted federal judges.
"There is no doubt changes have to be made in our court system," Shimkus said. "And clamping down on frivolous lawsuits is one of the easiest and most effective methods."
Shimkus believes the amendment will further deter frivolous lawsuits from being filed in federal courts. The congressman is not alone in his views on the federal level; he was among the 229 representatives in the U.S. House who voted for the amendment.
When asking local Madison County attorneys for their views on legislation limiting and sanctioning frivolous lawsuits, one attorney remarked that it would be difficult to find an attorney who could articulate a valid argument against such legislation.
Speaking on condition of anonymity, the Edwardsville attorney said, "Any such legislation would only serve to sanction unethical behavior in the legal profession. The majority of attorneys seem to be working toward the betterment of the legal profession and would
support any such legislation to facilitate that goal."
Giving the powers found in Rule 11 and the current proposed federal amendments to state courts is not an uncommon act for other state legislatures. For instance, California has enacted similar legislation.
According to Dring, it's unlikely Rule 11-type legislation would pass in Illinois because legislators tend to vote along party lines. With State House currently controlled by Democrats, status quo will likely rule for now.
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Illinois Supreme Court
200 E Capitol Ave
Springfield, IL 62701
Illinois Trial Lawyers Association
401 W Edwards St
Springfield, IL 62704