On behalf of the Lakin Law Firm, Charles Chapman accused former Lakin lawyer Richard Burke of incompetence at a hearing but couldn't convince defense attorney Lisa Lilly or Madison County Circuit Judge David Hylla of the same.
Chapman wanted Hylla to reconsider an order staying a Lakin class action in deference to a suit in St. Clair County, but Chapman didn't change Hylla's mind.
Lilly, representing Country Mutual Insurance, urged Hylla not to engage in comparisons of attorneys to see "who's won what."
"It is an odd position that we are in, in a sense, somewhat having to argue about which counsel is better," she said at a recent hearing.
She said Burke was a Lakin attorney for many years and handled many class actions.
"They now apparently think he has become unable to do that," she said. "I don't see any basis for that."
Burke absorbed Chapman's attack in person and asked to respond.
Hylla said he wouldn't allow argument or evidence from Burke.
"Frankly, it may be harmful or helpful to either one of the litigants in this case," Hylla said.
He stayed the case in June, but Chapman protested that the St. Clair County case didn't deserve priority because Burke conspired to take it from the Lakin firm.
Hylla opened the Aug. 4 hearing without eyeglasses and didn't see Burke, but he recognized Burke's voice.
Portions of the transcript follow:
"You are not of record in this case, right?" Hylla said.
Burke said that was correct.
Hylla said, "Obviously part of this case concerns or at least dealt with a case you have on file in St. Clair County."
Burke said that was correct.
"There was a removal," Hylla said. "There was a motion to remand that was denied."
On Dec. 29, 2006, he said, there was a motion to dismiss a case brought by chiropractor Richard Coy in 2006.
"That, I believe, was authorized by Mr. Burke and that's of some importance," Hylla said.
Chapman didn't say Burke signed the motion, for Chapman knew that the head of the firm, Brad Lakin, signed it.
Chapman said Burke was terminated and the Roche case was filed in St. Clair County.
He said Burke and Paul Weiss represented Roche.
The Coy case was then filed in Madison County, he said.
"To the extent that there is any first filing argument that the Roche case in St. Clair was first, I would suggest to the court that that is not as significant given the background of the dismissal of the case, the subsequent new employment by Mr. Burke with Weiss and the filing of the Roche case down in St. Clair County," Chapman said.
He said discovery was essentially complete in the Coy case.
Hylla asked if discovery was done in the original case that was removed, and Chapman said that was right.
Chapman said that in Hylla's order staying the case, he indicated he would reconsider if a party showed that its interests were not being protected in the Roche case.
"We set out in the motion, and the exhibits demonstrate, that the Weiss law firm has had difficulties in two federal court cases," he said.
"One was a case in front of Judge Herndon in which he ordered a show cause order entered for not doing something."
He said Weiss complied with the order.
Chapman said a California federal court ordered a case to proceed on an individual basis because Weiss did not file a class certification motion in a timely manner.
"Those two cases indicate some of our concerns with Weiss proceeding in the Roche case while we are not allowed to do anything here in the Coy case," he said.
He said that in St. Clair County, Roche didn't respond to a motion to dismiss in two weeks as required.
"The court entered an order saying okay, respond to that motion to dismiss by - I think it was November sixth," Chapman said.
He said Roche amended the complaint without obtaining leave of court.
He said the defendant moved to dismiss and the response took almost three months.
"There is also a Kaltenbronn case versus Liberty Mutual," he said. "The Lakin law firm represents Kaltenbronn."
He said there was a Roche versus Liberty Mutual case pending in federal court and a judge ordered Roche to show cause why it shouldn't be dismissed."
"Another case, your honor, another Roche case," Chapman said.
If both cases proceed and duplicative discovery results, he said, the two plaintiff groups would resolve that and not impose the cost on Country Mutual.
"I don't think that they should have to respond to stuff twice but I don't thinki that's a good reason to stay our case particularly when the Roche cases are not being handled expeditiously," Chapman said.
He said the Roche case could damage the Lakin firm's chance to certify the Coy case.
Hylla asked if discovery from the original suit applied the same way to both cases.
Chapman said he didn't know.
"When that stuff was produced, Lakin and Weiss were working together," he said.
"We're not getting along so I don't want to say we will give it to them," he said. "We're not going to hold them up for it."
Chapman finished, and Lilly told Hylla he shouldn't grant a motion to reconsider if a litigant simply reargues prior arguments.
"Newly discovered evidence means evidence should mean evidence not available at the time of the original hearing," she said.
"These allegations about Mr. Burke and some sort of conspiracy, certainly all that was within Lakin's knowledge," she said.
She said she didn't know of anything in law providing for comparison of attorneys.
"Had I known that that was going to be an issue, I imagine we could probably comb through the Lakin firm's files, as with any firm, and find some time when they missed filing something and had an order to show cause," Lilly said.
Then she clinched her case for the day.
"To the extent they have this concern about Mr. Burke's handling of this case, the Coy versus Country case, I have a copy of the dismissal order."
"It in fact was entered by Mr. Lakin," Lilly said.
She said to Chapman, "I'm sorry, I don't have an extra copy."
Chapman said, "I've already seen it."
Lilly said Coy could intervene in the Roche case.
Hylla asked Chapman what prevented him from doing that.
Chapman said, "I don't know how. We don't have a client there, judge."
Hylla asked if Roche could intervene in Coy's case.
"No," Chapman said. "Mr. Burke here, as he indicated, is a spectator."
Burke said, "I would like to respond to some of his statements."
Hylla said, "I don't know how I can hear argument from somebody who is not of record."
Lilly said, "I'm not sure I understand why plaintiffs believe they can't intervene in the Roche case. Plaintiffs don't have to be in that county."
"They are Illinois plaintiffs," Lilly said. "The defendant is subject to suit there."
Hylla said Chapman stated his argument in an attachment to his motion.
"That certainly was pretty clear to me that he was saying there was a lack of competency by Roche's counsel," Hylla said.
The order Hylla signed four days later made it clear he didn't agree.
He left his stay in place and recommended that the attorneys seek a proper forum to resolve their dispute.
Meanwhile, the Roche case remained in suspense.
St. Clair County Associate Judge Andrew Gleeson heard a motion to dismiss from Lilly on Aug. 6, and took it under advisement.
He gave both sides 14 days to submit proposed orders, but 15 days later neither side had delivered.