Monday, July 15, 2013

Overlawyered: Big Law conducts a case at the Cook County Arbitration Center

This was a post I really wanted to put up under my own name -- arbitration hearings are, technically, open to the public, although observers are rarer than hen's teeth -- I'd be free to name names if I wanted to, but in the end, I couldn't and wouldn't. I want to lampoon the Big Law approach to the presentation of even the smallest case, but I don't wish to be personal about it. It's not the attorneys who are the problem; it's the Big Law/ Big Firm attitude.

As I've probably mentioned here before, I've sat as an arbitrator in Cook County since the mandatory court-annexed system was begun, probably 25 years ago or more. It is the most part-time of part-time jobs. I get called three, maybe four times a year. Assuming I hear three cases each time (that's the normal maximum), I'll rake in $900 or $1,200 in yearly income from this gig. One can not plan a retirement in the South of France on such princely earnings.

We hear cases as three-lawyer panels, one of the lawyers serving as chair. All three panelists get to decide the case at the end of the hearing, haggling over the award to be given, if any, to the extent that haggling is necessary. The chair fills in the award form when the deliberation is done and, during the hearing, rules on any objections the lawyers might make. It's more fun to be chair; I've always enjoyed it, anyway.

The arbitration hearings are not held in the courthouse, but in rented office space in a nearby building. My courthouse pass doesn't get me past security there; I have to wait in line for a building pass with everyone else.

Recently, on a morning when I'd been called to serve, I was in line behind a middle-aged man with a computer bag, a younger man lugging a box full of binders, and a younger woman carrying another bag and a projector screen. Oh, no, I thought... Big Firm Alert.

Like nuns in the days before Vatican II, Big Firm lawyers never travel alone. They look more like unpacked Russian Dolls when they venture out into the wider world -- the Partner carrying his enormous dignity -- the Senior Associate trailing behind, carrying everything else the Partner should be carrying -- the Junior Associate, trailing behind the Senior, carrying what the Senior Associate would have carried had she been allowed to carry her own stuff -- and so on. Depending on the Importance of the outing, there might be a Junior Partner and a several layers of Associates inserted into the procession, according to rules of strict seniority.

Well, I thought to myself, there are a lot of law offices in this building. They don't have to be going up to the Arb Center; maybe they're here for a deposition or something. But it was only 8:00 a.m. Depositions usually take place later in the day. I began to get an uneasy feeling, especially as it became apparent the next two people in line, obvious civilians, were witnesses associated with the Big Law party. The group got ahead of me and, when I didn't see them milling about when I got in line to check in at the Arb Center, I began to relax a little.

You should never relax.

The assistant administrator who was handling arbitrator check-in that day greeted me by name. I've been acquainted with her for years, since she worked in the Circuit Court Clerk's office, and we chatted a little about her health and the weather. She pulled out a folder, which meant that she was going to ask me to chair a panel this morning. "You know, Curmudgeon," she said, "Room X is my favorite room on the floor. Best view. Most natural light. Very spacious."

I was of course instantly suspicious.

"What are you sending me into?" I asked.

"Oh, nothing," she lied. She wouldn't look straight at me. She knew I knew she was up to no good. "Could you chair Room X for me this morning?" I took the folder without looking at the few papers inside.

The floor is level in the Arbitration Center, but I felt as though I were mounting the steps to the scaffold as I trudged in the direction of Room X. I was like the little kid drafted into playing softball with the big kids and stashed in right field where he could cause the least damage. The little kid, in that circumstance, prays ever more fervently, Please, God, don't let them hit it to me. Running through my mind was something similar: Please, God, not the Big Law case.

Someone always hits a fly ball to the little kid in right field (I was that little kid many times; I know) -- and the Big Law case was waiting for me when I walked in. The Senior Associate was trying to set up the computer to project on the screen; the Partner was directing. The young lady (she was a Summer Associate as it turned out) was trying to assist.

"There will be three panelists?" the Partner asked, with seeming innocence. Only there are no innocent questions in Big Law. I said yes and waited for the follow-up. "Three panelists, eh?" said the Partner. "That's just like the Seventh Circuit." There was a momentary pause. "You know," he continued, "I used to clerk for Judge Y. Wonderful man, Judge Y."

And there it was, I marveled, he was letting me know, as subtly as a brick, about his superior credentials. Of course I knew who Judge Y was; Judge Y had served on the Seventh Circuit Court of Appeals for many years. But then, Mr. Big Firm Partner inadvertently gave me an opening. "Do we know who the other panelists will be?" he asked.

"Well," I said, "since you're so familiar with the Seventh Circuit, you know that the lawyers there don't know who will hear a case until the panelists come out for the argument." I've got credentials, too, Mr. Big Firm Partner. "Same thing here. I guess in that way we resemble the Seventh Circuit." And only in that way!

Mandatory arbitration hearings here are streamlined by Illinois Supreme Court Rule 90(c). As long as one side (usually the plaintiff) serves the other side with copies of the documents by no later than 30 days before the hearing, all sorts of documents are presumptively admitted by the rule. In fact, one of the reasons why lawyers typically do better at arbitrations of this type than they do at trial has to do with the fact that they get in their medical records and bills without the expense of inconvenience of calling in (or obtaining the evidence deposition of) the treating doctor (or chiropractor). Also, it's really hard to cross-examine the doctor's written report -- the live doctor, however, is far more vulnerable.

Anyway, arbitration hearings begin by asking if the parties have any 90(c) packages for the panel to consider -- and then whether the other side has any objection to that party's 90(c) package. The attorneys will typically have one copy of their 90(c) package for each panelist. Plaintiffs, of course, almost always have a 90(c) package -- the medical records and bills. Defendants almost always don't.

But Big Law was involved in this case. Naturally Big Law had a 90(c) package for its defense client -- and, just as naturally, theirs had three times as many pages as the package submitted by the plaintiff. Now I knew what the box of binders was.

Mr. Big Firm Partner wanted to give me his 90(c) packages before the hearing began. He wanted to give them to me before his opponent even arrived. "No," I told him, "we have to wait until everyone's here."

Eventually, everyone was present and the 90(c)'s were exchanged. I was astounded at how thick the defendant's 90(c) package was -- even though just the "mini" copies of the deposition transcripts were submitted in the 90(c) package -- minis put four pages of the transcript on each single page -- and I began trying to calculate how much the Big Law firm had billed to get the case to this point. A hundred thousand dollars? $200,000? The maximum award that we arbitrators could make was $30,000.... As a once and sometime insurance defense attorney I am quite fond of the saying, "millions for defense, but not one cent for tribute" -- but there is a point where that noble sentiment degenerates into "penny wise and pound foolish." Wherever that point may be, we were far, far beyond it in this case.

And then came time for opening statements.

The case concerned a slip and fall in a store. The elderly plaintiff -- a very nice lady -- was rather rudely pushed by a snot-nosed 11 or 12-year old kid running out of the store as the old lady was trying to come in. The plaintiff lost her balance and toppled to the floor. She knocked down a bar held in place by breakaway guide wires along the way. The whole sorry incident had been captured on a store surveillance tape -- and if that had been all that Big Law wanted to show us at the hearing, I wouldn't be writing this post.

No, Big Law wanted us to see that tape, alright, in real time and in super slo-mo, but also to flash extensive excerpts from party and witness depositions on the screen in conjunction with particular frames of the video and to highlight a detailed exposition of the 'evolution of the plaintiff's pleadings.' The first Complaint, you see, hadn't mentioned the little kid -- clearly evidence of an evil conspiracy to defraud -- notwithstanding the fact that the kid's involvement is reflected in the descriptions of the accident contained in all the different medical records.

You will be pleased to know I did not put my hands on the top of my head and scream uncontrollably. I wanted to, of course, but, instead, I just sustained plaintiff's objection to the 'argumentative' nature of the opening statement. Just like they teach in law school -- even at Harvard, apparently -- in response to the objection that he was arguing the case in an opening statement, Mr. Big Firm Partner began disguising his arguments by saying "the evidence will show." And he went right back into his scholarly analysis of the origins of the pleadings. "Counsel," I asked, "is the current complaint certified? Were any prior complaints certified? No? Then" -- even at Harvard you should know this -- "there are no admissions to be drawn from the earlier pleadings. They're gone. Let's talk about the case that's on file now."

Somehow, we got through the openings. And through the testimony. I kept sustaining all the objections made by the plaintiff's attorney. ("So, Madame Plaintiff, when you filed your original Complaint, isn't it true that you hadn't yet seen the surveillance video?" So who cares?) Mr. Big Firm Partner and I were terribly respectful of each other. I would sustain the objections "with respect" and he would challenge me "with respect." His smile never wavered. But I understood that he meant "with respect" to mean "eat poison and die." But granting her lawyer's objections was the least I could do for the little old lady plaintiff -- no, actually, come to think of it -- it was the most I could do for her.

She had no case.

This was obvious from the surveillance video. The Summer Associate could have presented this case -- before starting law school -- and surely have done a better job than Mr. Big Firm Partner. (All she needed was to play the tape and shrug her shoulders. That would have been enough.) I don't suppose there is a case that you can't lose -- but this was about as close to an un-lose-able case as was ever filed. Still, Big Law seemed determined to try. When it came time for closing arguments, Mr. Big Firm Partner had one more Big Law trick up his sleeve. "Your Honor," he said -- OK, I liked that -- even though, as a mere arbitration panel chair, I have absolutely no right to such a title -- "we have a motion at this time."

"A motion?" I said. "We don't do motions here." (Motions connected with the arbitration are supposed to be resolved before the arbitration judge before the case gets to us.)

"I have a motion for directed verdict," the Partner said. The plaintiff's attorney started to object, but I cut him off. "We don't hear those motions at an arbitration hearing," I told him. "With respect," I added.

"With respect," he responded, "I really want you to hear this one." He fanned a sheaf of papers that he wanted to put before us.

"I assume your motion contains the law you consider applicable in this case, is that right?"

"Yes, Your Honor, it does."

"I tell you what. We can consider memorandums showing what you believe the applicable case law to be. We'll receive it on that basis." The plaintiff's attorney wanted to object again. "We're not hearing it as a motion," I said. "We will proceed now to hear closing arguments."

Sometimes a defendant in an arbitration will suggest an award that the defense can live with (either side can reject an award and proceed to trial in our system -- most of the time -- just by paying an additional fee). It's not a proper argument, but it might be helpful in some cases. And, in any event, the statement is made and counsel will move on quickly enough that no one would object even if they had a mind to. In the middle of his closing argument, however, Mr. Big Firm Partner launched into a chest-pounding spiel about his client's determination to take this case through to trial if need be. He then started in about Medicare liens and how these would make it impossible to settle the case if we made even a de minimus award and -- and eventually the plaintiff's attorney could not any long sit silent. I sustained the objection.

* * * * * * * * * * * * * * * * * * * *

Big Law had finally left the room. Somehow they seemed to have more stuff going out than when they came in. And that was after they'd divested themselves of the mountain of material on our desk. I and my colleagues sat glumly for a couple of minutes with the door finally closed.

"We don't really have a choice," said one.

"But you know what this means?" asked the other. "We give them an award and they will think they did everything right --"

"-- When they did everything wrong."

I looked helplessly at my colleagues. They looked back, equally stricken. We did what the law required.

But not because of anything Big Law did, but, rather, despite everything Big Law did.

1 comment:

Empress Bee (of the high sea) said...

it would have been (very) nice if you could have stated big law's fee!

smiles, bee