(From the March 2011 Issue)
To most people on the street, when a wrong is done, the words of the People’s Court come to mind – “Don't take the law into your own hands; you take 'em to court.” And when those people come to court to correct a wrong, they are likely to end up in the Law Division, where claims for money damages are heard. Judge Hollis L. Webster presides over the Law Division, which includes the small claims and small remedies calls, the arbitration call, and the law calls. In those calls, the judges of the Law Division hear cases ranging from automobile accidents to medical malpractice to legal malpractice to breach of contract to wrongful deaths to collections to intentional torts. Judge Webster notes, “each day, I see something new, some new issue, as often as I see the typical case.”
Prior to taking the bench, Judge Webster was active in the legal community and the DuPage County Bar Association. She served as the second editor of the DCBA Brief, a magazine that, she added, “was truly the brainchild of Lester Munson. He pushed it to a magazine format.” While talking about the DCBA Brief, she commented, “The Brief has gotten better over the years. Yes, the cute stuff gets the cover opened, but the magazine has good substantive content that is invaluable to the practice of law.”
Judge Webster was appointed associate judge in July 1991. “Judge Cary Pierce and I were the last judges sworn in at the old courthouse on Reber Street,” she recalled. “It was a classic courthouse, with big windows, unlike the courthouse today.” At the early stages in the new courthouse, people complained of headaches and other ailments. Judge Webster’s former law firm, Hinshaw & Culbertson, represented one of the defendants in that suit. During the repair process, court was held in the jail and in other administrative buildings. She added, “It worked. Everyone said it was so difficult, but it worked. Everyone complied and cases were completed.” She was later appointed circuit judge in 1995, and was elected to circuit judge in 1996. Though she served in the misdemeanor and domestic violence courtrooms for the early part of her career, she has spent most of her judicial career in the Law Division, where she became presiding judge in 2001.
The Law Division has regular division meetings on a quarterly basis, but Judge Webster states, “I am very happy with the amount of interaction we have with our judges on an informal basis. There are lots of discussions. We pass pretrial conferences from judge to judge.” In addition to handling the meetings, Judge Webster has several administrative duties as presiding judge. She arranges coverage for the calls when judges are ill, on vacation, or attending judicial education conferences. She also works with Deputy Court Administrator Robin Partin, who handles the Jury Commission, to advise on jury needs for the call. Every month, the presiding judges of each division in the courthouse meet to address the various administrative matters of running the court call. Every other month, all of the circuit judges meet as well.
One of the important programs in the Law Division is alternative dispute resolution (“ADR”). Arbitration is a very successful tool in managing the call, Judge Webster told us. “The success of ADR is not measured in the number of arbitration awards that are rejected,” she said, “which are high, but rather in the number of jury trials that result after rejection – very few.” She added, “Judge Paul Fullerton has been very successful with his mass pretrial settlement of subrogation cases. He does those twice a week and handles twenty or so cases with five or six adjustors.”
Mediation is the other part of ADR. Mediation “has been very successful,” she said. “I also actively encourage the use of private mediators. Radon cases, disappointed buyer cases, these are poster-children for mediation because they can be so expensive.”
Civil litigation costs rise because of the complexities of the claims, because of the number of defendants, or plaintiffs, and because of the probability of cross-claims and counterclaims. Though not truly ADR, Judge Webster explained a settlement tool to manage risks called the “high-low.” In a “high-low,” which is used before trial, or during trial, she explained that the litigants agree on a range of numbers. If the jury verdict exceeds the high number, the defendant pays only the high number. If the jury verdict is not guilty or is below the low number, the defendant pays the low number.
In reviewing some of the negatives or difficulties faced by the Law Division, the biggest challenges Judge Webster said she observes are bad litigation tactics and the increase in the number of pro se litigants. As to bad litigation tactics, Judge Webster said, “The most troubling, though not widespread, is the churning of fees. Whether it is the unnecessary delays or the stalling on discovery requiring multiple motions to compel or the excessive use and amount of requests to admit, it is there in a small percentage of cases. It is the judges who are there to bring the temperature down.”
Judge Webster insists that counsel have a personal consultation about discovery disputes, as required by Illinois Supreme Court Rule 201(k), prior to bringing a motion to compel. She said, “if attorneys come into my courtroom on a motion to compel and tell me they have not discussed it with the other side, I send them out to the conference room. They often come back with an agreement on the discovery issue.”
The other challenge she pointed out is the rise in pro se litigants. The economy has had some impact on the desire or ability of people to hire an attorney to handle their disputes. However, Judge Webster added, some of these cases can be particularly difficult. “Some people just do not hire lawyers and want to handle their own day in court,” she said, adding that “the courthouse is often also the last repository for those who suffer from mental illness.” On that, she added, “It is just so sad. We see some paranoid claims and we just have nowhere else to refer them. We have to handle their claims like any other case.” Regardless, Judge Webster said, “the judges handle these cases well and treat the litigants with respect and courtesy.”
The number of filings in the Law Division has nearly tripled in the last five years, Judge Webster said. “In 2005,” she explained, “there were 7,050 new cases filed. In 2010, there were 20,850 new cases filed. Most of the increase has occurred in the small claims and arbitration calls.” A vast number of these are collection cases, she pointed out. “Cases in the law calls have been fairly constant, with each courtroom having around 400 new cases.”
A look around her chambers reveals stacks of motions, responses, and briefings, which was interesting to see given the local rule limiting page counts to ten pages. She laughed, “The attorneys will come in and say that they have agreed to file briefs in excess of ten pages.” Her response, “Well what about me? How many pages? I always have them put in the order the number of pages, not just an open-ended agreement.”
Many changes have occurred in the Law Division over the years. One of the big changes is e-filing. Judge Webster said, “e-filing has been embraced by the bar. So we had to deal with that and learn to accept the changes as a division.” A new change that is coming is e-signatures. With e-signatures, orders will be instantly entered into the DUCS system without waiting for them to be entered some two or three days after the order is signed. Judge Webster noted, “Judge Dorothy French and I, and probably Judge Bruce Kelsey, will be the guinea pigs for that.”
Technology is becoming ever-present in the Law Division and its cases. The iPad on her desk indicates Judge Webster’s willingness to embrace new technologies in the courtroom. She noted, “I was presented with an iPad by counsel, showing me various clauses of a contract that had gone back and forth. Opposing counsel brought out his iPad and showed me the emails that had been exchanged on the alleged parol evidence.” In the bigger trials, she added, “The firms hire trial consultants who handle projections of documents and exhibits. I am seeing a very effective use of technology in civil litigation.”
Again, Judge Webster commented, “ADR is critical to the division and to litigants. The cost of filing a Law Division case has risen. The costs of the discovery process are astronomical.” Some of the cases that have come before the Law Division have vast costs – the O’Hare Airport expansion litigation, wrongful birth litigation, wrongful death litigation, website defamation litigation, and errant golf ball litigation are some of the examples of the high costs of bringing suit. Judge Webster noted that, “without ADR, many of these cases would not be resolved, adding to the already burgeoning trial call.”
The Law Division is no longer like the People’s Court – “don’t take the law into your own hands, you take ‘em to mediation.”