The Journal of The DuPage County Bar Association

Back Issues > Vol. 29 (2016-17)

Jury Trials After Arbitration DuPage County – A Cautionary Tale
By Hon. Brian R. McKillip

At its inception, my idea in preparing this article was merely to provide information to the practicing attorney concerning jury trials following an arbitration hearing. However, because of the numerous changes that have taken place with respect to the Arbitration Program, I have expanded the scope of the article, even though brief, to alert the bar to other matters involved in the Arbitration Program.

Since 1989, the 18th Judicial Circuit has participated in the mandatory arbitration program established under Supreme Court Rules 86 through 95. This program establishes a mandatory – but not binding – arbitration procedure for certain cases. In DuPage County, it has been for civil cases seeking money damages exclusively between $10,000 and $50,000.

All such cases are given an AR number and are assigned to courtroom 2018. The judge presiding in 2018 manages the pre-arbitration practice in those cases: supervising discovery, hearing motions relating to discovery, hearing any dispositive motions and any §2-1301 or §2-1401 motions to vacate judgments. The case is then assigned to be presented to an arbitration panel.

The arbitration panel consists of three attorneys who have received arbitrator training. One of the arbitrators serves as chair of the panel and is responsible for presiding over the hearing and for evidentiary rulings during the course of hearing. Supreme Court rules provide for some mandatory discovery (Rule 222) and simplified rules for the admission of documents and certain evidence at the arbitration hearing (Rule 90(c)). 2

The arbitration hearing is conducted at the Arbitration Center and is allocated two hours. If necessary, the attorneys may request a longer period of time if the complexity of the case warrants. The arbitrators must make an award immediately following the arbitration.

Thereafter, any party to the case who participated in the arbitration hearing in good faith may, within 30 days, reject the arbitration award and proceed to trial. As with any civil case, any party may request a jury trial. However, a party’s jury demand must be made at the time of filing the suit or appearance, 3 not following rejection of the award. The case returns to courtroom 2018 for trial, if a rejection has been filed, or for entry of judgment on the arbitration award, if no rejection has been filed.

When the arbitration program was initially adopted by the 18th Judicial Circuit, there was insufficient room in the courthouse to accommodate all of the hearings anticipated. Even after the new courthouse opened, the States Attorney’s office, the probation department as well as the Public Defender’s office were all located in the building. As a result, space was leased from the DuPage County Bar Association on the second-floor of the Bar Center. Initially, the south half of the second floor became the Arbitration Center (Harold Field’s office occupied the north half). Sometime later, the entire second floor became the Arbitration Center.

With the construction of the courthouse annex building, space within the courthouse became available. The Arbitration Center was moved to the third floor near the end of October 2016. The first arbitration hearings held in the courthouse took place on November 2, 2016. The Arbitration Center has been designated Room 354 and is directly across from the escalators leading up to the third floor.

Additional changes in the arbitration program during the past year include the retirement of Loretta Glenny, who had served as the arbitration administrator for 15 years. Suzanne Armstrong was hired as the administrator effective September 26, Ms. Armstrong was given additional duties in assisting the Chief Judge’s office in certain areas. Carol Taylor, however, remains the administrative assistant to the arbitration administrator. She has artfully filled that position since October 2001 and represents the primary source of institutional memory.

Most recently, Judge Ann Celine Walsh was assigned to Courtroom 2018 as the Supervising Judge of Arbitration. She has presided there since November 28, 2016.

When I was trained as an arbitrator many years ago, one of the issues discussed was the role of the arbitrator in the arbitration process. Specifically, should an arbitrator’s decision be his or her independent assessment and evaluation of the case or should it reflect the community’s assessment of the case as may be expressed in a jury verdict. This article is not intended to answer that question, if an answer even exists. This article is merely a recitation of historical fact.

In the 23 months I have served as the presiding judge in court 2018, I have presided over 18 jury trials and kept records of those jury trials since my assignment. In this article, without comment or evaluation, I simply describe the correlation between arbitration awards and jury verdicts.

For 17 of the jury trials,4 I have provided the case name, number, date of trial, a painfully brief factual description, the arbitration award and the jury’s verdict. It is for the individual practitioner to review this, using this information as best he or she can in representing his or her client. Review of this information should, however, provide some guidance to the individual practitioner in evaluating his or her case. While no hard and fast rules emerge, tendencies are apparent.

May 4-5, 2015 Martin v. Jakupi; 13 L 128
Sexual harassment in employment and wrongful termination. Waitress at restaurant in Aurora against the employer and the “manager” (brother of the owner).
Arbitrators’ Award – 0

Verdict for Plaintiff – $6,500 lost wages
$18,000 for emotional pain & suffering
$7,500 punitive damages against the corporate employer
$22,500 punitive damage against the manager

May 18-19, 2015 – Lysne v. Star Motor Sales; 13 L 314
Common law fraud in sale of used auto (2012 BMW).
Significant prior damage not disclosed.

Arbitrators’ Award – $20,000 plus $5,000 in Attorney Fees
Verdict for Plaintiff – $20,800 compensatory damages
$7,500 in punitive damages
July 20-21, 2015 – Higgingbotham v. Alvarado; 14 AR 573
Plaintiff eastbound on St. Charles Road; Defendant facing westbound on St. Charles, waiting to turn left at intersection controlled by stop light. Both cars had a green light. Cars collided at intersection. Defendant claimed she had never moved from left turn lane.

Arbitrators’ Award – $9,007
Verdict for Defendant
August 25, 2015 – State Farm v. Zike; 13 AR 1224
(Subrogation action)
Plaintiff west bound on Bloomingdale Road; Defendant turning left on Windy Lane. Plaintiff sought $14,250.

Arbitrators’ Award – $10,669
Verdict for Plaintiff – $14,250 reduced by 15% comparative to $12,112
October 19, 2015 – Indurante v. Rozkiewicz; 13 AR 1929
Plaintiff rear ended by Defendant in drive through lane at McDonalds. Defendant admitted liability. Plaintiff claimed $6,500 in specials in chiropractic treatment. Police officer unable to find damages to Plaintiff’s vehicle.

Arbitrators’ Award – 0
Verdict for Defendant
December 7, 2015 – Rivera v. Tselios; 13 AR 939
Plaintiff rear ended by defendant at stop light. Told officer no injury. Went to the ER next day, $9,276 in specials, alleging soft tissue injuries.

Arbitrators’ Award – $16,776
Verdict for Defendant
Jan 19-20, 2016 – Dudick v. Jackson; 14 L 223
Defendant entered Rt. 59 from a private drive on the east side of Rt. 59, intending to go southbound on Rt. 59. Defendant crossed the northbound lanes and collided with southbound vehicle in which the Plaintiff was a passenger. Plaintiff went to ER 5 hour later, and one visit to family physician and $2,200 in chiropractic treatment.

Arbitrators’ Award – $7,575
Verdict for Defendant
January 25-26, 2016 – Lukosius v. Mauer; 14 AR 1706
Plaintiff on bicycle eastbound on the sidewalk on the south side of 63rd St. Defendant eastbound on 63rd St. approaching intersection of 63rd St. and Ridge Road. Intersection controlled by stop/go light. As Plaintiff about to cross Ridge Road, Defendant turned right onto Ridge Road. Plaintiff’s bicycle stuck right rear quarter panel of Defendant’s car.

Arbitrators’ Award – $15,599
Verdict for Defendant
February 29, 2016 – Archer v. Sanchez; 13 AR 320
Plaintiff was a passenger in car westbound on North Ave., just west of Route 53. Plaintiff’s car rear ended by Defendant while turning right into a strip center. Plaintiff drove her own car home to Kankakee that night and sought chiropractic treatment two days later. $5,648 in chiropractic and x-ray expenses.

Arbitrators’ Award – $6,000
Verdict for Plaintiff – $4,710
March 14, 2016 – Country Ins v. Faroun; 14 AR 1173
(Subrogation action)
Plaintiff’s insured rear ended on Rt. 83 on a Sunday afternoon. Had a CAT scan and chiropractic treatment. Repair estimate $5,800 with prior damage. Plaintiff deemed structural damage to car made it unsafe to fix and drive and “totaled” the car. Plaintiff paid $17,567 on claim and sought same from jury.

Arbitrators’ Award – $17,567
Verdict for Plaintiff – $2,403
March 28, 2016 – State Farm v. Omari; 15 AR 209
(Subrogation action)
Plaintiff’s insured westbound on Chicago Ave. in Hinsdale, and stopped at a four way stop. Proceeded to turn left to go west and was struck in left rear quarter paned by defendant going eastbound on Chicago Ave.

Arbitrators’ Award – $11,395
Verdict for Plaintiff – $10,895.36 reduced by 15% comparative
to a net of $9,261.06
April 11, 2016 – State Farm v. Bell; 15 AR 142
(Subrogation action)
Plaintiff’s insured southbound on York Road just north of Butterfield, turning left into a parking lot. Defendant exiting a shopping area eastbound, turning left to proceed northbound on York. Struck Plaintiff’s insured in right rear quarter panel.
Defendant testified that a driver southbound on York had waived her across.

Arbitrators’ Award – $16,171.40
Verdict for Plaintiff – $16,171.40
April 18-19, 2016 – Degregorio v. Tavira; 14 L 1006
Plaintiff stopped at light at 59th St. and Fairview in Downers Grove. Defendant stuck plaintiff in rear. Defendant claimed ice on street. $16,155 in chiropractic treatment.

Arbitrators’ Award – $21,155
Verdict for Plaintiff – $23,155
June 20-21, 2016 – Allmerica Financial v. Woldegiogies;
14 AR 1545 (Subrogation action)
Plaintiff’s insured stopped on Roosevelt Road in Wheaton, waiting to take a left turn. Defendant struck plaintiff’s insured in rear.

Arbitrators’ Award – $16,074.56
Verdict for Plaintiff – $15,874.56
July 19, 2016 – State Farm v. Vohra; 15 SR 1442
(Subrogation action)
Plaintiff’s insured was westbound on Ogden just west of Williams in Downers Grove. Plaintiff’s insured claimed he was stopped in traffic, was rear ended by Defendant and pushed into the motorcycle stopped in front of him. Defendant claimed a sudden stop by insured. Auto “totaled” by State Farm and it sought $3,206 for property damage, and $3,965 for the ER bill.

Arbitrators’ Award – $7,271
Verdict for Defendant
August 15-16, 2016 – Scaletta v. Chesney; 15 AR 248
Plaintiff stopped in median on Algonquin Rd. waiting to merge into westbound Algonquin road. Defendant pulled behind Plaintiff with same intention. Plaintiff pulled forward and stopped waiting for an opening in traffic. Defendant pulled forward and stuck rear of Plaintiff’s car. Plaintiff incurred $4,362 in chiropractic treatment.

Arbitrators’ Award – $9,478
Verdict for Defendant
November 7, 2016 – Leone v. Lopez; 15 AR 666
Plaintiff eastbound on 55th St. in Clarendon Hills. Rear ended by defendant at stop light in am on way to work. Spent most of day at work. Plaintiff went to ER 10:30pm that night. Incurred $5,250 in acupuncture treatment and sought $6,000 in lost income.

Arbitrators’ Award – $4,857.21
Verdict for Defendant
While the jury verdicts may be a little intimidating to a plaintiff’s lawyer, they should also be educational. Plan accordingly. I would note that relatively few cases go to a jury verdict. The overwhelming majority are resolved prior to trial. Since 2005, 32,106 cases have been filed in Arbitration, 4,110 have been assigned to arbitration. Of that number, 2,248 awards have been made, the balance being settled. Of the awards, approximately 1,231 have been rejected, and of those, 613 have gone to trial.

1. Also see Article 13 of the Local Rules.
2. Note that a Rule 90(c) package does away with foundational requirements for certain evidence at the arbitration hearing, but is not applicable at trial.
3. See 735 ILCS 5/2-1005.
4. The first jury trial over which I presided in Ct Rm 2018 was a suit by a homeowner to recover damages to a room rented to a young woman. There was little, if any, to be learned from that trial.

Brian R. McKillip has been an Associate Judge for the 18th Judicial Circuit since 1999. He is currently assigned to the Law Division. Previously, he spent 4 years in the Traffic/Misdemeanor division and 11 years in the Domestic Relations division. He served as the Supervising Judge of Arbitration for 2 years. He received his JD Cum Laude from Loyola University School of Law in 1972

DCBA Brief