Keeping a Litigation Scorecard

By Maria Kantzavelos
Reprinted by permission from the Chicago Lawyer magazine

In his 17 years as editor of the Law Bulletin Publishing Co.’s Jury Verdict Reporter, a group of publications that track civil jury verdicts and negotiated settlements across Illinois, John L. Kirkton has heard some intriguing tidbits of conventional wisdom, perceptions and impressions about the civil litigation arena.

“Leonard Ring, one of the old-time lawyers who was a contemporary of Phil Corboy Sr., had a theory about closing arguments. That they had to be kept short because the jury that sat there and got sore sitting, listening to you, was not going to favor your client or you very much,” Kirkton said. “I think that was typical of lawyers at one time or another. That they had these theories that maybe didn’t completely prove out in fact, but maybe had some logical component that made them make sense.

Kirkton, a lawyer who became editor of the Jury Verdict Reporter in 1991, when the Law Bulletin Publishing Co. acquired the group — which dates back to 1959 — oversees an array of newsletters and indexes that report on various aspects of civil litigation across Illinois, mainly for an audience of trial lawyers looking for guidance in valuing their cases. Kirkton recently talked with Chicago Lawyer magazine — also a publication of the Law Bulletin Publishing Co. — about his observations of some of these perceptions or rules of thumb, and whether they hold up after crunching the numbers.

He also offered his take on a variety of issues and trends in civil jury verdicts and settlements. Here are some excerpts from our conversations, where Kirkton digs into a mountain of statistics to share his perspective on those topics, and more. Chicago Lawyer: Please discuss some of these “myths” you’ve heard of over the years, and tell us whether your statistics bear them out.

Myth #1: Plaintiff-friendly Cook v. Litigation graveyards of the collar counties

Kirkton: At one time, the attorneys believed that in order for a medical malpractice plaintiff to have a fighting chance at winning a substantial verdict, it had to be venued in Cook County. But, at least over the last five years in the data I’ve reviewed, that’s not the case.

One of the things I had done this past year was a review of medical negligence litigation in Illinois, comparing Cook County and non-Cook County, to see if there was any truth in that belief that you could not win a major medical malpractice verdict unless it was venued in Cook County.

In the study [“Medical Negligence Litigation in Illinois: Facts and Figures,” published in the Jury Verdict Reporter’s May 2008 e-newsletter, Illinois Litigation Highlights], comparing both Cook County and non-Cook County verdicts over the same period of time [September 2002 through August 2007], the plaintiffs prevailed in 32.4 percent of the [approximately 525] Cook County med mal trials during that five-year period.

For the non-Cook County med mal civil jury trials [approximately 200 trials from every Illinois county except Cook], 30.3 percent of the time, the plaintiff won.

There wasn’t that big of a discrepancy between the Cook County and non-Cook County outcomes over that five-year period.

Certainly, there’s going to be variations within the Illinois counties outside Cook.

DuPage County over the five-year period had a 20.5 percent plaintiff win rate; Kane County, 29.2 percent; Lake County, 32 percent. In Winnebago County we reported no plaintiff verdicts at all during that five-year period. On the high end, Will County, 44.4 percent of the time, plaintiffs won medical malpractice trials. DuPage has only had eight, million-dollar [or above] med mal verdicts in the last 20 years. Five of them have occurred in the last five years. You can win there — it’s not Death Valley.

It’s not easy, if only 20 percent of the time a plaintiff wins, but you can win there, and that’s probably one of the biggest misconceptions among the trial lawyers — that you cannot win there.

I looked over the last five years, both Cook versus non-Cook, at awards of $5 million or more. In Cook County, 6 percent of those med mal cases got an award of $5 million or more. In the non-Cook County cases, 5 percent of them got an award of $5 million or more. Surprisingly close.

I think that’s an interesting stat. Because even if the plaintiff win rate is reasonably close, then there’s probably somebody out there who’s going to say, ‘Yeah, but the jurors outside Cook County give them 150 bucks and say, be on your way.’ But the fact is, I think that statistic shows that there are large awards being given outside of Cook County.

Myth #2: Madison County as ‘Judicial Hellhole’

Kirkton: This came up in 2004, 2005, during the height of the tort reform movement. The idea, at least what was stated, was that Madison County had runaway juries and frivolous verdicts that were sending doctors scurrying out of the state and leaving patients unattended because there were no doctors left for fear of liability.

That’s a very persuasive argument — if you’re in a rural area, and your one doctor goes, you’re in trouble. The argument was that Madison County was just driving doctors away with their awards. At least in terms of medical malpractice, I don’t find any basis for treating Madison County as a Judicial Hellhole.

In the last 10 years, Madison County juries have given plaintiffs a 33 percent win rate in medical malpractice cases. That’s hardly extreme, when you look at Cook County at 32.4 percent, Will County at 44 percent, Lake County at 32 percent.

You have to go back to the year 2000 to find a plaintiff medical malpractice verdict in Madison County over $1 million. In the last 10 years, we’ve reported nine Madison County cases with awards of over 5 million bucks. None of those were medical malpractice. Most of them were asbestos-related, product liability actions.

You’ve got relatively small awards, infrequent big awards. I don’t see how it’s a hellhole. I suspect the facts were simply distorted, for either economic or political gain, rather than truly expressing the reality of what was going on down there. I would never call it a Judicial Hellhole — certainly not in the med mal area. There simply is no basis, looking at the med mal outcomes, either in the frequency or the size of the awards, to label them a hellhole.

Myth #3: The Christmas effect

Kirkton: This is one that I’m not sure is supported in reality, but I’ve heard about it forever, and that is that defense attorneys prefer not to schedule a civil trial in December out of concern that the holiday spirit will move the jurors to either find for the plaintiff when they wouldn’t otherwise, or perhaps would give a more generous award than they would otherwise. To try to put that together, I took December trials that were reported over the last four volume years and looked at plaintiff wins and defense wins. The plaintiff win rate in Cook County runs between 47 and 50 percent, typically, for all types of cases lumped together on an annual basis.

What I examined was the jury trials that concluded in December during each of the last four years. The plaintiff win rate for that group of cases was just over 44 percent. It was lower than the annual average that we report for all types of cases. So, it’s just the opposite. It’s a little lower win rate for the plaintiffs than it is when you look at the year as a whole.

I guess all it tells you, really, is that juries are going to try to do the right thing regardless of what the season is. They’re going to look at it and make a decision based upon the facts and not let whatever holiday is in front of them affect the outcome.

Myth #4: Sympathy for the plaintiff

Kirkton: There’s a similar belief that sympathy wins cases — the idea that somehow, if you have a horribly injured plaintiff, or somebody who is very appealing, that it’s going to change a loser case into a winning case. First off, logically, I don’t think there’s any defense attorney who’s going to sit on their hands if the plaintiff has not proven the crucial elements of liability. But I’ve heard that ‘it was a very sympathetic plaintiff,’ and that’s why the jury found this way or that way. Logically, I could see how a sympathetic plaintiff might impact the amount of the award after liability has been established. But every week you can pick up the Jury Verdict Reporter newsletter and you’ll read a case that involves somebody with horrible injuries or terrible circumstances that the jury gave no money to, and that’s because the liability wasn’t established. [A recent Jury Verdict Reporter] issue had somebody who was undergoing fertility treatments, a 27- or 28-year-old woman. She had a very rare complication, a near-death experience. She was comatose, and had to learn how to talk and walk again after the coma. The fact was, it was a very rare complication and the doctors did what they believed they should’ve done. Here, you had a very sympathetic plaintiff. What’s more sympathetic than trying to start a family? Yet, the jury gave her nothing.

Chicago Lawyer: Elaborating on the belief that sympathy wins cases, what are your statistics on the plaintiff or defense prevailing in cases of catastrophic injury involving a child?

Kirkton: Looking at birth injury to child [cases] in the last 10 years, we reported 45 Cook County verdicts. I limited it to situations of brain damage or death — certainly catastrophic circumstances. Out of those 45 cases, there were 11 in which the plaintiffs received an award, which is a little bit less than 25 percent. So, even though these are certainly catastrophic situations involving a baby, the plaintiffs certainly didn’t do as well as the overall med mal outcome. It was less than the 32.4 percent [win rate] that showed up for [all medical malpractice verdicts reported in] Cook County.

I would think that if there’s going to be a sympathy factor involved, a birth injury to a child — whether they’re either deceased or are going to be living with catastrophic injuries for the rest of their lives— I would think that sympathy would apply. But the plaintiffs won less than 25 percent of the time in those cases here in Cook County, over the last 10 years. Just looking at the opposite, as opposed to a 25 percent plaintiff win rate in those cases, it’s three out of four times the defense wins. I don’t understand how there’s any sympathy involved in a three out of four defense win rate in those cases.

Chicago Lawyer: What trends have you seen in amounts of verdicts and settlements? Kirkton: Verdicts are going to continue to go up, if for no reason other than the cost of medical care. You can’t litigate personal injury matters in a vacuum without noticing that the cost of medical care goes up 10, 12, 15 percent a year. You’re going to have that major component with any personal injury case escalate. It’s the same thing with the lost wages component. Salaries escalate. Those things are going to increase, in any event.

Probably one of the more interesting situations I encountered was when I actually sat on a personal injury jury at the Daley Center. It was an auto accident. I was on the inside of actually being in a jury room and seeing how the jurors think and what they do. I saw firsthand, I think, some of the effects of tort reform. I think the average juror now sees very clearly that what they do impacts their insurance costs and the insurance costs for everybody else.

I think the juries have become more tight-fisted with, particularly, the small cases. I think there’s always going to be the big verdicts out there. But I think it’s tougher to win the smaller cases — the fender-benders, the soft-tissue injuries. I think it’s tougher to do that now than it used to be. I think it’s because the message of tort reform has been heard: That there’s all these frivolous lawsuits out there and people are getting jackpot awards and, true or not, I think that message has been pounded into people for years.

Every [Jury Verdict Reporter] issue we do, I read. Some of them I write; but all of them I read. And it’s just my impression that there are more defense verdicts in those small cases, and there’s also a feeling that the awards are smaller. I’ve done no research on it that’s going to tell me that, but that’s my perception of what’s going on.

Kirkton discussed a surprising conclusion about verdicts in small cases in his tracking of data collected over the years in the Monthly Cook County Arbitration Reporter, which summarizes small-injury Cook County civil cases tried after a mandatory arbitration award was rejected.

Kirkton: Historically, the arbitrators are much more generous than the juries. Since [the mandatory arbitration program’s] inception in 1991 we have reported many thousands of these cases, and the juries are far stingier than the arbitrators are.

But, more interestingly, over the last few years, what we’ve seen is more of these cases come back with defense verdicts than in years past. The mandatory arbitration program was put in place to unclog the courts so that you wouldn’t necessarily need a jury to hear small-injury situations. The court selects the cases that are directed into the arbitration program. They start off by going to an arbitrator who rules one way or another.

For payment of a minimal fee, either the plaintiff or defense can reject the arbitration award and go to trial. But at least our statistics have told us that over the years, if the plaintiff gets a reasonable award from the arbitrator, they better take it and hope that the defense doesn’t reject it, because the juries who hear the case afterwards are more likely than not going to give them less money than they got from the arbitrator. Chicago Lawyer: Are there any particular causes of action that are becoming more common?

Kirkton: I’m seeing more employment discrimination cases. I think they’ve been steadily increasing within the last four or five years. Whether it’s racialbased or sex-based, or pregnancy-based or national origin-based, I’m seeing more of those cases than I have in the past.

Chicago Lawyer: What, if any, effect has the tort reform campaign had on jury verdicts?

Kirkton: I don’t know if it’s tort reform-related, but I think an awful lot of the medical malpractice cases that actually go to trial have no offer on the table. If you look at that summary I did last fall [“Medical Negligence Litigation in Illinois: Facts and Figures”], we talk about hundreds of cases. How many of them had a substantial offer when the case went to trial? Very few of them.

Many of those cases were tried with no offer from the defense available for them to accept. Whether that’s directly a result of tort reform, whether that’s a result of a change in insurance company philosophy — I don’t know. But it’s very noticeable that in many of those medical malpractice cases, they’re not offering to settle.

• Kirkton elaborated on his findings regarding trends in defense offers to settle. Kirkton: The defense is very willing to try cases and with good reason, because they can win two out of three of them in the medical malpractice arena. We looked at the settlement offers that were on the table at the time these cases went to trial. Over the five years that we reviewed, defendants had an offer on the table at the time the verdict was returned in only 27 percent of the [Cook County] cases. And most of those offers would probably be characterized as de minimis.

Of the more than 500 Cook County medical malpractice trials that were included in that analysis, only 43 reported an offer of $500,000 or more. Of the 140 cases in which an offer to settle was reported, only six of those cases resulted in a plaintiff verdict that was lower than the defense offer. That’s telling you that there’s not a whole lot of offers to be had and that, if you get a plaintiff verdict, the offer is probably not going to be higher than what you can win at trial. They’re not overwhelming you with generosity.

When you look at the non-Cook County cases, it’s pretty interesting as well. Over that same five-year period, the defendants had an offer on the table when the verdict was returned in only about 18 percent of the cases. Of more than 200 med mal trials outside Cook County, only nine of those had an offer of $500,000 or more. And of the 40 or so cases where there was an offer to settle, that was reported to us, only one resulted in a plaintiff verdict that was lower than the defense offer.

So, again, even in the situations where the defense is making an offer, it’s not a big offer.

Chicago Lawyer: Which type of case tends to yield the largest verdict or settlement amount?

Kirkton: I think a lot of people believe that the medical malpractice area would result in the biggest awards, but certainly the biggest awards that we’ve seen come through are business-related cases.

We had a dispute a few years ago over the use of non-original equipment auto parts in the repair of crashed cars. That resulted in a verdict in Downstate Illinois that was over $1 billion. It was since overturned on appeal.

Similarly, a year or two ago there was an enormous verdict relating to a refinery fire out in Lemont. It was almost $400 million. But, again, it was relating to the prior owner’s failure to maintain the facility, and the damage that resulted from it.

I believe that in the business area, the jury trials are probably less frequent than in a lot of the cases, like automobile cases, but I think the outcomes are, on the whole, larger than in the other areas we report. There are multi million-dollar transactions at stake, intellectual property rights. Business cases can have enormous financial stakes and outcomes. I think people may tend to believe that an injured party is going to generate the biggest number, but I think more often than not it’s the business-related transaction.

Chicago Lawyer: What’s the most surprising verdict you’ve ever seen?

Kirkton: I had talked with the lawyer that represented the plaintiff in this case [Jimmy Jackson v. Allstar Amusement Co., Astro Amusement Co., 93L-11284]. Jimmy [the plaintiff] worked for a company that was assembling a carnival for the Back of the Yards Fair. He was standing on top of a roller coaster they were assembling and he got knocked off, fell and broke his wrist.

The wrist healed, but he never went back to carnival work. He got himself a job as an over-the-road trucker. He was driving 80,000-pound rigs and making more money than he ever had in his life, but he sued the Back of the Yards people under the Structural Work Act for failure to provide a safe working place for him.

He got to trial and the astute defense attorney had him on the stand and said, “Jimmy, your wrist is healed, you’re driving a truck and you’re making more money than you ever have in your life. What could you do before that you can’t do now?” As Jimmy’s counsel related it to me, Jimmy sat there on the stand and licks his lips through the gaps in his teeth and finally responded, “I can’t punch no more. I used to fight all the time—now I have to run.”

His counsel sees his case getting weaker and weaker by the minute. Jimmy doesn’t know when to shut up: “And, this pain in my wrist, every morning I have to get up and take six Tylenol and swig them down with a beer to activate them.”

So now the jury’s got this image of a guy flying down the highway, with an 80,000-pound rig, high on Tylenol and beer. His case gets weaker and weaker by the minute.

But much to my surprise, and everyone involved, the jury awarded Jimmy over $170,000. And his only claimed disability was the inability to punch. That, to me, is probably the most surprising outcome I’ve seen in 17 years.