Saying no issue "so galvanized" its members, the state's largest defense bar group wants the Cook County Circuit Court Law Division to drop a pilot program that forces defendants to disclose trial experts at the same time as plaintiffs.
The program, called "simultaneous disclosure," launched in September to cut the time and cost needed to leap pretrial hurdles. Case types include medical malpractice, construction injury, product liability, personal injury, wrongful death and other disputes.
The Illinois Association of Defense Trial Counsel (IDC) agrees with the program's goal but says the court can reach the same result through the traditional way of letting defendants reveal their experts after plaintiffs disclose and present the theory of the case.
The IDC issued an 18-page report this week that says it's "fair to say that in its history, no single issue has so put (the IDC) mission at risk."
The IDC report suggests a staggered timeline to complete expert discovery within 240 days.
The group recommends that plaintiffs disclose experts and take deposition within 30 days; defendants disclose experts within 60 days and take deposition within 30 days after that; plaintiffs disclose rebuttal experts within 30 days and take deposition within 30 days after that; and defendants disclose rebuttal experts within 30 days and take deposition within 30 days after that.
Shortly before the Law Division launched the program in September, the IDC opposed it. In December, the Illinois Supreme Court declined a request from defense lawyers to stop the program.
The program will run until June when Law Division judges will review it, consider attorney surveys and decide whether to continue it.
"We're still not at the point where you can evaluate what the effect of the program is," Law Division Presiding Judge William D. Maddux said. "It's designed to speed up the cases and save time."
Maddux said if lawyers properly handle the first phase of discovery involving parties directly linked to the case, the defendants should know a plaintiff's theory of liability. The American Bar Association says Law Division cases should run through the trial court within two years; in Cook County, it takes an average of about 33 months.
"If we could ever get some modernization and changes without a lot of turmoil, we could move on a little quicker. The old adage to me is 'Justice delayed is justice denied,'" Maddux said.
Expert disclosure begins after both sides finish deposing witnesses who are directly involved in the case — such as an injured plaintiff or accused doctor.
The IDC contends that the program forces defense lawyers to retain experts who may not be needed at trial. For example, the report says, a defendant facing a product-liability case doesn't know whether the plaintiff expert's theory addresses a warning, manufacturing or design defect.
The report also addresses a hypothetical legal malpractice case in which a land developer blames a business failure on a lawyer. Under the program, the defendant must present experts without knowing whether the plaintiff will rely on a real estate expert, forensic accountant, financial analyst or bankruptcy expert.
Compounding the concern, the IDC says defense experts typically find issues that plaintiffs overlook.
"If the defense discloses such opinions, it has the potential to raise a red flag to plaintiffs, thereby resulting in the expansion of opinions not originally contemplated by plaintiff," the report says. "This could result in a perception that the defense opened doors to assist the plaintiff in proving her case."
IDC Second Vice President David H. Levitt said he doesn't want to wait until the pilot ends to talk about concerns.
"There are parties in the pilot project right now over their objection whose rights are being affected right now," said Levitt, a partner at Hinshaw & Culbertson LLP. "The issues are the issues. Why not address them now? Our main thing is we want dialogue about this."
Addressing the IDC's suggested timeline of staggered disclosure, Levitt said the time could be cut because rebuttal experts are rarely used. He also said the notion that "defense lawyers know what experts they need from the beginning of the case is just wrong."
"I've been doing this for 32 years; I don't think it's ever happened once. There are lots of times in which I don't even hire an expert at all. So if I then have to hire them now and disclose them and guess which fields I need them in, I'm going to be incurring a lot of expense."
To read the IDC report, visit iadtc.org.