NEITHER LIMITED NOR SIMPLIFIED: A PROPOSAL FOR REFORM OF ILLINOIS SUPREME COURT RULE 222(B).

• Author: Smith, Michael S.
• Position: NOTE

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not in centivize procedural gamesmanship or increase the system's complexity. Regrettably, Illinois's "limited and simplified" discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new system for initiating and exiting limited and simplified discovery in Illinois. It also identifies lessons that other states can take from Illinois to improve their own discovery procedures. The proposed reforms would improve cost savings by broadening the Illinois scheme's applicability and increase transparency and fairness for all litigants.

TABLE OF CONTENTS INTRODUCTION I. OVERVIEW: LIMITED AND SIMPLIFIED DISCOVERY IN ILLINOIS A. Rule 222 Generally B. The Grady/Dovalina Split II. RULE 222(B) CREATES PERVERSE INCENTIVES AND PROCEDURAL TRAPS A. Appellate Splits Are Especially Problematic in Illinois B. Plaintiffs Are Disadvantaged by Rule 222(b) C. Defendants Are Disadvantaged by Rule 222(b) III. A POTENTIAL SOLUTION TO THE RULE 222(B) PROBLEM A. Voluntary "Opt-Ins" Are Ineffective B. Mandatory Processes Provide More Control C. A Proposal for Reform 1. A $75,000 Bright Line 2. A Mandatory Process with an Administrative Check 3. A "Good Cause" Opt-Out CONCLUSION INTRODUCTION

A simplified discovery system holds a great deal of promise. It would broaden access to courts, ease resolution of disputes, and expedite relief to injured parties. What it should not do is make an already byzantine legal system even more complex and create traps poised to ensnare the legally unsophisticated. Unfortunately, the simplified discovery system in Illinois, as set out by Illinois Supreme Court Rule 222, (1) is emblematic of what such systems should not do, rather than what they should.

In early August of 2004, Evelyn Grady had almost certainly never heard of Rule 222. (2) She had just been injured in a car accident, had ongoing medical expenses, and was temporarily disabled--with some of that disability expected to be permanent. (3) Ms. Grady came to the courthouse seeking compensation from the driver who had injured her. (4) From Ms. Grady's perspective, everything about her case must have appeared to be progressing normally. She filed a complaint seeking "an amount exceeding $15,000," and the case entered discovery. (5) The defendant took an evidence deposition. (6) And a little over two years after she first filed her complaint, her case went to a three-day trial. (7) Much to Ms. Grady's delight, the jury returned an award of almost $100,000, (8) far beyond what she had first hoped she might receive.

A month later, her award was cut in half. (9) The cause? A single line, buried in an Illinois Supreme Court Rule entitled "Limited and Simplified Discovery in Certain Cases" (10)--a rule the defendant did not even follow. (11) One more year and a costly appeal later, a rule ostensibly designed to avoid "expense, delays, and abuses" (12) had caused Ms. Grady all three. Both the trial and appellate court, with no procedural warning and no regard for the merits of Ms. Grady's case, interpreted a complaint seeking "an amount exceeding $15,000" (13) to be effectively equivalent to a complaint seeking "an amount not in excess of $50,000," (14) and consequently halved her recovery. (15)

The "Limited and Simplified" discovery rule in Illinois in practice is neither. Rule 222(b) reaches nearly all civil cases seeking monetary damages in the state. (16) The traps and perverse incentives created by conflicting judicial interpretations of some of the rule's provisions have stolen its simplicity as well. (17)

Commentators view Illinois as a trendsetter with respect to procedural discovery rules. (18) Historically, state discovery procedures largely tracked the Federal Rules of Civil Procedure. (19) In the past thirty years, however, many states have moved away from the federal rules and have begun to develop their own procedures. (20) Illinois's bifurcated system--and its unusual initiation provision (21)--is one item on the "smorgasbord" of procedural discovery initiatives that have emerged from widespread state experimentation. (22) But as a trendsetting state, problems with Illinois's simplified discovery system are instructive to states pursuing reforms to simplify procedures in their own systems. (23)

This Note examines the flaws underlying the current limited and simplified discovery scheme in Illinois and argues for reform. Part I provides a broad overview of Rule 222 and describes an interpretive split regarding its initiation provision. Part II describes how the initiation provision of Rule 222 creates uncertainty, perverse incentives, and procedural traps for plaintiffs and defendants alike. Part III examines expedited discovery schemes in several other states to propose specific reforms in Illinois and illustrate more broadly applicable lessons. Part III concludes that the current party-driven affidavit scheme in Illinois should be replaced with a sorting process that is mandatory, is judicially driven, and provides for good cause opt-outs similar to those in the expedited discovery process in Texas.

1. OVERVIEW: LIMITED AND SIMPLIFIED DISCOVERY IN ILLINOIS

   Adopted on August 1, 1985, Illinois Supreme Court Rule 222 sets out procedures for "Limited and Simplified Discovery in Certain Cases." (24) In 1995, the Illinois Supreme Court broadly reformed civil discovery procedures to avoid "expense[s], delays, and abuses." (25) As part of these reforms, Rule 222 was "completely rewritten." (26) The 1995 scheme, as amended, is the discovery system in effect in Illinois today. (27)

   This Part describes the current limited and simplified discovery scheme in Illinois. Section I.A explains the structure of Rule 222, highlighting its initiation provision. Section I.B identifies a split in Illinois Appellate Court authority regarding how to resolve cases in which a plaintiff never files a Rule 222(b) initiation affidavit.

   1. Rule 222 Generally

      Rule 222 applies broadly to civil cases involving monetary damages less than $50,000. (28) Certain limited categories of cases are exempted, such as cases seeking equitable relief and small claims cases. (29) But those exemptions only marginally limit the reach of Rule 222. At the time of the 1995 reforms, Rule 222 was estimated to apply to between eighty-five and ninety percent of Illinois civil cases (30)--meaning almost ninety percent of Illinois civil cases in 1995 sought damages less than $50,000.

      The Rule 222 process differs from the traditional Illinois civil discovery process in a few important respects. Deposition discovery is severely curtailed: barring "leave of court for good cause shown," a party may only take three-hour discovery depositions of named parties, treating physicians, and expert witnesses. (31) Evidentiary depositions are prohibited absent "exceptional circumstances." (32) Although traditional discovery depositions are also presumptively limited to three hours, outside Rule 222 there is no limit on how many discovery or evidentiary depositions a party may take. (33) Rule 222 also requires substantive initial disclosures upfront by all parties. (34) These initial disclosures resemble the initial disclosures required in federal cases. (35) Written discovery procedures under Rule 222 are substantively quite similar to traditional discovery process in Illinois, however. (36)

      The most problematic provision of Rule 222 is its initiation provision. This provision requires that "[a]ny civil action seeking money damages shall have attached to the initial pleading the party's affidavit that the total of money damages sought does or does not exceed $50,000." (37) Facially, this provision imposes an obligation on almost every civil plaintiff in Illinois seeking monetary damages. That is, an Illinois civil plaintiff, whether seeking $10,001 (38) or millions, must file a Rule 222(b) affidavit with her complaint estimating where her damages fall with respect to the $50,000 bright line. If the Rule 222(b) affidavit estimates damages at $50,000 or less, the case is governed by limited and simplified discovery procedures. (39) If the affidavit estimates damages greater than $50,000, the case falls under ordinary Illinois discovery procedures. (40)

      This bright line matters because Rule 222(b) has teeth. If a plaintiff s affidavit states she is seeking $50,000 or less, and she is awarded over $50,000, that award "shall be reduced posttrial to an amount not in excess of $50,000." (41) If a plaintiff later discovers the initial affidavit was incorrect, she may amend or supersede it, but only for "good cause" and "only if it is clear that no party will suffer any prejudice as a result." (42) The plaintiff may amend this affidavit at any point in the proceedings before trial. (43)

      But Rule 222(b) is silent on an important question: What happens when a plaintiffs case proceeds to trial without a Rule 222(b) affidavit having ever been filed?

   2. The Grady/Dovalina Split

      The Illinois Appellate Court has split on this question. In one instance, it capped the plaintiff s damages at $50,000 posttrial. (44) In another, it effectively read out Rule 222(b)'s affidavit requirement altogether. (45)

      The first published appellate decision to seriously grapple with a plaintiff s failure to file a Rule 222(b) affidavit was Grady v. Marchini, decided in the Fourth District. (46) Plaintiff Evelyn Grady was involved in a car accident and sought damages for lost earnings, pain and suffering, emotional distress...