Illinois Personal Injury Litigation study

Will, Kane, and Madison County Courts 1
The Impact of Partisanship, Caseload, and Settlement in Personal Injury Litigation
Heather Kazmark, M.A.
Northern Illinois University
Department of Political Science
2014

Introduction
Legal systems are inherently political. Evaluating the extent to which politics comes to
the forefront of judicial institutions has been at the core of public law and courts scholarship for
decades. While much of the literature has focused on supreme courts, comparative approaches to
studying courts at all levels have been gaining traction in the scholarly community. Even so,
courts at the trial level have been grossly ignored in public law and courts scholarship.1 This
research attempt is made, in part, with the intent of pointing out the importance of analyzing trial
courts at the county level.
Indeed, many scholars hold the viewpoint that environmental and situational factors
matter when analyzing political phenomena. Even though courts are ideally thought of as non-
political institutions, judicial research undertakings have produced empirical findings which
strongly suggest that American courts do not operate in a vacuum. According to this widely held
theory, particular locales in which courts are situated should at least to some degree effect and
direct particular institutional norms, trends in caseloads, and the workplace environment in the
courts as a whole. Therefore, the contexts that county circuit courts function within should differ
in comparison to one another. Absent a contextual understanding of the courts’ political
environments, we may underestimate the extent to which political influences guide civil caseload
dynamics from merely analyzing quantitative data. The necessity of using the comparative
approach for understanding caseload dynamics in lower courts is due to the fact that higher
courts’ caseload dynamics are insufficient for comparison.
The differences between lower and higher courts provides for further scholarly research.
Overtime, studying courts in isolation has become the less preferred epistemology in political
1
Martin Shapiro, “Political Jurisprudence,” Kentucky Law Journal 52 (1964): 320. Shapiro states that because trial courts have a
minimal role in the policy-making process they are least explored empirically. Additionally, Shapiro mentions that trial courts are
the “most difficult to study.”

science. Clearly, comparative approaches have been widely used in courts research for exploring
judicial institutional development. Therefore, a more descriptive, historical, and interpretative
account has been necessary in order to isolate variables of particular inquiry, and to make causal
claims more valid. Causal mechanisms are discovered and attributed as the cause for particular
sets of outcomes in comparative research approaches. Discoveries on particular phenomenon
would otherwise not be possible through single case study approaches, since hypotheses from
isolated case studies cannot provide generalizability. For these reasons, the comparative
approach is beneficial to the advancement of law and courts research, because studying a judicial
system in isolation provides little insight on how other institutions have, and should, operate or
develop.
Indeed all politics are local, and because of this notion each county court should be
thought of as having its own unique political environment which has the potential to affect
caseload dynamics in a particular locale. The present study analyzes Will, Kane, and Madison
County courts’ civil litigation patterns and political partisanship. The comparative approach to
this research attempt aims to shed light on the extent to which the courts’ internal partisanship
makeup affects caseload dynamics in civil litigation involving personal injury lawsuits.
Theories
Dolbeare asserts that judicial decisions reflect dominant elements in the community and
the causes for these decisions may not be possible to distinguish through the effects seen.2
Similarly, Dubois suggests that cultural norms may affect the decisions judges make on the
bench.3 Likewise, Engel contends that social relationships in a community affect the amount and
2
Kenneth M. Dolbeare, Trial Courts in Urban Politics: State Court Policy Impact and Functions in a Local Political System
(Huntington, New York: Robert E. Krieger Publishing Company, 1967). The study conducted by Dolbeare was done on a single
urban county over a sixteen year period focusing on litigation and policy involving zoning in particular.
3
Philip L. Dubois, From Ballot to Bench: Judicial Elections and the Quest for Accountability (Austin and London: University of
Texas Press, 1980), 153.

type of tort claims and processing.4 Indeed, the conditions of local politics “affect the input of
cases, the relative power and influence of actors…determine the nomination and election of
judges, and the distribution of power and intensity of conflict in local politics may result in
external influences on the judges’ decisions, so that the local political system affects the court
structure powerfully.”5 Despite these contextual influences among others, the fact remains that
judges in Illinois are initially selected through a partisan process which gives them “a
prospective incentive to demonstrate their loyalty and allegiance to the party while on the bench
in order to secure a future renomination and re-election.”6
Depending on the type of civil litigation, it is reasonable to believe that lawyers will find
a county circuit court which has a history of favorable outcomes for their plaintiff’s type of case.
In a single case study conducted by Engel, findings showed “the likelihood of prodefendant
outcomes in cases that went to trial contributed to some of the most distinctive characteristics of
tort law” in the Illinois rural county under inquiry; because the court was “strongly sympathetic
to defendants in tort cases and were very unlikely to return a verdict satisfactory to plaintiff.”7
According to Engel, this discouraged personal injury filings in the Illinois county and even
settlement negotiations amongst attorneys.
Undoubtedly, party affiliation is reflective in the attitudes and values judges hold. Judges
who are known to decide civil cases with a ‘pro-business’ flare are said to hold Republican
ideologies, and favor defendant. On the other hand, judges who are known to decide cases more
favorable to Plaintiffs in civil litigation are thought of as holding Democratic ideologies. One
4
David M. Engel, “Cases Conflict, and Accommodation: Patterns of Legal Interaction in an American Community;” American
Bar Foundation Research Journal, 8.4 (Autumn 1983): 872. Engel compared the types of litigants in tort claims in relation to one
another on an individual-level basis (i.e. business vs. individual; individual vs. individual) to support his perspectiveon social
impacts. The cases coded in the present study for Will, Kane and Madison counties were not coded using individual-level data
(See section on Method and Data); future research would be needed to uncover the social relationships between litigants in the
three counties.
5
Dolbeare, 12.
6
Dubois, 152.
7
Engel, 872.

widely held theory in Public Law scholarship holds ideological viewpoints of judges as being
unavoidable, and particularly in cases where there is some ambiguity in the law. If this widely
held theory is true, party identification of judges could reflect tort outcomes in county courts in
the case of personal injury litigation.
Furthermore, Dubois theorizes that with each election the partisanship of the judge is
continually reinforced because they are “resocialized in the ideology and values of the party.”8
Therefore, when considering why judges decide cases more or less favorable to Plaintiff or
Defendant, both external and internal contexts matter, in addition to ideological viewpoints held
by the judges individually. Indeed, circuit court judges have professional and political affiliations
that potentially impact decision making. Undoubtedly, these affiliations offer insight on their
differing ideologies, as well as their differing personal and professional experiences. A goal of
this research is to shed light on to what extent the partisanship of judges’ matter when it comes to
civil caseloads and settlement in personal injury litigation.
Structure of the Illinois County Courts
Illinois county courts comprise of approximately 520 circuit judges and 400 associate
judges. As a unified judicial system, circuit courts have jurisdiction over all types of litigation. In
Illinois, circuit judges on the bench in county courts are first elected in partisan elections
followed by retention elections every six years thereafter. Associate judges are appointed by
circuit court judges for a term of four years. While associate judges have limited jurisdiction over
cases in their county courts, this does not hold the same for circuit judges.9 Since circuit judges
differ from associate judges because they are elected, appoint their associate judges, and have
unlimited jurisdiction, these judges and the civil litigation in their respective courts is the
8
Dubois, 152.
9
James D. Nowlan, Samuel K. Grove and Richard J. Winkel Jr., Illinois Politics a Citizen’s Guide (Urbana and Chicago:
University of Illinois Press, 2010), 141.

primary focus of this research.
An Illinois Supreme Court order set requirements for mandatory arbitration in 16
counties within the state. Mandatory arbitration, a non-binding form of alternative dispute
resolution, aims to settle civil disputes prior to trial and this in turn cuts down on court times,
length to resolution, and fees incurred by the parties. In sum, the purpose of arbitration is to
make courts more efficient. Illinois counties under mandatory arbitration are ordered to
implement an arbitration program for all civil disputes seeking money damages greater than
$10,000 and less than $50,000. Cases that fall within these monetary boundaries are litigated in
front of a panel of three attorneys or arbitrators that are largely made up of bar attorneys from
their respective counties. The parties present their cases in a similar fashion to that in a trial.
After cases are presented to the arbitration panel, the arbitrators deliberate on the arguments and
make a determination the same day called an “award”. The parties to the case are then given
thirty days to decide whether to accept the arbitrator’s award or go to trial before a judge.10
Literature Review
Since context matters, a descriptive analysis of a court’s surroundings is necessary in
order to interpret quantitative data on court caseload dynamics. Daniels analyzed four Illinois
county courts to compare their differences in caseload patterns.11 The case study explored the
impact of local environment on legal proceedings in the four Illinois counties under inquiry.
Daniels’ prediction was that the differing institutional constraints and broader socio-economic
environments of the counties had a direct correlation with their caseload dynamics. Daniels
claimed changes in the counties’ environments over time attributed to the patterns of variation in
10
Any party who is dissatisfied with the award given by the arbitrators can pay arejection fee of $200 with the Clerk of the
Circuit Court to go to trial as if arbitration had never occurred.
11
Stephen Daniels, “Caseload Dynamics and theNature of Change: The Civil Business of Trial Courts in Four Illinois Counties,”
Law & Society Review, Longitudinal Studies of Trial Courts, 24. 2 (1990): 299-320.

civil caseloads.12 Since each county court operates in different locales, there will be “diversity in
patterns of change in caseload dynamics among different sites;”13 because courts operate “within
different sets of constraints and because of the effects of local environments.”14 Therefore,
fluctuations in civil caseloads among the county courts can be viewed in light of their particular
situational circumstances. While Daniels did not analyze personal injury litigation caseloads, or
the impact of partisanship, this research expects to build upon existing theories on why context
matters when it comes to civil litigation. These aforementioned contentions have led to this
present comparative work analyzing the impact of partisanship on three Illinois county courts.
One of the major types of civil cases that circuit courts handle is personal injury cases. In
fact, “personal injury cases constitute the largest part of the field called tort.”15 Most personal
injury lawsuits are a result of automobile accidents. In fact, “more than 90 percent of personal
injury cases are brought by individuals;”16 who are seeking recovery from other individuals or
businesses due to their purported negligence, or willful/wanton disregard for safety.
Baum states, “Whatever we conclude about the propensity of Americans to litigate, a
great many lawsuits are actually filed in court.”17 The filing of the suit itself can foster early
negotiations and settlement. Lawyers want to give off the impression that they are serious about
the claim of their injured plaintiff; this is one reason personal injury lawsuits are filed before
settlements occur. In fact, the greater majority of civil cases often do reach a settlement before
going to trial.18
Even though judges can play an active role in encouraging settlement early on in the
12
Daniels, 302. Daniels used two civil caseload types in his analysis; contract and property. Daniels suspected that thetwo types
of caseloads would be affected differently in each of the four Illinois counties due to differing long-term environmental factors in
each of the counties.
13
Daniels, 300.
14
Ibid., 320.
15
Lawrence Baum, American Courts: Process and Policy, Sixth Edition (Boston:Houghton Mufflin Company, 2008), 202.
16
Ibid, 225.
17
Ibid., 224.
18
Ibid.

litigation process, cases that do not reach settlement may go to “full-scale trials,” heard before a
judge or jury.19 Therefore, the failure to reach settlement contributes to circuit court backlogs and
lower settlement rates. Because one challenge to circuit courts is their backlogs, “this suggests
that the delay in the court system decreases the rapidity of settlement.”20 Indeed, there are social
costs to delays in settlement of legal disputes. Delays in settlement of civil disputes have plagued
our circuit courts for some time. While some reforms have been implemented to address the
problems, the fact remains that plaintiffs’ decisions to litigate, and refusals to take settlements,
have increased delays in civil courts. Furthermore, this has also negatively affected the courts’
ability to resolve disputes and remove cases from their dockets.
Scholars concerned with tort reform have alluded to the causes of delays in settlement.
Kessler addresses the problems associated with delays in the resolution of civil disputes.21
Exploring the extent to which institutions affect delay in settlement by analyzing the timing in
which settlements occurred in automobile bodily injury claims;22 findings from the study led to
two important conclusions. Kessler’s analysis shows, “delay in trial courts increases delay in
settlement,” and “state tort laws designed to reduce delay in settlement do not work as
intended.”23
A study done by Nagel on state and federal Supreme Court decisions involving several
different issue types provides support for the impact of partisanship on personal injury
19
Ibid., 225-26.
20
Daniel Kessler, “InstitutionalCauses of Delay in the Settlement of Legal Disputes, “Journalof Law, Economics, &
Organization, Vol.12, No.2 (Oct. 1996): 432-460.
21
Ibid., 448.
22
Kessler draws his data from the year 1987, when 24 states implemented theuse of “pre-judgment interest” in attempt to
discourage delays in settlement. The “pre-judgment interest” imposes burden on the defendant to pay interest on damages starting
from when the accident occurred until the time of judgment. This “discouragement reform” attempts to increase speed to
settlement in order to decrease delays in adjudication.
23
Kessler, 433.

litigation.24 Two of the areas of interest included differences between Democratic and
Republican decisions on motor vehicle personal injury cases, and employee workplace injury
cases. Findings of Nagel showed that Democratic judges favored Plaintiff cases in motor vehicle
personal injury cases significantly more than the average, and more often than Republican judges
in particular. Additionally, Nagel found that Democratic judges decided more in favor with
employees (Plaintiff) in workplace personal injury cases; and Illinois was among the states with
the highest decision score for Democratic judges in favor of employee plaintiff.25
Examining trends in civil caseloads can provide scholars with insight on “litigation
explosion”.26 For instance, court decisions made in the 1970s and 1980s on asbestos class actions
led litigation from “a steady stream to a flood.”27 Clearly, adjudication of past class action
settlements make it “impossible to decide whether mass tort settlement class actions are a good
idea without first clarifying the roles and ethical demands that lawyers and judges in these broad-
sweeping social controversies must meet.”28 Class action lawsuits in civil litigation have
dominated calls for tort reform because they have been proven to clout courts dockets
historically, and this has impeded the courts ability to dispose of cases in an efficient manner.
While many calls for reform have pointed to the problems class actions impose, and have
suggested solutions, still reforms have not occurred. Given this, personal injury litigation
involving asbestos class action lawsuits and their potential for settlement will be one particular
focus in this research effort.
A landmark class action lawsuit in 1995, Ahearn v. Fibreboard, is a prime example of the
24
Stuart S. Nagel, “Political Party Affiliation and Judges’ Decisions,” American Political Science Review 55 (December 1961):
843-50.
25
Ibid., 846.
26
Baum, 222.
27
Jeb Barnes, “Rethinking the Landscape of Tort Reform: Legislative Interia and Court-Based Tort Reform in the Case of
Asbestos,”The Justice System Journal, Vol. 28, No. 2 (2007):162.
28
J. Tidmarsh, & Federal Judicial Center. “Mass tort settlement class actions: Five case studies,” (Washington, D.C: Federal
Judicial Center, 1998): 71.

complexities of asbestos class action litigation. Much skepticism has been directed towards the
court’s decision on the settlement in Ahearn because restrictive recovery terms found in other
class actions similar to Ahearn were not included in the settlement. One result was that
Fibreboard paid fewer than all of its assets into the settlement, and instead, the burden of the
settlement was on Fibreboard’s insurance company.29 The settlement was in the form of a trust
which guaranteed recovery to present claimants, and a substantive recovery to claimants of the
near future; however this left room for uncertainty of recovery for claimants found deserving in
the far future.30 Overall, fairness of class action litigation is subject to question due to unequal
monetary recoveries for claimants sustaining similar injuries.
The settlement in Ahearn was a “limited class action settlement” which allowed the
defendant to reach a resolution on all the present and future claims made by parties, so to
“continue in business without the mass tort cloud hanging over it.”31 Questions have been posed
regarding the legitimacy of a limited class action fund for settlement. According to Gibson, the
Supreme Court attempted to address the use of this device for settlement in mass class actions.
While no tort reform came from the ruling, the Court did state that “a fund and plan purporting to
liquidate actual and potential tort claims is subject to question.”32 The overall argument in favor
of these settlements is that they allow a defendant's business to remain solvent and to prevent
bankruptcy; which is thought to not adversely affect the economy. Gibson attests limited class
action settlements are a prime example for lawmakers to consider when debating tort reform.
According to Tidmarsh, given the adjudication of other class actions most similar to
29
Ibid., 74.
30
Ibid., 72.
31
Elizabeth Gibson, Case studies of mass tort limited fund class action settlements & bankruptcy reorganizations (Washington,
DC: Federal Judicial Center, 2000), 8.
32
Ibid. See Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

Ahearn, the judicial decision was “surprising, and somewhat troubling.”33 While the Court
applied some standards in the settlement according to common law, it also included a fair
amount of judicial discretion. In this way, ‘new legal rights’ were written under the appearance
of the law.34 Overall, Ahearn was seen as judges protecting private interests over claimants’ right
to settlement. Indeed, mass tort class action suits such as Ahearn pose ethical concerns about the
roles of lawyers and judges.35
Congress attempted to take action in establishing a national asbestos claim resolution
system after the U.S. Supreme Court urged them to draft tort reform legislation following
Ahearn. The Fairness in Asbestos Injury Resolution Act (FAIR Act) proposed to replace tort
litigation for asbestos injury victims with an established trust fund of $140 billion that would be
distributed to the victims based on proven extent of injury.36 Partisan disagreement on the bill led
to its failure because, “Liberals argued that the bill was underfunded and overly restrictive and
that it tilted toward big business” whereas, “Conservatives warned that the trust would grow and
become a permanent fixture in the federal bureaucracy.”37 Surely, “Disagreement about tort
reform largely follows partisan and ideological lines.”38 Given this, civil litigation reform
concerning asbestos class actions has therefore not succeeded due to differing party ideologies in
Congress.39 Nevertheless, Barnes poses question as to why policy designed to increase
33
Tidmarsh, 73.
34
Dworkin (1977).
35
See Tidmarsh, 66. In Ahearn v. Fibreboard, attorney fees were not to exceed 3%, and were to be paid by theDefendant’s
insurer, subject to thecourts approval. Counsel provided to claimants before theterms were set in the settlement were to receive
no more that 25% of recovery in legal fees (net of costs); in reality this was a cap of $38 million to theattorneys.
36
Barnes (2007), 157.
37
Ibid., 157. Also, See Richard A. Nagareda, Mass Torts in a World of Settlement (Chicago and London: TheUniversity of
Chicago Press, 2007), Chapter VI, 106.
38
Baum, 223.
39
Nagareda, 106-107. The Fairness in Asbestos Injury Resolution (FAIR) of 2003 (Senate Bill 1125); of 2004 (SB 2290) and of
2005 (SB 852) all failed which would have created a new Office of Asbestos DiseaseCompensation within the Department of
Labor and the establishment of a national asbestos Trust Fund. Conservatives feared that public funding would have to backup
deficiencies in themonetary allocation and potentialsettlement terms as laid out in the proposed legislation, and Democrats
feared unfair settlement recoveries for Plaintiff. Also, See Lester Brickman, “An Analysis of the Financial Impact of S.852: The
Fairness in Asbestos Injury Resolution Act of 2005,” Cardozo Law Review, 27.2. xv.
<http://www.aei.org/files/2006/01/19/20060123_BrickmanImpactofS852.pdf>

“efficiency” in asbestos litigation has not passed with bi-partisan support, “because there are no
obvious ideological divisions over making policies and institutions run more smoothly.”40 Given
no bi-partisan legislation has been enacted, courts have been forced to take responsibility through
implementing “court-based tort reforms” for procedure and payment on recoveries in asbestos
litigation, as well as for other types of civil litigation. Barnes asserts that judicial reforms in the
case of asbestos have now prevented further congressional action and reinforced political
alignments.41
Overall, tort reform debates in the case of mass tort asbestos litigation have occurred due
to concerns over the fairness of the outcomes claimants receive. Generally, mass tort lawsuits
“arise at times when no one can know the ultimate fate of only some of the exposed persons:
those who, by sheer chance, happen to have become impaired earlier rather than late.”42 In class
action settlements involving personal injury, the defendants who are liable must allocate
resources to both present and future claimants. This resource allocation has posed tremendous
controversy because “generous compensation terms for early claimants threaten to produce
inequitable treatment for later ones who are identical, except for the fortuity of when their
impairments happen to emerge.”43 While settlements may be viewed as a more efficient and
effective method to diminish court backlogs, equal treatment under the law and the Rule of Law
are subject to question when it comes to class action settlements.
Barnes proclaims, “The rise of tort litigation is a narrow path, which is easy to turn down
but offers few convenient exits, much less places to turn around.”44 Contributing to the
exploration of the phenomena, Burke categorizes three types of anti-litigation reforms used by
40
Jeb Barnes, Dust-Up: Asbestos Litigation and the Failure of CommonsensePolicy Reform (Washington D.C.: Georgetown
University Press, 2011), 7.
41
Barnes (2011).
42
Nagareda, xv.
43
Ibid.
44
Barnes (2007), 161.

courts: replacement, discouragement, and management reforms.45 Replacement reforms pose the
greatest political obstacles because they seek to alter the underlying structures of the system.
Additionally, tension between political parties is caused by discouragement reforms. An example
of a discouragement reform is the court’s practice of narrowly interpreting the law, which tends
to limit defendant’s exposure to litigation and in turn places increased costs on plaintiffs.46 As a
result, discouragement reforms have caused partisan divides and “tend to pit plaintiff groups,
trial lawyers, and their allies in the Democratic Party against defendant groups, political
conservatives, and their allies in the Republican Party.”47 Management reforms cause less
partisan divides because they do not favor either party, as they aim to reduce costs to both sides,
and to make the administrative costs of litigation more proportional.48 Indeed, the Illinois high
court’s decision for mandatory arbitration, as previously explained, was an attempt at civil-
litigation management reform. However, Thornburg proclaims, “Procedural shortcomings of
arbitration relative to litigation are especially damaging to personal injury claimants,” and claims
mandatory arbitration “raises additional and more serious concerns.”49 Moreover, although
arbitrators are directed to be impartial, it is possible that their decisions may be influenced by
their ideologies. Overall, court-based tort reforms have aimed to limit litigation and lessen
caseloads in order to provide the public with an adequate system in their pursuit for justice,
however this has caused ideological divides which have impeded their effectiveness.
Methods and Data
The three Illinois county circuit courts in the study were initially selected from the 18
45
Thomas Fredrick Burke, Lawyers, lawsuits, and legal rights the battle over litigation in American society (Berkeley:
University of California Press, 2002). As cited in Barnes, 159-60.
46
Barnes, 165.
47
Ibid., 159.
48
Ibid., 160.
49
Elizabeth G. Thornburg, “Contracting with Tortfeasors:Mandatory Arbitration Clauses and Personal Injury Claims,” Law and
Contemporary Problems, 67. 1 & 2 (2004): 255.

county courts which require mandatory arbitration for civil law cases seeking monetary
recoveries between $10,000 and $50,000 to serve as a control. Since all three counties in the
study should reap the benefits of lightened caseloads which arbitration is intended to provide,
this theoretically should put them on the same playing field when it comes to alternative forms of
handling potential cases seeking recoveries. Additionally, since mandatory arbitration does not
apply to civil cases seeking recovery of amounts over $50,000, by using data on the number of
civil case filings in the three county courts for 2012, and while controlling for population, we
should expect to gain insight on the differences in caseloads between the courts, and in
particular, regarding their personal injury litigation.
Data on the total civil law cases filed within the 18 counties under mandatory arbitration
were tallied.50 The individual county courts with the highest number of total civil law cases were
of particular interest.51 The county courts under mandatory arbitration that also had total civil
law case filings in the top one-third for 2012, regardless of population, were selected in the initial
sample: DuPage (5,820), Will (4,763), Lake (3,844), Madison (3,242), Kane (3,193), and St.
Clair (3,027). Early on in the sampling it was discovered that each county circuit clerk uses a
different system of record for their courts’ case archives. This inconsistency in record keeping
was problematic, because what information this research attempt needed to obtain for
methodological purposes was not available on all of the county circuit clerks’ websites. As a
result, in order to ensure greater validity, county courts were eliminated from the sample if
access to the variables being measured within the study were not obtainable.52
50
http://www.state.il.us/court/supremecourt/AnnualReport/2012/StatsSumm/Mandatory_Arb.pdf.
51
Cook County was eliminated from the sample despitethefact that it was a county under mandatory arbitration with thehighest
number of civil case filings (187,602) and highest civil filings per capita(35.89). Cook County was purposely eliminated from
the study, in part, because of thecounty’s population in comparison to theother Illinois counties (5,227,992). Even more so, the
partisanship of Cook County is known to be highly Democratic, as well as its judiciary and jurists, therefore it was excluded so
not to bias the sample.
52
The DuPage county court was thefirst to be eliminated due to insufficient and unobtainable archived data. The DuPage county
court had the most civil law cases filed in 2012 in number (5,820); however when controlling for DuPage County’s 2012

Data was collected on the circuit judges within each of the three county courts.53 Using
the Illinois State Board of Elections online database,54 the political party of each individual
circuit judge in each of the three counties was coded as Democrat or Republican. 55
Results from this original research attempt are predicted to show that courts which are
dominated by Republican judges will experience less civil caseloads in personal injury litigation.
Conversely, the Democratic dominated courts are predicted to experience more civil caseloads in
personal injury litigation. Kritzer claims, very few cases involving injury resolve in adjudication,
and that settlement negotiation is the preferred and predominate “routine” to which contingency
lawyers prescribe.56 Following from Kritzer’s conclusion, my prediction is that the three county
courts in this study will have a greater portion of their personal injury cases result in settlement
despite their partisan makeup.
population (927,987) this works out to be 6.27 cases filed per 1,000 in population which was not significantly over the average
calculated in the other counties. The Will county circuit court experienced the second largest civil law filings in 2012 (4,763);
with 6.98 cases filed per 1,000 in population (682, 518). Datafor measuring the variables was available for Will. Lake county
court experienced the third highest number of filings in civil law cases for 2012 (3,844); this works out to be 5.47 cases filed per
1,000 in population (702,120). However, case archives on Lake county circuit clerk’s website did not provideadequate data to
measure the variables under inquiry. Civil law case filings for Madison were (3,242) in 2012; which averages out to be 12.10
cases filed per 1,000 in population (267,883). This average was found to be significantly higher than that of theother counties.
Civil law case filings for Kane were (3,193) in 2012; which averages out to be 6.11 cases filed per 1,000 in population (522,487).
Both Madison and Kane county circuit clerks’ website achieves were found to include the data needed.
53
The data collected on judges did not include the associate judges (associate judgeships are appointed officials). Only thehigher
ranked judges, the “circuit judges” (whom are elected through partisan and retention elections) were used in this part of the
analysis.
54
http://www.elections.il.gov/
55
Only one circuit judge’s partisanship was unidentifiable from the information available on theIllinois State Board of Elections’
website; in this case the voting history of the judge in partisan elections was used for coding partisanship.
56
Herbert M. Kritzer, Risks, Reputations, and Rewards (Stanford University Press: Stanford, California, 2004), 177. Kritzer, a
well-known scholar in Civil Litigation, based his conclusions on field work and surveys conducted in Wisconsin in the late 1990s
on the contingency fee lawyer. Findings showed that less than one percent of disputes went unsettled and were resolved through
traditional adjudication.

Table 1. Partisanship of Madison County Judges
David A Hylla D
Barbara Crowder D
James Hackett R
John Knight D
Andy Matoesian D
William Mudge D
Kyle Napp D
Dennis Ruth D
Richard Tognarelli D
Partisan Totals:
Republican: 1 12%
Democrat: 8 88%

Table 2. Partisanship of Will County Judges
Richard C. Schoenstedt R
J. Jeffrey Allen D
John C. Anderson D
Amy Bertani-Tomczak R
Paula A. Gomora D
Carmen Goodman D
Sarah F. Jones D
Gerald R. Kinney R
Robert P. Livas R
Susan T. O'Leary R
Barbara (Bobbi)
N.Petrungaro
R
Carla A. Policandriotes R
Michael J. Powers R
Raymond E. Rossi R
Daniel J. Rozak R
Richard J. Siegel R
Partisan Totals:
Republican: 11 64.7%
Democrat: 5 35.3%

Table 3. Partisanship of Kane County Judges
David Akemann R
John G. Dalton D
Joseph M. Grady R
F. Keith Brown R
James R. Murphy D
Susan Clancy Boles R
Karen Simpson R
James C. Hallock R
John A. Barsanti R
John A. Noverini D
Kevin T. Busch R
Thomas E.Mueller R
Partisan Totals:
Republican: 9 75%
Democrat: 3 25%

Table 4. 2012 Mandatory Arbitration program totals in the three county courts57
2012 Will Kane Madison
(1) Cases Pending/ Referred to Arbitration 2,475 1,761 1,219
(2) Pre-Hearing Dispositions (2) 1,683 1,157 794
(3) Arbitration Hearings 168 153 129
(4) Awards Accepted 34 153 48
(5) Post-Hearing Dispositions 62 32 27
(6) Awards Rejected 70 94 45
(7) Post-Rejection Dispositions 69 66 28
(8) Arbitration Cases Proceeding to Trial 11 2 16
(1) Number of cases filed and pending in arbitration program
(2) Number of cases disposed prior to an arbitration hearing
(3) Number of cases with an arbitration hearing
(4) Number of awards accepted
(5) Number of cases disposed after an arbitration hearing
(6) Number of arbitration awards rejected by a party
(7) Number of cases disposed after an award was rejected
(8) Number of cases that went to trial after an award was rejected
Table 5. Total Filings for the 2012 Calendar Year by County 58
2012 Will (12th Circuit) Kane (16th Circuit) Madison (3rd Circuit)
Law > $50,000* 1,017 670 2,102
Law = < $50,000** 3,746 2,523 1,140
Total Civil Cases 34,082 21,420 15,368
*Numerical figure reflects both Jury and Non-Jury cases, although Jury cases occurred less often
**Numerical figure reflects both Jury and Non-Jury cases, although Jury cases occurred less often; Will with only 6, Kane and Madison with only 1.
Table 6. Total End Pending for the 2012 Calendar Year by County59
2012 Will (12th Circuit) Kane (16th Circuit) Madison (3rd Circuit)
Mandatory Arbitration 230 1,864 324
Law > $50,000* 1,695 1,394 4,251
Law = < $50,000** 301 2,933 1,060
Total Civil Cases 26,402 25,823 17,460
*Numerical figure reflects both Jury and Non-Jury cases
**Numerical figure reflects both Jury and Non-Jury cases
57
http://www.state.il.us/court/supremecourt/AnnualReport/2012/StatsSumm/Mandatory_Arb.pdf
58
Annual Report of the Illinois Courts, Statistical Summary 2012. Complied and Published by the Illinois Supreme Court’s
Administrative Office for theIllinois Courts, Springfield, Illinois (2012). Special thanks given to Herbert M. Kritzer for
assistance in locating this summaryreport.
59
Ibid.

Table 7. 2012 Personal Injury Cases by County
Will Kane Madison
Personal Injury Cases Filed (2012)* 650 292 1936
Open Personal Injury** 232 107 1121
Closed Personal Injury 418 185 815
Closed & Settled 319 70 416
Closed & Dismissed With Prejudice (without settlement occurrence) 16 80 ***
Closed & Dismissed Without Prejudice 22 5 ***
Voluntary Dismissal/Dismissed for Want of Prosecution/Transfer Venue 47 24 ***
TotalClass Actions**** 83 36 819
Open Class Actions***** 30 14 470
Closed Class Actions 53 22 349
Class Actions Closed by Settlement 43 9 236
*“Individually” and“As Special Administrator of” forall countries were treatedas non-class actions since thepursuit for relievefrominjury
involvedonlyone individual. The numberof cases that were unable tobe codeddue to case informationbeingundeterminable: Will County=23;
Kane County= 6; Madison County=3
** All cases foundto be still open duringthe codingwere still pendingfor at least 16 months andnot more than 22months afterthe 2012year
enddate (December 31st
). Additionally,anycases that were reinstatedwere codedas “open”.
***It was difficult to determine in MadisonCounty, basedupon theirmethodof court record, whether some cases which were closedhadbeen
settled, dismissedwith prejudice, or dismissedwithout prejudice; although cases which hada record of havinga settlement appearedto be
recordedin a similar andconsistent manner; this provides more validitytothe findings for settlement occurrences in the county. Unlike theother
two counties, the way cases were dismissed or closedtherefore were not measuredin this study because it was most difficult todetermine
whether theyhadbeen adjudicatedor dismissedvoluntarilyby the Plaintiff.Therefore, thefindings forMadisonCountyonly reflect howmany
cases are presumed to have been closeddue to settlement.
**** “Total Class Actions” arereflectedin the total for “Personal Injury Cases Filed”; this serves as a breakdown. Class Actions in the present
study are all personal injurycases that involvedtwo ormore Plaintiffs.
** ***All cases foundto be still open duringthe codingwere pendingfor at least 16months andnot more than22months after the2012yearend
date (December 31st
).
Table 8. 2012 Madison County Asbestos Litigation Caseload and Settlement*
TotalAsbestos cases filed 1702
Asbestos cases filed (non-class) 966
Asbestos class actions filed 756
Asbestos class actions closed by settlement 234
*Data serves as a breakdown for totals in Table 7

Table 9. 2012 Case Filings Per Capita by Type
Will Kane Madison
Civil Filings per Capita 6.98 6.11 12.10
Personal Injury Filings per Capita .95 .55 7.22
Class Action Filings per Capita .12 .068 3.05
Asbestos Litigation Filings per Capita * * 6.35
*Will andKane County Circuit Clerks’ archiveddata didnot showany
indication ofasbestos filings
Table 10. Correlation between Partisanship and Personal Injury Filings for 2012
Partisan Makeup of the
Court
Political External
Environment
Rate of Personal Injury
Filings
Will Mixed Mixed Moderate
Kane Republican Republican Low
Madison Democratic Democratic High
Analysis
Civil cases seeking remedies of over $50,000 are the cases that are flooding court dockets
based upon the findings through this research effort. Table 4 shows that civil cases seeking
money damages in an amount less than $50,000 prove to go to trial significantly less. Data from
all three counties in the present study show that very few mandatory arbitration cases go before a
judge or jury.
Of the three courts under inquiry, the most Republican county court, Kane County,
incurred the least amount of civil cases filed in 2012.60 The data also reflected the same for
personal injury filings, which averaged out to be .55 cases per capita.61 This finding provides
support for the hypothesis which holds Republican judges favor defendants in personal injury
60
Refer to Table 5.
61
Refer to Table 7.

litigation; and as a result, discourage Plaintiff lawyers from filling cases in their courts. Not
surprisingly, Kane County personal injury case filings were at a staggeringly low in 2012,
accounting for only 1.4% of the total civil case filings in the county that year. Furthermore,
personal injury cases that were filled in Kane County were the least likely to end through
settlement in comparison to the other two counties. In fact, findings showed that personal injury
cases ended through adjudication more often than they ended through settlement;62 and this
finding did not support the original hypothesis which held that most personal injury cases would
end in settlement.63 Additionally, personal injury class action lawsuits in the Kane county court
accounted for only 12.3% of the total personal injury cases filed in 2012. Kane County politics
has long been considered predominately Republican which alludes to the court’s political
external environment as being influential on the outcomes of civil caseloads.64 These factors
build on existing theory that Republican judges are less favorable to Plaintiffs in personal injury
cases.
Furthermore, findings of this case study strongly suggest that in county courts where
judges are predominately Democratic, there are a larger number of civil cases filed and
unresolved a year.65 Data also suggests that more personal injury cases are filed in Democratic
courts.66 Madison county court having 88% of their judges Democratic experienced the greatest
number of personal injury cases filed in 2012; totals showed 7.22 cases per capita. Madison
County personal injury cases also accounted for 12.6% of the total civil cases filed in the county
court that year. Additionally, 51% of personal injury cases filed in 2012 that were coded as
62
Refer to Table 7.
63
However, the finding was not significant. Only 10 more cases closed through adjudication over settlement. Refer to Table 7.
64
Refer to Table 10.
65
Refer to the Table 5 and Table 6.
66
Refer to the Table 7.

closed had resulted in settlement.67
The Madison County used in the present study serves as a primary example of how
ideology may affect judicial decision making and settlement in personal injury cases. The data
shows that in 2012, Madison County was laden with asbestos litigation.68 In fact, findings from
the data show asbestos litigation accounting for 87.9% of the total personal injury cases filed in
2012 in Madison County, which works out to be 6.35 cases per capita. Additionally, asbestos
class actions, in particular, accounted for 39% of the total personal injury cases filed in 2012.
Asbestos class action litigation resulted in settlement in 67% of the closed class actions; this
finding supports the original hypothesis which held that more cases would result in settlement.
Even so, the Madison county court has been flooded with asbestos class action suits for over a
decade. While data suggests that mass tort litigation in the case of asbestos declined over time in
Madison County ,69 caseload trends have not changed entirely. In fact, 2012 and 2013 were
record breaking years for asbestos litigation in Madison County.70 The concept of path
dependence perhaps best supports this assertion; once a particular pattern has occurred it is
particularly difficult to reverse. According to Daniels, “some types of cases, for instance, may be
more influenced by long-term environmental factors emerging from a particular period.”71
67
This percentage is much lower than that of the Will County court, but significantly higher than Kane County’s percentage. This
percentage also reflects Madison County’s backlogs which in turn affects settlement occurrence percentages; therefore cases
from 2012 which have not be closed could still end up resulting in settlement.
68
Refer to Table 8. The data coded from the Madison County Circuit Clerk’s case archives in this study shows that Madison
County asbestos litigation filings hit an all-time record in 2012 with (1,702) cases; this finding is noteworthy because the Circuit
Clerk’s publicized data on asbestos case filings for 2012 reflect over 100 less than the findings from this research effort. Data
was gathered through this research effort, by the researcher, and not through an existing data set. Cases were looked up only 20 at
a time because theweb server does not allow multiple case searches through the Madison County Circuit Clerk’s case archives
without one to two hour intervals per internet connection. The researcher believes theCircuit Clerk’s archives limit viewing to 20
case lookups to discourage forum shopping, although this cannot be proven.
69
Madison County is thought of as being more transparent since the 2004. Now lawyers are said to have to incur a “lengthy and
cumbersome registration process to justify why suits are filed in Madison County.” http://illinoisissues-
archive.uis.edu/features/2008mar/judge.html. Additionally, data from the Annual Report of the Illinois Courts, Statistical
Summary 2012. Complied and Published by theIllinois Supreme Court’s Administrative Office for the Illinois Courts,
Springfield, Illinois (2012) shows a downward trend in total civil cases filed in Madison County over the last decade.
70
http://www.washingtonexaminer.com/lung-cancer-cases-push-madison-countys-asbestos-docket-to-new-
record/article/feed/2122338
71
Daniels, 301.

Indeed, Madison County experienced a mass tort litigation explosion in the beginning of the new
millennia. The effects this had on the judicial institution and legal community should not be
understated. The political institutional history of the court provides further explanation. The most
high profile Illinois Supreme Court race in Illinois history occurred in Madison County in 2004
when negative ads attacked the legal qualifications of a local circuit court judge.72 The ads put
forth by special interest groups proclaimed that the judicial candidate had a clear record of being
“bought”.73
Given the fact that the judicial makeup of the Madison County court is primarily
Democratic, except for one individual circuit judge, the court can be considered a reflection of its
own partisan makeup given what the data has shown. The findings in this original research for
Madison County are consistent with existing generalizations about democratic judges in
America, as well as with the initial predictions. Judges who are Democrats tend to favor Plaintiff,
and these courts as a result, experience more civil case filings involving personal injury litigation
overall.
As suspected, based upon the data collected, the Will county court was the median court
in this study. The Will County court can be viewed as a partisan mix in comparison to the other
two courts; and operates within a mixed external political environment.74 However, while coding
the data for Will County personal injury cases it was discovered that the presiding judge over
these cases was a Republican.75 This discovery may pose implications to the findings given the
partisanship of this judge. However, the institution itself is a bi-partisan mix. Therefore, if county
72
James L. Gibson, “Republican Party of Minnesotav. White and Perceptions of Judicial Impartiality,” Electing Judges: The
Surprising Effects of Campaigning on Judicial Legitimacy, (Chicago: University of Chicago Press, 2012), Chapter 2: 27-28.
73
Ibid. In fact, this Illinois judicial election received national attention and to date stands as themost expensive Illinois Supreme
Court election in Illinois history.
74
Refer to Table 10. On a federal and statelevel, in 2012, all General Assembly government officials were Democrats, but the
Congressional Representativewas a Republican. Both the Mayor of Joliet and the Will County Executive were Democrats whose
administrative buildings are near thecourthouse. The Will County Board has been steadily comprised of both Republicans and
Democrats in close to equal numbers. TheWill County court has been thought of as being a mixed institution.
75
The presiding judge in most of thecases coded was Michael J. Powers (Refer to Table 1).

courts tend to decide cases in accordance with their partisan makeup, results should reflect the
mixed composition of the Will County court.
Based upon the data collected from this original research attempt, civil case filings and
personal injury cases specifically were modest in number in Will County.76 Personal injury cases
filed in Will County averaged out to be .95 cases per capita. Overall, personal injury cases were
found to have a rather high rate for settlement; 76% of closed personal injury cases resulted in
settlement.77 This happening could have been due to the individual presiding judge’s tendency to
encourage settlement. Furthermore, results from the study showed that class action lawsuits
comprised of only 12.7% of the total personal injury cases filed in Will County in 2012. Personal
injury class actions filed in 2012 that were closed had resulted in settlement 81.1% of the time.78
Overall, findings from this study suggest that the internal partisan makeup of the Will County
court is influential on civil litigation outcomes.
Furthermore, the single case study done by Dolbeare points to party competition and
politics as being a major determinant for who uses the courts.79 While context should be
considered comparatively when analyzing any political phenomenon, the limitations of this
research undertaking did not allow for an extensive and detailed exploration of the courts’
external environments; and this points to the importance of conducting future research.80 Results
from this research undertaking do show that the internal makeup of the court (i.e. the court’s
partisanship) is strongly correlated to the number of personal injury cases filed in that respective
court, holding all else constant.
76
See Table 5 and Table 7.
77
This finding was consistent with the initial hypothesis on settlement occurrences.
78
Lawyers’ decision not to file class actions in Will despitesuch high settlement rates undoubtedly occurred, however thecause
is unknown and should be analyzed in future research.
79
Dolbeare, 37-63 & 131-132. Dolbeare claims that political affects are minimal because most of the “important decisions are
made elsewhere in the political system”. Dolbeare is suggesting that the higher courts and legislatures set the stage for county
judicial decisions.
80
However, the judicial partisan makeup of thethree county courts is undoubtedly reflective of theelectorate (external
environment).

Conclusion
Since county judges are elected in Illinois through a partisan process, the party
identification of a judge undoubtedly affects the partisan composition of the court, and as a
result, its tendency to make liberal or conservative decisions. The aforementioned findings
support the long time and widely held theory that Democratic judges rule more favorably to
Plaintiff, and Republican judges rule more favorably to Defendant in personal injury lawsuits.
Moreover, the findings from this original research point to the importance of conducting further
research on the impact of partisanship on county courts, as well as tort reform in personal injury
litigation more specifically.
Overall, mandatory arbitration in the three Illinois counties under inquiry appears to be
effective in deterring cases from going to trial when cases are seeking remedies of less than
$50,000 (the threshold amount for mandatory arbitration). Despite this “court-based tort
reform”;81 no action by the legislature or the Court has been taken to deter civil cases which seek
remedies of over $50,000. In sum, since county courts experience case filings involving disputes
seeking differing monetary recoveries, it is reasonable to suspect that courts with claims of
higher monetary amounts would be more likely to be burdened with backlogs than that of other
courts dealing with smaller disputes; as was the case in Madison County in 2012.82 As a result,
complex cases of these types involve lengthy litigation proceedings causing backlogs in the
courts.
Not surprisingly, class action litigation has been clouting court dockets for decades.
Procedural and statutory issues involving asbestos class actions, in particular, have led to calls
for tort reform. Scholars assert that tort claims involving larger monetary amounts result in
81
Barnes (2007).
82
Refer to Table 6.

settlement most often.83 This assertion was consistent with the findings of this original research
attempt;84 personal injury class action lawsuit settlement rates were found to be significantly
higher than non-class action personal injury settlement occurrences.85 Since class action
litigation has raised profound concerns by those who have championed tort reform in personal
injury litigation, future research done on settlement occurrences in class action litigation would
increase knowledge accumulation on the impact class actions have on civil litigation and courts.
Class actions are considered to be the worst offence and burden to courts, nevertheless, they are
unavoidable.
Other studies done on settlement in civil litigation have measured the average times
between case filings and settlement;86 however this undertaking did not measure the time
durations between the former and the latter. Future research done on the length of time cases
remain unresolved after being initially filed would provide beneficial information for scholars
interested in examining backlogs in county courts. Furthermore, future research efforts should be
made toward uncovering whether or not partisan judicial institutions are being forum shopped.
Lawyers are undoubtedly filing cases in courts which seem to be favorable to their Plaintiff
clients. However, it is not clear whether or not this is ‘partisan’ forum shopping, or forum
shopping based upon a court’s established trend in favorable case outcomes. Fieldwork done
through conducting interviews would be one method for future research on forum shopping.
Variables designed to measure ideology in political science research have varied, and
more often than not, research claiming to have designed objective measures of ideology have
suffered from extreme criticism about their validity. Recognizing this empirical challenge, this
83
Engel, 842.
84
This was found to be thecase except for in theKane County court.
85
The amounts of the initial recoveries sought by Plaintiffs are unknown due to limited data availability in thepresent study.
Therefore cases were coded for settlement occurrence to use in comparison with cases resulting in adjudication.
86
For further discussion see Kessler (1996).

research attempt did not aim to provide ‘truth claims’ on measuring ideology in judicial circuit
courts. This research attempt did aim to build on existing theory found in Public Law and Courts
literature. The Democratic county court in this study (Madison County) was found to have had
the most personal injury cases and class actions than that of the two other counties in 2012. The
Republican county court (Kane County) had the least amount of civil cases filed, and in turn
experienced the least amount of personal injury filings and class actions. Results from the mixed
county court in this study (Will County) seemed to reflect the bi-partisan makeup of the court,
with neither a surplus nor deficiency in civil litigation cases involving personal injuries.
The purpose of this study was to examine the extent to which partisan makeup in county
courts affects personal injury litigation by using some simple measures for the data retrieved
from court archives for the calendar year 2012. The data reveals that the impact political
influences have on civil caseload dynamics in the three county courts is substantial, and shows a
correlation between partisanship makeup and caseload dynamics; this is consistent with the
initial predictions. Given the nature of this data and analysis, this research undertaking cannot
offer bold assertions or broad theoretical generalizations. Rather, the study can offer a snapshot
view of the environment in which county circuit courts operate within, and most importantly,
how the partisanship of judges matter.

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