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Famous (and infamous) Illinois trial lawyer Clarence Darrow once said that he never wished a man dead, but had occasionally read some obituaries with great satisfaction.  (That same quote is sometimes incorrectly attributed to Mark Twain.) 

We’re no Darrow. We’ve never saved a client from capital punishment, or discredited a former presidential candidate in a courtroom, or made any sort of mark in the culture wars, or bribed a juror.  But we get a similar sort of satisfaction when we read a court opinion socking an overreaching plaintiff lawyer with sanctions.  We personally avoid seeking such sanctions unless absolutely necessary, but news reports of such sanctions occasionally deliver us a fresh bouquet of schadenfreude.  

Consider the case of Ingram v. Intili, 2022 IL App. (1st) 210656 (Ill. Ct. App. May 6, 2022). A plaintiff lawyer seems to have misused some arcane Illinois procedures in an effort to secure an unfair advantage.  The respondent (not the defendant, and thereby hangs the tale) did not like what the plaintiff lawyer did. Neither did the lower court.  Neither did the appellate court.  

Let’s take a brief legal tour of the Land of Lincoln, visit section 2-402 of the Code of Civil Procedure, sit for a spell with a Rule 224 petition, and pose for a selfie next to Illinois S. Ct. R. 137 – but not too close, because Rule 137 sanctions can bite. 

Rule 224, titled “Discovery before suit to identify responsible persons and entities,” allows the petitioner to engage in discovery to ascertain the identity of multiple persons and entities who may be responsible in damages.  Its only purpose is to ascertain the identity of possible defendants. Once that purpose (the only one, remember) is achieved, the petitioner can then file an actual case and conduct full-blown discovery against a party.  Rule 224 is wholly inapplicable when the identity of any potential defendant is known. 

Then there is a section 2-402 “summons in discovery,” aimed at “individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action. Section 2-402 was originally enacted to provide plaintiffs in medical malpractice actions “with a means of filing suit without naming everyone in sight as a defendant by permitting a plaintiff to obtain discovery against a person or entity against whom he may have a claim.”  A person or entity named as a respondent in discovery per section 2-402 may be made a defendant in an action within six months, even if such an action would otherwise have expired during that six month period.  Section 2-402 was designed to make litigation more efficient.

What did the plaintiff lawyer do with Rule 224 and section 2-402, and why did that selfsame plaintiff lawyer get hit with sanctions under Rule 137?

The plaintiff represented by the plaintiff lawyer was a woman who claimed personal injuries from the Essure device. Instead of doing what so many other enterprising plaintiff lawyers have done by filing a product liability action against the Essure manufacturer, this plaintiff lawyer decided to be clever by filing both a Rule 224 petition and a section 2-402 summons in discovery against the treating doctor.  The plaintiff lawyer was attempting to force the doctor to identify the manufacturer’s sales representative.  The apparent advantage in pursuing this Byzantine route was that the manufacturer, not yet being a party, could not be pesky.  

The doctor several times pointed out that the plaintiff lawyer was doing things all wrong.  Rule 224 was facially inapplicable because it was undisputed that the plaintiff lawyer was aware of at least two proper defendants for the potential action: the device manufacturer and the doctor.  What the plaintiff lawyer should have done was file a proper lawsuit against the known defendant, and then named respondents in discovery under section 2-402 instead of filing a Rule 224 petition.  The plaintiff lawyer did not do that.  So that’s bad.

It gets worse. The section 2-402 “summons for discovery” filed by the plaintiff lawyer falsely stated that a complaint had already been filed.  In violation of the rule, which required attaching the complaint, the non-existent complaint was omitted from the summons.  

The doctor moved to dismiss this proceeding.  The plaintiff opposed unless the information sought by the illegitimate discovery was forthcoming.  Some information was provided, but rather than back down, the plaintiff lawyer doubled down and demanded to depose the doctor (before the putative manufacturer defendant would have even known of the litigation). Such a deposition was plainly beyond the permissible scope of a Rule 224 petition, which, again, is limited to identification of potential defendants.   

The doctor also sought sanctions for the plaintiff lawyer’s time-wasting, rule-violating harassment.  The trial court dismissed the plaintiff’s petition and imposed sanctions of more than $12K.  The plaintiff lawyer appealed, but found no joy in the Illinois appellate court.  Reviewing the sanctions order for abuse of discretion, the appellate court held that sanctions were appropriate because the proceedings instituted by the plaintiff lawyer  were “inapplicable and invalid from the outset.”  The initial filing used the wrong procedure, and then by demanding a deposition, the plaintiff lawyer went well beyond the scope of even legitimate pre-complaint discovery – and then tried to continue after the petition expired by operation of law.  

Again, the plaintiff should have filed a complaint (which never happened) and then should have used everyday, unloved-but-well-recognized post-filing discovery procedures.  The invalid summons was a “pleading” under the sanctions rule, and the attorney’s conduct demonstrated that the affair was not a mere “mistake made by a paralegal,” as counsel claimed.  Even if a paralegal was involved, the attorney was responsible for the paralegal’s actions. (Maybe blaming the paralegal was even worse than skirting all those Illinois rules.  Every paralegal we’ve ever worked with has been smart and hard-working.  For a lawyer to blame a paralegal for the lawyer’s own screwup would be really, really bad form.)  Meanwhile, action against the manufacturer/client was never filed.  

That last bit is at least as gratifying as the sanctions award.