Kathy C. Byrne: Trial-setting preference law deserves to be protected

The following letter to the editor by ITLA President Kathy C. Byrne was published in the Chicago Daily Law Bulletin on May 7, 2024.

Imagine you are terminally ill with blood cancer acquired from chemical exposure at work, wondering how to assure your teenage children that they will be okay without you. Or you and your husband of 55 years were rear-ended on the expressway and your husband died in your arms. You are now an 80-year-old widow suffering from the trauma of that accident. Or you’re an active retiree who fractured a hip when the casino bus prematurely closed its door on you. You’re healing, but you’re 96 years old and realistic. None of these people have much time left.

Illinois, and at least four other states, recognize the harsh reality of age, infirmity and terminal illness and have established trial setting preference statutes and rules that allow the aged and ill to have their lawsuits heard before they die. Our system of justice protects citizens under principles of both law and equity, and this is one area where those principles are identical. Nothing is more fundamentally American than having your day in court.

The mother with lymphoma seeks to tell the jury that she worries for her kids, that she was just doing her job, that she is a good mother, and she is so, so scared.

The widow deserves to tell the jurors of her long partnership with her husband and best friend, how she held him until the paramedics took his body away, how she can’t sleep, because when she does, she has nightmares about the crash.

And our gambling, rambling friend deserves to have his case heard because the odds are he’s not going to be around much longer.

It’s fair, it’s equitable, it’s decent. It is justice.

The Illinois preference statute based on advanced age has been on the books since 1990 and was recently amended to include the surviving spouse in a wrongful death action (like the widow above) and physical hardship, which covers terminal illness. It requires trial to take place one year from the time the motion for preference is granted. There has been no resultant litigation earthquake.

But now lawyers for a group of chemical companies are attacking the constitutionality of the preference statute. True to its nickname “Servants of the Damned” the Jones Day law firm has given notice to the Illinois Attorney General that it intends to challenge the constitutionality of 735 ILCS 5/2-1007.1, inexplicably arguing that it infringes upon the court’s control of its own docket. Jones Day ignores that the statute requires a hearing and places the burden on the plaintiff to prove his right to preference. It is also a slap at our courts to imply that they would not use their equitable power to grant such relief to a qualifying plaintiff.

Litigation is long. Sick and injured plaintiffs are exhausted after years of discovery and pretrial motions. But until now, I have never agreed with my clients when they’ve sadly said, “They’re just trying to drag this out until I’m dead.”  There’s simply no other plausible reason for this repugnant challenge.

Kathy Byrne
President, Illinois Trial Lawyers Association