CHICAGO — For the layman, it may seem that the government is invincible when it steps into the courtroom to make its case on appeal. But how closely does reality mirror perception?
A Chicago law firm has analyzed data covering every civil and criminal case to go before the Illinois Supreme Court since 1990 to develop a sort of batting average for government entities taking their cases to the state’s highest court.
Kirk Jenkins is an attorney with Sedgwick LLP in Chicago, and led the firm's study of appeals brought to the Illinois Supreme Court by governmental entities, to determine areas where those entities have the greatest success rates.
In analyzing its data, Jenkins said the firm identified who the appellant was in each case. They also looked at different areas of law to determine what the government tends to feel most strongly about—strongly enough to bring appeals to the court, and those the court agrees to hear.
Kirk Jenkins Sedgwick LLP
Jenkins said a review of the data shows that the government has a higher success rate in some areas over others.
In dividing the modern history of the court, Jenkins also noted there is a dividing line, which Sedgwick falls between two periods: 1990 to 2003 and 2004 to 2016.
“In 2004, the court shifted to four Democrats and three Republicans from a more Democratic leaning court,” he said. “For the years 1990 to 2003, when it came to government and administrative law cases, the government won at a very high rate. They won three quarters of those cases. “
With regards to constitutional law, Jenkins sees some interesting trends.
“An appeal brought by the government in constitutional law is almost always going to be a restrictive interpretation,” he said. “They are asking the Supreme Court to overturn an expansive interpretation from down below. The government will take the less expansive view.”
According to Jenkins, when the government is the appellant, someone in a lower court already has accepted the expansive view and the government is trying to rein back the situation.
When it comes to tort and tax law, areas with a more obvious financial aspect, Jenkins noted the government doesn’t seem to fare as well, particularly from 1990 to 2003.
“They were only winning about 50 percent of their tort cases and less than half of their tax cases,” he said.
Since 2004, however, the government's success rate in administrative law cases has dropped by about 20 percentage points.
“They are winning those cases at about [a] 54 percent clip,” Jenkins said. “The court today is perhaps not quite as deferential to the government on those administrative law questions.”
However, the government has been winning 80 percent of its tort cases since 2004.
The government also was in the red in employment law cases, but since 2004, it is winning three out of four cases.
Moreover, the factors that come into play in any given case can vary greatly.
“There are factors in that every case is different,” Jenkins said. “Over the years, the court changes membership and the justices’ philosophies continue to evolve.”
Current trends, according to Jenkins, in government administrative law cases seem to signal less deference to another branch of government. Tort law, on the other hand, tends to be influenced by a sensitivity to the idea of public liability.
“A lot of those cases are about government immunity to those types of tort cases,” he said.
Examining the data for surprises, Jenkins said he would expect the government to fare better in cases where it is pushing against an expansive interpretation.
“The current Illinois Supreme Court is a very pragmatic sort of middle-of-the-road group of jurists,” he added.
Whether the government fares better on offense or defense depends on the area.
“In constitutional law, I would expect them to do better as a petitioner,” Jenkins explained. “They are asking the court to rein in an interpretation of the law.”
Private entities, on the other hand, are best off on defense, supporting a lower court’s decision.
However, when it comes to any advantage, the government’s seeming edge can be applicable to either side.
“The biggest single advantage is that there are some very talented appellate advocates, particularly at the Illinois attorney general’s office,” Jenkins noted. “These are people they have seen over and over again. The AG comes in with a level of credibility and knows what is needed. They are familiar with the advocates.”
And when that day in court finally arrives, private entities are finding it an uphill battle. In recent years, it has become more difficult to prosecute tort cases against government entities.
“The court seems to be taking at least a somewhat more aggressive stand in defining the boundaries of government liabilities,” Jenkins said.
Employment law cases are turning a little more in the direction of the plaintiffs.
However, Jenkins does offer some advice for private entities squaring off against the government in court.
“The best argument a private entity can make against the government is that your case is a one-off,” he said. “You never want to find yourself litigating against the government and trying to convince the court that your case has huge implications and you want to try to make a revolution. That is the worst case you can make.”
In administrative law cases, it should be argued that the position isn’t a huge restriction.
The courts are sensitive in tort cases, so the best tact is to argue that there won’t be a line of expensive tort cases forming behind you.
In tax law, courts want to know that a case isn’t big and won’t blow a hole in a government entity’s budget.
“In constitutional law, you want to take baby steps and note that it isn’t a significant change,” Jenkins concluded.