Steve Thomas
Attorney at Law

Chapter 6

Hey Judge, Remember Us?

When Roger Webber was appointed associate judge to fill the vacancy left when Judge Freese retired, he appeared before a meeting of the Piatt County Bar Association and answered questions from the attorneys. I made an inquiry that was thinly disguised to ask, in essence, “Will you be like Judge Freese?” I found his answer satisfying and a big relief. Later, I would find his courtroom “bedside manner” very acceptable. In fact, in one case, after he made a ruling, I stood up and questioned his reasoning, and instead of being commanded to be silent and take my seat, as probably would have happened before Judge Freese, Judge Webber listened, reconsidered on the spot, and actually modified his ruling. I found this much more like what a judge should be: reason should rule over authority, and substance should prevail over form.

I would learn, however, that Judge Webber had a tendency to take cases “under advisement” or “under submission.” He would not rule right away after a hearing, but take time to think about it. That was not so bad, I thought at first, because by doing that he shows he wants to take his time to make the right decision. Judges like Freese seemed to make off-the-cuff decisions in the interest of swift administration of justice at the cost of getting the decision right, and more than once I had found these quick decisions wrong or ill-advised. I heard from the circuit clerk’s office, however, that Judge Webber’s backlog of cases under advisement was getting lengthy.

I experienced this first-hand in a case I filed for a plaintiff to enforce a contract. My clients had sold a business and the buyers simply stopped paying them before full payment was made. The buyers had moved the business to a different county that had stricter equipment health requirements, and the business failed.

The defendants were represented by competent counsel (other than he wouldn’t admit his clients were wrong) and we went through the whole procedure of conducting discovery and going to trial. Throughout, I confidently assured my clients that they were in the right.

At trial, although the defendants had set forth several written defenses, they did not have much evidence in support of any of them. The last day of the trial was September 13, 2016. The judge directed the attorneys to file written arguments within 30 days, and indicated there would be a ruling by November 30.  

Judge Webber did not issue a judgment until May 10, 2017.

Well, that’s OK, I thought, because after all, I did finally win the case. During the long wait, however, I had a pretty hard time explaining to my clients why the judge was taking so long to decide, and I had to reassure them over and over again that they would prevail. This demonstrates that the case was not a particularly difficult one and should not have taken so long for the judge to decide.

Let me try to be as fair to Judge Webber as I can, because he is not likely to respond to my criticisms, if he ever hears about them. As I recall, during the time he had this case, he was appointed to serve as circuit judge in Champaign County, and was assigned mostly criminal matters, which always have priority over civil matters – suits involving money damages, for the most part – for obvious reasons. My case was, of course, a civil matter, so Judge Webber had to give priority to the criminal cases that were assigned to him. Even so, however, I believe Judge Webber should have been able to decide my case easily in much less than seven months.

Judge Webber’s slowness in making decisions, for whatever reason, would do serious damage to my client in a later case. Strictly speaking, this case falls outside the scope of “Piatt County Justice” since it took place in Champaign County, but because Judge Webber – a former Piatt County Associate Judge –  handled it, and because the case provides such a good example of what kind of judge I would not want to be, I must include it in this journal.

My client had suffered a fall on heavy accumulations of snow and ice on the stairs and walkway outside her apartment building one winter morning on her way to work several years earlier. The resulting problems with her back and neck were apparently permanent and prevented her from working. She had run up medical bills, most of which insurance had covered, but she needed more therapy and special medical equipment that insurance would not cover. A free-legal-advice attorney told her she had a case for legal malpractice. The free-services attorney’s generosity did not extend to actually litigating cases, however, so my client came to me.

My client’s previous attorney (not the free one) had filed a personal injury lawsuit against the owner of the apartment complex on March 9, 2012. This was one day before the two-year statute of limitations would bar the suit, based on the date the complaint alleged the fall took place, March 10, 2010.

This underlying personal injury case was dismissed when the defendant apartment building owner produced a weather record that showed the temperature reached 70 degrees on March 10, 2010 and there were no reported accumulations of snow or ice that day. Obviously, March 10, 2010 could not have been the date of the fall.

The question was, where did the date of March 10, 2010 come from? My client now claimed to me that the fall actually occurred February 12, 2010, as was evident from medical records that were available to her original attorney well prior to March 9, 2012. She herself could not remember the date of the fall – she had hit her head and had been unconscious for a short time. Admittedly, in most cases the date of the accident is not in dispute because most victims can remember the date. Here, my client couldn’t, but there were medical records that backed up her claim that it occurred February 12, 2010, and she said her attorney had that record and should have known the fall occurred on that date, not on March 10, 2010.

The case wound up being assigned to Judge Roger Webber after an initial motion to dismiss by the defendant was denied by the original judge. The defendant’s attorney had argued that my client’s deposition, which had been taken in the underlying case, contained her admission that the fall occurred on March 10, 2010. In fact, the attorney who questioned my client assumed the fall occurred that date in asking about details of the fall; my client never offered that date herself. The original judge denied the motion to dismiss for that reason.

After Judge Webber was assigned to the case, the defense filed a second motion to dismiss, arguing that the medical records did not show, definitively, that the fall occurred on February 12 as my client claimed. The records showed that she had suffered another fall on steps while leaving the clinic (after treatment for the fall on ice), and the defendants claimed that my client’s injuries were caused by that fall, not the fall on ice at her apartment; or at least that there was enough doubt about when the fall on ice actually occurred to take the defendant off the hook for getting the date wrong. The defendant also argued that my client’s deposition contained an admission that the fall that caused her injuries occurred at the clinic.

The hearing on this motion to dismiss was held January 17, 2018. Judge Webber took it under advisement. On March 12, in a telephone conference call, Judge Webber granted the defendants’ motion to dismiss with prejudice. By dismissing the case with prejudice, the judge said I could not file an amended complaint to remedy the defects the defendants complained of, because, the judge said, my client could not possibly produce any new allegations that would remedy those defects. He agreed with the defendant’s argument that my client, in her deposition, had “definitively” admitted her injuries were caused by the fall at the clinic in April 2010, not by the fall on ice and snow at her apartment complex.

I almost immediately filed a motion to reconsider because I was absolutely positive the judge was wrong. I acknowledged, in my argument, that the medical records could have been interpreted as indicating falls occurred in early October 2009, February 12, 2010, or in April 2010 (but not March 10, 2010; that date was found nowhere in the medical records, and the court had already ruled my client did not claim this as the date of her fall in her deposition). In her deposition, in fact, my client stated clearly that the fall that caused her serious injuries was on ice outside her apartment, and the fall at the clinic had caused only a relatively minor ankle sprain. I argued that the wintry conditions my client said existed at the time of the fall were not likely to be around in early October or April, and produced additional weather records for October 2009 and April 2010, in addition to those already produced for February 2010 and March 2010, to prove this. I concluded from the combined records that the fall on ice could only have occurred February 12, 2010, or possibly a day or two before or after, but not March 10, 2010 and not April 2010. I also pointed out that the defendant had no evidence whatsoever that showed any fall occurred March 10, 2010.

Judge Webber did reconsider, and revised his ruling to allow me to again amend my client’s complaint, to include all the evidence to which I just referred. This alone suggests that he did not thoroughly examine the record and arguments in the nearly two months he had the motion under advisement. Furthermore, his revised ruling did not come until June 1 – he had granted the motion to dismiss on March 12.

I filed another amended complaint on June 26, but this new complaint still did not satisfy the defendant, who filed yet another motion to dismiss on July 24. I filed my response. A hearing was held August 31, 2018.

The docket record shows that Judge Webber was to review whether he had issued a ruling by September 28. As of December 18, however, Judge Webber still had not ruled.

I thought Judge Webber should have ruled on it immediately after the hearing in August because I thought my argument was airtight. He’d already had plenty of time to think about all of this. During this period between August 31 and December 18, I sent reminders and asking for status hearings, without result. From some of the responses I received, I had the impression that the judge had completely forgotten about the case until I reminded him.

In the meantime, my client was without work and without money. She kept calling me about when a ruling could be expected, and when she could expect to collect any damages. I could only report that the judge was taking months to rule on a simple motion, after several rounds of hearings on previous motions to dismiss already held (I had filed in late 2015, and it was now late 2018!).

On top of that, if the motion to dismiss were denied, then a new round of discovery would likely occur, and a trial date could still be a year or more away. My client had an elderly mother who was on her deathbed in an eastern state, and I advanced my client money so she could visit her before she died. I’d brought this to the attention of Judge Webber at the August hearing, in an effort to prod him to rule on the motion sooner rather than later. His response was that the health of my client’s mother was irrelevant – not even, apparently, as to the need for him to rule on the motion and move this case forward.

Judge Webber never did rule on the motion to dismiss.

My client was so desperate for money, any money, that she directed me to settle the case for the nuisance value the defendant had previously offered. I had refused to accept this offer because I was so confident that my client had a winning case – that a jury would find in her favor and that it would award her enough damages to support her for the rest of her life. But my client’s health was in jeopardy. By this time, her mother had passed away, and my client was out of money. She had no choice but to settle, since Judge Webber was taking so long to rule on a simple motion and final judgment seemed months or years away.

It bears noting that if Judge Webber had denied this final motion to dismiss, the defendant almost certainly would have made a more substantial settlement offer. Such an offer was never made, only by Judge Webber’s lengthy and unexplained delay in ruling on the defendant’s motion to dismiss.

After the settlement and the case was dismissed, I wrote Judge Webber a letter expressing my extreme dissatisfaction with his (lack of) work on this case, promising I would never let him preside over any more of my cases if I could help it. He obviously believes this sort of thing is acceptable for a judge, but I think it is unconscionable. This would never happen in my courtroom.

During the business case I discussed at the beginning of this chapter, I once suggested to Judge Webber that I would be willing to schedule a hearing for a Saturday if it would help move the case along. He merely scoffed.