specially concurring:
I agree wholeheartedly with Judge Chapman’s reasoning and interpretation of Supreme Court Rule 224 (134 Ill. 2d R. 224). There are a few matters that I believe should be discussed in a specially concurring opinion that, if included in the official majority opinion, would dilute the force of the majority opinion and which may be unnecessary to interpret the scope and intent of Rule 224.
We could have ruled on the facts of the case without going further in construing Rule 224. Clearly, the trial judge should have stopped the proceeding once petitioner’s counsel admitted he had sufficient information for a section 2 — 622 report. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 622.) A limited ruling on the facts, however, would have left open the question of how far petitioner could have proceeded on his “fishing trip.” The next petitioner might simply not tell the court when he had enough to make a section 2 — 622 report.
We have what I consider to be a Pandora’s box, and this case raised the lid. If this court in any way opens the lid to the box by allowing petitioners to use Rule 224 as a means of discovery of more than the identity of one who may be liable in damages, then every potential plaintiff with competent counsel will use Rule 224 and push the questioning to the limits. Why would any attorney representing a potential plaintiff not use the rule to obtain a preliminary deposition and then, after the suit has been filed, obtain a subsequent deposition? The petitioner would hope to ambush or catch the respondent unprepared so that he would make a statement that would be inconsistent with his statements in subsequent depositions. We could be creating thousands of new cases in Illinois with all of the costs of disposing of such, if we interpreted Rule 224 as allowing more than the discovery of the identity of responsible persons.
I am further concerned that many petitioners would push the questioning of respondents to the limits, necessitating, as in this case, supervision by a judge. Why would a petitioner limit the scope of his or her questioning, if there are no boundaries or if the boundaries are to be established on a case-by-case basis? Petitioner’s counsel practically admitted in oral argument that the courts would have to supervise almost every case. The backlog of cases in every county and in this court would soar.
This case provides an excellent example of some of the evils that can result when a respondent is subjected to such broad questioning prior to being sued. Word would spread, if we twisted the meaning and reasons for Rule 224 into a broad interpretation allowing far-reaching discovery. Every respondent desiring some protection from abuse and possible jailing would be forced to seek and pay the cost of counsel. The respondent may be innocent of any wrongdoing. The respondent may only be a witness or an employer not subject to a tort action; yet, the respondent would incur unnecessary legal costs just for self-protection. Where in our American system of justice can a citizen be hauled into court without any suit or accusation being filed against the citizen and be made to answer questions or else go to jail other than under Rule 224? Shouldn’t we limit this encroachment on the freedom of an individual to very limited situations where the public interest outweighs our citizens’ right to privacy and their freedom not to speak?
The petitioner’s counsel argued that he only wanted to use Rule 224 to separate the guilty from the innocent parties, because he did not want to sue an innocent doctor. Petitioner alleges, therefore, that he was merely providing the respondent in this case with the opportunity to prove his innocence. I am happy that counsel had this good intent, even though in counsel’s quest for truth and justice he kept threatening the respondent with jail. I don’t believe this is a case where petitioner’s counsel offered to allow the respondent a fair opportunity to avoid being sued; rather, respondent was forced to appear before petitioner’s counsel and ordered to answer all questions. Surely our system of law has not declined to a state where we order citizens to prove their innocence to an attorney at law!
The majority opinion not only interprets the intent of Rule 224 correctly, but it limits its use so that hopefully there will not be any more abuses of the rule. If counsel for a petitioner believes that there should be an exception made to the interpretation of Rule 224 set forth in the majority opinion, then counsel can obtain a ruling from the trial court before a citizen is hauled before an attorney, suffers an inquisition, and is made to incur the cost of counsel. The interpretation of Rule 224 may be gradually broadened, if good reason or the public interest is shown. Any broader interpretation of Rule 224 than allowed under the majority opinion will cause individual rights to be abused by aggressive counsel before the legal system can extricate the respondent.
We can speculate that there may be some rare cases in which a potential plaintiff may not know what a party may have done or said that caused plaintiff’s injuries. The vast majority of cases, however, do not require the use of Rule 224. All we would be doing by opening the lid to this Pandora’s box by allowing extensive questioning as to what was done or said by a respondent would be creating a false need for the use of Rule 224 in the vast majority of cases. The lid needs to stay on the box!
I also feel compelled to say a few words about the contempt portion of this case. In this case we have a hard-working and experienced trial judge. I am sure that anything we say in criticism of his ruling or conduct probably will not be as bad as the judge’s own criticism of his ruling during the night or early morning hours immediately after his decision.
There are no hard-and-fast rules to guide a trial judge so that the judge can avoid landing in the dilemma where the judge feels that his back is against the wall and the contempt power is the only way out. In many cases there is no warning. Everything may be going smoothly and suddenly the trial judge is confronted with what the judge may consider to be a challenge to the court’s authority. I suggest that the judge announce that he or she needs to think about the matter and that everyone else needs to think about it too. Then call a recess. It may have helped in this case, as the judge would not have appeared to have been so brusque, and he would have had the time to consider the problem of what to do about the doctor’s patients.
Here is an axiom that I proffer that may also help. The more certain you are of your interpretation of the law without reflecting upon or reviewing any law, the more certain it is that you are wrong. In this case the trial judge was absolutely certain of his interpretation of Rule 224, and his certainty may have contributed to the severity of the sanction that he imposed.
In this case, it is a reasonable assumption that the trial judge personally felt that the respondent doctor owed a moral duty to his patient’s family to answer all of their questions about what happened to the patient. Petitioner’s counsel was urging the judge on. We, of course, cannot decide the moral duty of a doctor to the patient’s family in this opinion. Our concern is whether the doctor had to answer all of the patient’s family’s questions in a Rule 224 proceeding. The trial judge, in his quest to learn the truth from the doctor, became an advocate for the petitioner and lost his impartiality and his patience with respondent and his attorneys.
Finally, I suggest that there is a baseless tradition in the courts that the only way a judge can show his power over litigants and attorneys is to incarcerate them. In both contempt cases in which I have ruled against the trial judge, the trial judge gave the appearance that incarceration was his first choice of punishment, when it should be his last choice. (See People ex rel. Finch v. Locher (1988), 172 Ill. App. 3d 706, 526 N.E.2d 935.) Why are we so eager to treat civil litigants worse than criminals, when they have not violated any laws? In most cases there are a multitude of sanctions for contemptuous conduct that may be more effective than jail.
In most cases the trial judge has more options for punishment for contempt, but in a Rule 224 case the judge may have only two choices, fine or jail. The trial judge may have felt that doctors and insurance companies have lots of money, so that a fine would not get the question answered. However, jailing respondent and his counsel did not get the question answered either, nor did it help petitioner or St. Clair County. Petitioner’s counsel had enough information for his section 2 — 622 report to file his lawsuit, so assessing all the costs of appeal of the Rule 224 proceeding would have been helpful to petitioner’s counsel’s practice and a stiff fine would have benefited St. Clair County. Jailing respondent and his counsel resulted in the supreme court of Illinois and this court expending a great amount of cost, time and trouble; so who, other than the taxpayer, was punished?
We all make mistakes. “To err is human.” We are foolish and will only compound the error, if we do not learn from our experience.