First step: the judiciary. I bet that you think that I am going to say that electing judges is the sure way to hell.

But I am not.

Here is the sure way to begin construction of a hellhole : ignore whatever process is in place to get your judges. Don't take part in it, don't encourage the lawyers representing you (or your company) to participate. Just put your head in the sand and complain about it when it doesn't work for you.

Then one day, you open your eyes, perhaps during an appellate argument, and  "whoops, there it is". You (or your company) have not had any input into the process- and it shows.

Where did this happen? I know for sure it did in Southern Illinois. Was the problem that judges were elected? Conservative wisdom usually holds so, but I am not so sure that a hard and fast rule always holds water (in all deference to Justice O'Connor). The defense bar can contribute as much as the plaintiffs' bar to a judicial campaign ( a case on point will be heard by the US Supreme Court in March concerning an elected judge's refusal to recuse himself from a case in which a large corporate defendant contributed a giant amount of money to his campaign). The organized defense bar (and its clients)  took a very passive approach to the carnage that was mass tort litigation. Hit after hit after hit against corporate defendants  (trying most cases with stricken pleadings) in the Madison County asbestos cases, and nothing changed. Until the gargantuan Phillip Morris verdict.

The other side of the v. had woken up! See the (and I will editorialize here: fabulous) result in the Supreme Court election of 2004 where (then) Judge Maag and (now) Justice Karmeier ran against each other. Unfortunately, it was an unbecoming, vituperous and expensive battle costing $24 million.

As I have said before, things are infinitely better in Madison County. For instance, out of town attorneys with big asbestos dockets don't walk into court late, dressed in crappy clothes to certain judge's courtrooms, indicating to all that they were partying with the judge the night before. (This had the desired effect of demoralizing everyone in the courtroom, including the judge, I would imagine. Nothing is probably more humiliating than having one side broadcast to the world that your opinions are not exactly, shall we say, independent).

Eric Posner, on The University of Chicago Law Faculty Blog ,discusses his paper analyzing the independence, productivity and quality of elected v. appointed judges by examining their opinions over a three year period. The conclusion was that those who were appointed were probably more independent, those who were elected tended to be more responsive to their constituents. The elected judges were more productive, the appointed wrote better opinions. Of course, this is an over- simplification. Here is the link for those who want to review this in more detail

.uchicagolaw.typepad.com/faculty/2007/09/are-appointed-j.html

Even though the playing field has leveled in Madison County, there does need to be a system of checks and balances installed in every jurisdiction-whether the judges are appointed or elected. As indicated in the February ABA Journal, ( p. 57 ) the draft recommendations of the ABA judicial independence panel include complete disclosure by the judge of all information bearing on impartiality of the court.

Imagine that! Asbestos plaintiffs' counsel used to sponsor private "seminars" where their expert witnesses taught the judges asbestos medicine. I am serious. This is a wonderful example of advanced hellhole construction.  Tuck that one away.