Chicago Trial Attorney Blog

Chicago Trial Attorney: Personal Injury and Business Litigation: Nursing Home Abuse

Philip J. Berenz — Mon, 23 Apr 2012 07:31:32 -0600

Two nursing assistants were fired from an Oklahoma Nursing Home for abusing a 96-year old dementia patient.

In the disturbing article found here, apparently relatives of the injured patient -- again who suffers from dementia -- placed a hidden video camera in their loved one's room after becoming suspicious that someone was stealing the resident's belongings. The camera caught footage that allegedly shows the two nursing assistants pushing the patient into bed and holding the patient's head down onto a pillow and also, in a separate incident, shoving latex gloves into the resident's mouth and holding them there.

While it is fortunate that these acts were caught on tape by the family, it is important to remember that placing a hidden camera in a nursing home room is always a risky proposition and you should consult with the proper authorities before doing so.

In any event, you should never have to settle for your loved one being victimized in a nursing home, where patients are generally in their most vulnerable state. If you suspect that your loved one is being physically abused or neglected, report your suspicions and contact an attorney immediately.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you and your loved one.

Chicago Trial Attorney: Personal Injury and Business Litigation: Transportation Law - New Report Sheds Light on Train Derailment

Philip J. Berenz — Thu, 01 Mar 2012 07:59:54 -0600

Many are familiar with the tragic freight train derailment in June 2009, where water runoff on train tracks in Cherry Valley, Illinois (just outside Rockford) caused a train to derail. Leaking ethanol then caused thirteen of the train's cars to catch fire, injuring many and killing two.

The National Transportation Safety Board ("NTSB") recently released its report on the matter according to a Chicago Tribune article found here, bringing several disturbing facts to light.

First, and foremost, the report indicates that Canadian National Railway ("CNR") knew for approximately an hour before the accident that there was a complete washout on the tracks, but did not contact the train in time to stop it.

Compounding this failure to communicate is the fact that, on two prior incidents in 2006 and 2007, similar washouts had occurred near the tracks in question that CNR was aware of. Further complicating things, the NTSB suggests that CNR could have (and probably should have) done more to communicate with Winnebago County to develop a comprehensive storm water management system in light of the two prior washouts.

Unfortunate situations such as these bring to light the necessity for transportation companies and local governments to work together to come up with solutions to recurring problems such as these to protect the public at large and avoid costly tragedies.

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation should you or your loved ones, friends or family be unfortunately involved in any accident whether tragic or minor. We would be sincerely honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Texting and Driving

Philip J. Berenz — Sun, 01 Jan 2012 09:05:25 -0600

The continuing trend by national institutes tasked with examining the data surrounding auto accidents recently culminated with the National Transportation Safety Board ("NTSB") making an across the board recommendation that all cellphone use be banned while driving.

The Chicago Tribune's examination of the conversation surrounding this proposal in Illinois seemed to indicate that it was unlikely that such a proposal would gain serious traction, due to its harsh tone and difficulty to enforce. Yet more research data recently released indicates that the problem may have more practical effect than initially meets the eye.

Time Magazine recently reported here that a study by the National Highway Traffic Safety Administration showed a 50% increase in text messaging while driving.

What makes these figures particularly troubling to personal injury attorneys is that they are potentially part of a much larger problem. Traditionally,factors such as driving in a hurry, not watching the road, and focusing attention on something other than the road are each factors where one of which, standing alone, can be the cause of an accident and a subsequent lawsuit. Texting or emailing while driving can encompas each of these factors all in one simple act. And with studies such as those mentioned in Time suggesting that this practice is on such a rapid rise, one can only assume that it has the potential to get worse. In any case, these studies present all the more reason to keep a constant lookout for the other drivers on the road.

Have a safe and accident-free holiday. In the unfortunate event you are involved in an accident, obtain all the information possible immediately at the scene and take notes (if you can--get to the doctor or hospital first and foremost though if you are injured). Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. You can contact us here 24/7/365-even over the holiday weekend any time (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.

Chicago Trial Attorney: Personal Injury and Business Litigation: Thanksgiving Weekend Auto Crashes

Philip J. Berenz — Fri, 25 Nov 2011 07:53:31 -0600

Millions more cars will be on the road from Wednesday through Sunday / Monday this Thanksgiving - as expected as these are some of the busiest days of the year. That means everyone should be much more vigilant and cautious when driving.

Drunk driving is especially worrisome during the holiday times. Fatalities often rise over the holidays. Don't drink and drive!

Thanksgiving Travel Safety Tips:

1) Be mindful of the weather -- while not as frigid and icey as the holiday season ahead of us, Thanksgiving is still known, nonetheless, as a beacon of nasty weather. Fortunately for those remaining in the Chicagoland area, the forecast for the next few days calls for clear (but cold) conditions. For those traveling outside the area, be sure to check the applicable weather reports, as the congested traffic conditions mixed with unexpected bad weather can make holiday travel a miserable experience.

2) Check your brakes and tires before you leave -- not only is this step useful at any time (faulty brakes are cited in almost every auto accident victim's complaint as a cause of negligence), this is particularly necessary during the Thanksgiving holiday weekend, since it is one of the first instances of real, genuine cold weather. Whenever the temperature drops drastically, tire pressure has a tendency to drop as well, leading to increased instances of flats and tire blowouts.

3) Leave plenty early -- as any personal injury attorney will tell you, drivers in a hurry to reach their destination are far more likely to get into an accident. Throw in unnaturally heavy traffic conditions and poor weather conditions, and the potential problem only becomes worse.

4) Avoid distractions at all costs -- heavy traffic, long hours on the road with no sleep, unruly passengers, the temptation to multitask to make up for lost time and eat or groom yourself while driving -- the possible distractions on this weekend in particular are endless, and each of them increase the likelihood of an accident significantly.

Have a safe and accident-free holiday. In the unfortunate event you are involved in an accident, obtain all the information possible immediately at the scene and take notes (if you can--get to the doctor or hospital first and foremost though if you are injured). Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. You can contact us here 24/7/365-even over the holiday weekend any time (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.

Chicago Trial Attorney: Personal Injury and Business Litigation: CTA Crash Injures Numerous People

Philip J. Berenz — Mon, 14 Nov 2011 07:35:07 -0600

On Friday, November 11, 2011, numerous people were injured when a CTA bus struck a light pole at approximately 4:00 p.m. at 95th and Cottage Grove in Chicago, Illinois.

Bus drivers and bus companies owe their passengers a duty of care to avoid causing injuries to their passengers and situations can turn into severe hazards and extraordinary damages when an accident occurs involving such a large vehicle.

As stated previously by us in another posting, the law requires bus drivers--like other motorists--to exercise due care and caution and to follow the "rules of the road" and Illinois law so that a lawsuit for negligence will not be brought against him/her/them for some or all of the following (but not necessarily limited to):

Carelessly and negligently operating, managing, maintaining, and/or controlling a vehicle;

Carelessly and negligently operating a motor vehicle at a rate of speed which was greater than reasonable and proper with regard to traffic conditions and the use of the highway, or which was greater than the applicable speed limit established in violation of the revised Statutes of the State of Illinois;

Carelessly and negligently failing to equip a motor vehicle with proper brakes although such a device was necessary to insure the safe operation of the vehicle;

Carelessly and negligently failing to keep a proper lookout and to stop or alter the course of a motor vehicle to avoid striking the vehicle (or a light pole or anything that can cause injuries); and/or

Being otherwise careless and negligent (simply not paying attention).

If you are in a crash such as this with a CTA bus or any other type of crash, the Illinois Secretary of State has a checklist it suggests here:

Crash Checklist

If you are involved in or come upon a traffic crash:

Stop your vehicle in a safe, well-lighted public place.

Help an injured person if necessary or requested. First, protect the person from traffic, then cover the injured person for comfort and to avoid shock. Do not move an injured person unless absolutely necessary. Do not attempt to give first aid unless you have been trained in it. Call 911 immediately.

Someone should warn other drivers, using flares if available.

Ask all those involved for their names, addresses, phone numbers, driver’s license numbers and license plate numbers.

Notify the nearest police station as quickly as possible.

Further, make sure your children are safe and secure and if you are in an automobile accident or an accident such as this with a CTA bus as a passenger, get all the information possible immediately and take notes. Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.

Chicago Trial Attorney: Personal Injury and Business Litigation: The Power of Subpoenas

Philip J. Berenz — Tue, 27 Sep 2011 07:05:22 -0600

The fact finding process in civil cases is known as "discovery" -- that is, where you can ask the other side to turn over any document or other piece of evidence/information in their possession that might have some bearing on your case (provided that you ask for it in fairly descriptive terms).

Many litigants make the mistake of stopping their focus after obtaining discovery -- once they've gathered everything they have from the other side, that's the end of their inquiry. Success or failure in any given case, however, largely depends on the winning side's ability to think outside the box, so to speak.

When it comes to discovery, then, technically speaking, you are not limited to asking the other side to turn over evidence -- you just have to know how to ask. For a very basic example, let's say you are involved in an auto accident in a supermarket parking lot. Both sides claim that the other driver was at fault, but after discovery, there is really no hard evidence other than each driver's word, essentially making the case a "he said, she said" situation that, quite frankly, can often go either way at trial. Now, let's add to the example that this parking lot, as large stores often do, has a surveillance camera in its parking lot that captured the whole accident on tape. In most cases similar to this example, the supermarket would not be a party to the lawsuit and as such, you would not be able to simply send a discovery request to turn over the surveillance tape, as you would, say, a copy of any pictures of the scene of the accident that the defendant may have taken. But this does not mean that you cannot get the surveillance tape that may make or break your case -- again, you just have to know how to ask for it.

A plaintiff (through their attorney) can issue subpoenas for documents and other information (even testimony) that require non-parties to turn over evidence, documents and information, provided that the subpoena meets certain technical requirements. For starters, the requested information has to be reasonably clear -- if you're looking for the surveillance tape, then you must say so. You also have to pay a fee to the person/business you're seeking information from, usually starting at around $25.

Further, the power of such subpoenas -- if all of the steps are followed properly -- are real consequences for failing to comply: the person/business may even be brought into court to explain to the Judge why they shouldn't have to turn over the evidence, or else they may face some hefty fines and even perhaps be held in contempt of court! That's very powerful!

The point to be had is that the difference between winning and losing is often the party's willingness to go above and beyond and take full advantage of all the litigation tools at your disposal.

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation--maybe subpoenas will be the only way to get the evidence you need to prove your case. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Attorney-Client Privilege

Philip J. Berenz — Wed, 21 Sep 2011 07:34:59 -0600

Conversations and communications between you and your attorney are covered by what is known as the attorney-client privilege. Privilege attaches to such conversations and communications so that you and your lawyer can freely discuss your matters without being judged and without hesitation, amongst other reasons.

To be entitled to the protection of the attorney-client privilege, a claimant must show that:

(1) a statement originated in confidence that it would not be disclosed

(2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and

(3) it remained confidential.

See Pietro v. Marriott Senior Living Servs., 348 Ill. App. 3d 541, 551 (1st Dist. 2004).

The policy underlying the attorney-client privilege is to encourage full and frank consultation between a client and his attorney by removing the fear of compelled disclosure of information. See People v. Jacobson, 119 Ill. App. 3d 103, 104 (1st Dist. 1983). Strict confidentiality, promoted by permanent protection from disclosure, is the very essence of the existence of the attorney-client privilege; it is also the basis for allowing such communications complete exemption from discovery. Jacobson, 119 Ill. App. 3d at 104. Privileged communications are at the instance of the client permanently protected from discovery. Id. at 105.

On the other hand, if a conversation, for example, took place in a crowded elevator, or if you went and told a co-worker afterward what was said, then the communication may not be privileged because it wasn't confidential.

Another key point is that the privileged conversation has to generally be for the purpose of giving legal advice, and the advice can't be used to further or cover up a crime. While this might all sound pretty straightforward, application of this privilege can come up in very unexpected ways - and sometimes in matters years down the road that you couldn't possibly envision at the time you made the statements.

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Discovery Truths and Process

Philip J. Berenz — Fri, 02 Sep 2011 06:29:49 -0600

Parties to a lawsuit (usually with the assistance of their attorneys) are under a duty to answer everything truthfully, but that doesn't mean that it's always easy to get a "straight" answer out of someone.

This is one of those areas that distinguishes attorneys -- recognizing the difference between a party giving an affirmative yes or no answer, and half-measures such as "I think" or "I believe that is correct." A good attorney will not accept half-measures for answers and make further (hopefully many) inquiries to get to the truth.

While this might seem like something trivial, half-measures and "couched" answers can actually chip away at even the best of cases. One way to avoid these problems and "keep everyone honest," so to speak, is Supreme Court Rule 201(k). This rule allows an attorney that notices an incomplete or evasive answer to confront the other attorney and seek clarification to any lingering questions. If this fails, then a party may bring a motion before the Judge and let the Court decide if the question was adequately answered. The reasoning behind this rule is that everything in even the simplest cases can be won or lost in the smallest of details.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular situation--and help to ensure you are getting truthful answers. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Privacy and Your Medical Records

Philip J. Berenz — Fri, 12 Aug 2011 09:03:45 -0600

One of the most sensitive parts of filing a lawsuit after you've been the victim of an injury is the extent to which your private medical issues must come to light.

It is unfortunate that you have to give complete strangers access to your most private records, and it is an unfortunate side effect of pursuing your rights. Steep barriers prevent most people from having access to your medical information -- even your own attorney cannot ask for one paper from any of your doctors until the doctor has received a signed medical release pursuant to law from you personally.

Another important protection is the line of cases in Illinois known as the "Petrillo Doctrine," which prevents a defense attorney from so much as contacting your doctor.

In the case that set out the rule (Petrillo v. Syntex Laboratories, Inc.), the court ruled that no third party could permissibly contact a plaintiff's medical providers -- and as the later cases that would fashion this "rule" into a "doctrine" established, this includes defense attorneys, insurance claims adjustors, anyone.

The only way a defense attorney can obtain your medical records, or even appear for a deposition to take the information from your doctor(s), is by issuing a subpoena.

Collectively, these laws and rules are important, because they recognize the sensitive nature of filing a lawsuit for damage to your health, and they put as many mechanisms as possible in place to protect you and your privacy -- especially in such sensitive times.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Technology & Changing Trends in Discovery Process

Philip J. Berenz — Thu, 11 Aug 2011 06:19:27 -0600

One of the most important components of the litigation process leading up to trial is the discovery deposition. Deposition is a fancy legal word for a process by which a person sits down in front of a court reporter and gives testimony under oath that is transcribed by that court reporter.

A deposition may end up being the only time that a person is allowed to tell their "story" in their own words while being asked questions by an attorney. This process is so important that the Illinois Supreme Court Rules allow parties to take depositions in person simply by issuing a notice to the other side -- stated otherwise, they don't have to obtain permission from the court and issue a subpoena like they would for someone like an eye witness to an accident or a treating doctor or any person with information in relation to a situation such as a breach of contract in the business context.

Interestingly enough, however, courts are beginning to look favorably on using technology to make what is traditionally a rigid process into a more convenient, accommodating system.

Under the new Illinois Supreme Court Rule 206(h), parties can make a special request to take a deposition by telephone, video conference, or other live technological method. Because it is often debatable as to why many similar laws are enacted, the rules committee went out of it's way in this case to specifically note that:

The Committee is of the opinion that the apparent acceptance and utilization of telephonic and other remote electronic means depositions demonstrate that there is no need to require a party to obtain an order on motion to proceed with such depositions absent a written stipulation. Therefore, the Committee recommended the elimination of such a requirement so that the depositions may proceed by notice.

There are pros and cons to taking depositions via telephonic and other remote electronic means. We have been taking depositions in this manner for years--even before the Rules changed for efficiency and to save our clients time and to advance cases more quickly. Ask your attorney about their use of technology--simple changes in the way a lawyer practices can save you significant costs if you are paying by the hour and perhaps significantly advance your case in terms of the life cycle of a case if scheduling does not allow a lawyer to take the deposition by traveling an hour or more to a location for a deposition.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular situation and employ efficiency for you. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Low Insurance Policy Limits Issues

Philip J. Berenz — Mon, 25 Jul 2011 08:30:56 -0600

The insurance laws in Illinois, starting with 625 Illinois Compiled Statutes (or "ILCS" in lawyer lanugage) 5/7-601 sets forth the basic ground rules, noting:

No person shall operate, register or maintain registration of, and no owner shall permit another person to operate, register or maintain registration of, a motor vehicle designed to be used on a public highway unless the motor vehicle is covered by a liability insurance policy.

In plain English, this means that you cannot use or register (basically own) an automobile -- or allow someone to use your automobile, for that matter -- without having a minimum level of insurance. This sets forth the basics, but it doesn't provide much clarity on what the minimum coverage actually means. Again, as in most topics, we can write volumes of information but we like to at least highlight some of the basics: Minimum insurance limits in Illinois require $20,000 worth of coverage for injuries to one person, $40,000 for injuries to more than one person, and $15,000 worth of coverage for property damage. In industry terms, this is often referred to 20/40/15 coverage.

The limits for personal injury are perhaps best understood by way of analogy. Let's say that there was only one person injured -- the driver -- or you in an accident. This is the easy example: there would be $20,000 worth of available coverage for bodily injuries (this does not mean you will "automatically" get that amount of money if you are injured).

But let's say that instead of just you, there were 3 other passengers injured in your car. If there is only minimum coverage being carried by the at-fault driver/other car, there is not $80,000 worth of coverage available (or as some people believe $20,000 for each person in the car). There is only $40,000 available of insurance coverage for all 4 injured people.

If there is not enough coverage to pay for all the injuries, you could very well pay anything beyond that out of your own pocket unless you have "underinsured coverage" and/or an "umbrella" insurance policy (again, volumes on these two issues later or just call us to discuss and analyze your situation in a free consultation).

Now, as any Plaintiff's attorney will tell you, having coverage and actually getting the insurance company to take responsibility are two very different matters, but insurance law is a very complex creature and every situation is different.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you analyze your particular insurance situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Settlements and Liens

Philip J. Berenz — Mon, 11 Jul 2011 07:40:21 -0600

Generally speaking, it is everyone's goal to settle a case without a drawn-out lawsuit that can take years to prosecute and consume massive amounts of time and resources for all.

One of the biggest myths about the settlement process, however, is that as soon as the two sides come to an agreement, the client can expect the check the next day -- usually not true.

Unfortunately, due to the many parties, medical providers, insurance companies (yours, the defendant's insurance company, health insurance companies and others) and others involved in a lawsuit, it can often take a good deal of time before the client actually receives their check--maybe even a year or more. Let's say that you were the victim of an auto accident that is fortunate enough to settle without going to trial. The first thing that needs to happen is that the defendant's insurance company will send over a sometimes lengthy contract called a "Release," where the insurance company / defendant agrees to pay you the agreed-upon sum only if you agree to drop the lawsuit (or never file one). These "Releases" are often complex-worded documents that cover everything from the parties' liabilities to who will pay for any medical bills that arise in the future (almost always, this will be the plaintiff).

After this process, the next step is for any public assistance programs such as Medicare and Medicaid to recover any money they have spent -- this is a long and frustrating process for attorneys, more on these to come and we can literally write an entire book on these two entities and their unique processes to obtain their money -- which can, unfortunately, take up to several months or a year or more to work out.

Then, anyone else classified as a "lien holder" will have the opportunity to make a claim from the proceeds -- this includes doctors and hospitals that have unpaid bills relating to the accident and other similar expenses and even your own insurance company who has paid any medical bills and other costs. These "rights" to collect money when money is paid already are often referred to as "subrogation rights" meaning your insurance company has the right, by law, to "step into your shoes" and sue the person responsible for causing the bills in the first place. While this is a high-level overview, we can also right a book on subrogation rights.

Then, and only then, do the client and attorney get to cash in the check. This process can often be frustrating, considering the length of time that it can take, but it is important to keep this in mind from the beginning of the process. The financial ins and outs of lawsuits are complicated matters that sometimes take on a life of their own and is only part of the process that an attorney can help you with.

Most importantly, if you try to handle this aspect of a case yourself, you can easily find yourself subject to paying back the bills yourself if not properly handled due to laws and regulations that apply differently in each situation.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you ensure that all of your liens and subrogation issues are handled correctly. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation: Safe Driving, Drunk Driving and Auto Accidents

Philip J. Berenz — Sat, 02 Jul 2011 08:18:59 -0600

While the upcoming Fourth of July weekend is one of our nation's most celebrated holidays, it is also, unfortunately, one of our most dangerous.

Anyone who finds themselves out on the road during this holiday might notice a police roadblock searching for intoxicated drivers. While this might seem like an inconvenience to those who aren't driving drunk - the vast majority of us - it is important to be mindful of just how destructive the minority of drivers can be who choose to drink and drive.

Studies conducted by the National Highway Traffic Safety Administration ("NHTSA") show that 35% of all traffic fatalities in 2009 were caused by drivers that were legally drunk.

Alarmingly, this is actually a 3% increase from figures taken 10 years earlier.

The holiday weekend is a perfect time to relax, have fun, and enjoy the (hopefully) beautiful weather. But always make sure to be mindful of the safety of yourself and others. We have seen far too many people injured by drunk drivers and lives altered horribly. Let someone else drive. Be safe.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you in the unfortunate event of a drunk driving accident that caused you or your family or friends injuries - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Collecting from Defendants

Philip J. Berenz — Wed, 15 Jun 2011 06:47:26 -0600

The issue of collecting payment after you've obtained a judgment or verdict has two main forks in the road - the first of which is an insurance issue. In auto accidents, for example, the defendant will have an insurance policy that will pay out some, if not all, of your judgment. Often, we have had to chase even the insurance companies to collect many months after settlment, verdict or judgment.

Even when a judgment is collected, however, doctors, hospitals and other medical providers such as X-Ray and MRI companies may have what are known as "liens" on the money collected. Liens essentially "freeze" the money from being disbursed to anyone until they can be negotiated and released. Sometimes Medicare, for example, will have a lien (actually called the "Super Lien" as no written notice is even required!) and Medicare may take 6 months to maybe 1.5 years or more to resolve!

On the other hand, when a defendant either has no insurance or has a staggeringly low insurance policy, or a claim that is "outside the scope of insurance," (for instance, where you would sue someone for assault and battery, an employment-related dispute, or something else in an area that traditionally falls outside most insurance coverage), a successful plaintiff will have to seek to recover judgment from the defendant individually, which becomes a tricky subject.

Most people don't simply have, say, $50,000 sitting around for a rainy day for the far-out possibility that they may one day lose a lawsuit. What happens, then, if the defendant simply refuses to pay? Debtor's prison was abolished, we believe, over one hundred years ago and a judge will not send someone to jail for failing to participate in a lawsuit, and similiarly, a judge will not throw someone in jail for failing to pay on a judgment.

In instances like these, your lawyer must dig a little deeper and bring the court back into the mix. Some of the main options to attempt collection of a judgment (although there are certainly other options) are to bring a motion forcing the defendant to disclose all of his personal assets -- as a means to bring to light that perhaps he can really pay the judgment. This is generally known as a "Citation to Discover Assets." Next, a plaintiff could bring a motion for the court to garnish the defendant's wages -- this essentially sets up a payment plan where the defendant can keep enough money each month to live on, but must pay you in regular installments. Further, a plaintiff could freeze certain assets such as a bank account -- basically, this option prevents the defendant from making any money transfers.

Unfortunately, an attorney cannot guarantee that a defendant will pay the money they owe and even if collection efforts are made, a defendant could always declare bankruptcy and then the plaintiff will usually receive very little or nothing. Stated simply, a judgment debt is a big deal -- it can ruin someone's credit rating, it can collect interest at a rate of about 9% per year, and a good attorney can even get it registered with the Recorder of Deeds where it will come up (interest included) every time the defendant attempts to borrow money, purchase a house, or conduct business that involves taking out a personal loan. The point of the matter is that a good attorney will exhaust every possible option to obtain their client's rightful reward.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you ensure that your judgment and verdict will be pursued or how, as a defendant, we may be able to help you resolve these issues (yes -- we actually help both plaintiffs and defendants). Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Medical Records and Bills as Evidence

Philip J. Berenz — Tue, 14 Jun 2011 06:14:48 -0600

For reasons that may be fairly straightforward, the importance of a client's medical records and bills in a personal injury case cannot be overstated. In all but the rarest of situations, medical bills will make up the bulk of a plaintiff's total damages.

A plaintiff's medical records hold the key to the essence of the case, as understanding the medical records will illustrate what the plaintiff's injuries are and, perhaps more importantly, what the plaintiff's injuries may be in the future (known as the "permanency" factor in these matters).

Lawyers are not medical doctors, and reading and understanding medical records is an exceedingly difficult task and often requires an expert or the Plaintiff's treating physician (or multiple physicians) to testify for the jury to understand and hear such evidence.

As anyone who has ever suffered an injury or illness that required a hospital stay can attest, doctors' reports are often dense, highly technical documents that do not translate well to plain English. So the question arises, then, of just how an attorney, who likely does not fully comprehend the medical documents himself, translates these documents for a jury.

There are a number of ways to accomplish this task. Sometimes, the best way to present medical evidence to a jury is through the client himself. It should be mentioned at this point that the only way to introduce the actual medical records (doctor's notes, x-rays, etc.) is through the doctor himself (more on this topic later). This is not a hard-and-fast rule, however, as a plaintiff will likely wish to call a doctor to testify for a complex, serious injury. Generally speaking, however, a plaintiff can testify to how he felt, what he saw, and how things have affected him, and following this logic, he can testify to the basics of his own condition; however, plaintiff's are not allowed to give medical opinions since a plaintiff is not qualified to give medical opinions.

Stated otherwise, it doesn't take a doctor to testify that the plaintiff broke their leg in a car accident -- the inference to be drawn is clear, and the testimony can be based solely on personal knowledge. However, how a back injury turned into, or evolved into, a more serious back injury as a result of a car accident may be considered an opinion that only a qualified expert (a doctor) can present to the jury.

As to bills, a client can testify to the amount of any bill that has already been paid for. If unpaid, the rules of evidence will require a doctor or record keeper to come to Court and testify as to the making of the bill, its reasonableness and other technical aspects of the bill to essentially verify that the bill is proper under the facts and circumstances of each particular situation. Without such testimony for bills -- whether paid or unpaid -- the jury would not be allowed to consider a plaintiff's bills in awarding any amount of money.

A skilled trial attorney will ensure that all of your medical bills and records are complete and turned over to the opposing attorneys long before trial and will ensure that a doctor or other form of testimony will be presented for the jury to hear the evidence and for the Court to accept the evidence. Without this critical evidence and proper presentation, your case could become worth very little, or even worthless.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you ensure that all of your medical records and bills "make it into your case." Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Lost Wages in Relation to Injuries

Philip J. Berenz — Sun, 12 Jun 2011 21:52:42 -0600

One of the first questions many clients have when discussing their legal rights is what can be done about the time at work they were forced to miss after an injury. This is a particularly pressing concern during difficult economic times such as these -- many individuals cannot bear the financial strain of missing a long stretch of work due to injuries, particularly those that were someone else's fault, and the harsh reality is that many workers return from an absence due to injury and find that their jobs are no longer waiting for them.

A lost wages claim is an essential part of any lawsuit. A skilled -- and prepared -- trial attorney will be sure to include it in your claim.

These claims are often highly contested between attorneys. The injured party has the burden of proof to prove wages were actually lost. The best way to go about proving these claims for lost wages will be through the testimony of the plaintif herself. But testimony alone will not be enough to state a successful claim, however, and documentation of proof is generally alway required. In fact, Illinois law essentially requires a plaintiff to produce tax returns from the year before the accident, the year of the accident, and the year after the accident -- or, sometimes, the W-2s or other tax and / or income documentation.

What this documentation does is give the court and jury a snapshot of what the plaintiff lost by not being able to work. For example, the tax returns from year before the accident generally demonstrates what the plaintiff was making while healthy, the returns from the year of the accident generally illustrate the specific drop-off from the year of the accident itself, and the returns from the year after the accident may show what the plaintiff is capable of earning in her present state. Every situation is different of course and no two cases may perfectly reflect a scenario via tax returns. Sometimes an expert such as an economist, vocational expert, tax attorney, tax preparer or Certified Public Accountant (CPA) may be necessary to prove lost wages--especially significant losses and losses that may be permanent.

In any event, a skilled -- but more importantly, prepared -- trial attorney will be sure to press for your lost wage claim. Preparedness is critical because at trial time, if an expert is not disclosed or properly prepared to testify for a significant wage loss, your wage loss claim will be disallowed or "barred." Be sure to discuss this in detail with your attorney in an injury claim and ask the "hard questions" as to how that wage claim will be proved.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you ensure your case is handled in a "prepared" fashion - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: The Importance of Completeness

Philip J. Berenz — Thu, 02 Jun 2011 06:24:37 -0600

The Importance of Completeness

In every case, there is a "discovery process" where parties exchange information and begin to weed out the issues of a case. Many attorneys make the mistake, however, of assuming that just because materials (be they interrogatories (a fancy word for "questions" in writing), requests to produce documents, requests to admit facts, amongst others) have been sent to the opposing counsel, that the issue of discovery is complete. This, however, is most certainly not the case, and it can often lead to tensions between the attorney and the client.

Courts take the rules governing discovery very seriously, and one of the rules most commonly argued over is the rule of completeness. When you complete discovery materials, your attorney will almost always require you to sign a statement known as an "affidavit of completeness" that states that the answers you gave were true and complete. For example, the Illinois Supreme Court even requires such be signed by affidavit (See Il. Sup. Ct. R. 214).

The problem with this, however, is that in the law, as is often true in life, open-ended questions often lead to vague answers. Courts often conclude, when confronted with such vague and ambiguous answers, that the answer should be interpreted as "yes," even if that was not your true intent. This often comes up in the context of the often-mentioned Requests to Admit Facts. Many of these proposed facts set forth broad statements that you may not have enough personal knowledge or information to answer. Following in line with this rule, however, simply stating that you cannot answer the question is the same as admitting that the statement is true, strange as it may seem. This is an easy mistake to make, but it is an incredibly difficult mistake to fix. Even if an attorney catches such a mistake in time, he will most likely then be forced to scramble at the last minute to contact the client, clarify the response, and fill out the neccessary documents to correct such an error.

An open line of communication between attorney and client is critically important -- when clients don't understand the complex language many attorneys use in their discovery requests, the attorney needs to be available to explain the questions, and likewise, when an attorney needs to make corrections and deal with situations as they arise, the client needs to be available as well. The consequences of a breakdown in the communication process are dire, and unfortunately they are quite common. This is why it is important to seek attorneys who can communicate effectively with their clients. Likewise, it is important for the clients to make the effort to communicate and tell the whole story to their lawyers.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you ensure your case is handled in a "complete" fashion - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury and Business Litigation: Trial Aspects of a Case

Philip J. Berenz — Wed, 01 Jun 2011 06:12:46 -0600

A case often develops and "takes on a life of its own" due to the strategies attempted to be employed by defense attorneys. Essentially, a trial strategy can often draw a striking contrast between the way an incident seemed at the time of its occurrence, and how things are actually presented at trial.

A good trial attorney must keep the Judge and Jury focused on the truth at all times - and with the utmost passion.

For example, defense attorneys might approach the damages component of many plaintiffs' claims by arguing over "causation." As a matter of background, most personal injury cases are rooted in the law of negligence. In order to sustain a claim, a plaintiff must show four (4) main points:

(1) that the defendant owed him/her a duty not to harm / cause injury;

(2) that the defendant breached that duty;

(3) that there is a direct causal link between the defendant's conduct and the plaintiff's injury (the "causation" component); and

(4) that the plaintiff suffered damages.

When one thinks of a standard personal injury case, the common consensus is that the parties are arguing over a matter of perception -- essentially, who's fault the incident really was. However, defense attorneys might concede fault or "admit liability" but then spend the lead-up to trial and focus their entire efforts during the entire case and subsequently during the trial, itself, arguing that the plaintiff's injuries were not caused by the defendant's conduct (negligence). In plain English, the defense attorney will argue "Injured Sally's bad back is the result of age and arthritis and not due to the rear-end car accident while Sally was sitting at a red light when Joe Defendant collided with Sally at 30 miles per hour." In fact, defense attorneys will often hire a medical expert (a medical doctor) to analyze x-rays and other medical evidence to show arthritis or any other pre-existing conditions.

From a tactical standpoint, this is an interesting approach, because it changes the focus of what a case is really about. Instead of arguing over which driver had the right-of-way, a case becomes about whether that visit to the chiropractor was necessary, or why a plaintiff took an extra week to begin physical therapy.

Attorneys can bicker back and forth on these issues for days on end, and some of them actually do. Injuries are tricky sometimes -- they aren't always immediately apparent. Or sometimes, people do not like to admit to themselves that they are injured and take a "wait-and-see approach" to seeking medical treatment. In retrospect, it's easy to make an armchair diagnosis, so to speak, and come to the conclusion that someone should have taken a particular course of treatment, but this approach isn't necessarily consistent with the way things appear at the time of an incident.

This is an important consideration to keep in mind when seeking an attorney -- no case is perfect, and what separates a skilled plaintiff's attorney is the ability to clearly make the "causation" and "link" between the current injury and the accident and to carefully address any pre-existing problems and "carve out" such issues. Likewise, it is important that an injured party clearly communicate with his/her doctor the injury so it is well-documented in the medical records.

If you are in an automobile accident, get all the information possible immediately and take notes. Then contact an attorney immediately. You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.

Chicago Trial Attorney: Personal Injury and Business Litigation: Trial Time Issues

Philip J. Berenz — Mon, 09 May 2011 07:13:40 -0600

When a case goes to trial, it is often the case that some of the most important events happen behind closed doors, away from the jury and even away from the client.

Before a trial begins, attorneys from each side get together with the Judge and set down some "ground rules" for the trial, including what are known as jury instructions and "motions in limine" (more on the complicated topic of "motions in limine" later).

Jury instructions are how the judge instructs the jury regarding how they are to come to their verdict amongst other items, and they are the last thing a jury hears before they deliberate after the closing arguments by the attorneys - as such, their importance cannot be understated. When people think of jury instructions, what often comes to mind is often rather basic reminders that they are to decide what they think happened in the case, what the elements of the case are, what forms to fill out, things of this nature.

But few realize that carefully presented jury verdicts can take a "good" case and transform it into an unqualified success.

Let's say you were the victim in a car accident. Let's say you were stopped at a red light, and for no reason, a car behind you crashes into you, causing damage to your vehicle and, unfortunately, injuring you in the process. In cases like this, defense attorneys sometimes admit that their client was "negligent," basically admitting that the accident was their fault, and instead spend their time trying to argue that your damages (medical bills) should be lower than what you claim because you "over treated" with doctors or that you treated for issues not related or caused by the accident. This can happen for any number of reasons, but it is generally welcome news to a plaintiff's attorney. But what does this admission really mean? Maybe they don't present certain witnesses, maybe they even admit their negligence in court, but a good defense attorney is going to try to downplay this impact.

So how can a good plaintiff's attorney take advantage of this? One effective way is to use the jury instructions to their advantage. If given a proper jury instruction, a judge will instruct a jury that the Defendant has admitted fault. Here is an example of such an instruction:

The defendant has admitted that he was negligent.

The plaintiff claims that she was injured and sustained damage as a result of that negligence.

The plaintiff further claims that defendant’s negligence was a proximate cause of his/her injuries.

This will be one of the last things the jury hears before it goes to deliberate, and while they are deliberating, these words, along with all the other jury instructions, will be sitting right in front of them, serving as a constant reminder of who was at fault.

Sometimes, a subtle tactic like this can mean the difference between going home empty-handed, or simply breaking even, and truly compensating a Plaintiff for his/her injuries in an amount that is fair and reasonable.

If you are in an automobile accident, get all the information possible immediately and take notes. Then contact an attorney immediately. You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.

Chicago Trial Attorney: Personal Injury and Business Litigation: Felony or Criminal Backgrounds and Auto Accidents

Philip J. Berenz — Wed, 04 May 2011 22:11:55 -0600

It is one of the hallmarks of our judicial system that everyone is entitled to the same level of fairness in their access to the courts as everyone else. But sometimes, people are afraid to pursue their rights because they are afraid that things they have done in their past--particularly crimes--may be used against them.

For the first time, however, Illinois has joined the majority of states in enacting procedures to clarify what aspects of your criminal record can and cannot be used against you in a civil case. These issues are covered by Illinois Rule of Evidence 609, which came into effect on January 1, 2011.

Generally speaking, evidence of prior criminal convictions can only be brought up in a civil case to challenge your credibility as a witness - and regardless of what type of crime this is, only a conviction (or release from custody, whichever is more recent) within the last ten years is fair game.

From there, the Rule separates the use of convictions into 2 categories - misdemeanors and felonies. Misdemeanors can only be used against you if it is a crime involving dishonesty.

Generally speaking, any felony from within the last ten years can be used to challenge your credibility, but in order for this to be true, it has to pass a test for relevancy. What this means is that a Judge weighs how useful the conviction really is in challenging someone's credibility against how harmful it would be to let a jury hear about a felony that doesn't really have anything to do with truthfulness. Take a felony drug conviction, for instance - does the fact alone that it is a felony mean that it can be used to challenge someone's credibility? Not in Illinois, at least. Illinois courts in cases such as the 1995 matter of O'Brien v. Sandrock have found that a prior felony drug conviction has little or nothing to do with someone's ability to tell the truth, and even though it is a felony, the stigma it carries with it tips the scales in favor of refusing to let an attorney question you with it.

A skilled lawyer will know how to bring this to a judge's attention at the right time before trial and keep any mention of it from trial in what is called a "motion in limine" to protect their client's rights in the process and to prevent the jury from hopefully ever hearing about criminal past out of fairness for the issues at hand.

We can answer questions like these for you and help you through such matters - and would be honored to so do. You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you.