The Plain Truth About the Practice of Personal Injury Law

Wednesday, November 17, 2021

Personal Injury Law During Covid-19

After 45 years as a personal injury trial lawyer 20 months have passed without a trial or court appearance. A few days ago I walked into the courthouse to attend a court status call.  The Judge and Court personnel sat behind a solid wall of plexiglass which reminded me of a currency exchange. The spectator benches had been removed and folding card table chairs were placed around the room.

When I left the courtroom it reminded me of the experience of returning to an old neighborhood thinking that it would remain the same.  Unfortunately, that is rarely the case. I frankly wonder if the trial practice of law will ever be the same?  To be continued!

Tuesday, December 2, 2014


Decisions of the Illinois Supreme Court and Appellate Courts continue a pattern of inconsistent application of tort immunity law. 
Police officer, turning his vehicle around at intersection in order to escort a motorist to a “show up” identification relating to a suspected traffic altercation, was “executing or enforcing the law,” and thus was entitled to public employee immunity when his squad car was involved in collision with another car; officer was directed by another officer to direct the motorist to participate in the show up identification, there was testimony that officer's conduct in following motorist was routine police procedure, and officer's conduct at time of collision was still related to investigation of the initial traffic altercation.  Stehlik v. Village of Orland Park2012 IL App (1st) 091278, 966 N.E.2d 428, Ill.App. 1 Dist.,2012.
Compare the courts decision in In Aikens, in which our supreme court held that the transportation of prisoners did not constitute the type of execution or enforcement of the law that would immunize either the city or its officer from the plaintiff's claims. Aikens v. Morris, 145 Ill.2d 273, 278, 164 Ill.Dec. 571, 583 N.E.2d 487 (1991). The court noted the police officer's conduct “was not shaped or affected in any manner by the nature of duties in either enforcing or executing the law.”
The court’s reasoning in these case simply defies logic.  As a Chicago injury attorney there is no way to predict the outcome of tort immunity cases.

Saturday, November 23, 2013

Concussion Syndrome and the NFL

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It is curious that former NFL players have come out of the woodwork complaining of permanent brain injuries suffered playing professional football.These professional athletes who participate in the most brutal of all sports cannot truly argue that they were unaware of the dangers of playing the game. There is not a single player drafted out of college with a multi-million dollar contract that would have chosen not to play football and give up the money.  Anyone that has recently seen video of boxer Muhammed Ali knows of the detrimental effect of being repeatedly struck about the head.

Beyond head injuries it is a known fact that the bulk of NFL players look forward to a retirement with permanently damaged joints and the resulting traumatic arthritis. NFL teams are currently decimated with player injuries many of which will end their careers. 

We all make choices in life including these football players. I personally avoided playing football knowing what a beating I would suffer on a weekly basis. Let's all be responsible for our own conduct.

The Death of the Slip or Trip & Fall Lawsuit

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For many years the slip or trip & fall lawsuit was one of the easiest personal injury lawsuits to win. Municipalities such as the City of Chicago had no choice but to settle these cases since the city had no way to repair every defective sidewalk and street in spite of the fact that it had actual or constructive knowledge of the same.
Unfortunately for the victims of these types of cases, changes is the common law of the State of Illinois has signaled the end of these lawsuits. Having adopted the "open and obvious" rule, the courts routinely dismiss lawsuits when the surface defect is easily visible to the injured plaintiff. See: Ballog v. City of Chicago   2012 IL App (1st) 112429, 980 N.E.2d 690 Ill.App. 1 Dist.,2012. When the defect is small so that it is not open and obvious, the courts then apply the demmitius rule. See:
Morris v. Ingersoll 2013 WL 5173868, 2013.  The rule basically states when the defect is small there is no duty upon the defendant to warn the plaintiff or repair the defect.

An exception to the "open and obvious" rule is when the plaintiff was distracted and was therefore excused from taking notice of the defect.  Unfortunately courts have now narrowed the rule to distractions actually caused by the defendant that owned the defective property.

The unfortunate bottom line is be careful where you walk because if you fall and injure yourself you will only have yourself to blame.

Monday, May 28, 2012

What is an Illinois Wrongful Death Action?

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A “wrongful death” lawsuit that arises from the death of an individual that was caused most often by the negligence of another. Under the old common law there was no cause of action for death so goes the expression: “That if you run someone over with your car and they are still moving back up and run over them again.”
Under Illinois Statutory law (created by the legislature), a wrongful death lawsuit is different from other types of personal injury claims because the actual victim (the "decedent") does not bring the lawsuit, rather it is the limited stated family members or the decedent's probate estate. Recovery of compensation may be had by those blood family member that have lost economic support and/or consortium due to the death of the victim. The recoverable damages do not include those that are personal to the decedent, including pain and suffering, mental distress, or any other form of compensatory damages unique to him or her.
To file a wrongful death suit in Illinois, you must show that:
  • The death of a person was proximately caused by a wrongful act, neglect or other fault
  • If the individual had not died they would have been entitled to file an action to recover damages for their injuries.
  • Loss of support and/or consortium has resulted from the decedent’s death.
The proceeds of the wrongful death action must go to the surviving spouse or next of kin. If no surviving spouse or next of kin exists, then siblings may stand to recover.  A non related person cannot share in the proceeds even though the decedent may have been voluntarily supporting them. A personal representative is a person appointed by the state of Illinois to represent the beneficiaries. Siblings and cousins of the decedent do not have the right to bring the lawsuit unless they have been named a personal representative of the decedent or if no other persons survive the decedent.  When a jury awards damages it does so in a gross sum without identifying those persons that shall share in the same. The court then conducts a hearing without a jury to determine how the monies shall be divided.
Wrongful death proceeds do not pass pursuant the law of a will or “intestate succession”. A duly executed will has absolutely no effect upon the distribution. The trial court handles the entire process from beginning to end. In another article I will discuss a second type of lawsuit referred to as a “Survival Action” which comes into play when the decedent does not die immediately from the negligent act but languishes in pain for a period of time before he or she expires.
In a follow up article I will explain what is commonly referred to as a “survival action”.

Rick Grossman

Tuesday, May 15, 2012

Does a Lawsuit Survive the Death of a Party?

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In a previous article I explained what Chicago personal injury attorneys refer to as a “wrongful death” action. Today I will describe a companion cause of action known as a “survival action”. At common law a wrongful death action did not exist but was created by the state legislature to avoid the injustice created by the loss of support, sex society and services to the surviving spouse and children. Similarly at death an action for personal injuries abated on the theory that it was owned by the injured and could not be brought by others. Legislation changed this common law concept by permitting others to continue the prosecution subsequent to death. So what then is the difference between a wrongful death and survival actions under Illinois law? The simple answer is that the survival action merely continues the deceased plaintiff’s claim for personal injury damages as if the plaintiff remained alive. Recoverable damages include, pain and suffering, lost wages, loss of normal life, medical bills incurred, scaring and disability. All recovered damages would be deposited as part of the decedent’s estate and distributed pursuant to the terms of a valid will as determined by the probate court. All such injuries and damages are computed from the time of the injury until the time of death.Wrongful death and survival actions may be brought together in the same lawsuit as they cover separate items of damage. 

Even in death the lawsuit survives.

Rick Grossman

Sunday, February 26, 2012

I "Slipped and Fell" down in the store. It must pay for my injuries right?

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As an experienced Chicago injury attorney, prospective clients often consult with me after "slipping and falling" in the entrance area of a store, restaurant or banquet facility. They usually state that the area was wet from tracked in water from rain or snow.  Blame is placed upon the owner of the property for not mopping the floor, providing floor mats or erecting signs. On the surface they have a good argument but unfortunately they have no legal basis to file suit seeking compensation for their injuries.

Historically our courts have taken the position that liability will not be imposed upon a property owner for a natural occurring condition which they did not cause. Therefore there is no legal duty upon these Individuals to clean up the water. To a layperson this rule of law makes absolutely no sense. To make matters worse, if the property owner voluntarily makes an effort to clean up the water and does a poor job he can be held liable for a "slip and fall".

Given the fact that we all prefer to walk upon dry surfaces , the courts and state legislature have taken some initial steps to change the law to induce or require property owners to clean their sidewalks and mop their entrance way. These  rules know as "Good Samaritan" laws immunize property owners from negligence lawsuits. Local municipal cities including Chicago  have passed rules requiring owners to clear snow or face a stiff fine.

If one is injured in the interior of a store, restaurant or other place of business the liability of the business owner requires a completely different analysis.  The issue in this type of slip and fall case is whether the blamed condition which caused the fall was present for a sufficient period of time to put the owner on notice to clean it up.  A good example is as follows:

A person is shopping at the grocery store and falls as a result of a spill of oil from a broken jar of olives. The olives may have fallen as a result of the actions of another shopper who handled the jar. The issue is whether the store was on notice of the broken jar and failed to clean it up in a timely fashion. Did someone point out the condition to the store manager or did the store fail to have a safety practice of inspecting its aisles at regular time intervals?”

Obviously, there is no liability upon the store if the jar of olives fell in minute one and the injured fell upon them in minute two. The law does not impose a duty upon store owners to insure the safety of its patrons by having an employee standing at attention, waiting for the jar to hit the floor. Such a duty would be economically unreasonable.

The law usually imposes a higher duty upon the grocery store owner for "slip and fall" injuries in the produce section of a grocery  store.  The reason is that it is commonly known that produce will fall from bins, lettuce and banana peels will hit the floor.  Therefore,  these areas of the store require matting and constant attention.

As you can see the mere fact that a person falls down in a place of business does not necessarily make the owner responsible for their slip and fall injuries.

Monday, January 2, 2012

What Do You Mean I Cannot Sue the Pharmacist For My Drug Reaction?

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Before the takeover of the retail pharmacy industry by mega drug store chains such as Walgreens and CVS, small local pharmacies were the place we all visited for our pharmaceutical needs.  They were often located in the same neighborhood as our family physician. The pharmacist knew the medical history of family members and the physician that wrote the prescription. That personal knowledge provided a safety net to patients that they were receiving the correct prescription drug, in both the proper dosage and duration. In fact the pharmacist was the last line of defense if a prescribing mistake took place.
For the most part the family owned pharmacy is a thing of the past.  Mega sized chain drugstores are where we take our prescriptions to be filled. The staff pharmacist is likely not a member of the local community and may move from store to store as he or she is needed. The pharmacy counters are manned by so called “pharmacy assistants” who lack the years of formal education required to become a licensed pharmacist. The customer rarely gets to talk to or even see the pharmacist for consultation. Gone is the personal family relationship between the pharmacist and the customer.

So what role does the pharmacist now play in your health care? The answer depends upon who you are talking to. From a retail advertising prospective, the mega chain pharmacy does it all to the point that their advice often replaces the need to rum to the doctor.  We have all seen and heard television commercials where the drug chain boasts about its sophisticated computer systems where dangerous drug interactions are prevented and detailed important prescribing information accompanies all prescriptions. On their face those advertisements sure make you feel safe and secure knowing that you are in good hands of a professional pharmacist but beware of what you see and hear.

Hidden from the general public, drug store chains take the legal position that they are only responsible to fill the prescription as written by the physician and nothing more. In other words if a physician writes a prescription for a drug that the pharmacist knows or should know may be lethal in dosage or duration he or she has absolutely no responsibility to call the physician and discuss the issue with the doctor. They further claim that the pharmacist need not know the condition from which the patient suffers that caused the prescription to be written in the first instance.  The drug stores base this position by claiming is that it may not interfere with the doctor patient relationship. Not everyone receives the same dosage and duration of a particular medication for a particular condition.  In other words the years of sophisticated education and training that a pharmacist must complete to become licensed should not be used.  If the drug stores claim is true then any clerk that can read a label could perform the function of a pharmacist. A catalog clerk or hardware counter person should be able to fill prescriptions. Is this the function that you want your pharmacist to assume?

So which point of view is the current state of the law in Illinois and many other states?  Unfortunately for the consumer the “hidden” position taken by the drug store chains is in fact the majority view. You might ask yourself how can the courts allow these stores to get away with it? The answer is a hybrid application of the “learned intermediary doctrine” which is favorite defense of drug manufacturers.  In summary the “doctrine” holds that it is up to the physician to determine whether to prescribe a particular drug, dosage and duration for a particular patient. Under those circumstances, the pharmaceutical company has an obligation to the physician and not the patient to supply all necessary warnings regarding the drug. If a patient is harmed by that drug he or she may not sue the drug manufacturer unless the prescribing physician first blames the drug manufacturer for not supplying sufficient information or warnings to him or her regarding the drug. The courts have extended the doctrine to pharmacists using the same reasoning.

In a recent case I argued that a dosage of a particular drug, taken for a specified duration would cause harm to any human regardless of their age, weight or gender. The court denied the drug store chains’ motion to dismiss since the pharmacist should have known this fact without input from the prescribing physician. As the case progresses I will be writing follow up articles on this evolving area of malpractice/products liability law. 

Saturday, November 5, 2011

Is Teenage Distracted Driving Still a Significant Problem

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As a top Chicago personal injury attorney I am often faced with metting the families of those killed or seriously injured as a result of teenage distracted driving.  Alcohol, lack of sleep and bad weather all increase the danger of driving on Chicago’s roads. However, while drivers cannot control weather conditions, one risk — distracted driving — is a factor drivers have control over.

Distracted driving is especially dangerous for teenagers and young adults. Technology including constant communication between friends are the main culpret. Friends can divert a driver’s attention from the road and most teenagers are inexperieniced drivers. These are just a few reasons why teenagers, as the Daily Herald reports, are the most at-risk drivers in the country.

What Is Distracted Driving?

According to the U.S. Department of Transportation, there are three types of distractions a teenager may experience while driving:

  • Visual: Removing the eyes from the road (e.g., reading a text or putting on makeup)
  • Manual: Taking hands off the wheel (e.g., typing on a phone or changing the radio)
  • Cognitive: Thinking about things other than driving (e.g., relationships or school)

Given these factors it is clear why teenagers are the highest risk group for car accidents in the country. They must balance demands from school and extracurricular activities, try to keep up on the latest gossip, and usually get less than the recommended amount of sleep.

Troubling Statistics

The National Highway Traffic Safety Administration offers these statistics to put the dangers of distracted driving into perspective:

  • 11 adolescents are killed in a car crash daily
  • 82 percent of teens use of cell phone while driving
  • Texting increases the risk of an accident by 23 times
  • Sending one text message is equal to an adult consuming four beers

These alarming statistics could continue for several pages and this data, as reported by the Daily Herald, is why many safety advocates suggest a nationwide graduated driver’s license system (GDL).

Graduated Driver’s License Systems

The Illinois Secretary of State indicates its GDL requires parental consent for a 15-year-old child to obtain a learners permit, and this permit must be held for a minimum of nine months. Upon turning 16, a parent or guardian may certify 50 hours of driving practice has been completed and the teen may take the initial licensing test. This stage has certain restrictions such as no nighttime driving and a prohibition on cell usage. Finally, when a teen turns 18 they may obtain a full license with minimum age restrictions.

If someone has been injured in a car accident as a result of distracted driving, please contact my office to discuss their rights and potential legal claims.

Sunday, October 9, 2011

Did the Doctor Commit Malpractice?

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As a Chicago malpractice injury attorney I am frequently contacted by potential clients requesting that I file a medical malpractice case on their behalf. During the initial interview I often quickly discover that the individual does not have a “compensable” case.

Most lay persons as well attorneys unfamiliar with medical malpractice litigation do not understand the difference between “technical malpractice” and what I refer to as “compensable malpractice”. The main difference between the two can best be explained by the following examples:
Client A has a pepperoni pizza for lunch. One hour later he suffers from terrible chest pain. He decides to visit a hospital emergency room. The physician takes a history from Client A, who tells him about the pizza and the resulting chest pain. The physician is quite busy with other patients. He does nothing more than a cursory examination and tells Client A that he is suffering from heartburn from the pizza. He prescribes over the counter “Tums’” or “Rolaids’s” and signs the discharge papers. Client A follows the instructions but the chest pains continue to intensify. Days later he returns to the emergency room and is given a full detailed examined by a second physician. The physician tells him that days before he had suffered a major heart attack but he will fully recover(and did recover) without complications.
Did the first physician commit medical malpractice when he failed to properly examine the patient and simply guessed that he suffered from heartburn as the victim of a pepperoni pizza? The short answer is probably yes but his actions only amounted to “technical malpractice” and not “compensable malpractice” The main distinction between the two is that Client A did not suffer any harm because of the first physicians malpractice. If on the other hand Client A suffered major additional permanent heart damage or died then the matter becomes a case of “compensable malpractice”. In other words malpractice without substantial permanent harm is effectively no malpractice at all. No experienced Chicago personal injury attorney would be willing to accept the case.
During the course of a given day “technical malpractice” occurs in most hospitals. Patients receive the wrong medications or diagnostic testing. Nurses may fail to promptly respond to call buttons, Doctors and staff may abandon their patients for long periods of time. Patients conditions are misdiagnosed and appropriate treatment withheld. They are often discharged too early and given the wrong instructions. Follow up appointments are not scheduled and the patient is not contacted by staff.
All of the foregoing acts constitute “technical malpractice” and only become “compensable malpractice” when substantial harm occurs. Potential clients' and referring attorneys" can certainly benefit by understanding this important distinction.

Rick Grossman

Friday, October 7, 2011

Can the Jury See Photographs of my Car?

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The use of vehicle photographs that show minor damage to the plaintiff’s car is convincing evidence that most jurors find persuasive on the issue of whether the plaintiff was injured in the accident. Chicago injury attorneys have therefore attempted to avoid the admissions of these photographs wherever possible. In days gone by vehicle photographs were usually admitted in minor impact cases without the need for any additional foundational testimony from an expert.

In 2003 the Illinois Supreme Court held that defendants must have expert testimony when they sought to admit evidence of light impact photographs of the plaintiff’s vehicle depicting little or no damage. Following that decision the Cook County Circuit Court held that, absent expert testimony, the evidence was not relevant, and therefore, inadmissible to show that a correlation existed between the amount of damage to plaintiff’s vehicle and the extent of the plaintiff’s injuries. In affirming the Circuit Court, the Appellate Court dismissed the concept that there was a bright line rule regarding the relevancy and admissibility of vehicle photos to show a person’s lack of injury.

The case encouraged plaintiff’s attorneys in their efforts to deny defendants the use of vehicle photos yet their success has been limited and the trend is to allow the use of photos without expert testimony. In short courts have held that a lay juror can readily assess their relationship, if any, without expert interpretation.What plaintiff’s attorneys overlooked was that keeping photos of slight impacts from the eyes of jurors did the same for photos of heavy impacts.

The common thread among all of the cases dealing with this issue is that the trial court maintains wide discretion in admitting these photographs. The standard that they will employ is the time honored standard for the admission of relevant evidence which is now codified in Illinois in Supreme Court Rule 401 which states:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. IRE 401.

In making this determination, the courts tend to focus on the particular issues in the case. For example, if a plaintiff testifies that the accident was severe and that they were thrown around the vehicle violently, but the photographs show only minor scrapes to that plaintiff’s back bumper, a trial court is more likely to allow this evidence to rebut the lay testimony of the plaintiff.

The simplest way to at least have the photographs admitted is to offer them for the purpose of contesting liability. In almost every case, the defendant driver’s version of how the accident took place will differ from the plaintiff’s. If there is any basis to contest liability, no matter how slight, this should be factored in as an additional theory of relevance for the photographs. If the photographs are admitted and the plaintiff still objects and seeks an instruction from the court to limit the use of the photographs by the jury only on the issue of liability, that plaintiff runs the risk of over emphasizing the overall importance of the photographs to all issues in the case. Similar to asking someone to close their eyes and not think about a white elephant.

Another strategy developed by defense counsel for the admission of the vehicle photographs without expert testimony is to use them to rebut the testimony of a plaintiff regarding how the accident took place.

Finally, if a defense attorney suspects that a trial court is against the use of photos without expert testimony to correlate the relevancy of the minor damage to the plaintiff’s injury, a defense attorney may attempt to utilize these photos in the plaintiff’s own treating physicians’ evidence deposition as a means to contradict the basis of that physician’s opinion. Often times plaintiffs will tell the same exaggerated version of the accident to their treating physician or chiropractor and that will be relied upon by the physician or chiropractor as a basis in formulating their causation opinions. Showing photographs to these physicians of the lack of damage to the vehicle may cause the physician to alter their causation opinions or at the very least, indicate that the photographs contradict the plaintiff’s version of the accident. 

 So the conundrum remains unchanged as Chicago injury attorneys continue in their efforts to manipulate the system

Rick Grossman

Tuesday, August 30, 2011

What is a Dram Shop?

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A dram shop is a legal term referring to a bar, tavern or the like
where alcoholic beverages are sold. Traditionally, it referred to a shop where spirits were sold by the dram, a small unit of liquid.

A question often asked of me as a Chicago personal injury attorney is whether a tavern or bar is legally liable for the injuries caused to 3rd parties by intoxicated patrons? In Illinois the short answer is yes with many limitations. At common law dram shop liability did not exist. It is a creature of the legislature's enactment of a statute. The public policy behind the law holds that when one balances the economic burden of dram shop owners versus those injured by the actions of the intoxicated, the rights of the injured win out. In effect dram shop insurance becomes a taverns cost of doing business in Illinois.

The Illinois dram shop law holds that when the following is proven by a preponderance of the evidence the injured is entitled to relief.

  • 1. The dram shop sold alcohol to the person causing the injury,
  • 2. The alcohol sold by the dram shop caused or materially contributed to the person's intoxication,
  • 3. The intoxication was the proximate cause of the plaintiff's injuries,
The law is enforced against those who sold or furnished the alcohol to an inticated person and against those that rent or lease the property to the dram shop. There is also a special provision holding any adult that rents a hotel room for minors that he or she knows will be used to drink alcohol may also be held liable for harm caused by the minors.

At first you might assume that the injured are entitled to a full and complete damage award as if they were injured by someone’s negligent conduct. Unfortunately, the downside of the legislatures creation of the law is that it comes with a damage cap.

Causes of action for direct injury from the actions of an intoxicated patron which occur after January 20, 2011 may not exceed $61,151.39.

Actions for “loss of means of support” and or “loss of society”, may not exceed $74,740.59

The Illinois Dram Shop Act is intrastate in nature, in that alcohol served in Illinois which causes injury in Wisconsin does not constitute a violation. A tavern located near a state line can sell large quantities of alcohol to a person, carry them to their car, drive the car to the state line yet they are not liable for the death and destruction that may follow. On the other hand there would be liability if the neighboring state has a similar dram shop law.

Rick Grossman

Monday, August 8, 2011

The Anatomy of a Chicago Personal Injury Lawsuit

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Clients often tell me that they have never been involved in a personal injury lawsuit asking, “so how does it work”. The following is a guide for Chicago victims of personal injury to enable them to better understand the process and what steps their injury attorney will generally follow.

In Cook County, Chicago, Illinois, most civil actions are instituted in the circuit courts, law division, which handles personal injury claims. A “complaint”, is the first pleading to be filed with the clerk of the court which sets forth a statement of the Plaintiff's claim. Illinois is a “fact pleading” state which means that the rules of civil procedure require a plaintiff to set forth sufficient specific facts to state a claim for relief. There is a current filing fee of $295.00.

 A “complaint”, must include a statement of the defendant’s duty, his breach of that duty, and causing a specific injury to the plaintiff. At the end of a “complaint”, a demand is usually included requesting the relief sought. In Cook County, Chicago, Illinois a plaintiff is only allowed to request money damages in a sum in excess of the jurisdictional minimum amount which is $50,000. The first time that the plaintiff mentions a request for a specific dollar amount is through his attorney during closing argument. A “summons”, is then issued by the clerk of the court at the same time the “complaint”, is filed. Its purpose is to notify the defendant that he or she is being sued and direct the defendant to respond in a timely fashion to the allegations of the Complaint. The service of the “summons” along with the “complaint”, is typically performed by the sheriff of the county in which the defendant resides. The sheriff also charges a fee to perfect the service usually based upon the distance travelled from his office. The plaintiff must file the lawsuit in the county where the accident took place or where a defendant resides. The term “jurisdiction” may refer to territorial jurisdiction, subject matter jurisdiction, or jurisdiction over the person. The requirements of both subject matter and personal jurisdiction must both be met before the Court has the authority to judge the rights of the parties involved in the dispute. The “complaint”, must also be filed in the proper “venue”, which is the place where a case may be heard. “Venue” is location, whereas jurisdiction is the power of the Court to decide the merits of a case. In some situations, the Plaintiff may have more than one choice of “venue”. If so, the attorney tends to choose the venue which is most advantageous to the client and the case.

 After service of the “complaint” and “summons”, the Defendant must serve and file an “answer” to the “complaint” within a specified time. The Answer functions as a response to the Complaint. Special defenses known as, “affirmative Defenses”, must be asserted in the initial “answer”. The part of the “answer” which responds to the “complaint” must consist of admissions or denials to the allegations.

 Once the claims and defenses have been completed by the “complaint” and “answer”, the “discovery” process begins. This is the most important stage of the proceedings where cases are often won or lost. The primary purpose of any “discovery” is to learn the facts of the case and to determine the evidence that you desire to use at trial. “interrogatories”, which are written questions from one party to another, must be answered under oath. “Requests to produce documents” are used to obtain tangible materials including, photos, medical records, witness statements and digital data which is either helpful or detrimental to one side or the other. “Depositions” of witnesses follow which are taken under oath of the parties or witnesses. “Depositions”, are a method of evaluating your opponent should the case proceed to trial. They also pin down the testimony of witnesses.

Sometimes a case can be resolved by dispositive motions, such as a Motion for “Summary Judgment”.Summary Judgments" are not commonly granted because of the presence of material issues of fact which prevent a Court from concluding that one party will succeed as a matter of law. Depending upon the proceeding, the trier of fact could be a jury, or a judge.

“Mediation” has become a popular means of dispute resolution. The parties generally must agree to engage in “Mediation”, which is of course non-binding. The hope is that a neutral third-party mediator will be able resolve the dispute between the parties by settlement, rather than a trial. Mediators are frequently experienced retired judges or lawyers. Both parties usually contribute equally to the fees of the Mediator. If the matter is not resolved by “mediation” the case is usually scheduled for a jury trial.

Once the selection of a jury of 12 has been completed, each lawyer is given an opportunity to make an “opening statement” which, when properly used, sets forth what the evidence in the case will show. This should preview the case from each party's point of view and typically is confined to a concise statement of the facts that each party proposes to establish by evidence.

The evidence offered at a trial will consist of the testimony of witnesses, documentary evidence (such as business records), and demonstrative evidence (often including photographs, diagrams and/or charts).

During a trial, each side, or perhaps both sides, will often rely upon expert opinion testimony. To be admissible, the Court, in its discretion, will determine whether such expert opinion would be helpful to the jury in understanding the issues presented in a case. A
personal injury expert witness is usually someone who possesses skill or knowledge in a particular field superior to that of people in general.

At the conclusion of the presentation of evidence by both sides, the attorneys may submit requested jury instructions of law to the judge, but it is the judge's obligation to make the final determination as to the content of the jury instructions intended to instruct the jury of the applicable law.

Closing arguments allow the Chicago trial attorneys for each party to try to convince the jury of his client's position. Obviously, the aim of the attorney is to secure a favorable verdict for his client. Although lawyers have many theories on how to persuade a jury of the correctness of their client's position, most lawyers strive to make the jury want to find for his client and to tell the jury how to find for his client.

Once a jury reaches its verdict, a judgment order is presented to the trial judge and ultimately a judgment is entered in the case. The judgment is subject to post-trial motions and possible appeal.

Rick Grossman

Monday, July 11, 2011

The Delicate Balance Between a Chiropractor and the Soft Tissue Personal Injury Claim

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Assume that an individual is involved in a personal injury auto accident and sustains a “whiplash” type injury to their neck or back. No bones are broken but pain and stiffness follow.  They were of the belief that the injury would go away in a few days but unfortunately it has not. A friend or acquaintance then suggests that they make an appointment to see a chiropractor. They may have also have consulted with a Chicago personal injury attorney to represent them for their injuries. 

From this point in time the overall situation gets a bit tricky.  Liability insurance companies are typically not impressed by soft tissue injuries that are treated by chiropractors.  The companies are usually of the belief that the patient has minimal injuries which should clear up in a few weeks without any treatment. The problem of course is if the injured seeks no treatment then their claim is not worthy of compensation.  On the other hand if they obtain minimally beneficial treatment from a chiropractor over an extended period of time their case is simply a “phony”.
Chiropractors are not medical doctors. The treatments they provide are expensive and administered frequently. Many chiropractors aggressively target their marketing towards accident victims. The perception of many in the legal and insurance professions is that while chiropractic treatment may provide temporary pain relief (as would, say, a good massage), ultimately the cost of the treatment vastly exceeds the benefits provided.

If you have suffered a back or neck injury in an auto crash,  most top Chicago personal injury attorneys recommend that you be examined by a medical doctor before you even consider seeing a chiropractor. If you have a serious injury, such as a herniated disc, torn tissues or broken bones a medical doctor will probably treat you best. This may involve a referral to an orthopedic or neurosurgeon . If you are in pain, a medical doctor can give you a prescription for the appropriate medication (chiropractors cannot prescribe medication but love to sell vitamins ). From a lawsuit perspective, it looks much better if you go to a family doctor first, rather than immediately seeking a chiropractor. True or not, it is a widely held belief in the personal injury field that people who are really hurt go to medical doctors and people who just want money go to chiropractors. See a medical doctor first. If you are cleared to see a chiropractor, you can decide after that if chiropractic care is right for you.

The real problem that follows is to determine how much Chiropractic care to receive?  Soft tissue cases are most often not worth very much. While the pain you feel from your soft tissue injury can be intense, and sometimes permanent, there are no sophisticated tests, like MRIs or CT scans, that can prove the existence, much less the degree, of your soft tissue injury. Without the objective evidence provided by these types of scans to back up your claim, your subjective complaints will often be the only proof of how badly you are hurt. Subjective complaints by a claimant without hard medical evidence are usually not well received by either insurance adjusters or juries. In these types of cases, the chiropractor can be both your best friend and worst enemy.

Most chiropractors are honorable professionals who care about the health of their patients.  On the other hand many others see an auto accident as an opportunity to make money by over treating the patient.  They will request that the patient be treated by then 4 or more times a week. Minimally improvement occurs and the treatment continues on and on.  The evil Chiropractor tells the patient to not worry about the bill since his fee will come out of the patient’s personal injury settlement  through a lien served upon the attorney and personal injury insurance company.  What the patient is not told is that the amount of the bills will exceed the value of the personal injury claim! When it comes time to settle the personal injury claim the claimant is told that he will receive little or nothing after the Chiropractor is paid.

So what is the Chicago personal injury victim to do?  The single most important part is the fact that healing from a soft tissue injury is not simply Chiropractic care but rather a combination of the care plus the passage of time to allow the injury to heal.  Do not allow the Chiropractor to continue to run the meter on you when such treatment is not providing true effective relief.  Juries can usually tell when treatment has been given for good health versus the wallet. If they determine that you have been over treated,  an otherwise valid claim can be lost.

Remember, that life is all about balance, maintain it and you will succeed.

Rick Grossman

Thursday, June 16, 2011

How do Insurance Companies Value Automobile Personal Injury Claims

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As Chicago’s Top Personal Injury law firm we are often asked how insurance companies determine how much to pay to settle a personal injury claim.  Many companies use a computer software program known as Colossus. The program takes all of the feel and experience of the insurance adjuster and replaces it with a mechanical process that fails to consider the intangibles or non-legal issues  which are often the most important part of setting values. These would include whether injured party is attractive or ugly, smart or dumb, likeable or unlikeable and so on. Often jurors decide cases for reasons other than the law. The insurance industry maintains that the software is a useful tool because it considers a great many factors, and the settlement values are just a range for use in any way the insurer wishes. Plaintiffs' attorneys, including Steinberg Burtker & Grossman, Ltd. on the other hand, maintain that the software is a device that permits the insurance companies to discharge its adjusters and save labor costs. It is a penny wise dollar foolish concept that the insurance company has adhered to without much success.

A computer cannot quantify your emotional distress, or the loss of enjoyment of life because you no longer can take long walks with your spouse, or the pain and despair you suffer each day because your work hurts you and interferes with your healing? Unless all of your circumstances are included, is it fair to quantify all you have suffered and reduce to a dollar value based upon some factors that may or may not reflect your condition?

That is the pathetic Colossus software. It is an attempt by some insurance companies to value injury claims with no consideration at all given to whether or not a jury might award you more than the "average" claimant. They plug in such things as damage to the vehicles and expected length of treatment and allowable cost of treatment and many other variables and then come up with a number for the value of the personal injury claim. No consideration is given to the extent of your actual pain and suffering.

No consideration whatsoever is given to the fact that you might have a job where your injuries cause continued pain, or which slows your healing (consider, for example bank guard, or a person who has to stand all shift). They do not know, nor do they care, that you cannot hold your child because of the pain in your neck and back. There is no room in the formula for such information.

But the problem is that in our system, it is the jury that is supposed to be the basis for determining the value of a claim, and juries
do tend to listen to and consider many of the factors that Colossus ignores. Juries do make a distinction based upon whether or not they think the plaintiff is believable, or has attributes we value in our society, such as the virtues of honesty, perseverance, humility, or patience, for example.

Colossus has no way to evaluate those positive traits, so if you are possessed of anything positive that is likely to bring you a larger jury verdict, it will not be included in the Colossus valuation. You will have become a magnetic image, no different in regard to your positive characteristics than the magnetic image of any other of thousands of claimants with injuries similar to yours.

The real problem with Colossus is that the adjuster for your insurance claim is just about stuck with the results that come out of the computer. Of course the insurance company will deny this, and will tell the media that Colossus is nothing more than an evaluation tool. It just gives a starting point, they say, from which the adjuster can move up if the facts of the case merit it. This absolutely false.

The Colossus result is a position that is increasingly locked in, and the adjuster who wishes to vary from it because of the facts of an unusual case, had better be ready to justify it. Furthermore, how many times do you think any adjuster trying to make the cut at an insurance company is going to go to her boss and ask for permission to exceed the Colossus determination of value? Considering that her evaluation and merit pay will be based upon how "efficiently" (read that to mean cheaply, or "hard-line") she settles her cases, do you think she will ever go to her boss to ask for more money than allowed by Colossus? Not very likely. In fact the qualifications of an insurance adjuster has dropped from a skilled to unskilled position. Chicago Injury Attorneys no longer even bother talking to them to settle claims.

Colossus is a well-kept secret by the insurance companies that use it, and they will likely not tell you if they have licensed the software. It is the market leader bodily injury claims-handling software used by an increasing number of insurance companies in the world. According to Computer Sciences Corporation, the company which produces Colossus, it is used by more than 50 per cent of the nation's claim adjusters and by more than 300 insurance companies.

Colossus is regularly beaten by skilled Chicago trial lawyers.

Rick Grossman

Sunday, June 12, 2011

Federal Efforts at Tort Reform

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Last year, the Illinois Supreme Court rejected damage caps in medical malpractice cases. Now federal legislation has been introduced seeking to limit non-economic damages in nursing home negligence and medical malpractice claims while shortening the statute of limitations. This of course represents politicians efforts to once again cater to the insurance lobby. This is of course contrary to objective evidence that such measures have a negligible effect on overall costs while drastically curtailing individual legal rights.

The Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011 (H.R. 5), introduced in January, would also restrict liability in cases involving unsafe drugs and medical devices. This results from the efforts of the drug manufacturer lobby. The primary feature of the bill is a $250,000 cap on non-economic damages. But this rush to radically alter America's system of civil liability is not without vocal opponents.

Approximately 24 state and national consumer and public interest groups recently voiced their strong opposition to the proposed law in a letter to the House Judiciary Committee. The group roundly condemned the short-sighted strategies outlined in the bill, arguing that "caps on non-economic damages do nothing but stop the most severely injured patients from getting adequate compensation." But other aspects of the bill are also very troubling:
H.R. 5 would impose a statute of limitations that is much more restrictive than current provisions in many states
The bill eliminates the concept of joint and several liability, which allows a plaintiff to obtain full damages from any single defendant who is fully responsible for an injury
The proposed HEALTH Act of 2011 limits contingency fee arrangements, which are the only means by which most citizens can afford sufficient representation to oppose insurance company lawyers

H.R. 5 would impose a strict new standard for proof of the need for punitive damages, which are often the only way to make the most negligent providers change their ways

Perhaps worst of all, such federal reforms would impose from above the types of "tort reform" that have already been definitively rejected in many states. The authors of the letter conclude with a powerful statement: "Health care reform should not be accomplished by taking away the legal rights of patients who are injured through no fault of their own, or reducing the accountability of those who commit wrongdoing." Every concerned American should contact their Senators and Congressmen to express similar views.
Steinberg Burtker & Grossman, Chicago’s top personal injury attorneys continue to fight against tort reform and protect victims’ rights. Victims of medical and nursing home malpractice deserve full compensation for the negligent acts of others.

Saturday, May 21, 2011

What is Alternative Dispute Resolution or “ADR”?

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As a Chicago personal injury attorney with many years of experience, I have filed lawsuits against countless defendants, alleging negligence, medical malpractice, defective products and every other tort imaginable. Invariably, the attorneys hired by the defendant’s insurance company file what is known as a “jury demand”.  What this means is that the defendant insists that the case be tried before a jury and not just a judge. The reason for this tactic is to make it as difficult and expensive as possible for the plaintiff to win. In conservative jurisdictions such as DuPage County, Illinois, the insurance companies are of the belief that these “anti lawsuit” residents are more likely to send the plaintiff home without compensation on that basis alone.  In more liberal counties such as Cook, (Chicago) Illinois the defense view is just the opposite. Regardless of the location, medical malpractice insurance companies want their cases tried before a jury, thinking that it is much harder for a plaintiff to convince 12 jurors to award them money as compared to one judge.

During these difficult economic times both insurance companies and plaintiff’s attorneys have become extremely cost conscious which has created a “cottage industry” known as Alternative Dispute Resolution or “ADR”.  ADR is basically a private “court” where highly experienced retired judges are hired to act as arbitrators.  The parties to a personal injury lawsuit pending in the official court system agree to dismiss the lawsuit and submit it to ADR.  The cost of the proceeding including the arbitrators fees are generally split between the parties.

You might ask yourself, given the fact that the judges of our court system are paid a salary by the taxpayers why should I pay a retired judge to perform the same process?  The following is a list of the many reasons why each side is drawn to this new Chicago injury practice:

1.       The parties are able to select a judge that they both agree upon.  This is very important as predictability replaces “pot luck”.

2.       The arbitration is scheduled on a date convenient to all as opposed to the crowded court system selecting a date agreeable to it!

3.       The rules of evidence are relaxed which saves a tremendous amount of time and money.  Foundational and non-essential  witnesses are avoided, medical and other records are routinely submitted to the arbitrator for consideration.

4.       The expert witness testimony of physicians normally procured at great expense is avoided.

5.       The emotions of jurors which can help or hurt both sides are avoided.

6.       Plaintiffs’ attorneys trial time and defense legal fees are greatly reduced.

7.       The prejudicial attitudes of jurors are eliminated.

8.       Extreme verdicts in either direction disappear.

There is generally no appeal of the arbitrator’s decision which can be good or bad depending upon the result.  In either case the decision is final and the parties go on with their lives.

The next time you consider going to trial in a personal injury case remember that ADR may be “the way to go”?

Rick Grossman