The Plain Truth About the Practice of Personal Injury Law

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

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