THE FOLLOWING QUESTIONS AND ANSWERS ARE GENERAL IN NATURE AND ARE NOT A SUBSTITUTE FOR LEGAL ADVICE. EACH CASE MUST BE EVALUATED UNDER THE UNIQUE FACTS AND CIRCUMSTANCES PRESENTED. THE LAW OFFICE OF WILLIAM J. MEACHAM OFFERS FREE CONSULTATIONS.
DO I HAVE A CASE?
This question can not be answered until the attorney learns certain facts regarding the incident or occurrence, which is believed to have caused the injury.
An injury to a person or his or her property is called a tort. A tort may be an intentional act or a negligent act or omission which results in an injury or death. Most injury cases arise out of accidental injuries which are caused by negligence.
In order to establish liability the injured person, or the personal representative of the decedent, in a wrongful death case, the Plaintiff, must prove the following:
The Defendant owed a duty to the plaintiff, the Defendant breached that duty, as a "proximate result" of the Defendant's breach of the duty the plaintiff suffered damages.
Everyone in society owes a duty to everyone else to conduct themselves as a reasonably careful person would under the circumstances. Negligence is defined by the law as doing what a reasonably prudent person would not do , or failing to do what a reasonably prudent person would do under similar circumstances.
Examples: Failure to stop at a stop sign, following too closely and /or failure to reduce speed to avoid a rear end collision are acts or omissions that a reasonably careful driver would avoid.
A physician is required to provide medical care which meets the "applicable standard of care." It is necessary to retain a physician as an expert witness to establish the "applicable standard of care" in a medical negligence/malpractice claim. The standard of care for a physician is to do what a reasonably competent physician would have done under similar circumstances; or to refrain from doing what a reasonably competent physician would not have done under similar circumstances.
HOW LONG AFTER AN OCCURRENCE CAN I FILE A CLAIM?
The Statute of Limitations for most injury and death claims is two years from the date of the injury. This means that generally the suit must be filed within two years of the date of the injury or death.
EXCEPTIONS TO THE RULE
In the case of a minor, under age 18, the statute is extended to the 20th birthday of the minor, two years from the date the minor reaches the age of eighteen years, at which time he or she may bring an action in his or her own name.
A parent or legal guardian may bring an action on behalf of a minor child.
The Discovery Rule provides for an extension of time of up to four years where a reasonable person would not have had reason to believe that the act or omission of the defendant caused the injury or death. This exception sometimes arises in medical negligence actions.
Construction: There is an extension available for up to four years for some injury cases which arise out of alteration or repair of buildings.
Workers Compensation: The time limit for filing a claim is generally three years from the date of injury or two years from the date of the last payment of total temporary disability benefits. There are exceptions for claims arising out of exposure to radiation or asbestos.
IF I HAVE A CASE HOW MUCH IS IT WORTH?
No lawyer can evaluate an injury case until the nature and extent of the injuries are known to a reasonable degree of medical certainty.
When the treating physicians release the patient from care, the lawyer will obtain the medical records and consult with the treating physicians in order to evaluate the nature and extent of the injuries incurred. The medical bills will be evaluated. The physician(s) will be asked to render opinions "to a reasonable degree of medical certainty" as to the future prognosis for the plaintiff. Examples: Will the plaintiff require (insert here the procedures which may be needed) in the future. Examples knee replacement, shoulder surgery, will the plaintiff develop arthritis ) if so what is the current cost of such procedure?
The lawyer must determine the amount of permanent disability, if any, incurred by the plaintiff. Will the plaintiff's ability to earn in the future be diminished? These and many more factors must be considered in the evaluation of an injury case.
WHAT ARE THE ELEMENTS OF DAMAGE?
A plaintiff in a personal injury case is entitled to be compensated for the following elements of damage: The reasonable medical bills incurred; the cost of medical services reasonably expected to occur in the future; lost wages; lost wages reasonably expected to occur in the future, reduced to "present cash value"; pain and suffering; loss of a normal life.
Each of these damages must be proven to have occurred as a result of the negligent acts or omissions of the defendant. The amounts to be awarded for pain and suffering or loss of a normal life are to be determined by a jury.
In a wrongful death case the elements include loss of society. The law considers Society to be the benefits that each family member enjoys as the result of the continued existence of the other family members.
A Spouse and minor children are entitled to benefits for "loss of society" in the event of a wrongful death. As in an injury case, the jury must decide the value of "loss of society." Lost wages which would have contributed to the support of the surviving family members, funeral expenses, medical expenses incurred for the care of the decedent, if any, and compensation for the pain and suffering incurred by the decedent are elements of damage which may be awarded.
DO I NEEED A LAWYER?
If you have been injured or a loved one has been killed by the negligent acts of another and you wish to exercise your rights under the Constitutions and Laws of the United States of America and the State of Illinois, you need a lawyer.
You may rest assured that the insurance company for the defendant is much more experienced in the legal arena than you are. Our legal system is an adversarial system. The insurance company has a duty to its stockholders to minimize claims. In plain English, to pay the least amount possible for every claim. A plaintiff's lawyer has a duty to obtain the best recovery, the most money possible, for his or her client.
In a jury trial each side presents its view of the facts through skilled trial attorneys. The facts are subject to " Rules of Evidence." The Judge will not allow "evidence" that is not reliable or relevant to the cause being tried.
A non-lawyer has as much chance in Court with the skilled attorneys who work for the insurance companies as he or she has to win a boxing match in the ring with a professional boxer.
If you have been charged with a crime, whether you are innocent or guilty, you need a lawyer. The power and resources of the State are arrayed against the criminal defendant. The State will have skilled trial lawyers to prosecute the defendant.
As a result of the above the Constitutions of both the United States of America and the State of Illinois grant criminal defendants certain rights, including the right to trial by jury. The State has the burden of proving, in open court, by rules of evidence, each and every element of the alleged crime BEYOND A REASONABLE DOUBT. It is the sworn duty of the criminal defense attorney to do everything allowed under the law to prevent the state from meeting its burden. Thus are the People protected from acts of tyranny such as have occurred throughout history. We fought a Revolution and quite a few wars to defend the rights of a free people. As a soldier, I took an oath to defend the Constitution of the United States of America against all enemies, foreign and domestic. As lawyer I took and oath to uphold the Constitution. I am proud to be a trial lawyer engaged in protecting the rights of injury victims and persons accused of crimes today.
HOW IS A LAWYEER PAID?
In injury and death cases the lawyer receives one third of the gross sum recovered on behalf of the client. The lawyer will advance costs of litigation on behalf of the client, which will be repaid at time of settlement or verdict.
In Workers Compensation case the lawyer usually is paid 20% of the gross recovery for "permanent partial disability." Limitations apply to some cases.
HOW DO I DECIDE WHICH LAWYER TO RETAIN?
There are many competent trial lawyers in the State of Illinois. As in choosing a doctor, I believe it is important to choose a lawyer you feel comfortable with. Someone whom you can talk to, and who will listen, and attempt to answer your questions.
Illinois does not recognize specialties in law, except in Patent Law and Admiralty.
I believe that it is wise to search for a lawyer who has experience in matters similar to your particular situation. Some lawyers concentrate in certain areas of law. Other lawyers practice general law.
It is unethical for an Illinois for a lawyer to represent that he or she can obtain a better result than other lawyers can.
You should make a decision regarding hiring an attorney based upon the level of confidence and comfort you feel with respect to the individual attorney. I would suggest considering the attorney's experience, general reputation in the community, and any information you may obtain from reliable sources. If you have friends or co-workers who have been represented by a lawyer and are happy with the result you should consider that information.
It is important to remember that, while past success may be an indication of a lawyer's skill, each case is unique. The amount of money recovered for a client in a previous case is not necessarily representative of the result that will be obtained in a later case.