New Illinois Rule 243 – Jurors Can Ask Questions!

Big news today – the Illinois Supreme Court adopted Rule 243, which allows jurors in civil cases to ask questions in certain circumstances. The rule reads as follows:

New Rule 243
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit
to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court
shall determine whether the jury will be afforded the opportunity to question the
witness. Regarding each witness for whom the court determines questions by jurors
are appropriate, the jury shall be asked to submit any question they have for the
witness in writing. No discussion regarding the questions shall be allowed between
jurors at this time; neither shall jurors be limited to posing a single question nor shall
jurors be required to submit questions. The bailiff will then collect any questions and
present the questions to the judge. Questions will be marked as exhibits and made a
part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question
to all counsel, allow counsel to see the written question, and give counsel an
opportunity to object to the question. If any objections are made, the court will rule
upon them at that time and the question will be either admitted, modified, or
excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer
only the question presented, and not exceed the scope of the question. The court will
ask each question; the court will then provide all counsel with an opportunity to ask
follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems
appropriate, the court shall advise the jurors that they shall not concern themselves
with the reason for the exclusion or modification of any question submitted and that
such measures are taken by the court in accordance with the rules of evidence that
govern the case.

The rule can also be found here.

So what does it all mean, practically speaking? A few thoughts:

1. Judges do not have to let jurors ask questions. I suspect many older judges won’t do this at all. I’ve spoken to some local judges who are excited about this possibility.
2. There is room to object and/or edit the question away from the jury. This is important, as I sure don’t want to object to a juror’s question in front of them.
3. No discussion between the jurors. This is good too – it prevents preliminary deliberation.
4. This does not need to happen for every witness. Hopefully this doesn’t slow down trials too much, although in a way it reminds me of letting fans suggest pitches to a pitcher – slowing down an already molasses-slow process.
5. I’m a little scared of this. I like control. I usually know what the defense lawyers are going to ask, and they probably know what I’m going to ask.
6. I also like the idea that jurors might feel more involved and more “into” a trial. This is a much better option than having jurors who are asleep by 1pm the first day of trial (or even in closing arguments… I had a juror sleep through my closing arguments once, and guess what… she became the foreperson, and I lost. GRRR…)

What do others think?

A recent article in the Illinois Bar Journal notes that other states and federal courts have tried it, and that the reaction of juries, judges and even attorneys has been largely positive.An example of this would be a pilot program in New Jersey, with similar results.

Will it change case outcomes? We’ll see. This may be the biggest change in trial practice since I became a lawyer – or it might be nothing.

(Howard Zimmerle is a plaintiff’s personal injury lawyer practicing in Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

If We Had a Motto

I was thinking about this lately… if Warner & Zimmerle, or I personally had a motto as a lawyer… it would be:

Don’t be a stereotype.

It harkens back to Google’s motto  - “don’t be evil“

Basically the point is not to do what bad lawyers do. Not to be who the public often thinks we are. 

For some examples:

1. Be honest. Be honest with clients, juries, media, everyone. When you hide the truth or stretch the truth, it makes you a stereotype. 

2. Be humble. Often times the lawyers who are always shouting in commercials or on the internet about how great they are – aren’t that great. Be confident and proud to share successes, but don’t be a stereotype.

3. No frivolous cases. Don’t file a case without a really good basis for it. Hire expert witnesses who will give you the truth – not what you want to hear. Good lawyers don’t like frivolous cases – they get in the way of good cases, make it harder for good cases to get to trial, and poison the public’s opinion on the justice system in general. The same should go for defense attorneys. No frivolous defenses. Unfortunately, we see a lot of dumb defenses with no basis in fact. Don’t be that person.

4. Give back to the community. This should go without saying. 

I think this would be a good start for all lawyers. Greed, competition, fear and other emotions can sometimes jump in and cloud a good lawyer’s judgment. In those times, come back to this and remember who you want to be – and who you don’t. 

(Howard Zimmerle is a personal injury lawyer from the Quad Cities in Iowa and Illinois. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660).

How Confident Should You Act in Front of Your Clients?

One of the old maxims in business is “underpromise and overdeliver.” That holds true in most businesses and professions I can think of, including the law. 

As a plaintiff’s personal injury lawyer, however… there’s a line somewhere. 

Most of the time we deal with people who have very little legal experience – and almost always no relevant personal injury experience. If they have an idea in mind about what their case is worth, it often comes from either (a) news reports of big verdicts/settlements (ie McDonalds coffee case), or (b) what some friend/neighbor/coworker got in a settlement several years ago. 

So when we discuss settlement or trial, our job is to inform our clients so that they can make the right decisions. If they have a great case, they still need to know that juries do weird things. Slam dunk cases can be lost. Juries can award medical bills of $200,000 and $10,000 in pain and suffering and think they are doing you a favor. Juries tend to make the right decision, but there are always horror stories of juries who make decisions on bad assumptions, or because they didn’t like someone’s shoes, or whatever. 

If your client’s case is dicier – questionable liability, major issues of some kind, whatever… you have to be blunt with your assessment of chances. You have to be able to explain that, say, juries often don’t award anything for minor impact auto cases, or that their treating doctor will connect the accident and injuries, but not with as much gusto as the defense’s doctor. 

You have to do all of this in a way that clients understand the potential pitfalls, but still trust your abilities and still know that you believe in them and will fight for them. 

If you are too blunt with your assessment of trial potential, your client might start to doubt you. They might think they didn’t hire the right lawyer. They might spread bad word of mouth. 

On the other hand, if you are too rosy, and if things don’t go well, they will doubt you. They will think they didn’t hire the right lawyer. They might spread bad word of mouth. They might even sue you for malpractice, breach of warranty, or something creative like that. 

The key is riding the line – staying honest and blunt, but with the right level of optimism. At the very least, in every case your client needs to understand that we never know exactly what a jury is going to do. The case depends on 12 (or 6 or 8 or whatever) people we’ve never met and only get a limited amount of time to talk to beforehand. It depends on whether all witnesses show up, whether they come across well in stressful situations, whether the judge applies the law correctly, etc, etc, etc – many things that we just can’t know until they happen. We have a good idea what will happen, but you just never know. 

(Howard Zimmerle is a personal injury, medical malpractice, nursing home malpractice, trial lawyer in Rock Island, Illinois, with an office in Davenport, Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

I Have to Cross Post re: Illinois Workers Comp Shoulder Injuries

Just a quick hat tip to my other blog, Rock Island Workers Compensation Attorneys…

A new case came out holding that shoulder injuries are to be considered part of the body as a whole, not part of an arm. Read about it here. 

 

IRS Clarifies Taxability of Tort Damages

The Internal Revenue Service has shed some light on the taxability of tort damages. Attorneys typically have the kneejerk response that personal injury damages are not taxable. That is only true to a point.

The new regulation clarifies a few things, namely:

• Damages for personal injury or sickness are not taxable
• Damages for “emotional distress” are taxable unless they are attributable to a physical injury or sickness
• Punitive damages are taxable

The emotional distress language is important for people who handle employment law cases, false arrest, or other torts where emotional distress is recoverable but don’t typically involve physical injury or sickness.

(Howard Zimmerle is a trial lawyer from Illinois. He practices throughout western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com.)

Some Tips for New Illinois Workers Comp Attorneys from the Late Arbitrator Jutila

As some may know, former workers comp arbitrator Jerry Jutila passed away recently. While he was battling illness, he nevertheless found the time to write a wonderful guide to arbitrators.

If you’re a workers comp lawyer, stop what you’re doing and read it.  Right now.

It’s intended for arbitrators and practitioners and should help people (especially new attorneys) learn to do things the right way. Many do, many more don’t.

I’ll keep a copy at my desk and read it from time to time. I suggest you do too.

(Howard Zimmerle is a personal injury and workers compensation attorney from Rock Island, Illinois, practicing primarily in Rock Island, Henry, Mercer, Knox and Whiteside counties in Illinois and Scott and surrounding counties in Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

Illinois Workers Compensation Commission Says “Impairment Ratings? We Don’t Need Your Stinkin Impairment Ratings”

One of the key features of the new workers compensation act in Illinois is that arbitrators are directed to use the AMA Guides (6th Edition) as a factor when awarding permanent partial disability. Specifically, Section 8.1b(b) requires the arbitrator to consider (a) the reported impairment rating, (b) the occupation of the employee, (c) the age of the employee at time of injury, (d) the employee’s future earning capacity, and (e) evidence of disability corroborated by the treating medical records. Additionally, the arbitrator must explain the relevance and weight of each factor he/she used “in addition to the level of impairment as reported by the physician.”

So does a physician NEED to report a level of impairment? Likewise, does the arbitrator NEED an impairment rating to approve contracts or enter a finding of disability?

According to the Commissioner’s office, the answers are No, and No.

I’m speaking at a seminar in Fairview Heights in February in detail about the effect of the new rule and the application of the AMA Guides. For now, there may not be as much of a shockwave as we thought.

(Howard Zimmerle is a personal injury and workers compensation attorney in Rock Island, Illinois, practicing in all of Western Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)