Monthly Archives: February 2011

What’s on my Bookshelf – 14 Good Books for Trial Lawyers/Trial Practice

So here are the books I’ve bought in the last 5 or 6 years specifically to help my trial advocacy. Some are better than others, but each one is worth at least a look. In no particular order:

1. Ball on Damages – David Ball

2. Reptile – Ball and Keenan

3. Win Your Case – Gerry Spence

4. Who Will Speak for the Victim – Perdue

5. Words that Work – Luntz

6. What Americans Really Want, Really – Luntz

7. McElhaney’s Trial Notebook – McElhaney

8. Polarizing the Case – Freidman

9. Rules of the Road – Friedman

10. Moe Levine on Advocacy

11. Your Witness – Lessons on Cross-Examination

12. Ladies and Gentlemen of the Jury – Greatest Closing Arguments in Modern Law – Lief

13. Legal Blame – How Jurors Think and Talk About Accidents – Feigenson

14. Exposing Deceptive Defense Doctors – Sims

(Howard Zimmerle is a lawyer from Moline who practices accident and injury law in Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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New Illinois Case Good for Minors who had Settlement Proceeds Stolen

It happens too often.

Parent settles case on behalf of minor. The court orders the settlement proceeds to be invested and not to be touched without a court order until the minor turns 18 (or 21). Somehow, a parent dips into the money after all, and by the time the minor finds out, the money’s all gone.

It really does happen often, despite certain protections in the system.

Luckily, in Newell v. Newell, the Third District allowed an action against the parent and the bank in one of these situations. The court held that a three year statute of limitations applied, but also applied the discovery rule, so that the statute of limitations didn’t begin to run until the minor knew or had reason to know that a cause of action might exist.

(Howard Zimmerle is a lawyer in the Quad Cities, regularly handling cases in Moline, Bettendorf, Rock Island, Davenport, East Moline and other areas. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Two Things I’ve Learned About Car Insurance From My Experience as a Personal Injury Lawyer

I’m not in the business of selling car insurance. I’m a trial lawyer.

However, I deal with auto insurance companies every day. I’ve seen the aftermath of hundreds of car accidents. Vehicle damage, injuries, lost wages, you name it. I’ve sued auto insurance companies and won. I’m not exactly an auto insurance expert, but I know a few things from experience. Here are two insights I wish everyone knew:

1. Minimum insurance limits are not enough! Get as much uninsured/underinsured insurance as you can afford!

I can’t possibly stress this enough. Most states’ current limits are $20,000 or $25,000. (Luckily the Illinois House is reviewing a bill right now that would raise the minimum limits to $100,000. Still not enough, but better). That sucks. It will cover your minor cases and bumper tap cases, but if there is any significant injury at all – broken bones, herniated discs, torn ligaments, TMJ disorders, heck even an overnight hospital stay for observation, the case will be worth more than $20,000 and your assets could be on the line.

The super-important flipside to this is underinsured/uninsured coverage. You can control what you do behind the wheel (to an extent… everyone makes mistakes from time to time). You can’t control what other people do or how much insurance they have. What if you get really hurt because someone else ran a red light or turned in front of you? And what if that person has no insurance or crappy insurance? That’s where your own insurance can kick in – but only if you have enough coverage. Ask any personal injury lawyer, and they’ll tell you that they’ve settled many cases for meager insurance policy limits despite very serious injuries just because there was nothing more to go around. I’ve had cases where people have died, spent months in the hospital, etc that have settled for $100,000 or less because the other drivers didn’t have good coverage and our clients didn’t have good underinsured/uninsured motorists coverage.

I can’t stress that enough. I’m not trying to sell insurance, but buy more insurance!

2. If you took out a 4 or 5 year car loan, you probably owe more than the car is worth!

Once again, I don’t work for a bank or a car dealer, but I’ve seen my fair share of wrecked cars. Car dealers like to sell cars based on monthly payment, rather than on sticker price. They do this because longer loans (5 years and up) allow them to sell more expensive cars with smaller payments. These payments, over a longer term, make them more money.

Simple, right? But what’s the problem?

The problem is that, after a few months or so, you will owe more on a five year car loan than the car is worth. Then, if some idiot pulls out in front of you and totals your car, his insurance (or your insurance) will only have to pay the value of your car. You’re stuck with the rest of the loan for a car you don’t even have. On top of that, you need to buy another car and you don’t have anything to trade in.

Which leads me to my next point… don’t roll an old car loan into a new car loan. This will make the chasm between what you owe and what your car is worth even deeper.

My rule of thumb is not to take out more than a 4 year car loan (3 is much better), to always put a substantial downpayment down, and to never buy a new car. (Easy for Mr. Rich Lawyer over here to say, right? I do the same thing. It’s 2011 and I drive a 2006 Nissan. I put money down. I bought it used 2 years ago. If you read this and think that you can’t afford the car you want based on my method, you’re right – you can’t.)

Now I know that people will say “but would banks really loan people more money than they should?” YES! If the mortgage and banking crises of the last couple years taught us nothing else, it’s that banks will loan more money than they should and roll the dice.

So my bottom line is not to reach out too far on car loans and buy a lot of insurance. For some people this is “Duh 101″ but for many people this is very good advice. Please take it.

(Howard Zimmerle is a personal injury and car accident attorney in the Quad City area, including Davenport, Bettendorf, Muscatine, Rock Island, Moline, East Moline, Silvis, Galesburg, Kewanee and surrounding areas. He can be reached at hzimmerle [at] mjwlaw.com, or 309-794-1660).

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Trial Tip – Use a Rule of Law Kids Can Understand

This article in Slate about the definitive laws of childhood (ie finders keepers, he who smelt it dealt it) made me think about the rules of law that can be used in argument at trial to get your point across.

For years, trial advocates have been using nursery rhymes, stories from childhood, and similar experiences to connect with juries.

Another way to do it, where applicable, is to use a simple saying of law that kids understand. For example,

1. Finders keepers, losers weepers

2. Shotgun! (or any variation on “I called it first”)

3. Two for flinching

and perhaps the best one…

4. Look both ways before crossing the street

Obviously there can be more, depending on the facts of the case. Any ideas?

One other way to go is to use analogies from childhood. One that I use occasionally is the analogy of playing baseball in a park or vacant lot, when a baseball goes through someone’s window. Suddenly, everyone runs. No one wants to take responsibility. Stories like that can be useful in getting to the heart of a matter.

Any other ideas/suggestions?

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Tip for Illinois Nursing Home Attorneys – Don’t Forget the Administrative Code!

One of the key jobs of any attorney who sues a nursing home for abuse, neglect, bad patient care, etc, is to establish the proper standard of care. All good nursing home malpractice attorneys know to look for the nursing home’s own procedures, as well as the Illinois Nursing Home Care Act and the federal OBRA regulations. Yet some forget that the State of Illinois has many specific regulations in the Administrative Code – Title 77, Chapter I, Part 300. I’d recommend taking a look at that before filing a nursing home case and discussing some of the relevant regulations with your experts.

(Howard Zimmerle is an attorney in Rock Island Illinois, who practices in the entire Quad Cities and surrounding area. He often handles cases against nursing homes and long term care facilities. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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From My Other Blog – Are Carpal Tunnel and Cubital Tunnel Workers Comp Cases Easy Money?

This comes in response to a recent article suggesting that people in Illinois are making a ton of money without any effort by claiming they have work-related carpal tunnel or similar conditions. As I wrote here, things aren’t always that simple.

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New Preliminary Jury Instruction in Illinois – 1.01

Here it is – and it’s good.

If you remember, 1.01 was just re-done a year or two ago, but they added to it again.

The gist of some of the additions-

1. Don’t google stuff. Seriously, no wikipedia, no facebook, no [insert currently relevant website here, twitter or whatever] (seriously, the instruction says “insert current examples”. Nothing like the “alter my pants as fashion dictates” approach to jury instructions. It works though – imagine an old instruction that said “Don’t go to altavista or Ask Jeeves. Stay away from the usenets. Don’t chat about it on ICQ.”

2. Seriously, don’t friggin google stuff. This is the gist of about 3 paragraphs.

3. If you do talk about this, google it or whatever, you screwed up and wasted everyones time. Oh, and you could be guilty of contempt of court. I love this part of it. It is the first one of these instructions I’ve seen that answers the “why not” question.

So now you’re officially on the cutting edge of Illinois trial practice – you have the jury instruction in front of you the day after it came out. Assuming it’s still February 1, 2011.

(Howard Zimmerle is a trial lawyer practicing in the Quad City area. He can be reached at 309-794-1660 or hzimmerle[at]mjwlaw.com)

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Filed under Illinois law, Juries, Trial Practice