Category Archives: Legal News

US Supreme Court Helps Insurance Companies, Screws Injured People

The US Supreme Court decided US Airways v. McCutchen today, allowing insurance companies to write their way around the common fund doctrine and similar law, and taking money away from injured people.

Make no mistake – this is a big deal.

See, the world used to work like this:

  1. Step 1: Person gets injured.
  2. Step 2: Health insurance company pays medical bills.
  3. Step 3: Injured person hires attorney, spends time, money and effort to settle case with tortfeasor. 
  4. Step 4: Injured person pays insurance company back, but keeps a fair percentage (typically 1/3 of the lien) for the time, money effort and attorneys fees spent in obtaining the settlement to pay the insurance company back. Without that effort, the insurance company would have gotten nothing.

Now things are different.

Step 4 now reads “Injured person pays insurance company back the full amount, so long as the insurance company requires them to do so.”

In some cases this won’t be a big deal. For many, many cases, liens and attorneys fees will eat up much or all of a potential settlement – especially in tougher cases, smaller cases, or cases with inadequate insurance. This is a lot of cases.

Bummer.

(Howard Zimmerle is a personal injury attorney in the Quad Cities of Iowa and Illinois. He has offices in Davenport and Rock Island. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

 

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New Illinois Medical Malpractice Law

Governor Quinn recently signed Public Act 97-1145 into law, changing one big thing and clarifying another big issue in Illinois medical malpractice cases.

First, attorneys fees on medical malpractice cases are now capped at 33 1/3% of the total recovery. There had previously been lower caps as case values increased. This is important for all attorneys to pay attention to for new or future cases. I think it’s a good thing, as med mal cases tend to be the toughest, longest, and most expensive cases personal injury lawyers handle.

The act finally codifies the current version of the 2-622 expert certification requirement:

(735 ILCS 5/2-622)  (from Ch. 110, par. 2-622)
    Sec. 2-622. Healing art malpractice.
    (a) In any action, whether in tort, contract or otherwise,
in which the plaintiff seeks damages for injuries or death by
reason of medical, hospital, or other healing art malpractice,
the plaintiff's attorney or the plaintiff, if the plaintiff is
proceeding pro se, shall file an affidavit, attached to the
original and all copies of the complaint, declaring one of the
following:
        1. That the affiant has consulted and reviewed the
    facts of the case with a health professional who the
    affiant reasonably believes: (i) is knowledgeable in the
    relevant issues involved in the particular action; (ii)
    practices or has practiced within the last 6 years or
    teaches or has taught within the last 6 years in the same
    area of health care or medicine that is at issue in the
    particular action; and (iii) is qualified by experience or
    demonstrated competence in the subject of the case; that
    the reviewing health professional has determined in a
    written report, after a review of the medical record and
    other relevant material involved in the particular action
    that there is a reasonable and meritorious cause for the
    filing of such action; and that the affiant has concluded
    on the basis of the reviewing health professional's review
    and consultation that there is a reasonable and meritorious
    cause for filing of such action. If the affidavit is filed
    as to a defendant who is a physician licensed to treat
    human ailments without the use of drugs or medicines and
    without operative surgery, a dentist, a podiatrist, a
    psychologist, or a naprapath, the written report must be
    from a health professional licensed in the same profession,
    with the same class of license, as the defendant. For
    affidavits filed as to all other defendants, the written
    report must be from a physician licensed to practice
    medicine in all its branches. In either event, the
    affidavit must identify the profession of the reviewing
    health professional. A copy of the written report, clearly
    identifying the plaintiff and the reasons for the reviewing
    health professional's determination that a reasonable and
    meritorious cause for the filing of the action exists, must
    be attached to the affidavit, but information which would
    identify the reviewing health professional may be deleted
    from the copy so attached.

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

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Filed under Illinois law, Legal News, Medical Malpractice, Tort Reform, Uncategorized

RIP Philip Corboy, one of the Best Lawyers of All Time

Phil Corboy of Corboy and Demetrio died yesterday.

I never knew him.

I’ve known some lawyers at his firm, and others by reputation, and have been impressed with all of them.

But Phil was the key. I don’t know if I would be in this line of work if not for Mr. Corboy. He was a pioneer. He fought the courts and fought the system to remove caps on damages and to make courts more fair. He tried cases in ways that hadn’t been done before, and won amazing verdicts that hadn’t been won before. He paved the way for every personal injury lawyer who came after him. (Here’s a fascinating article about how he did it).

He was an easy guy to look up to – not just for his results, or the street named after him in Chicago or for any of that – but for how far he came from with his background. In a profession where it feels like most lawyers came from upper middle class backgrounds and higher, Corboy was a scrapper who worked his way up from a lower middle class environment. I always admired other lawyers who grew up that way – and I believe it’s a common theme in the plaintiff’s bar.

I never knew him, so I’m not even close to the best person to eulogize him. I’m sure there will be great articles in many blogs and publications in the next few weeks, and I look forward to reading them. He was truly a pioneer and very well-respected. I just wanted to say thanks.

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

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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)

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Blagojevich Jurors, the “Fist to Five” Vote and Three Other Important Deliberation Notes

Rod Blagojevich was found guilty. Bo-ring! My question, of course, is what did the jury think?

The Chicago Tribune has that covered. The neat thing to come out of the article was how the jurors took preliminary votes. Rather than using a straight up “guilty/not guilty” vote, they used the “fist to five” method, which I had never heard of before.

As the Tribune puts it:

Instead of private ballot, they did a “fist to five” vote, a consensus-building technique Karin Wilson suggested. If a juror raised a hand with all five fingers, that meant they were leaning strongly toward guilty. A fist was innocent. If the juror was somewhere in between, the number of fingers held up gave an indication of which way she or he was leaning.

Brilliant!

After doing a little research, this is apparently a common decisionmaking tool in corporate meeting settings, or at least in those corporate “six-sigma”-type retreats where people discuss management, leadership skills, how to run a business, etc.

Frankly, it sounds like one of the neat ideas you get after a seminar but never really put into play. I’m glad to see it worked!

Another thing that stuck out was that the jury considered the impact that the verdict would have on Blagojevich’s family. As the Tribune reported:

The panel discussed how the verdict would impact the lives of his two children, daughters Amy, 14, and Annie, 8. Ultimately, they said, they pushed those feelings aside and concentrated on the evidence.

“Everyone brought up that he had a family and young daughters,” the forewoman said. “This is a real human being, and it makes you kind of nervous. But we knew we had a job to do and stuck to the evidence.”

Sometimes we like to pretend that the jury won’t think of these things. Of course they will. We’re all human. A good lawyer will consider this and maybe even address it a little bit if the judge allows.

The third thing I noticed will give strength to the “reptile” attorneys reading this – the jurors hoped their verdict would “send a message” to other politicians. That’s really how all attorneys hope a jury will think. Examples would be hoping a medical malpractice verdict would send a message to other doctors/hospitals/nursing homes that sloppy practice won’t be tolerated, or that a car accident verdict would send a message that safe roads are important, or even that a defense verdict would send a message that bad lawsuits would not be rewarded. Of course, it is reversible error to directly tell a jury to “send a message”.

Finally, the article linked above mentions several times how well the jury got along. This contrasts with the last Blago jury, where the deliberations were far more tense and the jurors really didn’t get along well. I think the trial tip from that is to try to pick jurors who will work well with others. Stay away from jerks.

Hopefully we all learned something from this. Illinois – we have more imprisoned former governors than you do!

(Howard Zimmerle is a trial lawyer in Rock Island Illinois, practicing in much of Western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Throw Away Your Bluebook – New Case Citation Rule in Illinois!!!

The State of Illinois changed good ole’ Rule 23 again. The days of the big old legal volumes (specifically the Illinois Reporter and Illinois Appellate Reporter) have gone the way of telegraphs, newspapers and polar bears.

Throwing away my old citation guide (but not really)

The proper way to cite a case in Illinois is (after July 31, 2011) to the public domain citation (with additional citations to the Northeast Reporter, if you want to go the extra mile). What is the public domain citation, you ask?

It’s a unique identifier given to each case by the Court.

A proper citation would include the relevant paragraphs and look like this:

People v. Doe, 2011 IL App (1st) 101234, ¶ 15
People v. Doe, 2011 IL App (1st) 101234, ¶¶ 21-23
People v. Doe, 2011 IL App (1st) 101234, ¶¶ 57, 68

Truth be told, I don’t know if this will be easier or harder, and I’m not sure when Westlaw and Lexis  (not to mention Fastcase) will catch up. Either way, the dinosaurs will have some catching up to do.

For further reading:

The new rule and commentary

Illinois Lawyer Now

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

 

 

 

 

 

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Discovery Depositions of Parties May Now Be Used at Trial in Limited Circumstances

This is good news! Illinois Rule 212 has been changed to allow use of a party’s discovery deposition as evidence at trial if the party is “unable to attend due to death or infirmity” and the court finds it will do substantial justice.

I had a situation just like this come up this year. An insurance company had filed a dec action against my client, its insureds and others. I was defending on behalf of my client. We were ready for trial, and one of the insureds was diagnosed with cancer. The insurance company wouldn’t dismiss her as a party and wouldn’t agree to use her discovery deposition in lieu of testimony at trial. The old Rule 212 prevented me from being able to force them to do that. We ended up delaying the trial for a few months until she was healthy enough to give an evidence deposition – and I question whether she was even healthy enough to do that.

We won the trial, but several months of delay and the unfortunate situation of having to take an evidence deposition of a cancer patient in between chemotherapy treatments could have been avoided if this rule change had been adopted earlier.

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

 

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