Tag Archives: Damages

Illinois Health Care Services Lien Act – New Case

One of the great tools in a plaintiff lawyer’s arsenal in Illinois is the Health Care Services Lien Act, which reduces the amount of certain medical liens in some cases. It can really help increase the total amount your client ends up with in a settlement.

A new case from the 5th District, Stanton v. Rea, notes that the 40% of the settlement that goes to the medical lienholders should not be calculated until after costs have been subtracted from the settlement. In other words, the Act doesn’t mean 40% of the pie, it means 40% of the pie after costs. In some cases, that can make a big difference.

My partner, Mike Warner, just spoke on some new aspects of the Lien Act at the recent Rock Island County Bar Association Seminar. I think a thorough “how to” post is forthcoming.

(Howard Zimmerle is a personal injury lawyer in the Quad Cities of Iowa and Illinois, helping people who have been injured due to someone else’s fault. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

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Filed under Illinois Case Law, Illinois law, Negotiations, Settlements

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.)

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Filed under Settlements, Traps

Surprising Iowa Court of Appeals Ruling on Vehicle Damage

I assume the law on vehicle damage is pretty much the same in every state, right? The general rule is that the plaintiff gets the reasonable cost to repair the vehicle or the value of the vehicle, whichever one is lower.

In trial, the proof should go as follows: Plaintiff proves the value of the repair. Defendant either accepts the value, presents evidence that the real value of the repair is lower or that the value of the repair exceeds the value of the vehicle. If the defendant doesn’t do that, and liability is clear, the plaintiff should win.

Emphasis on “should.” In Iowa, this apparently isn’t the case. The case of Phipps v. Boone County requires the plaintiff to prove both:

A. The reasonable value of repairs, and

B. The value of the vehicle immediately prior to the collision.

Even if there is no objection.

I disagree with this… but Iowa lawyers need to be aware of this when handling property damage in car accident cases.

(Howard Zimmerle is a personal injury lawyer who handles auto accident cases in Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Iowa Case Law, Trial Practice

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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Filed under Trial Practice

Combatting the Just World Fallacy in Your Trial

One of the challenges we face as plaintiff’s trial lawyers is known as the “just world fallacy.” To quote wikipedia, the just world fallacy “refers to the tendency for people to want to believe that the world is fundamentally just. As a result, when they witness an otherwise inexplicable injustice, they will rationalize it by searching for things that the victim might have done to deserve it. This deflects their anxiety, and lets them continue to believe the world is a just place, but often at the expense of blaming victims for things that were not, objectively, their fault.”

This can lead to injustice in civil jury trials in several ways, namely when jurors:

  • Blame the wrong person for a car accident, believing it to be both drivers’ fault;
  • Blame a patient for a doctor’s malpractice;
  • Denying compensation  because a victim “shouldn’t have been there in the first place” or “shouldn’t have smoked” or “shouldn’t have been fat”
  • Denying compensation to an attack victim at a bar because they “shouldn’t have been at a bar”

One example locally came from the comments in one of the Quad City papers after the Milan McDonalds hepatitis outbreak. Several online commenters suggested that the people who got hepatitis deserved it for eating at McDonalds. I’m not making that up.

This fallacy exists to make us comfortable. It’s uncomfortable to believe that someone can be injured or killed through no fault of their own. It’s scary to think that bad deeds go unpunished, and victims are not compensated. So we fill in gaps out of fear, not logic.

As trial lawyers, how do we combat this?

Turn it around. Shine a light on it. Help the jury understand that unless they reach a full and fair verdict for your client, that justice hasn’t been done. They are justice – justice isn’t going to come magically or through karma, but it is up to them to make things right. Use their fear of injustice!

The hows, whys and wherefores are for a subject of another post. But remember that this fallacy exists, and combat it.

(Howard Zimmerle is a trial attorney in the Quad Cities, with offices in Davenport, Iowa and Rock Island, Illinois. You can reach him at 309-794-1660 or hzimmerle [at] mjwlaw.com)

 

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Filed under Juries, Trial Practice

Iowa Jury Verdicts Now Partially Available for Free (But are of Limited Value)

What’s my case worth?

Any good lawyer knows that the answer to that question requires a lot of knowledge – knowledge not just about the facts of the case at hand but about which facts may drive the value of the case and why.

One valuable piece of the puzzle is to see what juries have done in the past with similar cases. Even that has its limitations. Obviously not all juries are the same. Different states, different counties, different judges, attorneys, juries, etc would lead to different results in most cases. The key when looking at jury verdicts is to look at trends and patterns.

The Iowa Bar Association now has a free searchable database of Iowa jury verdicts. It’s incomplete (missing some cases), and it doesn’t give you much information about the facts of most cases, but it’s something. Any weapons in your arsenal that can help you value cases (and convince insurance adjusters, attorneys or even your own clients) that the value you put in your demand is correct sure can’t hurt.

(Howard Zimmerle is a plaintiff’s trial lawyer practicing in Iowa and Illinois. You can reach him at (309) 794-1660 or hzimmerle [at] mjwlaw.com).

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Filed under Iowa Case Law, Negotiations, Settlements, Trial Practice, Uncategorized

New Posts on My Companion Blog – Rock Island Workers Compensation Lawyers

Hey folks, I just wanted to publicize a few of new posts on the Rock Island Workers Compensation Attorney Blog. That is my other blog, intended to give regular people an overview of Illinois workers comp law. So here are some of my recent efforts:

“How much would an Illinois Workers Compensation Lawyer Charge Me?”

“Is My Workers Comp Case Set in Illinois? What State Can I Bring it in?”

“What is a Leg Injury Worth in Illinois (workers comp)”

(Howard Zimmerle is a trial lawyer in Rock Island and Davenport. You can contact him at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Filed under Illinois Case Law, Workers Compensation