Why Haven’t I Served on a Jury?

As soon as I sat down to write this, I realized that I should have called the post “How to Get Out of Jury Duty” and gotten a lot more hits. Oh well – the current title will find the right people. People like me, who never get called for jury duty and wonder why.

I saw an article on FiveThirtyEight discussing that same issue. It first cites a small DRI survey noting that 27 percent of US adults had served on a jury at some point. That seems about right – maybe even a little high.

The article also discusses some of the basics – people picked for jury selection must be US citizens, must not be felons, and must have enough English proficiency to do the job. There’s more to it though.

In Illinois, the jury pool is picked from (a) registered voters, (b) drivers license holders, (c) disability identification card holders, and (d) applicants for unemployment. In Iowa, the jury pool is picked from (a) registered voters, (b) drivers license holders, and may include (c) “any other current comprehensive list… including lists of public utility customers”. Obviously this excludes a lot of people – those who don’t drive, haven’t registered to vote, and don’t have any utilities in their name. Quite frankly it excludes a lot of lower income people and people of color. The nature of the citizenship requirement also excludes a significant percentage of the Hispanic population – which often includes Resident Aliens who are not US Citizens.

Even if the system worked well, it could still miss some people. At this moment, my drivers license expired two days ago. It doesn’t list my current address. My voter registration is still at two houses ago – I always mean to get that changed, but I never do… there’s a chance I could have been called but fell through the cracks. I’m not alone.

Finally, one other aspect is the vanishing jury trial. For some reference, there were over 12,000 jury trials in federal courts in 1985. That number fell to just over 2,000 in 2010. State Courts are no different – Iowa, for example, had 1,426 jury trials in state court in 1995, but only 815 in 2014. There are many reasons for that, but the main point is that asking “Why haven’t I served on a jury” may be like asking “Why haven’t I seen a Black Rhino?” They’re both endangered – there just aren’t as many as there used to be.

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

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Calculating Lien Reductions under the Illinois Health Care Services Lien Act (after McVey)

The Illinois Supreme Court issued an opinion on McVey v. MLK Enterprises this week. Plaintiffs lawyers who accept small and/or difficult cases are frustrated.

The Health Care Services Lien Act, 770 ILCS 23/10(c), provides a framework to reduce the liens of health care providers (in some circumstances) after a case has been settled. The quick and dirty of this law (which is actually quite intricate) is that the total of all medical liens were reduced to 40% of the verdict or settlement, and the attorney’s lien was reduced to 30%, with the idea that there would still be money available to go to the injured party.

In practice, this doesn’t always work out the way it should. First, the Act didn’t address subrogation claims (like those for health insurance, Medicaid or Medicare). This has been mitigated somewhat by the new 770 ILCS 23/50, which allows for a reduction in subrogation if there is comparative fault or “uncollectability of the full value of the claim.” Second, the Act specifies that, even though a lien can be reduced, the injured party still owes the full amount of the bill. So if there is a $10,000 bill that is reduced to $6,000 under the Act, the injured person still owes $4,000 unless the attorney can negotiate that away (which we always try to do – typically by adding a little extra to the reduced lien amount). Third, to apply the Act to a provider who wasn’t willing to reduce its lien voluntarily, there has to be a suit or at least some sort of action filed by which the Court can adjudicate the liens. That’s fine if a case has already been filed, but for some that are resolved pre-suit, it could add filing fees and costs.

The McVey case created (or at least highlighted) a fourth problem with the Act. The 30% that goes to the attorney also includes the attorney’s costs incurred in prosecuting the case. Most attorney fee contracts provide that the attorney is paid 33.33% plus reimbursement of costs at the end of the case. So if an attorney settles a typical case for $10,000 after spending $500, the attorney would be paid $3,333.33 plus the $500 back. If the attorney needs to use the Health Care Services Lien Act to reduce the liens, then the attorney would only take home $3,000 total – 30% of the settlement.

Doesn’t seem that bad, right? Not in that case. The difficulty comes in where there is a compromise settlement of a difficult case, or a verdict without much awarded for pain and suffering.

Imagine the “bad verdict.” $10,000 in medical bills. Jury awards $12,000. Attorney has taken depositions and needed two treating doctors to testify at trial, spending $3,000. Attorney’s fees are now only $1,000, per statute. What if there were $5,000 in costs? Then the attorney loses $4,000.

Imagine the “50/50″ case. Both parties say they had the green light. Case worth, say, $20,000 but with a 50% chance of winning. $3,000 in costs, but a $10,000 offer. If the attorney takes the offer, he gets his costs back and nothing else. If he rolls the dice and goes to trial, his costs go up and he may get nothing – or even less. If there are medical liens out there, then there are unpaid medical bills. Settlement is probably in the client’s best interest, but then the lawyer would have worked and “loaned” $3,000 of his own money, for free.

This isn’t a pity party for us poor plaintiffs lawyers, although it certainly may sound like that. The real problem here is that many people will have difficulty finding attorneys who are willing to fight tough cases. Not all cases are clear cut. Some have difficult liability. Sometimes it’s tough to prove that the crash or whatever actually caused the injury. People with tough cases need lawyers who are willing to fight for them – even more than most people do because the cases are harder. People like me take those cases and enjoy the challenge – but if we can win and still not even recover what we spent out of pocket? It may make us think twice about taking the case, and it may leave injured people without the legal help they need.

(Howard Zimmerle is a personal injury lawyer handling car accident and other injury cases in the Quad Cities area. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

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New Iowa laws help car accident victims get a fair trial

Howard Zimmerle:

Just a quick overview of some of the new Iowa Civil Procedure rules on one of my other blogs…

Originally posted on Iowa Car Accident Law and Facts:

Happy New Year!

One of the interesting things we see each new year are the new laws that go into effect. The State of Iowa adopted some new rules for smaller court cases that will help anyone who has been hurt in an accident get a fast and fair trial.

The cases that make the news are the big ones – the cases in the hundreds of thousands of dollars or in the millions of dollars… and we handle those cases. We also handle much smaller cases – and let’s face it – most auto accident cases are smaller than that. In many cases our clients simply need our help to get their medical bills paid, along with a few thousand in lost wages.

When it came time for settlement discussions, one of the hard realities was that the trial process can be expensive and can take a long time…

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440,000 People Die from Medical Errors in Hospitals Every Year

I’ve been doing this long enough that articles like this one from Consumer Reports don’t surprise me anymore.

The number of deaths from preventable medical errors is astonishing. That’s why we do what we do. Quite frankly, we all want better medical care in this country. One small way to go about it is by holding physicians responsible for their medical malpractice. Hopefully the number of people killed will start to drop.

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

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Understanding Illinois’ New Settlement Statute

Illinois recently enacted a new settlement statute, with the goal of alleviating some of the hassles of the personal injury practice. 

We’ve all had cases that have settled but still sat on the shelf for weeks or months due to insurance company delays or lien issues. My partner taught me very early on that a plaintiff’s lawyer’s work isn’t nearly done when the case is settled. 

735 ILCS 5/2-2301 to the rescue*

*to the rescue like someone who calls 911, not someone who actually helps beyond that. It’s a nice statute, but it’s not wearing a cape and flying in to save anyone.

So what does the new statute do?

          1. Defendants must tender a release within 14 days of written confirmation of the settlement.

  • Practice point – after a settlement is agreed to orally, confirm it right away in writing or email. That gets the clock ticking.

          2. A settling defendant must pay all sums due within 30 days after the tender of the executed release.

  • Note that “tender” of the release means personal delivery or delivery with return receipt. In other words, drop it off or send it certified mail.

          3. The plaintiff may protect liens/subrogation interests by agreeing to hold the amount of the claimed liens/subrogation interests in his trust account until the lien/subrogation interest is resolved.

  • Why is this important? In theory, it means that if the plaintiff’s attorney sends the defendant a letter (along with the letter confirming settlement if you’re really on the ball) agreeing to protect those third party interests, there should be no need for anyone else’s name to appear on the check. Likewise, a plaintiff’s attorney can get the ball rolling with the settlement check while continuing to negotiate any liens or subrogation interests.

The scuttlebutt at the moment is that some insurance carriers are refusing to abide by the new statute – especially where Medicare is involved. The statute provides for costs and interest if the defendant does not pay in time. Not sure if that provides enough bite to keep the insurance companies from doing what they normally do, but at least it’s another arrow in the quiver. 

(Howard Zimmerle is a trial lawyer concentrating in personal injury, car accidents, medical malpractice and workers compensation. He practices in Davenport, Rock Island, Moline, Bettendorf, and most of Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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Juror Collapses in Med Mal Trial – Defendant Doctor saves her. What happens next? (UPDATED!!)

This is one of the most common war stories you hear in the medical malpractice world – someone in the courtroom collapses during a medical malpractice trial, and the defendant doctor runs in to render aid and save the day.

Everyone claims to know someone this has happened to. It’s the Eddie Murphy in the elevator of lawyer stories.

Here’s one time it actually happened. 

Bottom line is that the District Court allowed everyone involved to compose themselves over the lunch hour, polled the jury, and when the jury said they could still be fair and impartial, refused the Plaintiff’s request for a mistrial. The Court of Appeals reversed.

I tend to agree with the Court of Appeals. The bigger key is that if this happens to you, there are some citations in the opinion with other cases – so remember that if you need a quick brief on the issue.

EDIT: The Iowa Supreme Court reversed the Court of Appeals and allowed the verdict to stand. I disagree, but I see their logic. The opinion is here. 

(Howard Zimmerle is a personal injury and medical malpractice lawyer in Rock Island, Illinois, practicing in Iowa and Illinois. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com).

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I Relied on TrialPad for Ipad in a Medical Malpractice Trial… Here’s What Happened

For years I’ve used Trial Director for big cases, and simple things like blowups on posterboard for small cases. (Why posterboard? There are never any “technical” glitches, never a difficulty finding an outlet in a 100 year old courtroom, etc with posterboard).

This year I decided to switch it up. I bought an Ipad, and downloaded TrialPad for my trial presentation. It’s a $90 app, which made me swallow hard, but then I remembered the price of Trial Director, and I figured I’d give it a shot.

My plan was to try it out with a smallish dog bite case I was going to try in Iowa. That case settled the week before trial.

“Screw it” I said (or at least thought)… “I’m going to use it for this med mal.”

Of course, I started learning the software well in advance, so I’d have time to fall back to Trial Director if it didn’t work out.

It worked out.

Here’s what TrialPad was able to do:

  • Put exhibits/depositions up on the screen
  • Callout/highlight portions of exhibits
  • Use the laser pointer tool like, well, a laser pointer
  • Hold or freeze on one exhibit while I search for another

I did not use TrialPad for video depositions, although that feature is available. Why not?

  1. Too much potential for something to go wrong. The courtroom had a DVD player wired into the system. Why add another element (the Ipad) that could go wrong?
  2. Hassle of uploading the file. I’d have to take it off of the DVD, put it on the computer, put it on dropbox (assuming I even have that much dropbox storage available), and download it from dropbox onto the Ipad. Pain in the ass.

As usual, there were bells and whistles on TrialPad I don’t even know about, just like with Trial Director. Everything I described is typically all I would do with Trial Director as well.

As it was, I survived five days of a medical malpractice trial using only an Ipad for trial presentation.

PROS of TRIALPAD:

1. Cost

2. Space-saving.

TrialPad saved me a lot of space at counsel table. With Trial Director, I would typically have a laptop, scanner, big book of medical records/trial exhibits, and my notebook/pen. With TrialPad, I have my Ipad, and my notebook/pen.

CONS of TRIALPAD

1. The highlighter and callout functions aren’t as precise as I’d like. If you want to call out or highlight a passage that begins in the middle of the page and goes on to the next sentence, you have to include more unnecessary stuff than you would in Trial Director. The highlight function draws a yellow box, as opposed to working like an actual highlighter. It’s still readable, but not precise.

All in all – I will definitely use TrialPad again!!

I also used a website/app called Prezi for opening and closing. It allows you to create neat, interactive infographics that are usually more interesting and fancy looking than the typical powerpoint. It took a little getting used to, but really made for a nice presentation, and I will definitely use Prezi again.

In speaking with jurors afterwards, they were impressed with our use of technology. My case? Maybe not so much. On to the next one.

(Howard Zimmerle is a personal injury and medical malpractice attorney in Rock Island, Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

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