Monthly Archives: June 2007

Quick tip – responding to requests to admit

Here’s a Did You Know:

 Did you know that answers to requests to admit in Illinois must be SERVED on the opposing party?

Don’t mail them. Serve them.

(Howard Zimmerle is an accident lawyer in Moline, Illinois)


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Filed under Illinois Case Law

Quick tip – Illinois affidavits

If you submit an affidavit in Illinois under Rule 191 (ie supporting/resisting summary judgment) the affidavit MUST say that the witness can competently testify to the facts recited therein.

Simple enough, but I’ll bet many people forget this requirement or don’t know it at all. Just add this sentence at the end of every affidavit you do.

(Howard Zimmerle is a personal injury attorney serving the Quad City area)

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Filed under Illinois Case Law

Well, if the whole “law” thing doesn’t work out

Wow. A guy I knew from law school, Dustin Dirksen, just won over $380,000 at a world series of poker event. He had always been very serious about poker – more so than law school. Looks like he probably made the right choice.

(Howard Zimmerle is an attorney practicing in Iowa and Illinois)

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Filed under Uncategorized

Settling cases – the Deal or No Deal Way

When you and your client talk about settlement, how do you discuss his/her options? I like to use the show Deal or No Deal as an example on occasion.

(Image via

 First, for those of you who don’t know how the show works: It starts with 26 briefcases. Inside each case is a different dollar amount, ranging from $.01 to $1,000,000. A contestant picks one case to keep.

Then, the contestant has to pick certain cases to open. Once a case is opened, the dollar value in that case is off the board (ie if Joe Contestant picks the case holding $100,000, he can’t win that amount, because it wasn’t in the case he kept). At certain points throughout the show, the contestant will have an opportunity to “sell” his case for a dollar amount determined by a shady figure called the “banker.” The banker doesn’t know what’s in the contestant’s case, but he wants to sell it to you for as little as possible.

The offers are based on what cases are left on the board. If there are a lot of high numbers on the board, then there’s a greater chance that the contestant holds a high dollar amount in his case. The contestant decides to take the deal or keep playing, depending on what cases are left and how good he thinks his chances are he’ll do better.

Just like law.

The amount your client has in his case is what a jury would award. It could be a lot. It could be a little. We have a decent idea what the range would be, but you never really know until you get there.

 The banker is the insurance company. They want to give your client the lowest amount they can to make the client go away. Is it more money than what’s in your case (what you would get at trial?) If not, is it worth the peace of mind just to take the deal and go home?

As the attorney, you play the role of the supportive friends and family they always drag out (although hopefully you are a little less crazy). You can tell the client that you have a pretty good idea whether they should take the deal or not. You can see what cases are left on the board, and tell your client the chances he will get higher or lower than the offer. You can explain the potential risks, rewards, etc.

So the question is… Client… Deal? Or no deal?

(Howard Zimmerle is a trial attorney in Rock Island County, Illinois)

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Filed under Negotiations, Settlements

Hey, I got some publicity!

Head on over to the New York Personal Injury Law Blog.

The author is an attorney out of New York named Eric Turkewitz, and the blog is one of the best PI blogs out there. For an example of some of the neat stuff Eric puts out there, check out his running commentary of the pediatrician who was blogging about his own lawsuit in real time. Good stuff.

Anyway, every week Eric does a Personal Injury Roundup, and he included my post about getting the chiropractor bills paid, along with some very nice comments about my blog. Thanks Eric!

(Howard Zimmerle is a Quad City accident lawyer)

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Filed under Great Websites

Defendant got a ticket? Lock ’em down.

In both Iowa and Illinois auto accident cases, the fact that one party got a ticket for his involvement in the case does not come into evidence.

What does come in, is a guilty plea. If the party pays the ticket, that comes into evidence in a later civil trial as an admission of guilt.

The person will have an opportunity to explain why they paid the ticket, however. This is why you need to ask him about the ticket at the deposition.

“I’m handing you what’s been marked as deposition exhibit 1. Do you recognize it?”
“What is it?”
“It’s a ticket I got from this accident.”
“And that ticket was for failure to stop at a stop sign?”
“Is that your signature on the back of it?”
“So you pled guilty to the ticket, correct?”
(now the key question)
“Did you do that because you felt you were guilty?”

Why do you ask that question? Because many people will say “yes” and this eliminates other explanations (ie it was just easier than going to court) at the time of trial. If they have another explanation during the dep, so what? You’re not out anything for having asked.

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Filed under Illinois Case Law, Iowa Case Law, Trial Practice

How to get the chiropractor bills paid

Personal Injury attorneys in the Quad Cities, throughout Illinois, and probably most of the nation struggle with this conundrum quite often: Client gets into an accident. Client goes to the chiropractor. Insurance companies/juries don’t pay for the chiropractic bills.

 Believe it or not, this is a large issue here in the QC… even though part of the QC is Davenport, home of Palmer College of Chiropractic (the first ever chiropractic college), and most of the potential jury pool will usually have been to a chiro at some point in their lives.

So how do you fix this at trial?

1. Establish why the client went to the chiropractor in the first place.

Most of the time, a client will go to the ER before he sees any other doctor. The ER discharge instructions usually say two or three things: (A) if symptoms persist or get worse, see your family doctor, (B) if symptoms persist or get worse, go back to the ER, and (C) if you do not have a family doctor, call ###-####. These instructions are often held against your client.

By nature, your client failed to do at least one thing on the list. If he followed up with his family doctor, then he can didn’t go back to the ER. If he went back to the ER, he didn’t follow up with his family doctor. The instructions are inconsistent. Unfortunately, if he went to the chiropractor, then he did none of the three things above.

So you have to establish why your client chose to go to the chiro. Had he been to him/her before? How did he hear about them? Did he know him/her from somewhere else? Did he have a family doctor? Did he not just think about a chiropractor as a doctor who specializes in the back and neck? If the client’s reasons for going to the chiro rather than following the discharge instructions are good, it will go a long way towards getting the bills paid.

2. Have the client explain the course of treatment and how he felt after each visit.

One of the primary knocks on chiropractors is that it seems like their patients constantly have to go back… often three times a week or more for several years or even life. Many people feel like this is unnecessary and excessive.

To combat this, try to establish that your client made his appointments with the chiro as needed, not by any set schedule. (This, of course, only works if it’s true). Also, bring out the fact that, after each visit, your client felt a little better, and that gradually he improved (if that is the case). I think jurors are more likely to include damages for treatment that helped the client feel better.

3. Keep the chiro’s testimony to a minimum.

Some chiropractors belive that spinal manipulation can solve nearly everything… headaches, impotence, acne, depression, basically any disease or disorder you can name.

People don’t buy it.

What people do buy, however, is that conservative chiropractic treatment, in small doses, can help the back and neck. If that’s all that’s at issue, keep the chiro on topic. If you get one who believes that spinal manipulation can help your eyesight, cure your ingrown toenails, and help you remember your 11th grade French class, politely instruct him or her to keep that to him/herself.

4. Explain subluxations

Chiropractors love subluxations. The whole practice is devoted to fixing them.

However, doctors define “subluxation” differently than chiropractors. The physician definition is more narrow, which leads many defense attorneys to try to argue that chiros look for something that isn’t there.

It’s important for the chiropractor to explain that it’s not just a broader definition, it’s a different language altogether. This way when the ER doc testifies that there were no subluxations, and the chiropractor testifies that there were several, the jury will understand that they are simply talking about a different thing.

Can I prevent this from ever becoming an issue?

That’s a thorny one. If a client comes into your office, shortly after an accident, how much can you influence their choice of medical treatment.

I’m not exactly sure. You don’t want to practice medicine, and any advice you give them would not only get in the way of a personal choice, but would arguably be medical advice. You don’t want to go down that road. (It’s kind of like when certain professionals tell injury clients that their case should settle for “X” or that they should hold out for trial… it happens all the time, and it’s probably practicing law).

On the other hand, it is probably ok to explain to your client, before any non-ER treatment has begun, that juries and insurance companies often do not pay for certain treatment (chiropractic, massage therapy, acupuncture, holistic medicine, etc), and that they are free to make whatever treatment decisions they want, but that they need to be aware of the potential consequences.

I sure don’t have all the answers, but hopefully this helps someone in future cases. Does anyone else have tips in getting insurance companies and/or juries to pay for a client’s chiropractic treatment? 


Filed under Juries, Medical Information, Trial Practice