In situations where minor's have been involved in a personal injury accident, Illinois rules generally contemplate that a Judge should rule on the fairness of a proposed settlement, adjudicate the reasonableness of fees, and expenses attributable to the litigation under the attorneys' contingent fee arrangement. Florkiewicz v. Gonzalez, 38 Ill.App.3d 115, 347 N.E.2d 401 (1st Dist. 1976).
In order to have a settlement approved, a guardianship or a conservatorship must be established. A guardian ad litem may need to be appointed as an independent representative of the minor.
Several steps will need to be taken in probate court including:
1. petition to settle claim,
2. response of the guardian ad litem, and
3. order allowing the petition to settle claims.
Representing a minor is a serious responsibility, and it is important that an experienced and expert injury attorney is consulted in order to protect the minor's interests.
Showing posts with label Applicable Personal Injury Law. Show all posts
Showing posts with label Applicable Personal Injury Law. Show all posts
Wednesday, March 30, 2011
Monday, March 14, 2011
Application of Burdens of Proof in Civil Trials
According to Illinois evidence law, the burden of proof has two meanings that apply to civil trials.
(1) "Burden of proof" applies to the duty to produce evidence that shows there is a prima facie case. For our purposes, "prima facie" can be understood as "on first sight." In other words, there is a good faith duth to produce evidence that, taken as true, supports the claim.
(2) Burden of proof is also the term used to quantify whether enough evidence has been shown to establish the truth of a statement, issue or claim.
In order to meet the burden of proof, the plaintiff must show that its claims are more likely true than not.
As far as the these issues apply to the prosecution of personal injury cases for damages, it is the personal injury attorneys job to show that there is enough evidence to make a good faith claim for damages and to avoid a directed verdit. Then the attorney must introduce enough evidence to meet its burden on each claim. In a negligence case that means the attorney must introduce evidence to support each element of the claim:
(1) duty owed to plaintiff by defendant;
(2)beach of that duty;
(3) breach of duty caused injury; and
(4) plaintiff incurred damages because of breach in duty.
If you believe that you have been injured do to the negligence of someone else, contact a Chicago attorney at The Law Offices of Adam J. Zayed, P.C. in order to see if the facts of your case will allow your claim to withstand a directed verdict.
(1) "Burden of proof" applies to the duty to produce evidence that shows there is a prima facie case. For our purposes, "prima facie" can be understood as "on first sight." In other words, there is a good faith duth to produce evidence that, taken as true, supports the claim.
(2) Burden of proof is also the term used to quantify whether enough evidence has been shown to establish the truth of a statement, issue or claim.
In order to meet the burden of proof, the plaintiff must show that its claims are more likely true than not.
As far as the these issues apply to the prosecution of personal injury cases for damages, it is the personal injury attorneys job to show that there is enough evidence to make a good faith claim for damages and to avoid a directed verdit. Then the attorney must introduce enough evidence to meet its burden on each claim. In a negligence case that means the attorney must introduce evidence to support each element of the claim:
(1) duty owed to plaintiff by defendant;
(2)beach of that duty;
(3) breach of duty caused injury; and
(4) plaintiff incurred damages because of breach in duty.
If you believe that you have been injured do to the negligence of someone else, contact a Chicago attorney at The Law Offices of Adam J. Zayed, P.C. in order to see if the facts of your case will allow your claim to withstand a directed verdict.
Monday, March 7, 2011
Categories of Witnesses in Illinois Personal Injury Cases
According to the Illinois Supreme Court Rules there are three categories of witnesses in civil cases. Rule 213(f) designates these three categories as: lay witnesses, independent expert witnesses, and controlled expert witnesses. The testimony and opinions of these witnesses are used to ensure that that people can substantiate their cases efficiently and fairly. It is necessary that the attorney you choose to represent you in personal injury matters is an expert in coordinating with opinion witnesses.
The categories of expert witnesses are:
(1) Lay Witnesses. A “lay witness” is a person giving only fact or lay opinion testimony;
(2) Independent Expert Witnesses. An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. (Examples of these witnesses are a police officer making an arrest or a treating physician).
(3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. (These witnesses can be hired by attorneys, and they might provide an expert opinion based on their expertise, examination of the facts of the case, or even a hypothetical situation).
In the event of a serious personal injury accident, it is critical that you retain an attorney who will be able to coordinate with experts in order to substantiate your case. If you or a family member have been seriously injured, contact a Chicago personal injury attorneyat The Law Offices of Adam J. Zayed, P.C. today in order to schedule a free, no-obligation consultation.
The categories of expert witnesses are:
(1) Lay Witnesses. A “lay witness” is a person giving only fact or lay opinion testimony;
(2) Independent Expert Witnesses. An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. (Examples of these witnesses are a police officer making an arrest or a treating physician).
(3) Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. (These witnesses can be hired by attorneys, and they might provide an expert opinion based on their expertise, examination of the facts of the case, or even a hypothetical situation).
In the event of a serious personal injury accident, it is critical that you retain an attorney who will be able to coordinate with experts in order to substantiate your case. If you or a family member have been seriously injured, contact a Chicago personal injury attorneyat The Law Offices of Adam J. Zayed, P.C. today in order to schedule a free, no-obligation consultation.
Tuesday, May 25, 2010
Lien Frustration
The concept of a "lien" is by its very nature difficult to comprehend. What's more is that people suffering from personal injuries are generally not in a position to tackle the complexities of Illinois lien laws. Hopefully this post will provide some insight into the often confusing territory of liens involved in personal injury cases.
According to Blacks Law Dictionary a Lien is: "a legal right or interest that a creditor has in another's property, lasting usually until a debt or duty that it secures is satisfied." In the personal injury context, liens attach to an individuals personal injury claim and the expected recovery.
One of the most common types of liens involved in personal injury cases are health care provider liens. A valid health care provider lien is created when medical services are rendered and notice is served. The lien subsequently attaches to any verdict, judgment or settlement reached stemming from the cause of action. In other words, your heath care provider will get a portion of your personal injury recovery.
It is important to note that the total amount of all health care provider liens cannot exceed 40% of the verdict, judgment or settlment stemming from the cause of action.
Aside from health care provider liens there are numerous other types of liens, including, but not limited to:
Incurring a personal injury can be a devastating event. In addition to the physical ramifications of a personal injury, numerous other factors create stress and inconvenience. In the unfortunate event of a personal injury, I suggest you contact a personal injury attorney. Nevertheless, hopefully the information contained in this post will help alleviate some of the stress you might feel when you receive notice of a lien relating to your personal injury.
According to Blacks Law Dictionary a Lien is: "a legal right or interest that a creditor has in another's property, lasting usually until a debt or duty that it secures is satisfied." In the personal injury context, liens attach to an individuals personal injury claim and the expected recovery.
One of the most common types of liens involved in personal injury cases are health care provider liens. A valid health care provider lien is created when medical services are rendered and notice is served. The lien subsequently attaches to any verdict, judgment or settlement reached stemming from the cause of action. In other words, your heath care provider will get a portion of your personal injury recovery.
It is important to note that the total amount of all health care provider liens cannot exceed 40% of the verdict, judgment or settlment stemming from the cause of action.
Aside from health care provider liens there are numerous other types of liens, including, but not limited to:
- Medicare liens
- Workers' Compensation Liens
- Illinois Department of Healthcare and Family Services Liens
- Attorneys Liens
Incurring a personal injury can be a devastating event. In addition to the physical ramifications of a personal injury, numerous other factors create stress and inconvenience. In the unfortunate event of a personal injury, I suggest you contact a personal injury attorney. Nevertheless, hopefully the information contained in this post will help alleviate some of the stress you might feel when you receive notice of a lien relating to your personal injury.
Tuesday, May 11, 2010
Wrongful Death Actions and CREDITORS
I was recently asked about one of the nuances of the Wrongful Death Act. The situation was as follows: The decedent had a significant amount of debt, and the family wanted to bring a wrongful death claim. The question was: would the decedent's creditors have a right to recover under the Wrongful Death Act?
The Illinois Wrongful Death Act states:
Sec. 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony
As I have stated in previous posts, the Wrongful Death Act is a statutory creation that provides the surviving spouse and next of kin with a right to recover for the loss of the decedent. Section 2 of the Wrongful Death Act states: "the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person."
A. This means that any recovery is not treated as part of the estate of the deceased; and
B. This means that the decedent's creditors cannot touch any amounts recovered in a Wrongful Death action.
At The Law Offices of Adam J. Zayed, P.C., our attorneys are experts in recovering the compensation families are entitled to in the event of a catastrophic injury or wrongful death.
The Illinois Wrongful Death Act states:
Sec. 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony
As I have stated in previous posts, the Wrongful Death Act is a statutory creation that provides the surviving spouse and next of kin with a right to recover for the loss of the decedent. Section 2 of the Wrongful Death Act states: "the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person."
A. This means that any recovery is not treated as part of the estate of the deceased; and
B. This means that the decedent's creditors cannot touch any amounts recovered in a Wrongful Death action.
At The Law Offices of Adam J. Zayed, P.C., our attorneys are experts in recovering the compensation families are entitled to in the event of a catastrophic injury or wrongful death.
Monday, May 3, 2010
Survival vs. Wrongful Death
The term "wrongful death" is actually a bit of a misnomer. In the unfortunate event that someone suffers an untimely death, one would intuitively think that the appropriate claim to file would be a "wrongful death" claim, to recover for losses suffered by the individual that suffered the untimely death.
Under Illinois statutory law, however, the Wrongful Death Act does not recover for damages incurred by the deceased. Wrongful death claims recover for losses sustained by the spouse and the next of kin of the individual who suffered a wrongful death. 740 ILCS 180/0.01
On the other hand, a survival action is a claim brought in order to recover for personal injury and other property losses suffered by an individual before succumbing their injuries. A personal injury attorney will ensure that all appropriate claims are made in order to ensure that victims of personal injuries recover the compensation they are owed.
Under Illinois statutory law, however, the Wrongful Death Act does not recover for damages incurred by the deceased. Wrongful death claims recover for losses sustained by the spouse and the next of kin of the individual who suffered a wrongful death. 740 ILCS 180/0.01
On the other hand, a survival action is a claim brought in order to recover for personal injury and other property losses suffered by an individual before succumbing their injuries. A personal injury attorney will ensure that all appropriate claims are made in order to ensure that victims of personal injuries recover the compensation they are owed.
Thursday, April 29, 2010
What does “personal injury law” really mean?
Personal injury law is a nuanced body of civil law. The word civil is important here because personal injury law gives injured people the right to sue in a civil action, as opposed to a criminal action. Another word for a civil action is: tort.
According to Black's Law Dictionary, a tort is:
"1. A civil wrong, other than breach of contract, for which a remedy may be obtained...in the form of damages; a breach of duty that the law imposes on persons who stand in a particular relation to one another. 2. The branch of law dealing with such wrongs."
There are numerous sub-categories of torts, including, but not limited to:
A person who commits a tort is called a: tortfeasor.
It is easy to think of torts/personal injuries in terms of real world occurrences, e.g. dog bites, atv accidents, trucking collisions, boating accidents, car crashes. Personal injuries occur with shocking frequency. It's very easy to understand the real world consequences of these injuries because they are so evident. What is not so obvious is that there are laws that exist to provide people with compensation for their injuries, personal injury laws.
So very often, people don't realize that they are entitled to compensation for their injuries. Very often they fall through the cracks of the legal system and do not recover for their injuries. Personal injury attorneys ensure that people do not fall through the cracks, and ensure that people receive the compensation that they are entitled.
According to Black's Law Dictionary, a tort is:
"1. A civil wrong, other than breach of contract, for which a remedy may be obtained...in the form of damages; a breach of duty that the law imposes on persons who stand in a particular relation to one another. 2. The branch of law dealing with such wrongs."
There are numerous sub-categories of torts, including, but not limited to:
- constitutional torts,
- dignatary torts/defamation,
- governmental torts,
- intentional torts, e.g. battery,
- mass torts,
- negligent torts,
- personal torts,
- prenatal torts,
- prima facie torts,
- property torts,
- public torts,
- quasi-torts, and
- toxic torts.
A person who commits a tort is called a: tortfeasor.
It is easy to think of torts/personal injuries in terms of real world occurrences, e.g. dog bites, atv accidents, trucking collisions, boating accidents, car crashes. Personal injuries occur with shocking frequency. It's very easy to understand the real world consequences of these injuries because they are so evident. What is not so obvious is that there are laws that exist to provide people with compensation for their injuries, personal injury laws.
So very often, people don't realize that they are entitled to compensation for their injuries. Very often they fall through the cracks of the legal system and do not recover for their injuries. Personal injury attorneys ensure that people do not fall through the cracks, and ensure that people receive the compensation that they are entitled.
Sunday, April 18, 2010
You’re injured, and you’re partially at fault–Do you still have apersonal injury claim?
The short answer to this question is: it depends.
Illinois law concerning fault and recovery has gone through several serious transformations. Up until the 1981 Illinois Supreme Court decision, Alvis v. Ribar, Illinois used a "contributory negligence" system to determine whether a plaintiff could recover in a personal injury claim. Alvis v. Ribar, 85 Ill. 2d 1 (Ill.1981). Under this system, any degree of fault attributable to a plaintiff was an absolute bar to recovery.
The Alvis decision ushered in a new set of laws pertaining to fault and recovery in Illinois. Under the new "comparative negligence" legal system, plaintiff recoveries were limited by the percentage of their own negligence or fault. So theoretically, if a plaintiff were 25% at fault or even 75% at fault, that plaintiff could recover with a reduction reflecting the percentage of their fault.
In 1986, the Illinois State Legislature enacted law that has supplanted Alvis's comparative negligence system. The new law is a hybrid between contributory negligence and comparative negligence. Since 1986, Illinois has been a "modified contributory negligence" state. 735 ILCS 5/1116. Under the current modified contributory negligence system, recoveries for damages are diminished in proportion to the percentage of fault attributable to the plaintiff. (Similar to comparative comparative negligence laws). However, plaintiffs who are more than 50% at fault are completely barred from recovery. (Similar to contributory negligence laws).
Illinois law concerning fault and recovery has gone through several serious transformations. Up until the 1981 Illinois Supreme Court decision, Alvis v. Ribar, Illinois used a "contributory negligence" system to determine whether a plaintiff could recover in a personal injury claim. Alvis v. Ribar, 85 Ill. 2d 1 (Ill.1981). Under this system, any degree of fault attributable to a plaintiff was an absolute bar to recovery.
The Alvis decision ushered in a new set of laws pertaining to fault and recovery in Illinois. Under the new "comparative negligence" legal system, plaintiff recoveries were limited by the percentage of their own negligence or fault. So theoretically, if a plaintiff were 25% at fault or even 75% at fault, that plaintiff could recover with a reduction reflecting the percentage of their fault.
In 1986, the Illinois State Legislature enacted law that has supplanted Alvis's comparative negligence system. The new law is a hybrid between contributory negligence and comparative negligence. Since 1986, Illinois has been a "modified contributory negligence" state. 735 ILCS 5/1116. Under the current modified contributory negligence system, recoveries for damages are diminished in proportion to the percentage of fault attributable to the plaintiff. (Similar to comparative comparative negligence laws). However, plaintiffs who are more than 50% at fault are completely barred from recovery. (Similar to contributory negligence laws).
Tuesday, April 13, 2010
Statute of Limitations – How long can you wait to file a personalinjury claim?
One of the most important factors in any personal injury claim is: what is the applicable statute of limitations? This questions determines when a personal injury claim may be filed. If a claim is not brought within the the appropriate statute of limitations time period, the claim will be barred and Courts will not hear the case.
Generally, actions for personal injury damages in Illinois must be commenced within 2 years after the cause of action accrued. 735 ILCS 5/13-202.
However, there are several nuances to this rule:
Personal Injury to Minors: In this situation, the statute of limitations does not begin to run until the minor reaches the age of 18.
Personal Injury Actions Made Against the State: In this situation there is an additional notice requirement. The Court must be notified within 1 year of the injury, and suit must be filed within 2 years.
Dram Shop Actions: Personal injury actions must be filed within 1 year.
Personal Injury Claims Against the Chicago Transit Authority: In the past, claims made against the CTA had to comply with a 6 month notice requirement. If CTA did not recieve notice within 6 months of an individual's injury, the claim would be bared. However, as of June 1, 2009, Governor Patrick Quinn repealed the 6-month notice requirement. Today, personal injury claims against the CTA need only comply with a 1 year statute of limitations.
Personal Injury Claims Against a Local Public Entity: Claims must be filed within 1 year.
An experienced personal injury attorney will ensure that all applicable statute of limitation requirements are met.
Generally, actions for personal injury damages in Illinois must be commenced within 2 years after the cause of action accrued. 735 ILCS 5/13-202.
However, there are several nuances to this rule:
Personal Injury to Minors: In this situation, the statute of limitations does not begin to run until the minor reaches the age of 18.
Personal Injury Actions Made Against the State: In this situation there is an additional notice requirement. The Court must be notified within 1 year of the injury, and suit must be filed within 2 years.
Dram Shop Actions: Personal injury actions must be filed within 1 year.
Personal Injury Claims Against the Chicago Transit Authority: In the past, claims made against the CTA had to comply with a 6 month notice requirement. If CTA did not recieve notice within 6 months of an individual's injury, the claim would be bared. However, as of June 1, 2009, Governor Patrick Quinn repealed the 6-month notice requirement. Today, personal injury claims against the CTA need only comply with a 1 year statute of limitations.
Personal Injury Claims Against a Local Public Entity: Claims must be filed within 1 year.
An experienced personal injury attorney will ensure that all applicable statute of limitation requirements are met.
Thursday, April 8, 2010
Are Incorrect Police Reports A Bar to Recovery on Your Personal InjuryClaim?
A client recently asked me about an all too common situation: He was involved in an auto-accident and the person who hit him was at fault. Unfortunatley, the police report for the accident incorrectly showed my client to be at fault. Would he be prevented from recovering for his damages/injuries?
The answer to this question is: NO.
Chances are you've heard of the term Hearsay. This situation is why the rule exists.
According to Rule 802 of the Federal Rules of Evidence: "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress."
According to Black's Law Dictionary hearsay is: "testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of some other than the witness."
In this situation, the police report is hearsay. The report is a police officer's out-of-court writing. The police report does not consist of "the facts." The police officer was not a witness.
Even though the police report is inadmissible hearsay, however, the police report will be used by insurance companies to facilitate the settlement of claims. So, if the police report is wrong, chances are you will have to file a claim with the court and perhaps go to trial.
In short, an incorrect police report may create roadblocks, but it should not bar just compensation for damages.
The answer to this question is: NO.
Chances are you've heard of the term Hearsay. This situation is why the rule exists.
According to Rule 802 of the Federal Rules of Evidence: "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress."
According to Black's Law Dictionary hearsay is: "testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of some other than the witness."
In this situation, the police report is hearsay. The report is a police officer's out-of-court writing. The police report does not consist of "the facts." The police officer was not a witness.
Even though the police report is inadmissible hearsay, however, the police report will be used by insurance companies to facilitate the settlement of claims. So, if the police report is wrong, chances are you will have to file a claim with the court and perhaps go to trial.
In short, an incorrect police report may create roadblocks, but it should not bar just compensation for damages.
Wednesday, February 10, 2010
Medical Malpractice Law Ruled Unconstitutional by Illinois Supreme Court
On Thursday, February 4, 2010, the Illinois Supreme Court struck down a law that limited damages awarded to victims of Medical Malpractice. The law in question was signed into place in 2005 by former Governor Rod Blagojevich. and limited recoveries for pain and suffering and other non-economic damages to $500,000 in cases against doctors and $1,000,000 against hospitals.
James Rohack, president of the American Medical Association claimed: "Today's court decision threatens to undo all that Illinois patients and physicians have gained under the cap, including greater access to healthcare, lower medical liability rates and increased competition among medical liability insurers." Despite this entreaty, the $500,000 and $1,000,000 recovery caps mentioned above did not adequately compensate all patients who receive negligent treatment.
While the debate goes on in Springfield as to whether lawsuits affect the quality and costs of medical care, on a case by case basis, it is now in the jury's hands to decide the proper damages against doctors and hospitals. This is because the Illinois Supreme Court held this decision should be in the jury's hands rather than lawmakers:
"The law violates the state's separation-of-powers clause between the branches of government by allowing lawmakers to interfere with a jury's right to determine damages."
http://www.chicagotribune.com/business/ct-biz-0205-malpractice-doctors-20100204,0,1406171.story
James Rohack, president of the American Medical Association claimed: "Today's court decision threatens to undo all that Illinois patients and physicians have gained under the cap, including greater access to healthcare, lower medical liability rates and increased competition among medical liability insurers." Despite this entreaty, the $500,000 and $1,000,000 recovery caps mentioned above did not adequately compensate all patients who receive negligent treatment.
While the debate goes on in Springfield as to whether lawsuits affect the quality and costs of medical care, on a case by case basis, it is now in the jury's hands to decide the proper damages against doctors and hospitals. This is because the Illinois Supreme Court held this decision should be in the jury's hands rather than lawmakers:
"The law violates the state's separation-of-powers clause between the branches of government by allowing lawmakers to interfere with a jury's right to determine damages."
http://www.chicagotribune.com/business/ct-biz-0205-malpractice-doctors-20100204,0,1406171.story
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