Chicago Trial Attorney: Personal Injury & Business Litigation - Fraud 101

Fraud is a serious allegation. It is serious to prosecute. It is serious to defend. Illinois law (and Federal law for that matter) require stricter pleading to make out a case or the fraud count(s) will be dismissed. This stricter pleading is sometimes referred to as "heightened pleading" or "pleading with specificity". 

 

Illinois law is clear: “[t]o plead a legally sufficient common law fraud claim, a plaintiff must allege that:

(1) defendant made a statement;

(2) of a material nature;

(3) which was untrue; and

(4) was known by defendant to be untrue, or was made in culpable ignorance of its truth or falsity;

(5) was made for the purpose of inducing reliance by the plaintiff;

(6) was actually relied on by the plaintiff; and

(7) resulted in the plaintiff's injury.”

Small v. Sussman, 306 Ill.App.3d 639, 646 (1st Dist. 1999) (emphasis added).

I like to explain to my clients the "important" element - damages. That is, just because someone "tricked" you or lied to you perhaps does not mean a Court or Jury will simply "give" you - or award you - money. The trickery / deceit must result in an injury a.k.a. "damages". Illinois law is also even more clear on this particular point - “Damage is an essential element of fraud.” City of Chicago v. Michigan Beach Hous. Coop., 297 Ill. App. 3d 317 (1st Dist. 1998) (citing Gerrill, 128 Ill. 2d at 193; Shah v. Chicago Title & Trust Co., 119 Ill. App. 3d 658, 661 (1983)) (emphasis added).

Careful review of a complaint is necessary to defend a fraud claim - every word counts. On the flip side, careful investigation of a potential claim (the "who, what, where, when, why, how" questions) will aid in drafting a more thorough, "heightened pleading" to secure a fraud count. Nothing seems to be "bullet proof" however in either event as a Judge has discretion in reviewing each particular fact situation for - usually - an early determination on whether fraud can even be pursued in a matter. Fraud is not well taken in the Court system.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your company analyze a potential fraud situation and "map out" a strategy in relation to same or simply provide you a second opinion to help you fight every inch of the way from start to finish as business/commercial cases are battles unfortunately - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation - Commercial Litigation Basics aka Strategy

Business or commercial litigation of any sort requires planning a.k.a. strategy. Whether the situation involves plaintiff or defense posture (or both), careful thought and exploration of the myriad of issues is an absolute must.

Lawyers are required to reasonably investigate a matter before filing a new case - or perform some "due diligence". Same is required when answering or taking on a new defense matter. Review of documents, interviews with the client(s) and/or witnesses and/or potential experts and perhaps some research are at the core of any due diligence. Most importantly, however, is the next step(s) - strategy and planning.

The ins and outs of strategy can be endless. Depending upon the type of lawsuit and claims involved, careful planning with the client(s) is critical and new developments can significantly affect the ongoing matter(s). Is your lawyer talking to you on a constant basis about this very topic? What is the "game plan" in your matter? What is the hopeful "end game" so to say - or desired result? Any business person would routinely consider these questions in business. Such concepts and questions are essentially no different in working through a litigation matter.

While no lawyer can ethically guarantee any particular outcome (highly unethical), I have clients constantly coming through my door claiming "my lawyer promised me this or that". Perhaps the clients misunderstood as lawyers cannot promise what a Judge or Jury might or might not do or what the other "side" might file (or not). We do not have the proverbial crystal balls. But what we do have is diligence, creativity and perseverance to try to accomplish what our clients hope for and desire. Again, the path to attain such is generally some sort of strategy and planning. Ask your lawyer if that is happening - and now!

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your company analyze a situation and "map out" some sort of strategy or simply get you a second opinion to help you fight every inch of the way from start to finish as business/commercial cases are battles unfortunately - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation - Will Your Lawyer Fight Every Inch of the Way?

Multiple "levels" of rules exist in law - from the Constitution all the way down to administrative rules and then the cases interpreting all of them. Skilled and experienced lawyers know how to employ them on your behalf - or in your defense every inch of the way throughout your case if necessary and possible. Is your lawyer doing that?

In fact, I often file motions when Defense Attorneys seem to want to start to "testify" for their own clients or file insufficient knowledge answers. Such is clearly not allowed:

 

Every allegation not explicitly admitted is denied. 735 Ill. Comp. Stat. Ann. 5/2-610(b) (Lexis 2014).

In fact, the Illinois Code of Civil Procedure requires that a defendant’s answer contain an explicit “admission” or “denial” of each allegation in the complaint with one important exception: for situations where the defendant lacks knowledge to admit or deny the allegation, provided that the defendant (not the defendant's attorney) attaches an affidavit stating that s/he lacks the necessary knowledge. However, if the defendant does not attach an affidavit, the allegations may be deemed admitted. Bank of Ravenswood v. Domino’s Pizza, 269 Ill. App. 3d 714, 723-24 (1st Dist. 1995).

Allegations in a complaint should be deemed admitted when not specifically admitted or denied - or when an attorney, in essence, attempts to "testify for" his or her client. See Bank of Ravenswood, 269 Ill. App. 3d at 723-24.

The law also makes it clear that Defendants cannot demand “strict proof” and in fact even the federal courts have criticized this practice. See e.g. Sun Life Assurance Co. of Can. v. Great Lakes Bus. Credit, L.L.C., 968 F. Supp.2d 898, 904 (N.D. Ill. 2013); Gilbert v. Johnston, 127 FRD 145 (N.D. Ill. 1989) (noting that neither the Federal Rules of Civil Procedure nor the Illinois Code of Civil Procedure provides for demands for strict proof).

Will your lawyer watch out for such incorrect admissions or denials every step of the way? Will your lawyer explain to the Judge and Court that such is not allowed? Raise your hand and ask your lawyer. Get a second opinion if you are not getting a straight or thorough answer. 

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may need, or simply want, a second opinion or want to know how to fight every inch of the way as these cases are battles unfortunately - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Chicago Trial Attorney: Personal Injury & Business Litigation - Will Your Lawyer Actually File Suit? Second Opinion?

Will your lawyer actually take that step to file a lawsuit if necessary? Or will your attorney do what I call "short settle" and never step foot in court? 

There are times to settle outside of Court and before ever filing suit - and often. However, I see too many lawyers taking the first offer or what I call "short settling" a case - any type of case. Good lawyers "work up" cases to settle every time and often cases can be settled without ever filing suit - the key is: has your case been "worked up"? 

Many of my clients mistakenly believe that the insurance companies will have to spend thousands on legal fees to defend a case if a lawsuit is simply filed and demand that a lawsuit be filed immediately no matter what. This mistaken belief is often not true many times at all! In fact, the "way it works" in the real world is that many insurance companies - especially with respect to auto accident insurance companies - have lawyers essentially "on staff" and at a "fixed cost" without a need to pay their lawyers by the hour. On the flip side, sometimes the defense lawyers hired by the insurance company are, in fact, paid by the hour - but for a reason.

Filing a lawsuit could be one of the worst things you could possibly do depending upon the circumstances and every case is different. Again, the key is - has your case been "worked up" and analyzed to determine whether it's time to file or time to settle.

Big companies "skew" my clients' mistaken beliefs in the "system". In fact, a very recent Summer 2014 letter put out by the Illinois Trial Lawyers Association ("ITLA" and of which I am a proud member!), has established the true facts on how the system is working in relation to lawsuit filings:

The fact is the filing of civil lawsuits in Illinois has steadily declined since 2007 – the number is down nearly 25 percent – but making note of that does not support [big business'] objective. Nor do statistics showing injury lawsuits make up just 6 percent of all civil cases filed in state courts. Indeed, businesses and insurance company supporters initiate most civil litigation; nearly 70 percent of civil cases involve businesses suing other businesses or individuals for money. 

Next time you talk to your lawyer, ask him or her - did you work up my case before you suggested I take that first offer? Ask careful questions. I invite them from my clients. I want to educate my clients about the pros and cons of settling - or filing a lawsuit. Make sure you make the right decision at that fork in the road - or get a second opinion.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who may need, or simply want, a second opinion - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.  

Chicago Trial Attorney: Personal Injury & Business Litigation - Trucking Accidents

Trucking accidents can be the most deadly. It is obvious and goes without saying that the sheer weight and force behind such a 5-ton+ behemoth can result in serious injuries by even the slightest bump much less at "normal", or worse, high speeds.

According to the most recent data from the U.S. Department of Transportation found here, thousands were killed and injured in 2012 (most recent data). In fact, the Department of Transportation noted:

In 2012, there were 3,921 people killed and 104,000 people injured in crashes involving large trucks (gross vehicle weight rating greater than 10,000 pounds) . . . In the United States, 333,000 large trucks were involved in traffic crashes during 2012.

Federal and State law / regulations differ on what truck drivers can or cannot do - that is, for example, whether the truck driver must maintain certain records and the extent of record keeping. After a crash, it is critical to immediately attempt to preserve evidence of such through what is called a "spoliation of evidence letter" by an attorney (fancy legal language for "you must preserve evidence" and "don't throw evidence / records in the garbage or delete it").

In fact, I often send an immediate, detailed letter with "instructions" to a potential defendant truck driver insurance company demanding that the following (perhaps not exclusive list) be preserved and not destroyed:

o   The tractor and trailer involved in the accident at issue;

o   Permits and licenses covering the vehicle involved in the accident at issue;

o   Any and all permits and/or licenses held by Mr. ____________________;

o   Bills of lading and any other documents in relation to the freight on board on the vehicle involved in the accident at issue on the day of the accident;

o   Mr. ____________________’s daily logs or “diary” of each hour spent on the road and any “resting” for the two (2) years prior to the date of the accident referenced above and in accordance with 49 C.F.R. 395.8 and/or 395.15 and any devices/books used to so record same shall also be preserved, not destroyed, concealed, modified, changed or altered in any way, shape or form;

o   Inspection reports for the tractor (semi cab) and trailer involved in the collision at issue;

o   Any and all maintenance and repair records for the tractor and trailer;

o   Mr. ____________________’s qualification file;

o   Any and all photographs, video, and records of all of the vehicles (not just the tractor-trailer) involved in the accident at issue and of the scene of the accident;

o   Mr. ____________________’s alcohol and/or drug testing results in relation to this incident;

o   Any and all contracts involving the tractor-trailer at issue (e.g., including, but not limited to, any independent use, subcontracted use or other use);

o   Any and all contracts involving the tractor-trailer at issue and its freight;

o   Any and all data from any and all on-board recording devices such as, but not limited to, black boxes;

o   Mr. ____________________’s personnel file and driving history;

o   Any and all GPS tracking data and the devices/software used to so track;

o   Any and all statements obtained from any witness or person in relation to the accident at issue;

o   Any and all dispatch records in relation to Mr. ____________________ and/or his tractor and/or trailer for the two months prior to this incident at issue;

o   Any and all hiring and employment records of Mr. ____________________;

o   Any and all electronic data on any ECM, PCM or other device—whether internally or externally mounted (on the engine or inside any electronic modules internally);

o   Any and all audio and video recordings in relation to the tractor-trailer from any time and from this incident or any investigation in relation thereto; and

o   Any and all data relating to the use of any cell phones or other communication devices of Mr. ____________________ or others in the vehicle at the time of the incident at issue.

Thereafter, I even work with the truck driver / trucking company to arrange to have the truck inspected as soon as reasonably possible. I essentially "wrap up" with a note warning the truck driver / trucking company about the law: "As you may know, Defendants’ failure to comply with this notice can result in severe sanctions being imposed by Court and possible liability in tort for spoliation of evidence or potential evidence."

It is critical to preserve such evidence. Make sure to speak with a lawyer immediately following a trucking accident.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a trucking crash or negligence - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.  

Chicago Trial Attorney: Personal Injury & Business Litigation - Injury Claims 101

Auto Accident? Truck accident? Motorcycle accident? Workers compensation claim (injured at work)? Nursing home injury or death? Dog bite? Any other injury from any source / reason? Claims 101 Information on the first few steps below - if negligence is involved, you deserve compensation.

No matter the type of injury, first and foremost, get to the Emergency or Doctor. Take care of yourself first - or your loved ones, friend or family.

Next, write down information - on the back of a piece of scrap paper / on ANYTHING! Within a day or two, for example, you might forget who was there (a witness) - even a physical description of the person if you do not know their last (or first) name. List out:

- names

- phone numbers

- addresses

- description of events by time / day / weather / surrounding / facts and other circumstances

CALL A LAWYER after you or your loved one or friend or family member is stabilized.

TALK TO NO INSURANCE COMPANY! Insurance companies might "pretend" to care or be your friend. In reality, you might be recorded and every single word spoken around the time of the accident will most likely be used against you if possible 6 months, 2 years or more down the road. TALK TO A LAWYER - that is confidential and privileged.

Focus on getting better physically. Update your lawyer regularly on your health progress and leave all of the legal burdens to the lawyer. Simple.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a crash or negligence - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation - Digital Assets (Digital Evidence?)

A recent article found here explains how difficult access to e-mails or "digital assets" can be after death. Evidence can "lurk" in e-mails and such "assets". Where are your passwords stored? 

Philip J. Berenz, CPA, JD  - Exclusive invitation and selected! Proud and honored to be a member!

The National Trial Lawyers: Top 100 an invitation-only organization composed of the premier trial lawyers from each state in the nation who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research. Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile.

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a crash or negligence or "business pain" (plaintiff or defense) - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small. 

Chicago Trial Attorney: Personal Injury & Business Litigation

Exclusive invitation and selected! Proud and honored to be a member!

The National Trial Lawyers: Top 100 an invitation-only organization composed of the premier trial lawyers from each state in the nation who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research. Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile.

 

Chicago Trial Attorney: Personal Injury & Business Litigation: The Reality of Pain due to Personal Injury and "Pain" (aka "Damages") due from Bad Business Deals, Fraud and The Like

We have probably all experienced some sort of pain - physically, emotionally and what can easily be called "pain" from a business or personal perspective when money is lost in a business deal. We can call this "business pain" or "business damages". 

Obviously, real, physical and emotional (or mental) pain cannot literally be "equated" with the business pain. One truly hurts the body and/or mind. The other hurts mainly the pocketbook; however, business pain can also wreck a family, a home and/or a business and be coupled with true emotional pain that may actually give rise to mental anguish (and real mental injury perhaps). In any event, neither type of pain can ever be taken lightly.

A real lawyer must demonstrate empathy with either type of pain. A real trial lawyer must be infused with your projected feelings of either type of pain. It is the trial lawyer who must convey that pain to not only a jury at the "end" of a case -- but from day one -- to the opposing attorney, to the other "side" (the "bad guys" on the other side), to the insurance company, to the Judge. Sometimes, we trial attorneys go beyond and must convey the pain all the way to the appellate courts and Supreme Court if necessary. The pain must be conveyed not once, not twice, not at trial time only -- but from the moment of initial advocacy, from the moment of comprehension, daily and incessantly without hesitation. That is what separates the "men from the boys" so to say in terms of what a real trial lawyer is.

I have personally experienced multiple types of physical pain that I would not wish on my worst enemies. I can empathize with my clients who have experienced pain from personal injury. I understand that it can linger. Pain can destroy the ability to function in your job while it tears at your thoughts when pain medicine "wears off". Pain can destroy your relationships at home. Pain can destroy your inner sense of self. Sometimes, pain doesn't seem to ever go away. Hopefully, it does--and for good. But if not, what next? 

Business pain can "seem" just as bad. Business pain wrecks businesses first, but then migrates into wrecking homes, families and friendships. Sometimes, it wrecks the very person or people you called your brother, your sister, your mother, your father. I have seen it first hand. I have experienced it first hand. I know and understand. It is never "pretty" and actually quite a shame. Hopefully, business pain, too, can "go away" and "for good" just as physical pain often does. But if not, what next?

What's next for either type of pain if it doesn't go away? Fix it. See your doctors religiously for physical pain. Go and visit your business partner -- or your brother, your sister, your mother, or your father -- over coffee and remind him or her (or them) how short life is and try to resolve your differences. Fix your pain as best you can without a legal battle that may be unnecessary in either case.

For personal injury pain, sometimes, money can "repay" the "cost" of the pain (medical bills and related issues). Lawyers often seek the "right" amount of money to at least bring some type of peace and closure to a matter. Sometimes, no amount of money can "turn back the clock" on a permanent problem or, worse, a death. Sometimes, the money awarded or won "sends a message" for safer driving in the future, better products, better professionalism, better structures.

For business pain, again, sometimes money can "repay" the "cost" of the pain (lost profits, lost commissions, lost revenue, lost business). Again, lawyers often seek the "right" amount of money to at least make the original "loser" whole again (or darn close). Sometimes, too, no amount of money can replace a lost business, career, family devastation and personal assets lost. Sometimes, the money awarded or won "sends a message" to others not to defraud, not to breach deals, not to cause damages and to be fair.

In any event, when you next need a real lawyer -- a real trial lawyer -- I'll be here to be infused with a true empathetic understanding of your type of pain and to comprehend it so that I can advocate for you to help you try to "fix it" so you can move on in life and never look back. I am hear to listen to you. I am always honored to help.

It is my mission in life to help people with either type of pain through the legal system -- and to try to find the right amount of "repayment". If you need a real trial lawyer for defense matters, "repayment" may sometimes equate to $0 (or darn close with everything being relative to the overall situation). No matter what, there are most often solutions that can be "lived with". 

You can contact me here 24/7/365 (and I really mean that as I will answer my phone) if you have any questions and to learn how I may be able to help you or your loved one who has been a victim of a crash or negligence or "business pain" (plaintiff or defense) - in particular, you will find that I listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). I would be honored to help you with your matters - large or small.

Snow and Ice = NO EXCUSE for Drivers!

Some drivers that rear-end my clients think they can blame the snow and ice - or bad weather. Wrong. Drivers must slow down even more, be extra cautious and keep a proper lookout - all per Illinois law - or risk liability for an accident.

In fact, such accidents may even warrant "partial" summary judgment in Court (if not settled before Court action is taken). Summary judgment is a legal term for an entry of judgment on liability or damages or both when the Court finds there is "no genuine issue of material fact(s)".

In a rear-end car accident, insurance companies and defendants will often fight even these situations. A plaintiff (the person suing) should move for summary judgment at the appropriate time if evidence is appropriate. Pursuant to 735 ILCS 5/2-1005(c), summary judgment is appropriate and the “judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Further, “[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Id.

Alternatively, Plaintiffs may seek a “directed verdict” at trial time. Notably, at least one Court has made it clear that, at trial time (as opposed to seeking partial or full judgment earlier in the case via summary judgment) the Court may “direct a verdict” on negligence as to a driver because: 

[a] driver . . . has a duty to maintain a sufficient distance from the vehicle in front in order to stop or slow down (Hickox v. Erwin, 101 Ill.App.3d 585), to maintain a safe lookout for traffic ahead (Hickox; Joseph v. Schwartz, 96 Ill.App.3d 749; Snedden v. Lavenka, 92 Ill.App.3d 979) in order to avoid colliding with it (Droese v. Fleming, 93 Ill.App.3d 781), and to take into account the prospect of having to suddenly stop (Droese, 93 Ill.App.3d 781; Snedden, 92 Ill.App.3d 979) or slow his vehicle (Gullberg v. Blue, 85 Ill.App.3d 389). Thus, while a trial court cannot hold a driver, such as defendant, negligent as a matter of law by virtue of a rear-end collision alone, nothing prohibits it from taking the issue of his negligence away from the jury where the evidence overwhelmingly reveals his breach of the foregoing duties. See e.g. Korpalski v. Lyman, 114 Ill.App.3d 563.

Zeifert v. Cox, 182 Ill.App.3d 926 (1st Dist. 1989).

Plaintiffs should fight hard – even on a rear end car accident. Snow and ice is generally not an “excuse” to avoid liability. It’s a reason to slow down and pay attention even more closely.

You can contact us here 24/7/365 (and we really mean that as we will answer our phone) if you have any questions and to learn how we may be able to help you or your loved one who has been a victim of a crash or accident - in particular, you will find that we listen, take your phone calls and e-mails (and even text messages--BUT NOT WHILE DRIVING!!). We would be honored to help you with your matters - large or small.