Chicago Trial Attorney Blog : Chicago Trial Lawyer & Attorney : Philip J. Berenz Law Firm : Business Litigation, Personal Injury

Millions more cars will be on the road from Wednesday through Sunday / Monday this Thanksgiving - as expected as these are some of the busiest days of the year. That means everyone should be much more vigilant and cautious when driving.

Drunk driving is especially worrisome during the holiday times. Fatalities often rise over the holidays. Don't drink and drive!

Thanksgiving Travel Safety Tips:

1) Be mindful of the weather -- while not as frigid and icey as the holiday season ahead of us, Thanksgiving is still known, nonetheless, as a beacon of nasty weather. Fortunately for those remaining in the Chicagoland area, the forecast for the next few days calls for clear (but cold) conditions. For those traveling outside the area, be sure to check the applicable weather reports, as the congested traffic conditions mixed with unexpected bad weather can make holiday travel a miserable experience.

2) Check your brakes and tires before you leave -- not only is this step useful at any time (faulty brakes are cited in almost every auto accident victim's complaint as a cause of negligence), this is particularly necessary during the Thanksgiving holiday weekend, since it is one of the first instances of real, genuine cold weather. Whenever the temperature drops drastically, tire pressure has a tendency to drop as well, leading to increased instances of flats and tire blowouts.

3) Leave plenty early -- as any personal injury attorney will tell you, drivers in a hurry to reach their destination are far more likely to get into an accident. Throw in unnaturally heavy traffic conditions and poor weather conditions, and the potential problem only becomes worse. 

4) Avoid distractions at all costs -- heavy traffic, long hours on the road with no sleep, unruly passengers, the temptation to multitask to make up for lost time and eat or groom yourself while driving -- the possible distractions on this weekend in particular are endless, and each of them increase the likelihood of an accident significantly. 

Have a safe and accident-free holiday. In the unfortunate event you are involved in an accident, obtain all the information possible immediately at the scene and take notes (if you can--get to the doctor or hospital first and foremost though if you are injured). Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. You can contact us here 24/7/365-even over the holiday weekend any time (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.

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On Friday, November 11, 2011, numerous people were injured when a CTA bus struck a light pole at approximately 4:00 p.m. at 95th and Cottage Grove in Chicago, Illinois.

Bus drivers and bus companies owe their passengers a duty of care to avoid causing injuries to their passengers and situations can turn into severe hazards and extraordinary damages when an accident occurs involving such a large vehicle.

As stated previously by us in another posting, the law requires bus drivers--like other motorists--to exercise due care and caution and to follow the "rules of the road" and Illinois law so that a lawsuit for negligence will not be brought against him/her/them for some or all of the following (but not necessarily limited to):

• Carelessly and negligently operating, managing, maintaining, and/or controlling a vehicle;

• Carelessly and negligently operating a motor vehicle at a rate of speed which was greater than reasonable and proper with regard to traffic conditions and the use of the highway, or which was greater than the applicable speed limit established in violation of the revised Statutes of the State of Illinois;

• Carelessly and negligently failing to equip a motor vehicle with proper brakes although such a device was necessary to insure the safe operation of the vehicle;

• Carelessly and negligently failing to keep a proper lookout and to stop or alter the course of a motor vehicle to avoid striking the vehicle (or a light pole or anything that can cause injuries); and/or

• Being otherwise careless and negligent (simply not paying attention).

If you are in a crash such as this with a CTA bus or any other type of crash, the Illinois Secretary of State has a checklist it suggests here:

Crash Checklist

If you are involved in or come upon a traffic crash:

• Stop your vehicle in a safe, well-lighted public place.

• Help an injured person if necessary or requested. First, protect the person from traffic, then cover the injured person for comfort and to avoid shock. Do not move an injured person unless absolutely necessary. Do not attempt to give first aid unless you have been trained in it. Call 911 immediately.

• Someone should warn other drivers, using flares if available.

• Ask all those involved for their names, addresses, phone numbers, driver’s license numbers and license plate numbers.

• Notify the nearest police station as quickly as possible.

Further, make sure your children are safe and secure and if you are in an automobile accident or an accident such as this with a CTA bus as a passenger, get all the information possible immediately and take notes. Then contact an attorney immediately to preserve your rights. Do not talk to any insurance people without an attorney present. 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.

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The fact finding process in civil cases is known as "discovery" -- that is, where you can ask the other side to turn over any document or other piece of evidence/information in their possession that might have some bearing on your case (provided that you ask for it in fairly descriptive terms).

Many litigants make the mistake of stopping their focus after obtaining discovery -- once they've gathered everything they have from the other side, that's the end of their inquiry. Success or failure in any given case, however, largely depends on the winning side's ability to think outside the box, so to speak.

When it comes to discovery, then, technically speaking, you are not limited to asking the other side to turn over evidence -- you just have to know how to ask. For a very basic example, let's say you are involved in an auto accident in a supermarket parking lot. Both sides claim that the other driver was at fault, but after discovery, there is really no hard evidence other than each driver's word, essentially making the case a "he said, she said" situation that, quite frankly, can often go either way at trial. Now, let's add to the example that this parking lot, as large stores often do, has a surveillance camera in its parking lot that captured the whole accident on tape. In most cases similar to this example, the supermarket would not be a party to the lawsuit and as such, you would not be able to simply send a discovery request to turn over the surveillance tape, as you would, say, a copy of any pictures of the scene of the accident that the defendant may have taken. But this does not mean that you cannot get the surveillance tape that may make or break your case -- again, you just have to know how to ask for it.

A plaintiff (through their attorney) can issue subpoenas for documents and other information (even testimony) that require non-parties to turn over evidence, documents and information, provided that the subpoena meets certain technical requirements. For starters, the requested information has to be reasonably clear -- if you're looking for the surveillance tape, then you must say so. You also have to pay a fee to the person/business you're seeking information from, usually starting at around $25.

Further, the power of such subpoenas -- if all of the steps are followed properly -- are real consequences for failing to comply: the person/business may even be brought into court to explain to the Judge why they shouldn't have to turn over the evidence, or else they may face some hefty fines and even perhaps be held in contempt of court! That's very powerful!

The point to be had is that the difference between winning and losing is often the party's willingness to go above and beyond and take full advantage of all the litigation tools at your disposal. 

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation--maybe subpoenas will be the only way to get the evidence you need to prove your case. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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Conversations and communications between you and your attorney are covered by what is known as the attorney-client privilege. Privilege attaches to such conversations and communications so that you and your lawyer can freely discuss your matters without being judged and without hesitation, amongst other reasons. 

To be entitled to the protection of the attorney-client privilege, a claimant must show that:

(1) a statement originated in confidence that it would not be disclosed

(2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and

(3) it remained confidential.

See Pietro v. Marriott Senior Living Servs., 348 Ill. App. 3d 541, 551 (1st Dist. 2004).

The policy underlying the attorney-client privilege is to encourage full and frank consultation between a client and his attorney by removing the fear of compelled disclosure of information. See People v. Jacobson, 119 Ill. App. 3d 103, 104 (1st Dist. 1983). Strict confidentiality, promoted by permanent protection from disclosure, is the very essence of the existence of the attorney-client privilege; it is also the basis for allowing such communications complete exemption from discovery. Jacobson, 119 Ill. App. 3d at 104. Privileged communications are at the instance of the client permanently protected from discovery. Id. at 105.

On the other hand, if a conversation, for example, took place in a crowded elevator, or if you went and told a co-worker afterward what was said, then the communication may not be privileged because it wasn't confidential.

Another key point is that the privileged conversation has to generally be for the purpose of giving legal advice, and the advice can't be used to further or cover up a crime. While this might all sound pretty straightforward, application of this privilege can come up in very unexpected ways - and sometimes in matters years down the road that you couldn't possibly envision at the time you made the statements.

You can contact us here 24/7/365 if you have any questions and to learn how we may be able to help you analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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Parties to a lawsuit (usually with the assistance of their attorneys) are under a duty to answer everything truthfully, but that doesn't mean that it's always easy to get a "straight" answer out of someone.

This is one of those areas that distinguishes attorneys -- recognizing the difference between a party giving an affirmative yes or no answer, and half-measures such as "I think" or "I believe that is correct." A good attorney will not accept half-measures for answers and make further (hopefully many) inquiries to get to the truth.

While this might seem like something trivial, half-measures and "couched" answers can actually chip away at even the best of cases. One way to avoid these problems and "keep everyone honest," so to speak, is Supreme Court Rule 201(k). This rule allows an attorney that notices an incomplete or evasive answer to confront the other attorney and seek clarification to any lingering questions. If this fails, then a party may bring a motion before the Judge and let the Court decide if the question was adequately answered. The reasoning behind this rule is that everything in even the simplest cases can be won or lost in the smallest of details.

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 analyze your particular situation--and help to ensure you are getting truthful answers. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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One of the most sensitive parts of filing a lawsuit after you've been the victim of an injury is the extent to which your private medical issues must come to light.

It is unfortunate that you have to give complete strangers access to your most private records, and it is an unfortunate side effect of pursuing your rights. Steep barriers prevent most people from having access to your medical information -- even your own attorney cannot ask for one paper from any of your doctors until the doctor has received a signed medical release pursuant to law from you personally.

Another important protection is the line of cases in Illinois known as the "Petrillo Doctrine," which prevents a defense attorney from so much as contacting your doctor.

In the case that set out the rule (Petrillo v. Syntex Laboratories, Inc.), the court ruled that no third party could permissibly contact a plaintiff's medical providers -- and as the later cases that would fashion this "rule" into a "doctrine" established, this includes defense attorneys, insurance claims adjustors, anyone.

The only way a defense attorney can obtain your medical records, or even appear for a deposition to take the information from your doctor(s), is by issuing a subpoena.

Collectively, these laws and rules are important, because they recognize the sensitive nature of filing a lawsuit for damage to your health, and they put as many mechanisms as possible in place to protect you and your privacy -- especially in such sensitive times.

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 analyze your particular situation. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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One of the most important components of the litigation process leading up to trial is the discovery deposition. Deposition is a fancy legal word for a process by which a person sits down in front of a court reporter and gives testimony under oath that is transcribed by that court reporter.

A deposition may end up being the only time that a person is allowed to tell their "story" in their own words while being asked questions by an attorney. This process is so important that the Illinois Supreme Court Rules allow parties to take depositions in person simply by issuing a notice to the other side -- stated otherwise, they don't have to obtain permission from the court and issue a subpoena like they would for someone like an eye witness to an accident or a treating doctor or any person with information in relation to a situation such as a breach of contract in the business context.

Interestingly enough, however, courts are beginning to look favorably on using technology to make what is traditionally a rigid process into a more convenient, accommodating system.

Under the new Illinois Supreme Court Rule 206(h), parties can make a special request to take a deposition by telephone, video conference, or other live technological method. Because it is often debatable as to why many similar laws are enacted, the rules committee went out of it's way in this case to specifically note that:

The Committee is of the opinion that the apparent acceptance and utilization of telephonic and other remote electronic means depositions demonstrate that there is no need to require a party to obtain an order on motion to proceed with such depositions absent a written stipulation. Therefore, the Committee recommended the elimination of such a requirement so that the depositions may proceed by notice.

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The insurance laws in Illinois, starting with 625 Illinois Compiled Statutes (or "ILCS" in lawyer lanugage) 5/7-601 sets forth the basic ground rules, noting:

No person shall operate, register or maintain registration of, and no owner shall permit another person to operate, register or maintain registration of, a motor vehicle designed to be used on a public highway unless the motor vehicle is covered by a liability insurance policy.

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Generally speaking, it is everyone's goal to settle a case without a drawn-out lawsuit that can take years to prosecute and consume massive amounts of time and resources for all.

One of the biggest myths about the settlement process, however, is that as soon as the two sides come to an agreement, the client can expect the check the next day -- usually not true.

Unfortunately, due to the many parties, medical providers, insurance companies (yours, the defendant's insurance company, health insurance companies and others) and others involved in a lawsuit, it can often take a good deal of time before the client actually receives their check--maybe even a year or more. Let's say that you were the victim of an auto accident that is fortunate enough to settle without going to trial. The first thing that needs to happen is that the defendant's insurance company will send over a sometimes lengthy contract called a "Release," where the insurance company / defendant agrees to pay you the agreed-upon sum only if you agree to drop the lawsuit (or never file one). These "Releases" are often complex-worded documents that cover everything from the parties' liabilities to who will pay for any medical bills that arise in the future (almost always, this will be the plaintiff).

After this process, the next step is for any public assistance programs such as Medicare and Medicaid to recover any money they have spent -- this is a long and frustrating process for attorneys, more on these to come and we can literally write an entire book on these two entities and their unique processes to obtain their money -- which can, unfortunately, take up to several months or a year or more to work out.

Then, anyone else classified as a "lien holder" will have the opportunity to make a claim from the proceeds -- this includes doctors and hospitals that have unpaid bills relating to the accident and other similar expenses and even your own insurance company who has paid any medical bills and other costs. These "rights" to collect money when money is paid already are often referred to as "subrogation rights" meaning your insurance company has the right, by law, to "step into your shoes" and sue the person responsible for causing the bills in the first place. While this is a high-level overview, we can also right a book on subrogation rights. 

Then, and only then, do the client and attorney get to cash in the check. This process can often be frustrating, considering the length of time that it can take, but it is important to keep this in mind from the beginning of the process. The financial ins and outs of lawsuits are complicated matters that sometimes take on a life of their own and is only part of the process that an attorney can help you with. 

Most importantly, if you try to handle this aspect of a case yourself, you can easily find yourself subject to paying back the bills yourself if not properly handled due to laws and regulations that apply differently in each situation.

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 ensure that all of your liens and subrogation issues are handled correctly. Most importantly, you will find that we listen, take your phone calls and e-mails (and even text messages!). We would be honored to help you with your matters - large or small.

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