FAQ

Automobile & Personal Injury

1. The other driver got a ticket. That's good enough isn't it?

No. The complicated issues, such as contributory negligence, agency, insurance coverage and medical treatment are not hammered out in the traffic courts. There are upwards of 200 cases on each of the four daily calls in traffic court and the Judge does not have the time or inclination to make any other determination than whether there was a violation of the traffic laws. If the other driver pleads guilty there is a very good chance that his/her plea will not be admissible in any subsequent trial for these very reasons. Consequently we will not be accompanying you to traffic court and, in most cases, will advise you to not attend court unless subpoenaed. There are many examples of an injured party's attorney showing up in branch court with a court reporter and shooting themselves in the foot because they had no chance to prepare the case in the same way they would for a civil jury trial.

2. The other driver's insurance company will pay my medical bills, won't they?

Eventually, You are not insured under the other drivers policy therefore they have no contractual obligation to pay any of your bills until there is a legal determination (court verdict) of liability. Many years ago insurance companies would pay bills as they were acquired but those days are gone forever. Your first claim in any accident is to your own insurance . Most auto policies carry a coverage called "medical payments" this coverage is expressed on amounts of $1,000, $5,000, $10,000 or $25, 0000 and will pay the medical bills of yourself and your passengers regardless of fault. Remember that once this coverage is exhausted there is no more money from your auto insurance for medical bills. For this reason we suggest that your medical bills be submitted to your regular health insurance and the "med pay" coverage be used to cover the deductibles and co-pays. Occasionally a health insurer will take the position that is secondary coverage and require that you collect from the other driver before they will pay. Unless the insurance policy contains language to this effect they still have to pay on a regular basis. If you do not have health insurance or med-pay your options are to pay the bills yourself (not very realistic) have the medical providers "lien" your case (more about that later) or get a public aid card.

3. The other driver's insurance company wants to settle the damage to my car but I don't think it's enough and will it effect my injury claim?

You can settle the property damage portion of your claim directly with the other insurance company. The method for determining the value of your damages is set out in the Illinois Insurance Code and is simply the cost to repair or replace your auto, whichever is less. The value of an automobile is what a similar vehicle will sell for in the Chicago land market, not what you paid for the car or what you owe the bank or loan company. Frequently cars which have outstanding loan balances are determined to be worth less than that balance. This means that you will owe the loan company the balance of the loan. Do not sign anything or cash any checks until our office reviews the paperwork. Most insurers will not slip general (complete) release language into a property damage release or check but there are still some "sneaks" out there.

4. The other driver lied to the police officer taking the report, what do I do now?

Pray that there is an independent witness that saw the accident, remembers what happened and is willing to go through the immense hassle of testifying. Remember that most people don't drive down the street thinking "I'm going to run that red light and nail the next car through the intersection". We have all had lapses of attention while driving and were lucky enough that no one was in front of us. Frequently drivers in this situation are convinced they had a green light and make very credible witnesses.

5. I got a call from the other drivers insurance company an they were so nice I let them record the phone call, was this a mistake?

In any legal situation you only want to tell your story once or at most twice. It is impossible to tell a story many more times, and at a later date, without there being differences. A good lawyer will jump on these differences to make it appear that the story is fabricated in whole or part. Insurance adjustors are trained in how to gain the confidence of a victim and induce them to make statements that can be used against them at a later date. Remember that the insurance adjustor is not your friend but adversary, and their main goal is to save their company money by not giving it to you. That friendly "how you doing?" to which you answered "fine" will come back to haunt you when we are seeking damages for pain and suffering at a later date.

6. I though the pain after the accident would go away so I didn't go to the doctor or hospital for two months. Is that a problem?

In many accidents (rear enders for instance) there are no defenses to liability so the defendant's attorney will attack the medical treatment to reduce their damages. "Gaps" in treatment are fertile ground for such a defense. They allow the lawyer to argue that you couldn't have been hurt that bad because you didn't need treatment for two months or that something else happened after the accident that required you to seek treatment. Gaps also allow the defense to hire a doctor to review your medical records and give an opinion that the treatment is unrelated to the accident because of the time that has passed between the accident and the treatment. "Gaps" are not limited to immediately after the accident. Any gap at any point between the accident and the end of treatment provides the same defense. Therefore it is important for both your recovery and your case that you attend regular treatment and follow up on your doctor's suggestions throughout your case.

7. The impact was severe enough to almost throw me into the back seat but the damage to my car is a scrape on the bumper. How does this affect my case?

Modern automobiles can take a significant hit without damage because of the federal regulations and insurance industry standards for bumper impact absorption. You can expect that the defense will have a very large photo of the part of your car that was impacted and argue that your injuries couldn't possible have happened from such a "slight" impact. This is another very fruitful area of defense. I will require pictures of your automobile regardless of damage and any body shop reports or estimates that indicate "hidden" or internal damage.

8. Why do I have to keep track of my medical bills, doctor visits and prescriptions? You're my lawyer why can't you do that?

Most offices who handle personal injury claims have more records floating around than some hospitals. Similarly we cannot attend every doctors office visit with our clients so we have to rely on you to keep rack of these very important records. I will ask that you keep a chronological listing of you doctor visits, what happened at the visit and the doctors instruction along with the record of any prescriptions and the bill for the visit. The single most important document is any case is the Special Damages Summary that lists your expenses, medical bills and other cost as a result of the accident in chronological order. Not only will this insure an accurate and complete damages summary but will provide a form you can use if your case proceeds to litigation to help you remember the history of your medical treatment. In cases of severe injury we will ask you to keep a daily log of your activities, pain, etc. Many cases are years before they proceed to trial and memories of bad or painful experiences fade. The log will help you paint an accurate picture of your injury and the aftermath for a jury trial.

9. How much is my case worth?

The most difficult question is the value of a case. I have literally been at closing argument when I made the decisions as to what I thought a case was worth. There are many factors that go into the calculation and there is no standard formula. Cases come in two flavors: permanent and non-permanent injuries. We know that "whiplash" neck or back hurts and will hurt for a long time but it is not permanent injury as long as it only involves soft tissue and no damage to the bony structures of the human body. On soft tissue cases the damages run about one or two years after the injury. Permanent injury cases have more value as the injuries are permanent and will last your lifetime. There is a separate jury instruction for the calculation of permanent damages that can not be used unless a believable medical expert gives the opinion that your injuries are permanent. In short unless you have an x-ray or other imaging study that indicates a structural injury your case is not permanent.

Additionally, several other factors come in to play on the issue of value. First and foremost is the fact that juries award money to people they like and much less to people they do not like. The type of witness you will make is very important. Philosophically we are all the same in the eyes of the law. As a practical matter these decisions are made by real people who bring their experiences, prejudices and beliefs into the courtroom. If you have spent your life complaining and whining this will not be lost on the jury. Moreover your physical appearance, body size and demeanor have a direct effect on the value of your case. If it is your practice not to look at people during conversation or while answering questions or the manner in which you converse reminds people of a politician caught with their hand in cookie jar that also will have a direct adverse effect on your case. Sadly your race and ethnicity plan an important part in value also. Lake County is an affluent county and many jurors come from areas you and I cannot afford to live and consequently do not appreciate the racial and ethnic diversity that make this an interesting place to live.

10. I was clearly not at fault. This is an open and shut case. Why do I need a lawyer and why is it taking so long?

We are often called a litigious or law suit happy society. This is the price of freedom. Under our constitution the forefathers thought it would be better to have our disputes settled by our peer in a system that placed everyone on a equal footing under the law as opposed to settling our disputes on the battlefield or the back alley. Unfortunately this takes time because both sides get an equal chance to tell their story. The courts are crowded because they want to give litigants a fair shot at proving their case. The rules and law that have evolved through centuries are complicated and tricky and the process of presenting evidence in a fair manner requires the special training and experience of an attorney.

Additionally an insurance company will want to interview any witnesses and conduct their own investigation to determine fault and justify paying damages. We need to obtain all of the records of your treatment from your doctors, hospitals and other providers. This typically does not occur until you are done treating your condition reaches permanence and your doctors tell you there is nothing more they can do. The obtaining of these records and copies of the medical bills can take months. Medical treatment for serious injuries can take years. The time within which suit must be filed is two years from the date of the accident. There are times when we will wait until near the running of this time before we file suit to gain extra time for your treatment to end.

With passing of mandatory insurance laws requiring all drivers, regardless of insurability, to maintain minimum coverage for bodily injury liability came the advent of the "substandard" insurance carrier. These companies write policies to anyone who can pay the premiums. In order to make money it is not in these companies best interest to pay claims against their insureds. At the same time mandatory insurance because law court annexed mandatory arbitration was instituted in the Circuit Courts of Illinois (see paragraph 17 below) which allowed these companies to further delay paying claims. Many of these companies will participate in arbitration and automatically reject the award forcing the jury trial you wanted in the first place. Interestingly the experience of forcing jury trials, combined with success in defending low impact soft tissue injury cases prompted many standard insurers, most notably State Farm and Allstate, to adopt these same tactics. Today the main thrust of the tactics of deny, delay and defend is to drive attorneys out of all but the most serious auto injury cases. The costs of presenting a soft tissue injury case usually far exceed the expected return making it more and more difficult to find an attorney willing to undertake a "minor" accident case.

11. My doctors a good guy, he'll help with my case and testify, right?

One need only look to see who is leading the charge for "tort reform" to see what most physicians think of the legal process and suits for injuries in particular. There are doctors who are excellent practitioners with a wonderful bedside manner that will, either accidentally or purposefully, torpedo you case. Other doctors are nearly impossible to obtain records and bills from and then want to charge outrageous prices for those copies. Most doctors who deal with injuries; neurologists, orthopedics surgeons and neuro-surgeons charge between $750 and $1,000 an hour from their front door and back for trial or deposition testimony. For surgeons the courts routinely hold such fees to be reasonable because the doctor could be seeing patients or in surgery instead of court. Similarly there are doctors who are  not good testifiers or have no credibility within the legal system. Before you see a doctor on a referral from your family doctor please check with my office. Also bear in mind that most good surgeons are not in any HMO's and only a select numbers of PPO plans. If we suggest a doctor for you to see please rest assured that we would not hesitate to let this doctor treat or operate on either ourselves or our family but in addition this doctor is supportive of his patients in litigation setting.

12. My insurance company says that I have to pay back the money they gave me for my car and medical bills from my settlement. What's with that? Isn't that what I pay all those expensive premiums for?

The legal and contract theory by which you insurance company (either health or auto) expects to be repaid is called subrogation. The basis of the theory is the fear of your Insurance companies that you will have a double recovery, that is, they pay your bills and then you get the windfall of collecting those same bills from other insurer. While most lawyers understand that sometimes the only money recovered in a case is for the bills, and hate subrogation, it is firmly entrenched in our law and supported by the courts and the state legislature. Often more time is spent in a case dealing with physicians and subrogation liens than determining who is at fault. The fallacy of subrogation is that insurers do not calculate the money they receive in subrogation actions when setting their state mandated reserves for the next year claiming that the recoveries are too speculative. In Illinois medical providers and hospitals get a lien on your claim for the amount of their bills. Until recently there were nine separate medial liens in Illinois each of which was entitled to up to one third of your verdict or settlement to satisfy their lien. The result was a court ruling that there were 9 thirds in a case. I didn't do well with fractions in grade school but even I can recognize that this would leave a plaintiff with nothing after the liens and attorney are paid. This law has recently changed and provides no more than 40% of any proceeds are available to satisfy medical liens.

13. I've only seen a chiropractor for my treatment. That's good enough isn't it?

In the world of medicine there is main stream medicine, Doctor's of Medicine, MD and Doctors of Osteopathy, D.D. and there is alternative medicine, acupuncture, naprapaths, etc. Chiropractors lie somewhere in between. Often the chiropractor is the only treatment that gives some relief from the pain of back and neck injuries and, truth be told, they lie closer to main stream medicine than alternative medicine. The problem with chiropractic lie in its origins and beliefs that every bodily ailment known to man is related to "subluxations" of the spinal vertebrae. Chiropractors cannot prescribe medicine or do surgery or other invasive medical procedures. This gives defense attorneys a wealth of material upon which to pound a chiropractor called to the witness stand. Additionally their treatment is not done with an eye to curing the problem but merely treats the symptoms. Consequently a good attorney can argue that the treatment is for life for a minor soft tissue injury. Having said all this I do not tell my clients to discontinue seeing the chiropractor but advise them that it will be difficult to make their case for injuries and harder still to get the chiropractor's bills paid.

14. What's the difference between attorney's fees and litigation costs? Aren't they the same?

There are two elements in the cost of prosecuting a claim for injuries: attorney's fees and litigation costs. Attorney's fees in an injury case are contingent upon a successful resolution of the case, that is, obtaining money for a client. They are contingent because the attorney gets no fee if there is no recovery. Litigation costs are the expenses incurred in bringing a case including the cost of obtaining medical records, the Court filing fee for filing a lawsuit, the cost of getting the papers served upon the defendant. The costs of obtaining testimony from treating physicians or hired experts which can be very high. By Illinois Supreme Court rule these costs can be advanced by the attorney but always remain the responsibility of the client. If costs were deducted from attorney's fees there would always be a question as to whether the attorney did everything possible to prepare the case. We try very hard to not take cases which do not have a reasonable chance of recovery so as to avoid amassing costs that ultimately have to come from the client after no recovery.

15. What's an interrogatory?

In every civil (non criminal) law suit there is a period of time referred to as discovery. There are no secrets in a lawsuit and not much chance for a court room ambush. Each side is allowed to ask written questions, request documents, objects or other tangible things from the other side and to take the oral deposition of parties and witnesses to learn the strengths or weaknesses in a case. In discovery it is my policy to make full disclosure and not hide anything. Sadly this is not the policy of all lawyers. I believe in focusing on the real issues in any case and not side show discovery disputes. Before anything is disclosed or your deposition is taken we will meet and thoroughly prepare for the event.

16. I haven't heard from you in a while. Have you forgotten about me or are you neglecting my case?

Most injury claims are measured in years and not months. 90% of the work that is done on a case is outside the attention of the client. The drafting of documents, telephone calls to the other lawyers, letters, the lengthy process of gathering medical records and bills take incredible amounts of time. The most important decision in the case, that is, whether to settle or go to trial, belongs to the client. You will get my best assessment and opinion but the ultimate decision to settle and for how much is yours. That's the hard one. Every other decision about strategy etc. belongs to the lawyer. I can only ask for your patience throughout this case.

17. Why can't I have a jury trial and why is my case going to arbitration?

In Lake County (and most other Illinois counties) any case with a value between $10,000 and $50,000 must be heard in court annexed mandatory arbitration. This means your case is heard by three attorneys carefully selected and trained to hear arbitration cases. Each panel contains one attorney who is certified as the chairperson and acts as the judge for purposes of evidentiary rulings and objections. This program was devised to relieve overcrowding in the courts. There are several advantages to the arbitration process having to do with the admissibility of medical evidence without the requirement of physician testimony (see#11). The disadvantages is the ability of either party to reject the arbitration award and go to a jury trial. Most substandard insurance companies automatically reject arbitration awards as a means to delay and devalue cases. Usually the case settles after arbitration for less than the arbitration award because of the high cost of going to trial.

A word about jury trials. Most of the articles in the media and the information put out by the insurance industry, and echoed by many politicians, rail against "runaway" jury verdicts. The truth is that very few plaintiffs request a jury for their trial but would prefer a bench trial. The vast majority of jury demands filed in civil cases are filed by the defendant. This is because most judges are very familiar with the medical aspects of an injury case and are not swayed by the standard defenses of minor impact, gaps in treatment and pre-existing condition that are the bread and butter of a good defense attorney. Additionally there are several government studies that demonstrate that the average amount of jury verdicts, adjusted for inflation, is little changed for the last fifty years. In short, most defendants fare better in front of a jury than a judge.

18. My doctor doesn't want to submit my bills to my health insurance and has filed a lien on my case, how do I deal with that?

The short answer to why your doctor, or hospital, doesn't want to submit your bills to your health insurance is that they believe they will get money for your treatment. Health insurers, HMOs and PPOs, have agreements with doctors and hospitals that limit what they can charge for a particular treatment or procedure by contract. Many medical providers believe that they will be paid more if they bill your Automobile med pay benefit or collect from the insurance company of the driver that hit you. In Illinois medical providers are allowed to file liens on a patients case for payment of bills. If your accident occurred before July 1, 2003 a medical provider is entitled to up to ⅓ of your recovery. In pre 2003 cases there were 9 medical provider lien statutes and the courts have ruled that each is entitled to ⅓ which means the courts think there are 9/3 in any case. For cases where the accident occurred after July 1, 2003 all medical liens get to split up 40% of your recovery. This gets a lot more complicated if you are over 65 and receiving Medicare. The lien that they have is what is called a super lien and because it is created by Federal law, there is nothing we can do about it. The other problem is the privatization of the lien process by the Federal Government. Several contractors are authorized by Medicare to collect their liens however it is nearly impossible to contact any of these companies let alone deal with them.

Another problem arises for Medicare recipients if they are treated at a hospital who labels their case a "liability" case. Under Medicare law the hospital cannot bill Medicare if there is another party liable for the bills. The problem arises in disputed cases where you may be two to three years away from trial or settlement and bills goes unpaid.

Very often the true issues in a case revolve around the various liens that have been asserted against the recovery and how to either reduce or cancel them so that the injured party can come away with any money at all.