Any person unable to resolve a legal dispute with another is entitled to ask that it be decided in court -- these are CIVIL cases. The person who brings the action is called the “plaintiff”, and the person against whom the action is brought is called the “defendant”. The plaintiff and the defendant are often referred to as the “parties” to the lawsuit. The plaintiff starts the action by stating his or her claims against the defendant in a written “Complaint” and files it with the Circuit Court Clerk. A Summons is issued to the Sheriff to be served upon the defendant. The defendant disputes the claim by filing a written “Answer to the Complaint”. The Complaint and Answer constitute the basic “pleadings” in the case. The allegations of facts in the pleadings upon which the parties disagree are the “issues” to be decided by the jury.
If any defendant has a claim against the plaintiff or any other co-defendant, he or she may present it in the same case. Thus, a civil case might involve parties who have claims against each other and might involve more than two parties.
The Right to Trial by Jury
The right of trial by jury is guaranteed by the Illinois Constitution and the United States Constitution. This is the right to have the facts in controversy determined by a unanimous verdict of impartial jurors acting under the direction of the judge. The jury will hear evidence from witnesses and exhibits, and decide the facts of the case. The judge will provide instructions on the applicable law for the jury to use to resolve the claims, and what damages may be awarded if the jury finds in favor of the plaintiff.
At Fogel Law Offices, we strongly believe that every claimant is entitled to have their case decided by a jury of their peers. Our jury system is the best and fairest protection of your interests and an essential right of every citizen of the United States in both civil and criminal cases.
How do I know if I have a case?
In every case, there are three requirements: "negligence", "causation", and "injury or damage". The plaintiff has the burden of proving that the defendant acted or failed to act in accordance with the law, and that in so acting or failing to act, the defendant was negligent. Secondly, the plaintiff must prove that he or she was injured and damaged. Third, it must be proven that the negligence of the defendant was a proximate cause of the injury or damage to the plaintiff.
At Fogel Law Offices, we are experienced in evaluating the negligence, causation, and injury/damage elements of your claim.
How will my case proceed?
If our Office decides to accept your case, we will proceed to file a lawsuit against all responsible parties. This involves filing the Complaint and having a copy of it served by the Sheriff. The defendant has thirty days to file the Answer to the factual allegations in the Complaint. The defendant will give the legal papers to an insurance company, which will hire lawyers to defend the defendant against the claims in the Complaint.
The case will proceed through a "discovery" phase under the supervision of and a schedule set by the judge assigned to the case. In a complex case, this phase can take up to 28 months. Discovery includes written questions called Interrogatories and the exchange of essential documents and records relevant to the claims or damages. Depositions (interviews under oath) will be taken of both the plaintiff and defendant, and any other persons (witnesses) with knowledge or information important to the facts, claims, and damages in the case.
Both sides will have to disclose their planned trial witnesses, including experts, and their depositions will be taken so both sides know what to expect the testimony will be at trial.
The judge will set a trial date with input by the attorneys. Both sides will present their evidence for the jury to consider as it decides the case and reaches a verdict.
While studies have shown that almost 95% of cases settle without a trial, a settlement is not guaranteed.
Statute of Limitations
A statute of limitations is a law in our legal system that sets the maximum period of time, after the injury causing event, that a civil legal proceeding based on that event may be initiated. In most cases in Illinois, the statute of limitations is two (2) years from the date of the injury, or two (2) years from the date you knew or should have known of the injury. In claims against a community hospital, a municipality, a public agency or employee, or the State of Illinois, the statute of limitations could be as short as one (1) year from the date of injury. Some claims, for example medical negligence, have an outside limit of four (4) years from the date of the negligence for bringing the lawsuit.
You should promptly consult with an attorney to identify the statute of limitations related to your potential claim before your right to be compensated is forever lost.
Most people and corporations in our country have purchased liability insurance to protect against possible claims resulting from their negligence. Just as you may have automobile or homeowner's insurance, so do corporations and professionals such as lawyers, physicians, and dentists. The amount of insurance available to compensate you for your claim varies from case to case.
Even high quality insurance companies are not in the business of "helping" you in your claim. If you are contacted, you should avoid discussing your claim or giving a statement, and refer the insurance company representative to your attorney.
Uninsured and Underinsured Insurance Claims
If you have insurance on your motor vehicle, you probably have uninsured and underinsured motorist coverage in your policy. With uninsured motorist coverage, you will basically be "insuring yourself" in the amount of uninsured coverage you selected if you are injured in a collision with another driver who is uninsured. If you are injured in a collision with a driver who is inadequately insured, then your underinsured motorist coverage will supplement the amount of insurance coverage the underinsured driver has available. Example: the defendant driver has $30,000 liability insurance. You have $100,000 in underinsured coverage. You will be able to have $70,000 of your policy apply in addition to the $30,000 in coverage held by the defendant.
A person owes a duty of care to another when the reasonable person would foresee that the other will be exposed to the risk of injury if the particular acts or omissions are continued. So, for example, the driver of a vehicle owes a duty to drive carefully towards anyone within the area of risk when driving, i.e. other road users, pedestrians, and the owners of adjacent land and buildings. But no duty is owed to those who are not foreseeably at risk from the given activity.
is a defense to a claim or cause of action which can result in a reduction in the damages by the percentage of fault attributable to the plaintiff. It applies to a situation where a plaintiff, through his or her own negligence, caused or contributed to the injury and damages suffered. An example might be a situation in which a pedestrian crosses a road carelessly and is hit by a driver who is also driving carelessly. If a plaintiff is greater than 50% negligent, then the law in Illinois will result in a bar to recovering any damages.
is a type of negligence where a professional, under a duty to act, fails to follow generally accepted professional standards, and that breach of duty is the proximate cause of injury to a plaintiff who suffers damages. It is committed by a professional (or her/his employees or agents) on behalf of a client or patient that causes injury or damage. The most commonly known forms are medical malpractice and legal malpractice by medical practioners and lawyers, though malpractice suits can be brought against accountants, investment advisors, and other professionals.
is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Simply put, medical malpractice is professional negligence by a healthcare provider (including doctors, nurses and others) that causes an injury.
Even though there is breach of duty, the negeligence suit will not be successful unless there is provable injury. The plaintiff/claimant must have suffered loss or damage flowing naturally from the breach of the duty of care if damages are to be awarded. There are various damages that you may suffer as a result of the negligence of another. You are entitled to be fairly and reasonably compensated for your injuries and damages.
In a personal injury case, these damages or losses are calculated from the date of the injury through the remainder of your life expectancy. Damages include past (from the date of injury to date of trial) and future pain and suffering, past and future medical expenses related to your injuries, past and future loss of income or loss of earning capacity, past and future disability or your inability to engage in normal life activities, and disfigurement, if any, by considering the nature, extent and duration of your injuries.
In a case involving the death of a family member, the damages may include loss of society, companionship, love, affection, services and support.
In serious injury cases, a spouse may also have a claim for damage to the marital relationship and may include loss of companionship, services and support.
Typically, following an injury, medical expenses are paid by your health insurance, worker's compensation, automobile insurance, or perhaps Medicaid/Medicare. If you recover your medical expenses in your claim, you will probably have to reimburse from your recovery the entity that paid those expenses. Some people believe this protects against a "double recovery". Your attorney often is able to negotiate a reduction of the amount required to be reimbursed to the lien holder.