What Personal Injury Claims Can be Made in Illinois? Part 2
What Personal Injury Claims Can be Made in Illinois?
Going to Court
By Parag Bhosale
(This is the second in a two-part series on personal injury claims in Illinois)
My last blog covered the types of personal injury claims that can be made in Illinois. This blog discusses how the process will work if and when you need to go to court for your personal injury case.
Preparing Your Case
If you suffer a personal injury outside of the workplace you may be able to pursue a personal injury lawsuit. Maybe 20 percent of the victims suffering a personal injury choose to file a lawsuit, mainly because they find an insurance company will not fairly cover their property damage and/or medical bills. A very small percent of those cases –less than five percent—actually go to trial.
Even if you don’t anticipate this situation, it’s a good idea to proceed as if you plan to pursue a lawsuit. That way you will be prepared if a settlement can’t be reached. What can you and your attorney do to make sure you’re prepared?
• Gather all medical bills. Keep track of every medical bill related to the accident and know the cost of everything. You may have more bills trickling in even after you are done with treatment so keep track of the bills – both paid AND unpaid.
• Gather corresponding medical records. With every bill you should have a corresponding document from your appointments. In a lawsuit, these become evidence that you are injured, which will help your representing attorney argue for a fair damage award. Request them from your doctor as soon as possible as this process may take weeks.
• Secure an attorney. If you have not yet called an attorney, do so immediately. You will need a personal injury attorney in Illinois to help your case move forward to the next step.
• Your attorney prepares a demand letter. Once you have the documentation that proves your insurance company is not compensating you fairly for your injury, it’s time to ask for what you need. Your attorney will research what has typically been awarded by juries in your county over the last few years (numbers often vary by county).
At Gardi & Haught, we keep our clients aware of every response we get to the demand letter. The hope is that the defendant’s insurance company will peaceably answer the demands of the letter in which case, you will probably receive your settlement within 3-4 weeks. We will negotiate a settlement in your best interest, and if it’s a bad offer, we’ll advise you to turn it down.
Preparing to Settle Out of Court
If your case doesn’t settle, we will need to file a lawsuit and go to court. This process goes much slower than settling out of court. First, the party accused of being at fault must be served with papers, even if their insurance company is responsible for the settlement. This may take 60-90 days. Before a court date can be set, you must provide proof to the court that they have been served.
Next, your attorney will continue building the case through the discovery phase, which involves written discovery (review of all medical bills and documentation) as well as oral discovery, which begins with your answers to pertinent questions while under oath, otherwise known as a deposition. Depositions can also be taken from anyone else involved in the accident, such as a companion or witness, doctors, police officers, engineers, safety officers, economists, and other experts.
After that, an attorney has enough information to pursue an alternative to the courts such as transferring the case to mediation so a settlement can be made out of court. This saves everyone time and money and 20 percent of the time, plaintiffs will be successful settling this way.
However, when you are suing multi-million dollar insurance companies, time and money are not always an issue. If they refuse to make a fair settlement offer, the next step is to go to trial
Preparing for Trial
About 60 days after the lawsuit has been filed, the plaintiff and defendant (or usually just their attorneys) will be scheduled for a court appearance, usually within the next 18-24 months, depending on the number of people involved in the case. In this time, the attorneys must do their due diligence to prepare for the trial. This includes…
• Medical depositions. Doctors are called in and interviewed under oath. This includes both your medical providers as well as any expert witnesses who have reviewed or had experience with your medical condition and records. They give an opinion as to the prognosis of your health condition moving forward as related to the accident as well as any pre-existing conditions that may have been aggravated by the accident. The defendant also has the right to hire their own expert to review your medical records and try to call into question whether all of your claimed injuries are a result of the accident.
• Evidence for other claims. When claiming pain and suffering, emotional distress, disfigurement, loss of companionship, punitive damages, etc., you and your attorney will need to gather more depositions and evidence. This might include photographs, police records, mental health records, etc.
Prior to the start of trial, a judge will rule on the jury instructions and evidence that he will allow the jurors to hear. During the trial, a jury will be responsible for determining the amounts of your award based upon the evidence and the instructions they are given by the judge. The Illinois Supreme Court has provided the circuit courts with pattern jury instructions but the judge for your trial can tweak them if your attorney can persuade him/her. If the jury does not adhere to the jury instructions, the judge can declare a mistrial.
Does one need an attorney to bring a lawsuit for a personal injury claim in Illinois?
Some people try to resolve their personal injury claims on their own, but usually do no better than receiving half of the medical expenses they should receive. Some claims, such as unpaid medical bills and compensation for missed time at work are easily calculated and proven. But for claims of pain and suffering, emotional distress, future medical bills, etc., the assistance of an attorney is invaluable.
Of course it makes sense to weigh the expense of an attorney against the amount you wish to recover through litigation. If your medical expenses do not exceed $3,000, it is probably not worth it to retain an attorney. It may also be difficult finding one willing to litigate over that amount.
However, if you are actively seeking treatment from a doctor and are having trouble receiving the health care you need from your insurance company, please consult an attorney. There are mechanisms built into the law that can get your treatment covered, regardless of your ability to pay. For example, an attorney can arrange for your medical provider to use a lien to get paid out of the proceeds of your case.
A few words of advice…
It’s important to know what to do right after an accident. You may feel fine at first, but problems can develop later. There are a number of things you can do to make it easier to pursue your personal injury claim in Illinois later on.
• See the doctor right away. As you’ve learned, having documentation and an expert opinion on your condition is invaluable if you ever need your case heard before a jury. Seeing the doctor right away communicates your immediate need for medical treatment and documents a baseline of health right after the accident in case you have pain later.
• See the right doctor. Don’t see a doctor who may be considered controversial in any way, like a a new age healer or a witch doctor. You can choose any M.D. you’d like. Going to anyone other than an M.D. sends a signal that your condition may not be in need of traditional medical treatment, and therefore is not a traditional injury.
• View your injury through the attorney’s lens. As an attorney, I am always thinking about the perceptions of the ultimate judge in your case—the jury—and what they will think about your behaviors following the accident. What will they think if you went to work the next day after a horrible accident? What if you raun in a marathon the weekend after the accident? Even your social media posts may be scrutinized and presented to the jury as evidence that you are not badly hurt. Injured people can and can’t do certain things….it’s our job to remind you of how these things are perceived.
Pursuing a personal injury claim in Illinois can be difficult, which is why Gardi & Haught is available to counsel and guide you. If you have suffered an accident and think you may have a personal injury case, click below for a free case evaluation.
Additional Personal Injury Claims in Illinois Articles:
Part 1: What Personal Injury Claims Can be Made in Illinois?