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Tenacious LMO, How a Reputation for Tenacity Serves Plaintiffs

Trial discussion with Judge

I’ve had a lot of cases over the years, mostly good and some that turned out not so good. When I take a case I am committed 100% and ready, willing and able to take it to trial—and my colleagues on both sides of the aisle know it. Having built a reputation for tenacity and even ferocity, I put it to work for the benefit of my clients.

Very few cases are so cut and dry that either party or their counsel can coast through the litigation or ride an early assessment regarding liability to an inexpensive and early disposition. Practically speaking cases are not resolved based solely on their merit. Many factors weigh in including the parties involved and their counsel, as well as the jurisdiction where the case is filed, some are less friendly than others.

Defense attorneys and those who pay their hourly bills (usually insurance companies) assess cases based also on the reputation of plaintiff’s counsel, i.e. his success rate at trial or in garnering large settlements, or her willingness to see the case through to trial or even to appeal an adverse decision when warranted. These qualities make an opponent formidable which sets the stage to negotiate favorable settlements.

A formidable opponent tips the scales in the plaintiff’s favor when the defendant conducts a cost benefit analysis. Does the defendant want to incur the significant expense of going to trial and risk losing, or even if they win, slogging through a costly appeal? In many cases, faced with such strident and vigorous opposition, the defense will value the case at a higher amount and manage the expectations of the defendant party in anticipation of an unfavorable result.

Maintaining a rigorous and unyielding posture throughout the litigation consistent with a tenacious reputation puts the plaintiff in the best posture for settlement. I have often advanced creative and strenuous legal arguments to overcome motions to dismiss or for summary judgment and convinced the judge to allow the jury to decide the case.

Once we’ve overcome such obstacles to getting a trial, we are now in a position to negotiate an advantageous settlement. And if not, then that’s what trials are for and that’s why I’m a trial lawyer.

Attorney Laird M. Ozmon

The Value of Experts in Personal Injury Litigation

The Value of Experts in Personal Injury Litigation by Ozmon Law

Litigation is expensive. Speaking from the plaintiff’s perspective, costs related to a personal injury claim are steep. Plaintiff’s attorneys do not relish spending money; but the fact of the matter is that in order to prove (or disprove) a case, the parties must hire expert witnesses. Expert witnesses command fees in the thousands of dollars. Costs are driven by simple supply and demand.

Experts are pivotal in proving cases alleging medical malpractice, products liability, slip and fall, or negligent operation of a vehicle including cars, trucks, trains, motorcycles or airplanes. When an issue involves any matter outside of the ken of the average juror, like, stopping distances, the standard of care of a health care provider, or the defective nature of a product like a medical device or piece of machinery, a plaintiff is required to provide expert testimony supporting the cause of action. In the absence of such testimony the case will likely be dismissed well before trial and the plaintiff will get nothing.

Any personal injury case demands medical experts, from treating physicians to retained experts, who provide the testimony necessary to support the plaintiff’s claims for damages. A doctor who treated the plaintiff may testify to the nature of her injuries, but she may need to hire an expert to render an opinion on the likelihood of long term limitations, reduced life expectancy or future medical intervention necessary. Without such expert testimony the plaintiff may not even be allowed to ask the jury for an award of money damages to compensate him for the full extent of his injuries.

There is a direct correlation between compelling expert testimony from a qualified, convincing expert in the field and a jury verdict awarding full and fair compensation to the plaintiff. While the price tag is high, it is money well spent, and the plaintiff does not have to pay unless we win. Plaintiff’s attorneys willingly accept the risk as demonstrable evidence of their commitment to their client’s case.

 

Attorney Laird M. Ozmon

Who Wins When Punitive Damages Are Awarded?

Who Wins When Punitive Damages Are Awarded?

Recently a huge punitive damage award made the news. A groundskeeper sued Monsanto alleging its well-known weed killer Roundup caused his terminal cancer. The jury attributed $250 million of its $289 million award for the plaintiff to punitive damages based on the company’s conduct when it received reports about the adverse health effects of its product that remains in the marketplace today.

In October a California trial judge reduced the punitive damage award to match the award for compensatory damages (i.e. medical expenses, pain and suffering, lost wages, disability) of $39.25 million. The court ruled the ratio of punitive to compensatory damages should be 1:1.

To understand this result and its effects we must define punitive damages. Punitive, a.k.a. exemplary, damages are money damages above and beyond monies dedicated to reimbursing the plaintiff for what he or she lost or suffered. They are intended to punish and deter wrongdoers from repeating their conduct. Such damages are not often awarded, that’s why they are newsworthy.

Punitive damages may be a function of the net worth of a defendant. The size of the award may also correlate to the gravity of the wrongful conduct. Consequently juries may award punitive damages based on emotion rather than a logical equation. With these factors at play, trial judges have the power to reduce punitive damage awards to bring them in line with reason rather than passion. However, what the judge did in the Monsanto case is illogical and contrary to the intent of legal doctrine. Adoption of a 1:1 ratio would most often result in a punitive award insufficient to achieve its goal of deterrence. Maybe a ratio can be just, but 1:1 is a random choice that ignores underlying jurisprudence.

Whatever you think about the size of this award, or the judge’s decision reducing it, verdicts like this reverberate in corporate boardrooms, law firms, the offices of insurance companies and claims administrators, and anyone who serves their interests. So when corporate decision makers read a report potentially linking their product to health risks, or disclosing a defect that could cause injury, their cost-benefit analysis has been materially changed—in favor of the consumer. Regardless of whether you think the cost of any particular award trickles down to the consumer, there is a direct benefit from its impact on future corporate conduct. This is the U.S. tort system working to benefit the public, not the privileged few.

Attorney Laird M. Ozmon

STUDY GIVES SKEWED VIEW OF THE U.S. TORT SYSTEM

Beware of a recent study conducted by the biased U.S. Chamber Institute for Legal Reform claiming the costs and compensation paid for the U.S. tort system totaled $429 billion for 2016. In an effort to incite public outcry it implies it is scandalous that plaintiffs receive only 57 cents on every dollar paid in compensation.

In all of its hyperbole, the headlines ignore what the study does not reveal. First, let’s deal with the alleged amount of money that goes into plaintiffs’ pockets: 57%, leaving 43% for attorneys’ fees and litigation costs.

Plaintiff’s attorneys work on a contingency fee basis which ensures all citizens, not just the rich ones, have access to our justice system. The typical fee is 33% of the amount recovered plus costs of litigation. For complicated cases, the fee could be up to 40%. This means litigation costs, i.e. expert witness fees, transcripts, record production costs, account for the last 3-10% that did not go to plaintiffs. The figure appears to include insurance costs, which would include defense costs, including defendant’s attorney’s fees.

Remember, contingency fees provide that plaintiff’s attorneys get zero if the plaintiff does not recover any money, defense attorneys get paid by the hour, win or lose. In other words, the 57 cent figure, even if it is true, is deceptive.

Those who seek legal reform unfairly seek to marginalize plaintiff’s attorneys and ignore other significant facts. For instance, medical error is the third leading cause of the death in the U.S. The ability to sue health care providers who commit negligence has created a reasonable standard of care. While mistakes are not wholly unexpected, health care providers know the stakes are high in their profession. With life and limb on the line, if they make a mistake, that is what insurance is for (a $1.2 trillion industry according to 2017 statistics).

The public derives tremendous benefit from our current tort system that is rooted in our constitutional rights, including freedom of speech and unfettered access to a civil jury trial. Major corporations and health care providers wield tremendous power. They are for-profit entities concerned with the bottom line. Our tort system creates a necessary tension between serving the bottom line and serving the patient or consumer, while giving access to all, not just the rich and powerful.

Critics always ignore the successes, the demonstrable evidence the system works. For example, if it weren’t for our current system, companies would still be putting asbestos into buildings despite evidence that established they knew five decades ago it was detrimental to human health. It wasn’t until people suffering from a specific form of cancer started suing that the practices changed. There are countless incidents of litigation that resulted in positive change for the public.

Maybe legal reformers should be looking to the potential perpetrators, demanding proactivity, transparency, even apologies and swift action when they discover a defective product or professional negligence. Accountability is the key to lowering tort related costs. Through this lens, Plaintiff’s attorneys are the human equivalent of the body camera, exposing wrongs, and seeking justice for injured victims.

Attorney Laird M. Ozmon

MAKING OF A GOOD WITNESS

Ozmon Law - The making of a good witness

Recent news events have highlighted the importance of being a compelling witness on your own behalf. The quality of witness’s presentation both superficially and substantively directly impacts one’s ability to make a case. In the context of a personal injury claim, if the plaintiff’s case is populated by credible, quality witnesses, the likelihood of recovery and the value of the case increase substantially. In my experience, when a plaintiff makes an excellent presentation on deposition, I can expect an offer of settlement to come soon thereafter.

There is a lesson in how the witnesses have comported themselves at the Congressional hearings that have recently riveted the nation. Balancing thoughtful, thorough preparation with instilling the confidence in the witness to be authentically themselves takes the supreme skill and experience of a trial lawyer.

First, appearance matters. Well-groomed, appropriately dressed people exude confidence. Looking unkempt or wearing something extremely informal, or even too formal (picture an evening gown at a backyard BBQ) gives the appearance of being out of one’s element—the proverbial fish out of water.

Demeanor is key. Employ coping strategies tore main calm. It is key to tell your story clearly and concisely. Use tips to keep yourself from appearing too anxious, speaking quickly or without thinking, such as counting to three or taking deep breaths. If you find yourself so focused on the answer that you’ve stopped listening to the question, stop and reset, or ask for a break.

Confidence naturally flows from preparation. An excellent trial lawyer will patiently take a witness through the impending proceeding telling her what to expect, reviewing the facts, documents, proffering sample questions and practicing common scenarios, i.e. what to do when there is an objection, how not to guess.

Your attorney should discuss any potential weaknesses. You will strategize about how to respond truthfully while minimizing the shortcomings. A strategy common among defense attorneys is to trot out the complaint and go through each allegation with the plaintiff at a deposition. This is designed to undermine the credibility of claim if she is not prepared and/or hasn’t seen the document.

Being a good witness doesn’t come naturally topmost. This is a team effort, a plaintiff’s attorney cannot testify for his client, but he can give her the tools to be her most compelling advocate.

Attorney Laird M. Ozmon

 

Recent Changes to Illinois Tort Immunity and How it Affects You

Tort immunity is a concept created by lawmakers to balance the interests of a public entity funded by taxpayers against the interests of individual taxpayers in obtaining compensation for an injury caused by the wrongful conduct of a public entity or employee. It’s the classic tension between the common good and individual interest.

Breaking down the term, a “tort” is a wrong for which you may recover from a wrongdoer. “Immunity” is a legal shield from liability for that wrong.

The Illinois Local Governmental and Governmental Employees Tort Immunity Act (“the Act”) has a long, tortured history of interpretation by the courts. So when a plaintiff reports an injury caused by a condition of a roadway or sidewalk, or an incident involving a public official, plaintiff’s attorneys face an uphill battle.

Plaintiffs often base liability on the duty of a local public entity to maintain its property in a reasonably safe condition contained in the Act. Government defendants seek to undermine this duty by arguing discretionary immunity applies to the facts of the case. The Act provides immunity for an exercise of discretion (i.e. a decision not to repair a road based on expense) but provides no such protection for ministerial acts. “Ministerial acts” are performed in a prescribed manner, mandated by legal authority and without reference to the official’s discretion (i.e. failure to place road sign according to legal requirements).

Recently, the Illinois Supreme Court held in Monson v. City of Danville the City could not invoke discretionary immunity because it did not present any evidence documenting the decision not to make the repair at issue. This clarified the issue; even though a decision to repair would be discretionary, if the governmental entity did not consider the repairs it exercised no discretion, thus no immunity. Monson gives plaintiffs a new ray of hope for recovery against governmental entities.

If you think you were seriously injured and a governmental entity or employee was at fault, please call Laird M. Ozmon at 815.727.7700.

Attorney Laird M. Ozmon

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