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NOT “AS SEEN ON TV”: MANAGING THE PLAINTIFF’S EXPECTATIONS

Expectations drive human behavior. Few people outside of the legal profession have any understanding of the judicial process or the time horizon involved to enable them to form reasonable expectations about it. Instead, the public relies on the fantastical depiction of the legal system represented on television and in movies. Believe me, unlike an episode of The Good Wife, no personal injury case goes from discovery deposition to trial in a day’s time, with private investigators disclosing the key piece of evidence just before closing arguments. The law is made up of rules, after all.

In reality, a party can expect a case to take an average of three to five years to make its way through the legal system, sometimes even longer. Oftentimes, defendants bring multiple motions to dismiss the case so the most crucial part of the process, called “discovery,” does not even get under way for a couple of years.

Discovery is the investigation of the case to adduce the facts that form the evidence admissible at trial that proves the plaintiff’s case to the factfinder, either judge or jury. It can also reveal potential flaws or defenses that allow defendants to defeat a plaintiff’s claim or reduce a defendant’s liability for damages. Discovery is lengthy and painstaking.

During discovery, the plaintiff has a brief moment in the spotlight—a starring role during his or her deposition. This is also incredibly stressful. Since it is the defendant’s attorney conducting the deposition, the plaintiff does not have control of the narrative. It can be very frustrating for an injured party who views it as an opportunity to tell their story. It is my job to take the time necessary to prepare plaintiffs for this and reassure them that we ultimately will control the narrative at trial if necessary.

Then the plaintiff shifts to the background while the rest of the discovery commences, depositions of witnesses for the plaintiff and defendants, experts on both sides, document production. Over a period of years, plaintiff’s attorneys can expend hundreds of hours of diligent work to build the case to their client’s advantage, strategize and get the case in a position, ideally, to get the best settlement. Yes, settlement!

The statistics vary, but well under 10% of civil cases go to trial, more than 90% settle before trial. Settlement is the goal because it means more money in the plaintiff’s pocket (remember the plaintiff is responsible for the hefty expenses involved in the trial, i.e. expert fees, court reporting costs, demonstrative exhibits) and it provides certainty of recovery. While trials are the penultimate moment in the story arc on TV, in real life, they can end in a verdict for the defendant—a reality a good plaintiff’s lawyer must make clear to a plaintiff whose case has potential problems. The prudent plaintiff’s attorney is always preparing and is well-prepared for trial, but avidly pursuing settlement knowing in the real world of juries and courtrooms both are often a crapshoot. The savvy, experienced trial lawyer’s job is to artfully prepare his or her client’s case such that the defendants come to realize a fair and reasonable is in THEIR BEST INTERESTS. If the defendant disagrees, then it’s time to talk to those 12 people in the jury box.

Attorney Laird M. Ozmon

PROS AND CONS OF THIRD PARTY LITIGATION FUNDING

PROS AND CONS OF THIRD PARTY LITIGATION FUNDING

Third party litigation funding services are trending. They have been around in some form for many years, but now they are taking on a new prominence as litigation becomes ever more prevalent, sophisticated and accessible to the masses.

Civil lawsuits are expensive. I’ve pointed out in my blog that the beauty of our system of justice in America is that plaintiff’s attorneys are willing and ethically able to bear their client’s costs and the risk of winning their case. This serves the dual purpose of discouraging attorneys from considering frivolous cases and allowing injured victims access to civil justice regardless of socio-economic status.

This model has promoted a proliferation of litigation funders who serve different purposes. Some litigation funding companies are dedicated to pushing forward a specific agenda by enabling a case to be filed and prosecuted when it might otherwise not be, due to financial considerations. Think Facebook co-founder, Peter Thiel’s funding of the lawsuits that shuttered the doors of Gawker Media.

Other litigation funding services loan money directly to the plaintiff using the lawsuit as collateral. This can be a viable option for cash-strapped litigants considering that plaintiff’s attorneys are ethically bound not to loan money to clients. However, the amount of interest and costs for these loans can be quite high and clients should be made well aware of the financial responsibilities and consequences of entering into any of these agreements.

This scenario was the subject of a recent Illinois case, and although neither the client nor attorney had to repay the loan, the plaintiff’s attorney did not get out unscathed.

In Prospect Funding Holdings, LLC v. Saulter, 2018 IL App (1st) 171277 (March 13, 2018), an attorney arranged for his client, a plaintiff in a wrongful-death suit, to borrow $25,000 from a litigation funding company under a purchase agreement governed by Minnesota law. The case settled, the money was not paid out of the proceeds and the client failed to repay the company, which then sued both client and attorney.

The case caused the Illinois court to consider an issue of first impression concerning an attorney’s liability to a business that loans a client money to be repaid, plus fees and interest, from any settlement or judgment. The Illinois court rejected the litigation funder’s arguments finding the key documents unenforceable because they violated Minnesota law prohibiting a third party from having a contingent interest in litigation. Also, the funding company could not base its claim on a violation of the Illinois Rules of Professional Responsibility governing lawyers because it is not provided by the rules. However, the court warned the plaintiff’s attorney may still suffer ethical consequences for failing to hold the settlement funds in his trust account and referred the matter to the disciplinary commission. The key takeaway here is that third party litigation funding services should be used sparingly and ethically, with all parties being fully informed of the consequences of such an arrangement.

MAKING ATTORNEY REFERRAL NETWORKS WORK FOR YOU

Believe it or not, lawyers have friends. Those of us who have been in the trenches for a long time have worked with other lawyers as collaborators, adversaries or strategic partners. Unlike many professional colleagues, we often see each other in action, in court, at depositions and at the bargaining table, and sometimes even as our worthy opponents. With this experience and earned respect, we have built strong relationships and regularly refer clients within our networks.

Why does this matter to you? Because I, or one of my many friends, may become your trusted ally when you or someone you know are feeling the most vulnerable. And we will take care of you as we would each other.

So if you ever find yourself wondering whether you were wronged, or if something that happened to you, a friend or loved one, could be the subject of a lawsuit or insurance claim, you have a friend in me. I have decades of experience and success serving plaintiffs in personal injury matters, and I only get paid if we win. If you ever feel afraid to speak up or inquire about your rights, my friends are your friends. They may practice in employment or workers compensation law, family law, or estate planning, to name a few.

This means that instead of wringing your hands, suffering in silence or wasting your time wondering, you should pick up the phone and call a lawyer. If you are friendly or acquainted with an attorney, or find an attorney you like through personal recommendations or an Internet search, contact him or her. If your issue is in a different practice area, that attorney will refer you within a network of colleagues who consider it a privilege to hear your story. If you have one lawyer to turn to, you have whole brigade of advocates at your disposal.

Think of lawyers as citizen soldiers in the battle to ensure the rights of the most vulnerable. Every day we are besieged by new tales of the abuse of those rights, such as injuries in the workplace, harassment and abuse, and acts of negligence, professional or other. When it comes to raising our voice for the voiceless, or the ones who have yet to find their voice, attorneys are part of a united front, dedicated advocates, standing at the ready to fight for you. Despite the negative press and the inevitable bad apples, the legal profession stands in the doorway barring you from injustice, so please consider us your friend, not foe.

Attorney Laird M. Ozmon

AATD commonly misdiagnosed as chronic asthma

Antitrypsin deficiency Alpha-1 Attorney Laird Ozmon at Ozmon Law

Antitrypsin Deficiency, known as AATD, is an inherited condition passed from parents to their children through their genes.

The deficiency will result in serious lung disease in adults and, at times, can also cause lung disease in young adults.

AATD is commonly misdiagnosed as chronic asthma or COPD. In fact, out of the 12 million patients diagnosed with COPD in America, approximately 1 to 3 percent likely have A1AD.

Left untreated, A1AD results in progressive destruction of lung tissue resulting in severe loss of lung function and life expectancy.

Laird Ozmon of Ozmon Law in Joliet has pioneered the fight to seek fair compensation for those patients who have been misdiagnosed and have suffered such serious lung damage.

View the full article at HeraldNews.com

Learn more about Alpha-1 Antitrypsin Deficiency AATD

Plaintiff’s Attorneys Unite! Illinois’ Top Court Calls for Amendment of Contribution Act

Amendment of Contribution Act

The Illinois Supreme Court has issued a call to action to the legislature regarding the fair and equitable apportionment of the damages between defendants in a personal injury lawsuit. On February 16, 2018, in Antonicelli v. Rodriguez, the court issued an opinion that allowed the most culpable defendant in an auto accident case (an intoxicated driver) to enter into a good faith settlement with the injured plaintiff for the limits of his $20,000 insurance policy. This left the other defendant, the employer of the driver of the truck following behind the plaintiff when the settling defendant made a U-turn in front of her, potentially holding the bag at trial. Make no mistake, the truck company had a bigger bag and deeper pocket, so it was in the plaintiff’s interest to take the policy limits settlement from the driver and focus on the other defendant at trial.

The core issue here is a broader one—whether the jury may be allowed to apportion blame among all culpable defendants regardless of whether all are present actively defending themselves at trial. The defense lawyers admitted their primary objective was to get the settling defendant’s name on the verdict form eventually used at trial so they could reduce their liability by the percentage the jury found attributable to the settling defendant. The truck company tried to distinguish the case calling the driver’s conduct intentional because he was high on cocaine. The Court was unmoved, having found no prior precedent that a traffic collision caused by an intoxicated driver is an “intentional tort.” Moreover, the plaintiff made no such allegations.

The Illinois high court said the statute that governs this question, the Joint Tortfeasor Contribution Act, did not provide for such a result. Nevertheless, there are competing interests vying for consideration here. The purpose of the Act is to encourage settlements and equitable apportionment of damages among defendants. The purpose of our civil justice system is to fully compensate injured victims. Consequently, if defendants settle, then do not defend themselves at trial, the evidence a co-defendant produces pointing a finger at them will go unanswered. This would likely result in empty chair defendants being found disproportionately responsible for damages when their damages have already been fixed based on a good faith settlement.

Essentially the Court determined the injured plaintiff’s risk of not recovering full compensation outweighed the non-settling defendant’s risk of having to pay more than its “fair share” of the jury award. Current law levels the scales a bit by allowing the defendant to set-off the amount of the settlement without the jury’s knowledge so it doesn’t factor into their calculation. This would result in a $20,000 deduction from a jury verdict in the case here.

This initiative will require Plaintiff’s attorneys to meet this call to action with full force to insure any amendments to the Contribution Act do not diminish the plaintiff’s right to full and fair compensation. In other words, we have to do what we do best, fight for the rights of injured victims.

Attorney Laird M. Ozmon

Stranger Things: Plaintiffs Multi-Million Dollar Medical Malpractice Verdicts Survive Appeal

Medical Malpractice the 3 lead cause of death in the U.S. | Ozmon Law

As I mentioned in my last blog, medical malpractice cases are steep uphill battles. Nearly 80% of trials end in a defense verdict despite medical error being the nation’s third leading cause of death. The appellate court is an equally unfriendly place for victims of medical negligence. But recent rulings have brought some moderately good tidings for plaintiffs.

To give you a brief overview, Arient v. Alhaj-Hussein involved a wrongful death case on behalf of a patient who died after a medical procedure rendered her a paraplegic. A Cook County jury awarded nearly $8 million to her estate. Even though the Appellate Court found reversible error at trial, the court upheld the verdict. The errors related to three of the plaintiff’s five alternative claims of negligence. The defendant did not ask the jury to separate its verdict according to those claims using special interrogatories (specific questions to the jury to be answered when it renders the verdict). Instead it submitted a general verdict form, so the court refused to reverse because it had no way to determine on what acts of negligence the jury based its verdict.

Another appeal brought mixed results after a heartbreaking turn of events roiled plaintiffs in the case of Jefferson v. Mercy Hosp. & Med. Ctr. The plaintiff claimed permanent brain damage due to medical negligence. But after the case was submitted to the jury and before it rendered a verdict for over $22 million, $15 million of which was allocated to future damages, the plaintiff died. The defendant hospital sought to overturn the verdict or at least reduce the amount of the damages. Having never reviewed such circumstances, the Appellate Court ruled that until the moment the verdict is rendered the case may be transformed into a survival action if the plaintiff dies. In that event, the plaintiff is not entitled to damages that accrued after the plaintiff’s death. This ruling allowed the plaintiff’s estate to retain just over $7 million in past damages but the family lost $15 million in future damages the plaintiff would not suffer due to her death. The family will likely be able to pursue a wrongful death claim they filed post-trial by way of an amended complaint; those proceedings were stayed pending this appeal.

In both cases the defendant’s strategy concerning verdict forms or special interrogatories rankled them on appeal. In Jefferson the defendants objected to plaintiff’s tendered instruction seeking to separate past and future disfigurement. Without this distinction, the court could not discern what portion of the jury’s $2.5 million award for disfigurement was attributable to future damages so it let the award stand. The key takeaway for trial attorneys is that the preparation of the documents memorializing the jury’s verdict should be tailored to each case; conventional wisdom may not always apply.

Attorney Laird M. Ozmon

3 Things to Know about Birth Injury

The arrival of a baby should be a happy and joyous occasion, but sadly, birth injuries occur all too often around the country.

A birth injury is a health problem that an infant is born with that, in most cases, is completely preventable. These injuries may be the result of medical malpractice, and the mistakes often have catastrophic consequences for the child as well as the parents.

Ozmon Law is experienced in birth injury litigation and can work with you to help you understand your rights. Here are 3 important things to know about a birth injury:

Read more at TheHeraldNews.com

How to Recognize Medical Malpractice

Attorney Laird M. Ozmon

Medical error is the No. 3 leading cause of death in the U.S., according to a 2016 Johns Hopkins University Study.

While cancer and heart disease gain a lot of media attention, medical malpractice claims are not as widely reported.

Ozman Law believes is in everyone’s interest to zealously seek to ensure the medical profession is always meets the standard of care. Because human error is a universal condition with no cure, professional liability insurance exists.

Medical Malpractice Law can be generally defined as negligence on the part of a physician, hospital or other health care professional, which result in physical and financial injury as a result of that negligence. Medical malpractice can involve an injury or even death that occurs in the course of medical treatment.

Read More at TheHeraldNews.com

A Primer for Potential Victims of Medical Negligence: How to Recognize Malpractice

Medical error is the No. 3 leading cause of death in the U.S. according to a 2016 Johns Hopkins University Study. What does this mean? It means the hue and cry claiming medical malpractice claims are spurious and the stuff of an overly litigious population seeking to stymie the best efforts of our country’s health care professionals is hogwash. It is in everyone’s best interest that we zealously seek to ensure the medical profession is always required to meet the standard of care, but human fallibility is a universal condition with no cure. That’s why there is professional liability insurance.

So how do you know if you or a loved one have been the victim of medical malpractice rather than one of the unlucky few who landed on the wrong end of the statistical spectrum with a bad result that does not necessarily equate to bad medicine?

Consider first the definition of “medical error” which is an unintended act (omission or commission) or an act that likely could not achieve its intended outcome, the failure to carry out an intended course of action or devise one, or a deviation from providing proper care. When a patient is harmed by medical error it may occur at the individual or system level, i.e. doctor, nurse, or hospital.

Based on the above definition, the first step in assessing whether you or a loved one might have been a victim of medical negligence is determining whether medical treatment resulted in unintended or unexpected adverse outcomes. If the prescribed treatment did not result in a cure or resolution of a medical condition, was the possibility of the adverse outcome thoroughly explained at any time prior to treatment? Does the adverse outcome appear to be remote or unrelated to the intended procedure?

Even if it was explained, it does not necessarily mean no malpractice occurred. This is particularly true when all other indicators point to a positive outcome, i.e. the patient was otherwise in good health, had no negative history or vigilantly followed medical instructions. Other times, you might just have a gut instinct that something isn’t right. Key indicators may be that the health care professionals suddenly undergo changes in demeanor and appear equivocal or less candid. Any one of these should prompt you to seek out a legal opinion. There are no disadvantages or costs to you; on the contrary, it puts peace of mind within reach. However, it should be kept in mind that even the best malpractice cases are often difficult, time-consuming and expensive. Considering malpractice lawyers generally work on a contingent fee and front all expenses, only serious cases normally merit action.

Medical malpractice attorneys bear these burdens so their clients don’t have to. We will obtain and review the relevant medical records. Then, if warranted, we will retain a qualified health care professional to render an opinion as to whether negligence has occurred. Under Illinois law, a plaintiff cannot pursue a claim for medical malpractice without this opinion supporting their claim. The message here is; do not be intimidated by propaganda intended to persuade people to ignore reality. Medical negligence occurs enough to put it in the Top 3 leading causes of death, not even accounting for non-lethal injuries. If you suspect serious medical malpractice, enlist a qualified plaintiff’s attorney to evaluate your case and, if meritorious, get you a fair settlement or judgment against the culpable health care professional or institution.

Attorney Laird M. Ozmon

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