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Social Media and Your Case

Friday, June 15th, 2018

This week attorney Alexis Ferracuti handed us associates the latest Illinois Bar Journal and circled the article "Sleuthing on the 'Net." This article starts a discussion of how social media has changed the way attorneys handle their cases. In my years of being a practicing attorney, I have seen first hand how social media can impact a case which is why I have decided to blog about it this week.

Years ago, an attorney who wanted to find information on a case either about a witness, a litigant or a juror, they would have had to search public records. These public records would range from court proceedings, driving/police records, marriage and divorce documents and property ownership. If they wanted to find out more information than that, they would have to hire a private investigator. But thanks to the internet and social media, the investigative avenues have blown wide open. Between Facebook, Instagram, LinkedIn, Twitter, Snapchat, Google search (to name a few), there are many different avenues of free investigative research. An attorney nowadays simply has to type the name of a witness, litigant, or juror in the Google search bar and there is a plethora of information on them.

Okay so great, someone can Google my name and figure out some information on me, but how does it impact my case? Specializing in worker's compensation and personal injury, we see a lot of clients who have been injured. This injury results in a doctor informing our client that they have certain restrictions albeit they can't lift more than a certain weight, or they can't use the injured body part. This results in our client not being able to engage in certain activities i.e. can't fish anymore, can't garden, can't go hunting, can't ride their motorcycle. If this is the case, if our client is given restrictions -they should abide by those restrictions. Specifically, in worker's compensation, defense attorneys always send out private investigators to watch our clients to see if they partake in the activity. We used to only warn clients of these private investigators, but now the times have changed. Defense attorneys in both worker's compensation now use social media such as Facebook, to see if our client is partaking in an activity that they are unable to engage in. More and more people are providing the surveillance that a private investigator used to provide. They are posting pictures and videos of themselves on social media doing what they said they were unable to do. It happens all to frequently that we are in a deposition and the opposing attorney brings out a Facebook page which has pictures of our client doing what they said they could not do.

As a society, we need to be aware that everything we post online is available for people to see and can have implications. The information we post online can be used against us in discovery and in trial.

-Attorney Kendall Hodges

At what price?

Monday, June 11th, 2018

One of the most complicated and contentious aspects of any litigation is determining what a claim is worth. The importance of that number is obvious: often, the sum total of all the circumstances, the law, the history, the hope, and the heartbreak is encapsulated in a single, final monetary value. It is no surprise that the question of compensation is often an important part of an injured person's interaction with the legal system.

Once things such as medical expenses and lost wages are accounted for, the determination of further financial recovery is a complex process. An attorney must draw on their experience as well as a detailed understanding of the facts to estimate the value of a case, and occasionally even the best lawyer is surprised by the outcome of a hearing or trial. This uncertainty is what makes the negotiation of a settlement one of the most difficult parts of a case.

In Illinois Worker's Compensation cases, the closest thing to traditional court awards are Permanent Partial Disability (PPD) payments. They reflect the acknowledgment of the permanent effect that an injury has on a worker's life. PPD rates for different parts of the body are laid out in the statute itself: a somewhat ghoulish list of limbs and their assigned value, subject to how much function is lost. In stark contrast to the kaleidoscope of factors which might affect personal injury awards, the statute lays out the factors for PPD in a stark fashion:

impairment rating; occupation; age; future earning capacity; and medical record of disability.

Of course, the relative importance of these factors leaves much room for disagreement.

It is challenging to get past that final number. Is that really what all the pain and stress and life interruption is worth?

No, certainly not. Financial recompense is a poor balm for the human cost of being injured in the course of your employment. It is, however, a small comfort in the shadow of difficult times. The workers of Illinois are entitled to such comfort, and we use every tool provided to ensure that they get it.

-Attorney Travis Dunn

We all have different paths

Tuesday, June 5th, 2018

Being an attorney is the most rewarding thing I've ever done. College, law school, and the exam to become a lawyer were worth it. Every single second of hard work that brought me here was worth it. I get to help people get their lives back. I get to help people find justice. What an incredible thing to say.

But honestly- college isn't for everyone. Law school isn't for everyone. I know a few lawyers who don't love what they do. When I see someone who hates their job, or does it for the wrong reasons, I always stop and wonder whether they started doing it because they were told that was the path to follow. Many years ago, someone decided everyone needed college. Everyone needed some sort of college degree. Going into the trades right out of high school or working on a farm immediately after high school graduation became frowned upon, and I just can't figure out how that gets us ahead as members of a society of people who are all genetically and socially different in almost every way.

If you handed me a tool box and told me to go fix a door, I could probably figure it out after an hour or two- maybe three if I'm being honest about my mechanical abilities. If you asked me to try to build a house or assemble an engine for a piece of machinery, my first instinct would be to read twenty books and then try to figure it out and compare it to the diagrams in the books. Problem solving and reasoning runs in my family, but as my father once said, "if they had made me a plumber, I'd be useless. It's lucky I figured out how to get into law school." Trust me, we don't have time for people like me to be spending a year just putting together a plan to try and complete a project. We need minds that are mechanically inclined and hands that understand the work they are doing without books and manuals to do that work.

We're all different and we're all meant for different things. I'm proud to come from a family of farmers, ranchers, salesmen and women, nurses, teachers, butchers, school bus drivers, mechanics, factory workers, construction workers, union members, military veterans, and lawyers. Instead of forcing kids to rack up college debt, let's encourage some of them who are clearly inclined to do so to enter the trades and train through the unions or find fulfilling work in an industry that they care about right out of high school. Let them prosper and decide for themselves rather than pushing them into a career path they don't want. I dread the day that someone might tell me there is no laborer available to help me build a home because the trades are going extinct. Help me bring them back.

-Attorney Alexis Ferracuti


Latest in Illinois Gun Rights

Friday, May 25th, 2018

Gun rights have been a hot topic in the news for over the past year. Unfortunately, it is a topic of hot debate because of the number of mass shootings that have occurred across the United States. Just last week it was huge in the news for Illinois as a shooter was apprehended in Dixon, Illinois. Even more recently, the Illinois House approved a plan allowing six-moth suspension of gun rights for people showing "red flags."

Illinois judges would have discretion to temporarily suspend the gun rights of someone who displays violent warning signs. However, this meaning that family members, housemates or police must first seek court intervention. The proponents of the bill argue that the legislation is a means to prevent mass shootings and other common gun-related deaths. Opponents, however, are questioning whether it is necessary and whether it would interfere with law-abiding gun owners' civil liberties.

Representatives in support of the bill said that the measure would create a way to prevent gun violence before it occurs by getting the guns from someone who raises "red flags." Some of these "red flags" that would be considered is posts on social media or threatening remarks. In addition, families and friends of people who show signs of mental illness or distress are often left feeling powerless and this would put them in a situation where they could enable the person to get help without feeling as if the person would get arrested. Proponents are pleading not to look at this bill as a gun bill but look at what the bills does not what you think it is going to do.

This measure comes as state lawmakers are considering several other gun control initiatives to stem violence in the state. Earlier that day, lawmakers also considered several of Governor Bruce Rauner's safety proposals such as creating a 72-hour "cooling-off" period for purchasing an assault weapon which already applies to handguns. Also, the Governor proposed bringing back the death penalty for people who kill more than one person or kill police officers. Governor Rauner also wants to create new ways for local schools to get more armed security and mental health professionals on staff. This definitely hits home after the events in Dixon, Illinois last week where a security guard took down a gunman that was present at the high school. It will be interesting to see what changes are made.

-Attorney Kendall Hodges


Creation, Destruction, and Retaliatory Discharge

Friday, May 18, 2018

The Law changes. Laws themselves are added and removed by the legislature, "schoolhouse rock" style, of course. Regulations are implemented. Courts interpret and reinterpret those laws and regulation, adding their own explicit and implicit threads to the tapestry of The Law. Judicial decisions are handed down that alter the landscape of legal rights and responsibilities.

And sometimes, unfortunately, they don't.

Such is the case of Edward Nance's case against Comcast Business Communications, Inc. in the Eastern Division of the Federal District Court for the Northern District of Illinois, which came to a regrettable end on May 8th, 2018. Mr. Nance alleged that Comcast terminated his employment as a result of his attempts to collect disability payments during a period of injury in 2016 and 2017. Notably, it seems that this wasn't a worker's compensation injury-Edward hurt his shoulder while off-duty and required a significant period off work during which he repeatedly attempted to collect on the short-term disability benefits to which he was contractually entitled.

Illinois is an at-will employment state, but the courts have carved out an exception when retaliatory terminations violate a clear mandate of public policy. Edward's initial complaint alleged that he was wrongfully discharged for one of two reasons: either because of a policy against retaliating against employees trying to assert contractual disability benefits; or because of a policy against retaliating against employees under doctor's orders not to return to work.

The problem with both of Mr. Nance's claims is that Illinois courts have only recognized two very specific public policy mandates which are clear enough and significant enough to override that underlying principle of at-will employment (outside of the existing laws about civil rights discrimination and harassment, etc.): retaliating based on the exercise of rights under the Illinois Worker's Compensation Act; and retaliation for reporting illegal or improper conduct or "whistleblowing." The Federal District court ruling on Mr. Nance's claims found that he had not brought enough to the table to justify the creation of a third grounds for retaliatory discharge, and thus dismissed his claim.

Now this was a Federal court, so they are explicitly more conservative against creating rights stemming from Illinois Law. It's perfectly possible that, someday soon, the Illinois Supreme Court will get the right case for the creation of another type of retaliatory discharge. It could very well come from you and us. It just didn't come from Edward Nance.

-Attorney Travis J. Dunn

WORKERS' COMPENSATION ACT

Friday, May 4th, 2018

The Workers' Compensation Act is controlled by your legislators. The people you elect into office should have a firm grasp on the issues that affect your day to day life. That includes workers compensation. Injuries at work happen unexpectedly daily. No one goes into their daily life expecting to only receive 2/3 of their wage - weekly in the case of injury.

Your legislators do not have a firm grasp of the intricacies of the work comp system in Illinois. Unfortunately, many of our legislators are under the impression that further cutting work comp settlements and benefits for Petitioners is in the best interest of the State of Illinois. The insurance companies, on the other hand, continue to increase premiums and decrease settlements to Petitioner. It should be the people of Illinois who benefit from the laws created to govern them - not big business.

Tell your legislators to vote to cut insurance company premiums for work comp and vote to uphold work comp Petitioners' rights.

-Attorney Alexis P. Ferracuti

DRAMSHOP ACT: RESPONSIBILITY FROM BOTH SIDES OF THE BAR

Friday, April 27th, 2018

For all the sturm und drang ginned up at the federal Supreme Court this term regarding topics like immigration and freedom of religion, there is a another case, straight out of South Dakota, that may be the most broadly impactful of all: South Dakota v. Wayfair, Inc. This case challenges the decades-old (well, since the 1992 Supreme Court decision Quill Corp. v. North Dakota, anyway) precedent that a state could not collect sales tax from businesses without some sort of physical presence or legal nexus in the state. Attempting to do better than its more northerly cousin, South Dakota argues that the explosion of internet commerce has put local sales-taxed businesses at a competitive disadvantage compared to online retailers. On top of that, the Quill decision deprives the 10,000 municipal and state entities around the country the ability to efficiently tax their resident's purchases and enforce their tax laws.

There is an important distinction here between passing sales tax (and things that function similarly, like registrations and filing fees) and passing laws that force businesses to enforce them. In Illinois you are required to pay a sales tax on everything you buy online: if the business doesn't collect the tax, it is the responsibility of the purchaser to report the sale and pay the tax themselves as part of their income tax filing. The Illinois Department of Revenue even provides a helpful form specifically for this purpose: Form ST-44, Illinois Use Tax Return.

If all of this comes as news to you, don't feel too bad. The abysmal compliance rate on stuff like this is why states and local governments want to collect the taxes directly from the businesses in the first place. The internet businesses, on the other hand, sensibly feel that it isn't their fault that people don't pay their taxes, and more seriously that small businesses would suffer a crushing regulatory burden if they had to collect every sales tax from all those 10,000 separate government schemes. Complicating things somewhat, larger businesses like Amazon and have been collecting sales taxes in Illinois since 2015, when a law went into effect expanding the nexus requirement to include certain types of agreements with agents operating in Illinois (Amazon itself also built its first distribution center in Illinois that year, so they couldn't exactly argue that they had no "physical presence" in the state).

At the oral argument for South Dakota v. Wayfair, Inc. on April 17th, the Justices as usual didn't tip their hand too far in one direction or another. There was perhaps a surprising amount of musing over whether it would be better to have Congress weigh in on the whole thing rather than have the Supreme Court make a constitutional judgement. At any rate, there should be a decision out by the end of the term. Until then, hold on to your Form St-44s.

-Attorney Travis J. Dunn


PREMISES LIABILITY
Friday, April 13th, 2018

At first blush it would appear that liability of a property owner for injuries caused when someone trips or slips and fall on their property and sustains injuries as a result. However, in Illinois the case law recognizes a number of defenses that renders the law in this area more complicated than you might imagine.

There are rules that say even if there is a defect, if it is not large enough the property owner may not be responsible for the injuries she caused. This is known as the De minimis rule.

Strangely, there is another rule that states if the defect is large it is obvious and there is no liability for injuries causes by obvious defects as the law requires a person to take care to avoid such defects.

There is no bright line as to what is de minimis and what is obvious, as it all depends on the facts. There is no one size fits all rule in these cases.

What is clear is that it takes an experienced litigator to navigate the mine filled waters of premises liability law.

Your author recently prevailed when a property owner who had neglected to maintain its property and allowed its walkway to deteriorate thereby causing a tripping hazard.

The defendant sought to have the court throw out the case claiming the plaintiff should have avoided the defect that defendant created.

After presenting a lawyerly argument, plaintiff convinced the court that defendant should be held to account for its actions/inactions and the motion was denied.

If you have been injured as a result of a slip or trip or otherwise on someone else's property you may be entitled to compensation, and with the help of an experienced attorney, you can seek damages for your injuries. If your find yourself in such a situation, give us a call. We offer free initial consultations, and we would be happy to set up an appointment to discuss the matter with you. Appointments may be scheduled through our toll free number at 888-488-4LAW or via email at [email protected].

-Dennis E. Both, attorney


BILL OF RIGHTS
Friday, March 16th, 2018

When the Constitution of the United States was first ratified in 1788, it did not contain what we now know as the Bill of Rights.

Even back then there were bitter political disputes among elected representatives, and one of those disputes was the debate over whether there should be a specific bill of rights which would act as a limit on the power of the government.

James Madison, who authored the Bill of rights advocated express limitations of government power, and fortunately for all of us the Madison view won out and of the 17 amendments that Madison proposed 10 were ratified by the states.

Those 10 amendments came to be known as the Bill of Rights.

It appears from recent media reports that some have forgotten, the purpose of the Bill of Rights. Some in the media report that our rights as citizens of the United States are given to us by the government and suggest that what the government has given it can take away.

Whether they did not pay attention in class, or were absent form civics class that day, I do not know, but such a suggestion is clearly erroneous.

The point of the Bill of Rights is to enunciate rights that we as citizens have naturally.

The preamble to the Constitution begins;

We the People of the United States...do ordain and establish this Constitution for the United States...

Clearly the power given to the government came from the people. What was not given to the government was reserved to the people, and thanks to James Madison, some of those rights that we are born with as citizens are inalienable.


Where ever you come down on the current political debates remember rights are given that name because they cannot be taken or altered by the political expediencies of the day.

Our rights are permanent, consistent and inviolate, no matter who is in office or what the political football of the day is.

If you believe the government, whether it be federal state or local, has infringed on your rights, the attorneys at our firm offer free initial consultations, and we would be happy to set up an appointment to discuss the matter with you. Appointments may be scheduled through our toll free number at 888-488-4LAW or via email.

- Dennis Both, Attorney


Pre-existing Conditions Under Illinois Workers' Compensation
Friday, March 9th, 2018

Pre-existing medical conditions can complicate claims under Illinois Workers' Compensation, but they do not prevent claims. Many of us have had non-work-related injuries or have conditions which can cause us weakness or pain over time. Illinois Workers' Compensation does not prevent someone with these conditions from collecting benefits under the Act.

The types of injuries that are covered by Illinois workers' compensation are those that "arise out of and in the course of employment." This includes the aggravation of a pre-existing medical condition. The policy behind holding an employer liable for injured employees is that an employer takes an employee as it finds them. If the employee had a pre-existing condition, they are not barred from compensation if their employment caused the aggravation of the condition. For injuries that occur through the aggravation of a pre-existing condition, the Courts typically required that the aggravation itself is work related - which means that the aggravating event can be linked to a specific time and cause that is related to the employee's job. This is crucial for pre-existing conditions to be compensable under the Act.

In addressing these types of cases, we ask a doctor for their opinion on the relationship between an accident and a condition. It is pertinent that you inform your doctor of (1) where you work, (2) your job position, (3) your job duties, (4) what you were doing when the accident occurred, and (5) the work accident/how the work accident happened. This is critical in establishing your claim for workers' compensation and aggravating a pre-existing condition. The doctor needs all the information, so he can give a valid opinion on your injury. We ask the doctor whether the doctor could or might have been caused, aggravated or accelerated by the work-related injury. If the accident made the condition worse or brought on new symptoms, there is a valid workers' compensation claim. However, each claim depends on its own set of facts and circumstances.

If a work accident worsens your pre-existing condition or if you aggravate a previous condition while performing your job by repetitive work, you may be entitled to workers' compensation benefits. If you have any questions, our firm offers free initial consultations, and we'd be happy to set up an appointment through our toll free number at 888-488-4LAW or via email.

- Kendall E. Hodges, Attorney


Even in Civil Court, Crime doesn't Pay
Monday, March 5th, 2018

A good deal of civil practice involves accidents of one sort or another. Cars collisions, work injuries, slips and falls. However, in many cases injuries, whether physical or economic, may stem from an action or omission of more purposeful or nefarious nature. This might take things out of the realm of negligence and into allegations of what is called "willful and wanton" conduct. It might even mean that the conduct that caused the injury was a criminal violation.

Such is the case in the recently decided Enadeghe v. Dahms out of the First Appellate Distinct in Cook County. The underlying incident is an odd case of reverse road rage: when a taxi blocked a pedestrian crosswalk in downtown Chicago, Dahms reacted by literally shattering its windshield with his briefcase. When the driver, Enadeghe, parked the taxi and confronted Dahms about the damage, there was a scuffle in which Enadeghe was knocked unconscious and required surgery to repair his face injuries. Dahms was convicted of aggravated battery after a jury trial, and repeated appeals failed to do anything to lessen that conviction, which resulted in 18 months' probation.

Obviously Dahms did everything he could to fight the conviction, but a jury still found that beyond reasonable doubt he had "knowingly, and without legal justification, caused bodily harm to Enadeghe or made physical contact of an insulting or provoking nature with him by beating plaintiff with a briefcase on Clinton Street." Enadeghe v. Dahms, 2017 IL App (1st) 162170. As one might expect, Enadeghe also felt that Dahms had some personal responsibility for the damage, and so he failed a civil suit in which he ultimately alleged that Dahms had engaged in negligence and willful and wanton misconduct in the incident. At the trial, there was sharp disagreement between the parties over the use of Dahms criminal conviction. Ultimately, the trial court concluded that the aggravated battery conviction fulfilled the standards for willful and wanton misconduct under the law, leaving the jury only to decide the extent of causation of the injury and the damages stemming from it.Dahms appealed that decision on a number of grounds, none of which proved persuasive to the appellate court. The court found that the elements of the criminal battery charge did suffice to establish that Dahms had engaged in willful and wanton misconduct and was therefore liable for that in civil court, too. It further found that, given that the trials on both the civil and the criminal side were substantially similar, that Dahms could not argue that the decision prevented him from presenting certain defenses in the civil trial that would have changed the outcome. Any defenses should have been used in the criminal trial if he had them to use.The takeaway from the decision is an important one: if you are a victim of a crime, it is important to understand your rights to take civil action against person who wronged you. If you are in such a situation, the Law Offices of Peter F. Ferracuti would be happy to set up an appointment for a free consultation through our toll-free number at 888-488-4LAW or via email.

- Travis J. Dunn, Attorney