October 2018

Mediation Gains Momentum

Monday, October 29th, 2018

A recent study has shown that, out of all lawsuits filed in a particular county, only 3% actually go to trial. The other 97% will be disposed of through other means and that usually means settlement. Despite this fact, settlement between the parties to a legal dispute is often difficult or impossible to achieve. This is due to a number of reasons... diverging theories of the case... stubbornness to move from one's entrenched position... and sometimes simple lack of communication can prevent a case from settling when it should. Regardless of the reason, when parties to a dispute reach such an impasse, the answer may be mediation.

In recent years, mediation has gained serious traction in the legal community. More and more parties and their attorneys are turning away from the traditional adversarial nature of litigation and are looking to achieve resolution through more peaceful means. Mediation can be useful in almost all areas of law. In fact, many jurisdictions have begun to require parties in certain types of disputes to attempt mediation of their conflict before a judge will even hear their case. This has produced favorable results and has helped to decrease the glut of active cases in many otherwise overly taxed court systems.

There are many reasons for the increasing popularity of mediation. One important reason is that it gives the parties complete control over the destiny of their case. This may be highly desirable given the unpredictability of juries and the sometimes-inconsistent application of law by judges. Juries can be notoriously fickle. The outcome of a particular case is never certain when its fate is in the hands of 12 women or men randomly selected from the community. Likewise, a judge can certainly throw a wrench in the works of what was thought to be an ironclad case. Some attorneys believe they can predict how a judge will rule on a matter, but these individuals are frequently proven wrong by a judge who may apply the law differently than expected.

Another reason parties are ditching litigation in favor of mediation is stress. Trials mean stress. Stress for the lawyers and the parties. And if friends or family plan to testify at trial then stress for them as well. Even for the prevailing party, the victory of a trial is often hard won and comes with its own share of stress, anxiety and late nights and weekends spent preparing. Mediation provides a lower stakes atmosphere of cooperation and shared purpose in which the parties can advocate their positions without needless stress or sacrifice of time with friends and family.

Flexibility is another considerable advantage of mediation. Mediations can often result in flexible, creative solutions that may not be available at trial. Sometimes it's not all about a lump sum money payment. Payment plans sometimes come into play, as well as structed annuities and other compensation arrangements. And sometimes it's not all about a dollar figure. One party may find value in a handshake after a long, contentious dispute, or an apology may help grease the wheels of settlement negotiations. No one likes bad blood and it's a universal truth that most people are naturally drawn toward compromise and conciliation. Mediation facilitates that.

Given the myriad benefits of mediation, it's no wonder that it continues to increase in popularity as an alternative to litigation. Some even believe that it may one day supplant litigation completely. That may be a bold and somewhat premature prediction, but the merits of mediation continue to make themselves apparent as time goes on. Trials continue to serve an integral role in our legal system, but in a world mired in conflict and confrontation, mediation provides a legitimate, useful approach to resolving legal disputes and it should be considered by anyone currently involved in or anticipating litigation.

-Attorney Ryan Zaborowski


Increased Risk in Worker's Compensation

Friday, October 19th, 2018

In our office, we receive the Illinois Workers' Compensation Law Bulletin regularly. This bulletin discusses all the noteworthy cases that have been determined by the Commission. Through this bulletin, our office stays up to date on significant cases in workers' compensation. As I was reading the bulletin this week, a particular decision stood out to me. This decision is not only relevant for workers' compensation but even more for LaSalle County. This particular decision deals with plants and quarries and icy, muddy surfaces - two things that our area is all too familiar with.

In Ashcraft v. Pana Limestone Co., 26 ILWCB 134 (Ill. W.C. Comm. 2018), the Petitioner worked for the employer as a plant operator. His workstation was a tower, which he accessed with a manlift. His job duties included pushing buttons, and if there was a breakdown, he would go down to fix the problem.

On December 4, 2015, he was climbing into the employer's truck at the quarry to drive to his workstation when his foot slipped on mud or ice and he felt something pop in his left knee. The Petitioner's workplace was a quarry. The Commission found that a claimant's act of stepping into the employer's work truck during the workday at the employer's quarry where the ground is icy, muddy, and uneven constitutes a risk greater than that faced by the general public. Also, where the claimant works as a plant operator at a quarry, the risk of injury is inherent to the nature of his employment.

This means that employer's are covered at their plant and quarry sites when they are going into an employer's work truck during the workday where the surface is icy, muddy or uneven which is fairly common in Illinois.

If you have been injured as a result of a workplace accident or otherwise, 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].

-Attorney Kendall Hodges


Employer vs. Owner: Premises Liability and Workers' Compensation

Monday, October 15th, 2018

One of the hidden dangers of the Illinois Workers' Compensation Act is that is can potentially pop up, unwanted and unwelcome, in other civil lawsuits and act as a "shield" to civil liability for a plaintiff's employer. A perfect example of this is the case of John Bear and his suit against the University of Chicago, in which the Federal Northern District of Illinois on July 20, 2018 dismissed his claim for premises liability, ruling it to have been preempted by the Illinois Workers' Compensation Act. Even though the University owned and managed the location where the injury occurred, the court found that they were primarily acting as Mr. Bear's employer at the time-so if he wanted reparations for his injury the Workers' Compensation system was his proper avenue for doing so.

According to the court pleadings, Mr. Bear was hired in 2016 as an assistant football coach for the University. In November, 2016 he was involved in an altercation with an intoxicated spectator who crossed into a restricted section at a football game, and the University subsequently forced him to resign from his position. In his lawsuit, in which the offending spectator was also named, Mr. Bear stated that University had failed to reasonably maintain a safe environment at the football tailgates and additionally had discriminated against him on the basis of his gender during the course of his employment. As a result of the assault Mr. Bear stated in his complaint that he had suffered physically injury, amongst other damages.

This is all well and good, of course, but unfortunately for Mr. Bear the Illinois Workers' Compensation Act fairly states that, with some exceptions,

"No common law or statutory right to recover damages from the employer ... for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act."

Bear did attempt to argue that in this case the duty of the University to keep the visitors to their premises safe from unreasonable danger (like drunken tailgaters) fell under a doctrine known as the "dual capacity" exception. This allows both Workers' Compensation and civil liability when the employer is both acting in a separate capacity from employment and when the employer was acting as a distinct separate legal persona. The classic case (and the one that Bear tried to rely on here) is that of Marcus v. Green, a 1973 decision in the Illinois Appellate courts. In Marcus, a construction worker was injured when a scaffolding collapsed beneath him. The employer turned out to be not only the one doing the construction, but also a co-owner in a partnership that owned the building site. In that case, the dual identity of ownership was enough to allow the worker to both sue in civil court and to move for Workers' Compensation benefits.

The problem for Bear was that, unlike a construction company that happens to have an ownership stake in the land they are on, the whole reason that Bear was at the stadium was because he was working for the team that owned it. The court just wasn't able to meaningfully distinguish between the separate legal personas, and therefore Bear could not a take advantage of the exception. A seemingly technical distinction, and undoubtably a close case, but unfortunately a fatal one for his civil injury claim.

-Attorney Travis Dunn


Out of the Darkness

Monday, October 8th, 2018

I normally would write my blog next week instead of this week after a hectic week of trial prepping claims and trying countless workers compensation matters. It's something, as an attorney, that I can put off. A blog doesn't involve a person's livelihood. I am not protecting someone's rights by writing this. It doesn't put food on anyone's table because I wrote this article. Most of the last month of my life has been spent negotiating, arguing, and sometimes getting downright angry defending the laws I am sworn to uphold to those who choose to willfully ignore the laws that we are instructed to follow.

I've been putting together the LaSalle County Out of the Darkness Walk for the last month and compiling it's final stages so that next Saturday we have a successful and emotionally full day of walkers who find the family they're looking for outside of their own circle. It occurred to me yesterday, that part of the message that we're trying to send with the Out of the Darkness walk is to cherish every single moment and every single day. The good, the bad, the ugly, and the dead tired days. To love and understand each other for exactly every single state of mind we are in. And that's when it hit me- you can't live life putting off the "small" things. Don't put off until tomorrow the things you know you should do today. Use understanding rather than hate to solve your problems.

Part of my job is to help people through difficult times, and I'd be lying if I told you that was always an easy job. Some days I'm tired too. Some days I need a break. But what brings me back, and what has ALWAYS brought me back, is that I feel the need to protect my community. To protect people who's rights are being stomped on. To care for people in need. Those who do this job for the glory or the money are not going to be trustworthy or truly successful. True success, to me, means having clients who tell you that for the first time since they left the military they really felt like someone had their "six". It means getting flowers and cheesecakes from clients whose claims have been closed two years. It means a constant email chain from a client who lost his wife two years ago and who always checks in to make sure I'm updated on how his grandchildren are doing. The money allows me to keep a really incredible staff of people employed who now feel like my blood family, but money alone isn't what brings any of my staff members to work. It's a sense of duty. A sense of protecting those who we serve. It's the sense of good you know you've done at the end of the day. It's about making this a better and safer community to live in. It's about doing the small stuff and using compassion to protect my clients- my family- from harm.

Next Saturday, October 13, in downtown Ottawa at the Jordan Block at 1 pm, we'll be running the LaSalle County Out of the Darkness Walk and gathering. Over 200 walkers have pre-registered to walk in memory of those they've lost and to strengthen one another as we all fight battles not everyone else around us will immediately understand. It's a chance to love one another. To appreciate the day in front of us, and to know we aren't alone when we participate in it. My staff is volunteering their time for the walk. I have friends coming in from all over the state to join us and help to make this even more successful than it already is. We've already raised $28,000 dollars which is absolutely incredible, and next Saturday I'm hoping we break at least $30,000. But until then- I'm going to be taking the life lesson from today and living through it- don't put off the small things. Live each day with purpose and with a grateful heart, because you don't know what might happen tomorrow and not everyone has the opportunity to find that thankfulness in the same way you will. Spread love and understanding rather than anger, irritation, and hate. The next time you're at a grocery store and you're irritated because the person in front of you is taking too long, step back and try to understand their journey and what it might mean for them to be even out of the house at the grocery store. Doing the small stuff sometimes can change- and even save- a life. If you'd like to support our walk, you can donate at www.lasallecowalk.org. If you feel comfortable joining us, you can register at the walk site on the day of the walk. We hope to see you there as we continue to build and strengthen the community we live in. Until then, love one another, understand one another, and do the small stuff.
- Attorney Alexis Ferracuti