Illinois Lawyer Referrals and Legal Guidance

Archive for April, 2011

Don’t wait on hiring an injury attorney

Friday, April 29th, 2011

If you wait to hire an attorney for your injury case, it’s a big risk without any gain. You aren’t saving any money in fees, because most injury attorneys don’t charge hourly fees. They charge a percentage of what you win (called a contingency fee) at the end, so it doesn’t matter when they were hired in the process. And if you wait, you may inadvertently hurt your case in a number of ways.

Having an attorney from the beginning has many benefits, and few drawbacks, especially on a contingency fee case. An attorney will help you preserve evidence, deal with the insurance company or other party so you don’t have to, make sure you don’t accidentally give the other side anything to help their case against you, and most importantly, prevent you from getting taken advantage of. Insurance companies love people who try to represent themselves. It’s easy money for them because they know they can settle for less, or nothing at all, because you don’t have the experience to know what your case is worth.

I know this sounds like a lecture, but I get calls all the time from people who were taking a “wait and see” approach to hiring an attorney for their case. And it frustrates me that they assumed they were doing themselves a favor by waiting, especially since there’s not much to lose by hiring an attorney right away.

This rule of thumb is especially true in workers’ compensation cases. Attorneys don’t take a fee on getting you set up with routine benefits (lost wages, medical coverage, etc.). So you should almost always use one. If you don’t, you may be missing out on the full amount you’re owed or other benefits you’re not aware of (insurance adjusters aren’t going to help you out on this, believe me).

Ok, end of lecture. We try to be honest about the pros and cons of hiring an attorney, and upfront about whether you need one at all. If your case is one that an attorney should handle, don’t wait and see how it goes before finding someone to help you.

Tags: contingency fee, hiring attorney, injury, workers' compensation
Posted in Injury Cases | Comments Off

Religion and Illinois child custody cases

Thursday, April 28th, 2011

Many issues come up in child custody cases, from where the child will live and go to school, to what religion they will be raised in. Religion, as it relates to custody, has been in the news a few times in the past year. These are cases where the parents practice different religions and disagree on how to raise the child. One side may argue that they have freedom of religion and freedom to raise their child how they see fit. The other side argues that it’s confusing for the child to be exposed to two religions, or even harmful. Usually, a heated court battle follows.

One case last year made national news when the father purposely violated a court order and took his daughter to Catholic mass, with news cameras. His Jewish ex-wife had obtained an order from the court that prohibited him from exposing the girl to religions other than Judaism. Such an extreme court order isn’t the norm, but it demonstrates how these disagreements can escalate. It can lead to each parent asking the court for sole custody, even if they had previously agreed to joint custody.

The law doesn’t say exactly what should happen in a situation where a child’s divorced parents are different religions. If the parents can’t agree, the judge may decide. The number one concern of the judge is typically the best interests of the child, but that doesn’t necessarily make for a clear answer. Is it unhealthy for the child to be exposed to two religions? Is it in their best interest to follow just one? It’s a tough call. Psychologists may weigh in.

There is no clear cut answer, unless one parent can show that the child is harmed by being exposed to the other parent’s religion.

Tags: child custody, religion
Posted in Illinois Family Law | Comments Off

Five attorney red flags

Wednesday, April 27th, 2011

You should always do some research on an attorney before you hire them, and talk to more than one before making your decision. Interview them, ask a lot of questions, and hopefully you can avoid these pitfalls. Here are five things that should make you think twice about an attorney.

A personal injury attorney who charges up front. In injury cases – car accidents, medical malpractice, product liability, slip and falls – attorneys charge on a contingency basis. This means that they get a fee if they win they case or recover money for you. If the case is lost, they don’t get a fee. Established injury attorneys have the resources to pay any initial costs in your case. If they have to ask you to cover these, they may not have the experience or past success necessary to handle your case.
Terrible customer service. Your attorney should return your phone calls, no matter how busy they are. If they can’t get back to you until the next day, don’t hold it against them, but if you haven’t heard back in a couple of days, a week, a month, it’s not a good sign. If they are really that busy, they shouldn’t take on your case. Most likely, however, they don’t know how to communicate with clients. Just because lawyers are known for not returning calls doesn’t mean it’s the norm. You don’t have to put up with it.
Injury attorney telling you where to go for medical treatment. This is shady, or at least it can be. If your attorney is pressuring you to talk to a certain doctor, think about why they’re doing this. Is it because they have an arrangement with the doctor to share cases? This can hurt your case because when it comes out at trial that your doctor and your attorney have some sort of arrangement, it’s going to make you look bad.
A fee that is much lower than the competition. As they say, if it seems too good to be true, it probably is. If you’re looking around for a criminal defense attorney and find one who charges $400 to defend a certain charge, when everyone else seems to be charging $1,500, don’t be tempted by the great deal you found. If they are charging so little, they may be desperate for clients. Or they aren’t going to actually defend you, but rather just help you plead guilty.
Prior license suspension or discipline. You can look up any Illinois attorney and see whether they’ve ever been disciplined or had their license suspended. The Illinois Attorney Registration and Disciplinary Commission is in charge of this, and their website is www.iardc.org. If there has been action against an attorney you’re considering, it may be a red flag. It doesn’t necessarily mean they won’t do a good job for you, but definitely ask them about it and see what they say. And if you’re unsure, get a second opinion.

These situations don’t automatically mean you should run the other way. It may or may not be a sign of a problem. The point is that you should be on the lookout, ask questions, and trust your gut. If you see one of these red flags, it may be worth getting a second opinion.

Posted in Five Tips | Comments Off

What is Statutory Summary Suspension?

Tuesday, April 26th, 2011

In Illinois, when your license is suspended after a DUI arrest, it’s called a Statutory Summary Suspension. It’s not a punishment handed down by the judge, but rather an administrative action taken by the Illinois Secretary of State. It’s automatic, and it’s separate from any criminal prosecution for driving under the influence.

If you take a breath test at the police station and fail (over the legal limit of .08), the officer will inform the Secretary of State. If this is your first offense, the Secretary of State will suspend your license for six months. If you’re not a first offender, the suspension is 12 months. Either way, it doesn’t take effect immediately. The suspension period usually begins 45 days after your arrest. You will get a notice of suspension.

You have the right to refuse to take a breathalyzer test at the police station. However, there is a penalty. If you refuse the test, your license will be automatically suspended for 12 months, and 36 months if you’re not considered a first offender. For purposes of Statutory Summary Suspensions, a “first offender” is someone who hasn’t had an offense in the last five years. The same person, however, may not be considered a first-time offender by the court.

Although the summary suspension is automatic, it’s not set in stone. An attorney can challenge the suspension. If you act quickly and are successful, you can avoid loss of driving privileges. You also have the option, if you’re a first offender, to apply for a monitoring device so that you can drive during your suspension (after the first 30 days). It’s a device installed in your car that requires you to blow into it before the car will start. It only starts if you’re sober.

The decision to refuse a breathalyzer test is a tough. You are risking a longer suspension. However, if you take the test, it can be used as evidence against you. (Note: The results of a breath test taken at the side of the road cannot be used against you by the prosecutor, and there is no penalty for refusing that one.) Unfortunately, there’s no easy answer or general advice that will work in every situation.

Posted in Did You Know? | Comments Off

Collecting a debt in Illinois

Monday, April 25th, 2011

It’s not uncommon for a business owner to be owed a debt, or several debts. If you’re running a business, it takes a lot of time to try and track down what you’re owed. Even small amounts can start to affect your business. If you decide it’s time to get outside help, you have a few options. Collections agencies are one option; a collections attorney is another, and it’s what we generally recommend. A collections attorney not only has negotiation skills but the ability to easily use the legal system to encourage or force payment.

When looking for a debt collection attorney, you’ll want someone who handles a significant amount of these cases. Also, make sure they’ve been doing this kind of work for a while and have had success at it. Important things to look for: good negotiation skills, an approach that is aggressive but reasonable (harassing or threatening a debtor can end your case), good communication skills – working with you to develop a strategy and keeping in touch about any progress in the case, and willingness to file suit if necessary.

Most debt collection cases handled by attorneys follow the same general formula. First, an attorney will likely send a letter to the person or entity that owes the debt. It will ask for payment and warn the debtor that legal action will be taken if the debt isn’t paid. Many times, this type of letter on law firm letterhead is enough to encourage payment. If the letter doesn’t get a response, the attorney will file a lawsuit. If the lawsuit doesn’t get a response, the attorney will ask the court for a default judgment. If granted, you automatically win the case and you can start trying to collect the debt by wage garnishment, liens, etc.

So how much is this going to cost? It depends on how much the attorney charges, the amount of the debt and the length of time it takes to collect. There are two options – an hourly fee or a contingency fee. With hourly, you pay anywhere from $150 to $400 per hour of work. You’ll give the attorney a retainer (lump sum) up front from which they’ll deduct their fee as they work on your case. With a contingency fee, you only pay if the debt is collected, and you pay a percentage to the attorney. So if your attorney successfully collects a $60,000 debt, the fee will probably be around a third of that, or $20,000.

Attorneys usually charge hourly for small debts, because the contingency fee in these cases would be too small to make it worth it. Also, if collecting the debt is a long shot, they may charge hourly rather than take the risk of getting paid only if the case is won. For larger cases, you can expect to pay a contingency. It can be a good option if you don’t have the money to pay upfront hourly fees. And if you don’t win, you won’t owe any fees at all. Basically, there are pros and cons to each type of fee.

The statute of limitations for collecting a debt in Illinois can be anywhere from five to ten years, depending on the type of debt. Always check with an attorney sooner rather than later, because if you wait too long, you’ll lose your chance. Plus, the sooner you get started, the easier it will be to track down the debtor.

Posted in Litigation | Comments Off

In Illinois, repeat driving with a revoked license is a serious crime.

Friday, April 22nd, 2011

Driving when your license has been suspended or revoked has always been a serious criminal offense in Illinois. But a recent case has highlighted just how seriously the courts should treat this crime.

A criminal defendant’s driver’s license had been revoked after a DUI (driving under the influence) conviction. Regardless, the defendant repeatedly continued to drive without a valid license, and had gotten into trouble at least four times prior to the most recent case.

Once again, the defendant was caught driving on a revoked license, and was charged with a felony. He pleaded guilty to the felony charge, which carried a mandatory minimum sentence of 180 days of incarceration, according to Illinois law.

The defendant asked the court to be allowed to serve his mandatory 180 days at home, through electronic home monitoring. The court denied this request, and rejected his argument that electronic home monitoring could fulfill the mandatory requirement of jail time for his felony offense.

The electronic home detention law in Illinois does allow, in some circumstances, for home detention to count as “imprisonment.” The defendant in this case argued that imprisonment means a person has to be in custody, and electronic home monitoring is in fact a kind of custody and should be allowed for his sentence.

But the courts in Illinois have said that all defendants that have to serve jail time are not eligible for home monitoring, and this type of fact situation is one where a typical incarceration is required. Illinois law considers it to be a very serious matter when there are multiple violations of driving when a license is suspended or revoked because of a DUI conviction. The lawmakers specifically noted that these repeat offenders need to be “locked up” because of the danger they create.

And even though home detention also keeps the defendant off the streets during the period of “confinement,” it’s viewed as a punishment of a different character. At home, he or she has freedom to move around the house, and make decisions about when to eat and sleep. There’s TV, telephone, and other leisure activities. Also, there is personal privacy at home. Actual incarceration in jail presents a much different picture.gdf

The court in this case said that the defendant was exactly the type of repeat offender that the law intended to punish with higher penalties. Home monitoring would not be enough of a punishment for so many violations for driving after his license was revoked because of a DUI. The court made its position clear, if it wasn’t already, that Illinois takes this very seriously.

Posted in Did You Know? | Comments Off

Maintenance in Illinois

Thursday, April 21st, 2011

If you’re considering divorce after 20 or 30 years of marriage, be prepared to talk about permanent spousal support. In Illinois, it’s called maintenance, and there’s a trend toward ordering ongoing payments to the lesser-earning spouse when the marriage was long.

Any divorce, old or new, can include maintenance for the spouse who earns less. Often, the disparity in income is because of the division of labor in the family – one spouse is caring for the kids or running the household while the other focuses on their career. Courts recognize this and take it into consideration. In fact, the law states that a judge must consider this (although they have a lot of discretion).

The length of the marriage matters. In a younger marriage, support may be just a few years, just until the lesser-earning spouse can catch up. But in a long term marriage, where one spouse has been out of the job market for 20 years, it’s not as easy to get back in. In some cases, it’s just not possible. And this is where permanent maintenance comes in. It’s difficult to go to college and start a career at 60.

In one of the more recent cases, a physician and his wife were married for 34 years. She had a high school education and very little job experience; she hadn’t worked outside the home in 30 years. He was a doctor who made about $800,000 a year. She was awarded $17,000 month in maintenance. Her husband argued that $5,000 a month would be sufficient to support his ex wife. Obviously, that would be sufficient for most people. Many people are far from earning that much money each month. But the court disagreed. The law says she deserves the same standard of living as her husband. After all, they were partners in the family for more than 30 years.

The fact that the wife could do quite well with $5,000 a month isn’t the point. Courts have made clear that the spouse with less earning potential is not expected to lower their standard of living, so long as the spouse with the greater earning potential can afford to pay maintenance.

I don’t think it happens often enough that the law follows common sense. This is a good example. If you’ve been supporting your spouse and family in non-monetary ways for years, maybe even decades, the court recognizes that it’s worth something. The working spouse has benefited greatly from the arrangement, and will continue to benefit as they advance in their career. They shouldn’t be allowed to claim that benefit completely as their own. If you disagree, make sure you get a prenup.

Posted in Illinois Family Law | Comments Off

Topics

Archives

Recent Comments: