Illinois Lawyer Referrals and Legal Guidance

Archive for November, 2011

5 Things You Should Know About Illinois Legal Malpractice

Wednesday, November 30th, 2011

We get a lot of calls about suing Illinois attorneys. Here are five things you should know about legal malpractice in Illinois.

1. Your attorney owes you a duty of care.

The attorney-client relationship is a special one, where your attorney is acting on your behalf, as your fiduciary. This means that the attorney stands in a position of trust, where you are relying on the skill, knowledge, and confidence of the attorney in handling your matter. Because of this, a high standard of care is owed to you.

Your attorney owes you a duty to represent you by using his or her best efforts, including all abilities, diligence and good care. There must be honesty and full disclosure in the relationship. Also, an attorney may not personally benefit at the client’s expense.

2. Your attorney’s mistake needs to have cost you a winnable case.

Trying a case for legal malpractice creates a trial within a trial. In addition to proving that your attorney breached a duty to you and did you wrong, you also have to prove that without that error, you would have won your case.

The harm that was done to your by your attorney is more than just a bad result in your case stemming from a bad judgment call. Instead, you will have to show that your attorney did or did not do something that changed the outcome of your case. Your malpractice attorney will present the evidence that shows that you would have won your original case, but for your attorney’s negligence.

3. Your lost case also caused you to lose money.

Showing that your attorney’s mistake cost you your case may not be enough, if the loss of your case did not also cost you money. In addition to proving the case would have been successful, you will also have to put on evidence to show what your case was worth. The harm that you suffered in a legal malpractice can often be quantified to show what your damages are.

It can be harder in a case where the original matter was not a lawsuit for money, such as a child custody matter. Attorneys generally take legal malpractice cases on a contingency fee basis, which means that they only get paid as a percentage of your damages recovery. So it can be hard to find an attorney to represent you in a legal malpractice case where there might not be damages to collect at the end.

4. There is a time limit to file your malpractice case.

Like all lawsuits, legal malpractice cases are subject to a statute of limitations deadline for filing the lawsuit. If you have not filed by the deadline, then you could lose your right to bring your case forever.

The statute of limitations in Illinois for legal malpractice cases is generally two years from when you discovered you have a claim against your attorney. You have an obligation to discover the facts of your situation, so there is also an outside limit of time for when you should have known that you were damaged from your attorney’s negligence.

There are some gray areas with the time limits. For example, where your original case is still ongoing, and even though you knew two years ago about the mistake by your attorney, you did not know at that point what harm may have come to you at the end of the case.

5. Sometimes even a third party can have a case for legal malpractice.

In certain situations, third parties who are not clients may sue an attorney for legal malpractice. In Illinois, there are scenarios where no attorney-client relationship exists, but the attorney owes a duty to others. One is where the third party is an intended beneficiary of the attorney-client relationship. If the end result of the representation was to benefit someone else, then this person’s interests may be harmed by the attorney. Another is where it is expected and reasonable that the third party would rely on something that the attorney has done. If the person acts based the attorney’s advice, for example, and that advice was negligent, then there could be a malpractice claim.

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Illinois Sexual Abuse and Molestation Statute of Limitations

Tuesday, November 29th, 2011

Please note that the time frames discussed in this article relate only to Illinois.

Almost every legal issue has a statute of limitations. This is the window of time that you have to sue someone who has injured you or with whom you have a dispute. In Illinois, the statute of limitations sexual abuse is 10 years. However, the state permits a number of exceptions to the statute of limitations, so you should consult a lawyer experienced in sexual abuse cases to explore your options no matter when the abuse occurred.

A statute of limitations of 10 years means you must file your lawsuit against the other person within 10 years of being abused, or you lose the right to ever bring a lawsuit related to the abuse. The first exception, though, applies if you were abused when you were a child. Minors have 10 years after their 18th birthday to initiate legal action against their abuser – meaning you can file a lawsuit based on childhood sexual abuse up to your 28th birthday. If you have missed this deadline, it can be difficult to bring a lawsuit for your abuse, but it may still be possible.

Illinois has an another exception to the statute of limitations for people who have repressed memories of their childhood abuse. Repressing memories of abuse is a common coping mechanism for individuals who have suffered this type of trauma. This is especially true for victims who were children when the abuse occurred. Once a victim has recovered memories of their abuse, they have 5 years to bring a lawsuit. This is true no matter how long ago the abuse occurred. The abuse memories must be truly repressed or blocked, though. If the victim remembers the abuse but is too upset to tell anyone about it, the regular 10 year statute of limitation applies.

Illinois has another exception for people who were abused as children, and then suffered continued threats, intimidation, manipulation, or fraud by the abuser or by another person acting with or for the abuser. The 10 year statute of limitations, or 5 year if it is a case of repressed memories, will not begin until the threats and intimidations stop.

Many lawyers will accept sexual abuse cases on contingency. This means you don’t have to pay any fee to your attorney until you receive a monetary award at the end of the trial or settlement from the other party. A lawyer will be more likely to take your case, especially on a contingency basis, depending on who you are suing. Most sexual abuse lawsuits are against institutions like schools and churches because these groups have insurance to pay your award or settlement. A lawyer will be less likely to take your case if you are suing an individual, like a family member, because it can be difficult to get them to pay the damage awards.

In Illinois, sexual abuse is generally defined as a variety of sexual conduct. Actions such as rape, molestation, incest and indecent exposure are all included.

For more information on Illinois sexual abuse and molestation laws we recommend http://www.findgreatlawyers.com/4SexualAbuse.htm

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Lawyers and Civil Litigation

Monday, November 28th, 2011

If you have filed a lawsuit against another person or business, you are involved in civil litigation (“cl”). This differs from a criminal law case where the government always brings the legal action. In addition, in a criminal case, the government can often punish the losing party with jail time; in a civil case, the most common ending is one party paying the other. A few other civil remedies do exist, such as returning property or stopping some sort of behavior, but you can never put the other person in jail.

There are a huge variety of topics included in civil litigation. A broken contract, business conflicts, landlord/tenant issues and problems with a will are all forms of cl. These suits can revolve around a crime or injury, too. For instance, if a drunk driver in Chicago injures you in a car accident, you could bring a claim at the Daley Center against the person to receive compensation for your injuries. This is true even if the State of Illinois brings a criminal case against that person for drunk driving and puts them in jail. It’s also true if the Illinois criminal judge were to order the defendant to pay you restitution.

Since civil litigation includes virtually any topic that is not criminal, most civil lawyers choose a specific topic to focus on, like divorce cases or personal injury, instead of trying to take any civil law case. You should be sure to find a lawyer who specializes in your legal issue. If you are bringing a suit because you have been injured, usually an Illinois personal injury lawyer will take your case on a contingency. This means you won’t have to pay any upfront fee or ongoing rate; instead, your lawyer will recover a portion of any money you get from the other side at the end of the case. Other attorneys will have different fee arrangements. If you have business or contract issue, usually the lawyer will charge an hourly rate to work on your case. In addition, the lawyer will probably charge a retainer- an upfront fee you pay to officially hire the lawyer. If you are the defendant in a case, you will virtually always pay your lawyer a retainer and hourly rate. That said, in Illinois when you are sued and have insurance that hires a lawyer for you, the insurance company pays all of the law firm fees.

There are many rules and regulations that determine how and when you can bring your lawsuit, including strict timelines of when to take certain actions. A civil attorney experienced with your legal issue will know how to properly move your case through the process. If you don’t meet all of these timelines, you can lose the case even if you would have otherwise won. Also, each civil law issue has a statute of limitations, this is the deadline by which you must start your lawsuit, or you may be prevented from ever bringing the case in the future. For example, most Illinois car accident claims must be filed with a county court within two years from the accident date.

If you are the person starting the lawsuit, you will be known as the plaintiff and the other party as the defendant. Your case will start with your lawyer filing a complaint with the court. This document will lay out the specific reasons you have filed the action. The court will then send a summons to the defendant, informing them of the lawsuit. The defendant will have a certain amount of time to file an answer, explaining their side of the issue. If you are the defendant, it is important to make sure your lawyer files all the proper documents and appears at every court date. Otherwise, you could lose the case, even if you didn’t do anything wrong.

After each side has filed its initial documents, discovery begins. Discovery can be a long process, during which each side gets to gather information for their case. Parties will question witnesses and take their statements, or depositions, and can look over documents or other evidence each side will use at trial.

Many cases will come to a settlement around the time of discovery. It can save a lot of money for both sides to come to an agreement about the damages one side owes the other. This is the most typical outcome. If there is no settlement, after discovery, the case goes to trial. Each side presents their arguments in court, and at the end the judge or jury decides who wins.

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Post-Divorce Modification of Support

Friday, November 25th, 2011

If you lose your job, become disabled, are forced to take a pay cut, or experience some other major change in your life, you may be wondering how it will affect your child support or alimony/maintenance obligations. At the time of your divorce, you probably signed a settlement agreement, or received a final decree from the court, which outlines the amount and duration of your payments. Despite the finality of these decisions, the courts recognize that things change. While you can’t run back to court for a trivial reason, a significant change in circumstances may warrant a post-decree modification.

The first thing to do is consult with an attorney who has experience in post-decree divorce issues. They will be able to explain your options based on your individual circumstances. You need to file paperwork with the court requesting modification as soon as possible, because until a modification is approved, you must continue to pay.

The main question in post-decree modification is whether your change in circumstances is significant. Losing your job does not automatically excuse you from making spousal maintenance or child support payments. The court will look at your individual situation and determine whether the change in your income/circumstances warrants a modification. Remember, you are obligated to make support payments until the judge tells you otherwise.

If you are paying maintenance/alimony to your former spouse and they get remarried, start earning more money, or receive a large inheritance, the court may lower your payment. If you become disabled or lose your job, your child support may be reduced. If your child support payments are reduced, you will not be reimbursed for what you previously paid; a decrease is not retroactive. However, an increase may be retroactive. If you have another child, it generally will not affect the support you pay for your other children.

If your written agreement says that payments are non-modifiable, you will have a harder time. However, it may still be possible to get some form of relief from payments you simply can’t make because of job loss or some other unavoidable obstacle.

Other issues that may bring the parties of a divorce back to court include seeking a change in custody or visitation, one parent moving out of state, or enforcement of custody, maintenance/alimony or child support orders. Property division is usually final. The court generally does not redistribute property that was divided by the court or by mutual agreement.

For more information on family law in Illinois see http://www.findgreatlawyers.com/IllDivorce.htm

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Consumer Fraud & Class Actions Lawsuits – Common Questions

Thursday, November 24th, 2011

What is consumer fraud?

Unfortunately, there are many different ways you can be harmed by consumer fraud. If you buy something that does not work as advertised, or if you are purposefully overcharged for the item, you have suffered consumer fraud. You may also be harmed by a fraud scheme, such as paying for sweepstakes winnings or internet actions and receiving nothing in return. Finally, identity theft is also considered consumer fraud.

What is a class action lawsuit?
A class action suit is one where many plaintiffs suffer the same injury and decide to have their cases tried together against the defendant. Class actions are a useful tool for individuals who feel they have been wronged but who might not consider hiring a lawyer on their own, perhaps because the small amount of money in. For instance, if you purchased a magazine subscription from a door-to-door vendor but never received any magazines, you may have been a victim of consumer fraud. Since you only spent $10 or $20 on the subscription, though, you might not go to the trouble of suing the seller. If you are part of a class action, though, a lawyer can try your case along with all other similarly defrauded consumers with very little participation from you.

When is a class action the best type of lawsuit for my consumer fraud case?
There are three main considerations that must exist for a class action to be the right format for your case:

1. Numbers – there must be enough other people who suffered the same harm. This is often true with consumer fraud cases because the defendant will typically perform the same fraud on many individuals.

2. Common problem – all the people harmed must have the same legal issues against the defendant. This is also typical in consumer fraud cases because each person suffers the same type harm due to defendant’s fraud.

3. Adequate representation – the lawyer must show that a class action will be the best way to represent the class of plaintiffs. This can be particularly true with consumer fraud cases – since each plaintiff was defrauded in the same way, combining all the cases is a good way to represent everyone.

What are the responsibilities of the lead plaintiff?
A class action suit can have hundreds or even thousands of plaintiffs; however, only one is the “lead plaintiff.” Generally, the lawyer will pick a lead plaintiff whose situation does a good job representing all the plaintiffs, and who will be able to testify well as a witness at trial. The lead plaintiff will have more responsibilities than the other plaintiffs, but may get a bigger reward as well.

If you are the lead plaintiff, in addition to testifying at trial, you will be deposed before trial. A deposition is a meeting of up to three hours where the defense attorneys can ask you questions. You would also have more meetings and phone calls with your lawyers than the other plaintiffs. As lead plaintiff, your name will be listed on the lawsuit, and you will likely receive a larger monetary award or settlement than the other plaintiffs in recognition of the extra time you spent on the case.

What should I look for in a class action attorney?
It is important to find an attorney that has a long history with class action suits. There are many state and federal rules that apply to class action only; a lawyer who is not familiar with these regulations could cause you to lose your case just by missing a deadline or procedure. In addition, you must find a class action attorney who has a proven record of success with consumer fraud. Finally, no matter what area of law, you should be sure your lawyer communicates with you truthfully and treats you with respect and consideration.

How much does a class action attorney cost?
Class action lawyers usually work on a contingency fee basis. This means your attorney will not get paid until you receive a monetary award or settlement. The amount your attorney receives can depend on several factors including the number of plaintiffs involved in your case, the riskiness of the case and the expected financial settlement at the end. A typical contingency fee for your lawyer is 30% of the award or settlement.

It makes sense that a class action lawyer would work on a contingency basis. In a class action, many plaintiffs do not even know they are involved in a case until the lawyer notifies them. It would be much more time consuming, and perhaps even impossible, for the lawyer to wait for all the plaintiffs to hire and pay him or her before beginning work on the case.

For more information we suggest you visit http://www.findgreatlawyers.com/ClassActionConsumerFraud.htm

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5 Deadlines You Don’t Want to Miss

Wednesday, November 23rd, 2011

1. Statute of Limitations: Illinois law has deadlines for filing your lawsuit, and the amount of time varies depending on the type of case you have. The time limit to get your case started can be as short as six months or as long as ten years, and there can be exceptions based on some of the specifics of your case. The statute of limitations deadline is so important to your lawsuit because if you miss it you lose your chance to bring your claim at all. Even if you have a solid case to bring, you still lose if you haven’t gotten your case to court before the time runs out.

2. Filing Deadlines: Once you are involved in a lawsuit, there are ongoing deadlines for filing documents in the case. There are deadlines for filing a response to the complaint, for filing motions which ask the court to take some action, for filing discovery questions and responses which help to prove your case, and others. Sometimes these filing deadlines can be extended by asking the court’s permission, or if both sides are in agreement. But you don’t want miss the dates, because you could risk losing some of your rights and hurt your case.

3. Court Appearance Dates: During your case there will be dates that come up to appear in court. Missing a court date can have serious consequences. In a criminal case, if you don’t show up there could be a warrant issued for your arrest. In other cases, you could risk your case being decided against you for not being there to contest the issues. A judgment could be entered against you, and you could have to pay the damages. If you happen to miss a court date, you can try to act quickly to try to reverse any harm that has been done, but it’s not a guarantee.

4. Giving Notice in a Workers’ Compensation Claim: If you have been injured in a work accident, in addition to the statute of limitations deadline there is a deadline for giving notice to your employer. You should let your boss know right away that your were injured on the job. But in no event can it be longer than 45 days from the date of the accident or from when you knew that you had a work injury.

5. Tax Deadlines: There are strict deadlines for filing your federal and state income tax returns, and paying any money that you owe in taxes. You may be able to get an extension of time for filing the forms, but you generally cannot have extra time to pay your taxes. Missing the tax deadlines can end up costing your more than what you owed in the first place, because you could be assessed interest or penalties for not paying or for paying late.

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Probate Lawyers and What They Do If You Have No Will

Tuesday, November 22nd, 2011

Whether you have a will or not, your estate – what you own at the time of your death – will be distributed via a court proceeding. The difference is that when you have a will, you decide who gets your property; without a will it is decided for you.

A will can name who will get your personal possessions, real estate, cash, etc. After your death, your will is filed with the court. This begins the process of probate, which is just another name for distribution and settlement of your estate.

A will is not a guarantee that there will not be a dispute about who gets what. There can be a defect in your will that you didn’t realize. Or it can be contested by a family member. Both of these situations will make the probate process long and perhaps contentious. While you cannot control what people do after your death, an experienced lawyer can help you devise a solid plan and an airtight document to minimize confusion when it’s interpreted later.

In addition to distributing property, a will also names an executor of your estate. This is a person who will be in charge of the process of administering your estate, along with a lawyer. They will work together to make sure everything gets settled.

A will also can name a guardian for your children, and set up a trust where the assets from your estate can go after probate. A trust can hold money for your children, for example, until they are of a certain age. A will also can dictate how estate taxes and debts are to be paid.

If you do not have a will, your property still will be distributed. But instead of following your wishes, the court will follow a generic distribution method set by Illinois law. While this method may match your wishes, it may not, which is why a will is considered such an important document.

Without a will, the court will give your assets to your family members, starting with those considered closest to you. The first step is to give your spouse half, and your children the other half. If you have no children, your spouse will get everything. If you have no spouse, your children will get everything. If you have no spouse and no children, your estate will be divided among your parents and/or siblings. The list goes on to include more removed family members if need be.

Your will can be modified any time during your life, so long as you are considered mentally competent to do so.

For more information on Illinois probate laws see http://www.findgreatlawyers.com/2Probate.htm.