New Illinois Law May Make It Easier to Get Out of Jury Duty

     The Illinois Legislature has passed Bill 3075, which is waiting for Governor Quinn's signature before it comes into law. Many believe that this law is great news for Illinois citizens. Why? Because Bill 3075 will significantly reduce the likelihood that each citizen gets called in for jury duty.

     Jury duty, while a very important service required to maintain our legal system, has never been very popular. As almost anyone who has been called for jury duty will recount, it can be tedious and inconvenient, and on top of it, jurors aren't compensated very well for their time.

     Every Illinois citizen over the age of 18 can be selected at random for jury duty. Bill 3075 will cut the number of jurors at civil trials from 12 to 6. Less jurors at trial will reduce the size of jury pools, which will reduce the number of individuals selected for jury duty, which will reduce the odds that each individual citizen is called for jury duty.

                                                  

     This bill also raises the compensation levels for jurors to $25 for the first day and $50 for each additional day of service. This compared with current law which sets jury compensation by county population size; the highest current jury pay is in Cook County, which pays $17.20/day.

     Bill 3075 is supported by a large swath of the Illinois population, including several prominent legal interest groups, including the Illinois Trial Lawyers Association. It is also opposed by some other legal interest groups, typically those focused on civil defense. These defense groups argue that this bill favors plaintiffs, there aren't conclusive studies which support this assertion.

     The bill's supporters claim that it makes civil trials more efficient and is designed to benefit jurors. Supporters also argue that the bill will save state and county governments a significant amount of money, which considering the current state of Illinois budget problems, could offer a great deal of relief.  to Illinois. Supporters also cite the bill's increased jury compensation provision will make jurors happier, and result in more attentive and effective juries.

     For more information, see these articles: here and here.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

A Note to Renters and Landlords

     A few months into prime apartment renting season seems like a good time to review an Illinois statute relating to landlords and renters alike: the Security Deposit Return Act (765 ILCS 710/1). Security deposits were designed as a safety net for landlords to protect themselves in the event the renter causes damage to the apartment; however, security deposits can become a point of contention between renters and landlords. This Statute applies to landlords who have 5 or more rental units and collect security deposits from their renters.  It is a fairly straightforward statute governing how landlords are to treat security deposits after the termination of a lease.

     According to the Security Deposit Return Act, the landlord must return the security deposit to the renters within 30 days after the termination of the lease, assuming there is no damage which would result in deductions from the security deposit. In the event repairs need to be made, the landlord must, again within 30 days of the termination of the lease, either return the remaining amount of the security deposit to the renter along with copies of receipts for any repair work, or provide an estimate for work to be done to the renter and return the remainder of the deposit to the renter. In any event, the landlord is prohibited from keeping the security deposit for any longer than 45 days after the termination of the lease.

     If a landlord violates this Act (namely, fails to return the security deposit and receipts within the time frame discussed above), the renter may file suit against the landlord in order to have the security deposit returned. A landlord who is found to have violated this Act may also be required to pay the attorney's fees the renter incurred in pursuing his or her lawsuit. This can be very expensive for the landlord.

     The lesson to be learned from this Act is this: If you're a renter, know your rights. If you're a landlord, make sure you return that security deposit and receipts within 30 days.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

The Importance of Following Up with Your Doctor

     Here is a situation that occurs all too often: Someone gets hurt.  They go to the emergency room, or their primary care doctor.  When the physician asks them about what is wrong, they play tough and give a general answer, and don't share all of the symptoms they are having.  Or the doctor instructs them to return in a week, or two weeks, but several weeks, even months go by, before they make an appointment and come back to see the doctor, complaining that the pain is still there.  Sometimes the doctor will instruct them to get an MRI, an X-ray, get physical therapy, and they put it off and never actually follow the doctor's orders.  There are three common problems illustrated in this scenario: 1. Failing to fully disclose all symptoms to the treating physician; 2. Failing to make follow up appointments with their physician timely; and 3. Failing to follow their physician's instructions.

     As if it isn't obvious, it is extremely important to listen to, and be completely honest with, your physician or hospital staff once an injury has occurred.  For many this is obvious.  However, very often life can get in the way of timely following up with your physician.  Failing to follow your doctor's instructions, make follow up appointments, make all complaints known to your doctor, or return for additional treatment when symptoms persist can have dire consequences, both for your health and any potential claim you may have for personal injuries.

     The most important reason that you should be fully upfront with your physicians, and follow the doctor's instructions, is for your own health.  A doctor can't feel what is going on in your body.  He or she doesn't know if you're having neck pain, or shoulder pain, or leg pain, or numbness, or whatever the symptom unless you tell your doctor.  And if he or she doesn't know about the symptom, he or she cannot possibly provide an accurate diagnosis or treatment to make the pain go away.  The longer an injury, no matter how slight you think it is, goes undiagnosed, the more likely it is to become a serious or chronic condition, requiring more invasive and extensive medical treatment to heal.

     If your doctor instructs you to return in a few weeks, or instructs you to seek physical therapy, or radiological tests, it is because he or she believes that this is necessary for your injuries to heal properly. If you don't follow your doctor's instructions, it is extremely likely that your injuries will not heal properly, and again, they could easily become serious or chronic conditions.

     The second reason to be fully upfront with your physician, and follow their instructions, is to protect your rights.  If you are injured, and the injury gives rise to a claim, you have certain rights inherent in that claim.  The medical records your physician creates when you visit are the evidence of your injury and of the treatment the injury required.  It is not enough to simply say "I was injured, pay me."  If it was that easy everyone in the country would be broke, for constantly paying out on injury claims.  Injured parties have the burden to prove they were injured, to what extent they were injured, and that the medical treatment they received was reasonable for their injuries.

     When a claim is made, the insurance company investigating the claim will be looking for any reason they can find to either not pay or pay less than they should.  This is their business.  One of the most cited excuses given by insurance companies for denying claims, or refusing to pay the full value of a claim, is because of gaps in the medical treatment (meaning weeks going by without a follow up appointment), inconsistencies in the patient's complaints to their physicians, and failure to follow a physician's instructions.  Unfortunately, the reason this is effective is because juries generally don't look upon these things favorably.  To a jury when a reasonable person is injured (reasonable person being the legal standard applied by juries to most civil cases), he or she will be completely honest with their physician and report ALL of their symptoms.  To a jury a reasonable person will continue to make regular appointments with their doctors until their symptoms have completely healed.  To a jury a reasonable person will listen to their doctor and follow their doctor's instructions completely.  Whatever reason you may have for not being completely honest, or not following your doctor's instructions, or not making timely follow up appointments, a jury will likely not pay attention.  They have already heard what they need.

    When you are injured, your job is to heal.  Do your job and let your doctor help you.  When you are injured, the insurance companies job is to take diminish your claim.  Don't do their job for them.  As always, if you are injured and you believe it was due to the negligence of another party, make sure you speak with a licensed and competent attorney.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

Staten Island Man Dies After Potential Police Brutality Incident

     There is no question that Police Officers, in general, are brave, respectable individuals who put their lives on the line to protect us all. Unfortunately, there are a small number of police officers who have abused the authority and power given to them and hurt, or even killed, the citizens they were sworn to protect. These incidents, however uncommon, can be so disturbing that the stories spread throughout the community and can result in severe distrust for members of the police force. Recently, an incident occurred in New York City which has brought the discussion of police brutality.

     On July 17, 2014 a 43-year old Staten Island man, Eric Garner, died after an encounter with New York City police officers. A number of NYPD officers approached Garner regarding an investigation into the illegal sale of cigarettes. Witnesses stated that an argument broke out between Garner and the officers, and at some point one of the officers placed the asthmatic Garner in a chokehold. Garner reportedly fell to the ground and passed out after telling the officer he could not breath. He was pronounced dead later that evening at Richmond University Medical Center, although the cause of death has yet to be determined. The incident was filmed by witnesses, a copy of the video (Warning: May be disturbing) can be found here.

     During a press conference with New York City Mayor Bill de Blasio and New York City Police Commissioner William J. Bratton, Commissioner Bratton stated that it was against NYPD policy to use chokeholds, even when interacting with individuals who may be resisting arrest. This incident has prompted an investigation into the cause of Garner's death and the possible violation of Garner's civil rights by the officers. Some have accused these officers of using excessive force against Garner, and the incident has sparked anger in the community against the NYPD.

    Regardless of the result of the investigation into the Garner incident, there are certainly incidents in which police officers have abused their power and violated citizens' civil rights. If you, a friend or a loved one has been the victim of excessive force, false arrest, illegal search and seizures, or any other civil rights violation by a member of the police, it is recommended that they talk to a licensed and competent attorney.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

   

Continued Trouble for GM - Watch Out for More Recalls

     About 4 months ago, General Motors made national headlines when it began recalling 2.6 million vehicles due to problems with the vehicles' ignition switches. The ignition problems, which many have called negligent designing and manufacturing by GM, had caused an estimated 54 car crashes and 13 deaths. But GM's problems are not over, and neither are the worries of GM customers.

     On Monday, June 16, 2014 GM issued yet another recall due to problems with GM vehicles' ignition switches. For this recall, the 44th GM has issued this year, covers an additional 3.4 million vehicles. The latest GM recall covers the following models:

 - 2005-2009 Buick Lacrosse
 - 2006-2014 Chevrolet Impala
 - 2000-2005 Cadillac Deville
 - 2004-2011 Cadillac DTS
 - 2006-2011 Buick Lucerne
 - 2004-2005 Buick Regal LS & GS
 - 2006-2008 Chevrolet Monte Carlo

    The initial recall was due to problems with the ignition, which has been shown to switch from the "run" position without notice, causing an engine stall. This recall, however, is due to problems with the design of the car keys, which can cause the vehicle to switch out of the "run" position due to excess weight or a sudden bump or shake. This can cause the car to stall, power steering to shut off, and drivers to lose control. According to reports, the key problems have caused 8 crashes and 6 injuries.

    If you, or someone you know, owns or operates one of the GM vehicles covered by the recall, please make sure to check the General Motors website or a local GM dealer for recall information. And, as always, if you or someone you know has been injured in a car accident, related to these problems or otherwise, contact a licensed and competent attorney.

(Information obtained from NBC news.com)

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

Safe Driving Tips During a Storm

     The summer is finally here, and it brings with it a mass of warm and violent summer storms.  Driving during a rain/hail/thunder storm can be just as dangerous as driving on snow and ice.  What makes driving during a summer storm even more hazardous, however, is that many people don't quite fully realize the danger.  Rain and hailstorms can bring hazards in the form of lowered visibility, increased distance required to stop a vehicle, the potential to hydroplane, and a host of other dangers.

     The first tip for safe driving during a storm is, obviously, plan your trip ahead of time to avoid storms if at all possible.  However, even the best of us will find ourselves from time to time driving down a highway during a torrential downpour.  This is where these tips will become useful.

 - Make sure your headlights are turned on
 - Turn on your windshield wipers
 - Slow down. Don't brake hard, instead take your foot off the gas and slowly reduce your speed. Braking too fast on wet roads can cause you to lose control of your vehicle
 - Give yourself a greater distance to brake
 - If necessary, pull your vehicle over to the side of the road or into a covered garage or underpass until the storm passes. If you pull over to the side of the road, make sure to activate your emergency flashers
 - Keep an eye out for hazards on the road, including downed power lines, debris, puddles, and other vehicles.
 - Finally, keep your radio tuned to local news or weather reports for news of the storm and emergency notifications.

     Drive safe! Should anything happen, take care of yourself, get any medical attention necessary, and contact a licensed attorney in your area.
   

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

New Year's Resolutions 5 of 5: Get Fit - Injuries at the Gym

     For Eckert & Smestad's fifth and final blog in our New Year's Resolution series, we focused on another very popular resolution: getting fit.  Many people have seen this phenomenon - beginning around January 1 or 2 every year, gym memberships increase drastically, gyms become more crowded, and personal trainers' schedules start booking up.  People who may have little or no experience with personal training and modern fitness equipment venture into the world of fitness, and unfortunately, this can result in severe health risks and injuries.  The way the law treats a person who is injured while exercising at a gym or with a personal trainer can be very different from the way the law treats a person who is injured in another situation.

     Typically, when a person is injured on someone else's property or due to another's negligence, the injured party may recover financial compensation from the property owner or negligent party for the injuries sustained and the effects the injury has had on his or her life.  According to the law in Illinois, one must first prove: 1. that the property owner or negligent party owed the claimant a duty of care, 2. the property owner or negligent party breached, or failed to satisfy, this duty of care, 3. the claimant suffered injuries, and 4. the property owner's/negligent party's breach of duty was the cause of the injuries suffered by the claimant.  These same basic legal principles apply to injuries suffered while at a gym or under the guidance of a personal trainer.  However, there are some very important differences to note.

     First, most gyms have some sort of disclaimer covering its members and customers for injuries they may sustain while at the gym or using personal trainers employed by the gym.  The case of Hussein v. LA Fitness (2013 IL App. 1st) (2013) upheld the applicability of disclaimers to avoid liability on the part of the gym for injuries sustained by its members.  In lay terms, this means that if you sign a gym's disclaimer, and are subsequently injured while at the same gym, the disclaimer is a valid defense the gym can use to avoid having to compensate you for your injuries.  There may be a way to overcome this defense, however, it will require significantly more culpable action, such as possibly willful and wanton, or even intentional conduct, on the part of the gym or its employees.  This is the same with the use of personal trainers.  It is advisable that one reads any disclaimers thoroughly before signing, so that one understands their rights.

     Second, in Illinois and many other states, property owners and negligent party's may assert a defense known as comparative negligence.  This defense alleges that the injured party's own negligence contributed to his/her injuries, at least in part, and any recovery obtained by the injured party should be reduced by the comparative amount of negligence attributed to the injured party.  For example, if you are injured while using a particular piece of gym equipment which you allege was defective, and you were recovered, say, $100,000.00 in financial compensation for these injuries at trial.  But if the gym owner can prove that you were using the equipment improperly, and that this improper usage was 25% of the cause of your injuries, the gym owner would only be required to pay you $75,000.00 ($100,000.00 minus 25%).

     There is also another important aspect of this defense to be aware of.  In this same example, say the gym owner can prove that this improper usage was 51% or more of the cause of your injuries, the gym owner will not be required to compensate you at all.  Again, this is the same with the use of personal trainers.  It is advisable that one knows how to properly use all gym equipment, perform all exercises, and acts with due care for one's own safety while at the gym or using a personal trainer.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

   

New Year's Resolutions 4 of 5: Quit Smoking - What to Know About Electronic Cigarettes

     For Part 4 of Eckert & Smestad's New Year's Resolution blog series, we focus on a very popular resolution: quitting smoking.  The health risks associated with smoking are clear, as are the addictive properties of cigarettes and nicotine.  There are literally thousands of different methods, services, and products available to help people kick the habit, and one such product that is causing some confusion among Illinois restaurateurs and business owners: electronic cigarettes or e-cigs. 

     E-cigs are products which can help ease smokers off of nicotine by delivering a small amount of nicotine through inhaled water vapor rather than tobacco smoke.  There are also claims that e-cigs are healthier than traditional cigarettes because it is only water vapor rather than smoke.  Because of these claims, many restaurant and bar owners were left in the dark as to whether e-cigs were covered under the Smoke-free Illinois Act (410 ILCS 82). 

     The Smoke-free Illinois Act, which became effective on January 1, 2008, banned smoking in virtually all public places in Illinois.  With the recent introduction of e-cigs in the marketplace, man Illinois business owners were left wondering whether the use of e-cigs were permitted in public places covered under the Act.  On January 15, 2014, Chicago's City Council provided some guidance.  The City Council passed an ordinance which treated these electronic cigarettes in the same way as traditional cigarettes with regard to the City's Clean Indoor Air Ordinance - meaning that both traditional and electronic cigarettes are banned from use in most public places in Chicago.  For Chicago restaurant and other business owners, the answer is simple: if you allow your customers or employees to use e-cigs in your establishment, you will risk fines and other consequences under the Clean Indoor Air Ordinance. 

     There has yet to be any clear statewide legislation from Springfield on the topic.  For Illinois restaurant and business owners outside of Chicago, this means you should check with your local city council or a licensed attorney familiar with these laws in your area if you have any questions relating to the use of e-cigs in your establishment.  There will likely be clear guidelines on this issue coming either from Springfield, the Illinois court-system, or local governments soon, but until then, it may be smartest to avoid potential problems all together and ask that customers and patrons go outside to smoke, regardless of whether they are using traditional or electronic cigarettes. 

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

New Year's Resolutions 3 of 5: Get A Better Job - The Realities of Job-Hunting and Social Media Posting

     For Part 3 of Eckert & Smestad's 5 Part New Year's Resolutions blog, we will explore the realities of job hunting and its relations to personal social media postings.  A common fear that is discussed among people searching for jobs is the fear that posting inappropriate pictures or comments on Facebook, Twitter, blogs, etc. can cost them their job, or a job opportunity.  There have been many instances in which employees have been fired, or prospective employees have been rejected for job opportunities, because of comments or photos posted on social media (see here, here, here, and here).  However, a recent development in Illinois law may give employees and job seekers some relief.  Note, "some" relief, does not mean complete freedom to post anything with no consequences.

   On January 1, 2013, an amendment, commonly known as the "Facebook Bill," to the Illinois Right to Privacy in the Workplace Act went into effect.  This amendment effectively makes it illegal for any employer or prospective employer to request or require passwords or account information for social media from employees or prospective employees in order to gain access to such social media accounts as conditions of employment.  The "Facebook Bill" also prohibits employers and prospective employers from demanding access to its employees' or prospective employees' social media accounts or profiles as conditions of employment.

 
     The amendment states that it is "unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, or conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours." (Right to Privacy in the Workplace Act, 820 ILCS 55/5).  This Act applies to all employers in the State of Illinois.  The law does nothing to prevent or limit an employers' right to set policies regarding the use of social media in the workplace, nor does it prevent an employer from seeking public information regarding an employee or prospective employee.

     This Law can give employees and job hunters some relief, however, it is worth noting that the normal rules of social interaction and business will always apply.  It is still advisable to remember that anything posted on social media should always be considered public and available to the entire world.  Therefore, if you are considering posting a picture or a comment on Facebook, Twitter, Instagram, or any other social media, you may want to take a second and think about whether it is something you want out there.

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

New Year's Resolutions 2 of 5: Cut Back on Drinking - Illinois Dram Shop Basics

     For Part 2 of Eckert & Smestad's 5-part blog series based upon common New Year's Resolutions, we focus on the basics of Illinois Dram Shop, or alcohol liability, laws.  For many, New Year's is a time to promise to focus on health, which commonly takes the form of reducing one's consumption of alcohol.  This can certainly be beneficial for many obvious reasons, including the fact that the consumption of an excess amount of alcohol can result in risky behaviors which may themselves cause injury to others.  Many states, including Illinois, has enacted laws allowing injured third parties the right to recover compensation for such injuries from establishments which sell or distribute alcoholic beverages.  These laws are known as dram shop laws.

     The Illinois Liquor Control Act of 1934 (Illinois' Dram Shop law) allows an injured third party (meaning not the intoxicated individual causing the injury, nor the liquor-selling establishment) may collect financial compensation from a bar, restaurant, etc. for injuries which were caused by an intoxicated customer.  An example of such a situation would be if John's Bar sells numerous cocktails to Mark, who then leaves John's Bar, gets into his car, and while driving home, strikes a pedestrian with his vehicle, causing the pedestrian to suffer severe injuries.  Under the Illinois Liquor Control Act, the pedestrian would have the right to file suit against the owners of John's Bar, as well as the owners and/or lessors of the property on which John's Bar is located, for getting Mark intoxicated, which ultimately resulted in the pedestrian's injuries.  

      There are certain elements which the injured party must prove before his or her right to compensation is established: 1. He/She was in fact injured; 2. The injuries were caused by an act of the intoxicated person; and 3. The defendant establishment (bar, restaurant, etc) provided the alcohol to the intoxicated person which resulted in his/her intoxication. 

     The Illinois Liquor Control Act also limits the amount of money an injured individual may recover from a defendant establishment for these injuries and/or property damage.  For any incident which has occurred after January 20, 2014, a plaintiff may recover up to $64,017.86 for personal injury and/or property damage from the defendant establishment (see here).  Additional funds may be available from other parties, including the intoxicated individual him/herself.  

     It is important to note, however, that there are relevant time limits for which an injured party must bring suit, per the applicable Statutes of Limitations. 

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.

New Year's Resolution 1 of 5: Be a Nicer Person - The realities of a defamation/slander/libel lawsuit

     Although a little late for the beginning of 2014, we at Eckert & Smestad introduce our 5 part blog series entitled "New Year's Resolutions."  Each blog under this series will tackle a legal issue related to different popular and common New Year's Resolutions. Below, just in time for many people to start giving up on their own resolutions, is part 1:

BE A BETTER PERSON: THE REALITIES OF A DEFAMATION/SLANDER/LIBEL LAWSUIT

     A common resolution goes something like this: "I will be a better person this year." This can be an overwhelming, and sometimes too vague and big a task for many people to successfully complete. One aspect of this resolution is to refrain from speaking negatively or spreading rumors about other people. In legal terms (although there are many elements to this, as discussed below), this can lead to a cause of action for defamation, slander, or libel. The legal definition of defamation, according to this Legal Dictionary is "Any intentional false communication, either written or spoken, that harms a person's reputation, decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person." Generally, slander is defamation that is spoken, and libel is defamation that is written. 

     In order to succeed with a defamation claim, a plaintiff must be able to prove each of the following elements (keep in mind there are many defenses, intricacies, and other legal issues which are involved in defamation claims, and this article is not intended to act as a substitute for the advise of a competent and licensed attorney):

            1. The defendant made a FALSE statement of fact about the plaintiff

            2. The statement was published to a third party (it was told or written to another person besides the plaintiff)

            3. There was fault by the defendant rising to at least the level of negligence (the defendant either made the statement knowing it was false, or with negligence as to whether the statement was false or not); and

            4.  The plaintiff (or his/her reputation) was damaged by the defendant's statement.

     Many people who call attorneys with potential defamation claims call to complain because some person said something negative about them.  While this can sometimes give rise to an actionable defamation claim, there are many common problems which must first be considered before one actually attempts to bring a defamation lawsuit against another.  

     The first problem commonly encountered with many potential defamation claims is that the alleged defamatory statement is an opinion, and not a statement of fact.  Many phone calls that come through our office deal with situations in which someone "said I was dumb" or "told my boss that I was a bad employee" or "told my boyfriend/girlfriend that I was a jerk" (although jerk is often not the word used).  While these may be false, and while they may be harmful to your reputation, many of these statements do not rise to the level of fact necessary to satisfy the first element.  Keep in mind, the first thing that must be proved is that the statement was false.  If someone calls you dumb, you will first have to prove what criteria must be used to judge what "dumb" meant in this particular situation, and then prove that you do not fit that certain criteria.  A more actionable statement would be that some person "said I had an IQ of 40" or "told my boss that I was embezzling money" or "told my boyfriend/girlfriend that I was cheating on them."  These are statements that can easily be disproven.

     The second common problem with potential defamation claims is one of damages.  Even if one can satisfy all of the elements of a defamation/slander/libel claim, the plaintiff must then be able to answer the ultimate question ... so what will make you whole again?  What are the damages you seek?  If the defamatory statement is still being published, the plaintiff can certainly seek a judicial order requiring the statement to be removed from whatever media, or an order requiring the defendant to cease from publishing the statement.  However, in most cases, the defamatory statement was said once and has disappeared.  In these cases, monetary damages is the only award available.  Proving what the damage to your reputation is worth can be very difficult without something solid to lean on, such as a loss of a job due to the statement, failure to obtain a loan or financing, etc.  Without some sort of concrete evidence of the harm to your reputation, it may be difficult, if not impossible, to convince a jury to award you any money.  And that could make the whole process a waste of time and money. 

*This is attorney advertising, and is not intended to be taken as legal advice, nor is it intended to create an attorney-client relationship. Any advice given in the preceding statement is given as general advice and is not intended to be relied upon as legal advice for any specific scenarios. For specific advice, or for answers to your questions, call Eckert & Smestad (312-789-4810) or call a qualified attorney licensed in your jurisdiction.