Popular Consumer Food Product Recalled for Presence of Glass Fragments

    Consumer products manufacturer Roland Foods, LLC has voluntarily issued a recall for its Roasted Red Pepper strips, available at many major supermarkets, for the possible presence of glass fragments inside the cans. Although no illnesses or injuries have been reported as of today, Roland Foods is taking this voluntary action to prevent any potential illnesses or injuries.

     The recall effects Roland Fire Roasted Red Pepper Strips in a 5 pound, 8 ounce cans, item number 45628 lot numbers 427, 428, 432 and 437 and UPC numbers 10041224456287 for the cartons and 041224456280 for the individual cans.

*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), visit our website: www.eckertsmestad.com, or call a qualified attorney licensed in your jurisdiction.

6 Things You Can Do To Help Win Your Personal Injury Lawsuit: Part 5 - When To Listen To Your Doctor, and When Not To

     During this blog series, we have discussed the importance of communicating with your physician about your injuries and symptoms. We've discussed the importance of listening to your doctor and following his or her instructions. But there are certain situations in which listening to your doctor may be harmful to your claim.



     Doctors are highly trained and educated in the field of medicine, and they put their expertise to work in order to help heal their patients and ensure their patients are healthy. When a patient presents to a doctor with an injury, the doctor will likely prescribe a certain course of treatment. This can range anywhere from rest to exercises, from medication to surgery, and everything in between. When a doctor instructs you on a course of treatment, he or she is using his or her training, education and experience in deciding what course of treatment to prescribe. While it is important to listen and, in most cases, follow your doctor's instructions to the letter, it is also important to know that you can use your own common sense and experience when considering your doctor's instructions.

     Open dialogue between a doctor and his or her patient will almost always result in a better understanding of the injury or illness and, therefore, a better decision on a course of treatment. If the instructions given by your doctor don't seem to make sense to you, or if you have questions about it, it is important to speak up. Ask your doctor questions. Ask your doctor why he or she believes the prescribed course of treatment will work. Ask your doctor if there are other options available and what the pro's and con's of each course of treatment are. Ultimately your doctor will give you instructions, but it is your responsibility to follow through with them.

     In some situations, it may be advisable to disregard your doctor's instructions. Just like anyone else, each doctor may have different opinions on things, including treatment for injuries or illnesses. Some doctors may prefer a conservative, or "wait and see" course of treatment, some doctors may favor surgical intervention, and some doctors may prefer other forms of treatment. If, during your visit, the treatment your doctor is prescribing doesn't seem to make sense to you, you are well within your rights to seek a second opinion from another physician. You may also want to seek out a physician with a different specialty; maybe one that more specifically fits the symptoms you are exhibiting.

     Remember, medical treatment is a two way street. Communication is key and don't be afraid to ask questions. As always, you may also seek the advice of an 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.

6 Things You Can Do To Help Win Your Personal Injury Lawsuit - Part 4: Chiropractors

           This entry will be focused on the involvement of chiropractors in your medical treatment and how it relates to your personal injury case. It is very common for people who suffer injuries to their neck or back to seek treatment from a chiropractor after an incident. After all, chiropractors work on the neck and back and are often times more affordable than going to a hospital, M.D. or orthopedic physician. It is very important to understand the role chiropractic treatment plays in building a personal injury case and establishing injuries and damages.

            While chiropractic medicine has certainly made some incredible advances in the last several decades, it can be viewed skeptically by the judges, juries, and insurance companies. Remember, these are ultimately the ones who will need to be convinced in order to maximize the value of your case. Injured people will oftentimes focus on what seems to be the cheapest, quickest fix for their injuries, or rely on advice from friends or family and go visit a chiropractor. This often times will cause a problem later on in the case when trying to prove the extent of injuries and pain and suffering, as well as connecting the injuries to the incident.

            This is not to say chiropractic medicine is without its merit, nor is it to say that one should not visit a chiropractor to treat injuries involved in a personal injury case. Chiropractors can very often be extremely helpful in providing relief for injuries and any negative impacts on one’s personal injury case can be mitigated simply by obtaining an order for chiropractic treatment from your primary care physician, an orthopedic physician, or another medical doctor and periodically following up with this doctor throughout your chiropractic treatment.

            The final take home lesson is simply this: for purposes of improving your odds on winning your personal injury case, if you are going to see a chiropractor to treat your injuries, couple your chiropractor visits with routine follow up visits to your primary care doctor or orthopedic surgeon. Remember, your personal injury case begins immediately after the incident.

*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.

6 Things You Can Do To Help Win Your Personal Injury Lawsuit - Part 3: Tell Your Doctor Everything

     Part 3 of our 6 part series on how to prevent problems in your personal injury lawsuit follows part 2 nicely. When you visit your doctor for treatment, make sure you tell your doctor everything. A very important step in establishing your injury, in creating hard evidence to prove that you were in fact injured, comes from talking with your doctor.

    When someone first sees a doctor on any visit, the doctor will more often than not take what is called a "history" from the patient. This basically means they are asking the patient why he/she came in, is the patient suffering from any problems (pains, illnesses, etc), and if so, when did they start and how did they come about. While the patient is giving his/her history, the physician is writing down what the patient is saying. It is very important that the patient gives a complete and accurate history to the physician. This is important for two reasons: 1. an accurate and complete history is necessary for the doctor to come to an accurate diagnosis and treatment plan (if the doctor doesn't know what is wrong, he can't very well treat it); and 2. this written history makes it onto the medical record, which will act as hard evidence of the injury later.

     Every personal injury lawsuit will require the injured party to be able to prove that he/she is injured, and hard evidence in the form of medical records goes a long way to help. Certainly the injured party will testify, assuming he/she is able to, that he/she was injured and will talk about his/her injuries at trial. However, judges and juries will often look at plaintiffs skeptically.

     Think about it this way: You are telling 12 people who don't know you that you were injured because of the Defendant and you should be compensated. Most members of the jury have likely heard a story or two about some plaintiff faking an injury, or have heard about frivolous lawsuits, or know someone who knows someone who won millions of dollars in a lawsuit. If the jury can't physically see the effects of your injuries, they will very likely think that you might be trying to get rich, or that you are faking the extent of your injuries. Even if this isn't true, as a plaintiff' it is your burden of proof; you must first prove all the elements of your case with a "preponderance of the evidence," including your injuries and the extent of the pain and suffering you suffered.

     Medical records will help to support your testimony about your injuries. You testify that you suffered head injuries in a construction accident and were extremely dizzy and nauseous after the incident. When the jury views your medical records they will see what you told the doctor you were suffering from. If the history in your medical records says you were involved in a construction accident and were complaining of dizziness and nausea, then the jury will see that your story has been independently corroborated. If they see that the medical records only mention that you told the doctor you had a headache, they jury will think that the medical records contradict your story and your credibility will suffer.

    So remember, tell your doctor everything. Tell your doctor about how your injury occurred, when it happened, and report to your doctor all of your symptoms, whether you think they are minor or not. Let the doctor figure out if your complaints are major or minor.

*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.

6 Things You Can Do To Help Win Your Personal Injury Lawsuit - Part 2: Don't Wait to See A Doctor

     When you are involved in a personal injury claim or lawsuit, you will be judged by the "reasonable person" standard. This standard can be very hard to meet, because it is often subjective (based upon who is applying the standard to you) and because most people believe they always behave as reasonable people do. However, one of the easiest ways to "act like a reasonable person" when you are injured is to seek medical treatment and seek it without delay.

     Keep in mind that, while there are many many reasons to go to a doctor when you are hurt, this article will only discuss the legal perspectives on seeking medical treatment.

     Defense attorneys and insurance companies, two groups that you will very likely be fighting against while pursuing your personal injury claim, will examine your actions leading up to and after the incident for evidence of your injuries. They will be trying to find a way to either avoid paying out on your claim. A very common technique is to establish that you were not, in fact, injured (or at least not hurt as severely as you claim) because you did not seek medical attention or waited too long before you sought medical treatment.

     It is an argument that is made in almost every personal injury claim or lawsuit: "If (the injured person) was actually hurt, or was hurt as bad as he/she claims, why didn't he/she go to the doctor immediately?" or "why did he/she wait so long before following up with a doctor, or receiving further treatment?" Now there certainly may be many reasons why you didn't go to a doctor or hospital immediately: scheduling difficulties, financial concerns, not wanting to go to a doctor unless it is absolutely necessary. While these reasons may seem perfectly reasonable to you, they may not seem perfectly reasonable to a judge or jury.

     If you think you may have been injured due to the fault of another, and you are not sure if you should go to a physician, remember this: "when a reasonable person is injured, a reasonable person gets medical treatment as soon as possible, and continues to get treatment until they are healed." This is the standard you will be held to by the judge, the jury, the defense attorneys and the insurance companies, so remember it and make your life a little easier.

*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.

6 Things You Can Do To Help Win Your Personal Injury Lawsuit - Part 1: Talk to Your Attorney

     Recently I was contacted by a client who asked if there was anything he could do, or anything he should do, to increase the odds of getting a favorable outcome from his personal injury lawsuit. That got me thinking about some common advice that we often give to our clients when contacted about personal injury claims. Besides the obvious (find a good attorney), there are 6 things you can do to help shorten the time it takes to resolve your case, increase the value of your case, and increase the odds of a favorable outcome. This post will focus on the first: Talk to your attorney.

     This may seem obvious, but the first piece of advice is to talk to your attorney. All too often clients hire an attorney and then wait for their attorney to contact them, forget to keep their attorney apprised of updates in their case, or are afraid to ask their attorney questions. This can cause a litany of problems with your case.

     Remember your attorney works for you. His/her job is to protect your rights and fight for you, and it is important to remember that your attorney is on your side. Your attorney has an extensive education, training and experience to draw from to give you advice on your case and answer your questions. This is an invaluable resource, and one that you are entitled to once you have hired an attorney. Ask as many questions as you can about your case, what you should and should not be doing and whether there are any issues with your case. Let your attorney know if there any changes or updates in your condition or any issues relating to your case; for example, if your medical condition changes, you visit a new doctor, you are discharged from medical care, etc. Remember your attorney only knows what you tell him or her; if you don't keep your attorney up to date, he/she can't give you the legal representation you deserve.

     Just as often there are attorneys who neglect to keep in touch with their clients after they are hired and fail to keep lines of communication open. It is recommended that clients make regular calls to your attorney, even if your attorney doesn't make regular calls to you. Again, your attorney works for you. Your lawyer might have dozens, or even hundreds of other cases besides yours, but your case is your only case, and it deserves to be treated as such.

   

If you have further questions or concerns about your case, or a potential case, please call a licensed attorney, or contact Eckert & Smestad, LLC: www.eckertsmestad.com.

*This is attorney advertising. No attorney-client agreement or related privileges are created without further written agreement by all parties. The above is meant only as general advice. Consult a licensed attorney for advice on your specific case.

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.

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 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.