Bill on med-mal attorney fees goes to governor

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

HB5151 was recently passed by the House of Representatives. The bill containing a measure to cap attorney fees in medical malpractice cases was recently passed by the Illinois General Assembly. If the bill becomes law, attorney fees in medical-malpractice cases will be capped at one-third of a plaintiff award and lawyers will be barred from petitioning the court for higher fees. Under the current system, plaintiff attorneys in medical-malpractice cases can only seek fees of one-third of the first $150,000 of a medical malpractice award, 25 percent of the next $850,000 and 20 percent of any reward more than $1 million. These rules were perceived as being unfair as plaintiff attorneys in other types of personal-injury cases can seek one-third of an award, whereas attorneys in medical malpractice cases have these restrictions. The Illinois State Medical Society, which opposes this bill, has calculated that the bill would increase attorneys’ fees on a $10 million award in a medical-malpractice case from $2.06 million to $3.33 million.

The bill also re-enacts and repeals provisions of the Code of Civil Procedure in order to conform to two Illinois Supreme Court rulings of Best v. Taylor Machine Works 179 Ill.2d 367 (1997) and Lebron v. Gottlieb Memorial Hospital 237 Ill.2d 217 (2010) on medical malpractice reform. In Best, it was found that four provisions of the Civil Justice Reform Amendments of 1995, which made changes in tort recovery, liability and procedure, violated the Illinois Constitution. The Court found in Best that the unconstitutional provisions could not be severed from the act, so the act was rendered invalid. In Lebron, it was found that the caps on noneconomic damages in medical-malpractice cases violated the separation of powers. The Lebron suit alleged that the damages of a minor who suffered severe and permanent injuries due to the health care she received at birth would go beyond the cap. In finding that the provision violated the separation of powers, the court rejected the health-care provider’s claim that the statute was a valid exercise of the police powers upon finding the issue was not the wisdom of the law, but whether the law unduly infringed on the judiciary’s power.

Furthermore, the bill also includes a provision that would create a $250 million cap on the amount of money defendants in civil litigation against tobacco companies have to post as bond in order to appeal a ruling. The legislation, which was backed by ITLA, was approved by a margin of 67 to 46. The Bill now goes to Gov. Pat Quinn for his approval.

Best lawyers use better interpersonal communication skills

Nick Augustine is a freelance writer, broadcaster, publicity and marketing strategist and he teaches SEO and social media. Nick writes legal industry columns for Chicago Lawyer magazine regarding business and career development. Nick is an alumnus of Marquette University and The John Marshall Law School, where he is an active alumni board member. @NickAugustinePR, @APIFCharity and Augustine Legal PR.

Last week, I was talking to a friend who is a judge in a local domestic relations court. My friend expressed concerns about young attorneys and their perceived ability to communicate. Communication is a key component of law practice. The judge complained that motions and pleadings are poorly written and young counsel seem hesitant to pick up the phone and negotiate with opposing counsel, and instead only communicate through e-mail and text. Years ago, Stephen Hawking started talking about the dangers of reliance on technology and the breakdown of interpersonal human interaction. If we only speak through screens and mobile devices, we miss key components of what makes us successful.

Successful communicators know that interpersonal communication is contextual. Communication is more than the exchange of messages. When, in person, we can see another’s reaction to what we say. How are they sitting? Are they engaged? What fires up your opponent? The environment in which we interact can also affect the quality of an exchange. Attorneys meeting in an office during business hours can produce a more targeted discussion where the parties walk away from a memorable event.

Why does it all need to be an event? It doesn’t. There seems little reason to meet face-to-face to schedule or manage housekeeping. When it comes to major decisions, however, the benefits of interpersonal meetings as events outweigh the efficiency savings of an e-mail or letter exchange.

Applied to law practice, using the domestic relations practitioners as examples, consider the importance of a real meeting of the minds among counsel when negotiating for a client. If you prepare and sit down with an opponent to discuss your client’s positions, you use all five senses. The more senses we engage, the better we will learn and commit to memory the various elements of the transaction. Look at communication like a transaction with multiple elements. The non-verbal contextual clues are elements, and when used like a poker player, these elements can be useful when you notice them.

Back to the concerned judge, I am not sure why the quality of writing suffers, but if I had to point a finger, the 140-character impact might be to blame. Do we lose meaning when we do not complete a sentence? Do abbreviations dilute meaning? My advice to the new classes of legal writers: Learn how to be concise but outline your points and offer quality evidence and authority in your writing where possible. Legal writing is mechanical and follows mathematic-like rules. When writing, show your math and write clearly, because, IMHO, the judge isn’t likely 2 LOL at UR OMG allegations and IDK replies.

Gun debate rages on

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

The issue of gun control has become one of the most important issues of public debate in light of the series of mass shootings in 2012, particularly the tragic Sandy Hook massacre. However, the debate on gun control was already in full swing in Illinois when the Sandy Hook school shooting occurred.  The 7th U.S. Circuit Court of Appeals ruled in early-December that Illinois’ ban on carrying a gun in public was unconstitutional. The court declared that the Second Amendment confers a right to bear arms for self-defense, which was said by the majority to be as important outside the home as inside. Until that point, Illinois was the only state to not have some form of a concealed carry provision in place. The court gave the state 180 days before the decision will be returned to the lower house to be implemented. This time period is designed to enable the legislature to take action upon the ruling.

The debate on gun control suddenly took on a new life on Dec. 14 when 20 children, along with 6 adults, were gunned down in their classrooms in Newtown, Conn. The focus in Illinois has now shifted to our elected officials and what actions they will take in order to prevent a similar disaster from occurring in this state. Attorney General Lisa Madigan submitted a motion asking that the 7th Circuit hear the matter en banc.   Madigan claims that the decision goes beyond what the U.S. Supreme Court has held and also conflicts with decisions by two other federal appellate courts. However, Madigan’s request does not affect the 180-day timeline for the drafting of a new law. The appellate court ruled that the state had not made a strong enough case that a gun ban was vital to public safety. In order to succeed at any potential rehearing, the state will have to address this matter in more detail.

Mayor Rahm Emanuel recently announced that he would introduce an ordinance on the matter of gun control after state lawmakers failed to reach agreement on the matter. The mayor has yet to give details on what he plans to do, but it is expected that he will address the issues associated with lost or stolen guns. Emanuel may take cue from current guidelines in New York. In order to purchase a gun in New York, you need photo identification, must give fingerprint samples, have four character witnesses and disclose any drug use or any history of mental illness. If you are business seeking to purchase a gun for protection, you have to submit your business tax returns, bank deposit slips and payroll information. Permits to own a gun in New York expire after 3 months.

While we cannot be sure of the shape any new gun control measures will take, we can be sure they the measures will be challenged in courts. In any event, we are just at the beginning of a long, arduous and emotive process.

A new year for goals

Tom Ciesielka is President of TC Public Relations (www.tcpr.net). Tom has more than 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and is on the Public Affairs Committee of the Chicago Bar Association, where he has spoken at CLE programs. Reach him at tc@tcpr.net.

Now that the new year has arrived, it’s time to set promotional goals for you and your firm so that you’ll stay on track throughout the year. Avoid regret later in the year when you realize that you haven’t done anything to promote yourself by starting out with at least one of the following goals below:

1 – Evaluate your website and update your bio. During the past year, you probably had more speaking engagements, new clients and wrote fresh articles and blog posts. Look at your website to see if your information reflects your latest accomplishments, and change it if it seems outdated. Even if you don’t have an appearance or article planned yet, update your bio while you still have time. That way, you won’t have to worry about it when a speaking or writing opportunity comes up. This is advice I’ve followed myself; I recently updated my bio because I realized that my focus had changed, and there were presentation topics I’d covered that were not included in my previous bio.

2 – Decide which social media is right for you. Social media websites and apps are constantly being introduced, so it’s understandable that you might feel overwhelmed by it all. If you feel like you need to change your social media promotional strategy, now is the time to do it, while the year is still fresh. You might find that you can get rid of something or add something new. For instance, if you’ve been advised to create a Twitter account but are having a hard time maintaining it because your LinkedIn discussions are getting more attention and responses than your tweets, delete your Twitter account. Be honest about what’s working for you, and how much time you have; you don’t have to be everywhere online if it isn’t effective.

3 – Create a calendar. I’ve talked about creating a publicity calendar before, and it really works. It keeps you consistent and helps enhance your reputation because you’re implementing your publicity plan throughout the year.

4 – Repurpose. You probably created new content last year. Instead of spending the time to create even more new content this month, look at what you’ve already done and “recycle” it as a blog post, video, or even as an infographic on a social media site. If you’d like to get ideas on how to repurpose an article you’ve written, for instance, see the post I did here about 10 ways to do that.

I’m still in the process of setting my goals for this year, but so far, I feel good that I at least created a promotional calendar, updated my bio, and arranged an article and speaking engagement for later this year. We’re all busy, but it’s still important to set goals, or else our publicity plan will fall by the wayside.

E-filing comes to Illinois

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

E-filing came into effect in Illinois on Jan. 1 following a recent Illinois Supreme Court decision on the matter. E-filing had been on a pilot program in Cook, DuPage, Madison, St. Clair and Will counties since 2003.

The October decision will now open up this process to all counties, while the counties who were operating under the pilot program can continue to do so provided that their systems comply with the rules handed down by the Supreme Court. The rules address system security issues, electronic access to court records and identity verification.

Lawyers who do not practice in the above-mentioned counties will have to wait before they will see the benefits of e-filing. It is expected that the pilot-program counties will proceed with full e-filing while other counties will wait and see how the system develops in those counties.

When the system comes into effect, lawyers can put their days of running down to court to file papers behind them. With e-filing, lawyers will be able to submit their filing online where it will be distributed to all other parties.

This will mean that lawyers will no longer have to mail or courier copies of filings to all the parties involved in a suit which will have considerable financial and time benefits. Another benefit of the system is that when a document is filed at 11:59 p.m., it will be regarded as being filed on that day.

Therefore, lawyers will no longer have to get their documents submitted before a courthouse closes its doors. This will also mean that a lawyer can be anywhere in the world when this process occurs, giving lawyers a greater degree of flexibility. Lawyers should then receive a document back confirming that the paper has been filed.

One of the most important features of the new system is that lawyers and parties can now serve documents via e-mail. Attorneys and parties in civil cases in Illinois must include an e-mail address for service of documents on appearances and all pleadings filed in court.

There are also practical benefits for the courts. By moving to an electronic system, courts will make significant cost savings. According to official documents, Cook County spent $16 million on circuit court storage in 2011.

Instead of cavernous warehouses, courts will now be able to rely on efficient server farms. However, we are a long way away from the day when attorneys will only have to visit the courthouse to appear for a hearing or status as matters such as cost, security and standardizing each counties software will all have to be addressed before the system comes into full force.

State considers marijuana for medical purposes

Marty Dolan, principal at Dolan Law, and his associate, Karen Munoz, represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz.

The Illinois State Bar Association recently endorsed legislation that would allow patients who suffer from a debilitating medical condition to use and possess small amounts of marijuana if certified to do so by their regular physician. The endorsement comes after state Rep. Lou Lang, a Democrat, deferred requesting for a vote on his proposal to legalize marijuana use for medical purposes. Lang was forced to defer the vote due to inadequate support for the bill. Under Lang’s bill, patients would have to be diagnosed with one of 30 debilitating medical conditions, register with the Department of Public Health and have a written certification from their certification. Patients would be limited to no more than 2.5 ounces of marijuana every two weeks. Opponents to the bill in Illinois claim that marijuana acts as a gateway to abuse of other illegal substances.

According to Lang, the three-year pilot program would be the most restrictive in the country. The bill comes at a time when states all around America are beginning a discussion on the possible effects of legalizing marijuana. Under federal law, marijuana is considered an addictive substance and its distribution is a federal offense. However, in a recent media interview, President Barack Obama stated that the prosecution of those who distribute marijuana for medical purposes under state law is not a priority of his administration.

Many commentators have compared the history of marijuana to that of alcohol, which was banned by the federal government in the ‘20s and ‘30s. The Prohibition era gave rise to an underground network where alcohol could be purchased with ease. A similar underground network exists in the states where marijuana can be purchased with little difficulty. Even in states where marijuana has been legalized for those with medical conditions, there is anecdotal evidence of the substance being prescribed for almost any ailment. It was ultimately the public’s weariness of organized crime that led to the end of prohibition. Whether the legalization of pot in the states would bring an end to the current cartel violence in Mexico is up for debate. A recent report by the Mexican Competitive Institute states that Mexican drug organizations could lose almost $2.8 billion by the legalization of marijuana in Washington and Colorado.

Proponents of efforts to legalize the substance argue that the move would benefit the country due to the regulation and taxation of the product.  However, Gil Kerlikowske of the Obama administration claims that the social costs of alcohol far outweigh the tax intake achieved on alcoholic products. Whether already over-stretched states would be willing to gamble on the social costs of legalizing marijuana is another issue that will have to be explored in detail.

We will have to wait until later this year to see if Lang can drum up the necessary support for his bill. In the meantime, all eyes will be on the federal government to see what action, if any, it will take on the states that legalized the drug.

Learn from your year in review

Nick Augustine is a freelance writer, broadcaster, publicity and marketing strategist and he teaches SEO and social media. Nick writes legal industry columns for Chicago Lawyer magazine regarding business and career development. Nick is an alumnus of Marquette University and The John Marshall Law School, where he is an active alumni board member. @NickAugustinePR, @APIFCharity and Augustine Legal PR.

We all enjoy a good year in review to measure our progress. If you are an attorney growing your career, pause and ask yourself a few questions: (1) Do I know more law and procedure than I did last year? (2) Do I know more people than I did last year? (3) Did I make a mistake from which I gained experience? (4) Am I happy to work in law?

If you answer all these questions and know that, only you stand in control of your future, be happy and celebrate closing out another year!

(1)    In any career, we gain experience one day at a time, one project and one case at a time. In law, clients often present facts and issues that make us want to stop and scratch our head. I know a few attorneys who seem to be magnets for the bizarre cases involving some dynamic clients and the cast of characters they bring to the litigation table. Stop and identify some of these experiences and wonder how and when your experiences could be relevant later on. You just never know when some otherwise benign experiences could be important when you least expect.

(2)    I hope you were diligent in attending as many networking events as possible. The most unlikely events and groups can yield incredible returns. Who did you meet this year? Are you keeping in touch with this person? Did you connect with this person in your social networks? Did you drop them a note about an upcoming event? I hope that you can report that you know more people this year than before and if you cultivate relationships, you will be open for new opportunities.

(3)    Mistakes are assets. When you make mistakes, you can learn from them and value the experience points. The people who do everything correctly (so they think) miss the opportunity to grow from failure. Critical thinkers know what can go wrong if they already experienced the negative sides of decisions. I think that all my failures and bad decisions are assets in my set of tools to give great service with the benefit of experience. Embrace your experience.

(4)    Why did you go to law school? If you are happy working in law and feel like you are making other people’s lives better through practice, then you should be glad. Face it, most people lack the education and experience to successfully navigate the legal system and serve clients with positive outcomes. Put the salary and benefits aside and focus on the clients who relied on you to their benefit. Be glad if you made a difference.

At the end of the day, life is a big mixed back of challenges and tricks. The more you know yourself, the better you can decide where you want to be and how you choose to live. Embrace your year in review!