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Michael Helfand

Illinois Legal Malpractice – How To Avoid A Bad Lawyer

We have a philosophy when it comes to recommending an attorney.  Actually we have a few.  But the overall one is that we try to recommend an attorney who gives you the best chance of success.  These are attorneys who we would recommend to family members or friends.  This for us means experienced attorneys who deliver great customer service and have a narrow practice focus.

That last part is the key.  If your lawyer is handling car accidents and divorce and DUI’s and real estate closings, they are what is called a general practice lawyer. They are allowed to do that and those types of attorneys are pretty useful in small towns where there aren’t a lot of options.  In a bigger city or even a medium size city though, there are a ton of great options for most types of cases and you’d really be making a mistake if you hired a jack of all trades type attorney or law firm.  Not just in Chicago, but anywhere in the Chicago area, Rockford, Champaign, Peoria, Belleville, etc. For almost any legal situation you can find a lawyer who has a narrow practice focus and that gives you the best chance of a good result.

Not only does this type of attorney help you win your case, but it also greatly decreases the likelihood that they will commit legal malpractice and you’ll have to sue them.  I recently took a continuing legal educational course on the subject and it turns out that almost every instance of legal malpractice in Illinois comes when lawyers dabble in areas of law that they really don’t have an expertise in. Again, an attorney is allowed to take any case which walks through the door, but that doesn’t mean that they should.

There are so many little exceptions to all areas of law and new cases coming out all of the time that it’s practically impossible to be up to date with all developments in a way that is in the best interests of your clients.  Lawyers love money though so instead of referring cases out or declining to get involved they take a short sided view which is in their best interest only, or so they think. The most common legal malpractice case we come across is a lawyer who dabbles in personal injury and misses the statute of limitations for filing a lawsuit in time.  They assume those cases are easy, discover that they are not and then end up getting sued.

In fact, I can only recall one case in the almost 20 years I’ve been an attorney where a lawyer who has a great track record blew the time limits for suing and that apparently was due to a clerical error by their staff.  Most experienced firms though have a docketing system with multiple layers of protection which prevent those types of errors from ever happening.  That’s a hard system to have in place when you try to handle everything that walks through the door.  And there aren’t enough hours in the day to learn all the nuances to every practice area.

So we can’t guarantee you a result and no attorney wins every case. If they say they do, they are lying.  We can though help you find the best attorney for you.  And that won’t be a lawyer who will take any case which walks through the door.  If you did hire a lawyer who screwed up, call us.  We’d be happy to help you find someone to sue them.  The only way these firms are going to learn to stop dabbling will be if they get punished for their mistakes.

When Do You Have To Be Read Miranda Rights?

Any episode of Law and Order, and every other cop show out there will bellow them out. “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” There is another part of Miranda rights that are often left out, yet implied which is if you choose to speak without an attorney present, you do have the right to stop the interview at any time.

However, is it true that if you are arrested police MUST give you those rights at the time of the arrest? The answer is no. If and when you are arrested, the police only have to give you those rights if they plan on using whatever your answers are, as direct evidence of your guilt. The part that is true of course is the timing of when these rights are read to you.

If an officer wants to interrogate you, it doesn’t matter the physical location. It could be at your front door, on the side of the street, the back of the police car or even at the station. Nothing you say prior to being read your rights can be used to incriminate you at a trial to determine your guilt. If you have not been placed in police custody, your rights do not need to be stated. There are also a few other exceptions to the Miranda rights rule. One is called the emergency exception to the Miranda Rule. This exception allows for scenarios where the public may be at risk if the officer does not obtain vital information quickly enough.

As a rule of thumb, if you are arrested and taken into police custody, the only time the police can ask you specific questions that could be incriminating is during the booking process because those questions are not meant to draw out a specific answer that may be incriminating; those questions are answered by all people being booked into jail. If you are only a “suspect” you don’t have the right to an attorney and don’t necessarily need to have been read your Miranda rights. Once you have been arrested and are in police “custody”, to be questioned, you will need your rights read.

I often get calls from people who think that they can have their criminal charges in Illinois thrown out because the Miranda rights weren’t read.  Hopefully you realize from this post that they are incorrect and it’s a terrible strategy for defending a case. I’ve talked to people who went in front of a Judge alone as they were confident this argument would set them free.  Some made the Judge laugh, others pissed the Judge off and only made their case worse.  You don’t want to have that happen to you.  Blaming that you are uninformed because you watch too much TV won’t get you out of trouble.

Five things you should know before hiring an Illinois lawyer

There are thousands of lawyers in Illinois. Don’t close your eyes and point to a name in the phone book. And don’t Google “Illinois divorce lawyers” and pick from your initial results. You need more information. Here are some things to consider.

  1. Not all lawyers handle all kinds of cases. A big indicator of success, in our experience, is whether the lawyer on your case has handled similar cases in the past. The more this is true, the better. If your attorney has handled dozens of DUIs, then they are better equipped, generally speaking, to handle yours. Obviously, this is only true if the attorney has been successful in his or her prior cases. Make sure they have a track record of positive outcomes for their clients.
  2. Big firms aren’t always better. Experience and location matter more for routine legal issues. You want your lawyer to be local so that they know the other attorneys, as well as the judges if you have a court case. Your attorney’s individual experience, as we mentioned above, is extremely important in trusting them to handle your issue. On the other hand, a big downtown law firm can have its advantages. If you have an expensive case and you need a firm with a lot of resources, then a bigger firm is likely a good fit. But don’t assume bigger is better. Focus on what you need in your attorney or firm before deciding who to hire.
  3. The fee depends on the type of case. Attorney fees are a big question mark when you are just beginning to consider hiring someone. A contingency fee is one in which you don’t pay anything upfront but rather pay a percentage of what you win in the end. A flat fee is just that. You might expect a flat fee for the drafting of your will, or something that is fairly routine. An hourly rate is typical in family law cases and other cases that are unpredictable or don’t involve a monetary award at the end.
  4. Get a free consultation if you can. At a consultation, you can ask questions and find out what type of fee you can expect in your situation. It’s a great way to get a feel for what you might be facing. If you are using the Internet to research your legal issue, then you’re probably feeling overwhelmed. There is so much information out there but no real way to find out whether it applies to you.
  5. For best results, ask a lot of questions. At your initial consultation – and throughout your case – ask questions. At first, this will help you know whether you are hiring an attorney who is a good fit. The more you talk and interact, the more you will be able to judge their character. This can end up being just as important as their legal expertise. Next, you should continue to ask questions and stay involved in your case. The more informed you are, the less likely you are to be surprised or caught off guard.

Hiring the right attorney for your case requires a bit of effort, but it definitely pays off. Hiring the wrong attorney can affect the outcome of your case. On top of that, it can make your entire experience difficult. Although you are allowed to switch attorneys later on, it’s not as easy as hiring the right attorney in the first place.  Contact us if you’d like one of our attorneys to guide you through the process.

Thanks and Happy Holidays

We post a new blog every Wednesday on a different legal topic.  We’ve been helping people find the right lawyer for their case since 2001 and have helped more than 300,000 people during that time.

With the end of the year upon us, we just wanted to take a moment to say thank you to everyone who has trusted us as the top resource for people who need Illinois legal help.  Many lawyers hate what they do, but we love it because we actually get to help people.

Have a safe and happy holidays.  We are on call 24/7 over the next few days and every day.  So if you need our help, please call us at (312) 346-5320 or fill out the form to the right. It’s always free and confidential.

Cheers!

Louis CK Should Be Your Divorce Mentor

With the holidays upon us, more people in Illinois are thinking about divorce than any other time of the year.  The holidays have a way of making people realize that they aren’t happy in their marriage and with 2016 right around the corner, many want to get a fresh start.

The very funny comedian, Louis CK, has been through a divorce and I love his joke in the picture. He’s right when he says that “no happy marriage ends in divorce.”  You might be happy in your relationship and get blindsided by a cheating spouse, but the truth is that if they are cheating on you, it’s not a happy marriage.

From my standpoint, the best part of the joke is that it has a real lesson which is that if you can accept that you aren’t in a happy marriage then you can accept that it’s best for you to get divorced.  Of course that’s a lot easier said than done, but the ones who have that ability can start making rational decisions instead of emotional ones.  You won’t be trying to get back at your spouse, you’ll be trying to get a result that you will be satisfied with and move on with your life.

Whenever someone calls us for advice on a divorce or looking for an attorney referral, the first thing we tell them is that they need to get a game plan together.  By meeting with an experienced family law attorney you can make sure you are thinking about EVERY issue that needs to be handled to get you to the end point in your case.  You also need to not just worry about what you want to happen right now (e.g. custody of the kids), but also a year from now (religion of the kids, where you want to live), five years from now (what are you going to be doing for work and does that impact your case, what will happen if you re-marry) and ten years from now (possibly planning for college expenses or selling the marital home).

It’s not easy to game plan when you are only thinking about revenge or the hurt you are feeling or simply trying to hold it all together.  We get that.  That’s why having a good attorney in your corner is important as it can take a lot of the pressure off of you.  But it’s still on you to focus on your goals and the Louis CK joke, while funny, should help you realize that.

That’s not to say you are going to finish with a divorce and be happy or even enjoy the divorce process.  But you can make it go smoothly and start getting on the path back to happiness.  If you’d like our help in making that happen, please call us at (312) 346-5320.

All About The Daley Center in Chicago

In Cook County, the main courthouse is the Daley Center. It is the home to most of the civil matters and some traffic cases as well. It is considered the first district courthouse of Cook County.

The Daley Center is at 50 W. Washington St. in Chicago. The following is a list of some of the cases that take place there:

  1. All Cook County probate matters, including wills of deceased, estates of deceased, estates of disabled adults, estates of minors and wards of the state, guardianship of minors, and guardianship of disabled adults are taken care of at the Daley Center in Room 1202.
  2. Claims made in excess of $30,000 are heard in Room 801 of the Daley Center. These are considered Law Division cases. The type of cases heard include: personal injury, property damage, breach of contract, commercial litigation, and all tax related matters.

Other types of cases include personal injury/wrongful death, legal malpractice, libel/slander, and miscellaneous remedies, including replevin, condemnation, Unemployment Compensation review, Workers’ Compensation review and administrative review.

The Suburban Districts also accept Law Division filings and, in certain cases, hear Law Division cases in excess of $100,000.00.

The Civil Division, located on the 6th floor of the Daley Center, hears actions when the amount of the claim is less than $30,000. The types of cases heard include: contract, property damage, personal injury, eviction, replevin, county use tax forfeiture, attachment and garnishment actions. Civil Division cases are also heard in each of the Suburban Districts.

The Small Claims Court section of the Civil Division resolves disputes between parties where the amount at issue does not exceed $1,500. The party may act as their own attorney.

  1. Other matters, referred to as matters in equity, are heard in the Chancery Division of the Daley Center in Room 802. These matters include injunctions, class actions, mortgage foreclosures, names changes, declaratory judgments, partnership and corporate dissolution, mechanic’s liens, statutory and administrative review, trust and trusteeships, and breaches of fiduciary duties.

The Daley Center also handles proceedings dealing with taxes, mental health, adoptions, and elections in the County Division which is located in Room 1202.

  1. The Daley Center has a Criminal Department located in Room 1006. This department is the Keeper of Records for all Misdemeanor Criminal cases in the First Municipal District. Records of all criminal court proceedings on Misdemeanor case that occur in the city of Chicago can be found here.

The Criminal Department provides access to First District Misdemeanor files for public viewing. It also provides Certified Copies of documents in the files and expungement and sealing services for Criminal Misdemeanor files. Actual criminal cases are not heard at the Daley Center.

  1. The Daley Center also hears domestic relations cases in Room 802. The Domestic Relations Division hears petitions for dissolution, invalidity of marriage, joint simplified dissolution of marriage, custody and visitation, legal separation and all civil orders of protection and post decree issues.
  2. District 1 also has a Child Support Division that is located in Room 200 at 28 N. Clark St in Chicago. It maintains permanent records of court ordered child support payments to custodial parents. There is also a Child Protection Division that has original jurisdiction over cases filed under the Juvenile Court Act involving abused, neglected, and dependent minors. Child protection also hears cases involving private guardianship and termination of parental rights. The Juvenile Child Protection Division is located at 2245 West Ogden Avenue in Chicago.
  3. The Daley Center also has a Traffic Division which is responsible for the maintenance of records and collection of fines for all cases involving City of Chicago moving violations. They do not hear matters related to parking tickets. The Traffic Division for the First Municipal District handles only tickets issued within the geographic boundaries of the City of Chicago.

If you have any questions about the Daley Center or want our help in finding an experienced attorney for cases there, please call us at (312) 346-5320.

Yes, You Can Rape Your Spouse In Illinois

In 1992, an Illinois case eliminated the “marital exemption” to rape laws. So how is it now in 2015 we are still pondering the question of can a husband rape his wife? Does being married change a woman’s right to say no? According to a Grundy County judge, yes, a man can be convicted of and go to jail for raping his wife.

In 2013, a woman was hospitalized after a brutal sexual incident involving her husband.  She made the claim that she woke up to her husband sexually assaulting her in an attack that resulted in a four-day hospital stay. Her husband claimed the sexual contact was 100% consensual and any injuries incurred were strictly accidental. The drama of the case played out in the court room with both parties testimony being called into question. The husband, through his attorneys are claiming that while his wife was in fact drunk on the night in question, but that she gave full consent. This defense brings up the question of the definition of rape in Illinois, “Unable to give knowing consent to sex”. If a wife is in a drunken pass out state, does she have the ability to give knowing consent?

In this specific case, the answer is no, due to her drinking and being passed out, the wife was not able to give consent; even to her own husband. Therefore, her husband was found guilty of aggravated sexual assault and sentenced to 8 years in prison for the incident. She has since filed for divorce, while her husband starts the appeals process. Her husband is expected to serve at least 85% of the time he has been sentenced to serve.

Bigger picture, being married doesn’t mean you are happy.  Being married doesn’t mean you have to have sex whenever your spouse wants it. Being married doesn’t mean you give up your rights to say no.  Being married doesn’t mean that consent is automatic.

This is no different than going to jail for beating your spouse or any other crime that you can commit against them.  It’s amazing that we still have to have these conversations just like apparently some people don’t think that a porn star can be raped.

While I’m sure there were other issues in this marriage, the reality is that you could have the best marriage in the world and if you climb on top of your passed out spouse and penetrate her, you are committing rape.  And if you end up in jail as a result you’ll have nobody to blame but yourself.

Junk Texts and Junk Phone Calls – Your Legal Rights

Raise your hand if you hate spam or wasting time.

Is your cell phone being inundated by telephone calls or texts from automated messages and telemarketers? In 1991, a law was passed that makes this process illegal. The law is called the Telephone Consumer Protection Act, or TCPA. TCPA encompasses a few items including telemarketing, automatic dialers and spam fax. This law implemented in 1991 was amended by the FCC in 2003 that changed the rules to include the national do not call list. Along with making these solicitation calls illegal, the law also states that a commission must continue to update the rules and procedures used are the most effective and efficient available.

An easy way to break down what TCPA is exactly would be that it is against the law for a company to initiate a phone call, text message or fax without that person’s permission through prior express invitation, an existing business relationship, or for a nonprofit organization. These unsolicited contacts do also include calls made to a cell phone or any other carrier service for which you could be charged for the call.

If you are having issues like this, you do have rights. You can even file a lawsuit if a company violates TCPA. The rewards of filing a lawsuit could be small, however the reward or recovery could be any money you lost because of the calls; your actual costs from cell phone providers, etc. or you could receive up to $500 in damages for each violation. If you are able to prove the offender knowingly violated this law, your award could be up to tripled, amounting to $1500 per instance.

Like any other successful consumer fraud case, there is no cost to hire an attorney to take on these cases as the lawyer fees get paid by the defendants and only if you win the case.

There are a lot of terrible laws out there that do nothing at all, but this is a great one because it can actually stop spammers.  One successful lawsuit is usually enough to deter any company from continuing this annoying practice.  And it’s not just scammers who are doing this.  Many legitimate companies have young marketing staffers who simply don’t know what the law is and think that junk calling or texting is a great way to reach people even though they would never want those contacts themselves.

If you have questions about a possible lawsuit or want a referral, please contact us at any time. We are based out of Chicago, but because these are Federal cases, we know lawyers who handle them anywhere in the country.

Illinois Divorce- When Your Soon To Be Ex Files A Crazy Motion

Probably the most common area of law that we help with is Illinois divorce law.  Plain and simple there are just more of those cases than any other area of law.  We help people find the right attorney no matter what their situation is, but divorce is clearly the most common.

While some divorces are clean breaks, many involve hurt feelings and people acting on emotion instead of logic. Because of this, crazy things can happen that can, well, drive you crazy.

The #1 problem is from soon to be ex’s acting like a jerk and doing whatever they can to get under your skin.  A good lawyer can’t always do something about that, but we can try.

The #2 problem though is created by lawyers.  A recent caller to my office is typical of the problems a bad attorney can create in this situation.  My caller is a stay at home mom with three kids.  She and her husband both want the divorce, although he moved a little faster than she did and got a lawyer.

The lawyer had her served with a petition for dissolution of marriage, e.g. a divorce petition.  She didn’t know it was coming, but it didn’t rattle her.  What did cause a problem were the contents of the petition.  In it, the lawyer asked that she move out of the maritial home, give him full custody of the kids with no visitation for her, pay him child support, pay him his lawyer fees, give up any rights to the joint bank account or other marital property and have her pay him maintenance.  Mind you that one of the kids has special needs, she’s been a stay at home mom for 15 years and while she did a couple years of college, he’s a medical doctor pulling in a mid six figure salary.

Needless to say, she was stunned and then pissed off and then a little bit frightened.  Her husband gave her no indication that this was coming and beyond that, he hardly spends any time with the kids.  She called me and was ready to go to war.

We’ve been helping people find the best lawyer for their case for almost 15 years via our state wide network of experienced, successful law firms.  The lawyers we recommend fight for their clients and they are people who we as attorneys would hire ourselves.

We don’t just recommend lawyers though, we also provide free legal guidance.  Part of being a good attorney is helping take the emotion out of the situation and getting a client to be goal focused.

What I explained to this caller is that her husband clearly has a terrible attorney.  Basically the lawyer presented what would be an extreme best case scenario.  Lawyers without skills will use this tactic so they can have a lot of room to negotiate on a case and act as if they are really compromising when they give up on some of their demands.  It’s a pretty amateur move.  It would be similar to the agent for a baseball player who hit .250 the year before asking the team to pay him $30 million a year so he won’t look as unreasonable when he asks for $10 million a year.  I can tell you that it doesn’t work in sports and doesn’t work on good attorneys.

I was able to talk this very nice woman off the ledge and let her know that based on what she told me, she’ll actually end up getting just about everything her husband’s lawyer was asking for if this goes to court.  It’s clear that either his attorney is inexperienced or is just trying to create a battle to run up some huge bill.  It’s really his client who will be hurt by this.

These types of motions aren’t much different than when your ex says something like, “You’ll never see the kids again!” It’s really easy to let them get you riled up, but you have to take emotion out of the equation and remember that they aren’t the Judge and you certainly shouldn’t take legal advice from them.

If your ex or any opponent in a legal case is making you insane, the best advice I can give you is to relax, take a step back and put your case in the hands of someone who will fight for you, but isn’t going to make emotional decisions.  Of course helping you find that person is what we do better than anyone else.  Fill out our contact form to the right if you’d like our help.  It’s free and confidential.

Illinois pre-nuptial agreements, what you need to know

A very nice guy called me looking for an experienced lawyer in Chicago to prepare a pre-nuptial agreement. He didn’t really want one, but his wealthy Dad said that if he didn’t have one he’d be cut out of his inheritance.

The two of us had a long conversation and I was able to refer him to a top lawyer who should be able to help.  During the conversation a lot of information came up which I thought would be relevant to anyone who is looking to have a pre-nup done.

1. Don’t delay. Any pre-nup done under the gun, usually 30 days or less before the wedding, is likely to get voided. My caller was doing this six months in advance and that’s the right time to do it.

2. There are two of you, but each of you can’t use the same lawyer or law firm. The lawyer is supposed to look out for only one of you.  Get your own attorney and make sure your fiance has their own too or it might not hold up.

3. Anything can be in the document.  What you put in there is based on your goals and what’s unique to you. It can be as simple as listing everything acquired before the marriage or more specifically focused on certain items.  It can also change over time based on the length of the marriage.  One NFL player we were involved with had a pre-nup that said his wife would get $1 million cash if they got divorced and nothing else.  If you both agree to it, it’s usually legal.

4. If you own a house before the marriage and only your name is on the title, it’s your house.  You don’t need a pre-nuptial agreement for that.  Just don’t add your fiance/spouse to the title.

5. Same is true if you inherit money.  If you don’t put those dollars in a joint bank account or otherwise co-mingle them, you can keep that money. It’s when it’s not clear that you kept the money separate that you have problems.

By the way, it’s a great idea for everyone to have one of these agreements in place. Nobody goes in to a marriage expecting that they’ll get divorced some day, but of course it happens.  Much like when business partners break up and distribute assets based on a partnership agreement, a pre-nup can save you lots of time and money for lawyers if something goes wrong and the marriage ends. It’s not romantic to think of it this way, but in a marriage you really are just business partners, legally speaking.

This can be confusing, so if you have any questions or want an attorney referral, fill out our contact form to the right or call us at (312) 346-5320 for a free, confidential consult.

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