Five Tips

What is Medical Malpractice?
Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error.

What Types of Medical Malpractice Lawsuits Do We Handle?
Prescription drug errors that result in serious injuries
Surgical errors that result in serious injuries
Misdiagnosis’ that result in serious injuries
Birth injuries that result in serious injuries
In all cases, negligence and serious or catastrophic injury must have occurred.

Is a misdiagnosis considered medical malpractice?
Sometimes a misdiagnosis will be considered medical malpractice. The determining factor in these cases would be the ongoing and continuing medical issues due to the misdiagnosis. For instance, if you have a hairline fracture in your foot that is discovered a week after you went to the emergency room, that heals normally you would not have a case. However, if a doctor misdiagnosed cancer as just being a cyst, and no further follow up occurred, you may have a case.

Does Illinois limit damages in a medical malpractice case?
Illinois does not currently have limit to damages awarded in a medical malpractice case.

How do I find a medical malpractice attorney for my specific case?
In the same way you would see a specific doctor or specialist, make sure that you look for an attorney who focuses day by day in medical malpractice. You wouldn’t go see a cardiologist for an earache; nor should you use a divorce attorney for a medical malpractice case. An attorney who focuses day by day in medical malpractice will be able to keep your best interests intact at all times.

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.

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.

You’ll likely get a lot of unsolicited advice if you’re going through a divorce. It can leave you overwhelmed and not knowing what to do. We won’t claim to give you the ultimate secret to a perfect divorce. These things are inherently messy and uncomfortable. But here are a few tips that might help you survive and perhaps get what you want in the end.

– Everything that you and your spouse acquired during your marriage, from the couch you bought to the amount of retirement savings you built up, and even a business your spouse or you started, is considered “marital property.” The law says both spouses are entitled to a portion of any marital property. It usually doesn’t matter whose name is on it or whose salary went to pay for it.

– Child custody and visitation are based on the best interests of the child. This is a legal standard that the judge uses in making any orders on where a child lives, who has decision-making power, etc. Don’t make the mistake of assuming you’ll get what you want because of the status quo. Details matter. Document the quality time you spend with your child or children and what you provide them with on a daily basis. Make the same notes on what your spouse contributes.

– Set goals, and try to focus on the long term. We know you can’t take all of the emotion out of a divorce, but the more you can the better your decisions will be. Think about what you want for yourself and your children in five years, not just in the coming months.

– Hire a good lawyer. We know this seems like obvious advice coming from a bunch of lawyers, but if you don’t have someone to guide you through the process and fight for your goals, you might end up far from where you had hoped. You can’t expect any help from your spouse’s lawyer or the judge, so it’s really a risk to handle things on your own or with a lawyer who doesn’t have the experience to get things done.

– If your divorce is messy, don’t take any advice from your spouse. And don’t let them get you into a state of mind where you are fearful that you’ll lose everything. Don’t let threats get to you. Getting support from family and friends is important, but only take legal advice from your lawyer.

If you have questions about any of this or want an attorney referral, call us at (312) 346-5320 for a confidential, free, consultation with one of our staff attorneys.

Whether to go after child support is a big decision. Maybe the other parent is already paying what they can. Maybe you don’t even know where they are. In either case, a family law attorney would likely advise that you get an official order from the court. Here are some things to know.

1. Many people pay based on income. Illinois law has a formula for figuring out how much child support should be paid. The judge can alter the formula if the circumstances warrant a change. And parents can always agree to a different arrangement, although we don’t recommend agreeing to a child support amount without advice from an experienced family law attorney. The law sets forth minimum guideline amounts based on the paying parent’s net income and the number of children in need of support: 20% for 1 child; 28% for 2 children; 32% for 3; 40% for 4; 45% for 5; and 50% for 6 or more children.
2. Get a child support order. Although the parent making the payments might do so without a court order, it’s wise to have one anyway. If your situation ever changes and payments stop, you can enforce the order. Enforcement can include wage garnishment, but without a court order you won’t be able to go that route. Don’t rely on oral promises.
3. Child support for college is not automatic. If you want child support to continue past the age of 18, you can get a court order for that, as well. Not every request is granted. The judge will take into consideration the income of both parents, the income (if any) of the child, as well as the child’s academic standing. Child support for college can include tuition, as well as room and board and other expenses, including healthcare.
4. You can modify child support in some cases. If there is a court order in place, but things change, you can request a modification. Just know that you will have to prove to the judge that there has been a significant change in circumstances. Sometimes, the parent making child support payments faces sudden financial hardship. If this happens to you, don’t stop paying without first going to court and modifying your obligation.
5. There is no deadline on collecting court-ordered support payments. Once you have a child support order in place, those payments can be collected if unpaid. We hear from some children wondering if they can collect past-due child support that their parent failed to pay when they were younger. The answer is that the child themselves cannot collect, but the parent can, if they had a court order. There is no deadline, so it’s never too late for that parent to collect past-due payments.

When hiring an attorney for a child support issue in Illinois, look for someone who focuses their practice on child support law and helping parents exercise their rights in this area.  We can help you find the right law firm. Contact us any time for a free consultation.

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 our help in getting the best firm for your case.

Attorney fees don’t have to be daunting. In fact, depending on your situation, you might not have to pay anything unless your case is successful. Here are a few things to know about the different types of attorney fees.

1. A contingency fee is only paid if you win. A contingency fee is contingent on winning, or settling, your case. If you win, then your attorney takes a portion as his or her fee. This type of fee is common injury cases, including accidents, workers’ compensation and medical malpractice. If you are suing or attempting to collect damages (money), then you typically will pay a contingency fee. There shouldn’t be any up-front cost, which allows you to take legal action without significant risk. If you lose, there is no fee.
2. A retainer is a lump sum paid up front. Retainers are common in hourly fee cases, as opposed to the contingency cases described above. The way it works is that you pay your attorney a couple thousand dollars, for example, and they take their hourly fee from that retainer as they earn it. You might be required to refill the retainer.
3. Flat rates are more and more common. A flat rate is just that. You pay a set amount for legal work. Some types of cases are impossible to predict; a seemingly simple case can suddenly get complicated and require many hours of work. It wouldn’t be smart for an attorney to charge a flat rate in an area of law that tends to be unpredictable. So for that reason, you’re likely to find flat rates on things that are more definitive, such as drafting a single document, filing for a simplified divorce, etc.
4. You should always ask an attorney about his or her fees. It’s not rude to talk about fees right off the bat – it’s realistic. Your attorney, or potential attorney, might need to gather more information about your case first, but they should be prepared to talk to you about their fees early on. In fact, don’t agree to hire them until you have this conversation.
5. Sign a fee agreement. Follow #4 above, and then get it in writing. This benefits both sides, so it shouldn’t be a problem to get a signed fee agreement. It should include the hourly rate or flat fee, as well as the retainer requirements if applicable. If you have questions about anything, now is the time to ask.

All of your fee-related questions can be answered at an initial consultation, which is often free of charge. If you need help finding a particular type of attorney, just let us know.

There’s a lot of information out there, including many websites that say you can get an estate plan online. The challenge is knowing how to fit all of that information into your own unique situation. So, here are five things we think you should know about estate planning if you are looking into getting documents prepared…

1. Be wary of online wills. Every person and family is different, and those differences can affect and dictate how your estate plan is written. We always suggest using an experienced attorney rather than a website when it comes to something as important as this. That said, you certainly can use the internet to do your research, which will help you make the most of your meetings with your attorney and know what questions to ask.
2. Find a focused attorney. There are hundreds of attorneys to choose from. Don’t have your workers’ compensation attorney write up your will just because you already know them (unless it happens to be something they have significant experience with). If you are going to hire an attorney, it makes sense to hire someone who has as much relevant legal knowledge as possible. This usually means that they focus on one or two areas of law.
3. You might need more than just a will. The reason it’s called an estate plan is because it’s a set of documents that work together. A will is important, but there are other instruments that do things a will cannot. A power of attorney is one. There are actually two – one for finances and one for health care decisions. Both are good to have. You might also consider a trust to make property transfer easier upon your death or if you have concerns about privacy.
4. What happens if you don’t have a will. If you don’t create an inheritance plan, then one will be created for you. The law imposes a generic plan on anyone who dies without a will. It’s called dying “intestate.” In Illinois, your assets go to your spouse and children. This might seem good enough, but the law gives half of your estate to your spouse and half to your children; many people prefer to have their entire estate go to their spouse, especially if their children are young. A will can set it up exactly how you want it.
5. It’s a work in progress. An outdated estate plan can be as much trouble as having no estate plan at all. You and your lawyer should review your documents periodically. Some important times to review are when there has been a change in marital status, additions to your family or assets, or a change in the law.

There’s more to know, but that’s a start. Don’t hesitate to get an estate plan because you feel like it’s an unknown. A good attorney will not only draft you a solid plan, but he or she will explain everything in a way that makes sense.

1. Sign a partner agreement. Even if you and your business partner have known each other for years and are on the same page, you’ll still want to put an agreement in place. The reason to do this is protect the business you’re working so hard to build. For example, if one of you needs to get out of the business because of something unexpected (illness, disability, death), then you want to have a plan for how that partner’s share of the business will be handled. The agreement also lays out the roles and responsibilities of each partner, which can avoid a big argument down the road. And if there is a disagreement at some point, your partner agreement can be a lifesaver if it includes a good framework for conflict resolution.
2. Choose the best type of entity. Are you going to form an LLC or a corporation? Each one offers different pros and cons, so make sure you’re choosing the right one for your particular situation. An LLC is somewhat less formal of an entity. It has a simpler setup and allows you to share profits and losses more easily. However, it’s more expensive in Illinois. Formal incorporation is less flexible, but might be a better option if you have investors.
3. Protect your ideas. “Intellectual property” is your ideas, designs, names, etc. You want to make sure you have ownership of your intellectual property, and at the same time that someone else doesn’t already own something similar that could cause a problem. You also want to make sure you have agreements in place so that individuals or other companies that you work with can’t steal your work.
4. Get insurance. Workers’ compensation insurance is required for most businesses in Illinois and failing to get workers’ compensation insurance is a felony. Illinois law protects workers who are injured on the job, regardless of whose fault it is. If you end up on the hook for a case and you don’t have insurance, it could bankrupt you. There are other types of insurance you may need, as well, depending on the type of business you’re in.
5. Be a good boss. Treat your employees the way you would want to be treated. Understand your obligations when it comes to employees, both legally and ethically. Investing in your workforce can really pay off.

Feeling overwhelmed? There are Illinois attorneys who focus their entire practice on helping people start businesses. We only recommend those who have tons of experience and a track record of success.  Give us a call or fill out the form to the right.  We’d be happy to provide a free consultation.

Written by Michael Helfand

When a business or individual owes you money, it can be difficult to collect. It can be awkward and frustrating, and sometimes you’re too busy to constantly follow up on past-due payments. Here are a few tips on collecting a debt in Illinois.

1. If you haven’t already done so, make several attempts to collect your money. It might not work, but it’s worth a try. Put your requests in writing, and include a clear deadline for payment. When it becomes clear that you need to do more, call in help.
2. Contact an attorney who knows what they’re doing to help you demand payment. A letter on your attorney’s letterhead can be just the thing to get the bills paid. Usually a demand letter also includes a consequence for not paying by a certain date – legal action.
3. Your attorney can file a lawsuit as soon as you wish in most cases. In fact, if you’ve tried to collect the debt and failed, you might want your attorney to skip right to this step.  Many of the lawyers we recommend will work on a contingency basis which means that they only get paid if they actually make a recovery.
4. If the debtor doesn’t respond to the lawsuit, you win automatically. They only have a certain amount of time to respond and a chronic debtor might let the deadline come and go. This means that you will get a judgment in your favor. You win. The court says that the other side must pay.
5. However, the existence of a judgment doesn’t mean a check will come in the mail. You might have to force payment. The judgment allows you to pursue wage garnishment, for example. An experienced debt collection attorney can help you determine whether the debtor is hiding assets to avoid paying, which is sometimes the case.

If it’s gotten to the point where you don’t know what else to do, it might be time to seek the help of a debt collection attorney who knows how to quickly and effectively collect what you’re owed. If you’re a business owner, unpaid invoices can put your business at risk. Contact us if you have questions.

Written by Michael Helfand

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Clearing your record, when possible, can make a big difference in your life. It can help you get a job, keep your job, or otherwise move on from something that happened in your past.

1. Sealing vs. expunging. These terms both refer to clearing up your record, but they mean slightly different things. Sealing a record hides it from the general public. Most employers can’t see a sealed record when they do a background check. However, some employers can, as well as law enforcement. An expungement technically deletes the record rather than just hiding it, however law enforcement still may have access.

2. Nothing happens automatically. If you want to clean up your record, you have to take action. When a case gets dismissed in court or you are found not guilty, your record will still carry information about your arrest and charges. Start with the local police department and request a copy of your record.
    
3. Other things on your record matter. Expungement is generally available for cases in which you were found not guilty or cases that were dismissed or ended in court supervision. However, if you have other convictions on your record, you are usually ineligible for expungement. You may be able to seal part of your record, however.
    
4. The law is very specific. Even if you are eligible to seal or expunge parts (or all) of your record, there is usually a waiting period. Also, there are exceptions. For example, a DUI cannot be sealed or expunged in Illinois, even if it ended in court supervision. Talking to an attorney is important because your individual charges, the outcome and any past record all are relevant.
    
5. The law might be changing in Illinois. In general, felonies cannot be sealed. Illinois law has some exceptions to this rule. Some class 4 felonies for drug possession and prostitution, for example, can be sealed. In addition, some legislators have been pushing to add more things to this list.

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Written by Michael Helfand

If you’re thinking about signing a prenuptial agreement before your upcoming wedding, here are a few things to keep in mind.

1. Don’t wait until the last minute. It may not be a fun thing to talk about, but if you wait too long it’s not going to be any easier. Also, prenups that are signed under pressure, such as the days leading up to the ceremony, have the potential to be found invalid if challenged later on.
2. Put it all out there. If you don’t tell your future spouse all of your financial information, the prenup won’t hold up. Each person must know exactly what they’re dealing with in order to enter into a valid prenuptial agreement.
3. Get your own attorney. If you have only one attorney, then one of you is not represented. Even though it might seem like no big deal, you and your future spouse technically have competing interests when it comes to a prenuptial agreement. Having separate attorneys will help ensure that the agreement is balanced.
4. Fairness is required. A prenuptial agreement is required to be “fair.” However, this doesn’t mean 50/50. If you follow the rules, get your own attorney and disclose everything, you’ll likely end up with a fair agreement.
5. A prenup isn’t just for the wealthy. A prenuptial agreement can address many issues that might come up if a couple decides to divorce. It can help you keep your separate property separate, but it also can deal with real estate, spousal support, mortgages, bank accounts, benefits, etc.

Written by Michael Helfand

Each Wednesday, we put together five tips about an area of Illinois law. Today’s tips are about wrongful death lawsuits.

1. There is a statute of limitations for almost every type of lawsuit. This means that there is a strict deadline for filing your case. In Illinois, you generally have two years from the date of death to file a lawsuit for wrongful death. There are exceptions that can extend the time limit, but there also are situations where a wrongful death suit has a much shorter deadline. Get legal advice early on so you don’t miss it.
2. Attorneys charge a contingency fee in wrongful death cases (and most other types of personal injury cases). This means that you pay nothing up front. Your attorney gets a fee only if they win or settle your case. You then pay a fee out of the amount you recover. If you lose, there is no fee.
3. Wrongful death lawsuits are against the person or entity responsible for your loved one’s death. The person who sues is often a family member (child, spouse). In general, they have to prove that the defendant was negligent and that their negligence caused the death of their loved one. They also have to prove damages.
4. The damages, or amount of monetary loss, in a wrongful death case can include loss of future earnings and benefits of the deceased, medical and funeral costs, and loss of companionship, to name a few. The value of a case can vary widely, based partly on the income of the deceased and whether they were supporting a family.
5. Wrongful death cases can come out of almost any act of negligence or misconduct. A few common types of cases are those based on medical mistakes, vehicle accidents, work accidents, and deaths caused by defective or dangerous products.

There are attorneys in Illinois who have specific and extensive experience with wrongful death cases. Talking to one of them is the best place to start. If you need a referral, let us know.

Written by Michael Helfand

See also: Do I Have A Lawsuit – Illinois Wrongful Death Law?