In my last post, I talked about the hot topic of tort reform, and how it discriminates against children, stay at home parents, and the elderly. Today, we take a look at the position of the law firm whose goal it is to protect the innocent victim, and restore them to the best new reality they may be able to obtain and deserve.
A recent article discussing the very popular GM recall case, discussed how painful it was for a family to hear that the “…value of their daughter’s lost life was too small to justify the expense and risk of litigation”. Trust me, this is not what a lawyer wants to tell a family, especially one that is grieving.
In a contingent fee practice law firms only are receive a fee if they are successful in making a recovery for their client. The law firms advance the cost of the litigation and recover the costs along with the fee upon the successful completion of the case. This procedure allows the average citizen to gain access to legal representation without having to pay an upfront retainer or shoulder the heavy cost burden of litigation. Attorneys handling complex product liability or medical malpractice cases invest a tremendous amount of time and expense during the investigation and prosecution of these cases.If the maximum recovery of a case is capped at $300,000, it may dissuade a firm from taking on the case. The reality of it is, that at a certain point it is a business decision for the firm.
The state of Illinois has no damage cap. In 1976, 1995 and 2005, the Illinois Supreme Court ruled damage caps as unconstitutional. The Illinois Constitution guarantees the right to trial by jury, and when you put a cap on damages, you have impermissibly restricted that individuals right to trial by jury.
Our neighboring state, Indiana, has wrongful death and medical malpractice damage caps. A few years ago, the lawyers of Mitchell Hoffman and Wolf very literally dealt with a case that rode the line between the two states differing approaches to handling personal injury claims.
Our client was employed by an Illinois company working on the Indiana Toll Road Extension Project. He was standing 500 yards into the Indiana side when a crane fell on him resulting in his death. The deceased was an unmarried engineer who left behind his parents and two siblings. Under the Indiana Wrongful Death Act law the recovery available to our client’s next of kin was capriciously capped at $300,000. Mitchell, Hoffman and Wolf successfully argued that because the deceased worker was employed by an Illinois company pursuant to a contract entered into under Illinois law that the Indiana cap should not apply merely because he was standing on the “wrong” side of the state line. Both the trial and appellate courts agreed with our position and as a result, we were able to obtain a settlement of over $2 million dollars for our clients. The contrasting results under the two systems truly showcases the illogical nature of damage caps.