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Trial Law

What's your background as a trial lawyer?

John Cooney: My father founded our firm in 1958. Growing up, I was riveted by his work and absorbed many of his values and wisdom. My first job as a lawyer was at the State's Attorney's office, where meeting with victims and their families gave me an even greater perspective on how wrongful acts damage not just the person immediately harmed, but they tear apart everyone involved. For a rookie lawyer, the experience doing courtroom work, interviewing witnesses, picking juries, planning trial strategies and arguing cases to a jury really can't be matched. Making the change from prosecutor to personal injury lawyer was natural. In both types of practice, you have a person who's been wronged, hurt and damaged. As a civil lawyer I help clients put their lives back together, or help a family that's lost a loved one live a close facsimile of the life that the person killed would have provided for them. I can make sure they get the medical and psychological help that they need and deserve.

Robert Clifford: I grew up on Chicago's far South Side. As a personal injury and wrongful death lawyer for more than 40 years, I always have represented clients in negligence and wrongful death cases. I've represented people from all walks of life who needed my help in negotiating their way through the civil justice system. One of the first cases I handled was the terrible tragedy involving the crash of a commercial airliner taking off from O'Hare Airport. Since then, I've been involved in nearly every major commercial airline crash in the United States as well as many crashes in Europe. I'm proud to say that I think that the work of trial lawyers has made the skies safer. And my work with patients who have been harmed due to medical negligence has made the area of medical care safer. I'm not afraid to take on big corporations.

Timothy Cavanagh: I've been lucky enough to have spent my entire career as a trial lawyer representing victims. I began my career as a trial attorney with the Illinois Attorney General's Office. I was sworn into the Illinois Bar on Nov. 6, 1987, and by the end of that month I was working on a three-week trial in East St. Louis. I spent several years trying cases for the State of Illinois before I went into private practice at two different law firms. In 1997, I left to start my own firm, which I've had for 21 years. In the last 30 years, I've tried approximately 50 cases. Since beginning my own firm in 1997, I've had over 60 verdicts and settlements in excess of $1 million.

Timothy Tomasik: I gained early courtroom experience at the Cook County State's Attorney's Office, where I tried a number of high-profile murder and sexual assault jury trials. In 1998, I transitioned into civil trial work where I now represent victims in matters involving medical malpractice, product liability, trucking and other transportation accidents. In 2015, The National Law Journal recognized the Jacobs v. Yellow Cab verdict where I was co-counsel for the victim as the No. 1 verdict in Illinois and 25th largest in the nation. As a member of the faculty of the National Trial Advocacy College at the University of Virginia Law School, I'm passing on the lessons I have learned in the courtroom to the next generation of trial lawyers.

How do trial lawyers differ from lawyers in other practice areas?

RC: Trial lawyers are a fearless bunch. We have to be prepared to be the "little guy" in a David-and-Goliath situation. We have to work hard to complete the case to the very end, not settling short for the sake of ending the matter. But, most importantly, we have to listen to our clients. Trial lawyers have to be willing to go that extra step to help their clients so that they know that the loss of a loved one wasn't in vain. I've handled a case that improved the 911 system. In another case, we helped to institute the Red Watch Band program on college campuses across the country to help students recognize when it's time to help a fellow student who may have had too much to drink. Real trial lawyers want to help people; deep down they became lawyers for that reason.

TC: Trial lawyers are judged on their wins and losses. On the plaintiff's side, we're more entrepreneurial as we shoulder the expense of the case and don't get compensated until the end of the case—and only if we prevail. It's different from most lawyers who bill hourly and it means that we take on an inordinate amount of risk when we get involved in a case. So, it's really important for us to analyze a case immediately when we get it to decide whether we want to get involved. The system is designed so that everyone has access to the courthouse. Whether you're rich or poor, it doesn't matter. We can take on the biggest corporations in the world. If you've been wronged, you can bring your case and have it heard by 12 citizens.

JC: It's more personal than other types of practice. I know my clients. I know their hopes for their children. I know their worries about losing their house due to medical bills. I know the night terrors that awaken them when they relive their accident in their dreams. My job is find out how they were hurt and who was responsible, and then to tell their stories within a legal and human framework. Trial lawyers also bear a great responsibility to society, particularly now. We see what happens when industries are "deregulated." We see what happens when safety inspections aren't done because agencies are defunded. We represent the victims of deregulation and defunding. If a refinery blows up and kills and maims a dozen workers because it got a waiver on replacing a safety device, it's our job to find that out and make it known. If a drug gets approved because it got to skip FDA scrutiny, it's our job to publicize the damage it does to our clients. If we're good, and if we're successful, that drug will come off the market and those refineries will install the safety devices. Ironically, the cost of the device or the trial that should have been done in the first place will usually be a lot less than the cost of defending lawsuits and paying verdicts.

What are some of the most common types of cases you take on?

JC: We're active in asbestos litigation, particularly mesothelioma victims and their families. There was so much construction in Chicago during the time that asbestos was commonly used that unfortunately there are a great many of those cases. It takes 20 to 40 years for the cancer to be detected, so people who worked in construction, heavy industry or abatement in the 1980s and 1990s are still at risk. We handle a lot of transportation injury cases. Chicago is still a rail capital and railroad workers perform some of the most dangerous work. Trucking, ATV and airplane crashes are less common, but obviously devastating. Construction industry cases run the gamut from the refinery explosion to jobsite accidents and falls. Our firm also does quite a bit of product liability litigation. One of the interesting challenges today is figuring out what country a dangerous and defective product comes from, since there are so many component parts from all over the globe.

RC: Besides aviation and motor vehicle cases, I often represent clients in medical malpractice cases. Clifford Law Offices also handles premises liability and construction accident cases where proper precautions were not followed. One of our cases was the fire in the Cook County Administration Building in 2003. People were needlessly injured and killed due to the troubled 911 response system and the lack of appropriate building evacuation procedures. One of the most publicized cases was Rachel Barton, the violinist who was caught in the doors of a Metra train and dragged nearly 300 feet. She miraculously survived but suffered severe injuries. That month-long trial was a testament to her courage to make traveling safer for everyone on commuter trains. The lawyers at my firm also handle class-action and consumer lawsuits such as the talc cases that have been found to cause cancer in women. All of these people need the expertise of an experienced trial lawyer.

TT: We take cases where we can help someone who truly needs legal assistance. Often, these are not high-value cases, but rather matters where a person's life has been altered due to the wrongdoing of someone else and finds, for perhaps the first and only time in their lives, that they need a lawyer. It's gratifying to be able to stand up in court and say, "I'm her lawyer." Dozens of people I've represented over the years call to check in or send me an email to thank me for helping them with their case. It's always terrific to get a big result against a Fortune 500 company or a hospital, but the most important cases to our firm are cases where we've made a difference in people's lives and they understand that our system of justice has worked on their behalf.

TC: We handle all personal injury cases—trucking, construction, medical malpractice, premises liability, civil rights. We had a case that was set for trial on Oct. 10 that settled for $6 million a week before trial. The case involved a construction worker who was killed in a roadway construction zone when a truck drove into the construction zone and hit him. We discovered that the contractors on the site had failed to lay out the appropriate barricades that would have steered the truck away from the construction worker.

When should an individual consult with a trial lawyer versus another type of lawyer?

RC: Law is becoming much like medicine in that lawyers concentrate their practices in a specific practice area. Family lawyers handle divorce and custody matters. Patent lawyers handle intellectual property matters. Trial lawyers handle personal injury and wrongful death matters. People who are injured need to go to that type of lawyer who has the expertise and is prepared to take a case to trial and through an appeal, if necessary. When an individual has been injured or one of their family members has died under questionable circumstances, it's time to consult a trial lawyer. The potential client should save all relevant records to provide to the trial lawyer so that a decision can be made as to whether the case is viable.

JC: Generally, if a person is hurt, a trial lawyer will be in the best position to assess whether they have a cause of action, or right to sue. If someone knows a lawyer for other reasons—maybe a divorce or real estate transaction—and is comfortable with her or him, they should ask for a recommendation. If you came to me looking for a patent or a divorce I'd recommend a lawyer in the appropriate field, and those lawyers do the same when asked.

TC: Whenever you're victimized you should consult with a trial lawyer, and right away. Any insurance company or corporation involved will have its investigators, adjusters and lawyers working immediately after the event happens. You need someone working on it, too. You need someone with experience who's going to stand up for you and your interests. It's also crucial that you find a trial lawyer who is going to act fast and preserve all the evidence, whether that's audio recordings, video tapes, vehicles, etc. Too often crucial evidence gets destroyed because people act too slowly.

What's the state of lawsuits in Illinois?

TC: According to the Illinois Trial Lawyers Association, the total number of civil case filings in Illinois has dropped 43 percent since 2010. In Cook County alone, the number of civil cases filed dropped 51 percent between 2010 and 2015. Medical malpractice cases have dropped 32 percent since 2003. The number of workers compensation cases has also dropped 18 percent since 2011. There are a number of reasons for this drop, including an increase in arbitration and forced arbitration, but the impact politics has had on these numbers should not be underemphasized. There are political forces out there that are trying to take away people's access to the courthouse. I fight for that access every day.

JC: Lawsuit filings being down throughout the state is a good thing from my perspective, because I can move a case through the judicial system more quickly. I believe more cases settle before trial than in previous decades, especially product liability cases. While I'd like to say it's because I and my trial bar companions have incredible negotiating talent, it's more likely an economic decision by insurers and corporations. Trials are expensive and the risk of a very high verdict that sets a public "benchmark" for a certain type of injury caused by a mass-produced product is something that a lot of defendants want to avoid.

TT: Illinois is a great state for big business. We have a highly educated workforce and skilled workers at every level. The notion of frivolous lawsuits discouraging business and clogging our courts is a myth. Splashy headlines about jackpot justice are inaccurate. Most plaintiffs who win in tort cases receive modest awards. The vast majority of the time damages awarded are $25,000 or less.

RC: The number of lawsuits in Illinois involving victims of negligence actually has decreased over the years. So-called "tort reformers," backed by large business and insurance interests, would have the public believe otherwise.

What impact have recent lawsuits had on certain classes of professionals, such as doctors, or businesses that are based here—or who are thinking of moving to Illinois?

TC: Illinois' number of physicians per its citizens has outpaced neighboring states in the last decade and the number of physicians practicing in medical specialties, like OB/GYN and neurosurgery, increased between 2009 and 2013. A 2010 study from the University of Iowa showed that the most important deciding factors for doctors choosing where to practice were family location, relationships in the practice, income and work schedule. Professional liability ranked near the bottom of their concerns.

TT: It's a completely fabricated story that Illinois has a "lawsuit crisis" and doctors are fleeing the state. The number of physicians licensed and engaged in the practice of medicine in Illinois has never declined. In fact, as of 2014, there were 34,970 active physicians in Illinois compared to 33,594 in 2010. Lawsuits keep industries in check and improve the safety of products and medical care.

RC: Several studies have documented that the impact of lawsuits on the cost of insurance and the bottom line of businesses is miniscule. While business executives continue to make bigger paychecks and bonuses, insurance premiums continue to rise, while the amount paid out to plaintiffs in tort cases continues to decrease or level off. Illinois remains a viable state for doctors and other professionals in which to work. That's evidenced by the number of hospitals and healthcare workers available.

JC: If given a choice between living in a state where there's no right to sue a person or company that caused you to lose a limb, gave you a disease, poisoned your lungs, killed your loved one, showed up in the delivery room too late to save a distressed baby, or knowingly sold you a deadly product, or a state that recognized citizens' right to redress their harm and be made whole, I would choose the latter.

How do you see the practice of trial lawyers changing in the next 10 years?

TT: In the future, to be successful in presenting a case to a jury, younger lawyers are going to have to work harder to master the art of advocacy. This is especially true as direct, face-to-face communication is eroded by the more indirect means of communication—texting, snapchatting and the use of Instagram—employed by today's youth and future jurors. Separately, trial lawyers from both the plaintiff and defense side of the aisle must continue to fight against mandatory arbitration clauses that rob Americans of their right to a trial by jury and banish them from the courthouse. Arbitration clauses only protect big business and hurt individuals and consumers. They erode Americans' precious right to trial by jury as guaranteed by the Constitution's 7th Amendment, and essentially lock victims out of the courtroom.

TC: Already there have been incredible advances in courtroom technology. Computer models, high-tech graphics, video reconstructions—all of this makes the story more interesting and engaging to the juror. It also allows us as trial lawyers to tell more accurate stories. We're able to show jurors how certain safety measures could have prevented a crash in a way we have not been able to do in the past. Just last week, we had a computer simulation created that showed where safety drums should have been placed that would have diverted a truck from entering a construction zone and killing a worker. This type of demonstrative exhibit was not available 10 years ago. I also expect that the court system will continue to become more efficient. When I started private practice, cases often lasted eight to 10 years. That's unheard of now, when a simple car crash can go to trial within 18 months. A complex medical malpractice case can go to trial in 2.5 years. I expect we'll see even greater improvements in efficiency as technology continues to develop and the courts figure out the best ways to take advantage of it.

RC: Aside from technology, law firms will function in an increasingly more paperless world. We'll also see the growing impact of the internet and instant communication, as people will want immediate answers to their questions because they know that's possible. However, that may not always be the case if a client wants a thoughtful, well-researched opinion on a particular matter. I also think there will be more advertising by lawyers, which will make it more difficult for potential clients and those who are harmed to make an informed decision on what lawyer to hire. People will have to be careful about who they choose to take on their cases. It's not the fastest who wins the race, it's the lawyer who's willing to see your case to the end—even if that means going to trial without a quick settlement.

JC: There are going to be new laws defining liability. If a driverless car runs someone over, who's at fault? As more and more surgeries are performed robotically, where does the liability lie when something goes wrong? What about websites purporting to give medical, legal or construction advice? Can the site owner be liable? Those are going to be difficult questions for lawyers and insurance companies. We're also going to see some of the current laws change. In a globalized, internet-fueled world, what constitutes nationality and jurisdiction? We're far from the days where most companies are local, or even regional, and products circulate worldwide. I encourage new lawyers and future lawyers to become more familiar with international trade agreements and treaties, since these will play a large role in determining where a defendant can be sued.

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