Should You Settle or Go to Trial? What Really Happens in an Illinois Injury Case

Welcome to Off the Record, Personal Injury Litigation with Michael Copsick. Hello and welcome back to Off the Record, Personal Injury Litigation with Michael Copsick. Michael is a trial-tested Illinois injury lawyer who has tried more than 60 cases to verdict and taken nearly a thousand depositions, including hundreds of doctors as well as experts. He brings a straightforward, no-nonsense approach to help injured people understand how cases really work in the courtroom. I am your host Kevin Rosenquist and today we're talking about when a case should settle and when it really needs to be tried in front of a jury. Michael, welcome. Thank you so much for having me, appreciate it. Yes, since this is our first episode, I'd love to know a little bit about your background. The types of trials you've handled, the types of cases you see most often, and how those experiences shape the way you look at litigation. Sure, so first and foremost, I'm a Personal Injury Attorney. So I represent injured parties, injured people against typically other people with insurance or companies with insurance, so the majority of my trials have been jury trials with some of them coming as bench trials. But for the most part, they are car accidents, slip-and-falls, medical malpractice, work accidents, things of that nature, and I think what has shaped me early on in my career, I actually was a defense attorney for the first year and I was able to quickly kind of assemble a collection of trials. I think I did 12 trials my first year and very lucky that my boss allowed me to represent my clients in the trial as first chair, so the lead attorney rather than kind of someone in the background. So for better or worse, I was out there by myself very early on in my career and I think that really shaped what I was able to do as a plaintiff once I started representing on the other side, on the point of side. Yeah, absolutely. I can definitely see that. So when someone is injured in Illinois, what are the main factors you look at to decide whether a case might settle or whether it's better for it to move towards a jury trial? Yeah, it's a great question. I don't think there's a black and white answer as I'm sure most attorneys would say to any question. It depends. Yeah, exactly. It depends. It depends. I think a lot of times typically you kind of get forced into trying a case, right? I mean, you really only want to try cases that have some type of what I would say is a sex appeal to a jury. You don't want to get up there and say we've got another car accident case with the next strain and the next brain and we're going to ask for all this money when we're really bugging people to be in the jury box to listen to our side of the story. It often doesn't make for something that people really want to hear. They don't want to give people money for nothing. So there's got to be some type of appeal, whether that's visual appeal and photographs, videos of the incident, whether that's with damages and injuries, right? So kind of buzzwords like broken bones and surgeries and hardware, implants, you know, there's so many things with respect to damages and injuries that also help. But ultimately you need something. You need something that you can cling on to. You need something tangible that you know that a jury is going to want to grasp onto. You know that that's going to resonate with the jury and ultimately allow a jury to award, you know, a high amount of money that we typically ask for at trial. But to get back to your question, there's not a black and white answer. I think it really depends on the attorney, the attorney you're up against, the insurance company, what offers are on the table. And sometimes like I said, you get forced into trying a case because of those factors. But if you do go to trial, you certainly need to have something tangible that could appeal to people who really don't want to be there in the first place. It's such a great point because I mean, it's always the joke of getting out of jury duty. So it's not like people want, the typically want to be there. So you have to present something that is like in your term sexy in a way to the to the juries. Are you trying that difficult to do with with many of the cases? No, I don't because you know, once you try so many cases, you realize at a certain point that there's only so many things that do appeal to a jury and you know, given those examples that I gave you. So whether that's, you know, a really a really flashy case that that you have or whether it's not on the flashy end, you're typically arguing the same things on different ends of the spectrum, right? So if you have great photographs of the damage to the vehicle, but low injuries or, you know, low damages or not so serious injuries, I should say, those photographs are going to be what you grasp on to as a trial attorney. Those visuals are something you're going to have to spend money on and put time into. So it's not necessarily something that you can pinpoint kind of in a question and answer. But it really depends on the facts of the case and it depends from client to client. You've tried a lot of cases. You know, you know, you can put in the enormous amount of work and if the core facts aren't on your side, there's only so much you can do. Obviously, there's no amount of lawyering that can escape actual truth a lot of cases. Is that difficult to get across to clients and how do you handle those situations where they're there? I don't want to say 50-50, but where it's not like it doesn't seem like a slam dunk. Yeah. Great question. You know, I always remember a partner of mine back when I was working for a big firm before I opened up my own firm. He used to like to say, you know, if it barks like a dog, if it smells like a dog, if it sheds like a dog, it's a dog and you don't take dogs to trial. You know, some cases are dogs as we say. Some cases just have nothing. Some cases don't have any appeal and it's really difficult to tell a client, someone who has lived with this situation, often times lived with maybe the most serious injuries they've ever had or the most serious accident they've ever been in and you have to get that message across, hey, we're four weeks out from trial. I'm a trial attorney. I'll do it. This is what I do. This is what I'm good at. We might succeed, but the facts of the case are not positive. The facts of the case will not resonate with a jury and that's very difficult to look somebody in the eye and say that the serious thing they went through is ultimately not that serious. It's a difficult conversation to have, but it's one that, you know, as an attorney and someone representing someone's best interest, I've had to do many, many times and I'm comfortable but it's still a difficult situation to discuss. Yeah, I think that you hit it right on the head when you said, you know, you have to tell someone that the pain or inconvenience or rough times that they're going through isn't enough and that's not something people would take, you know, very well the general rule. Exactly. Yeah, it's difficult to explain to somebody but at the same time it's something you absolutely have to do. The last thing I want to do is walk into a trial being set up to lose, just kind of knowing what's going to happen. It's a really tough feeling. I have only felt it a few times because, you know, I rarely go into a trial and we kind of know we have a losing case. Again, we like to only go to trial when we have something that could resonate with a jury. So when we get to that point, it's an uncomfortable feeling and more times and not the clients eventually going to come around and the clients going to understand that our interests are aligned, right. And I hate to make it about money but attorneys want the best result possible. We want the highest verdict. We want the biggest settlement but sometimes we have to take what's on the table and that's a tough pill to swallow for everybody involved. Yeah, no doubt. So when it comes to going to trial, what do you feel like actually influences jurors the most and what tends to separate a well-prepared presentation from a week one? Yeah, great question. You know, the fact, like I said earlier, the facts of the case are the facts and you can't ignore that but what can you do to really improve your position with the jury? I believe that storytelling is really the theme that I try to keep within every trial. I think, you know, as I've grown a little bit older in this line of work, I've seen attorneys, younger attorneys, under-prepared attorneys get up in front of a jury and say, good morning. My name's Michael Copsick. On January 7th, 2024, my client was involved in a very serious incident and they started by the book just like trial advocacy class tells you to do it. When I get up there, I will say something along the lines of, it was raining. It was dark. It was storming and a company who had the responsibility to operate a car safely did not do their job. Ladies and gentlemen, I represent this man, right? So, you know, there's a way to storytelling. There's a way to get your point across in a more dramatic way than just, you know, reading off of a script or reading off of a book or something, you know, an outline that you've prepared. And I think often times, you know, I'm not trying to pat myself on the back, it's easy to separate yourself in the courtroom because most people are under-prepared. Most people, and I say attorneys, are nervous and most attorneys go off of a script. And if you're able to get off the script and if you're able to be dramatic and if you're able to tell a story, that's what resonates with jurors, in my opinion. I can believe that, for sure. Other things you talked about preparation, even the overall delivery, does appearance play into it? How important is it for the client to be, for lack of a better term, likeable? Yeah, so two different things, right? Appearance of attorneys, I think. I wish the answer was different, but I have certainly lost trials to attorneys who don't put on the best appearance, who might be disheveled, might not pay close attention to what they're wearing, or how they're kind of operating in the courtroom. And like I said earlier, sometimes the facts are just the facts, and it doesn't really matter who you go up against. If there's facts on one attorney side, they're probably going to win the case. But with respect to how jurors typically see things, so I think those are two different things. Appearance of kind of the attorneys and how they appear to a jury, and then likeability of a client. I think it's really important, when I prepare to get ready for a trial, I do try to put on my best suits, put on my best ties, and make sure everything is clean, make sure everything's organized on my table, and that I'm not drinking coffee out of a straw, that I'm professional, I'm sitting there with my notes, with my files, with my records, and that's it. I have found though that how I present myself, which is the same every time, doesn't necessarily equate to winning a case. Like we talked about earlier, facts are the facts, and most times, if you have positive facts on your side, you're going to win, and if you have more negative facts, you're probably going to lose. It doesn't matter how you present yourself, and I'll admit, I've lost to plenty of dishevelled attorneys who are not organized, and don't keep as tidy of a corner of the trial room as I do. But with respect to likeability, I think that's far more important. This is how I prep my clients in depositions. I say things like, hey, you don't have to be best friends with the defense attorney, or for purposes of trial, you don't have to be best friends with the jurors. You don't have to crack jokes when you walk in, as a matter of fact, you're not allowed to do those things. But what you have to do is smile when it's time to smile, and it's okay to be emotional, but don't exaggerate, don't overdo it because you think you're going to kind of up the damages of the case. That's really not what jurors resonate with, jurors resonate with reasonable people, likeable people. And whether you're in a deposition, trying to appeal to a defense attorney, who's ultimately going to sign that check, so to speak, you also have to appeal to jurors who are ultimately going to write the award down on the verdict forms. So it's important to be likeable, but it's really important not to stretch, not to exaggerate, not to give the jury a reason to say no. You've spoken with jurors after trials, which is an interesting thing, not everybody knows that that happens. You've heard unfiltered reactions from jurors. What are some of the comments they've shared that reveal what people really notice and care about when they're deciding a case? Yeah, I think it's so interesting to talk to jurors after, you know, as an attorney you've been living with this case for one, two, three years, sometimes, client has been living with the case oftentimes for longer. We've been in the middle of preparation for weeks and sometimes months or longer, really gearing up for this trial. So you know the facts intimately. You know every single scrap of paper in your office, in your file, and it's really fun to talk to the group of jurors that want to talk to you, which is often limited, and it's really only fun when you win, I will admit, it's very difficult to listen to jurors after you've lost and have them tell you why. I can think of one thing off the top of my head where I had a trip and fall in the city of Chicago on a manhole cover, and the manhole cover was depressed into the ground, and it was really a question of what we call the disparity of height, right? So the height between the ground floor and how much the manhole had sunken in. We have to prove that it was up to a certain measurement, and the defense wanted to prove that it was, of course, less and not dangerous. I recall specifically speaking to who turned out to be the four person of the jury who was an engineer, and I remember him telling me that he granularly looked at the tiny circles within the manhole cover that are carved out in metal, and he counted them going down and counted them going across. So he was able to estimate the measurement of the disparity and completely ignore the evidence that he had heard. So one really small example of a juror taking it, taking the case into his own hands, and creating a fact that did not exist, creating testimony that did not exist, and we ended up losing that trial, because they didn't believe that the disparity was large enough to be considered dangerous. Basically, what I'm trying to say is I'm never, never surprised to hear what a juror has to say. Oftentimes, they're looking at things that you completely glossed over, that you ignored on purpose, or that just plain old weren't part of the record. So it's very difficult sometimes to hear the things that they come up with, because you think you're driving home a point, and they could be staring off into space thinking about something else. Yeah, and you have no idea how much that guy's measurements, if you will, influenced everybody else. Exactly. And when I saw he was the four person, and he was an engineer, typically engineers, although I'm sure very nice people are not the best four person for a jury trial, because they look at things so literally and so specifically that the rhetoric and the storytelling, that the skill that I like to think I have oftentimes just don't really correlate to that type of person. I can see that. I've known enough engineers, family and friends, and I could definitely see that for sure. Are there any clear signs to someone, whether they're cases one that genuinely needs to be tried versus the situation when we're a fair settlement is probably the smarter path? Yeah, I mean, there's certain situations, and they're all typically negative situations where an insurance company has offered you an amount of money that is essentially a slap in the face. Let's say, I think your case is worth a hundred, and the insurance company has a $5,000 new sense offer on the table, or $10,000 new sense offer, where once we break the money down, once we spend all of our money to get to trial and spend our trial expenses, the client's not going to walk away with hardly anything. So sometimes, the insurance company is really the driving force to have to try a case. Sometimes like we talked about earlier, it's a little bit of case facts. Sometimes it could be testimony, one key piece of testimony that has really gone the opposite direction and gone in a negative light for the plaintiff, and therefore we can only overcome that at trial. We could only overcome that if we get lucky with what evidence is coming in in the pretrial or motion in lemonade stage. So oftentimes, thankfully, it's something that we're aware of before we get there. And I don't think there's any attorney who's ever really said and meant it that I would love to try this case. I would love to take the risk. Oftentimes it's something that your hand is forced to get to that point, but you can capitalize in many ways once you get there. That makes sense. All right. Well, thanks for that, Michael. It was great to getting a bit of your background and your passion and a little bit of education on how a personal injury can work in Illinois. That is it for today's episode of Off the Record, Personal Injury Litigation with Michael Copsick. If you'd like to learn more about Michael and his work representing injured people, visit law-mwk.com. Thanks for listening. Don't forget to subscribe, share, leave a review. So people can get clear, honest answers about the injury process out there in Illinois. Michael, it was really great to chat with you and looking forward to the next one. Same here. Thank you so much. Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments.