Illinois Lawyers and
Assault and Battery
by Michael Helfand
(Illinois)
If you have been in a situation where you feared for your safety or were injured by another, you may have grounds for a civil tort case under the theories of assault or battery or both.
First, this is different than a criminal case. The district attorney decides which cases to pursue and if the defendant is found guilty or pleads, he or she either gets jail time or is fined or both. You, as the victim, may be asked to testify but you will not get any compensation, other than perhaps a witness fee.
A civil case is one that you decide to pursue as the plaintiff and where you are seeking compensation for your injuries – whether mental or physical.
Next, it is important to understand the difference between an assault and a battery. These terms are often used interchangeably but actually mean very different things in the area of tort law.
An assault is “the attempt or threat to inflict injury on another person when coupled with the apparent ability to carry out the attempt or threat.” So, there is no physical contact but rather the attempt or threat of unwanted physical contact and the apparent means to be able to do it.
For example, if someone says “I’m going to shoot you” and is pointing a gun at you, you have the threat coupled with the apparent ability to carry out the threat. As long as you believe the gun is loaded, the apparent ability to carry out the threat is present.
A battery, on the other hand, is “unwelcome physical contact.” It doesn’t necessarily require that the contact be strong or forceful - unwelcome sexual contact is also considered battery.
Other examples of battery include hitting or punching. It can also include spitting on a person or throwing something at them.
Note that provocation does not justify an assault or battery. So, if you said something insulting to the defendant, the defendant cannot use that as a defense for his or her actions.
If you believe that you have been the victim of an assault or battery, you should speak with an attorney. An experienced personal injury attorney will ask you the right questions to determine if you have a potential case, including inquiring about the outcome of the criminal case, if anyone else witnessed the event, etc.
When choosing an attorney, be sure to select someone that takes the time to understand your case and explain the law to you. You will also want to choose someone who is willing to take your case on a contingency basis. This means that if you recover an award at trial or a settlement, your attorney is paid from that amount. But, if you recover nothing, you owe your attorney nothing.
Filing a lawsuit can be a huge commitment of time and even stress. You want to be sure that you have a viable case. An experienced personal injury attorney can help you determine that at a free consultation and, if so, fight for you throughout the process to ensure that you are properly compensated.
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Michael Helfand has been an Illinois attorney since 1997 and is founder of FindGreatLawyers.com, the leading resource for Illinois lawyer referrals and legal guidance.
