New "Litigation" Lawyers.

Its an little known secret to non-lawyers that there is a serious underemployment/unemployment problem for lawyers who recently got out of law school.  As many as 40% of lawyers graduating from law school have no official jobs.  So what do they do?  The get a business card and a cell phone and operate a solo practice out of their home (or their parents' home).  They go to one or two seminars on DUI defense, family law or personal injury, and pay to get a web site up and running, and then claim they are seasoned litigation lawyers.  And they are all over. Too many clients come to us AFTER they have hired these young and inexperienced lawyers.  Its often way too late for us to do anything at that point.

It is very important for any client to ask serious questions about the lawyer they are hiring for their specific courtroom experience.  How many jury trials have they tried?  How many motions have they litigated?  Do they have their own law office (instead of renting space from another law firm or group of lawyers)?   Do they have malpractice insurance?

Ask these questions.  Your case depends on it.

Mitigation of Damages

We discovered a recent case that discusses the doctrine of "mitigation of damages."  That doctrine essentially holds that if one is damaged in an accident or transaction, that person has at least some obligation to try and limit the amount of damages that person incurs.  For instance, if a tenant moves out of a building in violation of a lease agreement, the landlord has a good faith obligation to try release the building to try an minimize the loss.

In this recent case, the Court made it clear that while an injured/non-breaching party has an obligation to use "reasonable" efforts to mitigate damages, that party does not have to use "extraordinary" efforts to do so.  The Court also held that it is the breaching party that has the "burden" of proving that the injured party did not mitigate its damages.

Something to think about when things go wrong.

How Much Auto Insurance Do I Need?

We just processed another case where (again) we and the client learned that the insurance available (both the tortfeasor's and the client's) to compensate our client was awfully low - leaving the client very frustrated and depressed.  This has led us to once again put together a post about the basics of automobile insurance.  

Here are what we consider to be the basics: First, get the right amount of coverage.  Regardless of your income or assets, having automobile insurance coverage limits LESS than $300,000 is just plain crazy.   With the ever rising costs of medical bills (both ER bills and post-accident treatment bills),  coverage in Ohio of only $25,000 (the new minimum required under Ohio law for now) might just barely cover the ER bills - leaving nothing for your pain and suffering or any further medical treatment.  The writer of this blog is the married father of 4 kids - and he has $500,000 - with a million dollar "umbrella policy on top of that (umbrella policies are something we can explain in another post).  In 2013, Ohio raised the minimum amount of coverage that all drivers must have to $25,000 (per person) and $50,000 (per accident).   However, this is still not enough.   You might be very surprised to know that increasing your insurance coverage does not mean that your premium will go up dramatically.  From what we hear, MOST of your premium covers the first $25,000 of coverage, and increases in coverage does not raise the premium proportionally.  You can also consider raising your deductible in order to get a reduction of your premium.  Most insurance brokers rarely tell you this for obvious reasons.

Second, make sure you have what is called "uninsured" and "underinsured" coverage that is at least $300,000 as well.   You would be surprised how many drivers still drive without good coverage - or without any insurance at all.    "Uninsured" insurance covers you when the tortfeasor has NO insurance.   "Underinsurance" takes over when the insurance of the tortfeasor is so low that you need your own insurance to make up the difference.

Look at your coverage now and talk to your insurance broker.  Call us if you have any other questions.   Don't end up like the poor client of ours that we had to help  this past week.

Civil Protection Order for Our Clients

This week we were able to secure what Ohio law calls a "Civil Protection Order" ("CPO") for a client of ours.   Our client (and his family) were being stalked and harassed by a woman with a long history of mental health issues.   The order is good for 5 years. These types of orders are great for folks like our clients who have suffered from the emotional and psychological effects of stalkers and harassers such as the woman here.  This "CPO" order will allow the police to immediately arrest the woman if she comes within 1000 feet of the family or, as she was doing to harass, she files any more false police reports about the family. Violating a CPO (like violating a criminal "Temporary Protection Order") is a crime - which can get a person jailed for up to 6 months.

Hopefully this will be enough to keep this mentally unstable woman at bay.

What is "Discovery" When it Comes to Lawsuits and Criminal Prosecutions?

We often have to tell our clients that much of the actual work that we have to do in a civil or criminal action involves the drafting/serving, and response to, what the law calls "discovery."   "Discovery" is a general term used to describe the process whereby lawyers exchange information - mostly long before trial - so that the parties can either work out a resolution or get ready for trial.   The general concept is that there should be nothing hidden from the resolution process and no surprises at trial. There are a number of rules in both the civil and criminal justice systems that spell out how and when this discovery stage proceeds.  In a civil case, the lawyers can serve and respond to written questions (called "interrogatories")  or serve and respond to document or evidence requests (called "request for production of documents").   The lawyers can conduct "depositions" of persons with knowledge (who may or not be witnesses at trial).    In a criminal case, there are no "interrogatories," but the lawyers do have to identify witnesses and documents (and produce documents).  Sometimes (very rarely) the criminal judge can order a deposition of a sick or difficult to secure witness - and that deposition transcript takes the place of the live testimony at the criminal trial.

Lots of times the clients have no idea of the amount of work that goes into the discovery phase of a case.  They see what happens when they are in court, but not what happens out of their view or hearing.   On the average, a lawyer spends 3 times the amount of work on the discovery part of a case than the lawyer spends on an actual trial or courtroom appearance.

So when a lawyer starts using the term "discovery," you can assume that the lawyer is talking about this part of the case process.   Feel free to ask what discovery has produced for your case - and assume that you, as the client, will have to submit information, documents, and, often, deposition testimony, as part of the discovery process.

Non-Cash Benefits Can be Used for Support Calculations

Without going into extreme detail on the case, the Ohio Supreme Court announced on October 16, 2013 that "employer provided benefits" (i.e. non-cash benefits) that a support obligor (i.e. the person who pays support) gets from employment (e.g. company car, car insurance, cell phone, etc.) may, like regular cash wages/salary, also be used to calculate his/her "income" for child support purposes.   This ruling obviously will have an impact on those child support obligors who received great employer paid benefits instead of cash money for their work.  Further, self-employed people who can legally deduct these benefits from their gross income for tax purposes STILL will have those items considered for their child support. Accounting offices for very small employers or self-employed people paying child support across Ohio will probably be making some changes .  . .

What is a "presentence investigation?"

After a defendant enters a plea of guilty or no contest to a criminal charge (or a DUI charge), a trial court judge often refers the defendant to the local probation department so that the probation department can conduct a "presentence investigation" on the defendant.   After all, most times most judges want as much relevant material they can read about the defendant before they pronounce what they believe is a fair sentence.  If the defendant is out on bond, the defendant must walk almost immediately to the probation department to be interviewed and have his/her background investigated by the probation department.  If the defendant is still in jail (because he/she did not make bond), the probation officer will come to them. Once the presentence investigation report is complete, it will be sent to the Judge, and, often (but not always - depends on the Judge) the attorney for the defendant will get to review the report. One of the most important things a defendant can do during this process is to be fair and honest with the probation department (although, if a defendant intends on appealing his guilty verdict, sometimes the defendant will want to continue his/her right to remain silent).  How the probation officer perceives a defendant often goes a long way toward what they Judge will think of the defendant on sentencing day.   Defendants who smirk or appear indifferent to the probation officer will often pay for that attitude on sentencing day (in one way or another).

So be nice - very nice - to your probation officer.  They may be just a clerk to you - but they are really little gods with a pen.

Subrogation "Hogs" and "Leeches" - and what they do to injured persons

We have blogged a tad about the concept of "subrogation" in the context of personal injury claims.  In short, if you are injured and incur medical bills, the entity that pays the bill (usually a government insurer like Medicare/Medicaid or a private health insurer) or the medical provider that rendered  the service, generally has a right to get paid back right out of the personal injury judgment or settlement proceeds.  For instance, if you are injured in a car accident that is not your fault, and your health insurance company pays $3000 of your medical bills related to the accident, your health insurance company will demand that you pay them back most or all of that $3000 when you settle your claim or get paid on a trial judgment for that injury.   This subrogation stuff leads to many many disputes between the injured party and the entity demanding subrogation reimbursement - especially when the amount recovered by the injured person is very low - or even less than the medical bills.  In fact,  some of the claims for subrogation reimbursement will result in the injured person getting NOTHING (because the reimbursement claim actually exceeds what the injured person recovered). So, as we do all of the time for our clients, an attorney will have to intensely negotiate a reduction in the amount that is actually paid to the entity claiming a right to subrogation reimbursement.   MOST of the time the entity claiming a right to subrogation reimbursement will agree to a reasonable reduction in the subrogation payment because if it was not for the pursuit of the personal injury claim, the entity would get nothing (they never pursue the claims on their own - they will almost always wait for the injured party to collect on their claim).   It use to be somewhat rare for an entity claiming a right to subrogation payment to be a pig about what they want paid back.   However, now many medical insurance companies and medical providers have hired private collection companies (or law firms) to collect on the subrogation claims, and since almost all of these companies/law firms get paid a percentage of what they can collect, these private collection companies/law firms become not just pigs - but hogs.  They tell us over the phone and in writing that they just don't care if the injured party gets next to zero for their injury - they still want it all - and they want us to pursue the tortfeasor, take all of the risks and time,  and get it for them (like leeches)  - or they will sue our client.   We recently had a woman who had over $102,000.00 in auto accident medical bills paid by a private insurance company called "Wellcare."   The private collection company hired by Wellcare (called "First Recovery Group") to pursue the Wellcare subrogation claim demanded that the injured woman pay over to them ALL of her settlement net proceeds that have been offered by State Farm insurance (they offered $100,000).    That's right, ALL of it.

They say in business that you can be a pig, but not a hog.    Pigs get fed, but hogs get slaughtered - unless you are a private subrogation collection company.

Call us about this if you want more examples or more explanation.  Stay tuned on this important issue.

New Ruling in Cuyahoga County Regarding GPS Devices Attached to Cars by Police

The Cuyahoga County Court of Appeals just issued a new ruling addressing the ongoing development of law regarding police using GPS devices attached to cars (so they can track a suspect's movements).  In 2012, the Supreme Court of the United States (in the case of United States v. Jones)  held that you need to get a search warrant to do this.  The police in this recent Ohio case claimed that since the Jones case was not the law at the time they placed their device, they had a "good faith" belief that what they were doing was legal at that time.  The Cuyahoga County Court of Appeals disagreed with the police here. In short, if the police want to track a defendant's car with an attached GPS device, they gotta get a warrant - something that probably will not be too hard to do.

The "Custodial" Requirement for Miranda Rights Warnings

Over the years, many clients of ours have told us that they were not read their rights when the police officer(s) questioned them.   They then want to know if they can get their statements "thrown out" or the whole case against them dismissed.    Here are 2 important things I tell them that apply here. First, in order for the police to have to give you any Miranda rights (i.e. "you have the right to remain silent...."), you have to be in "custody."   For example, if the cops simply knock on your door and ask to come in and ask you some questions (or approach you on the street to do the same), they DO NOT have to give you your Miranda rights.  This is because you are not in what the law calls "custody" (in other words, you are free to go and/or close the door).   If a police officer pulls over your car and comes up to your car window to ask you questions, you MIGHT be in custody and you MIGHT have to be read your Miranda rights if the police want to use what you say after that against you (these situations are very fact specific).    If the police officer has placed you under arrest, you MUST be read your Miranda rights  if the police want to use what you say after that against you.  This "custody" aspect of the Miranda rights issue controls the outcomes of many cases.  This very issue is in play right now in a rather big federal case here in Cleveland.

Second, a technical violation of the Miranda rights rule does not automatically invalidate the arrest or automatically require that the case be dismissed.  It just subjects the post-arrest/custody statements made by a defendant to a motion to suppress   - while most of the other evidence the police obtained (unless it was the result of what you said) remains in the case.

Advice:  Anytime the police call or knock, ask for a lawyer.  Always.

A recent acquittal for our client - big stakes and big issues

We recently had an acquittal for a client of ours who was accused of a serious and violent rape - one that occurred in 1993.   The state had recently matched his DNA to the DNA that was located on the victim from the rape kit taken from her on that awful night in 1993.  However, there were many other issues that the jury had to consider in addition to the DNA evidence (which we really did not contest).   We argued, among other things, that the burden of proof does not get lowered in response to the government's past failures to follow-up on DNA analysis of rape kits.  During trial, it was revealed to the jury that approximately 4000 rape kits sat on evidence room shelves for decades.  Sex crimes police detectives were so deprived of sufficient resources that they had no ability to follow-up on the vast overflow of cases they were assigned.  Now, because of recent events and, quite frankly, new politics, these cold cases are being pursued by the State of Ohio. By the way, we commend the State of Ohio for now pursuing these cold cases with the vigor they have always deserved.  We never frown on thorough police investigations.

Read more about this case here.

Read more about these types of cases here.

More cases like this are sure to follow.  Stay tuned.

Cellphone Location Data - What is it and what do the police need to do to get it?

In a recent federal court ruling, a federal court of appeals court held that police do not need to get a search warrant in order to obtain "location data" for a cell phone that they wanted to track (this is much different than actually listening in on a cell phone conversation).  According to the federal court of appeals opinion (which focused solely on the federal constitution), all the police need to do is functionally ask a magistrate judge to order cell phone providers to produce the information - and that they do not need to get a normal search warrant signed by a judge to obtain the information.  Other courts (mostly state courts relying on that state's individual state constitution) have reached different conclusions.   So we expect that at some point in the future (but not the very near future), the United States Supreme Court will have to answer this question for all of us. Stay tuned here - we will let you know how this issue develops.  And be aware that the Government now has an argument that they can track your cell phone movement without a warrant.

Zimmerman

OK, so now that at least 20 people have come up to me and asked what I thought about this Zimmerman verdict, it is now somewhat incumbent upon me to post what I think about what happened in the State of Florida earlier this month.  This is not political and this is not about social issues (discussions for another day in a non-LEGAL post). Point 1: I practice criminal law in the State of Ohio - most often in the northeastern corner of Ohio. Like every other state in the Union, Ohio has its own individual and different set of statutes and criminal rules that regulate how criminal cases are to be prosecuted and tried in the Courtroom.   In fact, Cuyahoga County (my home County) has its own specific "local" rules on how criminal cases are to be processed - which supplement all of the Ohio state-wide statutes and rules.   Point being: every state (and, for the most part, every locale) has its own set of specific laws on how criminal cases are prosecuted and tried.   Any lawyer who is not from the specific area where this case was tried who attempts to offer even an indirect opinion on the verdict is essentially reckless - and you should ignore them completely.  Just because CNN or Fox News found some talking head lawyer who claims to have some criminal justice experience does not mean that person has the information or experience to comment on the outcome of this case.

Point 2: What happens inside the courtroom is what controls the verdict - not what happens outside of the Courtroom in the media.   The Courtroom itself is, to me, a sacred temple and gateway of information that goes to the jury.  Much of the battles we lawyers engage in has to do with what should or should not be heard by the jury - and I mean much.  What the jury hears/sees or does not hear/see is controlled by some rather well litigated rules.   This process is designed to prevent legally irrelevant facts, lynch-mob mentalities and/or political issues from taking over any case.    The only local lawyer (see point 1 above) who could comment on the verdict of this case would be one who either watched the ENTIRE trial or read the ENTIRE transcript of the trial - including but not limited to the very important jury instructions.  Jury instructions are the rules of the road that the jury has taken an oath to follow.

So be careful out there before you make any conclusions about the verdict in this case - or even taking the proverbial word of any so-called criminal law expert.  Hopefully, our friends in the media will take the time to speak to experienced criminal justice lawyers who regularly practice in the area where this happened  - and only get their opinion if they have read the entire transcript first.

Your comments are welcome.

The Horrors of Insufficient "Under-Insured" and "Uninsured" Motorist Coverage.

Go into that office desk drawer and pull out your auto policy - now.   Look at the specific amount of "under-insured" and "uninsured" coverage that you and your family has.  We have had too many clients find out AFTER a serious accident with a person without insurance or with minimal insurance that the "under-insured" and "uninsured" coverage in their policy was VERY insufficient.   Getting a good amount of INCREASED coverage cost, in relation to the whole policy, is very little. We just had another client who had a serious automobile accident.  Her medical bills total over $100,000.00 - and those bills are going to continue to climb.   The person who caused the accident had only $100,000.00 worth of coverage - and the health insurance carrier who is responsible for paying our client's medical bills has what the law calls a "subrogation" right to seize the insurance proceeds of the person who caused the accident.  So, in the case we have now, the health insurance carriers will try to seize ALL of the $100,000.00 of the auto insurance proceeds (we will fight this of course).  Sadly for our client, her "under-insured" and "uninsured" coverage was only $25,000 - the state minimum.     What a disaster for the client.

As we have posted before, we suggest nothing less than $500,000 worth of liability coverage to protect your own assets - and an equal $500,000.00 worth of "under-insured" and "uninsured" coverage in case the folks that injure you have no or insufficient insurance.  Call your insurance broker and see what the additional coverage costs.  You will be surprised how cheap the increase is.

Do it now - not after an accident.

DNA - The New Fingerprint for the Police

The Supreme Court of the United States issued an opinion today which ratifies the current police procedure of collecting DNA samples from many arrested individuals for storage in a DNA database - just like they have done for decades with fingerprints and photographs.   One of the persons arrested by the police and who had his DNA collected took his objections all the way to the Supreme Court of the United States under the claim that the collection of the DNA violated his constitutional right from unreasonable search and seizure. The United States Supreme Court, in a narrow 5-4 decision, disagreed.  They held that the collection of DNA from arrestees of "serious offenses" could be taken for the same reasons they take fingerprints and photographs.  The Court held there was no fundamental difference between the science behind fingerprints and DNA.

The past meets the future in law enforcement.

Watch those texts - they can be used against you.

A recent Ohio Court of Appeals decision held that it was permissible for the prosecution (in a murder case) to have a witness testify to "text messages" that the witness had sent and received from the defendant.   The defendant's lawyers argued that the only way a jury could get to see or hear this type of evidence is if the cell phone company had an employee "authenticate" the texts.  However, the Court ruled that the witness alone (without the phone company coming in to testify) was "sufficient" to authenticate the messages. So, what does this mean?   Be careful about what you send text message-wise.   Many phone companies save these messages for a sufficient period of time to allow the authorities or even civil litigants to get them in discovery - and the recipient can choose to save them indefinitely.  These messages can come back to haunt you.

Again: Watch those arbitration provisions in contracts!

We have come across still another decision from an Ohio court of appeals which again shows that Ohio Courts will somewhat strictly enforce arbitration clauses in contracts.  In that regard, we again (we have blogged about this a few times before) encourage all of our readers to carefully review ALL of the contracts they are signing to see if there is an arbitration provision in that contact.  Contrary to popular belief, arbitration is NOT less inexpensive than filing a lawsuit in Court (the filing fees are much higher and arbitrators get paid by the hour [judges are free]).  Further, arbitration is often "binding" in that neither party has the right to any appellate review of the decision of the arbitrator. Be careful out there . . . .

The Second Amendment

Well, just when we all thought we had it all straight with our “personal” views of the Second Amendment, along comes Newtown.  Newtown has changed many person’s specific opinions they had about guns, gun possession and gun control. Some folks have changed their minds - and some have dug in even further on their opinions.  So let’s do a VERY quick summary of the Second Amendment. The Second Amendment is just that: the second of the Bill of Rights - right after the First Amendment (which we all may know protects our right to free speech, freedom of religion, freedom of the press and the freedom of assembly and freedom to protest).   The Founding Fathers thought this gun issue was so important that they placed it before the Fourth Amendment (illegal search and seizure) and the Fifth Amendment (the right to remain silent, to grand jury protection, double jeopardy and due process).   So what does is say?  Its one sentence text states:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Many of the legal and philosophical issues associated with the Second Amendment involve the first part of that sentence: “A well regulated militia being necessary to the security of a free state..”   Did the Founding Fathers mean that the right to bear arms was only related to the necessity of having a militia, or was that right independent of whether we have a militia or whether we are members of a militia (that is, did the right belong to all “individuals” regardless of membership or existence of a militia). The United States Supreme Court has only recently held that the right to bear arms is an “individualized” right - which generally means that you don’t have to be part of an army or militia in order to have a Constitutional right to possess and use a gun.  It should be noted that Ohio also has a Second Amendment - but does not have any “well regulated militia” language in the first part of the sentence.  So the “well regulated militia” argument has very different ramifications in Ohio. The very Supreme Court opinion that recognized that the Second Amendment creates an “individualized” right also made it very clear that, while the Government cannot outright ban gun possession and use, the Government may "regulate" gun possession and use.  So now the big argument is just how much “regulation” the Government can engage in.   Can the Government require all gun sales to require a background check (even private sales between individuals outside of a gun show or gun store)?   Can the Government limit the capacity of ammunition clips?   Can the Government limit the type of guns (example: “assault weapons”)?

As the new flurry of federal legislation is proposed in Congress, we will see if Congress can actually pass such legislation, and, if such legislation is passed, whether the federal courts will uphold such legislation. We will continue to monitor the development of these Second Amendment issues as this new possible legislation pushes itself through the halls of Congress.  Stay tuned.

When can the cops search my car?

We are constantly called upon to investigate whether or not a police officer was proper in how that officer searched a car that had been pulled over.   There are many answers to this question because there are many different factual scenarios that arise when a police officer pulls over a car.   Generally speaking, however, a police officer does not get the right to search your car simply because you have been pulled over.  In one recent case, the Court of Appeals found that once the police officer had determined that the driver had the proper registration and had no warrants, the officer could not thereafter search that driver's car.  That officer would have had to see open and obvious evidence of criminal activity after he approached the car in order to have any basis for further detention of the driver or occupants. Every case has its own set of facts - and not every trial judge and court of appeals see the constitutional issues in the exact same way.  After all, that is why we have a court of appeals.  Call us if you need any further info on these issues.  800-529-1966.