Business Litigation Update: Avoid oral agreements on big transactions.

The Ohio Supreme Court held recently that if an agreement between two parties is technically covered by what is know as the “Statute of Frauds” (i.e. a statute that lists certain types of agreements that must be in writing to be enforced in court), then even good faith part performance of an oral version of that agreement cannot be advanced as an excuse for not having the agreement in writing in the first place. See http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2057.pdf. It use to be that some lower appellate courts in Ohio had held that a party could argue that the Statute of Frauds could be ignored if either party to an oral agreement had partly performed obligations under the oral agreement or relied on the existence of the agreement to their detriment. No longer. This decision has far reaching implications in certain industries and areas of trade where many complicated and/or financially large transactions happen on sometimes a daily basis. Business contracts covered by the Ohio Statute of Frauds include agreements involving real estate (including leases), agreements that cannot by their operation be performed in less than a year, and agreements to take over the debt of another person (this is not the complete list). Thought: Consult your local transactional lawyer long before you invest time and money on a deal that may be covered by the State of Frauds. Make sure the agreement for that deal is covered by a written contract.

Our verdict in a workplace assault case.

We just obtained a not-guilty verdict for a physician-client of ours. The physician had emigrated from Albania (where he had been a practicing physician) and was working at a local hospital as a medical technician while trying to get licensed in Ohio, get his U.S. citizenship and to save enough to move his wife to the United States. One particular nurse at the hospital consistently made crude and ethnic insensitive comments to the client, and when the client eventually verbally exploded at the nurse in the break room, the nurse and her close friend claimed that the client slapped her 3 times in the face. A fair and necessary background check of the nurse’s employment history revealed that she was less than a credible witness (and employee) . In applying the proper definition of reasonable doubt, the jury rendered a not-guilty verdict. If the client had been found guilty, he would have been almost immediately deported, and he would have lost out on a life-long dream to have his family start a life with him here. He was rather emotional at the verdict.

Criminal Justice Update: Hearsay evidence in child sex abuse cases.

The Ohio Supreme Court handed down a decision which held that someone other than a child-victim may testify about the statements that the child made concerning an alleged molestation of the child. See http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1576.pdf. The Court held that if the child-victim was not able to testify at trial for some reason, the “hearsay” statements of the child-victim can be admitted by having another person tell the jury what the child-victim had said on an earlier occasion. In this unique case, the child-victim died in a fire prior to the trial, and the defense had argued that the statements made by the child to others were “hearsay” and could not be admitted at trial. Thought: Some prosecutors may try to stretch this ruling to permit hearsay statements to be admitted at trail when they (the prosecution) deem the child to be “unavailable” even though the child is alive and healthy.

Criminal Justice Update: Computer hard drives

The Ohio Supreme Court handed down a decision that is a true reflection of the modern digital age. In cases where a defendant’s hard drive has been seized and examined by the police/prosecutorial authorities, the defense lawyer may not independently examine that hard drive (with a defense expert) unless the defense lawyer makes a minimal showing that the written results of the hard drive examination are somehow “false, incomplete, adulterated or spoliated.” See: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1354.pdf. Thought: In this new digital age, computer forensic experts are rapidly becoming one of the most important expert witnesses. Make sure you hire the right one.

Cuyahoga County Court of Appeals ruling on disability pension benefits.

The Cuyahoga County Court of Appeals has recently ruled that disability pension benefits are not “marital property” (which would make them subject to division between the spouses in a divorce) unless they are taken by the retiring spouse instead of that spouse continuing to work or taking his or her regular pension. See: www.sconet.state.oh.us/rod/docs/pdf/8/2009/2009-ohio-2263.pdf. If the retiring spouse has any of his or her normal pension benefits reduced because of taking disability pension benefits, then a corresponding amount of the disability pension benefits become martial property. Thought: A spouse who is going through a divorce who has the ability to receive both a regular pension and a disability pension must engage in some sophisticated math and planning before making an election to receive either or both a regular pension or a disability pension.

Recent personal injury law update: Nursing home agreements and arbitration requirements

Recently the Ohio Supreme Court has ruled that persons who sign admission agreements when they enter nursing homes can be bound by written “arbitration” clauses that require arbitration of any issues related to their residency - including issues related to negligent or intentional injury to the resident. See: www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2054.pdf.
These arbitration provisions almost always require that injured residents waive their right to judge/jury trial and submit to a potentially more expensive and industry-biased arbitrators. Any person who is being admitted to a nursing home or any person who has a friend or family member being admitted needs to be aware of the potentially very serious impact of these arbitration provisions. Thought: Shop your nursing homes on this and other issues.