Still another DUI reduction for us last week

We had another change to identify some leverage for a client last week, this time resulting in a plea bargain which permitted our client to get a reduction on his DUI charge. 

Finding the right objective basis for getting a reduction in a DUI case is getting harder these days, and we were encouraged that we were able to get it done - and that we got it done with the agreement of the prosecution.  

Given what the DUI conviction would have done to the occupation of the defendant, this one time mistake  (and we mean "one time") by the client was extremely important to him.

I am sure the client would be the first to tell anyone not to get into the same trouble he temporarily found himself in. He had really learned a valuable lesson from the whole experience.

Hourly or Value Billing Legal Services

There has been a small emerging series of articles written in legal journals about a trend by many lawyers, especially smaller boutique specialized law firms, to seek a billing arrangement where the lawyer bills for the "value" of the service rather than simply the "hours" put into the matter. In some scenarios, this type of billing practice works very well, and in some it does not.

For instance, for years we, like many lawyers, have done all of our criminal justice work on what is really a flat fee basis.  This is because it is so much easier to estimate the time and complexity in a criminal matter than in other areas of the law.  

However, in other areas where we practice, it is far more difficult to estimate how long something will take and how complicated it may become.  In our family law area of practice, we have had many instances where what should be a simple end-of-marriage representation has turned into an essential black hole of time because one of the parties (or even one of the other lawyers) is extremely difficult to work with (we can tell you some pretty ugly stories).

Anyway, we have found in our small business litigation practice that we often convert our hourly billing practices into a value-based bill - because sometimes the time we put into the matter to get a great result ends up being small - and because sometimes the time we put into the matter without getting the result the client desired compelled us to drastically reduce the amount due under the hourly arrangement.

Suffice to say, we endure to have consistent and timely discussions with our clients in all litigation matters so that neither the client nor our small firm get to that awkward moment where the bill (and the complexity of the matter) has gotten out of control.  Our policy in this area is to keep a constant line of communication going with the client and to keep the client constantly informed of the status, complexity and time consumption of their matter.   We can't see doing it any other way.

Withdrawing a plea - getting harder and harder.

It us to be relatively easy for a criminal defendant to try and withdraw his or her plea prior to a sentencing (a sentencing date usually takes place about 3-4 weeks after a plea is made).   The rule that controls how it is done indicates that prior to sentencing such motions should probably be granted (Ohio law from the Supreme Court of Ohio says that pre-sentencing motions to withdraw a plea “should be freely and liberally granted”).    However, more and more trial courts (and appellate courts) are, in our opinion, finding more and more reasons to deny these plea withdrawal motions - even if they are filed before sentencing.  For example, a Court in Canton, Ohio (Stark County) just did this on a case  involving a weapons charge. Our advice:  Assume that you are locked into your plea at the time you plea - and that a trial court will be easily able to prevent you from withdrawing that plea even prior to your sentencing.  

Get a second opinion if you can before you plea.

Diversion Programs

More and more courthouses in our area of Ohio are creating or refining what are generally called "diversion programs."   These programs (which can go by many names and use a number of different letters)  are mainly designed for people who generally have no criminal record ("first offenders")  and who have committed a type of offense that is eligible for diversion (some specific offenses are not eligible for diversion).  

A diversion program generally requires that the offender plead guilty to the charge (for the time being) and complete a probation-like program with such things as restitution, drug testing and community service.   After successful completion of the diversion program, the case is dismissed - and some diversion programs actually include a free "expungement" element to them as well. Sort of like a mulligan in golf.

We have obtained diversion for many of our clients.

Another DUI Reduction for Us Last Week

Last week we obtained another reduction in a DUI case - this time involving a person under the age of 21 (it gets more complicated when the defendant is under 21 years of age). 

This person is still in college, and the reduction was very important to this person who will soon have to go out and try to get employed post-graduation. 

Like many people that age, this person was on the way from a concert when pulled over by the police - who were just doing their job.  

All involved here (including the police and the prosecutors) were very professional. What a relief to this young adult and and the parents.

Happy New Year to that family and to yours.

Remember, the police will be out in full force this time of year.  Don't take any chances.

Lead Poisoning Victory for Us and Poisoned Children

lead poisoning photo

Our firm recently won a big appeal at the Cuyahoga County Court of Appeals.   We had attempted to secure vital information under the Ohio Public Records Act concerning the work being done (or not done) by the Cuyahoga County Board of Health in the area of lead poisoning prevention.    The Board of Health had refused to release ANY records concerning their duties - claiming that they were protected by Ohio law from disclosing their work.  The Court of Appeals disagreed - and stated, in part: "In this case, the BOH is currently operating a lead hazard control and health homes program under a $3.4 million federal grant and 'endeavors to pursue elimination of lead hazards each year.' Affidavit of BOH Commissioner Terry Allan, ¶ 16. Release of the requested information could likewise help to hold the BOH accountable for its duty and promise to reduce lead-related hazards in Ohio’s largest county and reveal its successes or failures in doing so, also without requiring the release of prohibited information."

In short, the opinion stated that we (the persons requesting the records) serve a vital public purpose by holding public entities "accountable" for the public duties imposed upon them.   Hopefully, we will get the records soon and we (and you) will know what they have been doing with the public money designed for lead poisoning prevention.

Stay tuned.

Spoliation of Evidence

A court of appeals recently dealt with an issue that lawyers in litigation have to struggle with from time to time: "spoliation of evidence."   Spoliation of evidence is where one side of a litigation dispute destroys or alters evidence that the other side needs for its case.   

As a matter of fact, in addition to the severe sanctions a trial court will likely impose on a party for such conduct, the act of spoliation of evidence all by itself gives rise to a specific separate cause of action against a party who does it - including a party who was not initially involved with the case.  

Stated another way, if a defendant is being sued (or about to be sued), and (for whatever reason) a third party alters or destroys evidence that could be used in that lawsuit, that third party can be independently sued by either the plaintiff or the defendant for that conduct.   Most of the times however, the party who is altering or destroying the evidence is already a party to the lawsuit and is just doing this type of conduct to cover its proverbial tracks. We have been involved with litigation where spoliation of evidence has reared its ugly head on the other side of the table.   Very very nasty consequences.

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.

OVI Reduction Today

courtesy

We do a large amount of OVI defense work.   Sometimes you really have to dig to find the fleas on an OVI case.   Today, we found some - and were able to use that discovery to cordially negotiate a reduction for that client.  It was his first (and, for what I see, his only) OVI arrest.   He really felt terrible about the arrest, and even felt bad about asking a lawyer for help (that it was something somewhat immoral to do).   The cops who made the arrest are good guys and did what they thought was right under the circumstances.   Ohio law, however, puts many requirements on police when they conduct OVI arrests - and sometimes even the best cops make a mistake.  Even the police officers seemed OK with the reduction under the circumstances.  All shook hands when we left the courtroom. A good and professional day for all.  We can't emphasize enough how much professionalism and courtesy can go along way in many cases.

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.

Victory for good guy Dad

child and father

Last Friday we received  an opinion from the Cuyahoga County Court of Appeals which agreed with our argument that the father of a small girl should be named that girl's residential parent.   That father had to hire us when he came to the conclusion that the child's mother was much more interested in a party/social life than she was in becoming a stable parent.   While the child was in her custody, the mother had picked up her second DUI, picked up another alcohol-related charge, and had ongoing serious social drinking issues - and demonstrated a number of other immature parenting issues.  She also moved 6 times in a 2-year period.   The father (our client) had a long-standing stable job and owned his own home for many years - and no criminal history.   He had the child on his health insurance and always paid his child support.    The trial court magistrate  (who heard the case at trial) determined that the father (our client) essentially provided much more stability than the mother, and designated the father as the residential parent.  However, for reasons that were never completely clear, the trial judge(who did not hear the case at trial) overruled the magistrate - and left the mother as the residential parent. The Court of Appeals reversed the trial court judge and reinstated the magistrate's decision.    The child is now going to reside with Dad.  What a solid victory for good dads all over the area and a great victory for the child.

This one felt good.

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.