Wrongful Death Case Against a City - Large Settlement
In the last two weeks we finally negotiated a large settlement in a wrongful death case against a large local city.
A police officer stuck and killed the husband and father of a local family while the father was pushing a stalled car off the highway.
We proved to the trial court (through approximately 7 depositions of police officers and others - and the use of 3 experts) that the police officer was very untruthful about his explanation of the accident.
The city and the officer had claimed immunity (governmental entities get this sometimes for auto accidents with police cars) - but that would only apply if the police officer's version of what happened was in fact true.
This particular case took 4 years from start to finish, two trial court judges and one trip up and back from the Court of Appeals (where we won as well). It was a great feeling to tell the widow of the resolution. These are the days that make you glad to be a lawyer.
Successful Appeal
Today we received word that an appeal we were doing for one of our criminal clients was successful (the client fell way behind on his child support and was charged with criminal non-support).
The Court of Appeals for Cuyahoga County reversed a trial court and ordered the case remanded back to the trial court for further proceedings.
Once the case is back at the trial court, we hope that things will continue to go well for our client. Stay tuned.
Voluntary "unemployment" and "under-employment"
When a divorce or juvenile court is considering setting a support amount, the court must try to determine the actual income of each parent.
In some cases, one of the parents is either unemployed or has a job where they are really making much less money than there experience or skills would otherwise dictate (otherwise referred to as "under-employment").
In these situations, the court can take evidence as to whether that parent is "voluntarily" unemployed or under-employed. The Court can hear evidence about that parent's past employment, why that past employment was terminated (or modified as to salary or wages), and can also have "vocational" experts testify as to the real employment possibilities of that parent.
Every so often one party in a support proceeding will actually quit their current job or deliberately pursue a lower paying opportunity - just so they can argue a lower ability to pay support. However, with the right evidence, this tactic can be rebutted.
Most divorce and juvenile courts are very experienced with this issue, so a party to one of these support actions should be aware that unemployment and under-employment tactics are sometimes very easy to spot.
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 Does an Ohio Court Calculate "Spousal Support?"
Unlike computing child support, which involves using specific income guidelines, computing "spousal support" is often much more complicated. Ohio does not use spousal support guidelines. Instead, Ohio has a spousal support statute which lays out 14 specific factors that a divorce court must consider when awarding the monthly amount and duration of spousal support. These factors include:
- The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code;
- The relative earning abilities of the parties;
- The ages and the physical, mental, and emotional conditions of the parties;
- The retirement benefits of the parties;
- The duration of the marriage;
- The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;
- The standard of living of the parties established during the marriage;
- The relative extent of education of the parties;
- The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
- The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party's contribution to the acquisition of a professional degree of the other party;
- The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;
- The tax consequences, for each party, of an award of spousal support;
- The lost income production capacity of either party that resulted from that party's marital responsibilities;
- Any other factor that the court expressly finds to be relevant and equitable.
Don't you just love that 14th factor. If you think that all of the other 13 factors, along with the 14th, allow a divorce judge to come up with any reasonable or objectively based number, you're right. You can present the same facts to 10 different divorce judges and get 10 different awards of spousal support. Some judges are alleged to be "income equalizers" in that they will combine the net available income (i.e. after payment of monthly debt obligations) of both spouses, and then just divide by 2, and then just order one spouse to pay the monthly difference to the other spouse. When it comes to the duration of spousal support, some judges have a general rule that takes the duration of the marriage, and then divides that duration by a number (for instance 3 of 4) - resulting in the duration of the spousal support obligation. If the marriage is long enough, a judge may order a monthly amount of spousal support, and then "reserve jurisdiction" in the divorce decree to modify that amount later when the financial circumstances of the parties change.
Have a headache yet? Try doing this for a living. Call us with any other questions. 440-356-2700. We have previous blogs on spousal support, like this one.
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.
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
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
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.