Victory for Client

We recently received a not guilty verdict for a client accused of the crime of failing to verify his address with the County Sheriff.

We were successful based upon a legal technicality known as identification. None of the witnesses called by the State of Ohio could say whether or not the man sitting at the table with me was the man who failed to verify his address.

None of these witnesses had in fact ever seen my client before, and they failed to bring any identification information with them.

The client was a now homeless man who had been residing at a homeless shelter for about a year and had been in the hospital for a number of months when the authorities claimed he should be verifying his address.  

Using old toys may cause risk of lead poisoning exposure

Young children are at the highest risk for lead poisoning, but linking vintage toys to this threat is a new one.  

“High levels of lead in used toys may be of concern to many parents as day cares and other centers may be using vintage toys.”

— Michael O'Shea

A study found lead, cadmium and even arsenic in an alarmingly high number of plastic toys made in the 1970s and 1980s.

One in four toys contained more than 10 times current safety limits for lead; a third of non-vinyl toys violated standards for both lead and cadmium; and a fifth contained arsenic.

Researchers from St. Ambrose University conducted this study and noted, "The developing brains and bodies of infants and young children are especially vulnerable to toxic exposures because they absorb and retain lead more efficiently than adults."

While many may find it to be cost effective and even beneficial to use old toys passed down through the generations, doing this can potentially increase your child’s risk of lead poisoning.

What is a "dram shop" lawsuit, and what is involved?

In the past, we have successfully maintained suits against liquor establishments for selling/furnishing alcohol to a noticeably intoxicated person - who, after leaving the establishment (or while still on the premises), caused injury to others.  This often happens in DUI related auto accidents (sometimes it applies to bar fight cases too).   When there is insufficient auto insurance to cover the auto accident injuries (be it the insurance of the drink driver or the "under" insurance of the injured person), lawyers are required to see of the person or establishment serving the DUI driver furnished alcohol to that driver when that driver (while at the establishment) was noticeably intoxicated.   This is not an easy thing to do (although, with lots of work, we have been able to do so).  An Ohio statute covers the law in this area. A recent case out of Franklin County explains the legalities and complexities of these types of cases.  In Piras v. Screamin Willie's, 2015-Ohio-255, the Court of Appeals in Franklin County discussed how a bar/restaurant can be held liable for injuries caused by a patron who was served alcohol despite the fact that the patron was "noticeably intoxicated."    The Court held:

• “For a claim to arise under R.C. 4399.18, noticeable intoxication must be evident at the time of service….[the defendant's] obvious intoxication at the accident scene and hospital does not provide, absent additional evidence, that he was noticeably intoxicated hours earlier when he placed orders at the bar.”

We have, in the past had to hunt down cash register receipts and interview other bar/restaurant patrons to finally discover how intoxicated the defendant was while the defendant was still on the premises of the bar/restaurant.  Magnum PI results matter here.

Be careful out there.  Don't hesitate to tell the bar/restaurant manager that a patron has had too much.

DUI protections for our clients

DUI cases are complicated.  

The economic impact on a client can be huge (i.e. fines, attorney fees, loss of employment and insurance costs, etc).  Further, some clients have huge issues with their employment if they are even accused of a DUI offense.

Recently, we had to assist two clients with a number of these important legal and economic issues.  The first was a husband and father who had never been in trouble in his life.  One night, in a moment of very bad judgment, he decided to drive home from a party where he had been drinking very heavily.  On his way home, he lost control of his car, and went into a ditch. 

Before his car left the road, he hit a mailbox - which flew through the air and hit an elderly man in the leg (taking out his garbage), breaking the leg of the elderly man.  Because of how the law worked, this husband/father (and owner of a small family business which supported the family and others) was facing a minimum of one year in prison. 

However, because of some issues we were able to locate in the arrest procedure, we were able to negotiate a much lower sentence, and the client did not have to report for that sentence until after the holidays. This way, he can ready his family and his family's business for the time he will have to spend in jail. This was huge to the client and his family.

The second was a woman who is in the last months of her nursing degree.  She is currently employed as a RN-in-training (big hospital), and the OVI arrest has frightened her about her RN employment possibilities.   Due to some issues we were able to locate in connection with the arrest, she was offered a plea to a reckless operation - a huge reduction for her. 

This will look much better on her driving record - and should provide her with a significantly strong explanation to any current or prospective employer about what happened on one, out-of-the-ordinary, night.

As we stated above, it is important to look at all of the personal and economic impacts a DUI arrest has on a client.   Its not always just about the law and the police report.

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:

1. 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;
2. The relative earning abilities of the parties;
3. The ages and the physical, mental, and emotional conditions of the parties;
4. The retirement benefits of the parties;
5. The duration of the marriage;
6. 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;
7. The standard of living of the parties established during the marriage;
8. The relative extent of education of the parties;
9. The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;
10. 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;
11. 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;
12. The tax consequences, for each party, of an award of spousal support;
13. The lost income production capacity of either party that resulted from that party's marital responsibilities;
14. 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.