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.  

DUI Charges Come with Harsh Punishments in Ohio

Licenses are revoked immediately for first-time and repeat drunk drivers.

Ohio is known for having some of the strictest drunk driving laws in the country, primarily due to the administrative license suspension (ALS) law.

Upheld by the Ohio Supreme Court in 1996, ALS states that any motorist who refuses to take a sobriety test, or who exceeds the legal limit, will lose their license immediately. While research shows that first-time drunk drivers tend to be nearly as impaired as repeat drunk drivers (with blood alcohol levels of 0.16%, compared with 0.18%), punishment for repeat drunk driving offenders are much firmer.

Additional laws passed in 1996 and in 2000 were enacted with the goal of minimizing repeat drunk driving offenses. Depending on previous offenses, a motorist can lose their license from 90 days to five years, and face fines between $200-$10,000 with the potential of jail time from three days to several years.

 A 47-year-old Beaver Dam woman was recently sentenced to prison for 54 months for committing her sixth offense of operating a motor vehicle while intoxicated. Whether you are faced with your first DUI arrest or your third, the importance of having an experienced attorney cannot be overstated. 

Does Living Together Before Marriage Increase Your Chances for Divorce?

Many people believe living together is a good test to see if a marriage will work, but a study found it may actually increase the likelihood of a divorce.

This study was conducted by the Center for Family and Demographic Research at Bowling Green State University, and found that cohabitation before marriage often causes married couples to separate.

Looking at a variety of factors such as age, race and educational backgrounds, couples who did not attend college and who lived together before marriage were the most likely to divorce within five years, whereas couples with a college degree had a 34% chance of divorcing after five years.

There has also been a significant increase in couples who are choosing to live together before getting married. In the last 25 years, the number of couples cohabitating has almost doubled.

“We thought maybe the number had plateaued,” said Wendy D. Manning, co-director of the National Center for Family and Marriage, “but it continues to rise. Now about two-thirds have ever cohabited. That’s really striking.”

Recent Settlement by Fairview Park Schools Demonstrates Importance of Contract

Many businesses may not realize the necessity of a contract when making hiring decisions, and the impact it can have on a company.

A recent settlement from the Fairview Park school board highlights the significance of this area of the law, demonstrating situations that can commonly arise when the hiring body and an employee disagree.

In this six-figure settlement, the man hired to become Fairview Parks’ district superintendent contested the board’s rescinding of his job offer. Geoffrey Andrews received $150,000 as a settlement over the contract dispute he had with the Fairview Park school board. Even though Andrews had never worked one day for the district, based on the contract both parties had previously agreed to, he was still entitled to receive over six-figures.

This example of a hefty settlement serves as a vital lesson for any business, small or large, and the necessity of an experienced contracts attorney.

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.

Is there a reliable way to measure your blood alcohol content?

Driving with a blood-alcohol content of 0.08 percent or higher is against the law.

According to the National Highway Traffic Safety Administration, 10,076 people died in crashes involving an alcohol-impaired driver in 2013. This poses the question, is there a practical way that a driver can measure their own blood alcohol levels before getting behind the wheel? With such a device, not only could one avoid a DUI, but they could also ensure safe road conditions.

Bactrack promises drivers a practical and accurate method of measuring blood alcohol levels

The Philadelphia Daily News recently featured a personal breathalyzer called BACtrack.

States Keith Nothacker, creator of BACtrack, “Would you drive a car that doesn’t have a speedometer? That’s the level of disadvantage we all used to have, that first got me working on this product. Truthfully, there isn’t a day when you shouldn’t be drinking and acting responsibly.”

If this product proves to be effective, the results from people using it could be dramatic. As Linda Sposato, a victim services specialist for Mothers Against Drunk Driving states, “DUIs and DUI crashes are one hundred percent preventable. We don’t need to go out and find a cure. We just need people to be responsible.”

What every business owner needs to know about premises liability

What is premises liability and why is it important to every business owner?

Many are familiar with personal injuries, but the term premises liability remains a mystery. A recent article in Forbes details circumstances that could lead to a premises liability lawsuit, and the steps to take to avoid one.

Even as a renter, your business is liable and the burden will not fall solely on the landlord in a lawsuit. The importance of protecting your workplace and your business from a potential lawsuit is essential. “If an unsafe condition is discovered (or even suspected), it must be corrected immediately.

Neither you nor your employees should assume that someone else will clean up the spill, flatten the entryway mat, or clear ice and snow off the walkway. Establish clear policies and procedures so your employees know what to do when it comes to dangerous conditions.”

As an employee, you are also entitled to a safe working environment. Just as it is essential for a business owner to know their rights and the laws surrounding their business, it is also vital for an employee to understand that laws have been established and are in place to keep them safe in their workplace.

Do 50% of marriages end in divorce?

There are many popular beliefs about the chances of a marriage lasting or heading toward divorce. The most widely believed statistic is that one in two marriages end in divorce.

In the state of Ohio alone, nine out of 1,000 marriages end in divorce each year

According to a web site created by the State of Ohio, nine out of 1,000 marriages end in divorce each year In the state of Ohio alone. Based on reports from the CDC, both divorce rates and marriage rates are decreasing, and information implies that a 50% divorce rate is an inaccurate statistic.

A state by state comparison identified which states are the easiest and the most difficult to obtain a divorce. Looking at a combination of factors such as how long spouses must be residents in the state, the cost of filing fees, the waiting period to file, and the separation requirement before a divorce can be filed, Ohio secured a score of 45, making it not the easiest (Alaska with 100 points), but also not the most difficult state (Arkansas with 20 points)  to get a divorce.

Shape magazine recently published an article that identified common myths surrounding marriage and divorce; for example, if you marry when you are young, does this increase your chances of getting a divorce? Does living together before marriage shorten your time as husband and wife? The findings rebuke several misconceptions surrounding marriage and divorce.

If you ever have questions about your rights and responsibilities with a divorce, support or custody issue, call us at 800-529-1966 to set up an initial free consultation.

Lead poisoning poses the greatest threat to children

At least four million households have children that are being exposed to high levels of lead.

The number one environmental health risk to kids is found in their home.

At least four million households have children that are being exposed to high levels of lead, states Dr. Wornie Reed, Director of the Race and Social Policy Research Center.

Approximately half a million children ages one to five living in the United States have blood levels above what the CDC considers to be safe. While lead poisoning is completely preventable if proper steps are taken, once it is diagnosed it is incurable.

Most homes built before 1978 have some lead-based paint in them. Often that paint is covered with layers of newer paint. But if paint is peeling, chipping or cracking, it's a significant health threat.

Young children are at an increased risk of exposure as they can ingest the poison while crawling on floors contaminated by paint dust, and often put their hands in their mouths.

The Environmental Protection Agency warns that particles the size of two grains of sugar per day, ingested over a month, can cause impairment.

While it is the most preventable environmental disease facing young children in the United States, the risks associated with lead poisoning cannot be understated. It is essential for parents to obtain legal counsel to provide assistance for these permanent injuries.  

If you know of a child that has been the victim of lead poisoning, please call us immediately at 800-529-1966.  We have handled many lead poisoning cases and have lead the charge in Ohio for the last 20 years in lead poisoning cases.

Arrested for a DUI while sitting in a parked car

Arresting officers do not always need to observe driving in order to issue a dui charge

Many assume that a person must be driving a moving vehicle in order to be arrested. However, there are cases where a person is charged with a DUI even when the arresting officer did not witness the person driving.

Take for example, the case of State v. Robinson, 2001-Ohio-1394. “Upon arrival, the Deputy found the Defendant in a vehicle that was pulled into a parking space in an apartment parking lot. The officers did not observe any driving by the Defendant.”

In this case, the defendant was involved in a single-car accident, admitted to consuming alcohol, failed the field sobriety test and told the officers that she needed to pick up her child at daycare.

While the arresting officers did not observe any driving of the vehicle, the arrest and DUI charges ensued.

Falling asleep in the drivers seat, sitting in a parked car, pulling over to the side of the road, and even changing a tire are all examples of various situations that could potentially lead to a DUI arrest. In each of these instances, the arresting officer determines that the driver had in fact operated the vehicle, or had every intention of driving the car.

If you ever have a question about your rights and obligations in a DUi case, call our 24/7 hotline at 800-529-1966.

Celebrate St. Patty’s Day With Caution

St. Patrick's Day in Cleveland holds many time-honored traditions for the faithful Irish and locals.

Festivities downtown and beyond are sure to bring good cheer to all, but be aware of reckless drivers and take care to avoid any drunk driving situations.

• Uber: A great way to arrange a car ride to the parade, and by using the code JACKPOT, your first Uber ride up to $25 is free.
• RTA: This is the Greater Cleveland Regional Transit Authority’s busiest day of the year, so the RTA makes many accommodations for this day and offers an easy way to plan your route.
• Westlake Cab: Services are available 24/7. 

Enjoy the St. Patty’s Day Parade Safely

Ohio’s oldest parade, Cleveland’s St. Patrick’s Day Parade typically hosts over 300,000 attendants. Many are already planning to join this year’s festivities on Thursday, March 17. The parade boasts over 10,000 people participating in the parade route.

Such a large-scale event comes an increased police presence, and an increased risk for a DUI arrest. A combination of DUI checkpoints and saturation patrols will be actively seeking drivers who are impaired. Elyria police are increasing drunken-driving enforcement for St. Patrick's Day as a result of receiving a federal grant. Last year, the Cuyahoga County DUI Taskforce joined forces to ensure safe driving. 

If you are not attending St. Patrick's Day festivities, be aware of recklessness on the roads. For more advice on DUI laws, contact Lipson O'Shea Legal Group.

Take the RTA, Uber or a cab if you plan on participating in St. Patty's Day celebrations

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“We see all too many DUI cases as a result of St. Patrick’s Day revelry. Please, don’t drink and drive. ”

— Attorney Michael O'Shea

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.