Tuesday, December 15, 2009

Cell Phone Search Warrant - a Must

In what could be one of the most functionally important criminal justice decisions of the year, the Ohio Supreme Court of Ohio today issued a search and seizure opinion on how and when police departments can search for cell phone data. In State v. Smith, the Court essentially held that the police must obtain a search warrant if they want to search the contents of a cell phone they have seized from an arrested person. This is somewhat of a refinement or distinction on the "search-incident-to-arrest" concept that allows the police to search a person or that person's car (and closed containers in that car) after that person has been arrested. The Court stated that given the "unique nature" of modern cell phones, they are more akin to a laptop computer (which clear case law says requires a search warrant) than closed containers found in a car (which clear case law says does not require a search warrant). This case will not prevent police from eventually searching a cell phone if they really want to, because all they will have to do is obtain a quick search warrant (very easy to do these days) and THEN search the phone. Further, remember that police can also obtain a call history by issuing a properly prepared subpoena or search warrant to the cell phone service provider (e.g. Verizon, AT&T, Sprint). Thought: If you are going to be involved in a criminal enterprise, delete all of that incriminating data on the phone in case you are arrested.

Saturday, December 5, 2009

The Interest Rate in Contracts

The Ohio Supreme Court issued another business litigation decision this past week concerning the interest rate that a company or person must pay when they fail to pay on a contractual obligation. The case of Mayer v. Medancic concentrated on whether that interest rate can be a "simple" interest rate or an interest rate that allows for the "compounding" of interest. If it is a "simple" interest rate, then all the unpaid amount generates is interest only. If it is a "compounding" interest rate, then interest runs on the original unpaid amount - plus the previously unpaid and accrued interest. For example, if the unpaid amount is $10,000.00, and the contract between the parties just states that the interest rate is 8% (i.e. it does not specify whether or not it is a simple interest rate or a compounding interest charge), then the unpaid amount generates only $800.00 in interest per year. However, if the contract in this example specifically states that the interest rate on the unpaid amount is 8% to be compounded annually, then at the end of each year, the $800.00 interest incurred is added to the $10,000.00 principal, and 8% interest thereafter is earned on a now increased principal amount of $10,800.00. Obviously, a written agreement that calls for a compounding interest rate is going to generate a much larger overall amount of interest than a written agreement that either specifically calls for a simple interest rate or is silent on the matter. Suggestion, read your contacts and loan agreements very carefully on how interest is to be charged if a party defaults - especially of the compounding language calls for the interest to be compounded quarterly or even monthly.
It must also be pointed out that the interest rate statute has a number of specific provisions on what the statutory or limited interest rate may be for any specific written agreement. The amount of interest rate to be charged under the statute can very depending on what type of written document is involved. That topic is for another post and is not specifically discussed here.

The Spousal Privilege - Revisited

The Ohio Supreme Court has issued a new opinion involving a doctrine the law calls "spousal privilege." The old doctrine basically holds that a wife cannot testify against her husband in a court of law unless the husband permits her to do so (and, further, that a husband cannot testify against his wife in a court of law unless the wife permits him to do so) - if that testimony involves "confidential communications." For example, if a husband tells his wife in confidence that he committed a crime, the prosecutor cannot compel that wife to testify against the husband at trial about that confidential conversation. In this example, it is the husband who gets to determine whether to invoke the privilege - not the wife. In this most recent opinion (State v. Perez), the Supreme Court of Ohio held that while a wife may not testify against her husband in a criminal trial, any tape recordings of those conversations may be played for the the jury at trial. The Court held that this technical bypass of the privilege was, essentially, OK with them. After all, said the Court, the wife did not testify - the prosecution just played the tapes. Suggestion, check the room for bugs when planning a crime in the presence of your wife.

Sunday, November 29, 2009

Subrogation - Again

We think that "subrogation" is such an important concept in the personal injury field, that we have decided to re-publish our July 25, 2009 post on this subject, and then give you some more information on the concept.

First, our post from July 25, 2009 is reprinted below:

When a person receives medical services as a result of an accident, the medical providers and/or the medical bill payors (e.g. medical insurance companies, Medicaid, Medicare, or Worker’s Compensation) almost always have what the law calls a “subrogation” claim on any monies that the injured person may end up collecting from the negligent party. In short, if the injured party gets compensated for the injury, the subrogation concept is that they essentially must pay these entities back for the medical bills or medical bills payments made by these entities. This subrogation area of personal injury law gets more complicated each day, with state statutes and federal statutes and medical insurance contracts getting more involved. Plaintiffs (and their lawyers) must be very careful to protect the subrogation interests of these entities – or they themselves can get sued in connection with the personal injury claim. It is very important for the client and the lawyer to identify and monitor the subrogation issues in the claim so there are no surprises when or after the client finally receives compensation.

Second, some more things to think about.

Medicare laws now in effect on the issue of subrogation have gotten even more complicated. Now, if you are injured in an accident, and you are getting ready to settle that accident, you and your medical providers have to use your best guess as to what medical bills you will, in the future, incur - and do your best to put aside settlement money to cover those costs. If you don't, Medicare can essentially sue both you and your lawyer for not doing so. So, before you settle any personal injury case where some or all of your medical bills have been paid by Medicare, be very careful to stay in full dialogue with the proper officials at Medicare about what they and your (and your lawyer) can agree will be the FUTURE medical costs likely to be paid by Medicare.

Further, some private health insurance companies actually hire professional subrogation companies to monitor the subrogation issues associated with a person's injury, and these subrogation companies will track you and your lawyer down to make sure that the health insurance company gets as much of its money back as it can. Most health insurance contracts that cover the relationship between a patient and the health insurance company require the patient to fully notify and cooperate with these professional subrogation companies. Again, like Medicare, if you or your lawyer ignore these subrogation issues, the professional subrogation companies can sue you to get the money the health insurance company was contractually entitled to.

Further still, subrogation law allows public health insurance companies like Medicaid and Medicare (and even some private health insurance companies) to actually have a direct claim against a defendant for the medical bills already paid by them. So, some defendants (and their lawyers) in personal injury claims will insist that they place both the client's and the health insurance/public insurance company's name on the check when a case is settled in order to assure themselves that they can't later be sued by the public or private health insurance provider.

Complicated enough for ya? We live this these issues every day.

Wednesday, November 18, 2009

Damaging the Phone While Someone is Calling 911

The Ohio Supreme Court decided that if someone damages or otherwise interrupts the attempted electronic contact with the police or fire department, they can be prosecuted and convicted for "Disrupting Public Service" - which is a felony. In State v. Robinson, 2009-Ohio-5937, the Court held that if that "conduct substantially impairs the ability of law-enforcement officers, firefighters, rescue personnel, emergency-medical-services personnel, or emergency-facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm," then the person causing the damage can be prosecuted and convicted of that statute. This situation comes up most often when one person snatches the phone from another person trying to call 911 and damages the phone or the phone line. The defendant in that case had tried to argue that the statute can only apply when the actions of the a defendant shut down or interfere with an entire phone system - rather than just one phone. However, the Supreme Court of Ohio rejected that argument and held that just damaging one phone is enough for a conviction. If someone is calling the cops over what can only be a misdemeanor, the damaging of the phone to prevent or interfere with that call transforms the whole incident into a felony. So don't smash the phone - just sit and wait for the cops or walk away.

More on Arbitration Agreements

We have previously brought you updates on the area of law involving arbitration agreements. As you may recall (or already know), contracts can contain clauses or provisions which require the parties to submit to arbitration if a dispute arises about the contact. While the debate on whether these clauses are a good idea rages on, the Ohio Supreme Court continues to issue opinions on how these arbitration provisions work. In its most recent opinion, the Court, in Mynes v. Brooks, 2009-Ohio-5946, held that if one party sues another over a contact which has an arbitration provision, and one party to that lawsuit files a motion to have the lawsuit suspended so that arbitration can resolve the dispute, either the "non-moving" party or the "moving" party has the right to appeal that decision immediately. Essentially, that means that the neither the moving party or the non-moving party has to wait until the whole lawsuit is over in order to present their issue to the court of appeals. In short, this has the net effect of potentially making the whole litigation process longer - rather than shorter as intended by the arbitration concept. Businesses and individuals have to seriously consider the practical effect of these arbitration provisions when signing a contract.

Monday, November 9, 2009

Experts, Specific Values and "Financial Misconduct" in Divorce Cases

The Cuyahoga County Court of Appeals has just recently reaffirmed that when a domestic relations court is faced with two values for a business, one provided by the husband and the other provided by the wife, the Court is permitted to exercise its "discretion" to determine which value, based upon the evidence, is proper. This discretion is a powerful right possessed by the domestic relations court, but there must be credible and objective evidence and reasoning presented to the Court in support of the value. In the case of Haynes v. Haynes, 2009 Ohio 5360, the Court also sent the case back to the domestic relations court to obtain specific values of the parties property so that the Court could mathematically divide all of the property as equally as possible. For some reason, the parties did not present (and the trial court magistrate did not require) specific values for important pieces of property that had to be divided by the court. Ohio law requires that a domestic relations court do its best to divide up all of the marital property equally - and obtaining values for all of the relevant property is absolutely necessary to obtain an equal division. The Court also held that the trial court was correct in holding that using business funds to pay for gambling debts was "financial misconduct," and that the gambling spouse could lose a portion of their half of the marital estate for such conduct. Ohio divorce law holds that if one spouse engages in "financial misconduct," the court can penalize that spouse by taking away a portion of the marital estate and giving it to the other spouse.

The Supreme Court of the United States addresses DUI tipsters

In what is rather a rare situation, the United States Supreme Court is reviewing (and eventually answering) the question of whether or not an anonymous tip of possible drunk driving to a police department is sufficient to give police officers of that department the right to pull over that driver. In the case of Virgina v. Harris, the prosecution is trying to convince the United States Supreme Court that the Supreme Court of Virginia was wrong when that Virginia Court held that an anonymous tip is not enough for a police officer to pull over the driver - and that the officer must actually see the driver driving poorly before that officer can pull over the driver. Since the case just got to the United States Supreme Court, it may indeed be sometime in the future before we get an an answer to this question. The answer to this question shall be binding on all states in the Union - including Ohio. Ohio currently allows for anonymous tips to provide enough "reasonable suspicion" for the police to pull over a driver if the tip was proven to be "reliable" and the tip has not gotten stale over time. Stay tuned . . . We will let you all know as soon as we get the ruling.

Sunday, November 8, 2009

Recent Ruling on Class Actions

The Cuyahoga County Court of Appeals has recently issued a ruling on what the law calls "class actions." In a case involving a Consumer Sales Practices Act lawsuit against a car dealership (Konarzewski v. Ganely, Inc., 2009 Ohio 5827), the Court of Appeals ruled that (i) the persons to be included in the class were ascertainable and (ii) the transactions at issue were similar enough (i.e. the claims were "typical" enough and had enough "commonality") to proceed as a class action. The defendant, in a further attempt to prevent the certification of the class. claimed that the class definition was not clear enough. However, the Court also rejected that argument and stated that the definition does not have to specifically identify every member by name - it just has to be clear enough to give a court an idea of how to identify who the potential members might be once the class is certified. The Court of Appeals has now sent the case back to the trial court with instructions to certify the class and work in refining the class definition. This ruling could have large implications for businesses that rely on a large volume of small transactions. If the custom of that business is to engage in a minor manipulation of the law each time it engages in those transactions, then a class action lawsuit by just one of the affected customers could result on a huge class action lawsuit against the business.

Video of Our Oral Arguments at the Supreme Court of Ohio

In one of our earlier posts, we notified you of the fact that we had an important case pending with the Supreme Court of Ohio. That case involved a dog mauling of a young girl. When that case went to trial, the trial court made us chose between 2 types of case presentation, which we believed was against the law. The Court of Appeals agreed with us (see the Court of Appeals decision), but the insurance carrier for the dog owners wanted to have the Supreme Court of Ohio hear the case. You can hear the September 30, 2009 oral arguments Michael O'Shea made at the Supreme Court of Ohio in Case No. 2008-2106 Yoshanta Beckett et al. v. Richard Warren et al. by clicking here. Give us some comments if you want.

Leaving Home Monitoring System Can Result in an Escape Charge

The Cuyahoga County Court of Appeals has just ruled that a if person is on electronic home detention (e.g. an electric ankle bracelet that monitors the location of a defendant) while on probation, and that person defies the geographical limitations of the bracelet or snaps-off/shuts-off the bracelet, that person can be charged with a separate and subsequent escape crime - even if that person was sent to jail for a probation violation. The defendant in State v. Peters, 2009 Ohio 5836 argued that, because the trial court had already sent him to prison for violating the electronic monitoring terms (i.e. ankle bracelet) of his probation, charging him with a separate and subsequent crime for the same conduct violated the "double jeopardy" clause of the Ohio and United States Constitution. However, the Court of Appeals disagreed. The Court held that (i) charging one for conduct which also resulted in a probation violation is not a violation of double jeopardy and (ii) a trial court is without authority to dismiss an indictment prior to trial because there is no legal mechanism (as there is in a civil case) for a court to do so. Suggestion, keep the ankle bracelet on and keep watching Oprah.

Mandatory Longer Sentence for DUI Breath Test Refusal Found Consitutional

In still another ruling on the ongoing debate about DUI sentencing statutes, the Supreme Court of Ohio recently ruled that the extra 10-day sentence mandated by Ohio law on those who (i) have a prior DUI conviction and (ii) refuse the breath test on a subsequent DUI arrest and conviction is not a violation of the Fourth Amendment of the Ohio and United States Constitution. The defendant in State v. Hoover, 2009-Ohio-4993 alleged that the mandatory breath test required under Ohio DUI law violated his Constitutional right against "unreasonable searches and seizures" - a right protected by the Fourth Amendment of the Ohio and United States Constitution. However, in a narrow 4-3 decision, the Supreme Court of Ohio rejected that argument, holding that a series of decisions by the Court have already held that a defendant does not ever have a right to refuse a breath test, and, therefore, any increased in penalty for a refusal of the test cannot be unconstitutional. These prior holdings have all been based upon the idea that when a person requests and obtains an Ohio driver's license, that persons has consented to having their breath tested at any time they are arrested for a DUI. So if a person has a prior DUI conviction, and that person is subsequently arrested for another DUI and refuses a breath test, that person is facing (i) a 10-day sentence for a 2nd DUI and (ii) an ADDITIONAL 10-day sentence for refusing the test - for a total minimum sentence of 20 days. If that same person had consented to the test (and tested over the legal limit), they would only be facing a mandatory sentence of 10-days. A person with a prior DUI conviction has to really ponder whether refusing a breath test if arrested for a 2nd DUI is worth the extra penalty. Suggestion, consult with a lawyer as soon as you are confronted with this issue.

New Ohio Supreme Court Ruling on Expungements

The Supreme Court of Ohio has just issued an important ruling which clarifies some of the issues defendants and their lawyers are faced with when dealing with whether or not a defendant can obtain an expungement of multiple convictions stemming from a single event of criminal conduct. In State v. Futrall, 2009-Ohio-5590, the Supreme Court of Ohio held that if any of the criminal convictions stemming from the same series of events are barred from being expunged, then all of the separate convictions from that series of events cannot be expunged. For instance, if the defendant's course of conduct resulted in 4 separate convictions, if only one of those convictions is barred by statute from being expunged, then all of the convictions from that case are also barred from being expunged. Some types of convictions are barred by law from being expunged (for example, various crimes of violence and DUIs). If the defendant after a trial or as part of a plea negotiation is found guilty of one of these convictions, her/she cannot get any of what would otherwise be expungible convictions expunged. Thus, defendants and thier lawyers must be very cautious when considering this new ruling when deciding to go t trial or enter a plea - especially if that defendant has aspirations of getting that particular conviction(s) expunged in the future.

Friday, August 21, 2009

Spousal Support Payors Have to Watch Their Expenses

The Eighth District Court of Appeals has essentially ruled that a domestic relations court can rely on the monthly expenses voluntarily paid by an ex-husband as method of determining the actual functional income of the ex-husband for spousal support purposes. In Feldman v. Feldman, the Court held that it was proper for a magistrate to rely on the monthly expenses of the ex-husband - as opposed to the stated income of the ex-husband - to determine the amount of spousal support the ex-husband must continue to pay to the ex-wife. Thought: If in your divorce your actual monthly expenses exceed what you claim is your monthly income, you have some explaining to do.

More on Arbitration Agreements and Awards

On Ohio Court of Appeals has just held that if you sign a contract that has an arbitration provision (i.e. where the parties agree that all disputes under the contract must be arbitrated rather than litigated in a courtroom by a judge or jury), and, further, if the arbitrator issues a arbitration judgment against you, a court must ratify/confirm that judgment if the winning party applies to have the court do so. In NCO v. Reese, the court held that a trial court had erred when it failed to ratify/confirm an arbitration ruling, and that the trial court in fact HAS to ratify/confirm the arbitration ruling UNLESS the losing party can prove one of VERY limited number of factors. Thought: Be very careful about signing any contract containing an arbitration clause - you may be waving many of the rights you would otherwise have in a courtroom.

Cognovit Note Can Backfire

The Eighth District Court of Appeals has recently held that cognovit notes can, if improperly drafted, can backfire on the drafter. (Cognovit notes are special promissory notes - controlled by statute- which give the holder of the note the ability to get an immediate and automatic judgment if the debtor defaults - without the normal delay associated with normal litigation). If the language in the cognovit note is defective (that is, not drafted according to the statutory mandate), any judgment rendered on the note is void - and unless the complaint is properly served upon the defendant, any other normal judgment rendered against the defendant in a normal litigation process is void as well. In Adams v. Bennett, the Court made it clear that anyone (be it a pro se litigant or a lawyer) who incorrectly drafts a cognovit note may essentially have a worthless document. Thought: Forget the store bought or non-lawyer drafted cognovit notes if the loan in question is important to you.

Saturday, July 25, 2009

Our recent success in real estate litigation.

In a recent success for clients of ours, we were able to prevent their eviction when we filed documents which alleged that the real property they were living in was actually their property that they were buying indirectly from their business partner who was trying to evict them. Given the fact that the clients had worked out a business arrangement with the landlord/business partner wherein the clients lived in the condominium under a land contract business in partial return for their contribution to the business, the landlord was prevented from proceeding on his expedited eviction. A very big day for those clients.

Another arbitration clause ruling

In another ruling from the Supreme Court of Ohio on the issue of the enforceability of arbitration clauses, the Court has once again ruled that clauses requiring arbitration will be broadly enforced, and that almost any aspect any issue arising from the contractual arrangement will have to be arbitrated if the contract contains an arbitration clause. In Alexander v. Wells Fargo Financial Ohio 1, Inc., the Supreme Court of Ohio ruled that even if the breach of a contact would trigger statutory penalties, the penalties still have to be arbitrated. Generally speaking, arbitration is preferred by businesses because arbitrators are often business insiders (who are presumed to have pro-business leanings) and because the requirement to arbitrate a claim essentially eliminates the ability to prosecute a class action against a business. Thought: If your business is entering into a contact with a bigger business, be careful to read the contract to see whether you want to waive your right to have a trial court resolve your dispute rather than an industry insider.

Ex-Wife Can Use Fraudulent Transfer Act to Go After Ex-Husband’s Assets

In a recent decision by the Cuyahoga County Court of Appeals, the Court held that an ex-wife could successfully void a transfer/sale of a business asset by the ex-husband if the ex-wife could prove that the transfer/sale was done to put the assets out of reach of the ex-wife. In the case of Dinu v. Dinu, the Court held that if the wife had obtained a Domestic Relations Court support arrearage amount (in this case approximately $20,000), and the ex-husband had transferred/sold some business assets to prevent the ex-wife from seizing the assets to pay the judgment, she could sue the ex-husband and the purchasers of the assets in the General Division Common Pleas Court to void the transfer (i.e. she did not have to utilize the Domestic Relations Court to try to void the transfer). Thought: This woman may have had the ability to try to undue the transfer by adding defendants to the Domestic Relations Court divorce action (something the law certainly allows while the divorce is pending), but she chose another venue. Looks like this gives ex-spouses options when faced with this type of asset transfer activity.

27-year Wait is Too Long to Find Assets

In a recent decision by the Cuyahoga County Court of Appeals, the Court held that a woman waited too long to try to reopen her divorce case on the allegation that a pension asset was hidden from her by her ex-husband. In the case of Rodgers v. Rodgers, the Court held that the ex-wife’s wait of 27 years was simply too long – even though it was somewhat clear that the large pension asset had been hidden from her at the time of her divorce. Thought: Do you homework before you sign a divorce papers or divorce decree and don’t dilly dally if you learn or believe that your ex-spouse his some assets from you during your divorce).

The Municipal Courts in this Area

There is a certain business operation in suburban misdemeanor criminal justice. Suburban municipal courts handle all of the suburban misdemeanor prosecutions in the Northeastern Ohio area. Some municipal courts handle just the city where they are located - like Lakewood, South Euclid, East Cleveland, Euclid and Cleveland Heights. Some municipal courts handle multiple cities - like Parma (8 cities), Rocky River (5 cities), Garfield Heights (8 cities), Berea (6 cities), Bedford (13 cities), Stow (16 cities), Lyndhurst (6 cities), and Elyria (10 cities). Often a client has been initially confused as to why their case went to a municipal court that was located outside of the city where they were alleged to have committed a traffic or criminal offense. Essentially some cites find it much easier to have the business of their trial court cases essentially “outsourced” to another city. In fact, often cities actually compete to get the business of a municipal court operation. Recently, one municipal court which served over ten cities relocated from one city to another because the new city essentially offered a better deal, and, of course, a brand new courthouse. Our active practice has taken us to all of these courthouses.

Recent United States Supreme Court Sentencing Case and Courts of Appeals in Ohio

Recently the United States Supreme Court came out with a decision (Oregon v. Ice) that was an attempt to further clarify an area of sentencing law that has plagued the courts for almost a decade. What can trial court judges take into consideration when they are sentencing a person for a plea or a conviction? One continuing constitutional theory (started by two United States Supreme Court cases of Apprendi v. New Jersey and Blakely v. Washington) is that if there are facts that will increase a sentence, then the due process clause of the United States Constitution requires that a jury also find those facts beyond a reasonable doubt as well. For instance, if a defendant is found guilty of a theft, and the judge may sentence the defendant for more time if the theft involved an elderly person, then the law is that a jury must find that the case involved an elderly person before the judge imposes that additional time. Oregon v. Ice was an attempt to clarify this issue further. That case allowed a trial court to impose “consecutive” sentences (when a defendant is found guilty of more than one offense) even if the jury did not make a legal or factual determination about the factor that the judge used to impose the consecutive sentence.

Recent United States Supreme Court Search Case and Courts of Appeals in Ohio.

Recently the United States Supreme Court came out with a decision that has somewhat redirected the analysis that courts in the United States must use in what are commonly referred to as car search cases (i.e. where police search cars incident to an arrest). This case is called Arizona v. Gant, which, in real short summary, now forbids police officers from searching a car in most circumstances once the police have arrested that driver/passenger and that driver/passenger is away from the car. Courts in the United States, including Courts of Appeals in Ohio, are now forced to deal with this new case, and, in more than a few circumstances, are suppressing the results of what are now (i.e. after the issuance of Arizona v. Gant) illegal searches. Gant, and the developing body of trial court and court of appeals cases that are now applying Gant, are causing a good amount of new motion-to-suppress work for many police, prosecutors, defense lawyers and judges.

What is Subrogation – and How Subrogation Affects Personal Injury Claims.

When a person receives medical services as a result of an accident, the medical providers and/or the medical bill payors (e.g. medical insurance companies, Medicaid, Medicare, or Worker’s Compensation) almost always have what the law calls a “subrogation” claim on any monies that the injured person may end up collecting from the negligent party. In short, if the injured party gets compensated for the injury, the subrogation concept is that they essentially must pay these entities back for the medical bills or medical bills payments made by these entities. This subrogation area of personal injury law gets more complicated each day, with state statutes and federal statutes and medical insurance contracts getting more involved. Plaintiffs (and their lawyers) must be very careful to protect the subrogation interests of these entities – or they themselves can get sued in connection with the personal injury claim. It is very important for the client and the lawyer to identify and monitor the subrogation issues in the claim so there are no surprises when or after the client finally receives compensation.

The Importance of “Honesty” in Personal Injury Claims.

A recent article written by a personal injury attorney in Virginia confirms our own experiences in the personal injury world. In short, be honest. Be honest to your lawyer and with your medical providers. This means telling them what you really recall from the accident in question, and this also means telling them about all of the other accidents and injuries that you have sustained in the past. Remember, insurance companies can talk to each other and actually look up your prior claims. Further, almost all insurance companies (and the lawyers that work for them) will have the legal ability to research much of your medical history. We have seen more disasters than we wanted to when a client either failed to tell us or the treating doctors about the real facts that lead to the injury or the fact that they had prior injuries or claims. What would have been rather valid and compensable injuries evaporated (in a nuclear explosion) when the insurance company (or its lawyers) found a discrepancy, lie or even an exaggeration in the client’s story or medical treatment. Juries are already skeptical enough these days about even serious and legitimate claims. Lies or exaggerations not only feed that skepticism, they essentially can kill the claim altogether.

“Open and Obvious Doctrine” remains a strong defense in Ohio.

The Supreme Court of Ohio (Lang v. Holly Mill Hotel) recently held that an older legal defense called the “open and obvious doctrine” is still good law in Ohio. This legal doctrine holds that if a jury finds that a hazard located on a residential or commercial is so “open and obvious,” then an injured person cannot recover for injuries received from the hazard. Even if the hazard on the property in question results in building or housing code violations, the property owner can still argue that the hazard was so “open and obvious” that the injured person should have noticed the hazard. Thought: Just like your parents told you when you were younger, “watch your step fella.”

Thursday, May 28, 2009

New Jersey Appeals Court Ruling on DUI Case Where Defendant Asleep at the Wheel

Reprint from the New Jersey Law Journal (7/28/2009)
Being drunk behind the wheel of a parked vehicle, even with the engine running and the parking brake off, can't carry a DWI conviction without proof of intention to drive, a New Jersey appeals court held on Tuesday.
Though unpublished, the ruling is notable for its departure from the New Jersey courts' usual strict tendency to uphold drunken driving convictions based on observational evidence of any form of operation of a vehicle.
In State v. Putz , A-1004-08, the Appellate Division said the trial court ignored credible evidence that the defendant, who was found asleep in his idling pick-up truck after midnight, had no intent to move the vehicle.

O'Shea & Associates Note:
Ohio may have addressed this problem when it enacted a law called "physical control." Under that newer statute (RC 4511.194), a person may be convicted for being under the influence in a non-moving/parked car. The penalties for a violation of this statute are somewhat less that for a violation of the normal DUI statutes (RC 4511.19/4511.191). Many experienced DUI lawyers try to get a prosecutor to offer a DUI defendant the opportunity to plea to a "physical control" violation. Looks like New Jersey may have to play catch-up to Ohio on this issue.

Wednesday, May 27, 2009

President Obama Nominates New Supreme Court Justice

President Obama just nominated a new candidate for the United States Supreme Court. This nominee will replace the outgoing/retiring Justice Souter. If confirmed by Congress, United States Federal Court of Appeals Judge Sonia Sotomayor would be the third female justice and the first Hispanic justice in the history of the United States Supreme Court. After graduating summa cum laude from Princeton, she went to Yale Law School. Judge Sotomayor, a former prosecutor who also practiced law for a New York firm, has served for more than a decade on the Court of Appeals for the Second Circuit, based in New York City. Bill Clinton nominated Sotomayor for the U.S. Court of Appeals for the Second Circuit in 1997. George H. W. Bush nominated Sotomayor as a federal judge in 1991 -- a position that made Sotomayor the youngest judge in the Southern District of New York and the first Hispanic federal judge in the state.

United States Supreme Court Ruling on Police Interviews of Defendants in Absence of a Lawyer

The United States Supreme Court issued an important and law-changing decision this week on the issue of whether police may interview a defendant in the absence of his lawyer. In the case of Montejo v. Louisiana (see http://www.supremecourtus.gov/opinions/08pdf/07-1529.pdf), the United States Supreme Court held that police may in fact interview a defendant even if the defendant has a known lawyer if the defendant voluntarily chooses to speak with the police. This watershed decision overruled a 35-year-old decision from the United States Supreme Court which barred the practice. How this decision is applied or used by various police and prosecutorial authorities remains to be seen. If we have a situation involving an unsophisticated defendant (i.e. a defendant that is unaware of his or her right to remain silent in the absence of their lawyer), the potential for abuse may be huge. We'll just have to wait and see.

Tuesday, May 26, 2009

Our collection litigation success.

We just obtained a collection litigation success for one of our wholesale food product clients. We had obtained what might have been initially perceived as an uncollectable judgment. However, with some persistence, we were able to track down the judgment debtor and discovered that the judgment debtor had started a new business. We used a legal technique that permitted us to seize that business until our entire judgment was paid in full. We were happy to mail our client their check this past week.

Monday, May 18, 2009

We are going to argue a "dog attack" case at the Supreme Court of Ohio.

We are going to argue a case later this fall in the Supreme Court of Ohio. The Supreme Court of Ohio will hear arguments about a case involving a dog mauling of a young child in Akron, Ohio. The trial court issued a ruling that forbid us from presenting the jury with evidence that the same dog had attacked another person about one month earlier. We won the issue at the Court of Appeals. See http://www.sconet.state.oh.us/rod/docs/pdf/9/2008/2008-ohio-4689.pdf. However, the lawyers for the attacking dog have convinced the Supreme Court of Ohio to decide whether the Court of Appeals got it right. Stay tuned for details.

Supreme Court of Ohio to Rule on Drugs-Into-Jail Case.

The Supreme Court of Ohio will hear arguments on Tuesday, May 19, 2009 on a drug conviction case that came out of Cuyahoga County. The defendant in that case was convicted for having marijuana in his pants cuff when he was conveyed into the County Jail on a drug arrest. The defendant was convicted at trial, but the Cuyahoga Court of Appeals reversed the conviction on the basis that the defendant was not in control of his person after he was arrested by the police. See State v. Cargile: http://www.sconet.state.oh.us/rod/docs/pdf/8/2008/2008-ohio-2783.pdf.

The Ohio Supreme Court has taken up the issue at the request of the prosecution. We will try to update you all when we find out the results of the decision by the Supreme Court of Ohio.

Sunday, May 17, 2009

Business Litigation Update: Avoid oral agreements on big transactions.

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

Our verdict in a workplace assault case.

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

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

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

Criminal Justice Update: Computer hard drives

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

Cuyahoga County Court of Appeals ruling on disability pension benefits.

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

New Ohio Supreme Court ruling on spousal support (aka “alimony”).

The Supreme Court of Ohio has recently ruled that parties (husband and wife) to a divorce decree cannot modify the spousal support (i.e. alimony) provisions of the divorce decree unless the party seeking the modification can prove that there is a “substantial” (vs. minor) change in the financial circumstances of the parties - and that the change must be a change that was not contemplated by the parties at the time the divorce decree was issued. See http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1222.pdf . Thought: The Court was sending a clear message that it wants the parties (and their lawyers) to thoroughly think through their spousal support issues at the time of the divorce, and not come knocking if there has been a post-decree minor change in their lives. So break out those crystal balls if you have them.

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

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