Friday, December 31, 2010

New Years Eve Post

Happy New Year. Drive safely and wisely - especially over the next 48 hours. We will be open 24/7 for the next 48 hours, so call us at 800-529-1966 if you or someone you know makes a mistake or otherwise needs us. Print off the 800 phone number and keep it with you.

The number: 800-529-1966

Michael J. O'Shea, Esq.
O'Shea & Associates Co., L.P.A.
Beachcliff Market Square
19300 Detroit Road - Suite 202
Rocky River, Ohio 44116
(440) 356-2700 - office
(216) 470-8098 - cell
(440) 331-5401 - fax

Wednesday, December 29, 2010

The Ohio Supreme Court Gun Rights Decision

The Ohio Supreme Court issued a somewhat controversial gun rights decision today. In the case of City of Cleveland. v. State of Ohio. the Ohio Supreme Court held that Ohio cities were barred from enforcing any city gun "ordinances" which conflicted with any "statutes" which have been passed by the State of Ohio. In this particular case, the following City of Cleveland ordinances were in alleged conflict with the guns laws passed in Columbus: Cleveland Codified Ordinance 627.08 (possession of firearms by minors), 627.09 (possessing deadly weapons on private property), 627.10 (possessing certain weapons at or about public places), 627A.02 (access to firearms, prohibiting children access to firearms), 628.03 (unlawful conduct, prohibiting possession and sale of assault weapons), and 674.05 (registration of handguns). Essentially this decision is a further pronouncement by the Ohio Supreme Court (as they have done in other cases in the last few years) that the laws passed in Columbus trump the laws passed by individual city councils. Many legal observers see this decision not so much as a victory for gun rights advocates but as a further eroding of what is commonly referred to as "home rule" - the power of individual cities to police themselves.

See the Plain Dealer article about this decision for more background.

Wednesday, December 22, 2010

New York Appeals Court says Golfer Had No Duty to Yell 'Fore'

The New York Law Journal is carrying a story about whether a golfer needs to yell "fore" when he/she hits a ball into an other golfer's direction. A Court of Appeals in New York says no - and that all golfer's "assume the risk" of being hit by another person's golf ball when playing. Or suggestion: always stand behind someone hitting the ball. In this case, the offending golfer was a doctor, and we all assume those folks are good at golf . . . .

Tuesday, December 21, 2010

Violent Crime Down 6.2% in the US - so says the FBI.

Violent Crime Down 6.2% in the US - so says the FBI. See the CNN article. Hopefully the same is true in 2011. By the way, only the Northeast part of the US showed an increase in homicides (vs. the South, the West and the Midwest). So they may not assault you - they will just kill you in the Northeast. Be careful.

Monday, December 20, 2010

Is this a new era for Big Business in the Courts?

A recent New York Times article spent some time discussing whether or not the current US Supreme Court is much more big business friendly that in decades past. Lawyers who litigate in Ohio know that the Ohio Supreme Court (all elected judges/justices) will all be Republicans come January of 2011, and that many pro-big-business-insurance-company issues will be pressed by those groups in the years to come.

In the meantime, drive, bike, fly, walk, work and play more carefully that you ever have, and choose your lawyers and doctors even more carefully.

Friday, December 17, 2010

The dangers of social networks while you are in litigation or a business deal

There have been a number of recent discussions about the "dangers" of over-participating in social networks (e.g. Facebook, Twitter, My Space) while you are a participant in a legal claim or actual litigation - or even a business deal. This is because, obviously, almost anyone can monitor your social activities to the extent that you (or even your "friends") post those activities on social media. There have been incidents in domestic relations cases (let your imagination run wild here) or personal injury claims/lawsuits (e.g. a photo of an alleged injured person jet skiing or playing football) that have revealed information that one did not want revealed. So if you are involved in a divorce case, a personal injury case, or even a business deal/lawsuit where your "social" life can be relevant, be VERY careful about what you or someone else posts about you in social media platforms. Your adversaries can get free private investigation info on your from their desktops or laptops.

So if you have some of these issues in your life, be careful of what you or your buddies post about you.

Thursday, December 16, 2010

What is an "Underage Consumption" OVI Charge?

Under Ohio law, anyone under the age of 21 can (and most likely will) be charged with what is know as an "underage consumption" charge when that person also is arrested for a standard OVI charge. Under Ohio law, anyone under the age of 21 is prohibited from driving with a blood alcohol content level in excess of .02 (vs. .08 for a person over the age of 21). The underage consumption section of the DUI statute is found in subsection "(B)" of that statute, and the ticket issued by the arresting officer can read/charge on the ticket that the offender has violated both subsection "(A)" of the statute (the regular OVI violation for all persons) as well as subsection "(B)" of the statute (reserved for persons under the age of 21). There are some sentencing/penalty differences for a violation of the underage consumption section of the statute vs. the regular OVI subsection of the statute. An underage consumption conviction is a 4th degree misdemeanor (maximum jail time 30 days - maximum fine $250.00) vs. a regular OVI charge being a 1st degree misdemeanor (maximum 180 days in jail - maximum fine up to $2750 [depending on how many priors]). Further, an underage consumption conviction requires that the court wait 60 days in order to grant the defendant limited driving privileges vs. 15 days for a first time OVI defendant. Further, an underage consumption charge also carries only 4 points where a regular OVI conviction carries 6 points. An underage consumption conviction will require the young offender to complete a remedial driving course, obtain an expensive driving insurance bond and retake the driving test in order to get that offender's driver's license back from the Ohio BMV.

Almost always the prosecutor will offer a good defense lawyer a choice between the two charges.

Tuesday, December 14, 2010

The "Commerce Clause" and how it applies to the Federal Court rulings on the Obama healthcare law.

You may have read or heard about the recent ruling by a federal judge in Virginia who struck down a portion of what is commonly called the "ObamaCare" health reform bill. The Judge declared that the provision of the reform bill that required all Americans to have some sort of health insurance violated the "Commerce Clause" of the US Constitution. The Commerce Clause of the US Constitution gives the federal government legislative powers to regulate matters that affect interstate commerce. The Judge ruled, however, that a person who simply fails to act (i.e. refuses to buy health insurance) cannot be said to have actually engaged in commerce. This war of semantics is nothing new when it comes to constitutional challenges, and almost all legal scholars agree that the United States Supreme Court will ultimately have to decide the matter - but this may take at least a few years. In the meantime, only those citizens of Virginia who do not want to buy health insurance will be affected by this ruling. All other state challenges to the health insurance reform law have failed for the time being - including another federal ruling by another federal judge in Virgina. Stay tuned for this one - Ohio has a new Governor and Attorney General coming into office next year - both of whom are not fans of the health insurance reform law.

Friday, December 10, 2010

Texting While Driving

Check out this article about the dangers and liability of "texting while driving." While many cities in Ohio do not (yet) have an outright ban on texting-while-driving, Ohio law does have some statutes (e.g. RC 4511.202 and 4511.33) that prohibit not being in complete control of your vehicle (or weaving out of your lane) while driving. We assume more and more cities will soon adopt a municipal code ordinance that direclty deals with texting-while-driving. Stay tuned and be careful about this activity - many police officers are looking to make examples of how some of these new laws work.

Thursday, December 9, 2010

What's the Difference Between "FST's" and a "BAC" test in DUI cases?

People who come and see us for DUI representation often tell us that they "refused" "THE TEST" - meaning that they refused to submit to the blood alcohol machine (aka the "BAC" machine) at the station AFTER they were arrested. However, what they almost always fail to understand (at least until we tell them) is that the BAC test is only one part of the whole testing process. Prior to their arrest, the officer almost always obtained other important evidence of their guilt - including their general observations of the defendant (including how the defendant smelled, looked and spoke) as well as what are called "Field Sobriety Tests" ("FSTs"). The FSTs must be given to the suspect (on the side of the road for the most part) in a somewhat specific fashion, and that fashion is controlled by a manual put out by the National Highway Transportation Safety Administration (the "NHTSA Manual"). These FSTs are often very helpful to police officers in establishing evidence of driving under the influence. Contrary to what some lawyers and non-lawyers might tell you, refusing to take the FSTs or the BAC may or may not be a good idea. Sometimes the refusal to take the BAC test is something a prosecutor is allowed to strongly comment upon at trial, and the refusal to take the BAC test results (in itself) in an automatic licenses suspension. Further, if you have one or more prior DUIs in the last 20 years, refusing the BAC test results in a separate charge that is more serious (from a jail standpoint) than the DUI itself. It is always a good idea to try to talk to an experienced lawyer before taking any tests in a DUI pullover - but good luck getting an experienced DUI lawyer on the phone at 3:00am. That's why we have a 24/7 DUI hot line at 800-LAW-1966.

Please drink and drive responsibly - especially this time of year.

Judges and Social Media - What are They Allowed to Do?

This week the Ohio Supreme Court issued some guidelines to Ohio judges on how judges are allowed to use social media (Facebook, Twitter, etc.) and who (and how) they are allowed to inneract with on social media. Essentially Judges are not permitted to discuss any of their cases or general legal matters on these sites - and that if they are too closed to any of their Facebook "friends" or Twitter "followers" they should step down from any case which involves them. Further, all of their communications must remain "dignified." See the Columbus Dispatch story on this event - and if you are really bored, you can read the opinion from the Ohio Supreme Court.

Saturday, December 4, 2010

Eyewitness Testimony - Not Always What We Assume

The Cuyahoga Court of Appeals did something recently that Courts generally do not do - toss out eyewitness testimony as being "unreliable." Courts almost always leave it to the jury (and the jury alone) as to whether an eyewitness could have perceived the perpetrator at the scene of the crime and then later identify a perpetrator at trial. However, under Ohio law, there are some rules/guidelines that Courts must evaluate before permitting just any type of witness identification at trial (e.g. how long the witness had to view the guy, the witness's degree of attention at the scene of the crime, the witness's description of the guy to the police at the scene of the crime, and the witness's confidence on the identification). The Court must also assess how the police set up the line-up where the witness identifies the guy to make sure that the line-up process was not unduly suggestive. In State v. Farrow, the Court of Appeals upheld a trial court's exclusion of eyewitness testimony. This is very rare.

Tuesday, November 30, 2010

What is "Spousal Privilege," and why you need to be nice to your spouse

The Ohio Supreme Court just issued an opinion this week that addresses the implications an old but often misunderstood doctrine called the "spousal privilege." Under the codified version of this doctrine, the spouse of a criminal defendant is not competent (i.e. not legally eligible) to testify against his or her spouse at trial unless the defendant is charged with a crime against the spouse or their children, or unless the spouse freely elects to testify. In the old mobster movies, the mobster would always try to marry the star witness against him so that his wife could not testify against him - but this is not how the privilge actually works in Ohio. As set forth above, a spouse is permitted to testify against the other spouse ONLY if either (i) the testifying spouse (or their child) is the victim of the crime or (ii) the spouse simply decides to testify by their own volutary decision. Stated another way, a prosecutor cannot force a spouse to testify against the other spouse unless (i) the testifying spouse or their child is the victim in the crime or (ii) the testifying spouse decides he or she just wants to. So fellas, be nice to your wives.

Saturday, November 27, 2010

Still More on Arbitration Agreements

The highest court in the land, the United States Supreme Court, will soon issue an important decision about "arbitration agreements," those written contract provisions that essentially mandate that persons who are parties to a written contact waive their right to a day in court and, instead, agree to have their dispute heard through a private arbitrator (who is usually an industry insider and who makes a decision that cannot be appealed by either party - no matter how against the law that decision may be). See the article in the New York Times about this case. Stay tuned with us for any future announcements on this very important case.

Thursday, November 25, 2010

Last week we had some scary moments at Rocky River Court. Now we know why we have security bailiffs.

See this amazing courthouse story caught on security video. Last week we had some scary moments at Rocky River Court. Now we know why we have security bailiffs.

Study Finds No Progress in Safety at Hospitals

A recent New York Times article reports that despite awareness of preventable measures, medical mistakes at hospitals seem to keep happening. The article claims "Many of the problems were caused by the hospitals’ failure to use measures that had been proved to avert mistakes and to prevent infections from devices like urinary catheters, ventilators and lines inserted into veins and arteries." The article also states "A recent government report found similar results, saying that in October 2008, 13.5 percent of Medicare beneficiaries — 134,000 patients — experienced “adverse events” during hospital stays. The report said the extra treatment required as a result of the injuries could cost Medicare several billion dollars a year. And in 1.5 percent of the patients — 15,000 in the month studied — medical mistakes contributed to their deaths. That report, issued this month by the inspector general of the Department of Health and Human Services, was based on a sample of Medicare records from patients discharged from hospitals."

Patients have to be their own second eyes and ears, and essentially partner with their doctors, about this.

Monday, November 22, 2010

Wonders Never Cease - Science has found a new execution drug

According to the Wall Street Journal, execution scientists have now deployed a new execution drug for human inmates that was formerly used just to euthanize animals - because it essentially costs too much to get the normal (but rare) execution drug. An Oklahoma federal judge has actually approved the use of this drug on two defendants. Let's see what Ohio decides.

Saturday, November 20, 2010

Lie Detector Machines

The Cuyahoga County Court of Appeals has just recently issued a decision about the use of lie detector machines (i.e. polygraphs) in criminal trials. In State v. Banner, the Court held that Ohio law only allows the use of polygraph results if (i) the defense and the prosecutor agree to the process and use at trial and (ii) the trial judge agrees that the process is reliable. Further, either party can still chose to cross-examine the polygraph expert on the test results at trial. Obviously, both the prosecutor and the defense lawyer must first agree to the porcess in order for any part of this process to begin or the results to be admitted. This almost never happens. In Banner, a police officer was permitted to testify that the defendant nervously refused to take a polygraph test once offered. The Court found that this testimony was admitted in violation of Ohio law and reversed the child rape conviction. The matter will soon be re-tried by the prosecutor.

Monday, November 15, 2010

The Written Contract Controls - No Matter What the Salesperson Promises

Warning: the Cuyahoga County Court of Appeals just held that the "Parol Evidence" rule bars introduction at trial of negotiation or salesperson statements or promises which are contradicted by written express terms of the final contact. Car dealer Tom Ganely wins one in Olah v. Ganley Chevrolet - where the Court essentially held that it did not really matter what the salesperson may have said - the written contact actually signed by the customer controls. You know the advice here: READ THE CONTACT BEFORE YOU SIGN - even when dealing with used car salesmen.

Ohio's Castle Doctrine - Is it Working?

Remember Ohio's "Castle Doctrine?" It essentially provides that one does not need to justify injuring or killing another if it is done in one's home to protect oneself. Under somewhat newly enacted Ohio Revised Code Section 2901.05(B)(1), a person is presumed to have acted in self-defense when attempting to expel or expelling another from their home who is unlawfully present. Further, under the Castle Doctrine, a person attempting to expel or expelling another is allowed to use deadly force or force great enough to cause serious bodily harm. There is also no duty to retreat inside one's home anymore. One Cuyahoga Court of Appeals opinion has addressed this doctrine and found that it did NOT apply in one case - because the victim had previous been invited to the defendant's home (and had on one occassion spent the night). One news oaganization recently addressed some of the criticisms of the new law. We will have to monitor more decisions in the future to see how this law develops.

Wednesday, November 10, 2010

ER Doctors May Get Immunity from Malpractice Lawsuits

Pending Law in Columbus:

The Ohio General Assembly is considering legislation that would provide "immunity" to all ER physicians and ER medical providers (e.g. nurses and physicians assistants). See

Consumer Credit Reports and Employment

Pending Law in Columbus: The Ohio General Assembly is considering legislation that would bar employers from using consumer reports for employment purposes. See

Stay tuned to our blog to see how this develops.

Wednesday, September 8, 2010

Search Warrants and Cell Phone Locations

A Federal Court has recently held that Big Brother (the Federal Government) may need to get a search warrant in order to get cell phone data which will tell the Federal Government just where a certain individual was on a certain date and time. In the case of In re the Application of the USA, Electronic Communication Service, the Third Federal Circuit Court of Appeals has ruled that Federal prosecutors may need to obtain a search warrant when they are attempting to gain cell phone location data. This is another recent Federal Court ruling in the area of criminal investigation and prosecution where Federal "privacy" Constitutional issues collide with ever emerging technology. The Court had to address and discuss how a person's physical cell phone location (which is technically digitally recorded most times a person is on the phone) is considered Constitutionally private. Even more specifically, the Court had to address how a federal statute (which the Federal prosecutor's claimed gave them the ability to get the cell phone location data without a warrant) may conflict with the Federal Constitutional right to privacy. In short summary, the Court held that if the records are deemed to be Constitutionally protected, then, regardless of the federal statute, the federal government must get a search warrant (and, accordingly, prove that there is "probable cause" to believe there was evidence of crime to be gathered). However, the Court also then held that the cell phone location data may not be protected by the Constitution in most cases, and that in order to get that data, the Federal Government will probably not have to meet the "probable cause" standard. This case will not end the debate in this area, but it does a good job at discussing issues that arise when new technology meets a very old Constitution. More cases and rulings are expected to follow, and we will try to keep you all informed.

Sunday, August 29, 2010

What is a "trade secret" and how can it result in a lawsuit

Ohio has what is a called a "trade secret" statute - a statute that seeks to define and control valuable sensitive information that businesses take time to develop and protect. Contractors and employees of business that own these trade secrets can sometimes use or even steal that data (called "misappropriation") - and such misappropriation can often lead to litigation. Often trade secret litigation can involve what are called "temporary restraining orders," which are orders issued in the very beginning of a lawsuit (vs. at the end of the lawsuit) to control the activities of individuals while the lawsuit is pending. When a trade secret lawsuit is first filed, the owners of trade secrets look to have a court essentially restrain the alleged users or thieves from using that data while the lawsuit is pending. The ultimate relief sought in the lawsuit is usually damages and/or a permanent injunction forever barring the defendants from possible (or further) appropriation of the data.
However, in order for something to constitute a "trade secret," the data must actually be valuable (having what is called "ascertainable" value) and the owner of that data must take "reasonable efforts" to keep that data secret.
Business owners need to take specific steps to develop and protect their trade secrets, which includes written provisions in contracts for all of those who come into contact with the data. These contracts need to identify just what the protected information is, and those contracts should also include provisions where the persons coming into contact with the data consent to litigation restraining orders and specifically set amounts of damages for any attempts at improper use or theft of that data.

Stay in the Car Dude

The Cuyahoga Court of Appeals has recently affirmed the "obsructing of official business" conviction of a speeding motorist. In Broadview Heights v. Stovall, the Court held that a jury could convict a motorist of obstruction of official business [in Broadview Heights called "interference with an enforcing official"] for simply getting in and out of her car and screaming at police during a traffic stop. The Court made it clear that Ohio law does permit a police officer to demand that a motorist "remain in the vehicle" while the officer has the motorist stopped on the side of the road. Although it would not have been enough to convict a person of simply yelling an obscenity at a police officer for writing a ticket, this woman took it all to a whole new level. We suggest you click on the case caption to read these facts. This gal's action were so over the top, the trial judge gave her 30 days after the jury verdict - although she could have gotten 180.
Our advice, stayin the car dude.

Actus Reus vs. Mens Rea

In an August 27, 2010 decision, the Ohio Supreme Court addressed the difference and the application of two important legal terms/doctrines that apply in all criminal cases: "actus reus" and "mens rea." Whenever a defendant is prosecuted and tried for a crime, the prosecutor must prove both that the defendant engaged in statutorily prohibited conduct (Latin: "actus renus") and that the defendant had a specific metal state (Latin: "mens rea") in violating that statute. The four mental states under Ohio law are: (i) negligently, (ii) recklessly, (iii) knowingly and (iv) intentionally. [Please note that this article will not discuss the definitions of those four terms - that may be the subject of a later article]. What the Court held in its recent decision of State v. Horner was that when an indictment charges a defendant with a violation of a criminal statute, that indictment does not necessarily have to set forth the applicable mental state in the text of the indictment - the text of the indictment just has to tract the criminal statute in such a way as to put the defendant on notice of the charges against him/her. The Court also held, as an additional matter, that when s specific criminal statute does not specifically set forth the required mental state (i.e. the "mens rea"), then the default mental state (for the most part) is going to be "recklessly."
This recent decision essentially overturned a 2008 Ohio Supreme Court of Ohio decision that lead to a large amount of confusion and motion practice by defendants who claimed that their indictments were defective because the indictment did not specifically set forth the applicable mental state. What we have here, practically speaking, is a 2010 decision that overruled a 2008 decision - something that is very unusual for the Ohio Supreme Court (given the fact that essentailly the same judges that were involved in the 2008 decision were also involved with this recent decision). We guess that, to use an old phrase, the 2008 decision sounded like a good idea at the time, but that the substantial amount of motion practice by defendants arguing the technical application of the 2008 decision resulted in the Ohio Supreme Court saying, let's think about this again.

Saturday, August 7, 2010

Pregnancy does not trump normal leave policy

The Ohio Supreme Court has recently ruled that a pregnant woman does not have any special exception to a company policy which holds that an employee must be employed for 6 months before they can obtain any leave from their employment. In the case of McFee v. Nursing Care Mgt. of Am., Inc., the plaintiff was employed by a nursing home company that had a policy that stated that all employees had to be on the job for at least 6 months before they were entitled to any paid leave. However, the plaintiff ended up getting pregnant before she was employed for 6 months, and when the employer would not give her pregnancy leave, she sued the employer claiming that she was being discriminated against for being a woman. The lower appellate court held that Ohio law required all employers to provide all employees with a reasonable period of time for maternity leave - and thus held that the nursing home had discriminated against the plaintiff. However, the Ohio Supreme Court held that because the employer had a gender neutral policy which required that all employees be on the job for at least 6 months before they get any leave, the fact that the employer would not give the plaintiff maternity leave did not constitute sex discrimination.

Woman (and for that matter - men) need to read their employee manual when they accept a new job.

Wednesday, June 23, 2010

Points and Traffic Offenses

As most folks know, traffic violation convictions get you what are called "points" under Ohio law, and these points can add up and (1) increase your insurance rates and (2) result in the suspension of your driver's license (if you get 12 points). Some driving convictions can result on more than the standard 2 points - like reckless operation (4 points), driving under a suspended license (6 points) and DUIs (6 points). Many drivers hire experienced traffic lawyers to go to court for them to see if they can negotiate a reduction from a "point" violation to a "no-point" violation. Many drivers can't suffer the consequences of getting points in light of their specific job, or because they already have too many points already and can't suffer the consequences of a license suspension - or because their insurance rates are too high already. The decision or policy involved with any plea negotiations varies from courthouse to courthouse - and getting a lawyer that knows the local custom can be important. There are now new rules concerning how a person can take care of their traffic cases without even coming back to court (see blog entry dated April 11, 2010 - "New Changes in Ohio Traffic Rules"). Make sure you or anyone you know who has to go to court over a traffic violation has a lawyer who is familiar with these new rules.

Hearsay Statements of Child Victims

In a case that will impact a large number of child molestation cases, the Supreme Court of Ohio placed a limit on the type of "hearsay" statements of children that a prosecutor may present at child molestation trial. "Hearsay" is when person A comes to court and testifies about what person B said on a previous occassion. Most hearsay statements are prohibited from being admitted at trial - but some very specific types are. In State v. Arnold, the Ohio Supreme Court stated that only some of the hearsay statements of child victims come in at trial - those that a child states to a medical professional for medical purposes. Child victims are often interviewed by medical professionals in the context of a police investigation in order to assess their injuries. These are the type of hearsay statements that a prosecutor may use at trial - an essentially no others. This ruling will require police and prosecutors to be much more careful about who asks questions and what topics those persons cover during interviews of child victims. Regardless of what non-legal types may presume, these are always awful cases to investigate and defend - and this ruling makes the rules about how these uncomfortable cases are presented at trial.

Monday, June 21, 2010

Texting at Work is No Longer Always Private

In one of the more closely watched U.S. Supreme Court cases involving emerging technology in some time, the U.S. Supreme Court issued a decision involving what is easily becoming one of the most often used methods of communication: text messaging. In City of Ontario v. Quon, the Court held that text messages sent on a text device issued and paid for by a governmental employer (in this case, the City of Ontario, California), are not nessarily private and can be possibly read by the employer. Although this is the first case where the Court actually dealt with what is now this common form of communication, the decision was very fact specific (the U.S. Supreme Court is often very careful to select cases where the particular facts will result in a very narrow ruling - as they did here). The Court based its decision on an analysis of the Fourth Amendment, and whether the search of the text messages was "reasonable" - using many of the same factors it uses in determining whether other searches violate the Constitution: was the search legitimate, was the search reasonable and limited in scope. In this case, the City handed out personal messaging devices to its workers, called a meeting to put limits on their use, and told the workers that their e-messages are going to be monitored - so the Court felt that under these circumstances there was no violation of the Fourth Amendment. The Court was hesitant to issue a broader technology-based opinion given, in their opinion, how quickly and often technology changes. The Court stated:

"Rapid changes inthe dynamics of communication and information transmission areevident not just in the technology itself but in what society accepts asproper behavior. At present, it is uncertain how workplace norms,and the law’s treatment of them, will evolve."

As a pratical matter, we are not sure how this opinion specifically applies to (1) the private workplace and (2) governmental workplaces were "big brother" overly monitors everything - and we think that the Court wanted it that way. Nevertheless, any employer, both private and governmental, should have clearly defined "reasonable" text and email policies in place in order to prevent any employee from claiming that their rights have been violated, and all employees should either have their own communications device or assume that what they put on their employer's device can and will be read by the employer.

Sunday, June 13, 2010

The Big Police Speeding Case

Last week, the news and printed media reported extensively about the Ohio Supreme Court's holding that police officers can pull someone over (and prosecutors can convict if necessary) by using, essentially, their visual estimate of speed. In Barberton v. Jenny, the Ohio Supreme Court said it was constitutionally permissible to have an officer with the proper amount of training and certification to competently testify about a driver's rate of speed - without the necessity of a radar or laser gun or without the use of a technique called "pacing" (where the officer follows a driver for a certain distance "pacing" his or her speed) or airplane spotting. The Court said there was no constitutional prohibition on this visual estimate as long as the officer had the necessary training and certification. The Supreme Court of Ohio overruled the position held by the Cuyahoga County Court of Appeals, and has issued a decision that is not setting very well with the general public. As a practical matter, most police departments will not use this method of speed detection. The writer of this blog has yet to speak to a single police officer who says they intend on trying this new method out. Ohio stock in laser and radar equipment may take a dive if this method becomes popular.

Barry Bonds and Lab Results

In a recent case out of the federal Ninth District Court of Appeals, a federal appeals court held that the federal government is not permitted to merely submit blood and urine lab reports and present hearsay testimony of a lab employee - instead of presenting the actual person (Bond's trainer Greg Anderson) to whom Bonds gave his blood and urine samples. Given the fact that Mr. Sanderson invoked his Fifth Amendment right to not testify (he may have imlicated himself in a crime too), the Government was faced with having to have just the lab employee testify and have the lab results introduced as a sort of replacement for the testimony of Sanderson. However, the Court in United States v. Bonds stated that this was hearsay, and the Government could not use this method instead of the testimony of Mr. Sanderson. It is now assumed that the Government will have a much more difficult time in their ongoing prosecution of Mr. Bonds. We'll have to see what happens next.

Sex Abuse and Repressed Memories

The Ohio Supreme Court recently made still another pronoucement that Ohio Courts will not invade the intent of the Ohio General Assembly when it passess legislation. The Ohio Supreme Court has made it clear in a number of its decisions in the last 5 years that it will strictly enforce statutes enacted by the Ohio Generally Asembly - and refuse to apply any interpretation not specfically set forth in those statutes - what some folks call "activists judges." Effective Aug. 3, 2006, the General Assembly enacted R.C. 2305.111(C), which created a 12-year statute of limitation for persons who had been molested while they were under the age of 18. Essentially, once a person reached the age of 18, they had to remember any repressed memories of being molested, and then sue the legally liable person(s), before they reached the age of 30 (i.e. 18 years plus the 12 years). In Pratte v. Stewart, the Ohio Supreme Court made it clear that even a person who legitimately had repressed memories beyond their 30th birthday could not sue their attacker because that person had not rembered and sued before their 30th birthday. The Court said that since the new statute did not provide for any exceptions, they would not create one. Although this case invovled the statute of limintations on child molestation cases, it appears for the time being that the Ohio Supreme Court has taken a very strict "separation-of-powers" position - saying that if the Ohio General Assembly has not enacted a specific law, then that law essentially does not exist. This judicial philosphy is something we will be monitorings in the future.

Sunday, April 11, 2010

New Changes in Ohio Traffic Rules

Effective January 1, 2010, Ohio has modified some of the rules that effect how traffic citations and traffic court cases can or must proceed. Michael O'Shea is a part-time City Prosecutor for the City of Rocky River, and he recently gave a summary presentation of these amendments to the rules to all of his fellow city prosecutors from other cities in Cuyahoga County.

First, the Ohio Uniform Traffic Ticket (the ticket form used by police to write all tickets- even DUI tickets) has been modified to include a place for an officer to write down prior DUI offenses (if it applies), and the ticket no longer will include all portions of the social security number of the defendant (in order to preserve identity information for each defendant).

Second, now a defendant can post bond when a ticket is written, and instead of coming back to court, that bond, with the permission of the defendant, can be applied to pay all fines and costs in the absence of the defendant. In this way, an out of state defendant does not have to travel back to the Ohio court from where the ticket issues. Some parts of the amended rules even allow a defendant to plea, as it is called "in abstentia," even when it comes to DUI offenses - as long as the judge and the prosecutor agree. You may begin to see some police forces and traffic courts require all out-of-the-area traffic defendants to post larger bonds - even for minor traffic offenses.

Third, courts are now permitted to arraign and take pleas from traffic defendants by giving a general speech In writing or otherwise) to the entire group of defendants in the courtroom - rather than having to essentially give the same speech to each defendant individually. This will allow large number traffic arraignments and pleas to move along much more quickly.

These amendments are designed to address some of the problems that have slowed down the traffic courts for years.

Improper Use of Prior DUIs in Subsequent Prosecutions

The Cuyahoga County Court of Appeals has recently issued an opinion that bars the use of prior DUI and driving-under-suspension ("DUS") convictions if the purpose of the prior DUI and DUS convictions is to support a claim that the defendant was intoxicated in the current prosecution. In the case of State v. Greer, the prosecution attempted to use the fact that the defendant had been previously convicted of a number of other DUI and DUS crimes - but only did so because the prosecution had no medical evidence of the current alleged driving while intoxicated event. The Court held that where the defendant claims that he was not intoxicated at all, the State cannot use the prior DUI and DUS cases to prove that he was. Most prosecutors would have never put this one to the test. So this decision is not surprising.

What Exactly Does a "No Contest" Plea Mean?

The Ohio Supreme Court has recently made it clear that if a defendant enters a "no contest" plea in a criminal case (and is found guilty as almost all are after they enter the plea), the fact that the defendant entered that plea (and the resulting conviction) cannot be used in any subsequent civil case. No contest pleas are often entered by defendants in criminal cases rather than "guilty" pleas. These "no contest" pleas are seen by many defendants as a softer version of a guilty plea, and some courts had held that Ohio law also barred the use of a "no contest" plea in a subsequent civil action involving the defendant (for example, where the defendant is sued for the damage the defendant did in his criminal actions). In Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., the Ohio Supreme Court made it clear once and for all that "no contest" pleas cannot be used in subsequent civil cases involving the same activity by the defendant. The Court reasoned that: "“The purpose behind the inadmissibility of no contest pleas in subsequent proceedings is to encourage plea bargaining as a means of resolving criminal cases by removing any civil consequences of the plea. ... The rule also protects the traditional characteristic of the no contest plea, which is to avoid the admission of guilt. The prohibition against admitting evidence of no contest pleas was intended generally to apply to a civil suit by the victim of the crime against the defendant for injuries resulting from the criminal acts underlying the plea." This decision resolved a number of conflicting decisions for the lower courts of appeals. We assume we will see much more use of the no "contest plea" in the future.

Our Recent Success with Ohio Court of Appeals in a Lead Poisoning Case

One of the areas where we regularly concentrate our practice is in the area of lead poisoning. We often have to deal with a number of ongoing defenses and appeals by landlords and their lawyers in the processing of these claims. One of Cuyahoga County's biggest landlords is the Cuyahoga Metropolitan Housing Authority ("CMHA"). CMHA is suppose to provide safe residential housing for low income persons and families. However, many children living at CMHA owned units regularly get poisoned by deteriorating lead paint - lead paint that Ohio and federal law require not be in a deteriorating state. Notwithstanding the fact that the Ohio Supreme Court has made it clear that the doctrine of "sovereign immunity" (i.e. the doctrine that says cities, counties and the State of Ohio, for the most part, cannot be sued for negligence) does not apply to injuries that occur in buildings or on grounds of governmental buildings, CMHA attempted to argue that they were immune for any lead poisoning injuries to small children. However, the Cuyahoga County Court of Appeals rejected that argument in Bozeman v. CMHA and held that CMHA does have to defend cases involving lead poisoning injuries. The case is now back at the trial court for further proceedings. Once again, stay tuned for details.

Our Recent White Collar Defense Case

We recently got done (for now) with a white collar defense case where the Federal Government alleged that a former attorney had engaged in what is called a "Ponzi Scheme." Many hours went into the review of thousands of pages of tax, bank and other financial documents which the Government claimed supported their case. Dealing with the Federal Government can be complicated - but dealing with the prosecution by the Federal Government of a lawyer is very complicated. Lot's of personality. Anyway, on the date of trial, we and the Federal Government were ready to get the trial started, but the client/lawyer got wedding day jitters and did not show for trial. The Government's agents are currently looking for our client, so his case is not yet over. Once again, stay tuned for details.

Ohio Supreme Court Declares New Workers' Compensation Statute Constitutional

In what has been an ongoing battle at the Supreme Court of Ohio for the last decade or more, the Supreme Court of Ohio has found the newest version of the "intentional tort" section of the Workers' Compensation statute to be constitutional. In Kaminski v. Metal & Wire Products Co. the Court held that the General Assembly's most recent version of a law that gives greater protection to employers is, notwithstanding the holdings of previous panels of the Supreme Court of Ohio, constitutional. In Ohio, in order for an employee to sue an employer that causes an on-the-job injury to the employee, the employee, under the new law, must prove that the employer acted “with a deliberate intent to cause injury.” If the employee cannot prove that, then, regardless of the employer's negligence or the employee's injury, the employee is regulated to whatever he/she can get paid by the Bureau of Workers' Compensation. This ruling is the latest stage of an ongoing battle between forces who want to make it harder to sue employers for serious and reckless workplace injuries and those who believe that taking away an employee's right to sue for serious and reckless workplace injuries is a violation of the Ohio Constitutional "trial by jury" clause. The ongoing debate has to do with whether allowing more protection for employers will, in essence, indirectly encourage more injuries or death. We see this as just another stage of what will most likely be an endless battle between the forces behind business interests and the forces behind worker protection. Stay tuned - and be extra careful at work.

Must a Juror Be Able to Hear to Decide

The Ohio Supreme Court has recently decided that generally jurors' senses must be unimpaired to take in the specific evidence in order to be selected for that trial. Regardless of the fact that well intentioned society rules require that we respect and work with all types of persons with physical disabilities, if a physical impairment interferes with a juror's ability to take in the specific type of evidence that is presented in a particular trial, that juror must be excluded from that trial. In the case of State v. Speer,
the Supreme Court of Ohio stated that when the specific evidence in a trial requires that a juror have the senses necessary to take in that evidence, then the trial court must exclude any juror who has a physical impairment that interferes with taking in that evidence. In Speer, the jury had to hear and interpret 911 tapes, and one juror had a hearing disability, and the Supreme Court of Ohio had to reverse the conviction of the defendant because that juror could not properly hear the tapes.

Tuesday, January 12, 2010

Still more on arbitration provisions

We have previously reported to you about the potential dangers of "arbitration" provisions in what can generally be referred to as "consumer contracts" (i.e. contracts that involve the consuming general public like auto repairs, home-improvement, retail purchases, health care and nursing home services). Arbitration provisions have historically been found in many "commercial" contracts where the parties are mainly sophisticated business persons. However, in recent years, many companies which provide consumer services have placed arbitration provisions in their standard contracts in order to bar a consumer's right to bring a lawsuit for a breach of the contract - and even for personal injuries incurred by the negligence of those companies. These provisions essentially take the law out of the dispute and instead replace the law with the attitudes, opinion and sometime the biases of the arbitrators. Further, arbitrators charge huge fees for their "private" services while courts and judges provide all of their services for almost no charge at all other than a nominal filing fee.

Recent efforts in Congress have been aimed at barring arbitration provisions in all consumer contracts. For instance, if the negligence of an automaker or nursing home kills someone, any provision in contacts covering that relationship which mandate arbitration only for ANY dispute (including but not limited to personal injury claims) will be illegal. In fact, there is push in Congress to pass the Arbitration Fairness Act of 2009 this year. The act would ban mandatory arbitration in all consumer and employment disputes. Stay tuned for this development, and - again- review all of the contacts that you sign to see if there are any arbitration provisions buried in the small print.

Our Victory at the Supreme Court of Ohio

Last week we received word that we were completely victorious in our currently pending appeal with the Supreme Court of Ohio. In Beckett v. Warren, the Supreme Court of Ohio agreed with our claim that a person who has been injured by a dog attack can pursue and go to trial on BOTH a statutory claim for damages and a general negligence claim. This is important for dog attack victims because it permits them to obtain punitive damages against the dog owners if the injured party can prove that the dog in question had attacked a person prior to them. The Supreme Court sanctioned a new trial for the young girl in this case who had had her scalp torn from her head by a Rottweiler who had attacked another person just a few weeks earlier. Stay tuned for details on what happens when the case is set for a new trial at the trial court. Congrats to the family of this girl who have had to suffer for years with this terrible injury.