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.

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.