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.

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.

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.

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.

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.