Cooper & Elliott Blog

Ohio Wrongful Death Attorneys Protect a Widow’s Claim and Dignity

Posted on Thu, Feb 1, 2018 @ 6:59 PM

This is a story about a tragic accident resulting from negligence. It’s also a story about how safeguards built into the legal process to protect the innocent are abused by those looking to avoid responsibility—and damages—resulting from their own negligence.

And finally, it’s a story about our determination to protect our client despite the responsible party’s efforts to improperly exploit the legal process.

Going the distance

Sam* and Myrna* had been married for more than 20 years. To say they were dedicated to each other would be an understatement. Yet Sam’s work frequently took him out of town for extended periods of time. Those absences were borne out of necessity for Sam to provide for his family, but Sam and Myrna made the most of the time they had together. Myrna would sometimes drive an hour or more to Sam’s worksite, taking him the lunch she had prepared so they could spend time together.

Sam was a roofing construction worker. It had been his trade for more than 25 years. He worked for many different companies over his career, going where the work was and traveling as far and as often as necessary to support his family.

One of the companies he occasionally worked for, OBS Construction*, sent him and a crew to a commercial roofing job in Northeast Ohio. Sam reluctantly took the assignment—he’d had less than favorable experiences working for the company before and the company had earned a reputation for treating its employees poorly. But Sam needed the work. So he took the job anyway.

A fatal step

OBS sent the crew to the worksite without properly inspecting the roof or providing the proper safety equipment required for the job. The job was a disaster, and the company’s failures proved to be deadly for Sam.

Sam was walking across the roof when he unexpectedly fell through an unmarked and unguarded industrial skylight. The fall killed him instantly.

Anyone in the crew could have made that fatal step as the industrial skylights on this building were not easily identifiable like those in residential buildings. Had a proper initial inspection been conducted or proper safety equipment been provided, this tragedy would have been avoided and Sam would still be alive.

There was clearly negligence on the part of OBS. But OBS refused to see it that way.

No remorse? No liability?

Like many men, Sam had served several roles in his life: husband, father, grandfather. He was also the family’s primary provider. In the event of his death, that role fell to Myrna—though she was ill-suited to take it. Her health had been declining for several years; she could no longer work and was under doctor’s orders not to travel.

OBS’s disdain for its employees carried over into the way the company treated Myrna. It refused responsibility for Sam’s death, did everything it could to cause delay in the process, and even claimed that it had provided safety equipment but that the equipment had been used improperly (all of which we later proved to be untrue).

At such a vulnerable time in Myrna’s life, the tactics used to defend against Sam’s claim were insulting and incredibly damaging to Myrna and her kids.

Ohio wrongful death attorneys help with worker’s compensation

When Myrna came to us, it was clear she needed not only legal expertise, but strength as well. She needed to believe someone was on her side when it seemed to her that the entire legal system was working against her. Her grief was profound, and will probably always be a part of her life. But that didn’t mean she shouldn’t receive the fair compensation due to her as a result of Sam’s wrongful death.

We advised her of her options under worker’s compensation law in Ohio. OBS opposed her claims at each step in the legal process. To this day, OBS hasn’t prevailed at a single stage of the process, despite many rounds of appeals.

Appeals have an important function in the law. They provide a process for correcting errors or clarifying legal interpretations. But in this case, the appeals process was used by OBS and its attorneys as a means of delaying justice.

After more than three years, five attempts at appeal, thousands of dollars in time and expense, Myrna has finally prevailed. She has held OBS responsible and obtained a decision letting OBS know they were wrong and accountable for her husband’s death.

When there is a wrongful death, someone must be held responsible. It’s our role as wrongful death attorneys to persist and prevail on behalf of our client’s right to justice—despite any misuses of the appeals process and the legal system.

If you ever need the help of a wrongful death attorney or assistance navigating the worker’s comp system, give us a call—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

*Names in this article have been changed to protect our client’s privacy.

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A Tragic Past Nurtures a Young Man’s Bright Future

Posted on Fri, Dec 22, 2017 @ 4:40 PM

By Rex H. Elliott, Partner

So many times, jobs are measured by mundane things; by the hours people invest in their work, by their productivity, by how much they get paid. And in our profession, by the cases we win.

Yet sometimes, something about your job grips your heart and reminds you why you chose your line of work in the first place. It reminds you why, far beyond a good outcome on paper, the best reward is knowing you’ve made a difference in someone’s life, a difference that is lasting and profound.

Something like that recently happened to me, and I’d like to share the experience with you.

A former client becomes my shadow

Most high school students in Ohio spend a day “shadowing” someone on the job. They follow an adult around for a day at work and get an idea for what it might be like to have a career in that particular profession. When our former client, Mark*, called us to see if his son could shadow me and some of the other attorneys at the firm, we were delighted. Mark had been a client more than twelve years ago, and we’d stayed in touch. Over the years, he gave us updates on how he and his son, Sam*, were doing. I came to know a lot about Sam as he grew up, though he knew little of me or the legal details that so greatly impacted his life.

Mark thought the time had come for those details to be revealed to Sam, and we agreed.

A devastating and preventable loss

I won’t go into all the details of the tragedy that brought Mark and our firm together many years ago. But very simply, when Sam was only a year old, his mother was killed by a drunk driver.

The man who took her life was picked up for drunk driving one night, taken into custody, and released by police officers less than 48 hours later. Not surprisingly (he had more than 10 OVI convictions), he went out and immediately became intoxicated again, got into his car and killed Sam’s mother.

Sam, now 14 years old, spent his shadow day visiting the past. He became familiar with the events that caused his mother’s death and the legal steps we helped his father take to secure their future and protect others from a similar fate.

Civil litigation goes full circle

We shared with Sam some of the court documents from the case and explained how his mother’s lawsuit had gone all the way to the Ohio Supreme Court before a just settlement had finally been reached. We took him to the courthouse and walked him through the steps of the lawsuit.

We wanted Sam to understand not only what had happened, but why. His mother had worked at an Alzheimer’s center, and that was her destination the morning she was killed. We knew she would want her baby to be taken care of in the event of her death—to ensure his life would be the best possible. We also knew Mark and his family hoped to make a statement, through the legal system, so that the circumstances surrounding his wife’s death would never be repeated.

Of course, Sam had no memory of these events. But there were tears in his eyes as the story was revealed to him. Not tears of sadness—tears of overwhelming emotion. He was caught by the powerful realization that his mother’s death had not been in vain, that it had led to procedural reforms that put stricter controls on how law enforcement handles drunk drivers, reforms that have undoubtedly saved many lives over the past dozen years.

I believe Sam was glad to finally learn the whole story. It was incredibly humbling to help him achieve an understanding that had been awaiting him almost his entire life. That knowledge came with a mixture of sadness and pride, for he had been part of a bigger story without even knowing it.

He felt that. And I felt it too.

The impact of this wrongful death case

Beyond the procedural impacts, the case allowed Mark to be a full-time father. It would have cost Sam a great deal to have to sacrifice his only parent’s time and attention to the heavy work schedule required to meet surmounting financial costs of raising a child alone.

Mark’s dedication to his son paid off, because Sam is a wonderful kid: He’s smart, personable and polite, an A student in school, and a multi-sport athlete. After college he wants to go into law enforcement, so he can personally protect others and spare them the tragedy and loss he has had to endure.

Why we’re civil litigation attorneys

Sometimes people ask me about the stress of being a wrongful death attorney—about the strain of seeing so much personal tragedy daily, and dealing with all the sadness, conflict, and frustration that are a natural part of the job. It can wear you down, if you let it.

And then someone like Sam shadows you for a day, and you realize again why your job matters. Victims of personal injury and wrongful death incidents need protection and compensation to help them rebuild their lives.

Sam is an incredible example of the good that can survive a tragedy. His caring and future accomplishments will continue to serve as a living monument to the memory of his very special mother.

Connect with us—we’re here to help.

*Names in this article have been changed to respect our clients’ privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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How Malingering Claims Affect Genuine Personal Injury Victims

Posted on Fri, Nov 10, 2017 @ 4:25 PM

In most sports, football especially, you’ll hear coaches and analysts say, “The best defense is a good offense.” In the courtroom, you’ll find attorneys applying a similar strategy: going on the offensive to defend their clients.

In football, that maxim means that when your team dominates play, it keeps the opponent’s offense off the field where they can’t rack up points.

In the courtroom, a “good” offense means attacking the character and credibility of a plaintiff and in so doing, devaluing the extent to which their lives have been damaged. It’s not about proving the correctness of the defendants’ actions, but tearing down the victims’ plight.

What is truth and what is malingering?

One of the most pernicious ways defense attorneys try to disparage a personal injury claim is by accusing the victim of malingering. It’s a tactic that doesn’t rely heavily on evidence, but that doesn’t mean it won’t sway a jury.

When the defense brings up malingering, it is claiming that the plaintiff is either feigning an injury altogether or exaggerating its consequences.

The defense may trot out a doctor—normally a physician or a psychologist—who will testify that, according to his or her experience, there is no physical reason why the victim should be continuing to suffer from acute pain or disability resulting from the “accident” for which the defendant bears some responsibility.

The expert may even have examined the victim—physically or psychologically—and, based on the results of the testing and the expert’s own analysis of those results, claim to have “evidence” that indicates malingering is likely.

There is good reason to be skeptical of such claims: While it’s true that malingering is an accepted psychiatric diagnosis, there is no definitive method to test for it, physically or psychologically. The results are subjective at best, and the tests are just another example of what we call “junk science” in the courtroom.

Essentially, the defense’s medical expert is accusing the plaintiff of lying, without specifically using that language. In fact, in most cases, medical experts carefully avoid using the word “lying,” because such accusations, made openly, can make jurors more sympathetic to the victim. So instead, he or she calls it a case of malingering.

It’s a subtle and devious way of insinuating to the jury that the plaintiff doesn’t deserve compensation because their pain and suffering are not as bad as he or she would have people believe.

Such accusations can be devastating to a plaintiff’s case, unless the plaintiff’s attorney is ready to counter them—which, we always are.

Putting the defense on the defensive

As personal injury attorneys, we see this type of junk science far too often. And while we may not be able to dispute medical experts’ credentials, we can hold them accountable for their words.

We press them to explain themselves. What do they really mean by using the term “malingering”? How do they distinguish malingering from lying? Where is the medical evidence for malingering? What are the witness’ credentials for making a psychological—rather than purely medical—evaluation of the plaintiff’s condition?

Just because a doctor can’t find a medical cause for pain doesn’t mean there isn’t one.

And, regrettably, it’s not unheard of for medical experts to manipulate the results of a psychological test in favor of the defendant. The questions are sometimes asked repeatedly, until the defense gets the answers it needs. Even the way in which the results are interpreted can be used to sway the jury into believing what can’t be proven with valid evidence.

The malingering defense is not fair to victims, but it’s a defense tactic used with alarming frequency in personal injury cases. It’s an example of how even further injustice can be inflicted in the courtroom, and it is part of the reason why we’re fully committed to protecting our clients.

We give juries good reason to be skeptical of a defendant who relies on accusations of malingering, and we want jurors to see the malingering defense for what it really is: an insult without evidence. If you suspect that you have been a victim of negligence resulting in personal injury or a wrongful death, please give us a call.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Credibility Abused: The Case Against Junk Science

Posted on Wed, Aug 23, 2017 @ 3:51 PM

We all enjoy a good story. But fiction has no place in the courtroom.

The quest for truth is the foundation of both science and litigation. Science depends on truths that are observable, repeatable, and beyond subjective interpretation.

Likewise, judges and juries depend on finding the truth through strict rules of evidence and testimony delivered under oath. Yet those restrictions, in themselves, offer no guarantee that truth will prevail.

What happens when questionable science is used in the courtroom to manipulate the truth and outcome of a personal injury or wrongful death case? The answers can vary, but we do whatever we can to protect our clients from being further victimized by what can best be described as “junk science.”

Junk science in personal injury cases

We label it “junk science” when the defense calls an expert witness whose testimony introduces a pseudoscientific explanation that reshapes the actual facts of the case.  It’s not unusual for that reshaping to strain credibility and even push the limits of common sense. But with enough credentials and sincerity, the witness can easily sell junk science to an unsuspecting jury.

Junk science isn’t really science at all. But the trappings are there, which is what can make it so effective in bending the truth—and so potentially devastating to a case.

Below are some examples and explanations of what experienced personal injury attorneys can do to help jurors see beyond the credentials and recognize junk science for what it really is.

The ‘agony’ of litigation

In one recent case, our client was in chronic pain months after an injury had occurred. The defense brought in a physician who testified that there was no physical reason why our client should still be in pain. By using his credibility as a doctor, he directly tried to minimize our client’s suffering and reduce potential damages.

The defense used the same witness to go even one step further.

He wasn’t going to call our client an outright liar because jurors don’t typically respond well to doctors who suggest that people in pain are lying. Instead, he speculated that our client’s pain was caused not by the injury, but by the stress of the litigation. According to his testimony, he believed the pain would almost certainly subside once the lawsuit was over.

There was no scientific or medical evidence to support that kind of claim. But the witness was a qualified medical expert. Who were the jurors to doubt him?

To counteract such blows, we must give the jurors good reasons to rely on their own common sense. There are a couple of ways we can go about it:

  • In the case mentioned above, we urged the jury to recognize the probability that this was not the first time the physician had been called upon to give this kind of testimony.

    We asked whether he had ever before made this kind of “diagnosis” in court. When he said that he had, we challenged whether he had ever followed up with those previous plaintiffs. Of course he hadn’t, so there was no way for him to confirm that his earlier predictions had been correct.

    Having done our homework, we had previously reached out to those plaintiffs and confirmed that their pain had not been the result of “litigation stress.”

  • Second, we have, on occasion, challenged an expert witness who suggests pain is a result of litigation, to back his or her claims with action. We ask if he or she would, under oath, agree to treat the plaintiff for any pain that might linger after the trial.

    Not surprisingly, they never commit. Their flimsy claims are exposed and the jurors are free to evaluate the testimony for what it is: junk science.

    On a more humorous note: Our request is typically met with strenuous objection from the defense, but by then our point has been made.

Knowing junk science when you see it

Frankly, our experience in recognizing and countering junk science in personal injury and wrongful death cases gives us an edge that our clients deserve. It’s bad enough that they’ve been wronged and injured by someone else’s actions or decisions. They don’t need to be wronged again by expert witnesses whose credibility doesn’t match their credentials.

If you find yourself needing someone to fight on your behalf for the truth, don’t hesitate to reach out to us with any questions you may have.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Injured Youth: Representing Children in the Courtroom

Posted on Mon, Jul 31, 2017 @ 2:58 PM

We’ve talked before about how pain and its impact can be experienced differently, and be farther reaching for injured children and their families. As Ohio personal injury attorneys, it’s our job not only to understand the tactical legal implications of cases involving someone as vulnerable as a child, but also to responsibly and sensitively obtain justice for the child and the family.

From the law’s perspective, it may seem that a victim is a victim. There’s the physical damage—such as losing a limb or receiving a disfiguring scar; there’s the negative impact that an injury or death can have on the victim’s financial situation; and there’s the trauma that can haunt a victim for a lifetime.

All of these apply equally to cases involving children, with the added challenges associated with youth.

A grace period granted

One issue in any personal injury case is determining the extent of the injury and predicting how long the healing process will take to complete, so a jury can measure and determine adequate compensation.

How do you project future complications and costs from today’s injuries? The immediate effect of burns or broken limbs for adult victims can be fairly obvious. The impact of spinal or brain injuries, on the other hand, often don’t reveal themselves until months or even years have passed and, potentially, after the statute of limitations has run.

With children, the challenge of proving the impacts of an injury to juries becomes even more difficult. We must explain to the jury that certain injuries are more than just a temporary pain or inconvenience for a child—some injuries can affect a child’s natural growth and development. Burns leave scars that may be unsightly on adults. Other scars can be disfiguring and can even cripple a child’s physical growth. Scar tissue behaves differently than normal skin tissue and doesn’t stretch as the child grows. Beyond disfigurement, the child may require skin grafts and surgeries as part of a necessary, and painful, treatment regimen.

Fortunately, Ohio law recognizes these potential situations and extends the statute of limitations in cases where children have been injured due to the negligence or the malicious acts of others. But this legal reprieve is no guarantee of justice for the injured minor.

Calculating a victim’s potential in child personal injury cases

In any personal injury case, a “value” must be assigned to the injury in order to reach agreement on what constitutes fair compensation for damages. That goes far beyond medical costs and includes the loss of the parents’ or guardians’ income and even the potential income for the child.

If an injury leaves a child disabled, their entire future is changed. The loss of a limb could prevent the child from pursuing a chosen and lucrative career years down the road and the medical costs could follow the child their entire adult life as well. The younger the child, the more difficult it is to project how an injury could impact his or her future quality of life and career opportunities.

Projecting the long-term impact of an injury on an adult’s income can be done. Most adults have some sort of earnings “track record” on which to base meaningful projections. Children on the other hand, typically have no such record.

With a young victim, what constitutes “appropriate compensation” often depends on information we gather about the family. Are there family members who are engineers or physicians? Does the family value higher education and would they be likely to encourage the child to pursue a college degree?

The jurors’ perspective

Another potential obstacle when representing children is the jury itself. It takes a special approach to present a child’s case to a jury using conviction tempered by compassion. Jurors tend to bring a different sensitivity to the case when the victim is a child, and therefore evaluate evidence with different opinions and biases.

Some jurors believe a courtroom is no place for a young child. They can be offended if they think that the child is there simply to gain sympathy. As attorneys, we have a tough decision to make: Do we bring the child into the courtroom where they may possibly have to relive their trauma, or do we try to make a convincing case with photos and documentation?

There is no hard and fast rule, and it’s a situation that’s less likely to arise with adult victims. Understanding the nuances of representing children makes us better equipped to handle the unique legal challenges involved in representing child victims in the courtroom.

If you require assistance with a personal injury or wrongful death case involving a child, don’t hesitate to reach out. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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The Far-Reaching Effects of Injuries for Child Victims

Posted on Tue, Jul 25, 2017 @ 9:39 PM

The thought of a serious or tragic accident involving children is a grim one, and dealing with the real-life consequences is downright sorrowful.

Over the years, we’ve gained valuable insight into how to approach cases involving child victims with special care and consideration. As Ohio personal injury attorneys, we intimately understand the extensive and often underestimated damage a child and his or her family can suffer. Physical pain, emotional trauma and financial hardship go hand in hand with injuries. All these things can be terrible for an adult to deal with, but for a child, the damage is arguably amplified.

Long-term pain and damage

What’s often overlooked is the fact that the very same injury suffered by an adult can potentially have further reaching implications for a child.

 An adult, for example, may suffer a broken bone as the result of an accident. A single surgery may be sufficient to correct the damage and thoroughly facilitate the healing process. But for a child, the same fracture may require multiple surgeries and/or subsequent physical therapy in the months or years following the incident. A substantial injury can also derail a child’s physical development.

Another consideration is a child’s emotional and cognitive development. A brain injury sustained because of a faulty bike helmet or a poorly constructed jungle gym could have impacts on the child’s mental and cognitive growth—ones that aren’t immediately identifiable, or don’t manifest until the child is much older.

Some injuries are coupled with events so traumatic that a child could later suffer from post-traumatic stress syndrome (PTSD) or similar scaring emotional effects. These impacts could impede the child’s ability to learn, cope and assimilate into society as they would have done prior to the incident.

The parents’ plight

Invariably, when representing children as victims in personal injury matters, attorneys have another important consideration: the parents and their often-overwhelming guilt. Guilt is a natural parental reaction, even when it’s unwarranted.

Maybe the child was seriously injured due to a defective toy. Or perhaps a household accident that the parent could not have reasonably foreseen resulted in death. We anticipate the parents’ guilt, no matter how unjustified it might be, and we’re prepared to help them navigate the complexities brought on by that guilt. Only experience can properly prepare an attorney to play a positive role in helping the family begin the process of healing.

Children deserve no less than our best

There is a notion that children tend to be naturally more resilient than adults. Supposedly, they can bounce back faster, heal quicker, and outgrow a traumatic experience with fewer emotional scars.

Even if that’s sometimes true, it’s certainly not assured for every child. We know better.

When a child is the victim of a malicious or negligent personal injury, there is plenty of pain to go around. Time and resilience can’t be used as excuses for not giving a child the best possible representation—and opportunity for justice.

If you require assistance with a child’s personal injury or wrongful death case, don’t hesitate to reach out to the Ohio personal injury attorneys at Cooper & Elliott. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Construction Errors, Carbon Monoxide Poisoning, and the Death of an Unborn Child

Posted on Fri, Jun 30, 2017 @ 5:56 PM

Few things in life are more joyous than the arrival of a healthy newborn baby. But that feeling of joy quickly dissipates when parents learn the awaited day of birth will never arrive.

In this case, our clients experienced that grief firsthand. Their despair was only compounded when they learned there was evidence—strong evidence—that the loss of their unborn child was likely caused by external conditions that could have been avoided.

How were they to react upon learning the loss of their child may not have been caused by a natural miscarriage? That the child could be alive if not for someone else’s negligence?

As Ohio wrongful death attorneys, we look at the facts of a case objectively and root out what happened and why. We then do what it takes to help our clients follow a path of legal action that can ease their suffering and repair their loss—and do it without amplifying their suffering.

A hidden threat to one family’s security

Mark* and Stephanie* were excited about moving into their brand-new home with their one-and-a-half-year-old son. Mark was a police officer and Stephanie was a nurse. Their future was bright.

When construction was completed, the family moved in to their new home. Shortly after that, Stephanie discovered she was pregnant with their second child. They were elated about their growing family, and particularly delighted when they learned the baby would be a boy. Ten weeks into the pregnancy, visits to the doctor confirmed the pregnancy was progressing normally. The baby Stephanie was carrying was healthy and growing.

This was in the fall of 2015. As the days turned colder, Mark and Stephanie noticed something odd was happening in their new house. A fine soot was accumulating on the walls and on the tops of cabinets. They would clean it only to have it reappear in a few days. With the windows of the house closed, they didn’t know how the dirt was getting in.

A nuisance turns fatal

Around that same time, their toddler became chronically cranky and stopped sleeping through the night. At first, they suspected a normal childhood malady such as an ear infection. Their doctor ruled out that diagnosis, but he wasn’t sure what was wrong. He prescribed antibiotics, but medication brought no improvement.

Stephanie was getting frequent headaches and experiencing bouts of nausea. She couldn’t understand the reason for her sudden discomfort. After all, she was nearly through the first trimester of her pregnancy. Why the nausea now?

A checkup at 11 weeks confirmed that everything was fine with the pregnancy. But at the 13-week checkup, Stephanie’s doctor couldn’t find a heartbeat for the baby.

A few days later, Stephanie underwent a painful surgery to remove the remains of the baby she and her family had already come to love.

The cause of a wrongful death

Mark contacted the construction company about the continuing soot buildup. An inspection of the premises revealed the problem: An air shutter valve in the gas fireplace had been installed improperly. The result was that the fireplace (which the family had been running in the colder months) produced an excess carbon residue that accounted for the “soot” accumulating in the house.

But the faulty valve had a much more serious consequence. It was leaking carbon monoxide into the house—at levels low enough to avoid setting off the carbon monoxide detectors or to be immediately fatal, but high enough to gradually poison the family.

And enough to lead to the death of their unborn son.

Seeking justice outside the courtroom

The improper installation of the air shutter valve was clearly a failure on the part of the construction company. And through Stephanie’s medical records, and research about the effects of carbon monoxide on infants in utero, we were convinced the miscarriage had been a direct result of the construction company’s negligence.

But Mark and Stephanie were reluctant to pursue a lawsuit. Stephanie had suffered enough trauma from the miscarriage and the surgery that followed it, and didn’t want to relive it in a legal proceeding. They agreed it wasn’t right for the contractors to get away with such negligence, but they didn’t want to bring public attention to their personal family tragedy through litigation, either. We understood.

The construction company’s insurance adjuster initially treated the incident as if it were a nuisance to be brushed aside. He offered a settlement amount that didn’t begin to address the family’s suffering. So we waited to respond and continued to gather convincing medical evidence as if we were going to court.

Finally, we were contacted by the insurance adjuster. We told him, in effect, that if he was anxious to close out this case (which he was), he would have to make a serious offer. We presented our evidence, and after several volleys of offers and counteroffers, the adjuster finally came back with a proposal that we felt was appropriate. The final offer was than seven times his initial offer.

Our clients accepted the offer—all without having to go through depositions and a public hearing.

Mark and Stephanie could use the settlement to repair and clean their home or seek out a new home. They could put the tragedy behind them and focus on their family’s future.

No two clients are alike

Whether a tragedy involves personal injury or a wrongful death, each family’s needs are different. Some need a trial and jury verdict to vindicate their suffering. Others, like Mark and Stephanie, simply want compensation that is just and discreet.

Legal counsel should be attuned to people’s individual needs. We believe that, to effectively represent our clients, we need to know not only the law and the facts of the case, but also where, for each client, healing begins.

Give us a call—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 *Names in this article have been changed to protect our clients’ privacy.

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Keep the Jury Out: Why Settlements Are Often Better Than Verdicts

Posted on Wed, May 31, 2017 @ 7:59 PM

It’s a suspenseful moment. The jury members file into the jurors’ box. The judge asks the defendant to rise. And then the jury’s foreman reads the verdict. The revelation of the jury’s verdict has been a staple of television courtroom dramas from “Perry Mason” to “Law & Order.”

It can make for gripping television. But in the real world of civil litigation, where real people have suffered actual (often devastating) harm and seek just compensation, a jury verdict is not always the best outcome for our clients—even when that verdict is in our clients’ favor.

Why? Because, more often than not, what clients really want is to take something meaningful from a personal, professional, or family tragedy. A jury’s verdict cannot begin to match the healing potential of a carefully crafted settlement agreement.

Let’s give you some examples.

These three cases involving wrongful deaths show what settlement agreements can do that jury verdicts can’t. They also demonstrate how the impact of those agreements can reach beyond the victims’ families.

Ensuring proper testing of life-saving technology

One case involved the death of an elderly woman whose family had entrusted a senior living facility with her life. One night, the woman experienced a medical emergency and used her personal alert pendant to call for help. The alarm summoned an emergency medical squad, but sent them to the wrong address. Sadly, the woman was found dead hours later, still clutching the pendant that was supposed to help protect her.

None of the parties involved—the senior living facility, the company that made and installed the alarm system, or the company that monitored and responded to the system’s alarms—was willing to accept responsibility for the woman’s death. It took a lawsuit to sort it all out.

As part of the settlement agreement, the senior facility, at the family’s insistence, agreed to execute routine testing of the alarm systems in all its 300 nationwide facilities. The company agreed to provide signed and notarized certifications proving that testing had been completed.

The family wanted their mother’s death to mean something more than what financial compensation could provide. They wanted to ensure that such avoidable heartbreak would never be repeated.

Holding property management accountable for safety protocol

Another case involved the tragic death of a 4-year-old boy that could easily have been prevented. In his family’s apartment, the child tried to climb onto an electric stove, which tipped over and killed him.

The potential for this type of accident was known and could have been avoided easily had the apartment’s management company installed the recommended brackets that would have kept the stove from tipping over.

The case was resolved with a settlement that included a unique provision. Because their loss was so preventable, the family insisted that the property owners produce and broadcast a public service announcement to alert other property owners about the importance of using the anti-tip brackets. Again, they wanted their son’s death to have real meaning in helping to protect the lives of others.

Impacting legislation to prevent future wrongful death

One final example involved the death of a tow truck operator. He was hitching up a disabled vehicle on the side of the road at night. Even though all his warning lights were working as required, a passing car failed to change lanes and struck the operator. He was killed instantly.

To help the victim’s mother cope with her terrible loss, the settlement agreement in her case included the opportunity for her to meet with legislators. She lobbied for legislative changes in her state’s Move Over Law so that drivers would be required to change lanes not only for law enforcement vehicles, but also when seeing the flashing yellow lights of any emergency vehicle.

Turning grief to good is beyond the scope of juries

What all three of these cases have in common is that the surviving victims of the wrongful deaths were looking to take something meaningful—and even positive—out of their personal tragedies. That is not unusual.

Answers and assurance can provide healing that a monetary award cannot, and the litigation process helps produce both. Those remedies—and provisions for their enforcement—are simply not available in the courtroom. In civil litigation, juries have no power to compel specific actions on the part of any of the litigants. They can award compensation for damages, and that compensation is critical and necessary for the survivors. But it is also, too often, not enough.

That’s why settlements may provide a more appropriate resolution for clients. It gives survivors the best opportunity to make provisions that draw meaning from tragedy and, hopefully, accelerate the healing process.

If you find yourself in a situation involving personal injury or a wrongful death, don’t hesitate to reach out to the Ohio civil litigation attorneys at Cooper & Elliott for legal assistance. We’re here to help.

*Names in this article have been changed to protect our clients’ privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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Untying a Legal Knot in the Utah Supreme Court

Posted on Thu, May 11, 2017 @ 12:23 AM

The law is a tool. As with any tool, you use it to fix what is broken or to maintain what is working (i.e., to secure justice). And as with any tool, the law can be used in the “wrong” way. A clever, unscrupulous party can apply the law in ways not intended, thereby doing harm to a business and the people behind it.

Fortunately, through business litigation, the law provides ways to remedy harm that laws themselves—when misused—may have helped to create.

A sweet deal turns sour for International Confections Company

International Confections Company (ICC) produced and sold candy throughout North America, and did so successfully, growing from nearly nothing to more than $40 million in revenues in a little over three years. Part of that company’s most recent success could be attributed to an exclusive licensing agreement with Mrs. Fields Franchising.

It was supposed to be a 17-year deal, but it didn’t last that long. Mrs. Fields hired a consultant who determined that a 17-year exclusive arrangement would render the company undesirable to potential buyers. As a result, Mrs. Fields manufactured default and informed ICC that the exclusive agreement was to be terminated. ICC’s protests were ignored, and by means of a legal loophole, Mrs. Fields was released from the agreement.

Losing the Mrs. Fields business was devastating for ICC. Things then got dramatically worse, thanks again to direct actions taken by Mrs. Fields Franchising.

Mrs. Fields Franchising acquires a devalued ICC

To fund its growth, ICC had negotiated a large line of credit which was conditional on its exclusive licensing agreement with Mrs. Fields. When the bank learned the licensing agreement had been terminated, it immediately put ICC into receivership (as per the terms of its line of credit), and then put ICC up for sale.

While ICC was negotiating to repay the outstanding portion of the line of credit, the auction to sell the company proceeded. An hour before the bidding closed, a new buyer swooped in with the winning bid. That bidder was Mrs. Fields Franchising.

Things only got worse for ICC when its attorney withdrew from the case without proper notification, even though such a notification was required by law. ICC wasn’t even informed about the final court hearing confirming the sale to Mrs. Field’s until January 2015, nearly a month later.

Mrs. Fields wriggled out of its licensing agreement with ICC, which in turn greatly devalued the company. Then, in the final moments of the auction to purchase ICC, Mrs. Fields took advantage of the low price and purchased ICC for $2 million (the company had been valued at $40 million prior to the termination of the licensing agreement).

Ohio business attorneys build a strong case

At that point, International Confections Company (which was headquartered both in Utah and Ohio) became our client. We immediately saw the inequity of the entire situation. The sale should never have gone through for two reasons:

  • First, when ICC settled its debt with the bank, the company should have been removed from receivership. At that time, the bank had no jurisdiction to continue the sale. Yet ICC’s attorney, for reasons that remain unexplained, waived the “no jurisdiction” issue and allowed the sale to continue.
  • Second, the hearing that confirmed the sale to Mrs. Fields was conducted without proper representation for ICC. Utah law allows a client 21 days to secure new legal representation when an attorney withdraws. Yet the hearing was held less than a week after the attorney notified the court (but not ICC) of his withdrawal. ICC did not even have an opportunity to appear pro se at the hearing.

We appealed the case to the Utah Supreme Court. And while getting the court to reverse a decision is always an uphill battle, this case had one other huge obstacle to overcome.

Overcoming ‘equitable mootness’ through business litigation

“Equitable mootness” is a doctrine that we believe is seriously flawed, though it has been followed by appellate courts for more than a quarter century. Essentially, it says that once a deal (particularly with regard to a bankruptcy) has been completed and a substantial period of time has passed, you can’t go in and undo it, even if some injustice had been done as part of that agreement. Unraveling a complicated deal at that point, so the thinking goes, would not be equitable to all the parties involved.

But what is equitable about allowing an injustice to stand? Where is the relief for a business that was the victim of such an injustice? That was essentially what we argued before the Utah Supreme Court on behalf of ICC.

If parties in this case were allowed to get away with wrongdoing for the sake of equitable mootness, what would prevent future parties from maliciously bending the law regarding jurisdiction and legal representation when they could cite this case as a precedent?

A decision from the Utah Supreme Court is pending. However, we are prepared to pursue justice through other avenues if the court doesn’t recognize how unfairly ICC has been treated.

The business of helping good people

A final note about ICC: It is “our kind of client.” Not just because it has a problem that calls for experienced Ohio business litigation attorneys. But because of the character of the people behind it.

The owner of the company is a stand-up person who built a business from scratch only to have it ripped away through business and legal shenanigans, and through a legal process that faltered rather than adhered to the law. He’s concerned about what happens to the ICC employees who invested their own time and energy in helping to build the business. Legally he could have walked away from ICC and discharged its remaining debts, but he wants his creditors paid in full. He wants justice, from the Utah court and from Mrs. Fields Franchising, even though that’s not the easiest path.

That kind of client deserves business litigation attorneys who will go to Utah—or as far as it takes—to win the justice he deserves.

If you find yourself in a similar situation, don’t hesitate to reach out to the Ohio business litigation attorneys at Cooper & Elliott for legal assistance. We’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

 

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A Conditional Settlement Helps One Family Heal

Posted on Thu, Apr 20, 2017 @ 6:48 PM

As Ohio civil litigation attorneys, our focus is always on one thing: to help our clients find justice and hold the wrongdoers accountable. That means taking the time to understand our clients’ point of view and the extent of their pain. It means digging for the facts and going beyond the obvious to uncover what’s critical.

It also means, for each case and every client, determining what constitutes genuine justice.

Money alone is rarely sufficient, especially when the case involves a wrongful death or life-altering injury. What makes someone whole after a devastating loss? Are there ways not only to compensate for damages but also open possibilities for bringing an individual or family closer to healing?

A case of mistaken location

Let’s revisit a case we first brought to your attention last year. It’s a case rapidly moving toward a final resolution. It provides a prime example of how a settlement agreement can not only compensate for a loss but begin to render meaning to a family tragedy.

The case involved the wrongful death of Dorothy Kramer*, an elderly woman who lived in an assisted-living center. One morning, alone in her apartment, Dorothy pressed the emergency pendant she wore around her neck to summon emergency medical attention. The alarm was one of the services provided by the center, and it summoned an EMS unit just as it was supposed to do.

But it failed to bring them to Dorothy.

The EMS team was directed to the wrong address, across the hall from Dorothy’s apartment. Because false alarms in these situations are not uncommon, the EMS team decided that they must have been called in error, and left the premises. No one checked on Dorothy.

She was discovered hours later—alone, sitting in a chair, still clutching the alarm that she and her family had believed would prevent her from dying unattended.

Plenty of blame to go around in wrongful death

Of course, Dorothy’s passing in this manner was a tragedy. It certainly didn’t have to happen the way it did. Safeguards had been instituted to assure that appropriate emergency medical attention would be available as needed. Yet somewhere there had been a breakdown in the system, leading to a result no one wanted.

Naturally, the Kramer family wanted answers. Why did this happen? How could this have happened? But satisfactory answers were not forthcoming, so the family came to us.

There were three main players in this drama, and instead of accepting appropriate responsibility, all three were busy pointing fingers of blame. The company that owned and operated the senior living center denied any responsibility for the failure of the alarm system to perform as promised. The company that manufactured and installed the alarm system denied any responsibility for the failure of the EMS response team to make sure it had arrived at the correct address. And the company that monitored the alarm system and sent the EMS unit denied any responsibility for the system’s failure to correctly identify Dorothy’s location.

With each of the parties refusing to accept responsibility, we filed a civil lawsuit against all three companies.

Settlement discussions have been under way with the three companies, each of which is finally beginning to cooperate. In fact, we’re nearing the point of closure and don’t anticipate this case going to trial. And here, that’s a good thing. We think a settlement—without a trial—will be in the best interest of our client because a settlement is the only way to achieve an important condition that doesn’t involve money.

Salvaging some good through a settlement

Money will always be part of the compensation for damages in a civil litigation case. But so often, that’s only the starting point. What families, victims, and survivors really need is the closure that must happen before real healing can begin. They need answers. They need meaning, drawn from the knowledge that some good can be salvaged from their loss.

In this case, the Kramer family found some additional meaning through a condition we negotiated as part of the settlement. The company that owns the senior living facility will be required to test the alarms it provides its residents. To assure enforcement of this provision, the company must produce a signed, notarized certification that the tests were completed successfully.

This provision applies not only to the facility where Dorothy lived but to all the facilities owned and operated by the company. That amounts to more than 300 facilities in 38 states.

Such a requirement is possible only when there is a settlement agreement. A jury’s scope is limited to determining responsibility and awarding suitable financial compensation. What the jury can’t do is impose a condition on any of the parties in the litigation.

A condition such as the certified testing of literally hundreds of alarm units must be agreed to by the parties involved.

It represents an extra step in the civil litigation process, one that the client’s attorney must be committed to pursuing. But as in the case of Dorothy Kramer, it’s one step that will benefit all parties involved, including future residents of Dorothy’s senior living facility. Their lives will be better protected because of the Kramer family’s foresight and its commitment to doing what’s right.

If you find yourself in a similar situation, don’t hesitate to reach out to us. We’re here to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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