Qualified Immunity: A Necessary, But Not Absolute Privilege

Lately, it’s not surprising to turn on the news and see a case involving a police officer who’s been accused of using excessive force. The circumstances all vary but are nonetheless emotionally charged and often involve a legal doctrine known as qualified immunity. As Ohio civil litigation attorneys, we’d like to shed some light on qualified immunity and its legal implications.

The purpose of qualified immunity

Qualified immunity is a privilege often asserted by police officers, prison guards and other law enforcement or government agents to defend against a civil rights lawsuit. Its purpose is to strike a balance between the need for an official to act in difficult situations where split-seconds matter, and the need to protect the rights of those with whom the official comes into contact. The doctrine exists because we have to give government officials a certain amount of leeway to allow them reasonable discretion and personal safety in the performance of their jobs. No one would want to be a police officer if it meant the possibility of personal liability for every single action taken on the job.

However, qualified immunity is not a blanket protection for anything a person might choose to do in his or her official capacity.

Precedents determined by civil rights case rulings

Whether a defendant has qualified immunity depends on whether the defendant acted reasonably given the specific circumstances. When a defendant asserts qualified immunity, the defendant is saying, “Even if I violated the plaintiff’s constitutional rights, I can’t be liable because it wasn’t clear beforehand that my conduct was a violation.”  The question is usually decided in terms of legal precedent—what courts have specifically held in similar cases.

Imagine a situation in which an officer strikes a handcuffed suspect with a baton. Whether the officer’s actions are considered excessive will depend on the specific circumstances. Was the suspect standing or sitting peacefully, posing no threat to the officer or anyone else? In those circumstances, courts have held that the baton strike is excessive and therefore a violation of the suspect’s constitutional rights. But what if the suspect was kicking or head-butting the officer? Many court cases have held that it’s permissible to strike a restrained suspect in that situation in order to protect the officer and others. The question can become even more nuanced—What if it takes only one or two baton strikes to subdue the suspect, but the officer continues with several more strikes after the suspect no longer poses a threat? Courts faced with that scenario may hold that the later strikes violated the suspect’s constitutional rights, even if the first one or two did not. Whether an officer is immune can come down to specifics like how many times the officer struck the suspect. So, if we were representing a suspect in a civil rights case against the officer, we would want to know if a court decision had ever addressed the specific details of our client’s case.

Validating qualified immunity assertions

When we go to bat for a client who believes an official has gone beyond what the law allows and violated their civil rights, we frequently end up facing an assertion of qualified immunity. Handling such cases requires a close examination of any precedents that seemingly immunize the official. Sometimes we can prove the law was badly applied in those cases, or that the facts in our case are different enough that immunity shouldn’t apply.

We look for evidence that would indicate that the official knew or should have known their actions were violating our client’s rights. In other words, we look at whether courts have issued decisions in cases involving the same circumstances as our client’s, or circumstances that are similar enough that the same rule would clearly apply. We also look at the official’s training and prior incidents, if any.  If we can prove that the official should have known better, we can defend against qualified immunity.

Misuse of qualified immunity

While qualified immunity protects officers and government officials and enables them to carry out their duty to protect the community, there are facets of the provision that some defense attorneys abuse.

For example, a defendant can ask the judge to dismiss the case on qualified immunity grounds before trial by filing a motion to dismiss or motion for summary judgment.  Most of the time, if a judge rejects a defendant’s motion to dismiss or motion for summary judgment, the defendant has to wait until after trial to appeal the judge’s legal decision. But qualified immunity is different. If a judge rejects a qualified immunity defense, the defendant can immediately appeal, and the appeal must be resolved before the case can continue to trial.  Trials can be held up for a year or more as a result.

Qualified immunity was created for a reasonable purpose, but it can be abused and provide cover for acts that are true violations of a citizen’s constitutional rights. If you have a civil rights case against a government official, it’s important that your attorneys be experienced in exposing faulty qualified immunity assertions.

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

Subrogation, Private Health Insurance and Your Personal Injury Settlement

In previous articles, we’ve shared the basics of subrogation and how it relates to Medicare and Medicaid. The rules that govern subrogation for Medicare and Medicaid are different than those for private health insurers. In this article, we’ll discuss subrogation as it relates to private insurance and ways we can help our clients minimize its effects on their personal injury settlement or judgment.

Private insurance subrogation laws

Unlike Medicare and Medicaid, in which subrogation rules are part of the laws and regulations that govern the programs, private insurance subrogation rules are contained in insurance contracts. And while Medicare reduces its subrogation to account for fees and costs, and Medicaid limits the amount of a settlement that can be taken via subrogation, private insurance may have no such restrictions.

Unfortunately, many people get health insurance through their employer (or the Affordable Care Act), and there’s not a lot of room for shopping around and the contract terms are non-negotiable.

Example of a worst-case scenario: In a car accident, when one driver is hit by another, the victim’s health insurance company pays $50,000 to cover the medical expenses. A lawsuit is filed against the offending driver, but because the driver has minimum auto insurance limits, it recovers only $25,000. The language in the injured person’s health insurance contract might give their insurer the right to recover every dollar it paid on their behalf originally. So, the $25,000 recovered in the lawsuit would go directly to the plaintiff’s health insurance company.

It’s hard to understand, given that people pay premiums for their health insurance and expect that they’re getting something for what they paid for. Many are shocked to learn that their insurer doesn’t have to bear the risk of having to pay their medical bills.

Ohio civil litigation attorneys examine the fine print

Frequently, there are ways we can fight subrogation claims on our clients’ behalf. First, we try to make sure our clients pay no more than they’re legally obligated to by diligently reviewing the language in the insurance contract. Unless the contract uses certain proper and precise language, the insurance company may not be able to make a claim on the settlement at all. There are some conditions that could prevent subrogation claims:

  • No contract – Insurance companies are sometimes unable to produce a written contract for examination, but they might try to assert a subrogation claim anyway. Without having a contract to back up such a claim, they’re out of luck.
  • Timing – We check to make sure that the exact subrogation language in the contract the insurer is trying to apply was in effect at the time of the accident. For example, if an accident occurs in 2015, but the subrogation language in the contract didn’t go into effect until 2016, then it can’t apply to that case.
  • Agreement with state law – Some private health insurance contracts are governed by state law. In those cases, if the contract language in question doesn’t meet the requirements of Ohio subrogation law, the insurance company may not be able to claim some or all of what it paid.

What if the subrogation language is binding?

Even if we’ve verified that the contract language is sound and the right to subrogation as written in the contract is valid, we still have options. Insurance companies don’t want to spend a great deal of money collecting subrogation payments, so the possibility of having to go to court often prompts a company to negotiate.

Another option—we sometimes think of it as the secret weapon—is to negotiate a reduction of the subrogation claim by threatening to drop the lawsuit altogether. The threat of exercising this option can persuade the insurance company to negotiate on subrogation because without the personal injury case, there would be no settlement from which to collect. This approach is absolutely one of last resort, of course. But if the subrogation claim would swallow up all of our client’s recovery, it may be the only way to get the health insurer to negotiation.

There are many things to consider when you’re facing the threat of losing a personal injury recovery to a subrogation claim. If you could use some assistance navigating a messy subrogation battle, give the Ohio civil litigation attorneys at Cooper & Elliott 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.

How Subrogation Works with Medicare and Medicaid

In our last post, we outlined the basics of subrogation. Briefly, subrogation is the right of someone besides an injured person to recover something out of a personal injury case.  Subrogation works differently depending on the type of insurance involved. Medicare and Medicaid have different sets of rules from private insurers. In this post, part two of the series, we’ll discuss subrogation as it relates to Medicare and Medicaid.

How subrogation works with taxpayer-funded insurance

Medicare and Medicaid are government run programs, funded by taxpayer dollars. The intent of subrogation in these programs is to offset taxpayer responsibility for the related healthcare costs.

Subrogation rules are written into the statutes that govern Medicare and Medicaid. Virtually always, if Medicare or Medicaid paid medical expenses incurred because of a personal injury, there will be at least some subrogation payment from a personal injury judgment or settlement. But the good news is that—unlike the subrogation rules for private insurance—the Medicare and Medicaid subrogation rules take the plaintiff’s costs and other circumstances into account.

Medicare

In a case involving Medicare, the subrogation payout is set by a formula. The amount paid is reduced in proportion to the plaintiff’s attorney fees and expenses.  This is an attempt to account for the fact that the plaintiff incurs costs and attorney fees from pursuing a settlement or judgment.

Recent changes in Ohio Medicaid subrogation law

The rules for Medicaid can vary from state to state because unlike Medicare, which is a federal program, Medicaid is run by individual states. Some recent federal rulings have led to changes in Ohio law about Medicaid subrogation.

In personal injury cases where Medicaid had paid for medical expenses and the expenses exceeded the plaintiff’s settlement or judgment, Ohio law used to provide that 50% of the plaintiff’s recovery represented medical expenses applicable to medical bills. But in many cases, a smaller percentage of the plaintiff’s recovery represents medical expenses, and the larger percentage compensates for pain and suffering, or other costs. That meant that it wasn’t especially fair for a Medicaid subrogation claim to be based on 50% of the plaintiff’s recovery when only a fraction of that was intended to compensate for medical bills.

The U.S. Supreme Court recently ruled that states can no longer require that a fixed percent of any recovery is subject to Medicaid subrogation. Subrogation payouts are applicable only to the part of a settlement that represents compensation for medical bills paid by Medicaid and not compensation for pain and suffering or other costs. The ruling is logical, given that subrogation is supposed to help offset the cost of medical care paid for by the government.

Also, this court ruling means that the subrogation amount must be in the proper proportion to the judgment, based on the facts of the plaintiff’s case. Attorneys can work to protect portions of the judgment from subrogation, and they can make sure there’s an administrative hearing if the proportions are disputed.

Getting the percentage right

Ultimately, our goal with Medicare and Medicaid cases is to make sure that when the subrogation formula is applied, it’s applied for the correct medical costs (not for unrelated expenses or ones incurred before or after the events for which the plaintiff recovers), and that it applies only to the appropriate portions of the recovery.

Subrogation involving private insurers can be very different, because the rules are part of each individual insurance contract and not set specifically by law. We’ll discuss that in a future post. But whether your case involves subrogation or not, give the Ohio civil litigation attorneys at Cooper & Elliott 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.

Subrogation in Personal Injury Cases – Why, and What Is It?

For people who have been harmed by someone else’s wrongdoing, a civil judgment or settlement is a crucial step towards healing. That healing includes the emotional release that comes from a court agreeing that they were not at fault, but it also includes the only remediation our court system is permitted to offer—money.

However, for many of those people, that financial relief could disappear suddenly because of a common clause in their insurance policy—the subrogation clause. In brief, subrogation allows an insurance provider the right to reclaim some or all of what they paid for medical care from a patient’s civil judgement or settlement. Medicare and Medicaid have subrogation rights under the law, and many private insurance policies have subrogation clauses in one form or another.  But that doesn’t mean you have no recourse.

Over the course of this 3-part series, we’ll be looking closely at what subrogation is, and how it can be minimized.

Subrogation in public vs. private insurance

To understand the details of subrogation, it’s important to first understand that there are two different kinds of insurance providers and they each handle subrogation differently. The first is public, funded by the government, through Medicare and Medicaid. Subrogation is part of the law for Medicare and Medicaid programs. In nearly all applicable cases, some subrogation money will be taken. Even after trying to negotiate the amount down, there’s often still a minimum amount these government programs will take, and there’s no escaping it. But at least for Medicaid cases, the law also caps the amount, which assures that the injured party will get to keep at least some of the settlement.

The other type of carrier is, well, everybody else—all private insurers. Although their right to subrogation is also governed by state or federal law, rules for subrogation primarily depend on the written terms in the insurance contracts these companies sell. Some contracts may say little or nothing about it (thus you may be able to avoid subrogation claims altogether). Others may contain some very potent language, and the insurer may have the right to take your entire settlement to cover the amount they paid out.

How is subrogation possible?

The most common reaction we get when people learn about subrogation is shock. It makes sense to assume the money you pay for insurance, either through premiums or taxes, is supposed to purchase coverage. It doesn’t seem fair for insurance companies to then take part of the judgement or settlement as well. The counter-argument is that you signed a contract and are therefore beholden to the terms of that contract—no matter how unfair they seem.

The problem is that you may not have had much choice in the matter. If you get your insurance through your employer (or the Affordable Care Act), it’s a take-it-or-leave-it situation. You, as a single private individual, can’t negotiate the contract language. You’re stuck with whatever subrogation rules are in the policy that covers you.

The idea of subrogation is that it will offset the cost of insurance and keep costs from going up. So it’s easy to understand why Medicare and Medicaid use it, since they’re funded by taxpayer dollars. It’s harder to see a good reason (for parties other than the insurer) for private companies to use it, because subrogation-friendly judgments have not kept the cost of insurance from rising. But whatever the reason for it, subrogation is a fact of life. Medicare, Medicaid, or your private insurance may be legally entitled to a portion of your settlement.

Civil litigation attorneys can help

The good news is that you may not be stuck. There are legal remedies that could help. In upcoming articles on subrogation, we’ll get into more detail about the specifics of public vs. private insurance subrogation claims and how they can be mitigated.

But if you’re caught in a subrogation mess right now, the Ohio civil litigation attorneys at Cooper & Elliott are happy to talk to you about it. 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.

Communication Techniques for Managing Juror Biases

 

Jury trials are a cornerstone of our modern legal system. In fact, it could be argued that they’re a necessary component of a democratic society. Yet for all their advantages, jury trials also present certain challenges for us as Ohio civil litigation attorneys.

Personal vs. human juror biases

The reason is simple: juries are composed of people, and people are complex. We all have our own individual experiences and beliefs that color the way we view the world. In addition to those personal biases, there are more general human biases that are a part of our psychology and how we are wired.

Personal biases and prejudices are part of the reason why there’s a process called voir dire (meaning “to speak the truth”) where attorneys ask potential jurors questions in order to assess whether they are able to render a fair and impartial verdict. But what about the subtler juror biases? The ones grounded in basic human psychology and not just prejudice or partiality? Those too require certain techniques in trial if we are to ensure our clients secure the justice they deserve from a jury of their peers.

Primacy, recency, and the art of storytelling

When presenting a case to a jury, a certain amount of storytelling sensibility is helpful (as we’ve discussed before) in order to maximize the information’s impact. The primacy and recency effects are biases that cause people to better recall the first and last parts of information presented in a series.

With any kind of storytelling, capturing the audience’s attention right away is key. For the purposes of presenting a case, primacy can have an incredible impact—it means telling the story in a manner that immediately gets the jury focused on the issues involved, as well as the outcome that’s being advocated.

On the other hand, the very last statement a jury hears can also make a big impact, especially if it’s a longer trial. In terms of recency, we like to finish our presentation of the evidence with compelling testimony. A persuasive closing argument powerfully summarizes the testimony for the jury members and provides them with something to discuss as soon as deliberation begins.

Juror bias of loss aversion

One of the more fascinating, and less obvious, forms of juror bias that civil litigation attorneys need to keep in mind is rooted in the concept of loss aversion. Social scientists who study human behavior report statistics showing people have a strong tendency toward preferring the avoidance of losses over the acquisition of gains.

This inclination toward loss aversion requires subtle adjustments when dealing with a jury. If, for instance, the jury’s job is characterized as awarding compensation to improve the plaintiff’s life, jurors will likely interpret that as providing a gain and will feel less receptive toward it.

If, on the other hand, an award is characterized as a means of making up for a loss suffered by the plaintiff, jurors may be more inclined to agree with granting it. They are able to view the award as effectively restoring the plaintiff back to the state they were in before they were wronged. In the jurors’ eyes, the plaintiff’s life isn’t improving by adding a gain, rather, the void that was created by the defendant’s misconduct is being filled. The difference is quite subtle, but it can have a powerful impact on a jury.

Appealing to the status quo

A related strategy for addressing jury biases involves how you present the “status quo,” or typical situation, of the plaintiff. There’s a tendency for people to like things to stay relatively the same, as opposed to changing them. In court, we take that preference into account.

 For example, in a personal injury case, if a client’s status quo is being projected as that of an injured person, the jury’s receptiveness will potentially be different than if the status quo was presented as that of a healthy person. We aim to project a healthy status quo for our clients so that, in the minds of jurors, an award to the plaintiff will restore the healthy condition they enjoyed before it was degraded by the defendant’s misconduct.

The importance of being personable

Many human biases come into play during jury trials, and knowing how to strategically address them is a mark of a great attorney. However, there is more to practicing good, effective law than text book knowledge—being personable and accessible are also extremely important attributes of successful civil litigation attorneys. We strive to communicate using clear, simple language that juries can easily respond to in order to get the best outcome for our clients.

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

Methods for Optimizing Jury Selection and Voir Dire

Voir dire is a legal term you may have heard before. It’s a critical element of the jury selection process, where prospective jurors are questioned about their background and evaluated on their likelihood to optimally serve on a jury. During voir dire, civil litigation attorneys on both sides try to identify biases that could affect how a juror views the facts of a case. Everyone has biases, based on their personal experience, points of view, and opinions. In voir dire, we attempt to identify the biases that might indicate that a particular person is not right to serve on a jury for a particular case.

Listening to personal stories

Voir dire is the only opportunity attorneys have to question jurors directly. This is the time to open lines of communication with prospective jurors about their opinions, experiences, and attitudes to try to better understand how they are positioned on certain topics.

Opening up about our own personal stories is one of the best methods we’ve found to get the conversation started. For example, one of our attorneys is the father of an autistic son. By explaining how his role as a parent means advocating for his son, we show how his rightful desire to get the best care and education for his own child makes him the wrong juror for a case involving a dispute over special-needs childcare. We take special care to reinforce the idea that this has no negative reflection on him as an individual—it simply means that his personal experiences may prevent him from thinking about the case objectively.

This and similar anecdotal stories serve two purposes: First, they prove that having biases doesn’t have to be negative, which helps reduce the chances of offending potential jurors. Second, these stories make us as attorneys appear more vulnerable and human—ultimately promoting trust and open communication.

The goal is to spark an honest conversation about what prospective jurors believe so that any biases affecting the juror are brought to light.

We often approach potential jurors with the intent of listening more and talking less. Many attorneys tend to forget that the goal of voir dire is not to start arguing the facts of the case. By asking open-ended questions we allow prospective jurors to place themselves on a spectrum of various opinions that a simple “yes” or “no” answer wouldn’t reveal.  This helps jurors see that reasonable people have a range of thoughts on a particular issue.

We’ll sometimes start by questioning the whole group with a show of hands, then proceed to open-ended questions for individual jurors. “Tell me more about that” is something we say often. It encourages people to tell their stories, and it helps us learn about their backgrounds, life experiences, and biases.

Information gathering process

Obviously, we don’t want a person on the jury who is likely to vote against a verdict that would favor our client. However, attorneys are allowed only a limited number of peremptory challenges, in which we can dismiss a potential juror. As a result, many juries have members who we feel are less than ideal. The process of voir dire helps us gather information about those jurors that is often valuable later on. We try to learn as much as we can about how the jurors think, and leverage that information for structuring arguments during the trial so that the jurors who do present a challenge perceive details in a favorable way.

It helps to have a second attorney on hand to take notes during the voir dire process. This way, one attorney can talk with prospective jurors while the other takes notes on what they say. We look to identify prospective leaders, people whose personalities will inspire others to follow them—and which jurors will likely support the plaintiff.

Establishing respect

As important as the voir dire process is, it is always respectful—we never want a prospective juror to feel as if he or she is being cross-examined in a hostile way. We remind each one that we’re not trying to determine if they’re a good or a bad person. We’re only trying to decide whether they’re the right juror for the case. It is very important that we show respect for their feelings and opinions. It makes the information gathering part of voir dire more complex, but in the end we never want to antagonize someone who might end up on the jury.

We know that a successful outcome often begins within the very first few minutes in the courtroom, by getting the right jury empaneled.

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

Unusual Courtroom Tactic Wins Case Against Construction Company

Sometimes doing something unusual in a courtroom can make all the difference. Ohio civil litigation attorneys at Cooper & Elliott were faced with such a decision. After a brief discussion about the risk, they made a bold decision to literally pour a bottle of water over the defense’s exhibit—and it proved to be the turning point in the case of a family whose dream home turned into a nightmare due to a construction defect.

The construction defect

It started when the Gearharts* noticed water coming into the basement of their new home. After each rain, water poured in through the cinder blocks—so much so that the Gearharts were able to capture the water coming in on video. The sump pump was running non-stop, and their basement was so damp that mold was growing on their belongings, some of which were family heirlooms. Mildew formed on the walls, and when the Gearhart’s children started showing flu-like symptoms, they feared that mold was inside the walls. The Gearharts attempted to combat the mold growth with a variety of solutions, but had little success.

When the construction company that built the home refused to take responsibility for the water seepage, the Gearharts came to us for help.

Perseverance and creativity

We needed to find out exactly what flaws or defects were allowing water to leak into the basement of the Gearhart’s home. The construction company was not willing to cooperate in that, so we had to do some digging on our own.

Rather than spending thousands of dollars excavating around the entire house to see what errors had been made, we hired experts and conducted research. By looking through records we were able to determine how much gravel the builder had used, and according to experts, it wasn’t enough. Gravel allows water to drain away from the foundation walls, and without enough of it, the soil around the basement was absorbing water like a sponge. The immense weight of the saturated soil put so much pressure on the walls that they had started to bow and crack. Water damage aside; the very stability of the house was in question. By excavating in a small area, we discovered that the construction company neglected to properly treat the exterior of the walls with waterproofing chemicals.

During trial, the first judge dismissed the case—much to the consternation of the jury that had heard the evidence against the construction company. That decision was reversed on appeal, which meant that we would have to start over with a new trial, significantly lengthening the process. At that point, most attorneys would have grown weary with the case and advised their clients to take the settlement the construction company had offered—but we kept fighting.

Using the defense’s tools against them

During the second trial, the construction company’s defense built a special exhibit to demonstrate to the jury the functionality of a basement wall. It was a mock-up wall made of cinder blocks, about five feet long and four feet high, with tar on the outside and gravel at the base.

As we prepared for cross-examination, we noticed a bottle of water on the table, and it sparked an idea: after a brief discussion, we decided to take the bottle of water and pour it over the exhibit. The defense had constructed an elaborate exhibit to demonstrate how a basement wall should deflect water, but they had neglected to include water in their demonstration.

We knew we were taking a risk, but we followed our instinct.

As the cross-examination began, we asked the witness if the model represented a properly constructed wall. The witness acknowledged that it did. We then poured the water over the exhibit, which drained away exactly as intended—reaffirming that the walls of the Gearhart’s home were not properly constructed.

The jury had viewed the videos of water pouring in through the walls of the Gearhart’s basement, and the demonstration with the water bottle solidified our case. The witness wasn’t prepared for the exhibit to backfire, and needless to say, there were some chuckles from the jury. That moment helped turn the trial in favor of the Gearharts.

The Gearharts feared they might walk away having to pay exorbitant amounts of money to correct a terrible defect in their dream home. With a little creativity and perseverance, we were able to make sure that didn’t happen. They received a settlement that allowed them to fix their dream home, from bad walls to mold remediation, and helped pay their expenses while they lived somewhere else during the process.

Two civil litigation attorneys are better than one

There’s a reason we assign two attorneys to each case. All minds work differently, and sometimes one of us will see something that the other doesn’t, like I did with the water bottle. When that happens, we can put that new idea into play immediately, and it can make a big difference for our clients.

 

*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.

A Man in Need Seeks Help from Police, and Receives a Bullet Instead

Millions of people around the world suffer from bipolar disorder. They move from manic to depressive phases quickly, which can make life difficult for them and their loved ones. The condition can often be controlled with medication, but the process takes time as the patient and doctor try to perfect the prescription and dosage. The goal is to level out the emotional peaks and valleys so the patient can maintain a consistent quality of life.

That happy medium is exactly what Kyle Branson* was trying to achieve. Kyle’s doctor had taken him off his medication because he was experiencing negative side effects, including severe nausea. Kyle’s bipolar symptoms were likely to appear again, but it was all part of the adjustment process.

Kyle’s manic episode

One night during that adjustment period, Kyle was doing his laundry. We’re not really sure why, but as he left the laundromat, Kyle was jumped by four or five men. When the police came to break up the fight, they handcuffed everyone, including Kyle. Once they figured out he was the victim and not a perpetrator, they let him go. Even without the added complication of Kyle’s medical condition, it was a harrowing experience.

Kyle, who was badly shaken, got in his van and began to drive home. On the way, he felt increasingly disoriented and pulled into a church parking lot. He’d been sitting there a while, when a police cruiser pulled in to investigate his van. Kyle got out and asked the officers if they could help him get a wrecker. Rather than help Kyle, the officers mockingly replied that they weren’t AAA. Kyle then asked if they could take him to a hospital. Again they refused him help, and began questioning him. When Kyle decided they weren’t going to be of any assistance, he headed back to his van.

The officers pursued Kyle, ordering him to answer their questions and to get out of the van. But Kyle sat there, disoriented and frustrated, holding onto the steering wheel. Reaching through the window, one of the officers tried to pry his hands off the steering wheel, but Kyle tightened his grip. This resistance—albeit nonviolent—infuriated the officers. One officer swung at Kyle with his baton in an attempt to get him to exit the vehicle. When that didn’t work, the other officer took out his service revolver and shot Kyle in the stomach.

Instead of getting help from the police in his time of need, Kyle got shot and nearly died. After a month in the hospital and a surgery to reconstruct his abdomen, Kyle recovered. He was left with a foot-long scar from sternum to navel that would forever serve as reminder of that terrible night.

A civil rights case

Law enforcement officers have what’s known as qualified immunity. It protects them from constantly being second-guessed or harshly judged for decisions they have to make in a split second. Because of this, it requires some extraordinary facts and delicate nuances for an officer to be held liable for using excessive force and thereby violating a citizen’s constitutional rights.

As we dug into this case, we uncovered some discrepancies with the police officers’ story which contributed to the department’s willingness to reach a settlement. The officers fabricated a story about Kyle resisting arrest after being sprayed with mace, to make it seem as though their excessive use of force was legitimate. No mace residue was found in the van, however. What’s more—Kyle had applied to be a police officer a few years prior and had his application denied because of his severe allergic reaction to mace.

The officers also claimed that Kyle attempted to attack them from inside his van with a flashlight. No flashlight was found in the investigation, and no marks were found on either officer.

Perhaps the most significant bit of information we learned was that the officers had received no training from the department on how to deal with people going through emotional or mental distress. They essentially had been trained to treat them like any other intoxicated or disobedient person.

Right before going to trial, the police department settled. In addition to the settlement, the case also helped lead to a change in Ohio law enforcement policy. Now, if officers believe a citizen is suffering from an emotional or mental condition, they are required to stand down and call Netcare, a Central Ohio organization that specifically helps people with special needs. And that’s a positive outcome for anyone who might find themselves in a similar position to Kyle’s in the future.

*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.

Immigration Malpractice Threatens to Ruin American Ideals for Hard-Working Man

People around the world seek a new life in the United States, pursuing things we often take for granted, like gainful employment and access to competent legal representation. After both of those things were called into question following a man’s mishandled visa renewal, he sought the help of Cooper & Elliott.

Negligence threatens a man and his family

When Sandeep Chaudhry* came to us, he was desperate. An IT professional working legally in the U.S. on an H1B visa, he had reason to believe the lawyer he’d entrusted with his immigration matters had been negligent with his paperwork—leaving him and his family at risk of deportation.

H1B visas have an expiration date and must be renewed in order to maintain legal working status in the U.S. The lawyer who’d been hired by Sandeep’s employer specifically to help employees deal with immigration matters was taking a long time to produce documents verifying the extension. Sandeep diligently delivered whatever paperwork his lawyer requested, and the lawyer continually assured him that everything was in order.

After time went on without clear proof of the extension, Sandeep became suspicious. Even though his lawyer was telling him everything was ok, Sandeep wanted written proof. The lawyer still couldn’t come up with a document. Sandeep turned to his employer, requesting verification from HR.

In the HR files was a document denying Sandeep’s extension because his paperwork had been filed too late.

This was crushing news. Immigration law states that if you’ve been in the U.S. more than a year past your visa’s expiration date, you could face deportation and be barred from coming back to the U.S. for at least 10 years.

What’s more, his wife’s immigration status was linked to his. If he left, she and their two kids would have to leave too.

Sandeep knew he needed help. He first went to another attorney for assistance. His situation only worsened as that attorney sat on his case for almost six months, finally telling him there wasn’t much that could be done. Amazingly, given his previous experiences with lawyers, Sandeep came to us after receiving a referral.

We were determined to do better for him.

The consequences of immigration malpractice

As we began digging into Sandeep’s case, it became obvious that the immigration lawyer had committed malpractice on multiple fronts: He hadn’t filed paperwork correctly, he hadn’t filed it on time, and he hadn’t kept Sandeep, his client, informed of ongoing developments.

What was most devastating, was that he hadn’t told Sandeep that the extension had been denied, and had instead been telling him that everything was fine.

We prepared to sue the lawyer for legal malpractice. And since Sandeep’s employer had represented itself as the facilitator of his immigration matters and had knowledge of the visa denial (it had been in the firm’s files for two years) but failed to inform Sandeep, we sued the company as well.

Yet as obvious as the malpractice may have appeared, actually obtaining justice was tricky. For one thing, the immigration lawyer and the employer were pointing fingers at each other, claiming that the other was responsible for Sandeep’s predicament.

The immigration malpractice had produced a number of life-altering consequences that Sandeep and his family had to face. First, Sandeep and his wife couldn’t leave the U.S. for fear of not being allowed back in. There was an ever-present worry that their family could potentially be split apart, with Sandeep and his wife being deported to India while their children, who weren’t citizens of India, had to remain in the U.S.

If Sandeep was forced to move back to India, his job prospects would be severely limited, since his line of work required him to travel to the U.S. By the time Sandeep came to us, he and his wife (who both had master’s degrees) could not work because the botched visa extension left them in a state of questionable legal working status.

As a result of their unemployment, they were rapidly running out of money. At one point Sandeep was limiting himself to one meal a day to ensure his children had enough to eat. Even Sandeep’s health was suffering—as the case continued, we noticed he looked increasingly haggard and thin. The entire family was enduring a great deal of stress. Between the helplessness of dealing with the immigration problems and the anxiety that comes with unemployment and financial troubles, they all were suffering.

Immigration reinstatement vs. damages

Just what would constitute justice for Sandeep in this situation? Sandeep’s highest priority was ensuring that he could legally stay in the U.S.—but according to immigration law experts, that possibility wasn’t promising. At that point, we knew we had to proceed with a lawsuit.

As is often the case with people who tend to mess things up, the immigration lawyer was essentially “judgment proof”—he and his law firm had very little money to pursue for damages. At that point, we turned our attention to the company.

Besides, the company was equally responsible for Sandeep’s situation. Our investigation revealed damning internal emails within the company’s records indicating that it had known Sandeep’s paperwork had been mishandled, yet it never tried to fix the problems or tell Sandeep of the issue.

Delivering justice

Our avenue of pursuit now centered on seeking damages; we went the extra mile for Sandeep. Knowing that his trust had already been broken repeatedly—by two lawyers, as well as his former employer—we made sure to update him with the progress of his case multiple times each week.

When we sat down with the company’s lawyers to hammer out a settlement, we insisted that Sandeep be properly compensated for the negligence that had caused such upheaval for him, his family, and their future.

After a 12-hour mediation session, the company’s attorneys still hadn’t yielded the results Sandeep deserved, so we prepared to walk out. Fortunately, the mediator brought us back and said the defense was finally willing to make an offer worthy of consideration.  Sandeep ultimately accepted the settlement.

Mixed results, mixed feelings

The resolution of this case was bittersweet for us. On the one hand, the settlement would help end the privations and immediate money worries Sandeep and his family were experiencing. It would also take some pressure off him and his wife as they sought new employment. At the very least, they wouldn’t be forced to immediately leave the U.S. for financial reasons.

Unfortunately, civil litigation for money damages against the attorney and the company didn’t resolve his immigration proceedings. In that sense, we wish we could have helped more.

There was at least one glimmer of hope, though: Our immigration expert said that the resolution of the lawsuit might help the chances for Sandeep’s visa extension. As part of the settlement, we had insisted that the first immigration lawyer admit in writing that the faulty paperwork had been his mistake, and not Sandeep’s. Our hope is that Sandeep and his family will be able to live in the U.S., recover from their hardship, and thrive.

A true privilege

When people choose to become a lawyer, their reasons are often justice-related: a desire to do good in the world, make a positive change, or help people right wrongs.

The reality is, in practice they often wind up working on cases far removed from those ideals.

It’s not an understatement, then, to say that working on a case like Sandeep’s was an extreme privilege for us as attorneys. Here was this selfless, generous, genuinely good man—honestly, one of the nicest clients we’ve had the pleasure of working with—who toiled and sacrificed to come to the U.S. because he loved everything it represented, only to have the door shut in his face through no fault of his own.

By all accounts, Sandeep should have been bitter and disillusioned. Yet he remained positive, hopeful, and grateful. Like many of our clients, he’s a model for all of us, and we’re honored to have been able 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.

Ohio Family Recovers after a Garbage Truck Destroys Their Home

It’s a story that only seems likely to happen on TV. A garbage truck lost control on an icy curve and careened into an Ohio family’s home at 45 mph. After crashing through the outer wall and almost going through a second interior wall, the truck came to a stop in the kitchen. The impact lifted the entire house off of its foundation, rendering the home a total loss. Although two members of the Rodríguez* family were home at the time, thankfully neither of them were injured.

This truck accident seemed as though it would have an easy resolution. An insurance claim against the waste disposal company should pay to restore the property damage, and that would be that. But that isn’t the way it played out, which is why the Rodríguez family needed a civil litigation attorney, and decided to give us a call.

The obstacle

When the Rodríguezes got ready to rebuild their home, the county in which they lived threw up an obstacle. County codes had changed since the house had originally been built, making it impossible to rebuild on the same plot of land. They would have to rebuild their home somewhere else.

The insurance company didn’t want to be responsible for purchasing a new land plot that would meet building code. The argument was that the negligent party was only responsible for replacing what it had damaged: the house. In effect, the insurance company was only willing to pay for a house that was impossible to build.

Not just a house

A house isn’t merely the brick and mortar it’s made of—it is a foundation for memories. It’s nearly impossible to place a dollar amount on objects that hold sentimental value. When a home is destroyed, there are things that cannot easily be replaced. The Rodríguezes had suffered irrecoverable losses, and we wanted to make sure that they weren’t stuck with a financial burden to boot.

We argued on the Rodríguez family’s behalf that they didn’t want any more than what they were entitled to: a similar house with similar furnishings on a similar piece of property. They wanted a similar home, with all the associations that involves. They wanted to recreate the life they had lived in their old house—an important consideration, given that their son, a senior in high school, had grown up in that house.

Property damage and counting the losses

The insurance company was not willing to pay enough to cover the cost of a new lot or replacing family collectible items. We crafted an argument that clearly laid out all the things the Rodríguez family had lost in the accident. In addition to the physical losses, the Rodríguezes suffered serious emotional stress as a result of the accident and being displaced from their home. When we presented their losses in that light, the request for greater compensation seemed much more practical.

The extra mile and a happy ending

The process of making things right for the Rodríguez family took a long time—from the time of the accident through the initial insurance claim to the final settlement, over a year and a half had passed. A year and a half is a long time to be without a home to call your own.

During that period, we developed a legal argument that ensured the family would be made whole again. But we also had another job during that time: making sure the family understood every step of the process, listening to their concerns and addressing them, and often just providing a sympathetic ear when it seemed like the process would drag on forever. When we came out of the judge’s chambers with a positive result that would allow them to finally build a new home, the relief on their faces was easy to see.

The Rodríguez family lives in their new home today. Not only has their property damage been made right, they’ve been able to restore many of their precious personal possessions that remind them of life in their old home. And they still own the property on which their old house stood. It’s a link to their past and maybe a promise for their future.

The Rodríguez case came to a positive result through a combination of commitment and creativity. If you need that kind of assistance, give us a call—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.