Barton Keyes Admitted to Partnership with Ohio Civil Litigation Firm Cooper & Elliott

Columbus, Ohio – Ohio civil litigation firm Cooper & Elliott is pleased to announce that Barton “Bart” Keyes has been admitted to the firm’s partnership. Mr. Keyes joined Cooper & Elliott in December 2011 and has since been practicing in matters of wrongful death, civil rights violations, personal injury, medical malpractice, and business litigation.

According to Cooper & Elliott co-founder, Chip Cooper, having Mr. Keyes as a partner will continue to further Cooper & Elliott’s mission and purpose.  “When Rex Elliott and I formed the firm back in 1995, we set out to protect people who have experienced life-altering harm and help them find the answers and meaning they deserve. Bart is an excellent trial lawyer and because of the kind of person he is, he will ensure that our firm carries on this important work well into the future.”

Mr. Keyes reflected, “I’ve seen people taken advantage of who don’t have knowledge of their legal rights or the resources to protect themselves. Seeing these injustices and feeling compelled to right such wrongs as a young person is what motivated me to become a lawyer. My partnership with Cooper & Elliott is such a good fit because the firm’s reason and goals for existence mesh with my personal motivations.”

In his time with the firm, Mr. Keyes has worked on many cases that align with his own core beliefs. Through compelling storytelling and unbridled tenacity, he and the firm have helped clients overcome seemingly indomitable adversaries.

From sexual assault victims of prominent community members, to defrauded business owners facing financial ruin, to families devastated by the wrongful death of a loved one—Bart has doggedly pursued justice on their behalf.

Mr. Keyes resides in Columbus with his wife and three young children. In his free time, he and his family like to stay active. His sons participate in Kung Fu and he and his wife run in the occasional Warrior Dash and enjoy supporting organizations that serve individuals on the autism spectrum.

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

 

Going the Distance and Then Some

When beginning the process of buying a car, you go in with an idea of what you want and what is available. You research makes and models and learn about what they offer—you might even visit a dealership and do test drives. “Shopping” for an attorney is more complex. You don’t really know what “features” you will need or what kind of questions you should ask.

If you are in need of a civil litigation attorney, chances are your frame of mind is teetering between stress and anger and perhaps even grief. All you really know is what you want in the end: justice.

Once in a while, we’re asked, “What makes your law firm different from any other?” It’s a fair question. Sure, we can talk about what we do that makes our firm different—but it’s how we do it that’s more important.

Most law firms talk ‘what,’ not ‘how’

When prospective clients ask what makes us different from other law firms, it’s difficult to make that comparison. But we do know there is a difference—an important difference—that comes across when we face other attorneys in negotiations and in the courtroom.

It’s the difference between “what” and “how.”

Most legal firms are happy to tell you all about “what” they do: the cases they take, the number of cases they’ve won, the expertise they will bring to your case. That’s all fine, and even necessary. But we think it’s more important to talk about “how” we do our job, and what clients can expect when working with us.

The differentiating “how” for us is two-fold: how we get the information that makes or breaks a case, and how we relate to our clients.

Tenaciously pursuing facts

When you’re going into battle, there is no such thing as having too much ammunition. In civil litigation, the same is true with information—it’s the ammunition we bring to fight for our clients’ causes. We always want more information, and we nearly always have to dig to find it. (And then dig some more.)

We take nothing for granted. We never really know where information will lead us until we start digging. We try to interview every potential witness and talk with every expert who can help us gain insights that opposing counsel may not have.

We push for every document we can get. For example, we represented a family in a wrongful death case that involved an emergency unit that responded to the wrong address. At first, we were told that critical documents no longer existed. But we weren’t satisfied with that answer and continued to push for information. When the defendants started pointing fingers of blame at each other, those documents “miraculously” appeared.

We also make site visits. If a case involves an automobile accident, we go to the site of the crash. We want to be at that intersection, see the traffic and landmarks that our client experienced. We want to understand what happened better than the opposing attorneys (who, often, haven’t been there at all).

Behind every case is a person

When we represent businesses that have been victimized by neglect or fraud, we keep in mind that behind every business is a business owner, employees, and their families. In each case, there are real people who have suffered harm they didn’t deserve.

The same is true in wrongful death cases. We represent grieving survivors who are trying to put their lives back together, often financially as well as emotionally. It’s not just a matter of applying the law to achieve justice. We’re in the business of helping people heal their lives.

It means understanding our clients on a deeper level—their lives, their relationships, the pain they’ve endured. In one case, we visited the grave site of a young boy who had been killed when an unsecured stove tipped over onto him. We saw toys and other mementos placed at the grave by the family, and that gave us the opportunity to ask about those special things and learn more about the family and the child they had lost.

Our professional DNA aligns with the Golden Rule. We ask ourselves important, fundamental questions: How would we want to be represented? If we were the victims, how far would we want our civil litigation attorney to go for our case? How much time and commitment would we want them to dedicate to our healing?

That’s not just our practice. It’s who we are.

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.

Catching Up with CSI: Medically Demonstrative Technology

We have tried many personal injury and wrongful death cases over the years, and there have been plenty of instances where we’ve asked medical experts to testify about what did or didn’t happen to the plaintiff. Jurors have enough information to process throughout a trial as it is, and expecting them to comprehend in just a few hours what might take medical professionals years to understand is asking a lot. Thanks to advancements in medically demonstrative technology, conveying information to a jury has become much more efficient.

Uses of medically demonstrative technology

In the past, expert witnesses have used anatomical models, illustrations, or photos to demonstrate medical conditions and injuries to judges and juries. Today, computer programs and applications have replaced some of those methods and offer experts more sophisticated tools for use in court.

Animation allows juries to see more accurate, real-time and to-scale representations of injuries or medical conditions. CT scans and MRIs not only offer more detailed visuals, they allow juries to see evidence of the plaintiff’s actual injuries instead of having to conceptualize them from a generic diagram or photograph. We once showed a jury an animation of how oxygenated blood moves from a mother to her baby before the baby is born. This was much easier to grasp than a static presentation with a lecture ever would have been.

Applications and programs

Innovative programs and apps represent further leaps forward in medically demonstrative technology. One of the latest lets a jury view specific parts of the body in detail. An expert or attorney can pull up the application on his or her iPad and view the human body layer by layer—they can choose to display the skeleton, or the digestive system, or the nervous system, etc. It’s an excellent way to give juries a close-up look at the human body—and to keep the jury’s attention.

An expert on the witness stand explaining a nerve injury can click an image to show exactly how an injury occurred from multiple angles. The expert can show the view that a surgeon would see while operating, and illustrate (for example) where the surgeon made an error. It’s far more vivid and effective than an old-fashioned two-dimensional presentation.

If you’re thinking you’ve seen something similar on television recently, you probably have. It’s the kind of tech that CSI and other shows have used for a long time—though it’s taken longer to make its way into real-world courtrooms.

Giving expert witnesses authority

Another advantage of medically demonstrative technology is that it gives expert witnesses more authority. Equipped with medically demonstrative tech, expert witnesses become teachers who can show how something happened and why, rather than just lecturers who recite their version of an event. To a jury, a teacher who can demonstrate what happened and why is more appealing than a dry lecturer. Plus, when an expert witness projects the authority of a teacher, it’s harder for a defense attorney to accuse the expert of not being objective.

As is the case with any witness, however, there are sometimes questions of accuracy when experts use medically demonstrative technology. Judges want to know if the software program or app is correctly showing what it claims to show. As such technology becomes more commonplace, precedent can help establish its accuracy. Nevertheless, we still make sure our experts can vouch for the technology they use in each individual case. In the case of an app that creates a custom model from actual medical records, for example, we need to be sure the model is accurate and that the expert is familiar enough with the model to say so.

We also must ensure the technology presents a model clearly and accurately because we may only have one opportunity to present it to a jury. Much of the time, jurors can’t ask to see a medically demonstrative technology display again the way they can re-examine a photo or medical record that has been entered into evidence.

Personal injury or wrongful death case?

We believe it’s important to use every available tool to fight for our clients in personal injury or wrongful death cases, and medically demonstrative technology is but one of those tools. If you’ve been harmed and need legal assistance from Ohio civil litigation attorneys who work only with the best experts and tools, give us a call.

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

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.