Cooper & Elliott Blog

Land Partition: A Civil Way to Resolve a Property Dispute

Posted on Sat, Dec 29, 2018 @ 3:58 PM

What happens when two people jointly and equally own investment property and one would like to sell? If they can’t resolve the issue amicably themselves, one option is a land partition action.

For the parties involved, this issue can be emotionally taxing and may require the participation of partition attorneys with experience handling land disputes. When the land dispute involves brothers and inherited property, as we’ll discuss below, the financial and emotional stakes are no less demanding.

A land dispute dividing two brothers

Our client Malcolm* and his brother David* inherited five investment properties from their father when he passed away. David managed the properties for several years; collected rents, allegedly handled maintenance responsibilities, paid property taxes and utility fees, and distributed proceeds.

The properties were located in Columbus, Ohio, and Malcolm, who resided in Florida, felt strained by the tenancy in common ownership. From his perspective, the properties generated little revenue and caused unnecessary stress and financial burden to him and his brother. As time went on, he learned that the properties were falling into disrepair, taxes weren’t paid, and proceeds were failing to reach him.

According to David, the apartments were losing money. Malcolm was worried about his liability as a co-owner and wanted to sell the properties—but David declined. Because the brothers equally owned the properties and couldn’t agree on how to divide them equitably, Malcolm felt trapped. He came to us for help and we filed a lawsuit to compel a land partition.

What is a land partition?

A land partition is the formal legal proceeding where the joint owner of real estate asks the court to split the property. The plaintiff in the case is the joint owner asking for a partition; the defendant is the other joint owner—in this case, David.

If the court rules in favor of the partition, each member of the parties has an opportunity to purchase the property for the appraised value. If neither respective party member elects to do so, the property is sold at auction.

Because a real-estate auction rarely (if ever) brings the owners the full value of the properties, we followed a different legal strategy. We filed the partition action, moved for summary judgment, and won sanctions against the defendant for his failure to comply with his discovery obligations. We settled with David to sell the properties independently, after which Malcolm would receive an extra payment in addition to half the profits from the sale.

Partition attorneys: essential to resolution

Civil litigation attorneys can play an essential role in resolving a land-dispute case.  The partition process provided by Ohio law allowed us to reach a settlement that was in our client’s best interest without having to settle for a court-directed partition. Malcolm no longer had the burden of being an absentee owner of blighted properties with tax liabilities that brought him sleepless nights rather than income.

The settlement and the process that led to it encouraged the brothers to work together for the first time in years and to serve their interests better than the common ownership of their mismanaged—and steadily depreciating—properties.

If you find yourself in a land dispute that calls for a land partition or other civil litigation, don’t hesitate to reach out to us.

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

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

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Judge Willett’s Opinion and the “Catch” to Qualified Immunity

Posted on Tue, Nov 20, 2018 @ 5:40 PM

We’ve talked before about the doctrine of qualified immunity: what it is, the scope and boundaries of its application, and how, at times, it can serve as an impediment to genuine justice.

It’s important for us as civil rights attorneys to keep up on cases where qualified immunity plays a major role in legal decisions. It’s our job to track case law where qualified immunity is applied (or denied). A recent opinion by Judge Willett with the Fifth Circuit Court of Appeals emphasizes the uncertainties of qualified immunity as a legal standard and the legal implications when prior case law doesn’t yet exist.

A standard in qualified immunity without precedents

When the Texas Medical Board executed an administrative subpoena on the medical office of a physician named Dr. Joseph Zadeh, the ensuing raid included two federal Drug Enforcement Agency (DEA) officers. Dr. Zadeh asserted that the Board agents had exceeded the scope of their subpoena in executing their search of his offices. He sued, seeking damages for alleged violations of his constitutional rights.

The case eventually made its way to the U.S. Court of Appeals for the Fifth Circuit. That court concluded that the Board and its agents were entitled to the protection of qualified immunity because their conduct did not violate “clearly established” law. In other words, there was no identical precedent that found in favor of the plaintiff. No precedent meant no case for Dr. Zadeh even if, as the court acknowledged, it was sympathetic to the plaintiff’s claims.

Not all the jurists involved in that decision agreed with the court’s logic.

Judge Willett’s concerns

In an opinion “concurring dubitante,” Judge Don Willett registered his “disquiet over the kudzu-like creep of the modern immunity regime.” He objected to the court’s requirement that identical case law be established before qualified immunity can be pushed aside, noting that “it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.”

Judge Willett recognized the catch-22 nature of qualified immunity as it is applied in the courts: “Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered.” Finally, Judge Willett distilled the issue down to a simple equation: “No precedent = no clearly established law = no liability” whose “imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed.”

In his taut and well-reasoned concurring opinion, Judge Willett captured the issue surrounding the potential abuse of qualified immunity.

A Supreme change needed in qualified immunity

We believe it is time for the doctrine of qualified immunity to be re-evaluated with the limits of its application more clearly defined. Victims of abuse by law enforcement and government agents deserve that kind of clarity. Realistically, achieving it is easier said than done.

The United States Supreme Court will have to be the agent of change. Qualified immunity has enjoyed special favor by the Supreme Court, but that position need not be permanent as more justices (such as Justice Clarence Thomas and Justice Sonia Sotomayor) express a growing concern about qualified immunity jurisprudence.

How long will our justice system live with the “yes harm, no foul” imbalance that too often leaves plaintiffs in the wake of court decisions that defer to the doctrine of qualified immunity regardless of the specific elements of a case? Too long, in our opinion.

It’s up to judges, such as Justice Willett, and to civil rights attorneys who see the damage done by qualified immunity to continue to speak up and advocate for a more balanced legal protection for both government agents and the people they serve.

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Achieving Equal Protection against Discrimination through the Ohio Fairness Act

Posted on Thu, Nov 8, 2018 @ 9:32 PM

The law is intended to protect the rights of all citizens equally. But what happens to equal protection when the laws are inconsistent from one jurisdiction to the next? In that case, the promise of protection waivers, and the rights of certain individuals and groups become unclear.

That’s what is going on right now in Ohio regarding LGBT rights. There is, however, a potential solution on the horizon—if Ohio’s legislators can demonstrate the commitment to fairness required to enact it.

Hit-or-miss discrimination laws

Nearly half of the states in the U.S. lack a statewide law offering blanket protection of civil rights for LGBT citizens. Ohio is one of those states.

Some of Ohio’s municipalities and counties have anti-discrimination laws that address sexual orientation and transgender identity. But in localities where there are no laws covering specific instances of LGBT discrimination, there are no legal means to fight against or seek damages for those injustices.

Federal law does not fill the gap. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees by employers on the basis of sex, race, color, national origin, or religion. This law generally only applies to employers with 15 or more employees, including federal, state, and local governments. Title VII also fails to specifically address situations that involve housing, education, and credit.

Historically, courts are divided as to whether Title VII protections extend to gay and transgender people.

Protecting LGBT rights with the Ohio Fairness Act

The Ohio legislature has addressed the issue of statewide protection for LGBT rights, but it has not completed its task. House Bill 160 would introduce the Ohio Fairness Act. This sweeping anti-discrimination legislation is fair and needed.

Unfortunately, as of now, the bill is still only pending.

The proposed House Bill 160 aims to extend legal protection against discrimination specifically to the LGBT community. It would make it illegal for any Ohio employer, employment agency, or labor organization to discriminate against an employee or applicant based on an individual’s sexual orientation, gender identity or expression.

Similar versions of House Bill 160 have been introduced over the last decade, yet none have passed. The current version of the bill had its hearing earlier this year, but the legislature, once again, failed to pass it.

In our opinion, that failure hurts all of Ohio’s citizens.

Why equal protection matters

Enacting the Ohio Fairness Act is not only the right thing to do for Ohio and its citizens. It also has real-life benefits for the people of Ohio.

As civil rights attorneys, we routinely field inquiries from people who have been discriminated against based on sexual orientation or transgender identity. While we do have resources and alternate avenues by which we can help people seek justice for discrimination, we’re not able to use the full potential of the civil litigation system for individuals who don’t live and work in one of the few Ohio localities where appropriate discrimination laws are already in effect. Passing House Bill 160 would empower us to use civil litigation to its fullest against discriminating parties anywhere in Ohio.

In addition, the non-discrimination protections afforded by House Bill 160 would be good for Ohio’s economy and business environment. By protecting the LGBT community’s right to work, the bill could only enhance the ability of Ohio businesses to attract and retain talent. That’s why House Bill 160 is backed by numerous chambers of commerce as well as Ohio Business Competes, a collective of more than 475 statewide businesses.

Since the 1960s, our society has—piece by piece—pulled down the walls of discrimination that unfairly blocked good people from basic rights and opportunities. The malicious discrimination of the past—common prejudices based on race, gender, religion, disabilities, and national origins—were remedied starting with laws that empowered enforcement agencies and set the stage for private lawsuits. The explicit statewide protections that would be afforded by the Ohio Fairness Act are no less needed, and the LGBT community no less deserving.

As the new Ohio Legislature returns to office this fall, a number of things could happen with House Bill 160

If you agree that statewide protection against discrimination should be equally available to all Ohioans, then let your voice be heard in support of House Bill 160 by reaching out to Equality Ohio or the Ohio ACLU.

And if you believe that you have been unfairly discriminated against, contact the civil rights attorneys at Cooper & Elliott.

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

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Excessive Force Victim Denied Constitutional Right to Access Courts

Posted on Tue, Oct 30, 2018 @ 9:23 PM

As civil rights attorneys, we pay close attention to important cases and rulings that highlight flaws in the legal system. We also pay attention when courts set precedent that shows promise of improvement.

We’ve addressed the potential dangers posed by the Qualified Immunity Doctrine. It’s just one facet of the legal system that government actors can hide behind when they’ve abused their power and used excessive force. Unfortunately, there are others. A recent excessive force case provides a textbook example of another failing in the system that allows government agents to hinder a victim’s pursuit of justice. This case demonstrates one of the challenges civil rights attorneys must face, as well as the kind of creative approach that is needed to penetrate seemingly invincible defenses.

A case of excessive force

In 2010, a New Jersey man, Emil Jutrowski, was pulled over and arrested by two New Jersey state troopers for driving under the influence of alcohol. (He later pled guilty to that charge.) Through a misunderstanding at the time of the arrest, an altercation occurred, and Jutrowski was handcuffed and immobilized face-down on the pavement.

The state troopers were joined by two New Jersey police officers who had observed the scuffle and stopped to offer assistance. Soon after, one of the four law enforcement officers kicked Jutrowski in the head, fracturing his eye socket. Jutrowski did not see which of the officers had kicked him and later could not conclusively identify the assailant. All four officers, in their incident reports and testimonies, admitted that Jutrowski had been kicked while apprehended—yet, none would admit to doing so, nor would they identify the officer who had.

A creative legal approach by civil rights attorneys

Jutrowski sued all four law enforcement officers for excessive force, but a federal judge dismissed the case because the victim was essentially asking the court (and as a result, a jury) to guess which individual defendant should be held liable. The Third U.S. Circuit Court of Appeals in Philadelphia agreed.

But the case is not over, thanks to Jutrowski’s perceptive and persistent counsel. Jutrowski has alleged conspiracy on the part of the four officers involved in the incident; claiming that they were acting in concert to deprive him of his constitutional right of access to the courts to pursue his claim for damages. The federal appeals court ruled that Jutrowski could pursue this avenue of redress.

We commend the attorneys in this case for going beyond the obvious and for finding a creative way to secure justice for their client. In our own pursuit of justice for our clients, we understand that approach and can relate to that commitment. We hope Jutrowski and his attorneys ultimately prevail in this case. That would be an important outcome for future excessive force victims and the civil rights attorneys who represent them.

If you or someone you know has been the victim of excessive force or another rights abuse, contact the civil rights attorneys at Cooper & Elliott.

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

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Botulism Outbreak Leads to Need for Civil Litigation

Posted on Thu, Oct 11, 2018 @ 1:39 PM

The decision to sue after personal injury sometimes involves a complex internal struggle. Even when the damage is obvious, and the negligence and responsibility are reasonably clear, victims may still face questions about whether civil litigation is the right path to take.

What should one do when negligence leads to a life-long debilitation? And how should one approach the matter when the party responsible for the damages is a church?

A friendly gathering turns nearly deadly

Mitchell and his wife, Gwen*, had recently joined a new church and were looking forward to attending a potluck it was organizing. One church member brought potato salad, which she made from home-canned potatoes. Unfortunately, she hadn’t done the canning properly, and the potatoes were contaminated with Clostridium botulinum—a bacteria that causes botulism.

Mitchell and several others ate the potato salad. Mitchell never considered that with each bite he was exposing himself to the deadly botulism toxin.

The next day, he woke up with a headache and dizziness. His vision was blurred, and he could barely walk in a straight line. He went to work, thinking the nausea and dizziness would pass. But the symptoms grew worse throughout the day, and he went home with what he thought was the flu.

A neighbor, who happened to be related to the church pastor, came by and told Gwen to take Mitchell to the hospital immediately because others who had attended the potluck had demonstrated similar severe symptoms. When Gwen and Mitchell arrived at the hospital, they saw a row of ambulances at the emergency entrance. The potluck had resulted in the largest outbreak of botulism in the last 40 years.

Personal injury from a foodborne illness

Most of us associate a foodborne illness as a passing, though painful, stomach ache. But food poisoning caused by a botulism contamination can be much more serious. The symptoms can appear within 18 to 36 hours after ingesting the contaminated food. Beyond nausea, vomiting, and abdominal cramps, victims of foodborne botulism can develop paralysis, dry mouth, have difficulty swallowing or speaking, and experience blurred or double vision.

As the infection progresses down in the body, victims can have trouble breathing as muscle paralysis caused by the toxin sets in. The spread of the infection can be stopped with antitoxins, but the damage is irreversible.

Mitchell learned that the hard way. He received the antitoxin within the prescribed 24-hour time frame, but the damage had already been done. After an extended period in the hospital, Mitchell’s vision remained so impaired that he could no longer drive. He had trouble maintaining his balance and found it difficult to do simple chores like mowing the lawn. Brief periods of exertion simply exhausted him.

A food poisoning lawsuit creates a dilemma of conscience

When Mitchell reached out to us for help, we knew this case would involve several litigants, and that it would be in the best interests of all the victims to collaborate with each other. But there was one other complication peculiar to this case: the defendant was the client’s church.

Clearly, negligence was at the root of Mitchell’s illness (as well as that of more than a dozen other church members). And while one woman prepared the potato salad that caused the food poisoning, the church was ultimately responsible for ensuring the safety of those who attended its event.

Fortunately for all the victims, the church accepted responsibility for the epidemic and was open to resolving the civil litigation lawsuits of several different parties through mediation.

Doing the right thing for everyone

The impact of civil litigation extends beyond victims’ damages. It sends a message about negligence and responsibility, a message about protecting the welfare of society. Every restaurant, grocery store or business selling perishable food must take precautions to prevent foodborne illnesses by following regulatory guidelines established to protect consumers. The recent outbreak of food poisoning at a Chipotle restaurant reaffirmed that the threat of foodborne toxins is real whenever proper food-handling guidelines are not strictly followed.

Those same guidelines apply to any organization sponsoring an event where food is served.  Pursuing litigation when negligence leads to food poisoning is one way of reinforcing those guidelines and protecting others from future outbreaks.

The long-term health of the victim depends on quick diagnosis and treatment when foodborne illness is suspected. It’s also important to get the Centers for Disease Control and Prevention (CDC) involved quickly to isolate the source of the food poisoning.

If you become the victim of food poisoning, seek medical attention immediately. And if you have questions about seeking compensation afterward, give us a call.

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

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


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Arbitration: A Valuable Tool for Business Dispute Resolution

Posted on Tue, Oct 9, 2018 @ 1:58 PM

Each victim’s case comes with a unique set of circumstances. Those circumstances dictate which method of resolution is best suited to achieve the desired results for both parties. In some personal injury and wrongful death cases for example, the dynamics are such that a settlement can achieve a better outcome for victims than a jury trial.

Arbitration is an alternative litigation option that we believe works particularly well for business dispute resolution—the perks being that arbitration can be more efficient and, in most cases, more confidential than a public trial.

What is arbitration?

Unless the parties agree otherwise, arbitrators’ decisions are definitive and binding like a jury’s verdict—and, they are rarely overturned on appeal. But what happens in an arbitration hearing differs in many ways from the procedures involved in a jury trial.

In arbitration, both parties present their cases to an arbitrator—or in some cases, a panel of arbitrators. The panel consists of experienced attorneys and it serves as both judge and jury for the case. Arbitrators render their decisions based on the evidence and arguments presented by both parties involved in the dispute.

There is no voir dire process in arbitration like there is in a trial. Nor is there a need to shape the presentation of a case to connect with the supposed values and attitudes of the jurors. Being familiar with the law, arbitrators are more likely to be swayed by evidence than emotional appeal.

There are some similarities between trials and arbitration as well. In both, motions can be filed, discovery is conducted, depositions are taken and presented, and expert witnesses can be brought to the hearing to testify.

Arbitration benefits for business dispute resolution

In a personal injury or wrongful death case, litigation can be part of a victim’s healing process. The public nature of a courtroom trial serves as an opportunity for victims to express their grief or anger, and to have their stories heard and decided on by their peers.

Privacy, on the other hand, can be preferred by both parties in business, shareholder or high-level employment disputes. Arbitration provides a legal forum for reaching a resolution without violating confidentiality. In most business cases, a contract has been broken or unfulfilled, and the arbitrators must determine whether genuine harm resulted and how the victim should be compensated. These types of cases frequently revolve around complex, intricate details. There may be proprietary or financial information involved that both sides would prefer to keep private.

Timeliness of arbitration

The other advantage of resolving a business dispute through arbitration is that it can bring the parties to resolution quickly. Courtroom judges are likely to have multiple court-related issues to handle in a given day, in addition to what’s on their court docket. It’s rare to have the judge’s availability for a full day, and this can extend the number of days needed to complete a trial. In an arbitration, the arbitrators booked for a hearing have no similar conflicts to disrupt the course of the hearing.

Because arbitrators are practicing attorneys or judges, there is less need for attorneys to devise complex presentations like those needed to demonstrate points to jurors who are less familiar with legal concepts. Arbitrators know the difference between hearsay and evidence, between showmanship and fact. This allows attorneys to get to the point and get through the case faster.

The value of knowing which method is best

Civil litigation attorneys must be adept at using all the tools available to them. They should be as skilled in arbitration and settlement negotiation as they are in the courtroom. Knowing which litigation method is most likely to meet the needs of the client and the circumstances of the case is key.

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Reclaiming One Man’s Future through Shareholder Dispute Resolution

Posted on Thu, Sep 20, 2018 @ 6:01 PM

Business thrives on promises made with good intentions and integrity. When those promises are committed to signed documents, they become contractual obligations that compel the parties to live up to their promises even though good intentions and integrity may wane.

When promises made in good faith are subsequently discarded in the wake of ego and personal conflict, it’s likely that business disputes will arise. Sometimes those disputes can be resolved with calm reasoning, but often, litigation is needed instead.

Promises lead to shareholder dispute

James* was a young and successful corporate counsel when he was recruited by a fledgling beauty-services franchise company. At first, James was hesitant to leave his corporate position (and take a salary cut in doing so), but the promise of partial ownership was enough to lure him into taking a chance.

James’s primary job was to attract new investors, and he did his job well. Within his first year, James attracted several new investors and the franchise opened a half-dozen new outlets. Sam*, the company’s founder and majority owner, was so impressed with James’s performance that he increased the ownership incentive from three to five percent. As prospects exponentially grew, the franchise took off.

During this time, Sam was in dispute with the company’s former owner, and assured James that they would complete the proper ownership paperwork once that dispute was resolved. Being young and eager to succeed in his role, James trusted Sam’s word.

Then one day, out of the blue, James was fired—and he was denied any percentage of ownership for his contributions to the company’s growth.

He hired us to represent him in this business dispute resolution.

Promises and paperwork

Sam denied James the ownership share he had earned based on the claim that he had not signed a “unit grant agreement,” a document that would have set forth a vesting schedule for James’s units. Without that signed document, Sam contended, James had no rights of ownership.

We disagreed. James had signed an operating agreement when he first joined the company, and he had met the performance criteria to be granted five-percent ownership.

We began with a demand letter, seeking only to negotiate a reasonable settlement. The owner essentially told us to go fly a kite.

Shareholder dispute requires arbitration

The case involved years of arbitration. Sam and his franchise group did everything they could to deny James’s right to ownership.

The case became more complicated when the company was purchased by a private equity firm. No portion of the sale was designated to James, who should have received five percent of the asset sale in cash or stock.

In 2010, we filed for arbitration that didn’t begin until 2015, and then took two years to complete. The case required extensive discovery on our part, including tracking down the company’s prior attorneys and getting testimony from them supporting the claim that the promise of ownership had, in fact, been extended to James.

Ultimately, the arbitrators agreed with our position and granted James a cash equivalent of five percent of the asset purchase, plus court and attorney fees. It was vindication for the work James had done for the company—and fulfillment of the promises that had been made to him.

Years could have been saved with a signature

In the end, James won his case and received the equity value he had earned. But it came at a steep personal price. For five years James struggled to find employment, as his reputation had been extensively damaged by his former partner. Having left a secure job for this opportunity, he faced the challenge of having to reevaluate his career path.

Had a unit grant agreement been completed and executed prior to James joining the company, he very well could have avoided the civil litigation that was necessary for him to be awarded his promised share.

New partnerships often come with the glow of optimism, opportunity, and trust. Unfortunately, that glow can fade with time and with the intrusion of personality conflicts, sometimes driven by greed or jealousy. The best protection against broken promises is to be sure to get all the necessary documents signed before entering into an employment or a business arrangement.

If issues arise regarding a business or shareholder dispute and you suspect that you may have been victimized, contact the Ohio civil litigation attorneys at Cooper & Elliott. We are here to help.

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

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

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In Criminal Cases, Innocence Is Rarely Enough

Posted on Thu, Sep 13, 2018 @ 9:16 PM

Our society is complex. Our legal system mirrors that complexity.

With so many demands on our lives, getting things done takes knowing how to get things done. It means being smart and diligent and having adequate experience. The challenges are similar in criminal law. It’s about being familiar with the legal landscape and all its ins and outs.

In criminal law, the stakes—for defendants—are a whole lot higher. And when the legal work isn’t at a high standard, the result can be wrongful imprisonment.

Genuine innocence v. wrongful imprisonment

The simple truth is that defendants are at a disadvantage in criminal law. While our legal system is intended to treat all citizens fairly and presume innocence unless proven guilty, it doesn’t always work that way.

No juror brings absolute objectivity to the courtroom. Jurors are people who, at their best, are both fair and flawed. Try as they might, they can be only so objective.

And someone’s personal liberty hangs in the balance.

The presumption of guilt

It’s not supposed to be this way, but it is common for jurors to walk into the courtroom with the presumption that the defendant in a criminal trial is guilty to some degree. They are inclined to believe that prosecutors are not going to bring a case to trial unless there is some evidence of the defendant’s guilt.

Experienced defense attorneys know that, too. That is why criminal cases are much more likely to be resolved with a plea bargain than with a jury’s verdict.

Good attorneys will anticipate that disadvantage. They know ways to overcome it, primarily by challenging the admissibility of evidence and the credibility of witnesses. Lacking an iron-clad alibi, the grunt work of discovery and pretrial motions to have evidence barred from trial, as well as the persuasive powers of the defendant’s legal team, count for more than mere innocence.

How civil litigation attorneys can make right a wrongful imprisonment

It’s important for criminal defense attorneys to be on top of their game. The defendant’s continued personal freedom depends on it. And what happens if the defense attorney isn’t up to the challenge of neutralizing the defendant’s disadvantage in a criminal case?

The result is incarceration. And when the defendant is found guilty but isn’t, it could become wrongful imprisonment. Imagine knowing you are innocent but are forced to relinquish your freedom, livelihood, and way of life simply due to the failings of a negligent defense attorney.

This is where we come in. As civil litigation attorneys, we don’t handle criminal cases. But we have been able to overturn wrongful criminal verdicts in cases that have been severely mishandled by defense attorneys.

In such cases (and they are relatively few), one recourse is through a legal malpractice lawsuit. We have been able to reverse injustices by presenting (and sometimes uncovering) evidence in favor of clients that, for whatever reason, didn’t find its way into the original criminal trials.

Our practice exists to find justice for those who have been harmed. In most cases, that means representing victims of personal injury or wrongful death, or helping individuals and businesses recover financially after being victimized by some form of legal malpractice.

When that malpractice extends to criminal cases, the victims pay a price that dramatically exceeds the penalties in a civil lawsuit. When we work with malpractice victims in criminal cases, we’re looking to help them restore their reputation, their self-respect and their personal freedom.

If you have been injured through legal malpractice that calls for civil litigation, don’t hesitate to 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.

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Where’s the Real Crime? The Injustice of Criminal Defense Malpractice

Posted on Thu, Sep 6, 2018 @ 8:41 PM

Imagine being accused of assault. You know that, at the time, you were miles away with several witnesses. Nothing to worry about, right? But months later, you find yourself convicted and incarcerated.

This kind of personal calamity is an example of what can happen to a person’s life when he or she becomes a victim of criminal defense malpractice.

The criminal side of legal malpractice

We’ve discussed what constitutes legal malpractice and why civil litigation attorneys should not shy away from these cases. We’ve detailed the impact on the victims of civil cases where justice has been derailed by legal malpractice.

However, the legal risks for the defendant are amplified when legal malpractice occurs in criminal law. In civil litigation, the outcome usually centers around financial compensation for damages (though civil litigation cases, when settled without a trial,  may include conditions that are not financial).

The outcome of a criminal case is likely to involve something more precious than money. What’s potentially at stake, for the defendant, is his or her liberty, and often, drastic reputational harm. When a defendant is convicted in a criminal case through neglected evidence or attorney inexperience, there are options for recourse through civil litigation.

Oversight leads to criminal defense malpractice

The case cited above was real—it involved our client.

In this case, the accused, George Hamilton* encountered the drunken complainant (a boyfriend of one of George’s employees) in a parking lot around midnight.  There was no fight and no assault.  Hours later, in a separate incident, the boyfriend was assaulted in his apartment by several individuals. George was indicted for the assault. Multiple witnesses could have provided an unimpeachable alibi for George, but they weren’t called to testify—or even interviewed—by his criminal defense attorney. Worse, at trial the defense attorney became confused and questioned George repeatedly about the parking lot encounter, and the jury convicted him for that (even though it wasn’t mentioned in the indictment).

Because of the defense attorney’s mishandling of the case, George was imprisoned for three years for a crime he could not have committed and for which he was never legally charged.  Fortunately, his conviction was eventually overturned, and he was released from prison.  He came to us for justice and we sued the criminal defense attorney and obtained a substantial jury verdict in his favor.

In this case, the defendant was wrongfully imprisoned—not as a result of criminal actions, but because of criminal defense malpractice. If you have been injured through legal malpractice that calls for civil litigation, give us a call. We’re here to help.

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

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How Patent Legal Malpractice Can Devastate a Business

Posted on Thu, Aug 30, 2018 @ 5:00 PM

As a business owner, one of the most valuable things you can get from an attorney is a sound opinion, one based on facts and knowledge of the law. That opinion doesn’t guarantee your success, but it should assure you that there are no legal impediments that will keep you from moving your business forward.

A legal opinion should reflect careful crafting and thorough research. Opinions bandied around the water cooler are free, but an attorney’s opinion comes at a price and if he or she makes a mistake out of ignorance or a lack of due diligence, it’s too often more than just an “oops.” A faulty legal opinion can be devastating to a business and to the all the lives connected to it, from the owner to the investors to all the employees and their families.

 We’ve talked about the issue of legal malpractice, and how its victims are just as deserving of legal representation and fair compensation as the victims of personal injury or wrongful death. The question that must be asked before pursuing a legal malpractice case is, “Did the attorney, in this case, meet the minimum ‘standard of care?’” If not, there may be grounds for a lawsuit.

Ohio civil litigation attorneys address a patent oversight

A recent case provides—unfortunately—a clear example of legal malpractice in business law. The client, Xpansion, Inc.*, was looking to bring an exciting new product to the market. Xpansion had hired a patent law firm to get its product patented and, thereby, gain the exclusive right to sell it. The company was charged a hefty fee by the firm to conduct the patent search and file the necessary paperwork.

Such a fee would normally be justified considering the time and effort involved in obtaining a patent—except in this case, the law firm failed do its job. It turned out that there was already “prior art” for this idea, meaning it was not free and clear to be patented. Xpansion’s attorneys should have caught this problem early on but didn’t. And, based on the faulty guidance it received, Xpansion revved up its manufacturing and distribution plans, investing millions of dollars in a product that ultimately couldn’t be patented.

It is the responsibility of a patent attorney to find instances of prior art in a preliminary patent search. With more than 300,000 patents granted in 2015 alone, it’s not unusual for a company or individual to come up with an idea that someone else has already patented, especially if that product doesn’t exist in the marketplace. If an idea can’t be patented, it’s best to know that before your company makes an enormous investment in its development and marketing. As you can see, there’s a lot riding on that attorney’s ability to correctly identify prior art.

Legal malpractice leads to civil litigation

Xpansion’s patent attorneys fell short of the “standard of care” in this case, and it nearly destroyed the company. It had to shut down for months and re-tool for the future. Hundreds of employees were laid off while the company regrouped.

Fortunately, instances of legal malpractice are relatively rare. But the effects can be enormous, financially and personally, to businesses and people alike. If you have been injured through legal or medical malpractice that calls for civil litigation, don’t hesitate to 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.


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