Cooper & Elliott Blog

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.

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

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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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Why We Pursue Legal Malpractice Cases

Posted on Fri, Jul 27, 2018 @ 2:50 PM

When you see a physician for treatment, you’re going into that relationship with a lot of trust. You trust that the physician has the expertise you need or will refer you to a specialist who does. Above all, you must trust that your physician knows and meets the standard of care established by the medical profession. If a physician fails to meet the standard of care, and his or her patient is harmed as a result, it could constitute medical malpractice.

The same dynamic exists between attorneys and their clients who’ve been harmed by legal malpractice. Luckily, our legal system provides a recourse for both types of harm.

It’s called legal malpractice

When you hire an attorney, you come into the relationship with two things: a legal issue that needs resolved and a great deal of trust in the attorney you are hiring.

How “good” is the attorney you’ve hired? You may have referrals from friends or business associates, people you believe you can trust. When taking referrals, consider how many attorneys the referrer has worked with to form a reasonable benchmark for comparison. You might ask how many attorneys they have seen in action?

In fact, there is no quantifiable way of measuring how “good” an attorney is or how one attorney stands competitively against others, the way you could say that one runner is faster than others in a race.

Much like you can’t measure prosecuting attorneys by convictions versus acquittals, you can’t rate civil litigation attorneys by their “batting average” in winning cases. All cases are different and nearly every case is subject to unpredictable twists and turns that make the idea of certainty very subjective.

So how is a client to know, when a case turns sour, whether the problem was legal malpractice? The idea of “standard of care” applies here, just as a similar standard applies to physicians.

What is legal malpractice?

Whether in civil or criminal litigation, legal malpractice occurs when a lawyer’s performance falls below the standard of care. “Standard of care” defines an attorney’s legal and ethical boundaries. It’s a “rule book” of sorts that defines what attorneys can and can’t do to advocate for their clients and what they are expected to do to protect the trust their clients have invested in them—and in the justice system.

The legal standard of care is a standard for competency, not for quality. An attorney can be competent according to the standard of care—doing everything he or she is supposed to do for a client—and still not be as knowledgeable, thorough, and creative as an opposing attorney.

That’s not legal malpractice. There’s no law against not being as good as the other guy and losing a case does not mean that legal malpractice was the cause (in fact, it rarely is).

But there may well be a case of legal malpractice when an attorney:

  • Misses deadlines in filing critical documents through ignorance, procrastination, or laziness
  • Damages a client’s case due to fraud or conflict of interest
  • Carelessly loses essential documents
  • Withdraws from a client’s case improperly (such as doing so without informing the client or the court)
  • Fails to know or to apply the law

These are just some of the triggers. Frankly, many law firms won’t touch this kind of case, but we believe we have a duty to help clients who have been injured by legal malpractice.

Serving justice by serving those wronged through legal malpractice

We’ve talked before about how to choose a civil litigation attorney. Doing that kind of basic research, either online or through the court system, can tell you a lot about an attorney. Face-to-face interviews—where you can learn what kinds of cases they have handled, how many, and what has made them successful—will go a long way to inform you about how they think, how they work, and how comfortable you will feel in extending your trust to them.

And though the process of vetting an attorney is well worth the effort when you consider what’s at stake, there is still no guarantee against legal malpractice.

When a client is injured by an attorney’s negligence, we feel strongly about taking on that case for the sake of the injured party. In a civil litigation case, justice may take the form of helping people get the compensation they need to rebuild their lives. In a criminal case, it may look more like making amends for months or years of a person’s life that’s been lost behind prison walls due to malicious prosecution or a neglectful defense.

If attorneys fail to perform to the minimum standard of care, don’t their clients still deserve justice? We think so. And we believe that others in our profession should be willing to step up and protect the integrity of the legal system we all depend on as well.

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.

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

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Fighting Legal Malpractice for Immigration Justice

Posted on Thu, Jul 19, 2018 @ 2:16 PM

Every case and every client comes with a unique, and often compelling, story. This one, we’re happy to report, comes with a happy ending. But, when we first began this journey with our client, there was nothing easy or certain about it.

When you talk about the “best and the brightest” emigrating to the United States, Sandeep Chaundhry* and his family met that standard in every way. A hard-working IT professional who came to America legally, Sandeep had arranged, through the attorney recommended to him by his company, to have his work visa extended as required by law.

Legal malpractice creates an immigration nightmare

A unique aspect of immigration law is that on some occasions, an immigration attorney can simultaneously represent the immigrant and the entity sponsoring his or her visa. In this case, Sandeep’s company was sponsoring his visa. So, as the applicant for the extension, his company hired an attorney who in turn came to represent Sandeep as well.

We want to point out that it’s relatively rare for an attorney to have such “dual representation.” The question is: what happens when the company and the immigrant have competing interests? Where should the attorney’s loyalties lie?

Sandeep did everything he was supposed to do to keep his status current. His attorney, unfortunately, did not. Because of the attorney’s missed deadlines, Sandeep and his wife were being threatened with deportation back to India. And to make matters worse, the couple could have been deported without their two young sons, who were both American citizens.

For Sandeep and his family, the American dream had spiraled into a legal and bureaucratic nightmare—one fueled by the lies and negligence of others.

Seeking protection and justice through Ohio civil litigation attorneys

This is when Sandeep came to us for help. He was forced into unemployment because of the uncertainty of his immigration status. Unable to work, and at the mercy of his attorney, he and his family depleted their savings account and were forced to charge basic living expenses to credit cards. He was exhausted from stress and gaunt from limiting himself to one meal a day to ensure his children would be fed.

We were certain that Sandeep had been the victim of legal malpractice. We also discovered evidence that his employer had been warned about his immigration status but had failed to alert him. Instead he consistently received lies and false assurances from his attorney and his company.

We initiated lawsuits against them both.

Two victories that changed everything

Both sides denied any complicity in the Chaundhry family’s woes and blamed the other party. But the evidence said otherwise. Ultimately, we were able to win significant settlements from both defendants.

The immigration attorney whose negligence set the whole thing in motion initially denied any wrongdoing. Eventually, that attorney agreed to provide a Lozada affidavit: an admission that the client had been diligent in his efforts to fully comply with immigration law and that he—the immigration attorney—had been responsible for the Chaundhry family’s problems with immigration authorities.

From Sandeep’s former employer, we sought a significant financial settlement, one that would not only compensate Sandeep for two years of unemployment but also for the significant loss of income that he would have to face by being forced to return to India.

Immigration law provides that, because he had failed to file properly for a legal extension and had overstayed his visa (on advice of his immigration attorney), Sandeep would be barred from returning to the United States for ten years. What he could earn in India was a fraction of his earning potential in the United States, and we built that difference—as well as the expenses associated with deportation—into the settlement we ultimately reached with the employer.

The settlement provided much-needed financial relief for the Chaundhry family, but it couldn’t prevent their deportation. We had been advised of that early on and openly shared that reality with Sandeep.

To India and back

The Chaundhry family (including, thankfully, the boys) were forced to return to India but maintained the hope of one day coming back to America. Sandeep loved this country and what it stands for. He appreciated the professional opportunities it offered him, and he wanted his sons to be raised and educated here.

A couple months after resettling in India, Sandeep wanted to begin the process of attempting to return to the United States. He went to the U.S. consulate and presented all the documentation from his case, including the Lozada affidavit.

Then he was stunned.

The consulate officials looked at his application and his evidence and stamped approval for his return to the U.S., waiving the ten-year waiting period. He found an employer who would sponsor him for a green card, giving him the right to permanent residence and, eventually, the opportunity for naturalization.

Sandeep is working again in the United States. His family is now living in Des Moines, Iowa and we keep in regular contact.

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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Overcoming Uninsured/Underinsured Insurance Complexities and Legal Malpractice

Posted on Thu, Jul 5, 2018 @ 12:57 PM

For Robyn*, it was one spirit-crushing event after another: first, a traffic accident left her with tens of thousands of dollars in medical debt and physical scars she would carry with her for the rest of her life; then, soon after, the passing of her husband.

Because the motorist who struck her car was uninsured, Robyn needed strong representation from a civil litigation attorney. What she got from her first attorney was something considerably less.

Injured by an uninsured motorist

When a policeman observed a car running a stop sign, he pulled the car over and issued a citation. The driver explained that the traffic violation was out of his control, and that his brakes were failing. The driver was then instructed by the officer to drive directly home. If only he had.

Hours later, the driver’s faulty brakes allowed his car to careen, uncontrolled, into the car Robyn was driving. She suffered multiple neck injuries and would be scarred for life as a result. She would also start to pile up significant medical bills, with no way to pay them. To add insult to injury, she discovered that the driver was uninsured.

And just when it seemed things couldn’t get worse for Robyn—her husband passed away.

A victim of civil litigation neglect

Overwhelmed, Robyn hired a local attorney to help her manage the aftereffects of the accident. The attorney was a former county commissioner who, unknown to Robyn at the time, was under investigation for embezzlement. He would later be acquitted, but his involvement in the investigation and the subsequent trial were contributing factors to his neglect of Robyn’s case. We also discovered that he was battling alcoholism.

Whenever she inquired about her case, the attorney told her that everything was proceeding normally. After more than two years, Robyn grew tired of the delays (while her medical bills were mounting). She approached us to look at her case.

When we looked at the court docket, we found that almost nothing that should have been done on Robyn’s behalf had in fact been acted upon. Her attorney had repeatedly failed to file proper documentation, and deadlines had been missed without her having been notified—a lapse on the part of her attorney that was critically detrimental to her position. Robyn then fired her attorney and hired us to salvage her case.

Starting over to remedy legal malpractice

Her case had been so mishandled that we had no choice but to dismiss it entirely and start over. It took nearly a month to recover her file from her previous attorney, and we unearthed the fact that Robyn had been eligible for substantial uninsured/underinsured motorist coverage from her own insurance provider.

Though the deadline had passed for filing a claim with her provider, we pushed for filing anyway, alerting the insurer that her previous attorney had failed to provide her with proper notice of the filing deadlines. Persistence paid off (as it frequently does, especially when you are pushing for the right thing to be done). We also sued the other attorney for malpractice and won a settlement that, combined with the insurance settlement Robyn received, allowed her to pay her medical bills.

Looking out for personal injury victims

Our practice exists, in large part, due to the prevalence of neglect, which too often results in someone’s injury. It can come in many forms, from an automobile’s faulty braking system to somebody ignoring a police officer’s instructions—both of which contributed to Robyn’s injuries.

But neglect can also include harming somebody by failing to do what’s best—and what’s right. Robyn’s suffering started with the neglect of an uninsured motorist.  Her suffering was prolonged by the neglect of an attorney who failed to provide her with the most basic representation.  And, finally, her suffering continued because of an insurance company that promised coverage and then tried to deny it by hiding behind technicalities like filing deadlines.

The attorney and insurance provider should have had Robyn’s best interests as their first priority, yet it took legal pressure to compel them to do the right thing for a victim who deserved better.

We take legal malpractice very seriously. Attorneys should be held accountable for their actions and decisions, especially when they veer from the standards that are the foundation of our profession. By pursuing those who fail to uphold those standards, we protect not only our profession, but also our community as a whole.

If you suffer a personal injury that calls for civil litigation, don’t hesitate to reach out to the experienced Ohio trial lawyers at Cooper & Elliott for legal assistance. 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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Restoring a Young Girl’s Future After a Disfiguring Dog Attack

Posted on Mon, Jul 2, 2018 @ 4:12 PM

One family’s holiday get-together quickly turned into an emergency situation when a visitor’s dog attacked a young girl. It’s something that could happen anytime a dog is around an unfamiliar child—that much is easy enough to understand. What’s not so simple in a child injury or personal injury case, is determining how to assess the scope of the damage, and how to hold the responsible party accountable for it.

The dog bite and lasting scars

The Morrison* family—Mitchell, Gwen, and their 3-year-old daughter, Natalie—was looking forward to moving from South Carolina to northeast Ohio to live closer to family. They visited Ohio to stay with Gwen’s mother over the Christmas holiday season, but what should have been a time of celebration quickly turned tragic.

Also visiting Natalie’s grandmother were her aunt, her aunt’s boyfriend, Joe, and his dog. Like many little girls, Natalie loved dogs and asked Joe if she could pet his. Joe assured Natalie that his dog was friendly and it was safe to pet him. It turned out that he was sorely mistaken. Just as Natalie began to reach out, the dog lunged at her and bit her repeatedly.

Natalie was rushed to the hospital with serious wounds on her face, chest, shoulder, and side. More than 50 stitches were required to close the lacerations on her body.

Identifying responsibility for a personal injury

In some ways Natalie was fortunate. Despite the severity of the attack, doctors were confident that her facial lacerations would heal and leave little trace of the injury. Unfortunately, the prognosis was not as optimistic for the scars on her arm and torso, where there would be prominent disfigurement for the rest of her life.

It’s possible that the dog had a history of aggression, or he may simply have been startled, but one thing was clear: Even though the attack occurred on the grandmother’s property, it was Joe, the dog’s owner, who should be held responsible. Under Ohio law, if a dog injures someone, the dog’s owner is liable for that injury. So, after returning to South Carolina, the Morrisons hired a local attorney to pursue a personal injury action.

It just so happened that Joe held a homeowner’s insurance policy that clearly stated it would cover damage done by dogs, which qualify as property. His insurance company, not surprisingly, disagreed. It consistently thwarted any attempts made by the Morrison’s first attorney to recover on the policy. It simply refused to comply. Faced with daunting medical bills and feeling quite hopeless, the Morrisons reached out to us for help.

Ohio civil litigation attorneys succeed outside the courtroom

In this circumstance, we preferred to negotiate directly with Joe’s insurance company instead of resorting to a lawsuit and trial. Because Natalie was only 3, we did not want her to have to relive the details of the attack through depositions and courtroom testimony.

Being experienced in child injury cases, we took into consideration the special challenges that accompany this type of case: What is just compensation? How do you value the long-term effects of personal injury for someone so young? How could Natalie express—or, at her age, even be able to imagine—how such prominent body scars would impact her confidence and self-image as she grew older?

Restoring a disfigured girl’s future

Ultimately, we were able to persuade the insurance company that effects from the scars on Natalie’s body would have long-term effects that were more than just physical. We presented interviews from women who had suffered similar disfiguring injuries when they were young, to provide perspective on the emotional challenges Natalie might face as a teenager and adult. As a result, the insurance company agreed to a substantial settlement that covered Natalie’s medical expenses.

The compensation we achieved went beyond those medical expenses, as it should have. It also had to take into consideration the trauma of the event, a shock shared by the entire family, with unknown long-term effects. And because Natalie was so young, the settlement could be expected to grow substantially and provide a strong financial foundation as she approached adulthood.

In the end, we were happy to achieve results that will give Natalie and her family the best chance of healing from their experience as they navigate the effects of the attack going forward. Beyond that, we were able to send a message to the insurance company that it could and would be forced to honor the details of its policies.

If you require assistance with a child’s personal injury or wrongful death case, don’t hesitate to reach out to the Ohio civil litigation attorneys at Cooper & Elliott. 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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One School’s Negligence Perpetuates Teacher Misconduct

Posted on Thu, Jun 14, 2018 @ 3:27 PM

As Ohio civil litigation attorneys representing injured children, we have learned that “injury” has many different forms. Sometimes wounds are obvious—in other cases, the pain is emotional and less obvious, but no less damaging to young victims.

This is especially true where parental or teacher misconduct is involved. Sometimes, the mental and emotional damage caused by the wrongdoing can be further exacerbated by shame or perceived reputational damage when the identities of victims are made public.

In the case described below, it was our responsibility to bring teacher misconduct and its harm to light—and do so without causing further harm to the victims.

A well-loved teacher crosses the line

Our firm represented the families of several young girls who had been victimized to varying degrees by their elementary school teacher, Matt Dixon*. Mr. Dixon was beloved by his students and well-respected by the school system and fellow faculty members. Fortunately (in this case), the abuse did not extend to direct sexual relations with the students. Suffice it to say that Mr. Dixon’s relationship with the girls still fell dangerously outside the realm of normal classroom interaction and his actions exceeded what would be considered acceptable behavior between a teacher and school-aged girls.

What’s more disturbing, is that these were not the first incidents of teacher misconduct Mr. Dixon had been involved in.

Avoiding the warning signs of teacher misconduct

Even in his previous position at a different school, there were accusations made against Mr. Dixon of engaging in inappropriate behavior with female students. Like many predators, he identified particularly vulnerable girls and groomed them to become increasingly receptive to his “special” attention: holding them, flattering them, bringing them to his home, and engaging in after school activities with them without parental knowledge. Once groomed, he continued personal, out-of-school relationships with the girls throughout grade school, though they were no longer his students.

For nearly a decade, Mr. Dixon thrived in the classroom despite parents’ reports of misconduct. He had an outstanding record in the classroom and was very popular among his peers and students. Because of his reputation, the school system failed to recognize the signs of his inappropriate behavior. The school’s attitude was that such an accomplished teacher would never do anything to jeopardize the well-being of his students.

Though the school was aware of these reports, it continually dismissed them and no official documentation was ever added to Mr. Dixon’s file.

A civil litigation resolution without further child injury

When we were approached by the families, we set to work immediately to resolve the issue in a way that best suited their needs, including protecting, as much as possible, the anonymity of the girls involved.

That meant first taking steps that would avoid a lengthy—and very public—lawsuit.

Once we gathered the facts of the case (including recovering video tapes of some of Mr. Dixon’s activities with the girls), we determined that the best way to protect the confidentiality of the students and their families was to negotiate directly with the school system. Instead of a day in court, the parents desired confidentially. They wanted to challenge any claims of ignorance on the part of the school system and compel it to accept responsibility for its inaction and failure to protect the children entrusted to its teachers.

We met multiple times with the superintendent, presented a list of demands, and talked through the issues of the case.

Ultimately, we were able to avoid filing a public lawsuit by negotiating a pre-suit resolution that brought about settlements between the school board and the families, and dismissal of the teacher. (He was subsequently convicted of criminal charges and is serving time in prison.) The negotiations also resulted in policy changes to the school system’s guidelines in order to more efficiently identify teacher predators and protect vulnerable students.

Protecting children’s futures

Civil litigation cases involving children require great sensitivity in terms of the long-term impact on the families and victims involved. Cases such as this one need additional care to preserve, as much as possible, the privacy of the victims.

The daughters of the families we represented were able to maintain their anonymity, remain in the same school, and resume their normal lives as children and students without being labeled as victims of sexual abuse.

The parents, meanwhile, were able to express their justifiable outrage with the school authorities, effecting changes in school policy that were necessary and reasonable.

In the end, justice was served in multiple ways. First, by protecting our clients’ children and halting their teacher’s behavior. Also, by helping to make schools safer for future students (this latter point is also therapeutic for the families whose lives had been upended by such a significant breach of trust). This multi-faceted result is the kind we strive to achieve for all our clients and their families.

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

*For the protection of the children involved, names of any participants in this case have been omitted and certain details have been withheld.

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

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Ohio Civil Litigation Attorneys Act Quickly to Fight Disability Discrimination

Posted on Thu, May 17, 2018 @ 3:42 PM

Civil litigation isn’t only about seeking compensation for damages. It can also serve the purpose of preventing damage by using the power of more immediate protections such as temporary restraining orders and preliminary injunctions. These legal tools can help keep a precarious situation from getting worse. The case that follows illustrates just how important those protections can be.

A therapy dog’s purpose

Madeleine, a sophomore at The Ohio State University, required the assistance of Cory, an 8-year-old service dog, to help her deal with panic attacks severe enough to restrict her breathing and, at times, render her immobile. Madeleine trained Cory specifically to help her cope with panic attacks.

Because Madeleine needed Cory to be with her at all times, she filed the proper paperwork with the university to allow her to have a service dog accompany her on campus. She also sought—and received—approval for Cory to stay in the Chi Omega sorority house where she planned to live during the school year.

Complaints and an arbitrary decision

But another resident of the sorority house objected, complaining that the dog’s presence in the house triggered her allergies.

Unable to resolve the issue amongst themselves, the students sought a decision from the university. Unfortunately, the university arbitrarily ruled in favor of the other sorority sister because she signed her lease first.

This carelessly made decision did not reflect the guidelines established under the Americans with Disabilities Act (ADA). Madeleine’s affliction was a disability, and Cory’s presence was a medically accepted therapeutic aid—precisely the kind of aid the ADA was enacted to protect.

Living without Cory was not an option for Madeleine, neither was moving out of the sorority house. As a chapter vice president, she was required to reside in the sorority house to fulfill her duties. In addition, moving to campus housing would diminish the value of her college experience.

The university offered Madeleine no opportunity to appeal its decision and she was given a deadline by which to decide: leave with Cory or stay without him.

And decide she did—to pursue another course of action.

A clear case of disability discrimination

When Madeleine came to us, it was clear she had an urgent need to have her rights recognized and honored.

According to the guidance and regulations set forth by the ADA, an animal allergy does not provide a valid reason for barring a service animal like Cory from the premises. In addition, there was insufficient medical documentation to support the other student’s claims of an allergic reaction to the dog.

We approached the university about these discrepancies, but the ADA coordinator would not revisit the decision to compel Madeleine to remove the dog from the house. So we filed a lawsuit to protect Madeleine’s rights.

Time for a temporary restraining order

The biggest factor working against Madeleine’s case was time. A discrimination lawsuit would require months to resolve. By then, the school year would be completed and winning the case at that point wouldn’t do Madeleine much good.

We sought a temporary restraining order (TRO) to prohibit the university from removing Madeleine or the service dog from the house and disrupting her academic year. A TRO is essentially a “time out” that keeps everything in place for a short period of time. In this instance, it prevented the university from removing Madeline and Cory from the house. But a TRO is just what the name implies: temporary.

So, we also filed for a preliminary injunction to maintain the status quo of Madeleine’s situation until a final court decision could be rendered. It involved preparing the case—conducting discovery, reviewing appropriate case law, and interviewing potential witnesses. It was the only way to protect Madeleine’s rights and ensure that she received the college experience she deserved.

Justice through a preliminary injunction

The hearing for the preliminary injunction took a day and a half. Madeleine was there for the duration, with Cory in her lap. In the end, she was able to leave with good news: the preliminary injunction was granted, ensuring that she and Cory could remain in the sorority house until the trial was completed—and more importantly—until the rest of the school year was completed.

That injunction in itself was a “win” for Madeleine. There would be no trial, as the situation that had generated the need for a lawsuit would change with the close of the school year.

But there was a bigger issue that both Madeleine and our civil litigation attorneys recognized: the ADA exists to protect the rights of disabled citizens, but that protection is only as good as the commitment of those responsible for enforcing it. When that commitment gives way to expedience, the result can easily lead to disability discrimination. To its credit, the university came to recognize that.

As part of the settlement, the university agreed to allow Madeleine to participate in policy discussions regarding how the university would accommodate service animals for students in the future. Bringing the perspectives of students with disabilities into those discussions demonstrates a willingness on the part of the university to protect the spirit of the ADA and do what’s best for its students.

Everyone’s rights deserve to be observed and respected, and we’re willing to do what it takes to fight for that equality on behalf of our clients.

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

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

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A Daycare’s Disregard for Safety Forever Changes a Little Girl’s Life

Posted on Wed, Apr 25, 2018 @ 4:37 PM

It’s every parent’s nightmare: an accident that leaves a small child physically and emotionally maimed.

When we send our children to a daycare center, we trust that the teachers and administrators in charge have taken the necessary precautions to ensure the safety and well-being of the precious little people we place in their care.

Unfortunately, it doesn’t always work out that way. When an accident happens, the parents’ first concern is for the child to receive medical attention. But when the injury is serious and permanent—and when negligence is a contributing factor—the parents’ next concern is to protect the child’s future to the extent that the law provides. With so much at stake, it’s best to enlist the professional strength and support of personal injury attorneys who will fight out of a shared commitment to improve the child’s chances of experiencing a normal and healthy future.

That was the case for Jessica Edwards* and her 3-year-old daughter, Addy*.

Personal injury from a device intended for safety

The morning of the accident, Jessica dropped Addy off at her daycare center just as she did every day. But while she was at work, Jessica got the call that every parent dreads: there had been an accident; Addy was injured; please come immediately.

Jessica’s distress grew steadily and rapidly as she drove to the school. But what she discovered when she got there was worse than she could have imagined.

The children had been lining up to go outside when a large fire extinguisher was bumped off its wall hook and landed on Addy’s hand. The impact crushed one of Addy’s fingers and severed another one from her hand. The severed digit was saved on ice for possible reattachment, and Addy was rushed to the nearest emergency room.

Child injury: a lifetime of repercussions

Addy suffered great physical pain, and the damage to her hand turned out to be permanent. The physicians tried to reattach her finger, but ultimately the procedure unsuccessful.

The pain and trauma affected Addy emotionally and developmentally, transforming her from a happy, well-adjusted youngster into an anxious little girl. Following the accident, her family noticed she was acting withdrawn, and (not surprisingly) deathly afraid of fire extinguishers and ambulances.

The real source of her suffering: negligence

Jessica and Addy became our clients. And Addy’s future became, in many respects, our responsibility as child injury attorneys.

As we researched the case and filed public records requests with various governmental agencies, it became apparent that the accident and its damage should never have happened in the first place. The fire extinguisher that injured Addy had been carelessly hung on a simple J-hook. As such, it was susceptible to being dislodged without much effort or force. A heavy fire extinguisher in a daycare center should be attached, at minimum, with a strap. Or, for even more security, it should be encased in a cabinet mounted on the wall. Either of these precautions would have prevented Addy’s injury.

We spoke with fire system experts who confirmed that these additional safety precautions were relatively inexpensive. We also confirmed that the same daycare franchise had branches in other states that kept fire extinguishers encased in secure cabinets. So, why did this facility fail to practice the same safety measures? As it turned out, there was no good reason.

Personal injury attorneys seek justice and more

Determining fair compensation for damages is always a challenge for personal injury cases involving young children. How do you adequately determine the damage (and its future implications) for a life that is only beginning to unfold?

In Addy’s situation, physical rehabilitation was only the beginning of the costs that would need to be covered. Having experienced such an intense trauma at a young age, it was vital that she receive whatever therapy would be necessary throughout her development. We were able to reach a settlement with the daycare system, one that would accommodate Addy’s immediate and future needs.

Addy’s family wanted the satisfaction of knowing steps would be taken to prevent a tragedy such as Addy’s from ever being repeated. As part of the resolution, the daycare committed to a review of its fire extinguishers nationwide.  Such conditions are available only in negotiated agreements, as opposed to jury verdicts, which can only award monetary compensation. The impact of these types of commitments is widespread and ensures that something like this doesn’t happen to anyone else.

If you find yourself or a family member in a personal injury situation that calls for civil litigation, don’t hesitate to reach out to the experienced Ohio personal injury lawyers at Cooper & Elliott for legal assistance. We’re here to help.

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

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

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