Cooper & Elliott Blog

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 Following the accident, her family noticed she was acting withdrawn, and (not surprisingly) deathly afraid of fire extinguishers and ambulances.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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Tips for Finding the Right Civil Litigation Attorney

Posted on Tue, Apr 17, 2018 @ 6:05 PM

Most people who find themselves in need of a civil litigation attorney have one thing in common: they are overwhelmed. In addition to facing immediate financial burdens as a result of malpractice, personal injury, or losing a loved one, they are engulfed in feelings of fear and uncertainty, or even intense grief.

Amid all that anguish, victims are expected to find an attorney who will guide them through the intricacies of the legal process to achieve their objectives. But where do they begin? What criteria make one lawyer not only better than another, but better suited for a particular client in a particular situation?

Whether you’re currently in a situation that requires civil litigation or are just the kind of person who likes to be prepared, we have some suggestions on how to select the right attorney.

Look for civil litigation attorneys who genuinely listen

The first step in the civil litigation process is usually the same: you meet with an attorney, discuss the details of the case, and the attorney does an evaluation on whether litigation would be successful.

In that initial meeting, you, as the prospective client, should do most of the talking. The attorney’s role is to ask questions and listen.

Most attorneys will offer an initial consultation at no charge (if they insist on charging for that initial meeting, you should probably move on). That consultation may require only 15 minutes or so, but to fully understand your case and needs, it could take an hour or more of careful listening. Essentially, the meeting should last as long as it needs to.

After that first session, ask yourself these questions: The attorney might have been “hearing” me, but was he or she really listening? Was the attorney genuinely engaged in what I was saying? Was the attorney taking notes and probing for more details? Was the attorney’s focus on me and my needs, or on the clock?

The answers to those questions can say a lot. It’s been our experience that attorneys who listen and invest their attention in prospective clients are far more likely to stay attentive throughout the life of your case.

Look for civil litigation attorneys who will go the extra mile

Cases are as different and individual as people. Some are tougher than others. Some are more complicated and demanding. As a result, sometimes lawyers can’t accurately project how many hours and resources will be needed.

That’s why you want an attorney who is willing to go wherever the case leads and won’t simply follow the path of least resistance (for a quick settlement). Ask the prospective attorney about cases that turned out to be more complex than initially anticipated. Ask for examples where the attorney demanded more from obstinate defendants, or had to find a “creative” approach to win over a jury or convince the defendant to agree to more equitable compensation.

Look for civil litigation attorneys who know when to say ‘no’

There is something to be learned by asking attorneys which cases they don’t take on. Will they take on types of cases they’re not experienced in? (Our Ohio civil litigation attorneys are experienced in in wrongful death, personal injury, business, and legal and medical malpractice cases.) Will they decline a case because it doesn’t look easy or lucrative enough? Or do they turn nothing down?

That last one could actually be a red flag for prospective clients. It often isn’t in the best interest of clients to pursue cases that, for one reason or another, have little chance of succeeding, or don’t really involve civil litigation issues. For example, we recently met with a woman whose adult son died from head injuries sustained when he fell off the back of a pickup truck. The death was ruled accidental, but the mother felt strongly that the police investigation hadn’t been properly conducted. We understood her pain and anger, but it wasn’t a case that could be resolved by civil litigation. In this instance, we referred her to more appropriate resources that could potentially help her pursue her suspicions.

That’s what responsible attorneys should do. Whether through providing referrals or offering a sympathetic ear, we aim to help people who approach us, even if the answer isn’t litigation.

Look for civil litigation attorneys who understand the need for healing

Lastly, there are attorneys who look at a case almost exclusively in terms of the potential size of a monetary settlement. But for many victims, money isn’t enough to compensate for the damages they’ve incurred. Often the victims or survivors want to find answers and meaning in a tragedy that should never have happened. To that end, ask prospective attorneys whether they’ve ever successfully negotiated settlements that, beyond financial compensation, involved policy changes. Were they willing to negotiate for changes that would help correct the conditions that caused their client’s injury?

Civil litigation is about beginning the healing process. Attorneys who care about advancing that process tend to listen better and go further for their clients. If your initial consultation suggests to you that an attorney can’t meet those basic obligations, you have every reason to continue your search.

If you find yourself in a situation that involves malpractice, personal injury, or a wrongful death, 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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An Uninsured Auto Dealer Is Held Accountable for Personal Injury

Posted on Thu, Mar 15, 2018 @ 3:37 PM

The purpose of test driving a car is to discover the truth about it before you make a purchase. In the case of this fateful test drive, multiple truths were revealed about the unscrupulous business practices of one Columbus auto dealer.

One day, a small, independent auto dealer sent a prospective buyer on a test drive. While out on that test drive, the driver T-boned another car, seriously injuring a young woman named Crysta*, a backseat passenger. Crysta sustained multiple injuries that required an extended hospital stay, months of physical rehabilitation, and resulted in significant medical bills. Her plans of soon starting school were dashed—as were any expectations for enjoying her early adult years in a normal fashion. Crysta came to us for help.

Because the driver was on a test drive, the liability issues became more complicated.  Normally, this kind of crash would involve negotiating with the driver and auto dealer’s insurance company. As the victim’s personal injury attorneys, we would soon learn that this case wouldn’t be that simple to resolve.

The dealer had been quietly operating without insurance.

Unethical practices lead to personal injury

There were many obstacles to getting just compensation for Crysta, who was dealing with a wave of medical bills she shouldn’t have to pay.

Not only was the dealership operating without insurance, but it had loaned out the automobile for the test drive without verifying if the prospective customer had a valid driver’s license (he didn’t). The immoral behavior didn’t stop there. After the accident, an employee of the dealership suspiciously whisked the driver away from the scene. Later, the dealership produced papers falsely documenting that the car had been sold prior to the accident, in an attempt to avoid liability.

After hearing testimony in a damages hearing, the Court entered a significant judgment against the dealer and the driver. However, the dealership was operating out of a trailer along with several other small auto dealerships. There were no real assets to pursue.

While we were able to reach a settlement with the driver, which was a start, it didn’t begin to cover the medical costs and economic losses Crysta had suffered.

A rare legal remedy for a personal injury victim

It felt wrong to end things there, with our client having suffered so much and the dealership having paid nothing for its actions. So we worked harder.

We dug further into Ohio law to find a meaningful path to justice for our client. Ultimately, we uncovered a possible remedy: an existing statute that was rarely invoked (and, to our knowledge, had never been applied successfully in court). The statute requires used motor vehicle dealers in Ohio operating in the same location to agree to be jointly and severally liable for any damages arising from the actions of any one of the dealerships.

The various dealerships in this case were legally bound to file certificates of compliance with the state, acknowledging and accepting their intertwined legal relationship. On behalf of our client, we sued all the dealerships operating at that location, as well as the individual members of the LLCs who owned them.

It turned out that none of the other dealerships had insurance either. The individual owners, however, had assets and businesses they wanted to protect. We therefore were able to negotiate a settlement (in lieu of going to trial) from multiple individual contributors.

Personal injury attorneys know where there’s a law, there’s a way

There are two points to this story.

Point #1: The law is full of remedies. Sometimes they are obvious. Other times, hard work and perseverance are required to discover an acceptable solution.

Point #2: Creativity should be part of a civil litigation attorney’s arsenal, both in the courtroom and outside of it. Sometimes that means finding a statute, however obscure, that provides the best possible remedy for a case.

The settlement has helped Crysta get out from under the mountain of debt and move on with her life. She has been able to resume her education and is on her way to recovering the quality of life that had been taken away from her.

If you or someone you know requires the legal assistance of a creative and determined team of personal injury attorneys, don’t hesitate to reach out to us. We’re here to help.

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

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

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The Boundaries of Civil Litigation: What Attorneys Can and Can’t Do

Posted on Thu, Mar 8, 2018 @ 2:58 PM

All civil litigation starts with a victim, one who has suffered due to another’s misjudgment, malice, or negligence. It’s the job of civil litigation attorneys to facilitate the victim’s healing, physically and emotionally, through compensation, which may or may not involve a monetary settlement.

Due to certain limitations of the legal system, there are some things civil litigation attorneys can’t do to achieve compensation for the clients they represent. When people come to us as victims of a wrongful death or personal injury, they don’t necessarily know or care about such restrictions. They simply want justice. And of course, we do all we can to help them achieve the justice they deserve.

Here, then, is a quick overview of what Ohio civil litigation attorneys can do for their clients, as well as some limits to our advocacy.

Civil litigation versus criminal prosecution

Many times, clients come to us with the belief that what was done to them was a criminal act. That may in fact have been the case, but civil litigation attorneys cannot bring criminal charges against anyone. Only a public prosecutor can do that.

If clients believe that a crime has been committed, the proper path for justice is to report the incident to the police and then let the criminal justice system follow its process of investigating, indicting, and prosecuting the offenders.

Civil litigation attorneys have no direct role in that process, but there is something we can do (and have done): We can support our clients through the criminal process. If clients need support while they’re attending a criminal trial, or simply would like us to serve as a liaison between them and police investigators or the prosecutor’s office, we’re there for them.

Lawyers are not physicians

Though we regularly interact with medical professionals, we’re not doctors. We can’t make medical decisions for our clients. Any decisions regarding medical care must be between our clients and their medical providers.

But again, we can support our clients and answer questions regarding who should be guiding those medical decisions. And we can provide a valuable legal perspective, by sitting in on meetings or phone calls with physicians while also providing emotional and communications support. This gives our clients added confidence to make the right decisions—not just for the case at hand, but for the sake of their long-term well-being.

Courts can’t compel an apology

It’s not unusual for clients to want an apology from the defendants who have victimized them. Such requests are understandable as an important step for achieving closure. However, the civil justice system—and civil litigation attorneys, by extension—cannot compel a defendant to issue a formal apology to the victim. In court, even though we can prove to a jury that the defendant committed wrongdoing or negligence and win the case for the client, defendants can still maintain their innocence and simply disagree with the jury’s decision.

One way around that limitation is to agree on a settlement, which avoids a jury trial. With a settlement, we have more flexibility and can negotiate to include conditions such as a formal apology or admission of wrongdoing, as well as other potential conditions that are in the best interest of the client but not possible through a trial.

Helping victims of personal injury, wrongful death, and negligence

Victims of wrongful death or personal injury come to us distraught and uncertain. They face a long and difficult recovery process. And they don’t necessarily know what we can do for them or even, sometimes, what they really want.

It’s our job to listen carefully to their needs, to understand their situation, and to guide them through their legal options. Once they truly understand what can and can’t be done, then it’s time for us to do what we do best: represent them zealously, and with compassion.

If you find yourself in a situation that involves personal injury or a wrongful death, 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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Ohio Wrongful Death Attorneys Protect a Widow’s Claim and Dignity

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

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

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

Going the distance

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

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

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

A fatal step

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

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

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

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

No remorse? No liability?

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

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

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

Ohio wrongful death attorneys help with worker’s compensation

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

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

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

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

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

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

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

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

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A Tragic Past Nurtures a Young Man’s Bright Future

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

By Rex H. Elliott, Partner

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

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

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

A former client becomes my shadow

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

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

A devastating and preventable loss

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

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

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

Civil litigation goes full circle

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

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

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

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

He felt that. And I felt it too.

The impact of this wrongful death case

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

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

Why we’re civil litigation attorneys

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

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

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

Connect with us—we’re here to help.

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

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

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How Malingering Claims Affect Genuine Personal Injury Victims

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

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

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

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

What is truth and what is malingering?

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

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

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

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

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

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

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

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

Putting the defense on the defensive

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

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

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

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

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

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

Connect with us—we’re here to help.

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

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Credibility Abused: The Case Against Junk Science

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

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

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

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

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

Junk science in personal injury cases

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

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

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

The ‘agony’ of litigation

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

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

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

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

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

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

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

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

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

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

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

Knowing junk science when you see it

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

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

Connect with us—we’re here to help.

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

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Injured Youth: Representing Children in the Courtroom

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

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

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

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

A grace period granted

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

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

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

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

Calculating a victim’s potential in child personal injury cases

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

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

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

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

The jurors’ perspective

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

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

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

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

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

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The Far-Reaching Effects of Injuries for Child Victims

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

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

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

Long-term pain and damage

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

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

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

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

The parents’ plight

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

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

Children deserve no less than our best

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

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

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

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

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

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