Cooper & Elliott Blog

Achieving Equal Protection against Discrimination through the Ohio Fairness Act

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

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

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

Hit-or-miss discrimination laws

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

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

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

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

Protecting LGBT rights with the Ohio Fairness Act

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

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

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

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

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

Why equal protection matters

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

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

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

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

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

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

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

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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Excessive Force Victim Denied Constitutional Right to Access Courts

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

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

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

A case of excessive force

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

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

A creative legal approach by civil rights attorneys

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

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

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

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

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

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Botulism Outbreak Leads to Need for Civil Litigation

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

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

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

A friendly gathering turns nearly deadly

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

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

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

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

Personal injury from a foodborne illness

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

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

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

A food poisoning lawsuit creates a dilemma of conscience

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

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

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

Doing the right thing for everyone

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

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

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

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

Connect with 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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Arbitration: A Valuable Tool for Business Dispute Resolution

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

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

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

What is arbitration?

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

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

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

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

Arbitration benefits for business dispute resolution

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

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

Timeliness of arbitration

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

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

The value of knowing which method is best

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

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

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Reclaiming One Man’s Future through Shareholder Dispute Resolution

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

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

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

Promises lead to shareholder dispute

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

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

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

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

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

Promises and paperwork

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

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

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

Shareholder dispute requires arbitration

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

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

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

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

Years could have been saved with a signature

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

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

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

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

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

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

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In Criminal Cases, Innocence Is Rarely Enough

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

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

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

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

Genuine innocence v. wrongful imprisonment

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

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

And someone’s personal liberty hangs in the balance.

The presumption of guilt

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

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

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

How civil litigation attorneys can make right a wrongful imprisonment

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

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

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

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

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

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

If you have been injured through legal malpractice that calls for civil litigation, don’t hesitate to give us a call. We’re here to help.

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

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

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

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

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

The criminal side of legal malpractice

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

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

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

Oversight leads to criminal defense malpractice

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

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

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

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

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

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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