Cooper & Elliott Blog

Evaluating a Case’s Viability: The Three-Legged Stool Approach

Posted on Tue, Apr 26, 2016 @ 2:39 PM

In a perfect world, our law firm would be able to take on every case presented to us. But then again, in a perfect world people wouldn’t need civil litigation attorneys in the first place. Since the world isn’t perfect, and each case is governed by its own particular facts and circumstances, difficult choices have to be made before we decide to move a lawsuit forward on behalf of a client.

Evaluating cases: The three-legged stool

There are a couple of main reasons why we can’t accept every case that comes to us:

  • We wouldn’t be able to serve our clients to the best of our ability. The volume of work and strain on limited resources would be so high that we couldn’t give our clients the service they deserve and that we strive for.
  • Litigation is a difficult process for clients. Going through months or even years of litigation—along with the stress and distraction it would bring to one’s personal life, work life, and family—often means that it’s not in the client’s best interest to pursue a case unless there’s a strong likelihood of success.

So, how do we make those hard choices and decide which cases to accept? For plaintiffs’ attorneys handling a case on a contingency fee, we’ve determined there are three essential elements to evaluate in order to make a case worthwhile for our clients and ourselves. Think of these elements as the support of a “three-legged stool.” Without all three legs, strength of liability, damages, and source of recovery providing balance, the case and stool will collapse.

Leg No. 1: Strength of liability

First, we look at strength of liability. For this leg, we’re assessing whether the facts of the case indicate a likelihood that we will be able to hold the defendant liable under applicable laws.

A straightforward example would be a case where someone is sitting at a stop sign in traffic and another driver rear-ends them.  Given those facts, liability is clear because 1) the person at the stop sign was complying with the traffic laws, and 2) the person behind them violated those laws.

Sometimes, however, the liability aspect isn’t so easy to establish. In a medical malpractice case, for instance, or one involving negligent hiring, where a company hires a person who inflicts some kind of injury on a coworker or customer, the question of liability becomes murkier. In these situations, there won’t always be clear-cut standards or rules for determining who is liable.

In looking at those more complicated cases, we need to assess if there are other ways to establish standards. Are there existing and documented rules or regulations in that particular industry which can be applied to the case? Can experts define rules that would apply—rules that we can prove were violated?

Another aspect we consider is the status of the defendant. Even if we have facts and evidence indicating the defendant’s conduct violated established laws or rules, that particular person or company might enjoy certain protections that could prevent the case from succeeding. For example, we have to consider whether the potential defendant is a government employee or government agency. Because certain immunity rules and statutes effectively shield government agencies from liability, what could be a viable liability case against a non-governmental actor could turn out to be a poor liability case when a government agency is the defendant.

Leg No. 2: Damages

Second, we consider damages—the amount of money defendants may have to pay to restore plaintiffs to the condition they were in before being wronged. Damages are key because they bear directly on whether pursuing a case will make sense financially, both for the potential client and for the law firm.

The fact is, even the most basic negligence suit—say, a car accident case—can take a year or more to go to trial. As a result, the costs involved inevitably start to add up.

Oftentimes, even car accident cases aren’t so straightforward. If, for example, there were questions about whether something other than the crash caused the harm the plaintiff suffered, then expert witnesses may be required—and experts represent yet another expense.

Medical malpractice cases present their own unique challenges.  In medical malpractice cases, the plaintiff typically has to present expert testimony from medical professionals in the defendant’s field to prove negligence.  Experts in a medical field tend to be some of the highest-paid expert witnesses, meaning that if the case is successful, a higher percentage of the damages award or settlement will have to go toward reimbursing case expenses. This can make malpractice cases particularly challenging to successfully bring to court.

Another factor we look at when assessing damages is whether or not losses are economic. Economic damages—medical bills, lost wages, the cost of rehabilitation and future care—are not limited. You can recover in economic damages whatever you can prove your client has lost or will be paying in the future. On the other hand, non-economic damages—damages for mental distress or pain and suffering—are often capped. 

Ultimately, when we take on a client, we have reason to believe the damages are high enough to reimburse the cost of preparing for trial and still leave a meaningful recovery for the plaintiff. The client needs to make a similar assessment: From their perspective, are they willing to spend a year or more in litigation, sitting for depositions and having their life pried into, based on the potential damages they could recover?

Leg No. 3: Source of recovery

Finally, we consider whether a case has a viable source to pay damages.  Here, we ask:  If we were to represent a client who was clearly wronged and whose trial could potentially result in a large judgment from the jury, can we recover on that judgment?

A lot of factors can affect whether a recovery can be obtained from a defendant. For instance, is the defendant insured? This is important because in most negligence cases, whether they involve medical malpractice or a standard type of personal injury, the recovery source will usually be an insurance policy—many individuals simply don’t have enough assets to pay a large judgment.

Even here, however, there are elements to consider. The first and most obvious one is how much insurance the would-be defendant has. Ohio, for example, requires that drivers carry auto insurance, but the injury liability minimums are only $25,000 (for an injury to one person) and $50,000 (aggregate for one accident).

If a person rear-ended somebody at a stop sign and the resultant injuries were relatively minor, those minimums might be sufficient. But what if the impact was at 55 mph and there were major injuries incurred, with expensive surgeries and months of physical therapy? Now that person with the state minimum limited insurance policy—assuming they didn’t have much in the way of personal assets—would not be able to compensate the plaintiff for their injury.

On the other hand, if the same crash was caused by a person driving a commercial vehicle, there would likely be higher insurance limits or other sources from which to recover, making the case much more viable.

Intention also plays a role here. Generally speaking, if injuries are caused by an intentional act or purposeful assault, they’re not covered by insurance. So if we’re looking at an intentional tort case, a very important consideration would be whether the defendant has sufficient assets available to pay any judgment made against them. And we’d have to look at exactly what those assets are—in some instances they may be shielded from judgments.

Other means of recovery

Evaluating cases based on liability, damages, and source of recovery is our way of looking out for our potential clients’ best interests. In our experience, most people would rather not go through a potentially multi-year process only to find that the judgment they finally received isn’t worth the paper it’s printed on. 

Even if we don’t take their case to court, we’re often still able to help people in other ways. We’ve helped many people negotiate resolutions and settlements, for instance. And even if the damages might sometimes be less than what those people hoped for, they’re often relieved just to have someone help them through the process.

And in some cases, pursuing a lawsuit may not even be the most suitable remedy. We’ve found that for many people who contact us with a problem, getting answers about what happened is a much higher priority than compensation. Frequently, we can refer people to investigative services or governmental agencies that would be much better suited for helping them remedy their particular situation.

As Ohio civil litigation attorneys, our priority is always to find a way to help people. If the three legs of their case warrant pursuit of a lawsuit, then we’ll do it. Otherwise, we’d be doing a disservice both to them and to our other clients. And that’s just not how we do business.

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

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Why Proximity Matters When Considering Juror Biases

Posted on Tue, Apr 12, 2016 @ 12:47 AM

As Ohio civil litigation attorneys, understanding and connecting with juries is critical to securing the justice our clients deserve. In a previous post, we discussed how juror biases such as loss aversion and a preference for the status quo impact how we communicate with jurors. In this post, we delve into another type of bias: proximity.

Juror biases versus personal opinions

In this instance, when we refer to “juror biases,” we’re not talking about the broad opinions and beliefs held by each member of a jury as a result of their own personal experiences. We address those during voir dire, a very important part of the jury-selection process.

Instead, we’re referring to the more general types of biases that are really just a consequence of how we as humans are wired to think. They tend to be subtler, based as much in human psychology as through our experiences.

The power of proximity

One tendency we’ve noticed is that all of us, jurors included, tend to feel more motivated to act when we’re faced with a personal impact than when we are faced with a more general or nebulous impact. Call it the power of proximity.

This is not a novel observation. Peter Singer, in his 1997 essay on ethics, “The Drowning Child and the Expanding Circle,” discusses a thought experiment that demonstrates the power of proximity in action. In the experiment, he proposes a scenario to his students: If they were walking on their way to school and noticed a child who seemed to be drowning in a nearby pond, would they help the child, even though this would ruin their clothes and make them late to class? Unanimously, the students said they would help the child.

But when Singer then proposed a different scenario—the child was far away in a different country, in imminent danger of dying, and could be saved if the students gave a small amount of money (essentially equivalent to the price of the clothes they would have ruined from jumping in the pond in the first scenario)—there was a different response. Students began raising practical difficulties rather than instantly agreeing that they were ethically bound to help, as in the drowning-child scenario.

The reason why people reacted differently in the second scenario is that it wasn’t personalized. The child halfway around the world doesn’t have a personal impact on us; we assume there are others who can likely take care of the situation. A child right in front of us, on the other hand, is real—we can see a face and thus feel personally responsible.

In court, we try to take the proximity bias to its logical conclusion. We recognize that by putting a human face on a situation—a client’s face—it brings a case from the abstract to the particular, to something that has been personalized for jurors. And that’s when they’re more likely to want to help our client.

Staying objective with golden rule arguments

Because of this powerful tendency to identify with a person right in front of us, some courts, including those in Ohio, prohibit “golden rule arguments”—arguments that ask the jury to put themselves in our clients’ shoes. As Ohio civil litigation attorneys, we can’t, for example, face a jury and openly say, “Ladies and gentlemen of the jury, if you had been through what our client experienced, what verdict would you hope for in this situation?” The idea behind this restriction is that jurors are supposed to consider the facts of a case in an objective manner, not approach them from an emotional point of view.

Nonetheless, this juror bias still exists—jurors are people, after all, and they can still empathize with people even without a golden rule argument. As a result, if a jury is asked to compensate a particular person or family for the loss of a loved one (or to compensate someone who’s suffered disabling harm), it’s important to personalize that request as much as possible. That means ensuring jurors not only know the facts of our client’s case, but that they also know our client—as a fellow human being, as somebody they can relate to.

Many lawyers will try to essentially do the opposite and instead talk about the broad societal impact of a case—which is important, to be sure—but their arguments should never be at the expense of focusing on the very real person who is right in front of the jury.

Great communicators

Obtaining justice for our clients requires more than just a knowledge of the law—it takes the ability to communicate, to relate to people in the most fundamental way possible.

As talented communicators, our attorneys are able to connect with juries, diminishing distance and restoring proximity so that jury members understand their decisions will have a direct impact on their communities and the lives of our clients.

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

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Helping Juries Measure and Calculate Pain

Posted on Tue, Mar 22, 2016 @ 8:18 PM

Getting a jury to think clearly about and fairly award damages for pain can be a complex process.   In a recent article we discussed the difficulties associated with the task of placing a dollar amount on a human life, which poses similar challenges.  As Ohio personal injury attorneys, it’s our duty to help people who have been harmed recover from the harm that medicine alone can’t fix: the distress and reduced quality of life caused by pain.  Over the years we’ve developed tactics which help better position the jury to understand and assess this harm.

Pain requires more than medical treatment

There are many types of injuries with different degrees of severity.  Minor injuries result in minimal pain which is easily alleviated and requires relatively little treatment.  More severe injuries on the other hand, may require more than just medical treatment or therapy for the healing process to occur.  Consequences resulting from major injuries may have a tremendous effect on the victim’s life.  Lost wages, emotional distress, permanent disability, or even a change in the way a person is able to function in daily life are possible byproducts of serious injuries.

Many of those consequences can’t be reversed or repaired—which is why our legal system is designed to remedy the injustices and hardships by awarding monetary damages.

To calculate damages, juries need information to help them measure the pain in some fashion.  Most doctors will agree that there is no purely objective process for determining the severity of physical pain.  When it comes to providing guidance for a jury, showing the concrete effects of pain on a client’s daily life is really the best tool we have to describe and quantify pain.

Using a sliding scale

We’ve established a series of questions that help us guide the juror’s thought process for identifying the intensity of pain.  These three questions allow for an evaluation of different aspects of pain on a sliding scale:

  • How intense is the pain? Is the pain a dull ache, or a burning, excruciating pain? A stiff neck might be aggravating, while a broken bone can be agonizing.
  • How long does the pain last? Is this pain of shorter duration, perhaps relieved by the time of the trial? Or is this a pain that may last years or even a lifetime?
  • How does this pain interfere with a normal approach to life? Is this an annoyance, a minor inconvenience or an incapacitating pain like that caused by migraines?

Once the jury knows the answers to these questions, we then talk about how to award money in proportion to the harm the defendant has caused.  What amount is reasonable in terms of compensation for each answer?  Thousands of dollars may be appropriate for pain that is on the lower end of the scale.  Tens of thousands of dollars may be more fitting for pain at the higher end of the scale.  And if the victim is suffering pain that will last a lifetime, an even larger amount is certainly in order.

Determining the dollar amount

Picking an amount to begin with is often the hardest part of the process.  Whether to suggest a specific amount to the jury depends on each individual case.  But in all cases, we remind the jury that the amount they choose to award should be proportionate to the pain suffered, valuable time lost, and emotional damage inflicted.  We frame our language in a way that allows the jury to understand that their decision will serve as the reflection of justice for a person who’s been wronged in a way that has impacted their life tremendously.

Our questions and tactics help jurors understand the gravity of their responsibility and enable them to rationally decide what amount is reasonable to award the plaintiff.  The objectivity required of jurors can be daunting—we take that into account and are proud to say we do our best to provide the jury with information about our clients that allows for the most optimal and just outcome.

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

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Communication Techniques for Managing Juror Biases

Posted on Tue, Mar 15, 2016 @ 3:49 PM

 

Jury trials are a cornerstone of our modern legal system. In fact, it could be argued that they’re a necessary component of a democratic society. Yet for all their advantages, jury trials also present certain challenges for us as Ohio civil litigation attorneys.

Personal vs. human juror biases

The reason is simple: juries are composed of people, and people are complex. We all have our own individual experiences and beliefs that color the way we view the world. In addition to those personal biases, there are more general human biases that are a part of our psychology and how we are wired.

Personal biases and prejudices are part of the reason why there’s a process called voir dire (meaning “to speak the truth”) where attorneys ask potential jurors questions in order to assess whether they are able to render a fair and impartial verdict. But what about the subtler juror biases? The ones grounded in basic human psychology and not just prejudice or partiality? Those too require certain techniques in trial if we are to ensure our clients secure the justice they deserve from a jury of their peers.

Primacy, recency, and the art of storytelling

When presenting a case to a jury, a certain amount of storytelling sensibility is helpful (as we’ve discussed before) in order to maximize the information’s impact. The primacy and recency effects are biases that cause people to better recall the first and last parts of information presented in a series.

With any kind of storytelling, capturing the audience’s attention right away is key. For the purposes of presenting a case, primacy can have an incredible impact—it means telling the story in a manner that immediately gets the jury focused on the issues involved, as well as the outcome that’s being advocated.

On the other hand, the very last statement a jury hears can also make a big impact, especially if it’s a longer trial. In terms of recency, we like to finish our presentation of the evidence with compelling testimony. A persuasive closing argument powerfully summarizes the testimony for the jury members and provides them with something to discuss as soon as deliberation begins.

Juror bias of loss aversion

One of the more fascinating, and less obvious, forms of juror bias that civil litigation attorneys need to keep in mind is rooted in the concept of loss aversion. Social scientists who study human behavior report statistics showing people have a strong tendency toward preferring the avoidance of losses over the acquisition of gains.

This inclination toward loss aversion requires subtle adjustments when dealing with a jury. If, for instance, the jury’s job is characterized as awarding compensation to improve the plaintiff’s life, jurors will likely interpret that as providing a gain and will feel less receptive toward it.

If, on the other hand, an award is characterized as a means of making up for a loss suffered by the plaintiff, jurors may be more inclined to agree with granting it. They are able to view the award as effectively restoring the plaintiff back to the state they were in before they were wronged. In the jurors’ eyes, the plaintiff’s life isn’t improving by adding a gain, rather, the void that was created by the defendant’s misconduct is being filled. The difference is quite subtle, but it can have a powerful impact on a jury.

Appealing to the status quo

A related strategy for addressing jury biases involves how you present the “status quo,” or typical situation, of the plaintiff. There’s a tendency for people to like things to stay relatively the same, as opposed to changing them. In court, we take that preference into account.

 For example, in a personal injury case, if a client’s status quo is being projected as that of an injured person, the jury’s receptiveness will potentially be different than if the status quo was presented as that of a healthy person. We aim to project a healthy status quo for our clients so that, in the minds of jurors, an award to the plaintiff will restore the healthy condition they enjoyed before it was degraded by the defendant’s misconduct.

The importance of being personable

Many human biases come into play during jury trials, and knowing how to strategically address them is a mark of a great attorney. However, there is more to practicing good, effective law than text book knowledge—being personable and accessible are also extremely important attributes of successful civil litigation attorneys. We strive to communicate using clear, simple language that juries can easily respond to in order to get the best outcome for our clients.

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

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Methods for Optimizing Jury Selection and Voir Dire

Posted on Tue, Feb 23, 2016 @ 5:06 PM

Voir dire is a legal term you may have heard before. It’s a critical element of the jury selection process, where prospective jurors are questioned about their background and evaluated on their likelihood to optimally serve on a jury. During voir dire, civil litigation attorneys on both sides try to identify biases that could affect how a juror views the facts of a case. Everyone has biases, based on their personal experience, points of view, and opinions. In voir dire, we attempt to identify the biases that might indicate that a particular person is not right to serve on a jury for a particular case.

Listening to personal stories

Voir dire is the only opportunity attorneys have to question jurors directly. This is the time to open lines of communication with prospective jurors about their opinions, experiences, and attitudes to try to better understand how they are positioned on certain topics.

Opening up about our own personal stories is one of the best methods we’ve found to get the conversation started. For example, one of our attorneys is the father of an autistic son. By explaining how his role as a parent means advocating for his son, we show how his rightful desire to get the best care and education for his own child makes him the wrong juror for a case involving a dispute over special-needs childcare. We take special care to reinforce the idea that this has no negative reflection on him as an individual—it simply means that his personal experiences may prevent him from thinking about the case objectively.

This and similar anecdotal stories serve two purposes: First, they prove that having biases doesn’t have to be negative, which helps reduce the chances of offending potential jurors. Second, these stories make us as attorneys appear more vulnerable and human—ultimately promoting trust and open communication.

The goal is to spark an honest conversation about what prospective jurors believe so that any biases affecting the juror are brought to light.

We often approach potential jurors with the intent of listening more and talking less. Many attorneys tend to forget that the goal of voir dire is not to start arguing the facts of the case. By asking open-ended questions we allow prospective jurors to place themselves on a spectrum of various opinions that a simple “yes” or “no” answer wouldn’t reveal.  This helps jurors see that reasonable people have a range of thoughts on a particular issue.

We’ll sometimes start by questioning the whole group with a show of hands, then proceed to open-ended questions for individual jurors. “Tell me more about that” is something we say often. It encourages people to tell their stories, and it helps us learn about their backgrounds, life experiences, and biases.

Information gathering process

Obviously, we don’t want a person on the jury who is likely to vote against a verdict that would favor our client. However, attorneys are allowed only a limited number of peremptory challenges, in which we can dismiss a potential juror. As a result, many juries have members who we feel are less than ideal. The process of voir dire helps us gather information about those jurors that is often valuable later on. We try to learn as much as we can about how the jurors think, and leverage that information for structuring arguments during the trial so that the jurors who do present a challenge perceive details in a favorable way.

It helps to have a second attorney on hand to take notes during the voir dire process. This way, one attorney can talk with prospective jurors while the other takes notes on what they say. We look to identify prospective leaders, people whose personalities will inspire others to follow them—and which jurors will likely support the plaintiff.

Establishing respect

As important as the voir dire process is, it is always respectful—we never want a prospective juror to feel as if he or she is being cross-examined in a hostile way. We remind each one that we’re not trying to determine if they’re a good or a bad person. We’re only trying to decide whether they’re the right juror for the case. It is very important that we show respect for their feelings and opinions. It makes the information gathering part of voir dire more complex, but in the end we never want to antagonize someone who might end up on the jury.

We know that a successful outcome often begins within the very first few minutes in the courtroom, by getting the right jury empaneled.

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

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Positioning the Jury as the Protagonist

Posted on Tue, Feb 16, 2016 @ 3:50 PM

For personal injury and wrongful death attorneys, clear, effective communication is a vital element of any successful case. A key theme we’ve discussed before is how good communication with our clients enables us to seek justice and healing on their behalf. In this post, we’re going to examine effective communication from another perspective: that of the juror.

The story of a case

In a sense, communicating to a jury is much like storytelling. What we’ve found works best is to make jury members feel as if they’re protagonists in our client’s story. We want them to understand that while the story may have started with our client and the defendant, it’s now in their hands to determine the story’s ending. We remind them of the power they hold to change someone’s future.

How to tell the story

Many other attorneys may employ the tactic of showcasing their client’s struggles in the aftermath of the defendant’s bad behavior. This technique helps the jury understand the client’s injuries so the jury will want to act in his or her favor—which is a fine place to start, but we take a slightly different approach: we focus on the defendant’s conduct.

Especially in this world of conservative juries and the supposed need for tort reform, it can be extremely important to focus on a defendant’s wrongful conduct or detail the rules they’ve broken.  Juries need to understand why a defendant’s conduct violated the explicit or implied rules and standards that everyone expects all members of the community to follow to keep the community safe. So, during all parts of the trial—opening statements, presenting evidence, and closing arguments—we focus much of our storytelling effort on the defendant’s conduct and how it violated community standards.

This approach also makes sense from a purely legal perspective. In civil litigation, the plaintiff can’t ask jurors to put themselves in their shoes (what’s known as a “golden rule argument”), because judges want juries to objectively consider the facts of a case, rather than respond in an emotional manner. Concentrating on the defendant’s wrongdoing and how it violated community standards helps ensure objective decision-making.

Clarifying the rules

It’s important to establish and emphasize the safety rules in question, and then show how the defendant has breached those rules. “Safety rules” often take the form of laws or regulations designed to protect people in a community. Traffic laws, for instance, are well documented safety rules—an accident caused by a driver who runs a red light, is a straightforward example of a broken safety rule which results in negative consequences.

In other circumstances, when there isn’t a specific law or regulation to point to, the recognized standards in the defendant’s industry or community serve as the safety rules.  A plaintiff often establishes those rules through expert witness testimony.  In medical malpractice cases, for example, an expert witness—a competent general practice doctor or surgeon—can help the jury understand what standard of care should be expected in a given medical situation. And sometimes, even the defendant’s own employees or representatives admit that a certain safety rule applies.

By using testimony from expert witnesses and from the defendant’s own representatives to establish safety rules, we take a difficult concept that most jurors don’t have direct experience with and break it down into something they can understand.

Jurors: Voices of the community

We strive to present our case in a way that lets jurors see themselves as active protagonists in the story that results in justice being served. We reinforce that their role is more than just listening to two opposing parties presenting evidence—it is to act as the voice of their community, and in essence decide what their community’s standards of care and safety rules are and will be.

How we communicate this idea varies with the facts and nature of each case. For instance, we had a business case where one of the themes we emphasized was simply that there should be more morality in business. There had been so many stories in the news about businesses acting dishonorably that we decided to emphasize a community standard of not giving a “free pass” for wrongful conduct just because it occurred in the business conduct. We reminded jurors that through their verdict, they could act as the voice of their community and deliver a powerful message. Their message could establish that morality is important in their community—even in business—and that the community would not tolerate the type of conduct that the defendant tried to get away with..

That kind of power and responsibility can be an excellent motivator for jury members to do the right thing on behalf of our clients and their community.

Connecting through honesty

Finally, how we communicate to juries is just as important as what we communicate. As a trial lawyer, to be the most effective we must open up and connect with the jury on a personal level.

While legal argument is important in each case, we try not to hide ourselves or our clients behind complex legal language.  We let our personalities come through so we can connect with jurors as people. Connecting with someone this way leads to better communication, which in turn makes it more likely that jurors will understand your case.

Authenticity is something we pride ourselves on—a core principle of our firm, in fact—and it sets us apart from other trial lawyers. Other attorneys may also use some of the techniques discussed here, but doing so without establishing a rapport and personal connection with jurors tends to make those techniques ring hollow. Authenticity is key.

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

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Placing a Dollar Amount on Human Life

Posted on Tue, Feb 9, 2016 @ 5:09 PM

If a person dies because of someone else’s negligence— a wrongful death—it’s the victim’s family that is left to suffer the grief and loss. So what is the remedy? Determining the value of a human life is no easy task, but it’s one that we, as wrongful death attorneys, often face. One thing is certain—people who have suffered the death of a loved one are looking for affirmation.

In the criminal justice system, when a wrong has been committed, a jury can punish the defendant with jail time. Civil cases are different. The only power the jury has to make things right is to allow money for damages. They can’t issue an advisory opinion or verdict that tells the defendant how to act in the future.

Calculating lost income

One relatively concrete category of damages in a wrongful death case is the loss of financial support and inheritance that the surviving spouse or family members would have received from the decedent’s wages or other income.  It’s possible to project, based expert economic and vocational testimony, how long the person would have been expected to work had they not died and the amount of wages that would have come from that work.  If the decedent would have had other income over their lifetime, testimony can also project what the surviving family members would have stood to inherit in the future.  A jury can allow these lost income amounts as part of the damages for the wrongful death.

Putting a dollar value on emotional loss

Although lost income can be important, we find that the emotional pain to spouses and family members from the untimely loss of their loved one is often the most significant harm suffered. Coming up with a dollar value to compensate for this emotional pain is a delicate process. Still, we have some methods to get the jury thinking of what a fair number might be.

We discuss topics that help remind them of what human life is all about. We talk about relationships—the simple pleasures we take from each other’s company. We talk about gatherings and holidays. We might even talk about the caring and guidance that adults give to younger people.

We remind juries of the emotional impact that somebody who’s lost a spouse, a child or parent must endure. It’s really important for jurors to understand and consider what makes life and relationships important, along with the emptiness felt in a person’s permanent absence. We remind juries of the countless interactions in a relationship that we often take for granted, until we ourselves have lost someone important to us.

Unfortunately, there is no formula or chart that can help a jury quantify this point, so determining a dollar value for life can be quite daunting. Our greatest charge is then to remind juries that while doing so is difficult, it’s also crucial. It is the responsibility of our justice system to ensure that when a wrong has been committed, especially one so egregious as to have cost a person their life, the community must try to compensate for that wrong.

Using examples for framework

To help jurors apply a value to something seemingly invaluable, we might point out items in the news that have sold for incredible sums of money. For example, the Honus Wagner baseball card that sold for 2.8 million dollars a few years ago or the abstract painting by artist Barnett Newman that sold for 43 million dollars. We remind jurors that these items are just ink on cardboard or flecks of paint on a canvas, and yet, they’re valued at millions of dollars. Why? Because they are rare—often masterpieces—and there may only be one in existence. It doesn’t take long for jurors to see the analogy and understand that people are rare and unique masterpieces as well.

Another way to show the value of human life is through the money spent on search parties for missing people. There was a recent news story about two military aircraft that crashed off the coast of Hawaii. Before calling off the search, the community spent millions of dollars and an incredible number of man hours looking for the missing soldiers lost at sea. This easily demonstrates the value we as a society place on life. Even when the hope of finding survivors is slim, we don’t hesitate to spend time and money to implement a rescue.

Conclusion

By giving jurors concrete examples, we can successfully help them understand how to place dollar amounts on things inherently difficult to value. In the end, the money juries allow is not a prize, but a reflection of justice. It shows the jury’s determination that somebody did something wrong, something that cost another person their life, and that the wrongdoer has been held responsible.

We like to focus on the human element, and do the best we can to make sure that our clients get what they need in order to recover and move on after the untimely death of a love one.

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

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Negotiating Confidentiality Provisions in Personal Injury Cases

Posted on Tue, Jan 26, 2016 @ 3:26 PM

One of the greatest challenges we face when dealing with personal injury cases is finding a way to effectively quantify pain experienced by our clients. The following case involves a victim who sought our help after a restaurant’s negligence left her with injuries that would potentially affect her for the rest of her life. The case also shines a light on the complexities of confidentiality provisions in personal injury settlements.

A head injury alters a woman’s future forever

Elise Jones* joined her father and fiancé at a Columbus-area restaurant for a late lunch on a cold day in February. The hostess was leading them through a poorly lit area to be seated, when Elise felt her foot slip from underneath her. As she fell to the ground, her head hit hard against a brick wall, and she completely lost consciousness for a few moments.

As people scrambled to help Elise up from her fall, her father and another patron noticed an employee surreptitiously place a “wet floor” sign in the area. The patron also mentioned that he’d seen another customer slip in that same spot no more than 10 minutes earlier.

Elise was taken to a hospital for examination and was later discharged. However, she soon began to develop terrible and frequent headaches. What would begin as a dull pain, escalated into excruciating migraines. At times, Elise would be completely incapacitated—forced to remain in bed all day. She was even hospitalized for the pain on a couple of occasions.

As a consequence of the increasing and frequent headaches, Elise was unable to concentrate and her work began to suffer. She became more irritable, and this affected her relationships.

Elise consulted multiple specialists, but none could offer her a cure. She was faced with the fact that she might have to live with the headaches for the rest of her life, and, at best, could hope to manage the pain with medication.

Confronted with that knowledge, and with the knowledge that the restaurant staff knew about the slippery floor, she decided to file a lawsuit against the restaurant.

Ohio personal injury attorneys tackle the difficulties of Elise’s case

Establishing that Elise’s fall was what led to her terrible headaches would be tough, but we had a little help because this was a civil case. Elise’s doctor agreed that the headaches were consistent with trauma to the head, but could not be certain if the trauma was linked to the fall in the restaurant. Medically speaking, a physician establishing certainty needs to be 90 to 95 percent sure that the fall led to Elise’s headaches.

In civil cases, only 51 percent certainty needs to be established in order to sway a court’s decision. In other words, if you tell a jury there’s a 51 percent chance event A happened and a 49 percent chance event B happened, the jury should believe that event A happened. The fact that Elise’s painful headaches started soon after her fall strengthened her claim.

Proving the very existence of Elise’s headaches, let alone their severity would be difficult. Most doctors and pain specialists agree that pain is very difficult to measure from an objective standpoint. Those who suffer unidentifiable pain face a common problem: not only has the quality of their life been compromised, but they struggle to prove to others that their pain is real.

Finally, “slip and fall” cases are notoriously difficult because of the “open and obvious” doctrine, a general set of rules that protect premises owners from liability for injuries if the danger was “obvious” or easily detectable. In Elise’s case, the hazard wasn’t at all obvious—it was 20-25 feet from the wet entryway. Additionally, the fact that an employee quickly set up a “wet floor” sign after Elise’s fall, suggested the restaurant staff was aware of the hazard and had failed to warn their patrons sooner.

Pros and cons of confidentiality provisions

Confidentiality provisions can work in a number of ways in a civil case. Unless our client really wants to keep a case quiet, we think it benefits the community to know what the facts of the case were. After all, one of the tenets of our legal system is to bring out the truth in order to achieve justice.

From a legal standpoint, keeping those facts open to the public is useful for attorneys attempting to evaluate similar types of new cases: What verdicts are they getting? Are they being settled or going to trial? In both cases, for what amount? More often than not a settlement agreement will have a confidentiality provision. Fortunately, this can actually benefit our clients. From our perspective, since defendants almost invariably want confidentiality as part of their settlement agreement, it becomes a valuable component for us to leverage.

In Elise’s case, we arrived at a number to settle the case, but when the defendant’s attorneys drafted an agreement, they slipped in confidentiality language. We in turn asked for and received a higher settlement because of it.

While confidentiality provisions are almost always proposed by the defendant, we’ve seen a number of plaintiffs readily accept them, and it has little to do with obtaining a larger settlement. Many simply want to avoid the stigma sometimes associated with a personal injury lawsuit. As we’ve written about before, cynical political and media organizations have constructed a perception of courts clogged with “frivolous lawsuits.”

Providing for an unknown future

Ultimately, we did reach a settlement for Elise, and it did contain confidentiality provisions. Given the fact that she has a lifetime ahead of her with unknown issues and expenses related to her injury, we knew it was critical that the settlement be sufficient to help her move on in a positive direction.

The close of this case represented a way for Elise to gain a tangible measure of control. It also represented a new beginning, a chance to put something bad behind her and move on. And she’s doing just that: she married her fiancé, and is slowly getting more involved in the business she started prior to the accident.

It’s gratifying for us to help people heal emotionally, financially, or in any other way that can be achieved through the civil justice system.

*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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A Private Correction Facility’s Extensive Negligence Leads to a Hostage Situation

Posted on Tue, Jan 19, 2016 @ 10:59 PM

Held at gunpoint

What began as a regular morning for Jackie Murdock* at the accounting office she and her husband operated in a Columbus suburb—resulted in unforgettable events. The sound of the low-flying helicopter was Jackie’s first clue that something strange was happening. Then she heard a loud bash as her front door was kicked in by a man wearing a corrections officer’s uniform and wielding a gun.

The man who entered was Bobby Ray DuPree*, a dangerous felon who had escaped from the Northeast Ohio Correctional Center (NOCC) and had randomly chosen the Murdock’s office as a place to hide from police pursuit. The uniform and gun were stolen from a guard he’d overcome in his escape.

Jackie, alone and terrified, suddenly found herself in a hostage situation. Through the window she watched as a SWAT team surrounded her office, and her unease grew. Her husband, Todd Murdock* returned from running errands to discover the house he and Jackie used as an office surrounded by the SWAT team. Police informed him that his wife was being held hostage by an armed fugitive.

After hours of negotiations with the police, DuPree agreed to let Jackie go unharmed—in exchange for a pizza.

Eventually, DuPree was apprehended, and with charges that included kidnapping, escape, and bank robbery (he’d held up two banks before breaking into the Murdocks’ office), he faced life in prison.

Personal injury attorneys uncover system of negligence

Struggling to recover from the psychological effects of the event, the Murdocks came to us for help.

We filed suit against CCA, the privately owned business in charge of operating the prison because it stood to reason that the corporation was ultimately responsible for DuPree’s escape. However, we knew the Murdocks’ case could be tricky because operators of state and federal prisons are afforded certain legal protections due to the nature of their profession—but it was unclear if those protections extended to privately owned corporations like CCA.

CCA’s attorneys filed a motion to dismiss the case, which was ultimately rejected by the Court.

Meanwhile, as we proceeded through discovery, the extent of the NOCC’s negligence became increasingly—and distressingly—clear. Among our findings:

  • DuPree was moved from a county jail to the NOCC because he had a history of hiding contraband on his body and threatening corrections staff. Such a prisoner required high-level detention, but the NOCC was only a low-to-middle-security facility.
  • A form was sent with DuPree from the jail to the NOCC warning that he should be held on the highest security level, be strip-searched and “black-boxed” (meaning his handcuffs should be covered to prevent him from picking the lock) during transport, but those instructions were ignored.
  • DuPree escaped after being moved to a nearby medical facility because he was found lying on the floor with blood on his forehead. After he was moved, a staff member who cleaned the cell discovered a razor blade with blood on it (likely used by DuPree to fake the injury), yet that person failed to inform anyone of the discovery.
  • The two corrections officers in charge of guarding DuPree at the medical facility were never warned that he was a high-level security risk with a history of hiding contraband.
  • DuPree was not strip-searched when he was transported to the medical facility or placed in his hospital room, his room wasn’t searched and nobody monitored him when he used the bathroom.

We discovered that the rate of escape from CCA-run facilities versus state or federally run prisons was abysmally high, with prior escapes taking place in Tennessee, Arizona, Florida, and Illinois. What’s more, many of those incidents were strikingly similar to DuPree’s: there was a breakdown in training and failure to follow proper procedures.

Justice for the Murdocks

Typically, if a case is going to settle, it happens before trial or at the end of the trial. This time, though, something odd happened: CCA chose to settle in the middle of the trial.

Our guess is that, given the strong case of negligence we had built against the corporation, it wanted to avoid the continued negative exposure it would receive in a lingering public trial—especially right before it was set to renew a valuable contract with the federal government.

From the perspective of our clients’ needs, the timing couldn’t have been better. Although the process of getting answers and preparing for trial helped Jackie tremendously as she tried to come to grips with the ordeal she went through, she was still terrified of testifying and having to relive the nightmare. Tom, on the other hand, did get to testify, and for him the process was cathartic.

In terms of the public good, the attention this case and similar ones received resulted in a noticeable slowdown in the privatization of prisons in Ohio. Whether those prisons have improved their procedures though, is still a matter of debate.

Moving onward and upward

We’re happy to say the Murdocks are doing much better now. Between the justice they received and that other great healer—time—they’ve managed to pick up where they left off and grow.

Not only have they continued their accounting practice and brought their three children into the family business, but they’ve also started another venture built around a passion of Todd’s: collectable coins.

As Ohio personal injury attorneys, winning cases and obtaining justice on behalf of our clients is what we live for. There’s something about seeing those positive “after” pictures—seeing people on the mend, as they move beyond their adversity and flourish—that is uniquely rewarding.

*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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Unusual Courtroom Tactic Wins Case Against Construction Company

Posted on Wed, Jan 13, 2016 @ 1:45 PM

Sometimes doing something unusual in a courtroom can make all the difference. Ohio civil litigation attorneys at Cooper & Elliott were faced with such a decision. After a brief discussion about the risk, they made a bold decision to literally pour a bottle of water over the defense’s exhibit—and it proved to be the turning point in the case of a family whose dream home turned into a nightmare due to a construction defect.

The construction defect

It started when the Gearharts* noticed water coming into the basement of their new home. After each rain, water poured in through the cinder blocks—so much so that the Gearharts were able to capture the water coming in on video. The sump pump was running non-stop, and their basement was so damp that mold was growing on their belongings, some of which were family heirlooms. Mildew formed on the walls, and when the Gearhart’s children started showing flu-like symptoms, they feared that mold was inside the walls. The Gearharts attempted to combat the mold growth with a variety of solutions, but had little success.

When the construction company that built the home refused to take responsibility for the water seepage, the Gearharts came to us for help.

Perseverance and creativity

We needed to find out exactly what flaws or defects were allowing water to leak into the basement of the Gearhart’s home. The construction company was not willing to cooperate in that, so we had to do some digging on our own.

Rather than spending thousands of dollars excavating around the entire house to see what errors had been made, we hired experts and conducted research. By looking through records we were able to determine how much gravel the builder had used, and according to experts, it wasn’t enough. Gravel allows water to drain away from the foundation walls, and without enough of it, the soil around the basement was absorbing water like a sponge. The immense weight of the saturated soil put so much pressure on the walls that they had started to bow and crack. Water damage aside; the very stability of the house was in question. By excavating in a small area, we discovered that the construction company neglected to properly treat the exterior of the walls with waterproofing chemicals.

During trial, the first judge dismissed the case—much to the consternation of the jury that had heard the evidence against the construction company. That decision was reversed on appeal, which meant that we would have to start over with a new trial, significantly lengthening the process. At that point, most attorneys would have grown weary with the case and advised their clients to take the settlement the construction company had offered—but we kept fighting.

Using the defense’s tools against them

During the second trial, the construction company’s defense built a special exhibit to demonstrate to the jury the functionality of a basement wall. It was a mock-up wall made of cinder blocks, about five feet long and four feet high, with tar on the outside and gravel at the base.

As we prepared for cross-examination, we noticed a bottle of water on the table, and it sparked an idea: after a brief discussion, we decided to take the bottle of water and pour it over the exhibit. The defense had constructed an elaborate exhibit to demonstrate how a basement wall should deflect water, but they had neglected to include water in their demonstration.

We knew we were taking a risk, but we followed our instinct.

As the cross-examination began, we asked the witness if the model represented a properly constructed wall. The witness acknowledged that it did. We then poured the water over the exhibit, which drained away exactly as intended—reaffirming that the walls of the Gearhart’s home were not properly constructed.

The jury had viewed the videos of water pouring in through the walls of the Gearhart’s basement, and the demonstration with the water bottle solidified our case. The witness wasn’t prepared for the exhibit to backfire, and needless to say, there were some chuckles from the jury. That moment helped turn the trial in favor of the Gearharts.

The Gearharts feared they might walk away having to pay exorbitant amounts of money to correct a terrible defect in their dream home. With a little creativity and perseverance, we were able to make sure that didn’t happen. They received a settlement that allowed them to fix their dream home, from bad walls to mold remediation, and helped pay their expenses while they lived somewhere else during the process.

Two civil litigation attorneys are better than one

There’s a reason we assign two attorneys to each case. All minds work differently, and sometimes one of us will see something that the other doesn’t, like I did with the water bottle. When that happens, we can put that new idea into play immediately, and it can make a big difference for our clients.

 

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

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

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