Cooper & Elliott Blog

Catching Up with CSI: Medically Demonstrative Technology

Posted on Fri, Dec 16, 2016 @ 5:10 PM

We have tried many personal injury and wrongful death cases over the years, and there have been plenty of instances where we’ve asked medical experts to testify about what did or didn’t happen to the plaintiff. Jurors have enough information to process throughout a trial as it is, and expecting them to comprehend in just a few hours what might take medical professionals years to understand is asking a lot. Thanks to advancements in medically demonstrative technology, conveying information to a jury has become much more efficient.

Uses of medically demonstrative technology

In the past, expert witnesses have used anatomical models, illustrations, or photos to demonstrate medical conditions and injuries to judges and juries. Today, computer programs and applications have replaced some of those methods and offer experts more sophisticated tools for use in court.

Animation allows juries to see more accurate, real-time and to-scale representations of injuries or medical conditions. CT scans and MRIs not only offer more detailed visuals, they allow juries to see evidence of the plaintiff’s actual injuries instead of having to conceptualize them from a generic diagram or photograph. We once showed a jury an animation of how oxygenated blood moves from a mother to her baby before the baby is born. This was much easier to grasp than a static presentation with a lecture ever would have been.

Applications and programs

Innovative programs and apps represent further leaps forward in medically demonstrative technology. One of the latest lets a jury view specific parts of the body in detail. An expert or attorney can pull up the application on his or her iPad and view the human body layer by layer—they can choose to display the skeleton, or the digestive system, or the nervous system, etc. It’s an excellent way to give juries a close-up look at the human body—and to keep the jury’s attention.

An expert on the witness stand explaining a nerve injury can click an image to show exactly how an injury occurred from multiple angles. The expert can show the view that a surgeon would see while operating, and illustrate (for example) where the surgeon made an error. It’s far more vivid and effective than an old-fashioned two-dimensional presentation.

If you’re thinking you’ve seen something similar on television recently, you probably have. It’s the kind of tech that CSI and other shows have used for a long time—though it’s taken longer to make its way into real-world courtrooms.

Giving expert witnesses authority

Another advantage of medically demonstrative technology is that it gives expert witnesses more authority. Equipped with medically demonstrative tech, expert witnesses become teachers who can show how something happened and why, rather than just lecturers who recite their version of an event. To a jury, a teacher who can demonstrate what happened and why is more appealing than a dry lecturer. Plus, when an expert witness projects the authority of a teacher, it’s harder for a defense attorney to accuse the expert of not being objective.

As is the case with any witness, however, there are sometimes questions of accuracy when experts use medically demonstrative technology. Judges want to know if the software program or app is correctly showing what it claims to show. As such technology becomes more commonplace, precedent can help establish its accuracy. Nevertheless, we still make sure our experts can vouch for the technology they use in each individual case. In the case of an app that creates a custom model from actual medical records, for example, we need to be sure the model is accurate and that the expert is familiar enough with the model to say so.

We also must ensure the technology presents a model clearly and accurately because we may only have one opportunity to present it to a jury. Much of the time, jurors can’t ask to see a medically demonstrative technology display again the way they can re-examine a photo or medical record that has been entered into evidence.

Personal injury or wrongful death case?

We believe it’s important to use every available tool to fight for our clients in personal injury or wrongful death cases, and medically demonstrative technology is but one of those tools. If you’ve been harmed and need legal assistance from Ohio civil litigation attorneys who work only with the best experts and tools, give us a call.

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

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Qualified Immunity: A Necessary, But Not Absolute Privilege

Posted on Thu, Dec 8, 2016 @ 11:07 PM

Lately, it’s not surprising to turn on the news and see a case involving a police officer who’s been accused of using excessive force. The circumstances all vary but are nonetheless emotionally charged and often involve a legal doctrine known as qualified immunity. As Ohio civil litigation attorneys, we’d like to shed some light on qualified immunity and its legal implications.

The purpose of qualified immunity

Qualified immunity is a privilege often asserted by police officers, prison guards and other law enforcement or government agents to defend against a civil rights lawsuit. Its purpose is to strike a balance between the need for an official to act in difficult situations where split-seconds matter, and the need to protect the rights of those with whom the official comes into contact. The doctrine exists because we have to give government officials a certain amount of leeway to allow them reasonable discretion and personal safety in the performance of their jobs. No one would want to be a police officer if it meant the possibility of personal liability for every single action taken on the job.

However, qualified immunity is not a blanket protection for anything a person might choose to do in his or her official capacity.

Precedents determined by civil rights case rulings

Whether a defendant has qualified immunity depends on whether the defendant acted reasonably given the specific circumstances. When a defendant asserts qualified immunity, the defendant is saying, “Even if I violated the plaintiff’s constitutional rights, I can’t be liable because it wasn’t clear beforehand that my conduct was a violation.”  The question is usually decided in terms of legal precedent—what courts have specifically held in similar cases.

Imagine a situation in which an officer strikes a handcuffed suspect with a baton. Whether the officer’s actions are considered excessive will depend on the specific circumstances. Was the suspect standing or sitting peacefully, posing no threat to the officer or anyone else? In those circumstances, courts have held that the baton strike is excessive and therefore a violation of the suspect’s constitutional rights. But what if the suspect was kicking or head-butting the officer? Many court cases have held that it’s permissible to strike a restrained suspect in that situation in order to protect the officer and others. The question can become even more nuanced—What if it takes only one or two baton strikes to subdue the suspect, but the officer continues with several more strikes after the suspect no longer poses a threat? Courts faced with that scenario may hold that the later strikes violated the suspect’s constitutional rights, even if the first one or two did not. Whether an officer is immune can come down to specifics like how many times the officer struck the suspect. So, if we were representing a suspect in a civil rights case against the officer, we would want to know if a court decision had ever addressed the specific details of our client’s case.

Validating qualified immunity assertions

When we go to bat for a client who believes an official has gone beyond what the law allows and violated their civil rights, we frequently end up facing an assertion of qualified immunity. Handling such cases requires a close examination of any precedents that seemingly immunize the official. Sometimes we can prove the law was badly applied in those cases, or that the facts in our case are different enough that immunity shouldn’t apply.

We look for evidence that would indicate that the official knew or should have known their actions were violating our client’s rights. In other words, we look at whether courts have issued decisions in cases involving the same circumstances as our client’s, or circumstances that are similar enough that the same rule would clearly apply. We also look at the official’s training and prior incidents, if any.  If we can prove that the official should have known better, we can defend against qualified immunity.

Misuse of qualified immunity

While qualified immunity protects officers and government officials and enables them to carry out their duty to protect the community, there are facets of the provision that some defense attorneys abuse.

For example, a defendant can ask the judge to dismiss the case on qualified immunity grounds before trial by filing a motion to dismiss or motion for summary judgment.  Most of the time, if a judge rejects a defendant’s motion to dismiss or motion for summary judgment, the defendant has to wait until after trial to appeal the judge’s legal decision. But qualified immunity is different. If a judge rejects a qualified immunity defense, the defendant can immediately appeal, and the appeal must be resolved before the case can continue to trial.  Trials can be held up for a year or more as a result.

Qualified immunity was created for a reasonable purpose, but it can be abused and provide cover for acts that are true violations of a citizen’s constitutional rights. If you have a civil rights case against a government official, it’s important that your attorneys be experienced in exposing faulty qualified immunity assertions.

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

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Subrogation, Private Health Insurance and Your Personal Injury Settlement

Posted on Tue, Nov 29, 2016 @ 12:39 AM

In previous articles, we’ve shared the basics of subrogation and how it relates to Medicare and Medicaid. The rules that govern subrogation for Medicare and Medicaid are different than those for private health insurers. In this article, we’ll discuss subrogation as it relates to private insurance and ways we can help our clients minimize its effects on their personal injury settlement or judgment.

Private insurance subrogation laws

Unlike Medicare and Medicaid, in which subrogation rules are part of the laws and regulations that govern the programs, private insurance subrogation rules are contained in insurance contracts. And while Medicare reduces its subrogation to account for fees and costs, and Medicaid limits the amount of a settlement that can be taken via subrogation, private insurance may have no such restrictions.

Unfortunately, many people get health insurance through their employer (or the Affordable Care Act), and there’s not a lot of room for shopping around and the contract terms are non-negotiable.

Example of a worst-case scenario: In a car accident, when one driver is hit by another, the victim’s health insurance company pays $50,000 to cover the medical expenses. A lawsuit is filed against the offending driver, but because the driver has minimum auto insurance limits, it recovers only $25,000. The language in the injured person’s health insurance contract might give their insurer the right to recover every dollar it paid on their behalf originally. So, the $25,000 recovered in the lawsuit would go directly to the plaintiff’s health insurance company.

It’s hard to understand, given that people pay premiums for their health insurance and expect that they’re getting something for what they paid for. Many are shocked to learn that their insurer doesn’t have to bear the risk of having to pay their medical bills.

Ohio civil litigation attorneys examine the fine print

Frequently, there are ways we can fight subrogation claims on our clients’ behalf. First, we try to make sure our clients pay no more than they’re legally obligated to by diligently reviewing the language in the insurance contract. Unless the contract uses certain proper and precise language, the insurance company may not be able to make a claim on the settlement at all. There are some conditions that could prevent subrogation claims:

  • No contract – Insurance companies are sometimes unable to produce a written contract for examination, but they might try to assert a subrogation claim anyway. Without having a contract to back up such a claim, they’re out of luck.
  • Timing – We check to make sure that the exact subrogation language in the contract the insurer is trying to apply was in effect at the time of the accident. For example, if an accident occurs in 2015, but the subrogation language in the contract didn’t go into effect until 2016, then it can’t apply to that case.
  • Agreement with state law – Some private health insurance contracts are governed by state law. In those cases, if the contract language in question doesn’t meet the requirements of Ohio subrogation law, the insurance company may not be able to claim some or all of what it paid.

What if the subrogation language is binding?

Even if we’ve verified that the contract language is sound and the right to subrogation as written in the contract is valid, we still have options. Insurance companies don’t want to spend a great deal of money collecting subrogation payments, so the possibility of having to go to court often prompts a company to negotiate.

Another option—we sometimes think of it as the secret weapon—is to negotiate a reduction of the subrogation claim by threatening to drop the lawsuit altogether. The threat of exercising this option can persuade the insurance company to negotiate on subrogation because without the personal injury case, there would be no settlement from which to collect. This approach is absolutely one of last resort, of course. But if the subrogation claim would swallow up all of our client’s recovery, it may be the only way to get the health insurer to negotiation.

There are many things to consider when you’re facing the threat of losing a personal injury recovery to a subrogation claim. If you could use some assistance navigating a messy subrogation battle, give the Ohio civil litigation attorneys at Cooper & Elliott 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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How Subrogation Works with Medicare and Medicaid

Posted on Tue, Nov 15, 2016 @ 4:52 PM

In our last post, we outlined the basics of subrogation. Briefly, subrogation is the right of someone besides an injured person to recover something out of a personal injury case.  Subrogation works differently depending on the type of insurance involved. Medicare and Medicaid have different sets of rules from private insurers. In this post, part two of the series, we’ll discuss subrogation as it relates to Medicare and Medicaid.

How subrogation works with taxpayer-funded insurance

Medicare and Medicaid are government run programs, funded by taxpayer dollars. The intent of subrogation in these programs is to offset taxpayer responsibility for the related healthcare costs.

Subrogation rules are written into the statutes that govern Medicare and Medicaid. Virtually always, if Medicare or Medicaid paid medical expenses incurred because of a personal injury, there will be at least some subrogation payment from a personal injury judgment or settlement. But the good news is that—unlike the subrogation rules for private insurance—the Medicare and Medicaid subrogation rules take the plaintiff’s costs and other circumstances into account.

Medicare

In a case involving Medicare, the subrogation payout is set by a formula. The amount paid is reduced in proportion to the plaintiff’s attorney fees and expenses.  This is an attempt to account for the fact that the plaintiff incurs costs and attorney fees from pursuing a settlement or judgment.

Recent changes in Ohio Medicaid subrogation law

The rules for Medicaid can vary from state to state because unlike Medicare, which is a federal program, Medicaid is run by individual states. Some recent federal rulings have led to changes in Ohio law about Medicaid subrogation.

In personal injury cases where Medicaid had paid for medical expenses and the expenses exceeded the plaintiff’s settlement or judgment, Ohio law used to provide that 50% of the plaintiff’s recovery represented medical expenses applicable to medical bills. But in many cases, a smaller percentage of the plaintiff’s recovery represents medical expenses, and the larger percentage compensates for pain and suffering, or other costs. That meant that it wasn’t especially fair for a Medicaid subrogation claim to be based on 50% of the plaintiff’s recovery when only a fraction of that was intended to compensate for medical bills.

The U.S. Supreme Court recently ruled that states can no longer require that a fixed percent of any recovery is subject to Medicaid subrogation. Subrogation payouts are applicable only to the part of a settlement that represents compensation for medical bills paid by Medicaid and not compensation for pain and suffering or other costs. The ruling is logical, given that subrogation is supposed to help offset the cost of medical care paid for by the government.

Also, this court ruling means that the subrogation amount must be in the proper proportion to the judgment, based on the facts of the plaintiff’s case. Attorneys can work to protect portions of the judgment from subrogation, and they can make sure there’s an administrative hearing if the proportions are disputed.

Getting the percentage right

Ultimately, our goal with Medicare and Medicaid cases is to make sure that when the subrogation formula is applied, it’s applied for the correct medical costs (not for unrelated expenses or ones incurred before or after the events for which the plaintiff recovers), and that it applies only to the appropriate portions of the recovery.

Subrogation involving private insurers can be very different, because the rules are part of each individual insurance contract and not set specifically by law. We’ll discuss that in a future post. But whether your case involves subrogation or not, give the Ohio civil litigation attorneys at Cooper & Elliott 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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Subrogation in Personal Injury Cases – Why, and What Is It?

Posted on Tue, Nov 8, 2016 @ 5:42 PM

For people who have been harmed by someone else’s wrongdoing, a civil judgment or settlement is a crucial step towards healing. That healing includes the emotional release that comes from a court agreeing that they were not at fault, but it also includes the only remediation our court system is permitted to offer—money.

However, for many of those people, that financial relief could disappear suddenly because of a common clause in their insurance policy—the subrogation clause. In brief, subrogation allows an insurance provider the right to reclaim some or all of what they paid for medical care from a patient’s civil judgement or settlement. Medicare and Medicaid have subrogation rights under the law, and many private insurance policies have subrogation clauses in one form or another.  But that doesn’t mean you have no recourse.

Over the course of this 3-part series, we’ll be looking closely at what subrogation is, and how it can be minimized.

Subrogation in public vs. private insurance

To understand the details of subrogation, it’s important to first understand that there are two different kinds of insurance providers and they each handle subrogation differently. The first is public, funded by the government, through Medicare and Medicaid. Subrogation is part of the law for Medicare and Medicaid programs. In nearly all applicable cases, some subrogation money will be taken. Even after trying to negotiate the amount down, there’s often still a minimum amount these government programs will take, and there’s no escaping it. But at least for Medicaid cases, the law also caps the amount, which assures that the injured party will get to keep at least some of the settlement.

The other type of carrier is, well, everybody else—all private insurers. Although their right to subrogation is also governed by state or federal law, rules for subrogation primarily depend on the written terms in the insurance contracts these companies sell. Some contracts may say little or nothing about it (thus you may be able to avoid subrogation claims altogether). Others may contain some very potent language, and the insurer may have the right to take your entire settlement to cover the amount they paid out.

How is subrogation possible?

The most common reaction we get when people learn about subrogation is shock. It makes sense to assume the money you pay for insurance, either through premiums or taxes, is supposed to purchase coverage. It doesn’t seem fair for insurance companies to then take part of the judgement or settlement as well. The counter-argument is that you signed a contract and are therefore beholden to the terms of that contract—no matter how unfair they seem.

The problem is that you may not have had much choice in the matter. If you get your insurance through your employer (or the Affordable Care Act), it’s a take-it-or-leave-it situation. You, as a single private individual, can’t negotiate the contract language. You’re stuck with whatever subrogation rules are in the policy that covers you.

The idea of subrogation is that it will offset the cost of insurance and keep costs from going up. So it’s easy to understand why Medicare and Medicaid use it, since they’re funded by taxpayer dollars. It’s harder to see a good reason (for parties other than the insurer) for private companies to use it, because subrogation-friendly judgments have not kept the cost of insurance from rising. But whatever the reason for it, subrogation is a fact of life. Medicare, Medicaid, or your private insurance may be legally entitled to a portion of your settlement.

Civil litigation attorneys can help

The good news is that you may not be stuck. There are legal remedies that could help. In upcoming articles on subrogation, we’ll get into more detail about the specifics of public vs. private insurance subrogation claims and how they can be mitigated.

But if you’re caught in a subrogation mess right now, the Ohio civil litigation attorneys at Cooper & Elliott are happy to talk to you about it. 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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Mitigation of Damages: Money Doesn’t Heal in and of Itself

Posted on Tue, Jul 5, 2016 @ 6:24 PM

Our goal in every civil case is to get a judgment or settlement that will help compensate our clients for the harms and losses they’ve suffered, even if compensation cannot restore their lives to the condition they were in prior to the events of their case. But another—very important—part of our job is to counsel our clients on the importance of mitigating damages before, during and after their trial.

The process of mitigation serves two main purposes: First, it facilitates the healing process.  Second, it reflects positively on our client’s character, thus increasing their chances of obtaining a favorable verdict.

Mitigation of damages

Mitigation of damages is a legal principle under which a plaintiff who has suffered a loss or injury is expected to take reasonable steps to improve their situation or correct the harm. It ties into a value that our country has grown up with—we expect that if someone is knocked off the horse, they’ll get back up.  When plaintiffs neglect to take action or make no attempt to overcome their hardships, judges and jurors are likely to question the sincerity or the depth of the injury.

Think of a fender bender, for example. If you go to court for a car crash, and the other party is found to be responsible for the damage, the court still expects you to get the car fixed and prevent rust or further deterioration of condition. If you are injured, there is an expectation that you will seek medical attention or therapy so the injury doesn’t worsen. If you lose your job, you’re expected to look for a new one while you collect unemployment wages.

Practical reasons for mitigation

While mitigation of damages is a critical first step to the healing process for our clients, there are some practical legal benefits as well:

  • The defense can leverage a lack of mitigation attempts. In a civil court case, the defendant’s attorneys can actually argue that the plaintiff hasn’t done enough to mitigate damages on their own and leverage that point against them in court. If they are successful, a jury may allow the plaintiff a lower recovery.
  • Juries expect to see mitigation attempts. Judges and juries are more likely to empathize with a plaintiff who doesn’t adopt a victim mentality. Plaintiffs who sit idly by in the time that it takes for their case to go to trial aren’t likely to garner much favor from the jury.

As civil litigation attorneys, we have a responsibility to help our clients show proof of mitigation efforts, so a judge or jury doesn’t question our clients’ motivation to move on or heal. An effective way to do this is to have witnesses testify about specific actions or behaviors that exemplify our clients’ mitigation efforts.  These witnesses can be doctors, coworkers, family members—anyone who has seen our clients strive to overcome the hardships that resulted from the events of their case.

For example, we represented a woman who had broken her heel in a car accident.  Her son gave powerful testimony that told of how he returned home from college and witnessed his mother painstakingly carrying a laundry basket up a flight of stairs. She crawled up the steps, one step at a time, grimacing as she went, but was determined to get her laundry done. The jury was able to perceive her as a woman who was willing to overcome an obstacle and who was trying her best to be productive despite her debilitating injury.

Mitigating damages is critical to healing

We want our clients to thrive after a case. We want them to heal financially, emotionally and physically. And while a settlement is always a good start, the client must also make some mitigation efforts independent of the legal process in order for healing to occur.  We strive to counsel our clients to make decisions that will help minimize their losses.

  • Mitigation of damages can have positive effects. We represented a man whose wife was killed by a drunk driver. He put his settlement to good use—set some aside for his son’s college education and sought out grief counseling for his family. He took responsibility for pulling his life together and avoided a downward spiral. We’ve kept in touch over the years and are pleased to report that he and his son are doing well.
  • Failing to mitigate can have unfortunate consequences. We helped a client secure a judgment in a traumatizing defamation case. The events of the case were so terrible that they led him to suffer from post-traumatic stress disorder (PTSD). We encouraged him to see a psychiatrist, or seek the comfort of family members. He made some attempts, but we lost track of him after the case and he quit going to therapy. Tragically, his psychological state deteriorated and one day, about four years later, he took his life.

Money doesn’t heal in and of itself

Understandably, our clients sometimes feel the desire to seek legal revenge on those who have wronged them—it’s a perfectly human reaction to suffering a great deal of physical or emotional pain. However, the desire for revenge or retribution can obscure the ultimate goal, which is healing.

The take home point here is that money doesn’t heal in and of itself. Because of this, we encourage our clients to mitigate damages in a variety of ways—and ultimately, find their way to a new mental and physical normal. If that kind of help is what you need, give us a call.

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

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Takeaways from the Jury Box: An Attorney Serves Jury Duty

Posted on Tue, May 17, 2016 @ 5:47 PM

Dynamic disciplines like medicine or law require an ongoing pursuit of experience in order to meet the diverse challenges of their respective professions. Sometimes those experiences are best obtained by viewing processes from a different perspective. A member of our team recently had the opportunity to learn about trial law from a most unique—yet fundamental—perspective: the juror’s perspective.

A civil litigation attorney serves jury duty

As Ohio civil litigation attorneys, we seldom get to experience the courtroom from a jury box. Years ago, exemption rules kept lawyers and other professionals from serving jury duty in this area. Those exemptions have been lifted, but even now attorneys called to jury duty are rarely selected to serve, and those who are selected are usually not trial lawyers—more likely they’re transactional lawyers, tax attorneys, etc.

This is no surprise. After all, if you’re a plaintiff’s attorney called to jury duty, a civil defense attorney likely won’t select you due to concern that your sympathies lie with plaintiffs. If you’re a criminal defense attorney, a prosecuting attorney would similarly be concerned that you have a bias in favor of criminal defendants.

Yet recently, a member of our team, Chip Cooper, was selected to serve on the jury for a domestic violence case. It’s hard to say why he wasn’t struck from the jury, given his legal background. It could be that because Chip is a trial lawyer in civil, not criminal law—and this was a criminal case—the attorneys felt confident he could be a fair and impartial juror.

Regardless of the reasons why he was chosen, from a professional standpoint his experience in the jury box was a rare coup, as it gave him the unique advantage of seeing a trial through a juror’s eyes. From that perspective, he took away a number of insights we all can learn from. Below are some of his takeaways:

    1. Be professional and cautious. As he was walking to the courthouse, dressed informally for jury duty, Chip overheard two attorneys discussing sensitive aspects of their case—a witness they thought would do poorly, a judge whom they thought was unqualified.

As an attorney, it’s wise to show up for trial and assume that everyone around you could have some involvement with the case. What you say and how you present yourself—both inside and outside the courtroom—matters.

    1. Consider the proceedings from a juror’s perspective. Routines and processes that make sense to attorneys and judges might be unnecessary or even detrimental when trying to connect with jurors.

For example, Chip discovered that when jurors show up for orientation, they’re repeatedly thanked for their service and reminded of its importance. By the time they actually make it to trial, if the lawyers then repeat the same message, it almost sounds disingenuous. This repetition may also turn jurors off by underestimating their intelligence, their intuition, or their ability to quickly grasp the facts presented to them.

Rather than starting off on the wrong foot and potentially boring jurors, you might consider simply digging into the case.

When it comes to presenting evidence, there’s a fine line between using repetition to benefit your case and potentially harming it. You don’t want a salient fact to escape your jury’s attention, but you also don’t want to hit the same points over and over, and risk boring your jurors or, worse, insulting their intelligence. In this particular domestic violence case, the lawyers hit the same information again and again, to ensure the jurors understood the significance of certain evidence.

    1. Be sensitive to jurors’ needs. Because this case involved domestic violence, the attorneys needed to inquire about potential jurors’ experiences with domestic violence to ascertain their ability to impartially serve on the jury.

But how does one delve into such a sensitive and personal issue? In this case, the jury pool members were asked for a show of hands to indicate if they or their loved ones had had experiences dealing with domestic violence.

Think about that for a second. You’re asking people who are in an unfamiliar environment, surrounded by strangers, to raise their hands to announce that they’ve had experience with domestic violence. People aren’t likely to openly share intimate information in such an unfamiliar setting.

When dealing with such sensitive matters, we attorneys need to be prepared to accommodate jurors’ individual needs. For instance, in this particular case a written questionnaire could have been provided to prospective jurors before they were called to court. Then their experiences with domestic violence could be discussed discreetly with only the lawyers and judge.

Potential jurors would likely be more forthcoming with relevant information if they knew they could provide it in a private, respectful setting.

    1. Allow notes. Judges take different stances on whether or not they allow jurors to take notes during a trial—we think it’s best if they do allow note taking. Especially during a long case, or one that requires a lot of witnesses.

When jurors make a note of certain facts, it allows them to mentally move on and process the next piece of information presented to them. Moreover, if jurors are allowed to write down important points in the case, lawyers will be less motivated to repeat those facts again and again, allowing them to better connect with those jurors rather than risk insulting their intelligence.

Also, notes make for a more efficient process. In this domestic violence case notes were allowed. When it was time to deliberate, the jurors immediately pulled out their notes to list all the things they agreed upon or disputed.

    1. Juries function best as teams. As an Ohio civil litigation attorney, Chip couldn’t help but mentally compare his assessments of ideal jury candidates—based on his limited knowledge of the facts of the case—with those who ultimately were chosen.

In the decades we have been practicing law, we’ve followed every major theory in jury selection—everything from the Myers-Briggs Type Indicator system to the philosophy of “deselecting” jurors who would be bad for your case.

Our experiences in court have led to the conclusion that rather than focusing on jurors who will be good or not good for your case, it can be more productive to choose jurors who you think will work well together as a team. At first, the attorney will nominally be the leader of that team, providing guidance and information; later in deliberation, the jurors will take over and choose a foreman to lead the team and collectively reach a fair verdict.

Applying that strategy to the domestic violence case, Chip found that for the most part the people who were ultimately chosen for the jury got along fabulously as a team: They were dedicated to the task, paid close attention to the information presented to them, and shared thoughts that other people had not picked up on.

    1. Jury instructions shouldn’t be an afterthought. While it’s true that lawyers shouldn’t underestimate the intelligence of jurors, that doesn’t mean jurors can’t benefit from lawyers’ guidance, especially when it comes time to give the jury instructions for deliberation.

In the domestic violence case we’ve been discussing, neither the prosecutor nor the defense attorney discussed the jury instructions in any detail during their closing arguments—and that omission nearly affected the verdict.

During deliberation, although the jurors seemed to conclude that the defendant was innocent, their initial interpretation of some unclear wording in the jury instructions briefly led them to believe that they would have to vote guilty anyway. After a bit of discussion, the jury members were able to interpret and understand the instructions correctly, and voted unanimously to acquit the defendant.

It’s easy though to see how one small misinterpretation could have led to a vastly different outcome. It’s crucial, therefore, for attorneys to make a special effort to explain the instructions during closing arguments, when the information will be fresh in jurors’ minds.

A valuable opportunity

Being able to participate as a juror was a rare and valuable experience for Chip—and for Cooper & Elliott. Hopefully, more trial lawyers will be able to have that opportunity in the future, because the view from the jury box offers a rewarding learning opportunity for those looking to better connect with jurors. We’re grateful to be able to add what Chip learned to our bank of knowledge and experience so that we can ultimately use it to better serve 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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Judgment Recovery Tools in the Absence of Insurance

Posted on Tue, May 10, 2016 @ 5:41 PM

We seek justice for our clients through a verdict or settlement that often results in a judgment—monetary compensation intended to help restore our clients to the condition they were in before being harmed. Judgments are frequently paid through insurance companies. But what if insurance isn’t available as a source of recovery?

Thankfully, other judgment recovery options are available.

Defendant actions that can affect a judgment recovery

When insurance doesn’t cover a judgment, the recovery process can go in a variety of different directions, depending on the defendant’s resources and willingness to pay:

  • The defendant has sufficient assets and voluntarily pays. This situation speaks for itself and is, understandably, the best-case outcome.
  • The defendant has sufficient assets but appeals the judgment. Here, the defendant doesn’t want to give up his assets while the case is on appeal, so instead he posts the full judgment amount with the court as a type of insurance. Defendants can pay the full amount themselves or, more typically, opt for an underwriter’s surety bond, which guarantees payment of the judgment in the event the judgment isn’t overturned. These bonds allow the defendant to put up the judgment amount for appeal without having to immediately pay out of pocket. From our clients’ point of view, surety bonds represent an excellent source of recovery.
  • The defendant has sufficient assets but doesn’t voluntarily pay or doesn’t post a bond on appeal. These are the most difficult situations for recovery. Sometimes they stem from the defendant’s assets not being easily liquidated in order to get a surety bond. For example, if a defendant has sufficient assets but they’re in the form of rental properties, the defendant may be reluctant to sell those properties to provide the collateral for their appeal.

Basic tools for judgment recovery

Regardless of the reason why the defendant isn’t paying, we have some basic tools at our disposal to ensure our clients ultimately receive the judgments accorded them.

  • Certificate of judgment. If the assets in question come in the form of real estate, an instrument we commonly rely on is something called a certificate of judgment. A certificate of judgment basically puts a lien on any real estate a defendant owns, which means that in the event they try to sell the property, a title search will reveal the plaintiff has a claim on it. The certificate of judgment would have to be paid, often with proceeds from the sale of the property, before the title could be cleared and the defendant could complete the transaction.
  • Wage garnishments. Here, the court issues a notice stating that every pay period the defendant’s employer must pay a certain amount of the defendant’s paycheck to the court. The plaintiff receives that money, and it’s applied to the judgment balance until the judgment is paid off.
  • Non-wage garnishments. These apply to property other than wages. The defendant receives a notice to deposit the property in question to the court, then the plaintiff liquidates the property and that value is applied to the judgment. For example, if a business owner doesn’t receive wages but keeps profits in a bank account, that bank account can be garnished, and the funds can be applied toward the judgment until it is paid off.
  • Writ of execution. In instances when the defendant’s resources are something other than money—and we know specifically what those assets are—a writ of execution can be issued. If, for example, the personal property is a boat, a sheriff’s deputy would receive a writ of execution that would instruct him or her to go to the specified location and seize the boat. The boat is then sold at auction and the proceeds are applied to the judgment.
  • Receivership. When the defendant is a business or has significant business assets, a form of recovery called receivership is often implemented. In a receivership, the court appoints a person to effectually manage the business affairs of the company or defendant. That person either sells or runs the company, distributing income to creditors from the sale or company operations.

For example, if the defendant owns rental properties, the court could put a receiver in place to manage those properties—collecting the rent, maintaining the grounds, etc.—and the rental income can be applied toward the judgment. The receiver could also sell the properties themselves to pay off the judgment.

Purposely avoiding judgment recovery

Sometimes defendants don’t voluntarily pay their judgments because their assets aren’t liquid. But just as often it’s because they’re attempting to avoid payment altogether. Determined defendants may go to great lengths to hide their assets, by giving them away or selling them at a low cost to trusted friends or family members. For example, after getting hit with a judgment, defendants might sell their boat or car the next day, just so it’s no longer attached to their name and can’t be collected from them.

As a result, we attorneys must track down any assets the defendant might have, then act quickly and aggressively to ensure they’re secured by the sheriff or paid to the court before the defendant has a chance to move them.

Fortunately, if a defendant has tried to move assets, we can take some remedial actions. We can identify a sale as a fraudulent transfer, go to court, and get a judgment against the recipient of the property, ordering them to return the property because the sale was made in an attempt to shield assets.

Bankruptcy

Another way defendants attempt to block collection efforts is to opt for bankruptcy, which initially freezes any ability to collect on a judgment. In these situations, plaintiffs must then assert their claim on their judgment through the bankruptcy process. 

During a bankruptcy, a court appoints a trustee to sort through the defendant’s assets and liabilities, then pay off those liabilities in an order of priority established by relevant bankruptcy codes. Typically, a defendant who files bankruptcy has meager assets and is unable to pay the judgment in full. 

When that happens, our challenge is then to avoid the defendant’s bankruptcy from discharging the plaintiff’s judgment, so we can continue to pursue the defendant for payment after the bankruptcy is completed. This can be difficult because in the overwhelming majority of cases, if the defendant declares bankruptcy, the end result is that all their debts are discharged, and they essentially emerge with a clean slate.

That said, there are certain judgments that are considered non-dischargeable, like those deriving from fraud, injury, or death due to DUI, or intentional acts of injury. Judgments are also not discharged if the defendant commits fraud on the bankruptcy court, hides assets from the trustee, or abuses the bankruptcy structure. 

In all of these instances, although recovery may not be obtainable from the bankruptcy process directly, we work to preserve our client’s ability to pursue their judgment in the future. That way, if a defendant filed for bankruptcy and then later, say, developed a successful business opportunity, we would still be able to pursue assets through garnishments, receiverships, and the like.

Making justice count

As many elements as possible—insurance, sources of income, assets and liabilities, types of assets, the underlying dispute of a case—must be taken into consideration before we even undergo a trial. In the long run, it’s not enough just to win cases—our aim is to help clients find justice and become whole again. Fortunately, even if insurance isn’t available as a means of judgment recovery, we can take a number of effective actions to ensure that justice is done.

The materials provided here are for informational purposes only and do not constitute legal advice. Please contact your attorney for advice with respect to a particular issue or problem. 

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

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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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