Cooper & Elliott Blog

A Man in Need Seeks Help from Police, and Receives a Bullet Instead

Posted on Tue, Dec 15, 2015 @ 4:53 PM

Millions of people around the world suffer from bipolar disorder. They move from manic to depressive phases quickly, which can make life difficult for them and their loved ones. The condition can often be controlled with medication, but the process takes time as the patient and doctor try to perfect the prescription and dosage. The goal is to level out the emotional peaks and valleys so the patient can maintain a consistent quality of life.

That happy medium is exactly what Kyle Branson* was trying to achieve. Kyle’s doctor had taken him off his medication because he was experiencing negative side effects, including severe nausea. Kyle’s bipolar symptoms were likely to appear again, but it was all part of the adjustment process.

Kyle’s manic episode

One night during that adjustment period, Kyle was doing his laundry. We’re not really sure why, but as he left the laundromat, Kyle was jumped by four or five men. When the police came to break up the fight, they handcuffed everyone, including Kyle. Once they figured out he was the victim and not a perpetrator, they let him go. Even without the added complication of Kyle’s medical condition, it was a harrowing experience.

Kyle, who was badly shaken, got in his van and began to drive home. On the way, he felt increasingly disoriented and pulled into a church parking lot. He’d been sitting there a while, when a police cruiser pulled in to investigate his van. Kyle got out and asked the officers if they could help him get a wrecker. Rather than help Kyle, the officers mockingly replied that they weren’t AAA. Kyle then asked if they could take him to a hospital. Again they refused him help, and began questioning him. When Kyle decided they weren’t going to be of any assistance, he headed back to his van.

The officers pursued Kyle, ordering him to answer their questions and to get out of the van. But Kyle sat there, disoriented and frustrated, holding onto the steering wheel. Reaching through the window, one of the officers tried to pry his hands off the steering wheel, but Kyle tightened his grip. This resistance—albeit nonviolent—infuriated the officers. One officer swung at Kyle with his baton in an attempt to get him to exit the vehicle. When that didn’t work, the other officer took out his service revolver and shot Kyle in the stomach.

Instead of getting help from the police in his time of need, Kyle got shot and nearly died. After a month in the hospital and a surgery to reconstruct his abdomen, Kyle recovered. He was left with a foot-long scar from sternum to navel that would forever serve as reminder of that terrible night.

A civil rights case

Law enforcement officers have what’s known as qualified immunity. It protects them from constantly being second-guessed or harshly judged for decisions they have to make in a split second. Because of this, it requires some extraordinary facts and delicate nuances for an officer to be held liable for using excessive force and thereby violating a citizen’s constitutional rights.

As we dug into this case, we uncovered some discrepancies with the police officers’ story which contributed to the department’s willingness to reach a settlement. The officers fabricated a story about Kyle resisting arrest after being sprayed with mace, to make it seem as though their excessive use of force was legitimate. No mace residue was found in the van, however. What’s more—Kyle had applied to be a police officer a few years prior and had his application denied because of his severe allergic reaction to mace.

The officers also claimed that Kyle attempted to attack them from inside his van with a flashlight. No flashlight was found in the investigation, and no marks were found on either officer.

Perhaps the most significant bit of information we learned was that the officers had received no training from the department on how to deal with people going through emotional or mental distress. They essentially had been trained to treat them like any other intoxicated or disobedient person.

Right before going to trial, the police department settled. In addition to the settlement, the case also helped lead to a change in Ohio law enforcement policy. Now, if officers believe a citizen is suffering from an emotional or mental condition, they are required to stand down and call Netcare, a Central Ohio organization that specifically helps people with special needs. And that’s a positive outcome for anyone who might find themselves in a similar position to Kyle’s in the future.

*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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Honor and Redemption for a Wounded Deputy Sheriff

Posted on Tue, Dec 8, 2015 @ 3:25 PM

Law-enforcement personnel are our line of protection against crime and misconduct. They’re tough, self-reliant, and trained to handle a variety of difficult situations. But when it comes to seeking justice in the legal system, police need representation just like the rest of us.

Transferring a dangerous prisoner

Katherine Thompson* was a dedicated deputy who had been working for the county sheriff’s department for several years. One day, she was instructed to pick up an inmate at a prison facility and transfer him to the county courthouse. It was supposed to be a routine procedure.

Katherine had been assigned to transfer Derek Randall,* a career criminal who had served a 10-year sentence for shooting a Cleveland-area police officer. After his release he drifted around Ohio committing various crimes, until his attempt to rob a convenience store backfired. In a combined effort by the store owner and angry citizens, Randall was detained long enough for the police to arrive and make an arrest.

During the attempted robbery, the convenience store owner fired a shot at Randall. The bullet just grazed Randall’s head and he was taken to a hospital to receive medical attention for the wound before being taken to jail. When doctors determined he was fit to be released, he was discharged in a wheelchair (which is common for anyone who has suffered a head injury).

It is standard procedure for prison personnel to ask a number of questions to assess the inmate’s psychological and physical health during the admittance process. When Randall was questioned about his wheelchair, he told them he’d been shot and was unable to walk. Randall was allowed to keep his wheelchair.

When the prison doctor examined Randall, he found no physical reason for him to need the wheelchair. He noted in Randall’s medical record that he suffered from “hysterical paralysis.” The doctor then made a serious mistake: He failed to apprise anyone—the guards or other medical staff—of Randall’s suspicious paralysis.

When Katherine arrived at the facility to pick up Randall, she too was unaware of his “paralysis.” She asked about his condition, but she was simply told that the doctor said he needed a wheelchair.

Under attack

Katherine drove Randall to the courthouse’s secure underground parking area, helped him out of the van (with his wheelchair), and accompanied him to the security door—following procedure every step of the way.

As they waited at the door, Randall suddenly sprang up out of the wheelchair and grabbed for Katherine’s gun. His need for the wheelchair had been an act all along.

Katherine wrestled with him to keep possession of her firearm and, in the process, managed to call for help on her radio. Randall overpowered Katherine and began pounding her head into the concrete.

Before Randall was able to wrest the firearm from her, Katherine released her gun’s ammunition clip. That act of composure saved her life. Later, video footage would show Randall standing over Katherine, aiming the gun at her head, and pulling the trigger—but because the clip was released, the gun jammed and did not fire.

Katherine lost consciousness, and Randall escaped with her gun and ammunition clip. As he searched for a way out of the parking garage, he encountered Berry Colston*, a young man who had just left the courthouse after paying a traffic ticket. Randall took Berry hostage at gunpoint and demanded that he drive them out of the courthouse.

Once outside, they heard a helicopter—the police were out in full force searching for Randall. As he monitored his own manhunt on the radio, Randall learned the police had a description of Berry’s pickup truck. He needed to change vehicles. After parking near a car Randall thought he could steal, he told Berry to crouch down so that he wouldn’t be able to see and identify the next getaway vehicle. Randall then shot Berry twice in the head.

In the end, police were able to track and arrest Randall—they eventually found him hiding in a tree. Charged with the assault of Katherine Thompson and murder of Berry Colston, Randall was convicted and sentenced to death.

Painful aftermath

Katherine suffered serious physical injuries from the assault, including broken bones in her face. But there were psychological wounds as well. In addition to the terror of having been physically assaulted and almost killed, Katherine felt deep remorse that her gun was the weapon used to kill Berry Colston. The sheriff’s department, embarrassed by the media’s attention, insinuated that the escape had occurred because Katherine hadn’t performed her job properly—which left her with feelings of anxiety and betrayal.

Burdened by the psychological toll of the incident and its aftermath, Katherine saw no alternative but to retire from law enforcement. In need of legal representation regarding workers’ compensation and medical bills, she contacted us.

What went wrong? Civil litigation attorneys unearth the facts

Other civil litigation attorneys may have shied away from this case. A deputy filing suit against the sheriff’s department could be seen by some as Katherine’s attempt to blame somebody else for Randall’s escape. We took the case, in spite of its potential difficulties, and when we dug in to the facts, it became clear that Katherine had not only performed her job admirably under the circumstances, but was being scapegoated for this tragedy.

What immediately stood out to us was the negligence of the doctor at the jail facility. He knew there was no physical reason for Randall to need a wheelchair, yet he failed to notify other medical and corrections staff. As a doctor working in a prison, this information should have been a serious cause for alarm.

The sheriff’s department was also to blame for its failure to follow its own procedure. First, it did not provide critical information about the prisoner to Katherine. She should have been made aware of Randall’s previous criminal record, including his time served for shooting a police officer. Second, sending Katherine alone to Randall’s transfer was a major breach of protocol.

This point was significant, as it related to a troubling problem we discovered in the sheriff’s department: It had the reputation of being a good old boys club that treated female deputy sheriffs unfairly. There were complaints, for example, of female deputies routinely being assigned tasks nobody else wanted to do. Assigning Katherine to do the transfer without a second officer put her in an awkward position: She could either follow her superior’s directions, even though they went against established procedure, or she could ask for the required second officer to assist her, in which case other officers would imply that she couldn’t handle the task on her own.

The sheriff’s department’s hostility toward women was further evidenced in the aftermath of the escape, when their spokespeople suggested that if a man had conducted the transfer instead of Katherine, none of this would ever have happened.

Given the surprising information we uncovered in discovery, we widened the lawsuit to include the sheriff’s department and the negligent prison doctor.

The justice Katherine deserves

The case went to trial and the jury sided with Katherine. She was awarded a significant sum, which helped her get back on her feet financially and start a new career outside of law enforcement.

The ability for Katherine to sit in front of a jury and explain her side of the story had a profound positive effect on her—even more so after the jury essentially said through its verdict, “We hear you, and we believe you.” That kind of vindication and acceptance is invaluable, especially considering the guilt Katherine had been struggling with over Berry’s death.

The verdict also offered a benefit to the community: As a consequence of Katherine’s lawsuit, procedural changes were enacted to ensure that necessary medical information will be provided by the prison to law enforcement personnel before prisoner transfers. Hopefully there will never again be an incident like this in our community.

The road to healing

Katherine, we are pleased to say, is doing much better now. After leaving law enforcement, she started a successful real estate business. We’ve been in contact with her since her career change, and she’s told us the work we did for her changed her life. Feedback like that is gratifying beyond measure. It’s what motivates us to do this kind of work.

People often assume that civil litigation attorneys are solely concerned with obtaining money for their clients, but, as can be seen in Katherine’s case, true justice involves much more than awards or settlements. Justice is about restoration and healing. It’s about helping people who have been knocked off their path by terrible, unanticipated circumstances, then helping them recover so they can continue on that path—or venture on a new one.

We often work with clients who suffer from debilitating feelings of guilt or isolation after an unexpected tragedy, even though they’ve done nothing wrong. We spend a lot of time talking with our clients, and letting them express how they feel. Combine that with the opportunity to tell their story to a jury and have their innocence reaffirmed, and you have a powerful recipe for healing.

 

*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 Wrongful Death Illustrates the Importance of Caring for Our Independent Seniors

Posted on Mon, Dec 7, 2015 @ 5:28 PM

Societies have long wrestled with how to best care for senior citizens, but we are truly headed into uncharted territory as the Baby Boomer generation gets old. The largest generation in American history will also be the longest-lived—and they’re approaching their retirement years. For many, this may entail finding living arrangements that will provide varying degrees of assistance.

That’s the big picture, but of course it comprises millions upon millions of individual human lives. And when you filter those personal stories—such as the wrongful death case of Dorothy Kramer*—through that larger statistical prism, one thing becomes clear: We, as a society, are going to need to make some changes.

An inexplicable, avoidable loss

Dorothy Kramer enjoyed living independently. Her housing solution was similar to that chosen by many of today’s seniors: an independent living facility, where she lived alone in her own room, and could come and go as she pleased.

One of the advantages of this facility was its emergency services. In addition to a cord in her bathroom that she could pull in case of an emergency, Dorothy was given an alarm to wear around her neck or wrist. If she were in an emergency medical situation, Dorothy could push a button and emergency medical services (EMS) would respond.

One morning, around 5:00 a.m., Dorothy pressed her emergency medical button. About fifteen minutes later, EMS personnel responded—to the wrong address. Dorothy’s alarm had been programmed incorrectly to the address across the hallway. When EMS arrived, they found that the resident across the hall didn’t need help, they deemed the call a false alarm, and left without helping Dorothy (or even knowing someone still needed help).

Later that afternoon, one of Dorothy’s daughters received a call from the facility. Dorothy wasn’t answering her door and the staff couldn’t get into her locked room. Finally, the director was able to let them in. There, they found Dorothy, who had died sitting in her chair, clutching her alarm.

Pointing fingers

Obviously, this was a terrible situation which never should have happened. To make matters worse, nobody was willing to take responsibility for the egregious mistake.

Both the independent living facility and the alarm company blamed each other for the procedural failure that led to Dorothy’s wrongful death. As part of our ongoing investigation, we’re obtaining information from the independent living facility, the alarm company, and others in order to put together a complete picture of just where the breakdown occurred.

Aftermath of a wrongful death

As might be imagined, Dorothy’s loved ones—her two daughters and her grandchildren—were in shock. How could such a tragedy occur in spite of the supposed safety measures that were in place?

Dorothy’s death caused a lot of pain for her family. Especially for her daughters—Dorothy had always been their rock, their anchor. One daughter has even had to seek medical treatment to deal with the depression that resulted from her mother’s death.

We’re determined to obtain the justice Dorothy’s family deserves. Healing from such an inexcusable loss is never a simple matter, so we’re also dedicated to providing the emotional support they need to weather these difficult times. Whether they need to talk about what they’re going through, or what Dorothy meant to them—we’re here to listen. If they simply need advice, we do our best to provide that as well.

Lessons for an aging population

Besides being frustrating and tragic, we think cases like these should serve as a wake-up call for those of us who are blessed enough to still have one or both parents in our lives.

The reality is we haven’t yet had to face the challenges involved with accommodating such a large group of aging seniors. With all of our advances in medicine, nutrition, and preventative health care, people are staying healthy and independent much longer. Many senior citizens own their own home and want to stay there as long as possible.

As Ohio wrongful death attorneys, we’ve seen numerous cases involving elderly victims, whether it involved medical malpractice, nursing home neglect, or other forms of harm, like conning a senior citizen out of her home.

We need to look out for our elderly loved ones and be vigilant on their behalf. In today’s specialized world, we’ve been conditioned to defer to the “experts,” but it’s important to remember that, when it comes to your parents, you’re likely the most informed. Ask hard, smart questions to ensure the people you’re sharing caregiving duties with are doing their jobs correctly. This holds true whether your parents are living at home, in an independent living facility, or in an assisted living community.

There’s another perspective to this as well: In the future, we will have a responsibility to our children and loved ones to allow them to care for us in our senior years. This could entail everything from recognizing and accepting when we’d be better off moving to an assisted living facility, to willingly giving up the keys to our car because we can no longer drive safely.

In terms of the nearer future, plan ahead. Make sure you have a will. Establish a health care power of attorney. Communicate with your loved ones what kind of living arrangement you want in your later years. These can be tough discussions, but avoiding them now can lead to much worse circumstances down the road.

We’re all caregivers

Growing old is one of those paradoxes of the human condition. Most of us don’t want to grow old, yet at the same time we usually want to live as long as possible—provided we’re cared for.

Dorothy Kramer’s daughters thought their mom was being well cared for, only to have their trust senselessly betrayed. Our primary goal at this point is to secure justice for her family and help them find a way to start healing. We’ll keep you updated on how they’re doing.

In the meantime, this story should serve as a reminder to us all to be watchful. We all have loved ones who are getting older, and some of us are getting older ourselves. While paid caregivers provide an admirable and invaluable service, they’re not infallible. We should all consider ourselves caregivers, and be diligent in that role. It’s our loved ones’ well-being on the line, after all—is there really too much we can do for them?

*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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Ohio Health Victimizes a Pedestrian Injured in a Car Accident

Posted on Mon, Nov 30, 2015 @ 9:02 PM

The car accident was bad enough, but what happened to the victim afterward was even worse. In this case, an Ohio hospital victimized its own patient. As Ohio personal injury attorneys, we were determined to make it right.

The pedestrian car accident

Freddie* was 30 years old, mentally disabled, and lived with his mother. Despite his limitations Freddie was a very productive young man. He had a job at a neighborhood restaurant and he went to work every day just like anyone else.

One day, Freddie was walking back to work after a break when a careless driver made a rolling right turn through the crosswalk Freddie was using, and hit him square on. It was a devastating accident. Freddie sustained a serious head injury, and his shoulder was hurt badly enough to require a replacement. Worse yet, Freddie lost his job because he was unable to work after the accident. In addition to his long and arduous recovery, the accident left Freddie with severe post-traumatic stress disorder. He didn’t want to leave his mother’s house, much less get in a car or cross the street—his life was totally transformed by the tragedy.

According to Ohio law, if a driver strikes a pedestrian who’s outside of a crosswalk, the driver can’t be held liable for the accident. That’s the position the driver and her insurance company took. We countered their position by hiring an accident reconstruction expert. Speed analysis measurement and eyewitness testimony were used to establish that Freddie was indeed in the crosswalk when he was struck by the driver’s car. By proving the driver’s negligence we were able to secure a settlement that would help Freddie on his road to recovery.

Establishing the driver’s liability was great news for Freddie, but it certainly wasn’t the last obstacle that he would have to overcome in regards to this accident.

Ohio Health preys on a vulnerable man

As a patient of Ohio Health, Freddie’s medical bills totaled over $110,000. If he’d had insurance, or if he’d been covered by Medicare or Medicaid, the insurer would have offered to pay a certain percentage of the bill, the hospital would have accepted it, and that would have been the end of the story. It’s a common practice in the healthcare business—hospitals bill one amount, but they take whatever the insurers are willing to pay. Because hospitals know they’ll only get a fraction of the amount billed, they have an incentive to inflate the bills.

Ohio non-profit hospitals have a state-required program called H-CAP, which is a charitable program that covers medical bills for those in our society who are uninsured or impoverished. The day after the accident, someone from Ohio Health’s billing office went to Freddie’s room with a form to determine if he was eligible for H-CAP. This person asked Freddy—who was badly injured, traumatized, and on pain medication—how much money he made. On the form, that person recorded that Freddie’s income was $18,000 a year, which made him ineligible for H-CAP.

But Freddie never made $18,000 a year in his life. Now maybe he said $8,000 and somebody wrote it down as $18,000. Or maybe he was on pain medication and didn’t say anything. (They never even tried to ask his mother, who was present and who certainly would have been able to provide that information.) Denying Freddie H-CAP assistance would be a big win for the hospital. H-CAP eligibility would eliminate his debt entirely, but if Freddie wasn’t eligible, the hospital would be in line for a big payday from the insurance company. So the hospital was financially motivated to keep Freddie from receiving H-CAP benefits, even though he was precisely the type of candidate the program was designed to benefit.

Freddie’s employer didn’t provide him with health insurance. So here’s a man with no private insurance and who, according to Ohio Health, is ineligible for H-CAP. It gets worse: Rather than trying to collect the amount that Ohio Health would have accepted if Freddie had been insured (something in the range of $40,000) Ohio Health demanded the whole $110,000. And it didn’t just try to collect, Ohio Health actually sued Freddie for everything—his medical bills, his therapy, for every last dime of the inflated bill.

Ohio Health’s financial greed led them to prey on an impoverished and mentally disabled young man in the midst of an incredible hardship, and it’s despicable.

Helping Freddie land on his feet

It was our goal to keep Freddie from having to pay the overinflated $110,000, which would have amounted to a significant portion of his settlement. He’d been through enough at that point and we believed his settlement should have been used to help him get back on his feet, not compensate the hospital at exorbitant rates. Fortunately, we were able to negotiate a much more realistic bill, and Freddie was able to retain the majority of his settlement.

Sometimes good people get taken advantage of, and we’re just glad to be able to our part in correcting these situations when we can. It hasn’t been easy for Freddie or his mother, who had to take a lot of time off of work to take care of him. Freddie has a lot to live for and we’re eager to see him recover physically, recover from his post traumatic stress disorder, and get back into the world.

*Names in this article have been changed to protect our client’s privacy. The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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The Background Check That Failed: Ohio Personal Injury Attorneys Prove Employer Negligence

Posted on Tue, Nov 17, 2015 @ 1:51 PM

The evidence was clear: Randall Smith* was a dangerous man. At the time of this case, he was in his 50s and had a criminal record that stretched back into his 20s—it was dotted with violent crimes in several states. He had most recently served a nine year sentence in an Ohio prison for kidnapping and robbery charges. The facts of that crime: After being fired from his job at a convenience store, he returned, and took his former coworkers hostage at knifepoint because he blamed them for his termination.

A few years later, Smith was working for a company when he made some sexually harassing comments to his coworker, Becky Diel*. Becky went to her supervisor and made a complaint about the incident. Smith was fired.

Unfortunately, that wasn’t the last Becky heard of Randall Smith. A couple weeks after his firing, Smith showed up at Becky’s home, forced his way in, tied her up, and sexually assaulted her. After the violent assault, he left her bound, injured, and alone. Thankfully, she was able to free herself and call 9-1-1.

Smith found himself back in prison, a place he will be for a very long time, because his record proves he’s a habitual violent offender. Becky, however, was left to suffer from the tragic event.

Ignored background check leads to personal injury

Becky came to us when she decided to seek out a personal injury attorney to help her recover from the assault. Her injuries were substantial. She had been both physically and sexually assaulted—two incredibly traumatizing events. We wanted to help Becky get justice for the wrongs that Smith had committed against her, and help her get back to a normal life. As you might imagine, Smith did not have any assets to pursue that might help his victim, so we needed a different approach.

We believed it was possible to prove negligence on the part of the employer, for hiring someone with such a violent history (especially toward former coworkers). Smith had disclosed directly on his employment application that he had committed a felony. Since the employer had hired him despite his felony, we wanted to know what their process was for using that information—but when asked, the employer didn’t have an answer.

We began by trying to uncover the employer’s policy for using background checks. As part of the application process, the employer required that the applicant “pass” a criminal background check—which would indicate that there were established standards for what would constitute passing and failing. But the further we investigated, the more we discovered that no one had an answer for what it meant to fail a background check. The human resources employees who signed off on background checks simply didn’t have firm guidelines to follow on how to evaluate different types of criminal history. We spoke with former managers who told us when they raised concerns about certain types of offenders working in specific job functions, the company informed them that the questions they could ask the applicant’s about their criminal history were limited.

In the state of Ohio, it’s possible to get a criminal history report from the investigation division of the state attorney general’s office.

In Smith’s case, his whole history was right there on the face of the report—but nobody at the company did anything to learn more about his offenses in Ohio, or any other state.

Proving employer negligence

The employer’s defense was twofold: First, it’s wrong to automatically disqualify felons from hiring. The employer argued that Randall Smith served nine years and paid his debt, and they were not automatically negligent just because they’d hired him.

The employer’s second defense—one that presented a bigger challenge for us—was that Smith was a former employee when the crime was committed, and the assault happened off the work site. Based on those facts, the company claimed there was no way they could have prevented the attack.

Our argument came down to this: It’s the duty of an employer to provide a safe workplace and a safe environment. But, exactly how far does that duty extend, and what does the employer have to do to satisfy it? We dug a little deeper into some legal principles that ask the simple question: Is the harm foreseeable? And ultimately, based on Smith’s extensive criminal background, we were able to prove that it was.

This case was particularly sensitive in that Becky did not want to be the center of attention. We did our best to be sensitive to her needs, and made sure that we completed as much work as possible without having to involve her. She had to give a deposition, but beyond that was involved only as much as she wanted to be. At the end of the case, after we had uncovered substantial evidence that we believed would prove employer negligence, Becky received a settlement and she was able to begin putting the assault behind her.

If feels good to be able to make a difference in people’s lives. In addition to helping Becky recover, we hope the outcome of this case will prevent similar crimes from happening in the future. Helping our clients become whole again after tragic events is the goal we aim to achieve with every case we take.

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

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

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Immigration Malpractice Threatens to Ruin American Ideals for Hard-Working Man

Posted on Tue, Nov 10, 2015 @ 1:31 PM

People around the world seek a new life in the United States, pursuing things we often take for granted, like gainful employment and access to competent legal representation. After both of those things were called into question following a man’s mishandled visa renewal, he sought the help of Cooper & Elliott.

Negligence threatens a man and his family

When Sandeep Chaudhry* came to us, he was desperate. An IT professional working legally in the U.S. on an H1B visa, he had reason to believe the lawyer he’d entrusted with his immigration matters had been negligent with his paperwork—leaving him and his family at risk of deportation.

H1B visas have an expiration date and must be renewed in order to maintain legal working status in the U.S. The lawyer who’d been hired by Sandeep’s employer specifically to help employees deal with immigration matters was taking a long time to produce documents verifying the extension. Sandeep diligently delivered whatever paperwork his lawyer requested, and the lawyer continually assured him that everything was in order.

After time went on without clear proof of the extension, Sandeep became suspicious. Even though his lawyer was telling him everything was ok, Sandeep wanted written proof. The lawyer still couldn’t come up with a document. Sandeep turned to his employer, requesting verification from HR.

In the HR files was a document denying Sandeep’s extension because his paperwork had been filed too late.

This was crushing news. Immigration law states that if you’ve been in the U.S. more than a year past your visa’s expiration date, you could face deportation and be barred from coming back to the U.S. for at least 10 years.

What’s more, his wife’s immigration status was linked to his. If he left, she and their two kids would have to leave too.

Sandeep knew he needed help. He first went to another attorney for assistance. His situation only worsened as that attorney sat on his case for almost six months, finally telling him there wasn’t much that could be done. Amazingly, given his previous experiences with lawyers, Sandeep came to us after receiving a referral.

We were determined to do better for him.

The consequences of immigration malpractice

As we began digging into Sandeep’s case, it became obvious that the immigration lawyer had committed malpractice on multiple fronts: He hadn’t filed paperwork correctly, he hadn’t filed it on time, and he hadn’t kept Sandeep, his client, informed of ongoing developments.

What was most devastating, was that he hadn’t told Sandeep that the extension had been denied, and had instead been telling him that everything was fine.

We prepared to sue the lawyer for legal malpractice. And since Sandeep’s employer had represented itself as the facilitator of his immigration matters and had knowledge of the visa denial (it had been in the firm’s files for two years) but failed to inform Sandeep, we sued the company as well.

Yet as obvious as the malpractice may have appeared, actually obtaining justice was tricky. For one thing, the immigration lawyer and the employer were pointing fingers at each other, claiming that the other was responsible for Sandeep’s predicament.

The immigration malpractice had produced a number of life-altering consequences that Sandeep and his family had to face. First, Sandeep and his wife couldn’t leave the U.S. for fear of not being allowed back in. There was an ever-present worry that their family could potentially be split apart, with Sandeep and his wife being deported to India while their children, who weren’t citizens of India, had to remain in the U.S.

If Sandeep was forced to move back to India, his job prospects would be severely limited, since his line of work required him to travel to the U.S. By the time Sandeep came to us, he and his wife (who both had master’s degrees) could not work because the botched visa extension left them in a state of questionable legal working status.

As a result of their unemployment, they were rapidly running out of money. At one point Sandeep was limiting himself to one meal a day to ensure his children had enough to eat. Even Sandeep’s health was suffering—as the case continued, we noticed he looked increasingly haggard and thin. The entire family was enduring a great deal of stress. Between the helplessness of dealing with the immigration problems and the anxiety that comes with unemployment and financial troubles, they all were suffering.

Immigration reinstatement vs. damages

Just what would constitute justice for Sandeep in this situation? Sandeep’s highest priority was ensuring that he could legally stay in the U.S.—but according to immigration law experts, that possibility wasn’t promising. At that point, we knew we had to proceed with a lawsuit.

As is often the case with people who tend to mess things up, the immigration lawyer was essentially “judgment proof”—he and his law firm had very little money to pursue for damages. At that point, we turned our attention to the company.

Besides, the company was equally responsible for Sandeep’s situation. Our investigation revealed damning internal emails within the company’s records indicating that it had known Sandeep’s paperwork had been mishandled, yet it never tried to fix the problems or tell Sandeep of the issue.

Delivering justice

Our avenue of pursuit now centered on seeking damages; we went the extra mile for Sandeep. Knowing that his trust had already been broken repeatedly—by two lawyers, as well as his former employer—we made sure to update him with the progress of his case multiple times each week.

When we sat down with the company’s lawyers to hammer out a settlement, we insisted that Sandeep be properly compensated for the negligence that had caused such upheaval for him, his family, and their future.

After a 12-hour mediation session, the company’s attorneys still hadn’t yielded the results Sandeep deserved, so we prepared to walk out. Fortunately, the mediator brought us back and said the defense was finally willing to make an offer worthy of consideration.  Sandeep ultimately accepted the settlement.

Mixed results, mixed feelings

The resolution of this case was bittersweet for us. On the one hand, the settlement would help end the privations and immediate money worries Sandeep and his family were experiencing. It would also take some pressure off him and his wife as they sought new employment. At the very least, they wouldn’t be forced to immediately leave the U.S. for financial reasons.

Unfortunately, civil litigation for money damages against the attorney and the company didn’t resolve his immigration proceedings. In that sense, we wish we could have helped more.

There was at least one glimmer of hope, though: Our immigration expert said that the resolution of the lawsuit might help the chances for Sandeep’s visa extension. As part of the settlement, we had insisted that the first immigration lawyer admit in writing that the faulty paperwork had been his mistake, and not Sandeep’s. Our hope is that Sandeep and his family will be able to live in the U.S., recover from their hardship, and thrive.

A true privilege

When people choose to become a lawyer, their reasons are often justice-related: a desire to do good in the world, make a positive change, or help people right wrongs.

The reality is, in practice they often wind up working on cases far removed from those ideals.

It’s not an understatement, then, to say that working on a case like Sandeep’s was an extreme privilege for us as attorneys. Here was this selfless, generous, genuinely good man—honestly, one of the nicest clients we’ve had the pleasure of working with—who toiled and sacrificed to come to the U.S. because he loved everything it represented, only to have the door shut in his face through no fault of his own.

By all accounts, Sandeep should have been bitter and disillusioned. Yet he remained positive, hopeful, and grateful. Like many of our clients, he’s a model for all of us, and we’re honored to have been able to help.

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

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

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20+20: A Look at How Advances in Video Technology Affect Trials

Posted on Wed, Nov 4, 2015 @ 7:59 PM

2020BadgeAs we continue to celebrate our firm’s 20 years of being in practice and forecast the next 20 years, we like to reflect on the changes we’ve seen in the legal system, and how those changes will impact the future. An area of change that we find quite interesting is the court system’s adaptation of new technology. One in particular, video communication technology, has been used in legal settings for years, but the onset of streaming media may forever change the way attorneys, juries, and witnesses interact in the courtroom.

Using video testimony: then and now

Advances in technology are changing the way witness testimony is gathered and heard by juries. Twenty years ago, if a witness couldn’t physically attend a trial, attorneys would have to travel to their location to capture a written transcript of their testimony. In court, someone would physically read the questions and answers back to the jury. The process lacked the value of an in-person question and answer discussion. If an out-of-state witness couldn’t or wouldn’t come to trial (in Ohio, the state court’s power to compel a witness to come to trial only extends to the boundaries of the state), this was the only way to capture their testimony. Overall, it was an artificial and boring process.

Somewhere in the course of our practice we began videotaping witness testimony. Initially, it was very expensive, and required clunky camcorders and specialized videographers. The testimony would be recorded, and the video tape would later be played back to the jury. It often felt like watching a very dull movie. If the video testimony was played after lunch, the jury would often become tired and lose focus, and sometimes even fall asleep. Sometimes the judge would even call a short recess to get the jurors to walk around and wake up. This method made it difficult to determine if the testimony was actually being heard and understood by the jury.

Live streaming: a welcome, and useful, alternative

Over the last few years, video technology has evolved, and now live streaming testimony is available in the courtroom. The onset of video conferencing with providers like Skype and FaceTime has become a great way to capture testimony in real time, especially if the person testifying is in another country or a great distance away.

Skype is a valuable legal tool because it’s the next best thing to actually looking the witness in the eye as they deliver their testimony. It allows for a kind of human interaction that is almost as compelling as testimony given live in the courtroom. Judges have to approve the video streaming process, of course, but many of them have embraced this technology as an alternative to traditional written or recorded testimony.

There are multiple benefits of being able to interact in real time via live video streaming; first of which is the ability to cross-examine the witness—allowing the jury a greater depth of perspective into the details of the case. Additionally, streaming allows the judge to make rulings on the spot about the validity of a question, or even caution a witness that is trying to dodge a question—two key factors that are lost with remote testimony.

From a juror’s standpoint, the younger generations will be accustomed to and have experience with this technology already, so this change won’t require much of an adjustment for them. Older jurors will likely welcome the change of pace and will no longer be nodding off like they did in the days of transcripts and recorded video testimony.

Practical concerns

Benefits aside, there is just no substitute for the live experience. When testimony is given live and in-person, we can pick up on minute shifts that signal whether the witness is being truthful. In person there are subtle body language hints and almost imperceptible clues that provide more insight into what a witness may actually be thinking. These subtleties can go undetected in video communication.

Also, there is still a question as to what might be happening off camera—it’s possible that someone else in the room may be influencing the witness and their testimony. There’s no real way to control the outside influences that might be happening in a location that isn’t a courtroom.

Another major concern is the aura of the courtroom experience and the effect it has on the witness—the pressure of sitting in the witness chair with jurors and the judge watching—will be lost. On the flip side, the witness and the quality of their testimony might benefit from a lack of anxiety generated by the traditional courtroom trial experience.

Live video streaming simply doesn’t remedy all of the complications brought on by long distance testimony. There are significant challenges concerning the display of exhibits. How do you display a piece of evidence or a chart so the remote witness and the in-person jury can see it at the same time? Another concern is that critical elements like size and distance are not easily communicated in video.

Overall, we think Skype is preferable to reading someone’s testimony transcript or putting a video on a disc and pressing play. If taken to the extreme though, with all parties participating remotely, the integrity of the trial process could potentially suffer. It would completely change the traditional court system as we know it.

Embracing advances with caution

There are some logistical challenges, but it’s likely that video conferencing will be used in the courtroom more and more frequently in the future. That said, we believe erring on the side of caution with any new technology is wise. Assuming the judge agrees to it, Skype could be incredibly useful when you have a remote witness who is vital to the case, but cannot travel. But we’d hate to see Skype overused in the courtroom, becoming a convenience and not a necessity. It will be very interesting to see how this technology continues to impact us in the future.

 

*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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Learning From the Loss of a Member of the Cooper & Elliott Family

Posted on Tue, Oct 27, 2015 @ 12:26 PM

Our blog contains many tales of the cases we handle. In every one, we give our perspective as the attorneys who handled the case. And in each one the names are changed so we can protect our clients from the painful reality of their experiences.

This time will be different.

My name is Rex Elliott. I am a founding attorney at Cooper & Elliott, and I’d like to tell you the story of the crash that began the series of events leading to my father’s death. Obviously, this is a painful time and a hard story to tell, but I feel there are important lessons that everyone can learn from our experience.

My dad was 78 years old, in good health, lived on his own in our childhood home, was self sufficient, drove his own car, went to meetings and worked part time in his insurance business.  One late Saturday afternoon in May, he was running errands when he turned left out of a gas station and a reckless driver smashed into the driver’s door of his car at a high rate of speed.

My dad’s injuries were severe and he broke every bone up the left side of his body; including all of his ribs, his hip, his leg in two places and four vertebrae.  He suffered from severely punctured lungs due to his broken ribs, a lacerated spleen and substantial internal bleeding. When I arrived at the hospital, there wasn’t a lot of optimism.

The accident report

Before he went into surgery that day, I asked my dad what happened. Through his pain, he said he looked both ways and waited for a car that was coming from one direction. There was nobody coming from the other direction, he thought, so he pulled out, and was T-boned by a car he never saw. That was the last chance I had to talk to him for a month, because after the surgery he was on a ventilator and in a coma.

I read the police report the following Monday. The officer had talked only to the other driver, who said that she was driving the speed limit (35 MPH), and my dad simply turned in front of her.

That didn’t match what my dad had said.

Over the next month, while we waited for him to wake up, the circumstances nagged at me. The officer hadn’t tried to speak to my dad (or to me), and hadn’t interviewed any eyewitnesses, even though the accident occurred on a busy corner at 4:30 p.m. on a Saturday. There must have been people who saw it happen. Instead, the police report simply concluded that the accident was my dad’s fault.

On the weekend of the auto accident, we had no information about the condition of the other driver—if she was hurt, whether she’d been taken to the hospital, nothing. On Monday, shortly after the police report came out, we learned she hadn’t been hospitalized or treated for anything—but she was claiming soft-tissue injuries, whiplash, and she had already retained an attorney based on the accident report alleging that the crash was my dad’s fault.

But I believed, based on my dad’s lucid description of the crash that he might not be at fault at all.  Thank God I followed my instincts.

Reconstructing the accident

To find out what really happened, we set out to reconstruct the crash, using surveillance videos from the gas station and from the business next door. We learned that the other driver had approached the intersection at a high rate of speed, passing cars on the left, and she didn’t even brake before she hit my dad’s car. We surmised that she had to have been distracted by something, or not even looking, when she crashed into him. After reviewing the video, the police department estimated her speed at 53 to 56 mph, well over the speed limit, and much faster than the 35 mph limit mentioned in the police report (the department has a lot of experience with this area since it has been ranked as the most dangerous intersection in Columbus).

The bottom line is that the crash happened precisely as my father said it had, as he was fighting for his life in the emergency room of Grant Hospital.  He waited for the eastbound car he could see and then made his turn, only to be hit by the westbound car he couldn’t see, because it came upon him out of nowhere, at an unsafe and extraordinarily reckless rate of speed.

The accident’s lessons

Although my dad’s auto accident happened relatively recently, we have already established liability on the part of the other driver. One big lesson that was reinforced for me as an attorney is a simple one: Listen to people. When my dad first started telling me about the accident in the emergency room, even I thought he might not have it entirely straight, given his age and the serious injuries he had suffered. But, I was wrong—his description of the events of that day was extremely accurate. When a client describes a situation, no matter how unlikely their version of events might seem, it’s our job to listen to them and take their statement at face value as we investigate what the facts will establish.

Another big lesson: Don’t automatically assume a police report is accurate. In my dad’s case, there were no eyewitness interviews and no attempt to look at video evidence. The report was grossly inaccurate. We don’t necessarily blame the officer—it was a busy intersection, and his focus was on clearing the scene. He didn’t know the full extent of my dad’s injuries either. But the fact remains that if we hadn’t believed what my dad said in the emergency room, the official record of what happened would have been flat-out wrong.

Sadly, a few months after the accident, my dad passed away. This doesn’t change the lessons that have been reinforced by the circumstances of the accident.  And it doesn’t change the way I, and all of our attorneys, approach each case—with a sincere sense of empathy.  What has changed is that I will no longer have to try to understand what is in the hearts and minds of our clients.  The simple fact is I now know exactly how it feels to lose a loved one due to the careless conduct of another.

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

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10,000 Ohioans Recoup Settlement Funds from Class Action Lawsuit Against Transunion Credit Bureau

Posted on Tue, Oct 20, 2015 @ 11:56 AM

There are three main credit agencies in the United States. One of them is TransUnion. Nearly every American adult has their credit information recorded and tracked by TransUnion. What happens when the agency you trust to protect your credit rating begins to share your confidential information with other companies—for a price? It’s not something we like to think would happen, but it did. And that’s just the tip of the iceberg.

Major credit-reporting agency breaks consumers’ trust

TransUnion is a big name many Americans may recognize. It is one of three huge credit-reporting agencies in the United States. If you’ve applied for a loan to buy a home or car, chances are your credit rating has been accessed via TransUnion.

When the news broke that TransUnion had violated the federal Fair Credit Reporting Act by selling lists of credit information of hard-working consumers nationwide to marketers, a class action lawsuit was filed. TransUnion’s behavior had potentially affected two hundred million Americans across the country. TransUnion settled the lawsuit, and agreed to offer free credit reporting for one year and other benefits. Because of the difficulty involved in notifying 200 million Americans about the opportunity to register online for settlement benefits, TransUnion also created a $75 million settlement fund that could be used to pay consumers who didn’t learn about the settlement and therefore didn’t register for settlement benefits in time. If a consumer learned about the settlement after the online registration period expired but within two years after the settlement, he or she could lodge a “post-settlement” claim against the $75 million fund.  Sounds fair, right?

Unfortunately, the class action settlement did not require TransUnion to give notice to every affected consumer. The consumers who were supposed to receive benefits, including money from the settlement fund, had virtually no way of knowing the benefits even existed.

Also, even if some consumers learned about the settlement within the two-year “post settlement period,” the terms of the class action settlement made it difficult for them to make a claim. Under the Fair Credit Reporting Act, each consumer’s claim against TransUnion would likely be limited to somewhere between $100 and $1000, and the class action settlement said that consumers could not join together and pursue their “post-settlement” claims. Where would an individual consumer be able to find a lawyer willing to take on their claim, when the claim would be worth at most $1000?

Clearly, it was time for us to get involved on behalf of Ohioans.

Recovering cash for 10,553 Ohioans

We knew we wanted to take this on, but it presented some serious challenges. The settlement language stated we couldn’t file a claim on behalf of more than one person at a time. We had to figure out a way to let people know they had a right to make a claim against the $75 million settlement fund, but we also had to be ready to represent each person individually against TransUnion.

This was in late 2009, and people were hurting from the recession that was in full swing. We knew we wanted to focus on a targeted population in Ohio, and after a great deal of thought, we decided to reach out to the unions in the northern part of the state. We let union leaders know about the TransUnion class action settlement, and when they asked if we would be willing to represent their members we agreed to work hand-in-hand with them to notify individual union members and their families of their potential claims. We hired programmers to build a database of information about our clients—specifically, 10,553 Ohioans that needed in the worst possible way any money we could obtain for them from the settlement fund.

Ohio business attorneys working hard for Ohio families

This case resulted in a tremendous amount of work—but it turned out to be unbelievably satisfying for us. Logistically, there was a lot to be organized. We reached out to tens of thousands of union members, and ended up representing 10,553 individual Ohioans who were suffering from the recession.

The case required numerous trips to Chicago where we went head to head with TransUnion’s attorneys. We prepared and submitted 10,553 separate claims, and we made clear to TransUnion that we were prepared to litigate each and every claim to the very end. We ended up in a stare down with TransUnion, and in the end, TransUnion blinked.

Putting the settlement fund to good use

In the end, TransUnion agreed to pay our clients $300 each. It doesn’t sound like much, but the extra money really meant a lot to them during that tough economic period.

Yes, it was a lot of work for our firm. But you know what? We still remember all the amazing cards, letters and calls we got from our clients, saying how grateful they were for the unexpected money. We still share these stories because it illustrates exactly why we do this work. We helped a population that was struggling, and then went toe-to-toe with one of the country’s largest credit reporting services—a company that was hiding from its responsibility.

But even more satisfying than TransUnion crying, “Uncle,” were those cards, letters and phone calls from Ohioans who were so grateful for extra cash they wouldn’t have even known they were entitled to.

That’s why we do this work.

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

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

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Civil Litigation Wins a Sign Company Showdown

Posted on Tue, Oct 13, 2015 @ 12:57 PM

It was a deal a couple of years in the making, and nobody dreamed it would end up in civil litigation.

BriteTech Sign Company* developed a new type of LED signage that was an improvement on the message boards you see in lots of places nowadays. But having the signs only got them so far. While they had the hardware, they did not have the business relationships to commercially sell the hardware or develop software to run the signs.

Enter our client Universal*, which had been cultivating a relationship with a major national restaurant chain for two years. Universal brokered a lucrative deal to install BriteTech’s new signs in the chain’s restaurants and coordinate software that would run the signs. Under the terms of the deal, Universal would pay a royalty to BriteTech, and BriteTech would do the installations at the restaurants. Universal would stay in place to manage the relationship and the service contract.

That’s what was supposed to happen, anyway.

When some problems cropped up during testing, BriteTech claimed—falsely—that the problems were Universal’s responsibility. The restaurant chain backed out of the deal and BriteTech went on to capture a far bigger payday by contracting to do all the work themselves, cutting out Universal entirely.

More than Just Numbers

The blow to Universal’s business was severe. The company was forced to lay off software engineers and other employees who would have done the work that Universal was cheated out of doing. Universal needed civil litigation lawyers, so they contacted us.

People sometimes have misconceptions about business deals that go bad. They think deals like these involve only numbers on a balance sheet. But there’s a very human side, too. It’s never easy to look your employees in the eye and lay them off. And when your long-established business teeters on the brink, it can feel like watching a loved one fight for their life. When Universal called us, it was clear that this case was personal to them. Thus, it became personal to us.

Breaking Down the Details

The core facts of the case were simple: Universal had a written contract with BriteTech to service the signs in the restaurant chain’s stores. In fact, BriteTech never would have had the deal with the chain in the first place were it not for Universal’s contacts within the restaurant industry.

For their part, BriteTech claimed that the breakup of the deal with the chain wasn’t their fault. The chain made the call, they said, and there was nothing they could do about it.

We went to the restaurant chain’s headquarters and deposed a company representative. It was a bit of a risky move: we didn’t know what he would say, so we had to be well-prepared and flexible enough to take our questioning in a number of possible directions.

When we confronted him with information that the problems in the testing were BriteTech’s fault, not Universal’s, he was quite surprised. We knew then that the restaurant chain truly didn’t know about the game BriteTech was playing. That deposition was critically important to our case and led to Universal receiving a multi-million dollar judgment.

Not the Wild West Anymore

Some people will tell you that what BriteTech did was just business. To succeed in business, they’ll say, you have to fight hard, and sometimes a bit dirty.

But the truth is this: if what BriteTech did was right, then we were headed back to the Wild West, where the whims of individuals were more important than the law. We don’t believe that’s true. Fortunately for Universal, the jury didn’t either.

After the litigation, Universal was able to build up its business, hire more employees, and support its growing community and industry. We’re glad to have played a part in helping right this wrong—and in keeping business law from returning to the wild frontier.

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

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

 

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