Cooper & Elliott Blog

Instinct: The Secret Weapon of Successful Ohio Accident Attorneys

Posted on Fri, Aug 14, 2015 @ 2:39 AM

When your livelihood involves seeking justice for living, breathing people, you tend to dig a little deeper into a case, even when the facts seem bleak. You listen to your instincts. You follow up on hunches you might otherwise ignore. And you realize it can completely change the outcome of a case.

A troubled family, a fatal accident

When Diane Baker* came to our office seeking an Ohio auto accident attorney, we had our doubts. Not about Diane — we really liked her, and we could tell she and her family needed help — but about the case itself. It was a case many law firms probably wouldn’t take.

It stemmed from the death of her ex-husband, Jordan*, who had been struck by a car while riding his bike one morning.

A little background: Jordan had had a drinking problem. About a year before the car accident, his drinking had caused him to lose his high-level supervisor job. It had also resulted in the end of his marriage, and in his moving out of his family’s home. Those had been tough times, both for Jordan and for his family.

But Jordan wanted a better life, especially for his two kids. He wanted to contribute to the family again. So he went to rehab, got a new job, and began turning his life back around. The family was on the mend. They had all gone through a pretty rough divorce, but now the kids were starting to rekindle relations with their father.

One night, however, Jordan apparently had a relapse with his drinking. Part of his normal exercise routine had been to ride his bike around 5:00 a.m., and that morning he tried go bike-riding like he normally did, perhaps to work off the alcohol.

He traveled in a bike lane, but it was in an area with hills and curves. He was struck from behind by a car going 55 miles per hour. He survived for a couple of hours, but ultimately died.

Overcoming difficulties: Strategies of an Ohio auto accident attorney

This looked to be a tough case. Jordan had been intoxicated, and his bike didn’t have any reflectors. Defense counsel was claiming Jordan’s clothing had been too dark to wear on a pitch-black morning.

But we had a hunch. We hired an accident reconstruction expert to recreate the exact conditions leading up to the car accident and Jordan’s death. The expert, along with one of our attorneys, went out to the site at 5:00 a.m. To determine where the car had been, where the bicycle had been, what the contour of the land was, how much daylight there had been precisely at the moment of impact, and what the lighting conditions had been like.

Here again, we chose a path other law firms might not have taken. Hiring an accident reconstruction expert is an expensive proposition, especially given some of the other challenges surrounding the case.

But our gut told us this would be the best direction, and we were right. After reconstructing and recreating the tragic scene, the expert came to a powerful conclusion: The conditions would have allowed the driver to see Jordan. Driver negligence had in fact been responsible for the accident that killed him.

Interestingly, there was something else that we did that bolstered our case. Because one of our attorneys had been to the site that morning and actually witnessed the expert’s evaluation firsthand (something many attorneys probably wouldn’t do), he was able to authoritatively counter any criticisms mediators brought up about the expert’s report.

Based upon that report, and our vigorous defense of it, the defendants ultimately settled with Diane and her family.

A settlement and its intangibles

The settlement was a big deal to Diane’s family, but not necessarily for obvious reasons. Yes, Diane could now pay for her kids’ school activities and whatever else it took to provide them with as normal a life as could be hoped for after this tragedy. And a trust created from the settlement ensured that the kids would have assistance when they were ready for college.

But there were potent human intangibles also at work. First, think of Jordan. Here was somebody who’d made some mistakes, who’d let his family down, and who’d been working hard to earn back their trust and create a better life for all of them.

True, he stumbled, but that didn’t excuse the driver negligence that ended his life. Establishing the driver’s fault helped defend Jordan’s memory in his family’s eyes. We’d like to believe that winning the settlement helped him in a small way provide for his family, which was something he’d hoped to do as he was putting his life back together.

Then there were the children. These kids would never have time with their dad again. We wanted their last impressions of their father to be as positive as possible. The last thing they needed was for a prolonged trial, with the defense harshly characterizing their father and his alcoholism. So there was a sense of satisfaction, as well as relief, that we could end with settlement.

Trusting instincts and digging deep

Good instincts and the willingness to follow through on hunches — it’s a big advantage for us as attorneys.

It drove us to hire an expensive accident reconstruction expert, in spite of obvious challenges to the case, and accompany that expert during 5:00 a.m. tests. It led to proving that Jordan’s death was caused by driver negligence, not Jordan himself.

But those sorts of successes pale in comparison to the real value of being aware of your feelings: understanding your clients. Being able to walk in their shoes. Trying to feel what they feel, so you can provide them with what they need during a crisis in their life, whether it’s justice, validation, moral support, compensation, or something else.

That sort of awareness guided us to take on Diane’s case so we could help her and her family. And it motivated us to do everything we could to get a settlement, both to honor Jordan’s wishes of becoming a positive influence for his family again, and to protect his children’s memories of their father.

It’s probably not something people consider much when they’re thinking about attorneys, but it works for us. And it definitely works for our clients.

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

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

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Finding Peace and Closure in the Aftermath of Nursing Home Neglect

Posted on Wed, Aug 5, 2015 @ 8:05 PM

It’s when we’re sick or injured that we can be most vulnerable to negligence — and also when negligence can do the most harm. This became starkly clear when we took a case involving possible nursing home neglect. No one wants to be in a situation of vulnerability, let alone one that requires an attorney; but in some cases an attorney is necessary to achieve justice and regain autonomy.

A vibrant, beloved woman

Margaret* and Tom Baker* were a retired Ohio couple who had adopted and were actively raising two grandsons after the death of their son years earlier. They were active, vital, and very much a part of their grandchildren’s lives. The Bakers took their grandchildren to school and church, helping them study and participate in after-school activities.  Everything the kids needed to grow up happy and healthy, the Bakers provided.

Then trouble struck: Margaret, 71, fell and broke her hip. After her initial treatment at a hospital, she was sent to a nursing home for rehabilitation before returning home to Tom and their grandkids.

At some point, complications ensued. She was readmitted to the hospital and, again, discharged to the nursing home. This time, after only a few hours at the nursing home, Margaret tried to stand up, and in the course of attempting to walk, slipped and severely injured her head. The next day, Margaret died.

Assessing a challenging case

As sad as Margaret’s case was, it wasn’t immediately clear we could help.

For one thing, when Margaret was readmitted, she hadn’t been there long enough to be tested and assessed as a “fall risk” (a term used to describe residents who could injure themselves by falling if they tried to walk alone; this designation activates special measures designed to keep them safe). Without this assessment, it would be difficult to establish the nursing home’s liability.

Moreover, nobody had actually seen Margaret fall. She was found by a therapist, and the medical records gave no indication of how long she’d been injured before being found, whether anybody had seen her, or if any other staff had been walking by the room.

Strategically establishing nursing home neglect

It is our responsibility to strategically establish liability, and doing so requires creativity and diligence.

By digging into Margaret’s full medical records, we were able to establish that she had in fact been assessed as a high fall risk during her initial admission. From the first admission, the nursing home staff also knew that Margaret had gotten confused and tried to get up and walk out of the premises.

We worked with an expert who was an authority on nursing home issues in order to identify what steps a nursing home can and should take to prevent falls like Margaret’s. In particular, the expert helped determine what sorts of steps a nursing home should take when it’s already familiar with a patient, and how that should change the readmission process. In light of the information the nursing home already had from Margaret’s first admission, the expert was able to point to a number of shortcomings in how the nursing home handled her readmission.

We walked through the nursing home to see how it was laid out and how somebody could possibly walk around or fall without being seen by the nursing staff. We were able to determine that although Margaret was a high fall risk and the nursing home knew she was prone to get out of bed on her own, she had not been placed in a room where staff could monitor her, nor was a staff person assigned to keep an eye on her at all times.

Once we dug up these issues and brought them out in discovery, the nursing home knew they had problems. They ultimately settled with Margaret’s family.

A settlement helps a family

Settling the case brought about a number of positive outcomes. First and foremost, justice was served. There was an implicit acknowledgment that the nursing home knew it had been negligent and that it was attempting to make amends. Ideally, too, the nursing home would learn from this experience and improve the care and oversight of its other residents.

The settlement also represented a sense of closure for the family, of learning who was responsible and holding them accountable on Margaret’s behalf. We noticed that the family seemed to be doing better emotionally when the case had finally been resolved and some closure had been attained.

And, of course, the settlement would help provide for the family. The children, who were in middle and high school at the time, would have financial help for college a few years down the line. Sadly though, what Tom and Margaret’s grandchildren most needed — the care and concern of a beloved, active maternal figure during their formative years — had been taken from them, and nothing could replace that.

Placing responsibility where it belongs

There was another good thing that resulted from the settlement, something that really resonated with us emotionally: throughout the case, we were profoundly struck by Tom’s selflessness. Grief-stricken as he was by the loss of his wife, it seemed as if he was even more concerned about his grandchildren’s loss. He felt some degree of blame for what had happened, and it was heartbreaking to see.

He had been with Margaret when she was readmitted to the nursing home, but he’d needed to leave to pick up their grandkids after school. He had told the nurses he was leaving, yet he kept blaming himself for not doing more: if only he had not left; if only he had insisted that somebody stay with Margaret so she wouldn’t be left alone.

By establishing the real cause of this tragedy — nursing home neglect — we gave Tom the means to stop blaming himself and finally gain some relief from that terrible burden of responsibility he’d felt.

Providing closure and achieving justice

Blame, guilt, responsibility, closure, justice — these are all real things. They matter to our clients, so they matter to us. Walking in their shoes and trying to understand their emotional needs is a big part of what we do here.

What would have happened if we’d decided it was too difficult to take on? Or if we’d taken the case but not pursued the facts sufficiently to establish negligence? Those are ugly what-ifs. Fortunately, we’ll never have to know the answers to them. Instead, we got to see a family achieve some sense of closure, and a selfless man find peace again.

 

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

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

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A Promising Career Cut Short by Gender Discrimination

Posted on Tue, Jul 28, 2015 @ 9:16 PM

Dr. Cathy Barker* had worked her entire life so that she could help people. After significant training in the field of stem cell medicine, Cathy’s dreams came true when she began working as a stem cell researcher and stem cell transplant surgeon at a prominent university. Her husband, also a physician, was employed at the university, and together they were happily raising their young family.

Everything with Cathy’s career was going well. Her work was meaningful, she enjoyed her position at the university, and she, her husband, and her children were thriving. Cathy learned she was being paid less than the male physicians in her department. She said something to her boss about what she thought was discrimination on the basis of her gender. But the university didn’t respond by fixing the pay disparity. Instead, it punished Cathy for bringing this to its attention, cutting her funding so that she would lose her laboratory.

Retaliation for speaking up

The retaliation didn’t stop there. Additional moves were made to undermine Cathy, ultimately forcing her out of the department, and eventually the university. To add insult to injury, Cathy’s husband also lost his job due to the fallout from his wife’s justifiable discrimination complaints.

Losing her job, and being responsible for her husband losing his, was emotionally and financially devastating to Cathy and her entire family.

As the couple tried to get their careers back on track and find work to support their family, Cathy’s husband took a job that required a 2-hour commute each way. Cathy wasn’t even that fortunate. Though she was a brilliant physician at the top of her field, her area of expertise was so specialized that the university was the only place in the area that offered stem cell work. Finding comparable employment at another university would mean moving to another state altogether, uprooting their children from their school and the lives of their family.

David vs. Goliath

As one person battling a big institution, Cathy felt like David fighting Goliath—an underdog seemingly outmatched. She filed a complaint with the Equal Employment Opportunity Commission, but as her case dragged on in the EEOC system, she became concerned about losing the chance to sue in Federal court because of the statute of limitations. The window of opportunity for Cathy and her family to get justice for the university’s wrongdoing was quickly closing.

When Cathy contacted us about her situation, we were as frustrated and shocked as she was at the way she had been treated, and we knew that time was critical.

First, to resolve the statute of limitations issues, we expedited matters by taking her case to State court. We also obtained key documents, put the responsible people under oath, and took depositions of high-level physicians at the university, uncovering and gathering evidence to show that Cathy had, indeed, been treated unfairly.

The case was finally settled just short of going to trial. While there was no way Cathy could have been made whole by simply reinstating her to her old position at the university (the working environment would have been downright unbearable), the settlement did allow Cathy to be able to take care of her family financially, making sure that her kids could stay in their home, get through school, and go off to college.

Too much to lose

Too often in employment cases such as this, the victims feel they should stop complaining and just get another job. But the reality is that losing your career—a career that you invested a lifetime to build—can be devastating. It’s no easy feat to bounce back from such a traumatic event unscathed, especially when it affects the entire family.

Dr. Cathy Barker, her husband, and their children are doing well today, despite the rocky course they were forced to take through no fault of their own. Thankfully, Cathy and her family have been able to put this injustice behind them. Her husband is enjoying a productive career of his own, her kids are growing into remarkable adults, and Cathy is back in a position where her training and talents are helping all of us live better lives.

 

*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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Columbus Lawyers Restoring Hope for a Happy Retirement

Posted on Tue, Jul 21, 2015 @ 3:07 PM

Imagine this happening to you: After scrimping and saving for years to ensure a secure retirement, you discover your entire nest egg has completely disappeared at the hands of swindlers. Now take it a step further. Imagine discovering that because of the large amount of time it would take for Columbus lawyers to pursue a claim, you can’t even afford legal action to try to recoup your life savings.

Sounds like a nightmare, doesn’t it? Yet these were real events faced by some Ohioans unlucky enough to trust their retirement funds to two crooks masquerading as investment advisors. Fortunately, through a combination of creativity and the willingness to chase down answers to tough questions, we were able to obtain not only justice for these victims, but something equally important—a secure future.

Their life savings gone

It all started when two Columbus, Ohio, financial planners working in association with a large, reputable brokerage firm persuaded these investors to spend their money buying a little known insurance-based investment known as a viatical. Little did the investors know that the promissory notes they were issued were worthless, because the financial planners were actually embezzling the investment money.

Eventually, the theft was discovered and the financial planners apprehended. The ringleader went to prison; the other lost his investment planning license. But the investors they bilked—the actual victims of their crime—were left high and dry. And because the financial planners had already spent the money and were in collections, they were essentially judgment-proof for such a high liability.  On the surface, there appeared to be no way for the victims to obtain recompense.

Columbus lawyers who can help

When a few of the investors initially asked for our help, we realized it would take an extraordinary amount of time and effort to properly handle their case, perhaps prohibitively in terms of the fees we would need to charge. So we got creative and advised them of another option. If they could get as many of the victims in on the case as possible, we could pursue their case as a mass group, which would allow them to divide the cost.

In addition to maximizing their potential recovery, this would also let us help other victims who’d given up pursuing reimbursement, either because they felt they couldn’t afford it or because they saw no way of securing a meaningful claim against the broke financial planners.

We weren’t able to solicit and contact the other victims directly, but those initial investors got the word out. When we finally offered an evening for them all to come down and hear about our strategy for helping them, virtually everyone there—about two dozen people—signed up as clients. As the case proceeded, we set up regular biweekly group conference calls so our clients could keep updated on everything that was going on.

Digging to find the responsible party

While representing more victims allowed all parties to pursue their case affordably, the primary challenge remained: finding a means of recovery for these people. If the primary defendants couldn’t compensate them, who could? Was there anyone else responsible?

This is where we started digging deep and asking tough questions. And it was the answers to those questions that revealed another responsible party: the brokerage firm the financial planners worked with.

First, we asked, “How were the planners able to get away with what they did?” The answer was that they worked with the reputable brokerage firm. Our clients had believed that’s who the planners were acting through.

That led to other questions. “Why weren’t they being watched more closely?” and “Did the brokerage firm have any legal responsibility for this?”

More digging and research revealed the answers. Yes, the brokerage firm did share in the responsibility. Our clients had believed the firm supported the financial advisors. Even though the advisors weren’t true employees of the firm, the advisors advertised that they were affiliated with the firm, and the firm allowed that. And the advisors made the brokerage firm a lot of money over the years. Because of all this, a legal doctrine called apparent authority meant that the firm was responsible for the acts of those two advisors.

In the end, by asking the right questions and pursuing where the answers led, we were able to settle the case and recover the vast majority of the money our clients had lost.

Regular people get their futures back

The settlement was a big deal for our clients. After all, these victims weren’t wealthy investors who knowingly took on risky investments. These were ordinary people. They were business owners and folks working for the state of Ohio. They were people who had worked hard over the years to secure their financial futures. And they were people who had unwittingly invested their entire life savings in the financial planners’ scheme.

Can you imagine the trauma of losing all that you had saved after 30 or 40 years of hard work? Of having to cancel your retirement dreams of traveling or spending more time with your family? Or being unable to send your kids to college? Not to mention the stress of suddenly not knowing how you’re going to take care of yourself in your senior years? That’s what these people had to overcome, and the settlement helped them do it.

Making a difference, now and in the future

As Columbus lawyers, we really saw the power of what we accomplished for our clients when some of them were literally in tears as they came to our office to pick up their check. They’d been facing the prospect of retiring without their life savings, and now those funds had largely been restored.

Needless to say, it was incredibly fulfilling knowing we could make such a profound difference in these people’s lives. Even more so knowing that by pursuing the claim as a mass group, we were able to recover 80 to 90 percent of what they had lost.

It’s an interesting profession we’re in—helping victims find justice, providing support, helping them get their lives moving forward again, and then visiting with them and their families afterward as they overcome their adversities and learn to thrive once more.

Could there possibly be a better occupation in the world?

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: Tort Reform and the Decline of the Jury System

Posted on Tue, Jun 30, 2015 @ 3:15 PM

We’ve been reflecting on our firm’s twenty years in the legal profession and anticipating the next twenty. This article looks at changes to the jury system, and how a process supposedly meant to protect litigants could actually be creating an unsafe society.

The jury system under attack

The idea that an injured person should receive fair compensation goes back to the Latin phrase “restitutio in integrum,” which means restoration to the original condition. In civil litigation, the goal is to restore an injured party to his or her original state, to compensate for what was lost.

For hundreds of years, our society has resolved legal disputes in a unique way: We use juries of regular citizens. In the hundreds of cases Cooper & Elliott has handled, we’ve found that juries are an effective means to a fair and impartial verdict.

In the past two decades, however, we’ve seen our jury system come under attack. Media reports, big business lobbying, insurance industry propaganda—all have painted a picture that today’s juries simply do not have the wherewithal to get it right.

“Tort reform” is one branch of this attack, and it’s become a big problem.

Tort reform and its impact

A tort is a wrongful act (aside from a breach of contract or trust) that harms a person, her property, or her reputation, and entitles the injured person to compensation. A car crash caused by negligence, a wrongful death, medical malpractice, and fraud are all examples of torts.

The ability to sue a person or business for injuries they’ve caused is a hallmark of our justice system. But holding insurance companies and corporations accountable costs them money, so they have sought to limit two things: the ability of plaintiffs to file civil cases, and the amount of compensation juries can determine when rendering a verdict in a civil case.

Insurance and corporate interests have labeled this process “tort reform,” and it has become a hot-button political issue in this country.

Big businesses are fed up with having to compensate the victims of their negligence. Insurance companies are also losing court cases, sometimes for tens or hundreds of millions of dollars. They paint a picture with broad strokes to give the false impression that juries are handing out huge paydays to plaintiffs for frivolous lawsuits.

Our decades of litigation experience tells us that nothing could be farther from the truth. And this type of thinking is causing a greater problem, inflicting major damage on our jury system.

Creating a cycle

One benefit of tort litigation is to ensure that companies put the safety of individuals above all else. By limiting the ability to bring litigation or by capping damages, legislators effectively tell big businesses that safety does not have to be a primary concern, because they either won’t have to worry about a trial, or they’ll only ever have to pay up a ceiling of damages—just another cost of doing business.

With businesses insulated from judgment and jurors handcuffed from rendering a fair verdict, the injured parties suffer even more. It’s become increasingly difficult for victims of wrongful injury or the families in a wrongful death case to get back to the life they knew.

The end result of all of this? A society of businesses that are less concerned about safety. Less concern about safety leads then to more accidents and injuries. More injuries lead to more court cases. More court cases lead to a greater perception of frivolous lawsuits and the demand for increased tort reform. It’s a vicious legal cycle, but it’s one we hope will be broken in the future.

Our role in the future of litigation

Informing the public, educating individuals, and empowering potential jurors is part of our mission as we move into the next 20 years. Our hope is that once people realize that the steady decline we’re seeing in the jury system can be stemmed through knowledge of the facts, we’ll see a return of the ideals and principles upon which the jury system is based. Principles that encourage safety and help injured parties return to their lives.

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

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A Father-Son Reconciliation Cut Short by a Wrongful Death

Posted on Tue, Jun 23, 2015 @ 12:36 PM

Bob McCarthy* had faced his fair share of challenges. His first marriage had failed, he was estranged from his teenaged son, and he had been hurt at his construction job in Ohio. But Bob was finally rebuilding his life. He was weeks away from marrying again, he was finally healthy and ready to restart work, and he was repairing his relationship with his son. His life was getting back on track when tragedy struck one autumn afternoon.

Bob was driving home on his motorcycle and he had the right of way when a semi-truck driver ran through a stop sign. Bob hit his brakes hard and, realizing he was not going to be able to avoid a collision, tried to protect himself by putting the bike down on its side. In his attempt to avoid the oncoming semi, Bob was tossed from the bike and he rolled toward the approaching truck.

Making matters worse

Shockingly, the truck driver, who was hoping to evade blame for the accident, decided to flee. As he pulled his huge truck away from the motorcycle to head for clear road, he felt a thump, as if he were going over a speed bump. That speed bump was Bob’s chest and head. Realizing what he had done, the trucker panicked, sped off, and left Bob’s lifeless body lying there in the roadway.

A motorist in a nearby car witnessed the incident. She followed the truck back to the company yard and confronted the driver, who denied everything, hopped back into his truck, and took off again. At this point, the motorist informed the police of the accident and provided part of the truck driver’s license plate number. Soon after, the police caught the trucker, and though he initially denied the charges, he eventually confessed to the crime.

Not so obvious

One would think the verdict in a wrongful death case like this would be obvious, but things became complicated. Unbelievably, the trucking company tried to shirk their own responsibility in the accident by blaming Bob, the victim. You see, the autopsy report revealed small traces of alcohol and cocaine in Bob’s blood system. They argued that he was impaired and that had he been stone cold sober, he would have been able to avoid the accident and would still be alive today.

It wasn’t right that Bob was being blamed for his own death. That’s when we knew we had to get involved.

As wrongful death attorneys, we have to examine all the facts of the case—the good and the bad. The autopsy report wasn’t good, but it didn’t paint the complete picture. From the toxicology evidence, we determined that Bob had consumed one beer about two hours before he got on the motorcycle and the cocaine in his system was ingested the night before. Based on that timeline, he would not have been impaired during the accident. The fact that Bob reacted in a quick and logical manner also helped prove this. We also presented testimony that Bob was one of the most skilled and careful motorcyclists around, that he was wearing a helmet, and that he was going the speed limit.

Bad driving record

At the same time, we uncovered that this was not the truck driver’s first accident. We argued that the company had hastily hired him and failed to check his references thoroughly. If they had, they would have learned he was fired previously due to three preventable accidents he was involved in over a very brief period of time.

Although the company that hired the trucker did run his name through an online system that vets the motor vehicle record of commercial drivers, they ignored the advice from their insurance representatives who said the driver was a poor risk and shouldn’t be employed. We argued that the company and their insurance carrier were liable for the accident since they did not do an adequate job of screening their employee, whose conduct and actions were their responsibility.

Family matters

We also spent many hours talking to Bob’s family, friends, and coworkers to gain perspective and offer the jury a complete profile of his character. While Bob had made mistakes in the past, he was making efforts to turn his life around. In many ways, the fact that he was in the process of rekindling his relationship with his son and marrying again made the accident even more tragic.

Ultimately, the jury chose to provide Bob’s estate with monetary compensation. Because Bob’s son was a minor at the time of the accident, we made sure the money was put into a trust so that his son would eventually be able to attend college, purchase a home, and raise a family of his own—all those things that a loving father, like Bob, would have helped provide for his son had his life not ended so tragically.

While a monetary settlement can never make up for the loss of a parent, it can serve as part of their legacy, ensuring that a child left behind can go on to lead a happy and productive life.

*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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Four Settlements in Ohio Wrongful Death Case Could Save Lives

Posted on Tue, Jun 9, 2015 @ 8:01 PM

It’s hard to imagine anything worse happening to a family. Losing a parent and a pillar of the community is horrible. There’s no easy thing about it. And when the driver at fault is barely insured, the additional financial burdens facing the family make it even harder for them to heal and move forward.

Our goals as Ohio wrongful death attorneys are to help ease those burdens and help families begin to heal.

David Morton* was a pastor with a wife, two children, and a congregation that loved him. He had deep roots in the community and a strong faith in God. He was a great father, not only to his own children, but also to kids in the community through his mentoring efforts. Through his pastoring, he touched a lot of people in the area he lived in. He even ran an auto body shop on the side. David was the epitome of a good person: gregarious, warm, giving, and always concerned about those around him.

Early one morning, David’s car was rear-ended on the highway. Both drivers pulled to the side of the road. David got out of his car, called his wife to let her know what happened, and then called 911.

While David spoke to the dispatcher, the other driver, a 19-year-old who had spent the night drinking, decided to flee the scene. He pulled out quickly, swerved around David’s car, and, in doing so, struck David. David got caught under the fleeing car, and his body was dragged down the highway before it came loose. By then, David was dead.

A lack of insurance magnifies a tragic loss

As is often the case with irresponsible, young drivers, the person who killed David had minimal insurance coverage. The state minimum, $25,000, comes nowhere close to taking care of a family who loses a breadwinner. Even the uninsured/underinsured motorist coverage that David carried was oriented more towards the costs of replacing or repairing a vehicle, and was of little value in helping the family focus on healing from this tragic loss.

Nevertheless, an agreement with David’s insurance company was just the first settlement we reached on behalf of the Mortons. We knew we had to look deeper to find all the responsible parties and hold them accountable for their actions.

When negligent entrustment leads to wrongful death

Though the drunk driver had little insurance, he did have a long list of traffic offenses, alcohol citations, and criminal arrests. More importantly, he was driving a car that belonged to his father.

In Ohio, there’s a legal claim called negligent entrustment. If the owner of a vehicle knows (or should have known) that a person has a history of negligent, irresponsible, or criminal behavior but entrusts a vehicle to that person anyway, the vehicle owner can be held liable for any negligence that occurs through the use of that vehicle.

Negligent entrustment claims are not pursued very often because they can be difficult to prove. But given the driver’s long criminal and traffic record, we were able to create a convincing case that led the father’s insurance company to settle the claim. This was the second settlement the Mortons received, but we weren’t done yet.

Sending a message to irresponsible party hosts

In our investigation into the accident, we discovered that just before the collision, the driver had been at an all-night party, where he drank until his blood alcohol level was three times the legal limit. What’s more, many people at the party, the driver included, were under the legal drinking age.

David Morton had strongly believed that every life matters and is worth saving. For his family, this case turned from finding the guilty parties to saving the lives of others. They asked us to help send a message that hosting these kinds of parties and disregarding the aftermath is reprehensible.

In Ohio, it’s the responsibility of a building owner (in this case, an apartment complex) to ensure that all-night parties featuring alcohol and other drugs, particularly to minors, don’t occur on their premises. It’s also the responsibility of the hosts of the party to not let an obviously intoxicated party-goer get behind the wheel of a vehicle (and to not serve alcohol to a minor in the first place).

By receiving a third settlement from the building owner and a fourth from the party hosts, we were able to help the Mortons send an important message: You are responsible for what happens at your party and what your guests do afterwards.

Wrongful death cases are painful and difficult for families, and the settlements reached can only help smooth out the road to healing. The message that such large-dollar settlements send, however, can last a long time and save countless other lives.

At Cooper & Elliott, we want to take on the difficult cases, because we’ve seen the positive effect that justice can have in helping families and communities rebuild and grow.

 

*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: The Fallacy of Frivolous Lawsuits

Posted on Fri, May 29, 2015 @ 12:58 PM

2020BadgeWelcome to the first in a series of articles reflecting on Cooper & Elliott’s past 20 years in the legal profession, and offering our thoughts about the next 20 years.

We’ll highlight some of the major legal events we’ve experienced inside and outside of the courtroom. We’ll discuss changes we’ve seen in the legal arena, as well as public perception of our industry. It’s a chance for us to gain perspective of where we’ve been, and forecast where we’re headed.

We’re beginning with a subject that often makes headlines: frivolous lawsuits.

Media impact on public perception

Talk of frivolous lawsuits has been around a while. Occasionally, a lawsuit may get filed with little or no chance of success because it lacks any merit at all. These lawsuits waste time, money, and resources, and they’re often meant to harass the opposition or make a quick buck off of big business.

We’ve all heard stories of burglars suing homeowners and negligent consumers suing corporations. Most infamous is the case from the early 90s, when 79-year-old Stella Liebeck sued McDonald’s because of injuries she suffered from spilling scalding coffee in her lap. The media went into a frenzy over the story. Tales of consumer negligence and a three million dollar settlement made the case a symbol of the frivolous lawsuits supposedly overwhelming our justice system.

The problem is, the details and facts of the case were lost in media sensationalism and public outcry. (You can check out the details of the story in this report.) Since that case, many people today believe that wrongful injury and death cases are frivolous by nature and are clogging up the courts. False perception took over reality.

The reality

The fact is, only about fifteen percent of the cases in our courts today are personal injury or wrongful death cases. The rest are criminal, domestic relations, foreclosures, workers compensation, businesses suing other businesses, and so on. Fifteen percent is far from a “drain” on legal resources, and the majority of injury and wrongful death cases are far from frivolous.

In the McDonald’s coffee case, some in the media simply got the facts wrong. It was reported that:

  • Stella Liebeck was driving while taking the lid off of her coffee (she was actually a passenger in a parked vehicle)
  • She received millions of dollars after the verdict (she didn’t – the final settlement amount was for less than $600,000)
  • Her injuries were minor (she actually endured numerous skin grafts to repair the third degree burns).

In addition, media reports often failed to mention that McDonald’s kept its coffee hot enough to cause severe burns within seconds, that McDonald’s had received hundreds of reports of burns caused by its coffee, and that Stella had originally asked McDonald’s just to pay her medical bills and filed her lawsuit only after McDonald’s refused.

But the damage to Stella, to both her body and her reputation, was done. Today, many cite this case as an example of a “get rich quick” scheme, but that summation could not be farther from the truth.

Turning the tide on public perception

Over the last twenty years, we’ve dealt with numerous family members involved in personal injury and wrongful death situations who hesitate filing a lawsuit because of the stigma involved with many of these cases. Businesses and insurance companies looking to avoid accountability count on this stigma to discourage people who have been harmed from even filing a lawsuit to enforce their rights.

That’s a sad situation. There are many folks out there who need to get back to their lives. They need to have some measure of quality of life restored. They need compensation because the person who took care of them is no longer with them.

Often, the first step we take is to help these individuals understand that their story has merit. Their life is meaningful. Their case is important and needs to be heard in front of an impartial judge and jury. Helping them overcome the misperception perpetuated by irresponsible businesses, insurance companies, and many in the media is the first step on the road to recovery.

For two decades, we’ve made it our mission to help people recover from terribly tragic events. And we will continue to do so in the years to come. With each case, with each family member we help, the public perception about lawsuits will change.

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

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Betrayed Trust and Livelihoods in the Balance: Ohio Malpractice Attorneys Find Justice

Posted on Tue, May 19, 2015 @ 4:36 PM

In this modern age of specialization, we rely now more than ever on experts to help us with complicated tasks. But what happens when there’s a breakdown in that trust? One of our clients found out the hard way.

A promising business is imperiled

Like a lot of inventors, Liam Moore* was extremely proud of his invention. While the terms of an eventual settlement prevent us from revealing the exact nature of his technology, Liam’s invention would change people’s lives—and provide him, his company, and his employees with considerable income.

Liam started small, gradually growing a company around his invention. He relied heavily on his lawyers and other experts who knew the ins and outs of the industry, especially in the matter of patents, a crucial element for a company like his.

For all his carefulness, however, he never anticipated the possibility that the experts he trusted so much would threaten his life’s work.

When you get a patent, as Liam had for his invention, you’re required to file certain paperwork and pay a maintenance fee in order to show the government that you’re using your invention. Otherwise, the government will open up the idea to the rest of the world.

For some reason, Liam’s patent lawyers, ostensibly experts looking after Liam’s own interests, missed one of his maintenance fee filing deadlines. By the time this was discovered, one of his most important patents had lapsed, and competitors were allowed to use and profit from his idea.

Liam’s invention was no longer his anymore, and competitors had taken advantage of their opportunity. Liam’s livelihood, and those of his employees, hung in the balance.

Layers and layers of a complex case

When Liam asked us to represent him, we knew we had our work cut out for us. This kind of case has many layers of complexity, because not only are we trying to prove relatively simple things—like how a law firm missed a filing deadline and failed to alert its client—but we’re also trying to prove there was patent infringement that resulted in damages (and what those damages actually were). We call that proving the “case within the case,” and it can become highly technical.

To further complicate things, deep emotions ran through this case. First, Liam felt a tremendous sense of betrayal from his original attorneys. Not only did those attorneys commit malpractice, but then as a defensive tactic, they actually started attacking Liam and the validity and quality of his patent.

Second, and most tellingly, this was a “bet-the-company case.” Losing the case could destroy the entire company, costing the jobs of everybody employed there.

We dove right in.

Our Ohio malpractice attorneys go to work

Believe it or not, the defendant law firm’s first argument was “no harm, no foul.” They assailed the patent itself, claiming that if it had ever been challenged, it would never have stood up. Then they pointed the finger at Liam: “We thought you really weren’t interested in this patent. Maybe you should have been a little more attentive to it. Maybe you should have told us more. How do we know that you really patented anything special?”

To fight on Liam’s behalf, we took a number of actions. Although the malpractice portion of the case was fairly straightforward, the “case within the case” more than made up for it in complexity.

One of the approaches we used for determining damages was to look at the products Liam’s competitors brought to market after his patent had lapsed. We had economists and experts identify those products’ market reach and analyze what royalties Liam would have received if somebody had been caught infringing on his product or patent.

We also had to become, in a sense, experts in Liam’s technology ourselves. To understand the case—the infringement, the damages, and everything in between—we had to work closely with industry experts to learn and understand the technology behind Liam’s product. Steeping ourselves in the engineering aspects of his invention allowed us to effectively and knowledgeably cross-examine our opponent’s experts and other witnesses.

While it doesn’t always pertain directly to the courtroom and the lawsuit itself, business cases (which may seem like dry affairs) still require caring and counseling. Our opponents had ruined the business Liam had spent years of hard work and sacrifice to build, and then attacked his invention and conduct. In such emotionally charged situations, providing stability, advice, and an outlet for our clients to express themselves—even if just to vent—can be invaluable to help them process what they’re going through.

Livelihoods preserved, justice served

In the end, all of the preparations and hard work paid off: The law firm settled fairly.

Needless to say, Liam was very happy and relieved. Not only would he and his employees have a chance to stay in business, but the spurious allegations about his invention and his handling of the patent were effectively disproved.

As it happens, this outcome turned out to be crucial. With the settlement, Liam was able to pivot his business and focus it on some of the other patentable ideas and products he had been developing. It enabled the company to stay in business, keep its employees, and maintain its operations.

For our part, we were gratified to see Liam not only get the justice he sought, but also be able to keep running the company in which he’d invested so much time, money, and passion. It was gratifying for us in another sense, too. For us as professionals, the kind of rigorous intellectual exercise that comes with preparing for a complex case, requiring a deep knowledge of a new industry, was as rewarding as it was challenging.

There’s a natural curiosity our lawyers have, about how the world works, and how people interact, and how the law should govern and support us. Add to that a passion for justice and helping people through their toughest times, and you can see why a difficult case like Liam’s didn’t scare us away—it just made us work harder.

*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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Vindication: Ohio Malpractice Attorney Helps a Wrongly Convicted Veteran

Posted on Tue, May 12, 2015 @ 4:39 PM

Rich* was a military veteran whose dream was to own a bar. When a member of his waitstaff, Julia*, started showing up for work with bruises and a black eye, Rich stepped in. He knew Julia’s boyfriend. In fact, Rich had kicked the boyfriend out of his bar before. Rich suggested to Julia that she move out of her place, and he even offered her a room above the bar until she could get the situation sorted out. She agreed.

Julia arranged to meet her boyfriend in a parking lot to tell him she was leaving him, and Rich came along to provide support. The boyfriend showed up, drunk, still wearing his tool belt from his carpentry job. When he started yelling at Julia, Rich got out of his truck and came over to be peacemaker. The boyfriend started throwing tools at Rich, and then rushed at him.  Rich’s military training allowed him to dodge the attack, and the boyfriend ended up face-first on the ground.

At that moment, the police arrived. After getting an understanding of why Rich had gotten involved, they sent all parties on their way. Rich and Julia left to move her things out of her apartment, and Rich thought that was the end of it.

But he was wrong.

Wrongfully arrested

What Rich didn’t know was that Julia had told some of her other friends about her trouble with the boyfriend—and those friends took it upon themselves to administer their own private justice that same night. While Rich, Julia, and the rest of Rich’s employees were closing the bar, the boyfriend was receiving a terrible beating. When the police asked the boyfriend who was responsible, he blamed the beating on Rich, who was arrested.

Being arrested for a crime he didn’t commit was bad enough, but Rich’s troubles got far worse.

A case of legal malpractice

Rich’s friends raised bail money and found him a defense attorney in the phone book. However, every time Rich wanted to talk to his defense attorney, he had to hand over a large sum of money (always in cash). The attorney seemed more interested in getting paid than building a case. He wouldn’t even take time to meet Rich’s alibi witnesses.

Several months later, out of the blue, Rich got a call from his attorney, who told him they were going to trial the very next day. Rich hadn’t spoken to his lawyer or his alibi witnesses in months. Those crucial witnesses had moved out of town.

Rich knew there was no way his case was ready for trial, but because his lawyer had already received several continuances, Rich wasn’t going to be able to get another. There was going to be a trial the next day.

The trial was a joke. The defense attorney wasn’t the only one who didn’t do his job correctly. The prosecutor in the case got many of the facts wrong. Normally, it’s up to the defense attorney to spot such mistakes in a prosecutor’s case, but because Rich’s attorney was woefully unprepared, he didn’t call the prosecutor out on any of the errors.

Because of his defense attorney’s malpractice, Rich was convicted of a crime he didn’t commit, and was sent to jail.

Getting out of jail

Rich’s appeal was handled by a different lawyer, a court-appointed one, who saw instantly how horrible Rich’s defense had been. What’s more, when approached, the prosecutor’s office admitted they’d made a mistake.

By that time, Rich had spent two years in jail. The prosecutor told him that if he would plead guilty to a lesser charge like disorderly conduct, he’d get out right away. But Rich didn’t want to plead guilty because he hadn’t done anything wrong. His reputation already damaged, he wasn’t about to accept the blame for another crime he didn’t commit.

It took another year before Rich’s conviction was overturned. That was when he needed an Ohio malpractice attorney, so he called us.

The malpractice case

Rich was very bitter when we first met him—understandably so. We knew for Rich to feel that justice was served, he needed two things:

  • Compensation for the time spent in jail and the legal malpractice.
  • A clear demonstration that he was entirely innocent.

We worked like heck to get both for Rich. We knew we’d need to call experts to discuss what Rich’s lawyers should have done, and we also needed to find the alibi witnesses and have them testify about what they’d seen.

In the end, our case was successful. Rich was compensated for the time he spent in jail, time he should have been spending running his bar and living his life. Because it was a civil trial, it wasn’t the jury’s job to rule on Rich’s guilt or innocence. However, there’s a part of the legal process called jury interrogatories, where lawyers can ask specific written questions of the jury. Through these interrogatories, we were able to get an answer from the jury:  Rich was innocent.

Vindication

Immediately after the verdict,  the  defense lawyer who had bungled Rich’s case offered to settle for a little less than the jury had awarded, just to forestall appeals and make the case go away. Rich agreed.

On the way out of the courthouse, in front of the press, Rich added one condition. He wanted $500 of the settlement to be paid immediately, by the defense attorney, in cash. At first the defense attorney protested, saying he didn’t carry that kind of money around. But in the end, he peeled off the required amount, counting $20s one at a time from a roll of cash in his pocket.

Maybe he remembered how the attorney had always demanded cash from him, or maybe it was out of a sense of vindication, but either way, Rich looked tremendously satisfied as the defense attorney counted out the money.

*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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