Cooper & Elliott Blog

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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Trust Lost and Gained: Keeping an 84-year-old Grandmother in Her Home

Posted on Mon, May 4, 2015 @ 2:47 PM

In the past few years it’s become common to hear about faceless, unfeeling companies practicing “predatory lending policies.” But what about when the predator is a trusted family friend?

Betrayal of trust

Louise Henderson*, an 84-year-old African-American great-grandmother living in an up-and-coming neighborhood of Washington, D.C., was proud of the house she and her late-husband had bought back in 1969. Unfortunately, though, Louise had fallen behind on some of her tax payments.

That’s when Helen Phillips*, a childhood friend of Louise’s daughter, came to her rescue—or so Louise thought. Helen had seen on the Internet that Louise had some tax liens on her property, so she offered her a solution: to avoid foreclosure, Louise could sign over a 75% interest in her home to Helen, who would pay off the few thousand dollars of back taxes Louise owed in return.

Louise didn’t really understand what she was agreeing to, but she trusted Helen and signed the necessary documents. Helen paid $2,200 in back taxes, and got a house worth $324,000.

That wasn’t enough for Helen. A few years later, Helen noticed two new liens on the house—Louise had again fallen behind on some bills. Helen told her they needed to take out a loan on the house to pay off the liens, and Louise agreed. The liens cost under $14,000. Helen took out a mortgage and paid them off. But then Helen helped herself to another $300,000.

That $300,000 came from the equity in the house—the equity Louise and her late husband had built up, dollar by dollar, month by month, since 1969—and Helen didn’t tell Louise about any of it. Not about the $55,000 that paid off a mortgage on another property Helen owned, or the $11,000 that paid off her timeshare. Not about the $10,000 that paid off Helen’s credit card. Not about the $224,000 check Helen walked away with.

Helen did tell Louise that if there were any money left over from the loan, Helen would buy Louise a new stove or refrigerator. Helen never bought Louise a new stove or refrigerator.

It still wasn’t enough for Helen. A few years later, Helen wanted Louise out of the house so Helen could rent it or sell it. Making up a story about taxes, she tricked Louise into signing over the remaining 25% of her ownership.

The next business day, Helen sued Louise to evict her from her house.

Seeking redress

That’s when one of our attorneys got involved. Louise sought help from AARP’s free legal defense fund, and was referred to him on a pro bono basis.

First, the legal team filed a number of claims against Helen to prevent Louise’s eviction and to restore possession of her home. Then began the work preparing her case for a jury trial.

The new mortgage against the home complicated things. The lending bank had provided the money not knowing that Helen’s ownership was potentially fraudulent. The simple fact was the bank was owed money, and the house was collateral—no matter who was living in it.

So, in addition to returning title of the home to Louise and keeping her from being evicted by her former family friend, the obligation to the lender needed to be satisfied.

The morning of trial, Helen’s attorney came in with startling news: “I’m sorry, but my client, without my knowledge, just filed for bankruptcy.” Helen’s sudden bankruptcy filing meant our case had to be postponed.

It also made this already complicated case even more convoluted: where would the money be found for Helen to pay off the fraudulent mortgage?

The human touch: understanding and empathy

Lawsuits are not just about the law. In many situations, there’s a point where you have to expand beyond purely legal arguments to include emotional approaches.

Those approaches are created from the depth of knowledge and understanding that comes from learning not just the details of a person’s case, but the details of that person’s life. Understanding our clients and their needs on a personal level allows us to represent them from all perspectives, legal or otherwise. We make it a priority to spend as much time with them as possible.

Fortunately for our attorney, who was licensed in Washington, D.C., Louise was extraordinarily generous with her time. What’s more, because she didn’t have reliable transportation, he would pick her up from her house for meetings with her or for court. Those were opportunities for her to invite him in and show him around—she was clearly very proud of her home.

He talked to Louise about her life and how the neighborhood had changed. Hearing these stories in her home felt very personal, very intimate. It’s easy for lawyers in this modern technological age to simply sit in their office and communicate through e-mail, but knowing our clients is absolutely critical to the way we practice law.

It was critical in this case. Technically, the bank was owed money and probably could have foreclosed on the home, forcing Louise to the street. Several options were considered, but the best strategy for resolution with the bank involved a simple emotional appeal: don’t foreclose on an 84-year-old great-grandmother who was tricked out of her home. It’s just not right.

Louise’s stories about her life painted a much richer picture of who she was than the details of her case would provide. It allowed for a much deeper emotional argument. Ultimately, the bank and Helen settled, and Louise stayed in her home.

Taking it personally

Finding justice in this type of case is rewarding on multiple levels. As attorneys and professionals, we naturally want to provide the best service for our clients. But as we develop relationships, we also empathize with them and simply desire to help them through a difficult time.

It’s gratifying to know that after her trust had been so terribly betrayed by Helen, Louise trusted and built a relationship with our attorney—and received the justice she deserved.

*Names in this article have been changed to protect our client’s privacy. Our attorney worked on this case before joining Cooper & Elliott.

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

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Civil Litigation for Healing and Closure

Posted on Tue, Apr 21, 2015 @ 12:06 PM

The clients we work with have been dealt catastrophic losses, and each client is affected deeply. They each face the tragedy in their own way, trying to make sense of what happened and to begin to heal. The civil justice system is best set up to provide money to compensate someone’s loss, but we’ve found that winning a case for our clients isn’t just about compensation. It’s about healing, and closure, and moving on. And how that happens will vary from client to client.

Some clients need to face the wrongdoer. Others want an explanation—how, why did this occur? Most just want everything back to normal. To achieve this requires attorneys with both a strong legal and emotional skill set.

Asking the right questions

When we first meet clients, our goal is to develop a personal connection with them, not just gather the facts of the case. We seek to peel away the layers to determine what is important to the client—financially, physically, emotionally—to make sure we have a true understanding of the case and the people involved.

We do this by listening carefully. We start by asking a client what their goals are. Often we hear general responses like “I want answers.” We then probe deeper, listening for the real issues.

In a medical malpractice wrongful death case, for example, where a family member has died tragically, we often find our client feels tremendous guilt. They feel they are somehow responsible for what happened. Perhaps if they’d only sought another opinion or asked different or more questions, they think, their loved one would still be alive. In a case like this, one of our goals—both during our meetings, and at trial—is to reassure the family¬ that they did nothing wrong.

We also listen very carefully in these types of cases to understand family dynamics. When someone is seriously injured or killed, it’s important to delve into their relationships with other family members and how they lived their life. That helps us plan tactically how we approach issues at trial. It lets us paint a complete picture of what the victim and their family have lost.

Solid relationships

Our decades of experience have taught us that solid relationships throughout the civil justice system are also critical in achieving successful outcomes for our clients. From judges to co-counsel to opposing counsel to potential clients, we make sure everyone knows that it’s our ultimate goal to reach the best result for our client in the most efficient manner possible.

As civil litigation attorneys, it’s our job to assess what it will take to get to the desired goal, work toward that goal, and gain the respect of our peers and clients along the way. That makes each and every subsequent case that much easier to handle.

Many people think civil litigation attorneys are like two boxers in a ring slugging it out. While knock-down battles are sometimes necessary, when possible we prefer to work things out and avoid unnecessary battle. It’s simply better for our clients.

We don’t needlessly argue over minor legal points, like petty discovery disputes, if it won’t ultimately serve our client. Choosing the right battles builds credibility with the court and opposing counsel, and it avoids tying up a case and prolonging its resolution—all to the benefit of our clients.

Resolve

Just because we understand the art of compromise doesn’t mean we won’t fight for our client with all we’ve got. Knowing when to take a stand is an important aspect of successful civil litigation. We dig in when we need to and are exceptionally tenacious when we feel our client has been wronged.

Recently, our office received a referral from an out-of-state attorney who had referred several clients to us in the past. He told us he knows that we fight hard but that we’re reasonable, which made him confident we’d be able to achieve a successful outcome for his client.

Passion, care, and excellence

We look for these qualities in every person who joins our team, and we live by these qualities with every case.  When it comes to civil litigation, we are passionate about pursuing justice and righting wrongs. It’s just the way we’re wired.

We care deeply about our clients. We get to know them personally so we can understand and internalize their needs. That lets us best represent their interests and help them find peace and closure.

We pursue every case, every client, with excellence. We bring equal parts communication, creativity, and intelligence to each case, which ensures that everyone involved—clients, judges, juries, opposing counsel—ultimately feels like the best possible outcome has been achieved.

We know that a person or family looks to us for help because they want to heal. They want our help putting the pieces of their shattered life back together. We believe it’s our job—our obligation—as civil litigation attorneys to understand what a successful outcome to the case will be for each individual client, and then use everything we’ve got to achieve that outcome.

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

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Uncovering Truth in a Wrongful Death Tragedy

Posted on Fri, Apr 10, 2015 @ 9:51 PM

As wrongful death attorneys, at times we encounter cases that seem mysterious, and it isn’t until all the facts have been gathered that we can make some sense of the whole situation.  This wrongful death case began just like that.

A serious accident

Jessica’s* headaches were incredibly painful, and no one knew why they were getting worse. Many months after a truck rear-ended her car, Jessica was enduring chronic physical pain and severe headaches in addition to the emotional trauma of the crash.

Instead of improving as expected, Jessica’s pain worsened, and after months of increasingly debilitating suffering, Jessica died. Her grieving mother and fiancée were devastated, and they had lots of questions. How could this have happened? Was Jessica’s death related to the accident that took place a year and a half earlier?

Meeting the family

We first met with Jessica’s family shortly after her death. Another firm was handling the accident investigation and litigation, but they were treating the suit as a typical “rear-end collision and compensation” case, the way you might approach an ordinary whiplash or neck sprain.

Months before her death, however, Jessica’s chronic headaches had been diagnosed as a neurological disorder known as a pseudotumor. It’s a condition that mimics a brain tumor, and the effects are as crippling as an actual tumor.

Jessica had spent her final months in agonizing pain, and her mother and fiancée suspected this wasn’t just an ordinary car crash injury. They brought us on board to uncover the truth and seek justice for Jessica.

The investigation

The big question for everyone was this: did the car crash cause Jessica’s death?

Our initial investigation hit a few bumps early, as expected. The medical diagnosis, cause of death, and medical journals all hinted at a connection between Jessica’s death and the car accident, but no solid link could be made to file a wrongful death case.

But on behalf of Jessica and her family, we kept looking. We spent hours combing neurology case studies, articles, and peer-reviewed journals. Because of how rare pseudotumors are, there are only a handful of experts in the world who are versed in this particular disease. We finally tracked one down, and he helped us and Jessica’s family get some answers.  He confirmed that there is in fact a link between trauma—such as trauma caused by a rear-end accident—and pseudotumors.

Justice and closure

It was a tough battle, to be sure. Despite our medical expert’s conclusion, the insurance company’s lawyers didn’t want to believe it.

They claimed there wasn’t enough medical evidence to support the connection, and that there wasn’t enough legal precedent to allow our medical expert’s testimony. They even went so far as to imply that the months and months of care and treatment of Jessica by her family members could have caused her death.

But we had done our homework, and ultimately the insurance company caved, settling for a much higher amount than they had offered when the other firm first filed the case.

Perhaps more important to Jessica’s family than the settlement amount, though, were the answers they received along the way. Jessica’s family now definitively knew that they were not responsible for her death. And by uncovering and telling Jessica’s story, we and her family shed light on a rare but serious neurological disease. Our shared hope is that this case will help pave the way for other families who find themselves in a similar situation.

*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 Close-Knit Family and Wrongful Death, but a Positive Outcome

Posted on Tue, Mar 10, 2015 @ 9:27 PM

When most people think about the victim in a wrongful death case, they probably envision a person cut down in the prime of life. But people of all ages can be victimized by medical malpractice that prematurely ends their life. This is such a case.

A loving mother and grandmother

Mrs. Etta Cowan* was the family matriarch. She made quilts and afghans for her granddaughters. She loved to bake, and she was famous for a special dessert she would make only once a year. Etta took care of her husband and a grown son who lived at home and required assistance. Despite that, she and her husband were able to travel, and they made trips across the country to visit their other grown children and grandchildren. Etta was an influential force in the lives of her entire family.

One sad day, Etta suffered a serious heart attack. Once under hospital care, though, she started getting better. In fact, her prognosis was good. Then, without warning, this beautiful 70-year old wife, mother, and grandmother died.

The family Etta left behind needed to know why. Was it just something terrible that no one could have prevented, or was it a wrongful death? Was it medical malpractice?

A wrongful death?

In cases like these, the person’s age is certainly a factor. Sometimes, families—and attorneys—believe that an older person’s death is simply a matter of it being “time,” and they won’t look further into the case for that reason. But when our firm began looking into Mrs. Cowan’s case, we discovered that the hospital had made a medication error. As it turned out, medication that might have saved Mrs. Cowan had been withheld from her, resulting in Etta’s untimely death.

After a couple of depositions, the hospital recognized its liability in Mrs. Cowan’s wrongful death, and it agreed to a fair settlement—an amount that was very close to what we would have expected the Cowans to receive had we gone to trial.

A medical malpractice case with a positive outcome

The Cowans are an especially tight-knit family, and their closeness made their case very compelling to us. They lost Mrs. Cowan before they should have, and the loss rippled through the lives of everyone she touched.

The financial settlement for Mrs. Cowan’s wrongful death helped continue care for the Cowans’ son who couldn’t care for himself, and it helped make life for Mr. Cowan and the rest of the family as close as possible to normal.  Even more importantly, in the settlement the hospital acknowledged its responsibility for Etta’s untimely death.  Such an acknowledgment allowed Etta’s loved ones to move on with their lives, together as a family, even without their beloved matriarch.

*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 Multiple Faces of Justice in a Wrongful Death Case

Posted on Tue, Mar 3, 2015 @ 9:25 PM

The goals of people seeking the help of a wrongful death attorney can be as varied as the emotions they’re experiencing. It’s possible to actually win a verdict for a client yet still not attain the level of justice they had hoped for. The case that follows illustrates the many types of justice a client can seek, and some of the impediments those remedies may face — sometimes due to the legal system itself.

A drive ends in tragedy

Jake*, 38, was an avid motorcyclist. Ever since he was old enough to have a license, he’d ridden motorcycles. And contrary to the image that some have of motorcycle enthusiasts, Jake was a very careful, very safe, very deliberate rider. A family man, happily married with two children, Jake had never even received a traffic citation for motorcycle riding.

One sunny weekend afternoon, he and his wife, Mary*, were riding their motorcycles together, out on the highway. Unbeknownst to them, a semi-truck had punctured its fuel tank and was leaking diesel fuel onto the road. The truck eventually got off the road, splashing fuel all along the exit ramp.

Diesel fuel may look just like water, but when it’s spilled on concrete, the surface becomes as slippery as a sheet of ice. As Jake pulled onto the same exit ramp, he crossed over the spilled diesel fuel, his motorcycle slipped, and he was shot from the bike like a bullet from a gun. Jake hit a guard rail head first and instantly was killed.

A wrongful death case unearths the truth

At first this tragedy looked like a simple accident—somebody driving across a liquid substance and losing control of their vehicle—but our investigation revealed much more. After Mary came to us for help, we dug deep into the case and discovered a number of poor decisions that together had led to this terrible and wrongful death.

For example, the damage to the truck driver’s fuel tank had occurred when the driver ran over a metal object on the highway. Rather than pulling over and investigating the damage (the driver reported the initial impact sounding like a gunshot), she proceeded to drive for over a mile, leaking diesel fuel down that entire portion of the highway. Instead of calling the highway patrol, setting up flares or warning triangles, and generally trying to alert motorists to the danger, the driver tried to plug the leak with a rag and merely called dispatch for help.

Yet in spite of the driver’s obvious culpability, the trucking agency that employed her denied any responsibility, instead offering $25,000 to settle out of court. Considering the gravity of the situation—that Mary, her children, and Jake’s parents were attempting to face a life without Jake, who was also the breadwinner of the family—the trucking company’s offer simply wasn’t realistic.

So we went to trial. There we were able to present a powerful, convincing wrongful death claim to the jury. Some key moments of the trial:

  • We revealed that the truck driver already had a poor safety record with her employer.
  • We effectively cross-examined the trucking company’s safety director and listed all of the things the driver failed to do under the employer’s own policy. That, in conjunction with the testimony of the safety expert we brought in, clearly illustrated to the jury why we were seeking justice in this case.
  • We rented a helicopter and used it to videotape the entire one-plus mile of highway where the truck driver had recklessly spilled diesel fuel. As we played the video for the jury during closing arguments, there was absolute silence as they realized how long the fuel had been allowed to spill before the truck finally came to a stop (and then, only because the truck had suffered a flat tire).

Justice gained and lost

The good news is, we helped bring our client justice: The trial ended with a large jury verdict for compensatory and punitive damages. But here’s where things got a little tricky.

The verdict was appealed, and the punitive damages portion was tossed out based on an argument that the driver’s carelessness did not rise to a level warranting punitive damages.

Needless to say, this was disappointing—not only for us and the jurors, but especially for our client. One of the things the family had hoped would come out of this trial would be a message to the trucking company that said, “You’ve got to do something different here. You’ve got to understand what your driver did, and you need to elevate your safety standards so a 38-year-old man with a family doesn’t lose his life.”

That’s what punitive damages are all about. They send a message on behalf of the community to promote safety and better behavior. Driving a semi-truck is an extraordinarily dangerous activity, and we hoped that the punitive damages verdict would ensure that truck drivers understood they needed to be more vigilant about safety on the roadway.

Unfortunately, that message from the jury was erased by the court of appeals.

Still, justice was served in other ways. The compensatory damages the client received were desperately needed by Jake’s family. Moreover, those damages would help Mary follow through with a dream she and Jake had: sending their kids to college.

And there was something even more significant. While financial compensation was important to Mary and her kids, the family’s main priority was to establish that Jake had not caused his own death. From day one, the trucking company had denied responsibility for his accident, later adding insult by blaming Jake and claiming he was responsible for his own death since he had driven over a wet substance on the road.

The jury’s decision established in no uncertain terms that the truck driver and the trucking company were the real parties responsible for Jake’s tragic death. This was a tremendous relief for our client, and hopefully provided a building block in the long process of healing that lay ahead.

An attorney’s point of view

From our own perspective, this case represented a range of different feelings. We were gratified to see our client receive some measure of justice. Nothing we might have done could possibly eliminate the grief that Mary and her family were feeling, but we would like to believe we helped them in some small way to move forward.

But we also felt frustration and bewilderment with the appellate court’s decision. By overturning the jury’s decision to award punitive damages, the court not only negated justice for our client, who hoped measures would be taken so this type of accident could never be repeated in the future, but also negated a message that could have helped make the community’s highways safer.

Caring about caring

We were deeply touched by Jake’s story.  During the trial, while we maintained our professionalism in the courtroom, there were times—when Jake’s family talked about what a phenomenal human being he was, and how important he’d been to them; when the jury came back with its verdict, making it crystal clear that Jake hadn’t been responsible for his accident—when we became emotional.

We believe that’s a good thing. Getting emotional reminds us we’re doing our jobs as wrongful death attorneys. It means we haven’t become numb to the system or to the horrible circumstances that our clients find themselves in. It means we can empathize and to some degree personally experience what our clients are going through.

*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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