For Businesses

Arbitration: A Valuable Tool for Business Dispute Resolution

Posted on Tue, Oct 9, 2018 @ 1:58 PM

Each victim’s case comes with a unique set of circumstances. Those circumstances dictate which method of resolution is best suited to achieve the desired results for both parties. In some personal injury and wrongful death cases for example, the dynamics are such that a settlement can achieve a better outcome for victims than a jury trial.

Arbitration is an alternative litigation option that we believe works particularly well for business dispute resolution—the perks being that arbitration can be more efficient and, in most cases, more confidential than a public trial.

What is arbitration?

Unless the parties agree otherwise, arbitrators’ decisions are definitive and binding like a jury’s verdict—and, they are rarely overturned on appeal. But what happens in an arbitration hearing differs in many ways from the procedures involved in a jury trial.

In arbitration, both parties present their cases to an arbitrator—or in some cases, a panel of arbitrators. The panel consists of experienced attorneys and it serves as both judge and jury for the case. Arbitrators render their decisions based on the evidence and arguments presented by both parties involved in the dispute.

There is no voir dire process in arbitration like there is in a trial. Nor is there a need to shape the presentation of a case to connect with the supposed values and attitudes of the jurors. Being familiar with the law, arbitrators are more likely to be swayed by evidence than emotional appeal.

There are some similarities between trials and arbitration as well. In both, motions can be filed, discovery is conducted, depositions are taken and presented, and expert witnesses can be brought to the hearing to testify.

Arbitration benefits for business dispute resolution

In a personal injury or wrongful death case, litigation can be part of a victim’s healing process. The public nature of a courtroom trial serves as an opportunity for victims to express their grief or anger, and to have their stories heard and decided on by their peers.

Privacy, on the other hand, can be preferred by both parties in business, shareholder or high-level employment disputes. Arbitration provides a legal forum for reaching a resolution without violating confidentiality. In most business cases, a contract has been broken or unfulfilled, and the arbitrators must determine whether genuine harm resulted and how the victim should be compensated. These types of cases frequently revolve around complex, intricate details. There may be proprietary or financial information involved that both sides would prefer to keep private.

Timeliness of arbitration

The other advantage of resolving a business dispute through arbitration is that it can bring the parties to resolution quickly. Courtroom judges are likely to have multiple court-related issues to handle in a given day, in addition to what’s on their court docket. It’s rare to have the judge’s availability for a full day, and this can extend the number of days needed to complete a trial. In an arbitration, the arbitrators booked for a hearing have no similar conflicts to disrupt the course of the hearing.

Because arbitrators are practicing attorneys or judges, there is less need for attorneys to devise complex presentations like those needed to demonstrate points to jurors who are less familiar with legal concepts. Arbitrators know the difference between hearsay and evidence, between showmanship and fact. This allows attorneys to get to the point and get through the case faster.

The value of knowing which method is best

Civil litigation attorneys must be adept at using all the tools available to them. They should be as skilled in arbitration and settlement negotiation as they are in the courtroom. Knowing which litigation method is most likely to meet the needs of the client and the circumstances of the case is key.

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

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Reclaiming One Man’s Future through Shareholder Dispute Resolution

Posted on Thu, Sep 20, 2018 @ 6:01 PM

Business thrives on promises made with good intentions and integrity. When those promises are committed to signed documents, they become contractual obligations that compel the parties to live up to their promises even though good intentions and integrity may wane.

When promises made in good faith are subsequently discarded in the wake of ego and personal conflict, it’s likely that business disputes will arise. Sometimes those disputes can be resolved with calm reasoning, but often, litigation is needed instead.

Promises lead to shareholder dispute

James* was a young and successful corporate counsel when he was recruited by a fledgling beauty-services franchise company. At first, James was hesitant to leave his corporate position (and take a salary cut in doing so), but the promise of partial ownership was enough to lure him into taking a chance.

James’s primary job was to attract new investors, and he did his job well. Within his first year, James attracted several new investors and the franchise opened a half-dozen new outlets. Sam*, the company’s founder and majority owner, was so impressed with James’s performance that he increased the ownership incentive from three to five percent. As prospects exponentially grew, the franchise took off.

During this time, Sam was in dispute with the company’s former owner, and assured James that they would complete the proper ownership paperwork once that dispute was resolved. Being young and eager to succeed in his role, James trusted Sam’s word.

Then one day, out of the blue, James was fired—and he was denied any percentage of ownership for his contributions to the company’s growth.

He hired us to represent him in this business dispute resolution.

Promises and paperwork

Sam denied James the ownership share he had earned based on the claim that he had not signed a “unit grant agreement,” a document that would have set forth a vesting schedule for James’s units. Without that signed document, Sam contended, James had no rights of ownership.

We disagreed. James had signed an operating agreement when he first joined the company, and he had met the performance criteria to be granted five-percent ownership.

We began with a demand letter, seeking only to negotiate a reasonable settlement. The owner essentially told us to go fly a kite.

Shareholder dispute requires arbitration

The case involved years of arbitration. Sam and his franchise group did everything they could to deny James’s right to ownership.

The case became more complicated when the company was purchased by a private equity firm. No portion of the sale was designated to James, who should have received five percent of the asset sale in cash or stock.

In 2010, we filed for arbitration that didn’t begin until 2015, and then took two years to complete. The case required extensive discovery on our part, including tracking down the company’s prior attorneys and getting testimony from them supporting the claim that the promise of ownership had, in fact, been extended to James.

Ultimately, the arbitrators agreed with our position and granted James a cash equivalent of five percent of the asset purchase, plus court and attorney fees. It was vindication for the work James had done for the company—and fulfillment of the promises that had been made to him.

Years could have been saved with a signature

In the end, James won his case and received the equity value he had earned. But it came at a steep personal price. For five years James struggled to find employment, as his reputation had been extensively damaged by his former partner. Having left a secure job for this opportunity, he faced the challenge of having to reevaluate his career path.

Had a unit grant agreement been completed and executed prior to James joining the company, he very well could have avoided the civil litigation that was necessary for him to be awarded his promised share.

New partnerships often come with the glow of optimism, opportunity, and trust. Unfortunately, that glow can fade with time and with the intrusion of personality conflicts, sometimes driven by greed or jealousy. The best protection against broken promises is to be sure to get all the necessary documents signed before entering into an employment or a business arrangement.

If issues arise regarding a business or shareholder dispute and you suspect that you may have been victimized, contact the Ohio civil litigation attorneys at Cooper & Elliott. We are here to help.

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

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

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How Patent Legal Malpractice Can Devastate a Business

Posted on Thu, Aug 30, 2018 @ 5:00 PM

As a business owner, one of the most valuable things you can get from an attorney is a sound opinion, one based on facts and knowledge of the law. That opinion doesn’t guarantee your success, but it should assure you that there are no legal impediments that will keep you from moving your business forward.

A legal opinion should reflect careful crafting and thorough research. Opinions bandied around the water cooler are free, but an attorney’s opinion comes at a price and if he or she makes a mistake out of ignorance or a lack of due diligence, it’s too often more than just an “oops.” A faulty legal opinion can be devastating to a business and to the all the lives connected to it, from the owner to the investors to all the employees and their families.

 We’ve talked about the issue of legal malpractice, and how its victims are just as deserving of legal representation and fair compensation as the victims of personal injury or wrongful death. The question that must be asked before pursuing a legal malpractice case is, “Did the attorney, in this case, meet the minimum ‘standard of care?’” If not, there may be grounds for a lawsuit.

Ohio civil litigation attorneys address a patent oversight

A recent case provides—unfortunately—a clear example of legal malpractice in business law. The client, Xpansion, Inc.*, was looking to bring an exciting new product to the market. Xpansion had hired a patent law firm to get its product patented and, thereby, gain the exclusive right to sell it. The company was charged a hefty fee by the firm to conduct the patent search and file the necessary paperwork.

Such a fee would normally be justified considering the time and effort involved in obtaining a patent—except in this case, the law firm failed do its job. It turned out that there was already “prior art” for this idea, meaning it was not free and clear to be patented. Xpansion’s attorneys should have caught this problem early on but didn’t. And, based on the faulty guidance it received, Xpansion revved up its manufacturing and distribution plans, investing millions of dollars in a product that ultimately couldn’t be patented.

It is the responsibility of a patent attorney to find instances of prior art in a preliminary patent search. With more than 300,000 patents granted in 2015 alone, it’s not unusual for a company or individual to come up with an idea that someone else has already patented, especially if that product doesn’t exist in the marketplace. If an idea can’t be patented, it’s best to know that before your company makes an enormous investment in its development and marketing. As you can see, there’s a lot riding on that attorney’s ability to correctly identify prior art.

Legal malpractice leads to civil litigation

Xpansion’s patent attorneys fell short of the “standard of care” in this case, and it nearly destroyed the company. It had to shut down for months and re-tool for the future. Hundreds of employees were laid off while the company regrouped.

Fortunately, instances of legal malpractice are relatively rare. But the effects can be enormous, financially and personally, to businesses and people alike. If you have been injured through legal or medical malpractice that calls for civil litigation, don’t hesitate to give us a call. We’re here to help.

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

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

 

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Methods for Optimizing Jury Selection and Voir Dire

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

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

Listening to personal stories

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

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

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

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

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

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

Information gathering process

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

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

Establishing respect

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

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

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

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Positioning the Jury as the Protagonist

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

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

The story of a case

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

How to tell the story

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

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

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

Clarifying the rules

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

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

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

Jurors: Voices of the community

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

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

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

Connecting through honesty

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

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

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

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

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

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

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

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

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

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

Ignored background check leads to personal injury

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

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

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

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

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

Proving employer negligence

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

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

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

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

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

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

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

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

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

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

Using video testimony: then and now

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

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

Live streaming: a welcome, and useful, alternative

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

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

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

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

Practical concerns

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

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

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

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

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

Embracing advances with caution

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

 

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

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

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Civil Litigation Wins a Sign Company Showdown

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

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

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

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

That’s what was supposed to happen, anyway.

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

More than Just Numbers

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

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

Breaking Down the Details

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

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

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

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

Not the Wild West Anymore

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

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

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

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

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

 

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Cooper & Elliott 20/20: The Changing Landscape of Legal Research

Posted on Tue, Sep 29, 2015 @ 12:30 PM

2020BadgeAs we celebrate our firm’s 20 years in the legal profession and forecast the next 20 years, we want to highlight legal research—the cornerstone of building a solid case for a client.

Over the past two decades, legal research has gone from books to digital downloads, law libraries to computers and tablets. This is mostly a good thing for our profession. Attorneys now have much greater access to relevant law, such as court decisions. But for some attorneys, it also creates a temptation to cut corners and a danger of missing out on key information vital to a client’s case.

We take research very seriously here at Cooper & Elliott, and we feel it’s important to take a look backwards, to ensure we’re headed in the right direction.

The nineties: a noteworthy step forward

In 1995, Beanie Babies were the rage, millions were glued to their TV sets for the O.J. Simpson verdict, and news outlets around the world were heralding the futuristic technology of the World Wide Web.

For attorneys digging into research for a case, there were a couple of available options:

  • Schedule a trip to the local law library (during business hours, of course), pore over countless hardbound volumes of court decisions and history, and follow each new informational nugget to the next step of the process in building the case. If you compare that to Googling today, imagine each click of a link being another book you had to pull from the library shelf.
  • Or, take advantage of the new technology that had recently become available. LexisNexis was at the forefront of developing electronic accessibility of legal documents. When we first opened our doors, this tech took the form of a “UBIQ” desktop computer terminal. A few word or term searches punched into the little (for its time) red wonder, and voilà! You could print whatever information you needed on this odd silver paper (and watch some of the ink stick to your fingers). It was much easier than a trip to the library.

Those early computer models now belong in antique shops, but they did get legal information into the minds of attorneys faster than before.

Unfortunately, faster isn’t always better.

The caveat of the computer age

With court decisions available at their ink-stained fingertips in seconds, some attorneys fell into a trap: they stopped thinking about the “why” behind legal rules. Searching for a word or phrase often brings up the most recent court rulings on an issue, which some attorneys think is all they need. Those attorneys may not bother to research and consider the history of how we got to those rulings. That’s a dangerous problem we’ve seen develop over the past two decades.

Imagine driving on a freeway and taking the wrong exit by mistake. You could drive for hours down that road. The highway signs look similar, the road is paved the same, the mile markers look familiar, but you’re headed completely in the wrong direction!

The same could be said for doing only superficial research and assuming that a particular rule applies in your client’s case. For example, a dozen court decisions might apply a rule a certain way. But if your attorney stops his or her research after a quick review of only the most recent decisions using a certain word or phrase, the attorney might never learn of historical decisions that show the rule works differently in a case with your particular facts.

A crude digital search may only present a snapshot of the relevant court decisions. It doesn’t necessarily tell you how the law developed. But how the law developed might be critical to a client’s specific case, or even support advocating an extension or change to the law.

Classic techniques working in harmony with current technology

Let’s be clear: electronic search methods are a major boon to the legal profession. It’s much faster and more efficient than hours of library searching. But an effective attorney can’t give in to the temptation of stopping his or her research after reading a few of the more recent court decisions about a given rule. The attorney has to take advantage of electronic research to go beyond the superficial search results and dig deeply into historical precedent to understand how a rule applies—or doesn’t apply—to a client’s case.

And yes, sometimes this even means a trip to the old law library when a particular resource isn’t available online.

This approach to research is especially beneficial to preparing a case before it even begins. One thing we’ve noticed over the years is the tendency for some attorneys to start their deep legal research only after filing a lawsuit. But because we understand how to use both electronic and non-electronic research tools effectively, we prefer to dig deeper and understand the relevant legal rules and their history before we even file a lawsuit.

This lets us frame the allegations of the lawsuit the right way. It also lets us ask the right questions in discovery and depositions so that we can build the support that we need to win a client’s case at trial or negotiate a better settlement. Armed with a deep understanding of the relevant legal rules and the reasons why a certain rule may or may not apply in a given case, well-prepared attorneys are able to enter the legal arena with the knowledge necessary to get to the heart of that case in its early stages.

Our firm is built on a foundation of research. We cherish learning, and we’ve seen the benefits that our method of preparation brings for our clients and their cases. Using all available research resources and taking the time to build a deep understanding of the relevant law and its history is the key.

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 Blame Game – A Defense Tactic We Don’t Allow

Posted on Tue, Sep 1, 2015 @ 9:51 PM

The blame game in court – it’s not your fault

This year marks our 20th anniversary of fighting for our clients’ rights. We’ve seen a lot during that time, enough to know the tactics defense attorneys like to use again and again—and how to combat them.

In this article, we’re taking a look back at one of our earliest cases to illustrate how the defense often plays the “blame game” in court and how our team works with the families of victims to prepare them for this tactic. In the end, we make sure everyone realizes exactly where the blame is to be placed.

Tragedy strikes and the blame game begins

1995 – Meredith* and Sam* were motorcycle enthusiasts who loved cruising the open road together. Sam preferred a traditional ride; Meredith opted for the three-wheeled variety. One day out riding, life changed in an instant for the couple. Meredith saw the trouble just ahead. She watched helplessly as Sam’s motorcycle slid out from under him and he was thrown into a guardrail. It happened in seconds. Just like that, Sam was gone, and Meredith lost her partner and best friend.

What she also saw that day was the thin, clear strip of diesel fuel that had leaked onto the asphalt. Because Sam hit the fuel spill first, Meredith was able to avoid it. What she could not avoid, however, was the distressing tactic we see all too often in court: pinning the blame on the victim, thus compounding the tragedy.

It’s not your fault – and we won’t let them say it is

A defense technique. A legal tactic. To the defense, it’s business as usual, and it seems like a sound method of serving their client. To a victim, or, in this case, the family of the victim, it feels like a ruthless personal attack. The worst thing for our clients is the self-doubt it can make them feel.

In the court case we’re revisiting today, the attorneys for the trucking company involved in the spill used this empty tactic to blame Sam for causing his own death. Reasoning that motorcyclists should know they’re riding on two wheels, and that they should not run over liquid on the highway, they argued that Sam knew the risks and took his life in his own hands.

But distracting a jury by wrongly pointing the finger of blame was a strategy we were not going to allow.

The emotions of our team ran high as Sam’s family related what an incredible individual he was. Sam was not a reckless or unsafe man. He had plenty of experience on motorcycles, and his actions that day were ordinary for any rider. In fact, not knowing it was diesel fuel on the highway, Meredith herself intended to drive over the liquid in the seconds before the accident.

When the jury clearly stated that Sam was in no way responsible for his own death by returning a verdict against the trucking company, there wasn’t a dry eye among his family. Sam’s reputation was defended, his family was compensated, and we at Cooper & Elliott discovered that when we take on a case, we become a part of our clients’ family. It’s a role we are immensely grateful to play—and will always take seriously.

It’s not a game to us

For a defense team that doesn’t have a leg to stand on, pointing the finger of blame is often their best bet. Whether defense attorneys are trying to prove pre-existing conditions are the cause of current medical issues, or they’re attempting to make a case that a victim’s recklessness on the job was the cause of their injury, we recognize these actions for what they are—just legal strategies—and we make that clear to our clients. The blame game is all too common in court, and we expose it for what it is so honest people don’t have to remain victims.

Over the past 20 years, we’ve become personally involved with each and every one of our clients. We’ll continue to do so in the years ahead. We are always on your side when you need us most. Give us a call—we’re here to help.

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

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

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