BOARD OF TRUSTEES 2000-2001
President - Jeffrey D. Boyd, Esq.
Vice President - William C. Mann, Esq.
Secretary - D. Andrew List, Esq.
Treasurer - Mark Kitrick, Esq.
Trustee - Bradley P. Koffel, Esq.
Trustee - Michael S. Miller, Esq.
Trustee - Jami S. Oliver, Esq.
Trustee - Jane Koprucki, Esq.
Ex Officio - Margaret (Peggy) L. Blackmore, Esq.
Editor - Timothy J. Boone, Esq.
Negligence Law - Glen R. Pritchard, Esq.
Criminal Law - Richard A. Cline, Esq.
Domestic Relations - Andrew Grossman, Esq.
Membership - Richard Morris, Esq. & Joseph F. Murray, Esq.
Probate - Bryan Johnson, Esq.
Public Offices - Michael S. Miller, Esq.
By Jeff Boyd, President
We are accustomed to seeing political polls that give their results "plus or minus" a percent or two. But who guessed that the counting of our BALLOTS was no more precise! We will never know which Presidential candidate had the most people go into the voting booth with the intention of voting for him. Nevertheless, I hope that we can appreciate the robust functioning of a healthy democracy under the rule of law. No one ever promised that democracy would be easy, or simple, or that every issue would be decided before tomorrow's newspaper goes to print. But the boisterous discussions that have filled the media and the hair salons across the country show that Americans do care about who hold office in their government, and about the methods by which their officials are elected. From the results of our Ohio Supreme Court elections to the continuing, orderly battle for the Presidency, it is clear that the people demand integrity of the process above all else.
As trial lawyers, we should beware of any rule or method that takes power away from individual voters. Lest any political party or special interest forget, in America law comes from the people, not from the ruling class. Whether at the ballot box or in the jury box, we must support and uphold the will of the voters.
Along those lines, we welcome three new judges to the Franklin County bench in the coming year: James Mason and Carol Squire, Domestic Relations/Juvenile Division and Jennifer Brunner, General Division, Court of Common Pleas. We wish them well, and look forward to many years before them.
WE HAVE EXCITING WINTER AND SPRING PROGRAMS!
The Negligence Law, Domestic Relations, and Criminal Law Committees are scheduling members-only guerilla seminars. Each of these will follow or precede, for half a day, our usual lunch or dinner meetings. We hope this schedule will give you maximum use of your day, and of your Association. Check the Web site in upcoming weeks for further details.
Our dinner meetings will host a number of fine speakers, with two hours of continuing legal education credit available at no extra charge. A respected medical expert, Edwin Season, M.D., will present a one-hour program titled "Fibromyalgia and other Functional Illnesses-Are They Real Disabilities?" on Tuesday, January 16, 2001, following dinner at the Athletic Club. Renowned advocate Judge Ralph Adam Fine is scheduled to address the topic of "Effective Trial Advocacy" on Thursday evening, February 22, 2001, again for one hour following our dinner meeting at the Athletic Club.
On the lighter side, the Court Personnel Reception has been re-scheduled for April 24, from 5:00 to 7:00 p.m., at the hilarious Howl At The Moon Saloon in the Brewery District. Dueling piano players will lead us in a rowdy sing-along, with well-known classics ranging from "My Ding-A-Ling" to "American Pie."
THE NEW, NEW, WEBSITE.
In an era where you can read Supreme Court transcripts in your home before the arguments are through, you ignore technology at your peril! The web site of the Franklin County Trial Lawyers, www.fctla.org. is a site that should be "book marked" on everyone's computer. Go look at the new changes. We are working hard to upgrade our site with features that you won't want to miss. Mark Lewis, Mlewis@Kitricklaw.com , is the new Website Tzar. He is in the process of installing a "members only" area, so that we can trade information without fear of it getting into the wrong hands. Our vision is that the documents of the Deposition Bank, and the Brief, Motion, and Decision Repository will be available in full text on line, with the touch of a button. What could be more useful? Make us stronger by submitting documents for the Brief, Motion, and Decision repository to David A. Bressman, fax, (614) 538-8388, DABressman@aol.com , and transcripts for the Deposition Bank to Andy Cecil, email@example.com , or fax to (614) 221-6633.
Who Are The Ambulance Chasers - The Insurance Company Representatives Or Plaintiffs' Attorneys?
As plaintiff's counsel we are often unjustly maligned in the media as "ambulance chasers", or worse. Of course, during this past November election the accusations became even more ugly. The public is constantly deluged by the untrue innuendo that we, as a group, are unethical and unscrupulous. We know that is not true, but the public perception is constantly reinforced by negative impressions spread by the media and the insurance industry which opposes us.
Even though we try to pursue this honorable endeavor of representing the less fortunate in our society and those in need of legal services but who are least likely to afford representation, we also need to recognize and seize the opportunity to set the record straight. This past summer another smear was added to the pile, and one of our members stood up tall for the profession. We thought you should know "the rest of the story."
It all started with a comment imbedded near the end of an Associated Press article entitled "Tragedy at Winery Made Many Heroes" written by John Seewer and reported in the July 17, 2000 addition, Metro Section of the Columbus Dispatch.
On July 1st of this year an outdoor concrete terrace collapsed at the 136-year-old Lonz Winery located on Middle Bass Island in Lake Eire. Tragically a Columbus resident was killed and 75 people were taken to hospitals. Articles were written over the following weeks as more information came available. However, on July 17th the AP reporter, after enumerating the various acts of heroism also stated,
"There were ugly moments, too - a lawyer passing out business cards moments after the collapse and a young man swiping a bottle of wine. But there were many more heroes."
Thereafter, Gerald S. Leeseberg, Esq., a FCTLA and OATL member and recognized Plaintiff's counsel in Columbus, wrote the following letter to the editor, which was printed by the Dispatch on July 23rd:
I am writing in response to the article "Tragedy at Winery Made Many Heroes", printed Monday, July 17, 2000.
After recounting the immediate and selfless rescue efforts of fellow victims and bystanders alike, the article gratuitously refers to "ugly moments, too - a lawyer passing out business cards moments after the collapse". Direct solicitation of clients in such a manner is reprehensible conduct, in violation of strict rules of the Code of Professional Responsibility governing lawyers. Specifically, a lawyer is prohibited from recommending that a potential client hire himself or herself unless the client has sought the lawyer's advice, nor may a lawyer give unsolicited advice that a person hire a lawyer or take legal action. A lawyer violating the Code is subject to sanctions including suspension and disbarment.
This conduct is commonly referred to as "ambulance chasing". What is not commonly known is that the term originated to describe the practice of unscrupulous insurance claims adjusters who rushed to accident scenes in an effort to obtain waivers of claims by unsuspecting, unsophisticated accident victims. Whether engaged in by insurance adjusters or unprofessional lawyers, the conduct is to be condemned.
If the article's printed claim has any basis in fact, then the Dispatch should print the facts as well as the name of the offending lawyer and report him or her to the Supreme Court of Ohio for appropriate disciplinary action. On the other hand, if this claim is merely the result of baseless hearsay, stereotypical anecdote or a calculating reporter's wish to add "color" to an already compelling story, then it is equally unprofessional and repugnant.
Someone once said "a smart person only believes half of what they read, and only a genius knows which half to believe." I call upon the reporter to provide the Dispatch's readers with verified facts so that they know "which half" of this story to believe.
On Thursday, August 3, 2000, Daniel J. Kelso, President of the Ohio Insurance Institute in Columbus responded with his own letter to the editor, which stated as follows:
It isn't often that I find myself in agreement with a personal-injury attorney, but in this case, Gerald S. Leeseberg's July 23 portrayal of the attorney who allegedly passed out business cards moments after the collapse of the lakeview terrace at the Lonz Winery on July 1 was accurate.
I had been meaning to respond to the July 17 wire story in The Dispatch myself, but I find it even more compelling coming from one of the attorney's colleagues. This is a reprehensible act, as Leeseberg noted, and one that deems review by the Ohio Supreme Court's Disciplinary Counsel if, indeed, this individual did nothing but try to drum up future litigation business.
Like Leeseberg, I believe also about half of what I read. That's why I decided to look into the origin of the term ambulance chaser, which, he said, was first used to describe insurance claims adjusters.
Well, Leeseberg must have missed a personal-injury attorney class sometime during his years of preparing for his profession, because this term originated from the practices of attorneys.
In contacting the Reference section of the Columbus Metropolitan Library, I was told that two publications, the Random House Unabridged Dictionary and the New Dictionary of American Slang, both had similar things to say about the origin of this term.
According to the New Dictionary of American Slang, the term ambulance chaser originated in the late 1800's to describe "any unethical lawyer or one that is too aggressive in getting clients." The second entry stated that in the early 1900's it was used to describe a lawyer or a lawyer's helper who urges accident victims to sue for damages, negligence, etc.
Thanks for the opportunity to clarify this point on behalf of Ohio's insurance industry and, especially, the insurance adjusters working as part of the team that is helping those affected by this tragedy.
"The insurance industry continues to perpetuate the myth that the insurance industry conducts itself in an ethical and morally responsible manner and that lawyers do not," said Mr. Leesburg. So, the third volley in rebuttal came from Mr. Leeseberg in the following August 4th fax-letter to The Dispatch, which the newspaper has thus far failed to print:
Daniel Kelso, President of the Ohio Insurance Institute, wrote to dispute the assertion that the term "ambulance chasing" originated to describe the activities of insurance claims adjuster. He claims to be informed on this matter after having called the library to seek the dictionary definition of the term. I suggest that a review of historical and sociological research would be more informing of Mr. Kelso's insurance industry practices.
Ken Dornstein, a Brown University graduate and insurance industry investigator, has written in his comprehensively researched and annotated 1996 book that "[insurance] claims men, really, were the first chasers of accident victims, a fact that had been noted in magazines and newspaper editorials as early as the 1870's and repeated many times during the subsequent decades." He also quotes a 1905 New York Times editorial citing the "familiar knowledge that it is the 'policy' of some corporations to fight just claims against them by all, just and unjust, legal and illegal, means and to pay no damages until the court of last resort has decided that they must pay". The actions of insurance claims men referred to included bribing witnesses and manufacturing evidence to defeat legitimate claims. This immoral conduct by insurance company "runners" is also documented in an 1897 Yale Law Journal article by Eli Shelby Hammond, and characterized as "shocking the commonest sense of humanity."
This kind of behavior was endorsed by the insurance industry and became institutionalized, as indicated by the writings of another insurance insider in a 1927 book, The Claim Agent and His Work; Investigation and Settlement of Claims for Personal Injuries, by Smith R. Brittingham. In that book, the author discussed effective strategies by which claims agents could "buy cheap settlements", including "Sympathetic Visits" to the bedsides of injured accident victims in their homes, and "The Display of Cash" to entice "ignorant claimants" into quick settlements.
Recently, efforts were made by attorneys and the Ohio Supreme Court to establish a "cooling off period", to proscribe any contact by attorneys with injury victims for a specified period of time. This initiative stalled because the insurance industry refused to abide by any limitation on its attempts to quickly settle these claims with victims before they had an opportunity to consult with legal counsel as to their rights. That refusal speaks volumes about the goals of the insurance adjusters Mr. Kelso claims are "working as part of the team that is helping those affected by this tragedy" at the Lonz Winery. Let the injured victim beware of being victimized again.
Mr. Leesburg believes, and we agree, that it is beneficial to all FCTLA members to be aware of the true origin of the term "ambulance chaser" and thereby be better armed to respond to such professional insults.
So now with this additional information you know "the rest of the story" and can recognize which half of the story to believe. Continue to stand up for your honorable profession and fight for the rights of those clients who require our services.
On August 16, 2000, the Ohio Supreme Court handed down a very surprising victory for the criminal defense bar. State vs. Homan (2000), 89 Ohio St.3d 421. Even if you do not practice in the area of criminal or DUI defense, the high court's decision in Homan is intriguing, unusual, and still hard to believe several months later. Here's the story.
Ms. Homan was driving home one night when an Ohio State Patrol trooper stopped her. The traffic stop was typical of a DUI investigation:
Q. "Have you been drinking tonight?"
A. "Just a couple, officer"
Q. "Ma'am, I'd like you to step out of the car to perform some
field sobriety tests so I can see if you are OK to drive"
Little did he know at the time, but the trooper's administration of the three (3) basic field tests to Ms. Homan would wind up changing how officers administer the roadside exercises and ultimately their testimony in court. You see, Ms. Homan performed the police exercises on a portion of the roadway strewn with little pebbles and without adequate lighting. Remember that as you read along!
So there was Ms. Homan maneuvering her way through the walk-and-turn test and the one-legged stand test, measuring each movement as best she could. There were thoughts of jail, license suspensions, fines, and utter humiliation racing through her head. The emergency lights searing her eyes and fracturing her concentration heightened her anxiety. To nobody's surprise, Ms. Homan "failed" the field sobriety tests. The trooper arrested her and charged her with DUI. I can only imagine that the trooper thought his contact with Ms. Homan was over that night. Not so fast . . .
A few weeks later, her nosey defense attorney subpoenaed the trooper to bring his Field Sobriety Testing training manual to the pending suppression hearing. "An unusual request", so thought the unsuspecting prosecutor. Ms. Homan's attorney had filed the usual salvo of defense suppression motions. However, neatly tucked away in the boilerplate language was a challenge to the admissibility of those pesky field sobriety tests, which were getting in the way of an acquittal.
The defense attorney was preparing to argue that the field sobriety tests were not administered in strict compliance with the trooper's training manual and he wanted them stricken from the case. Such an argument had never succeeded in the State of Ohio and quite likely, anywhere in the United States.
Now, the trooper testified at the hearing as he had testified in dozens and dozens of his other DUI cases. The facts were basically the same as every other Tom, Dick, and Henrietta that he'd arrested for DUI: the traffic stop, "I only had a couple", 3 field sobriety tests, failure of the same, arrested, booked, and charged. But this defense attorney was doing something different. This attorney was leafing through the trooper's training manual from when he was a cadet at the Academy, dust and all. The defense attorney zeroed in on the minutiae in the training manual. Little phrases such as, "These tests must be done exactly as they are stated in the manual, that is why we call them Standardized Field Sobriety Tests" (paraphrasing) were plucked out and used against the trooper.
The trooper was asked to describe whether the roadway surface was clean, flat, and smooth. The trooper replied that it was. The attorney followed up with the issue of pebbles and small amounts of gravel on the surface where Ms. Homan did the walk-and-turn. The trooper thought it would be safe to answer this question. He must have thought to himself, "Who cares if there is a little bit of gravel on the berm of the road; I can't hurt the case by acknowledging that". Thus, he replied, "Yes, there was some gravel and pebbles". Little did the trooper know that in his training manual it plainly stated in nice big, black, bold letters that a clean, flat, smooth surface was required for the walk-and-turn test.
On and on the defense attorney went. He mined the trooper's manual for the overlooked and under-appreciated instructions right out of the trooper's manual. Nice little kernels such as the speed of the pen being passed in front of Ms. Homan's eyes, whether the pen was being held at a 45 degree angle to her eyes or not, and whether or not the trooper stood still during the administration of the walk-and-turn or walked with Ms. Homan. The trooper was slowly admitting that he did not strictly comply with each and every item in his training manual. It must have seemed endless to the trooper, the judge, and the prosecutor.
Page by page, chapter by chapter the defense attorney moved through the training manual. At the conclusion of the suppression hearing, the trial judge didn't buy into the defendant's theory that the field sobriety tests should not be admissible against Ms. Homan since they were not administered in strict compliance with the standardized methods found in the training manual. The trial judge didn't see how those small, trivial deviations could impact the admissibility of the tests. The trial judge suggested that the defense attorney simply make his pitch to the jury. The defense attorney zealously pursued the case to the court of appeals--and won! The court of appeals held, in essence, "No strict compliance with the training manual, then the no field sobriety tests are inadmissible at trial".
Fast forward to August 16, 2000. Stand back!
The Ohio Supreme Court (4-3) agreed with the court of appeals and decided that the field sobriety tests must be administered in STRICT COMPLIANCE with the training manual. No margin of error for the police in this case. Not quite what the State of Ohio had in mind when it appealed to the Supremes. Justice Sweeney authored the opinion finding that the field sobriety tests cannot be considered for probable cause purposes IF they are not administered in strict compliance with the training manual. It should be noted that Justice Resnick was not on this case and Judge Rocco of the 8th Appellate District substituted for her and was part of the majority.
So, for the moment, the clients of the defense bar have been the beneficiaries of an unusual case. Yet, the case requires quite a bit of work and preparation for the practitioner to utilize it. Obviously, you need a copy of the training manual from the National Highway Traffic and Safety Administration. Then you need to commit it to memory. Judges will keep the pace of these hearings moving along. You would be ill advised to wait until the hearing to look at and learn the manual for the first time at the hearing. Good luck!
By David A. Bressman, Esq.
Many members seem to be unaware of a very useful but often underutilized benefit of their FCTLA membership. The association has amassed not only depositions for your reference, but now has added a "Brief and Decision Bank".
If you go to the FCTLA website and click through to the message board section, you will find the current list of briefs and decisions thus far provided. Why "reinvent the wheel" when so many issues facing your practice have already been briefed by others or decided? There is only one rule for this bank - you cannot get one out unless you submit one. The following is just a sampling of what is available:
1. Motion To Compel Filed By Atty. Kitrick and Decision of Judge Crawford Granting In Part and Denying In Part the Motion
2. Plaintiffs' Motion for Protective Order To Preclude Untimely IME and To Preclude Use of Defendant's Expert at Trial and Judge Everett Krueger's (Delaware) Decision Granting Same
3. 60B Motion Opposing Relief From Default Judgment - Failure of Insurance Company to Forward Complaint.
4. Appellate Brief - Sexual Harassment and Employer Responsibility
5. Limine Motion - Expert Testimony on effect of Seatbelt Usage
6. Limine Motion - exclude photos
7. Limine. Motion - IME Doctor Acting as reconstructionist.
8. Limine Motion - Comprehensive Ohio Law.
9. Memo Contra State Farm's Motion For Judicial Determination of Damages.
10. Product Liability - Spoliation of Evidence Opposing MSJ.
11. Trial Brief - medical testimony issues.
12. Memo Contra State Farm's Motion For Judicial Determination of Damages
13. Memo Opposing Defendants Motion to Quash
14. Motion to Compel in Products Liability Case
15. Memo Contra State Farm's Motion For Judicial Determination of Damages
If the document was e-mailed and you prefer, it will be e-mailed to you. Otherwise, please indicate your fax number, and "Good Hunting".
The Question: When a new client comes into the office, what is the first thing I should start thinking about?
As Plaintiff's counsel if you are unsure of the damages, or they are weak, the first place to start is by critically analyzing the damages to make sure that the case is one worth taking in the first instance. But assuming proof and the existence of substantial damages are not an issue, then where?
Many counsel and their staff just starts gathering facts, because that's what they do in every case. In a PI case out come the boiler plate letters to get the medical records, the medical bills, the witness statements, the crash report, the scene photos, etc. In a criminal defense case, you call the investigator and have him/her start canvassing the witnesses. Of course that work is necessary and appropriate. But, by taking this approach we frequently get bogged down in the minutia of collecting and categorizing case materials as though we were mere historians, instead of trial lawyers. Then we get caught up in what witnesses to call, what exhibits we will enlarge, what document to use for impeachment on cross examination, and similar activities. All this is accomplished without a real game plan in mind. By following this method of case preparation we have temporarily lost sight of our final goal - to persuade the jury.
So after the client leaves the office from that first visit, sit back, take time to ponder your client's claim and remember what all that future trial preparation effort is leading towards
The Answer: Closing Argument!
Over the years I have noticed that good trial lawyers prepare wonderfully organized trial notebooks with all the colorful dividers and tabs sectioning each phase of the trial into its appropriate parts. It contains the pretrial motion section, the trial brief, the primary pleadings, the opening statement outline, voir dire questions, the case in chief, legal research, etc. They must have each gone to same CLE seminar and have been favorably impressed by the lecture entitled - "Use Of Effective Trial Notebooks As A Winning Strategy at Trial". Their notebooks will even have a section clearly marked as "Closing Argument". But even with many seasoned trial attorneys there will be only blank pages in that section. When asked on the first day of trial why blank pages appear in this section, they will frequently respond, "I tend to wait and see how the facts develop at trial before making notes for closing." Or they will say, "Who knows what evidence will be admitted until we get to trial." In other words they leave to last, the most important preparation of all - for closing argument. I suggest that you start with closing - not end with it.
As you know closing argument is the final assembling of the facts and law, the foundation for which has been carefully constructed right in front of the jury during trial. Closing lets you tell the jury what you have built, why you have built it and how it fits into the context of all the information provided. Therefore, you must begin your work on the closing argument the very first day you take the case.
Don't just formulate it loosely in your mind. Instead, start verbalizing it! Create the theme around which the closing will be wrapped. Test how it sounds on others. Use this process to find holes in the evidence and gaps in the legal theories.
Make closing argument your continuous "work-in-progress". As each piece of information is retrieved, test it against the "WIP" closing argument, and of course make changes to it as more information is revealed. As another important fact is discovered, try in different ways to creatively describe the information, the witness, or the document. Give it or them a memorable name, like - "Maryann, the Store Clerk who Saw Everything", or "Exhibit A, The Letter Admitting the Mistake", or "Exhibit 1, the Photo of the Smashed Vehicles". Keep saying the closing argument with these descriptive references out loud, in the car, in the office, in the shower. Think about your word choice - does it emphasize or de-emphasize your theme. Closing arguments just sound differently on paper than when spoken, so you can never verbalize the arguments too often. This means saying your case over-and-over again, then revising, revisiting and doing it again.
This constant verbalization also forces you to internalize the facts of your case. Your investigator, paralegal, law clerks and others may assist you in gathering the information, but you must master it. By becoming the master of the facts that you will present in closing, you now are in the position to guide and direct your staff in shaping the facts and collecting the additional information required to support your closing argument.
Schedule time on a regular basis to visit each case file. Then begin the verbalization of your closing based upon the current facts and information. How does it play out? How does it now fit with what you know? Does it persuade, or just recite information? Have you effectively used primacy, recency and repetition? Have all the elements been covered? Eventually test it on others - your secretary, your mother, your neighbor, and a focus group. Then revise it again.
When this is done, make an outline of the highlights to use as a checklist and put that in your trial notebook. But, you won't need it! You will look that jury in the eye and exude confidence and credibility in every word and phrase. You will be a trial lawyer - not a historian.
Remember, the whole purpose of the trial was to get you to that all-crucial point in the trial - to present an effective and persuasive closing argument. So start with it and make it your guidepost for the entire claim handling and trial preparation process. Your client deserves it.
The Franklin County Trial Lawyers Association extends heartfelt congratulations to Justice Alice Robie Resnick for winning a third six-year term on the Ohio Supreme Court. Her victory demonstrates that justice is not for sale in Ohio.
Big business and the insurance industry launched a multi-million dollar covert, misleading and blatantly treacherous effort against Justice Resnick. However, relying upon her record of concern for Ohio's children and for the constitutional rights of all Ohioans, the voters responded overwhelmingly by retaining her on the Ohio Supreme Court. The lynch mob was unmasked and defeated.
We also extend congratulations to Justice Deborah L. Cook for her success in winning a second term on the Ohio Supreme Court.
In the Franklin County races, we are honored by Judge James Mason's continued service on the Franklin County Domestic Relations Court bench. Judge Mason was appointed to that Court in January, 1999, and we congratulate him on his victory in 2000.
We also congratulate and welcome Judge Jennifer L. Brunner to the Franklin County Common Pleas bench. Judge Brunner is an experienced litigator who has practiced in common pleas and appellate courts throughout Ohio. She will add recent, practical, in-the-trenches experience to the bench, and we look forward to practicing in her Court.
Judge Elect Carol Squire, an independent practitioner in juvenile and domestic relations law, has tried numerous delinquency, abuse, neglect and dependency cases in Franklin County Juvenile Court. The Franklin County Bar is fortunate indeed to look forward to Judge Elect Squire's service on the Domestic Relations/Juvenile Court bench.
We further congratulate 10th District Court of Appeals Judges Cynthia Lazarus and Peggy L. Bryant, and Common Pleas Judges John P. Bessey, David E. Cain, Dale A. Crawford, David L Johnson, Kay Lias (Division of Domestic Relations) and Lisa L, Sadler on their re-election, and thank them for their valuable continued service on the bench here in Franklin County.
Frank Todaro, Esq., Vice President of the Ohio Academy of Trial Lawyers (and Past President of FCTLA), served with many other hardworking attorneys on A.D.O.P.T. Regarding the Ohio Supreme Court election, Mr. Todaro indicated that we are very happy with the result, however, he cautioned that our celebration should be brief. "We have already begun to think about 2002," Todaro said, "when a seat on the Ohio Supreme Court will become vacant. That race will be a new ballgame," he added, "with new people and a different kind of challenge. We have to be prepared."
Mr. Todaro would like to thank all attorneys who contributed to the Academy's efforts financially and physically, and to encourage all those who did not contribute to make up for it in 2002!
The trust and confidence of Ohioans have been placed in these justices and judges. While some of our members may disagree with some of their rulings, we pledge our service as litigators and as officers of the court to these very talented jurists, and we wish them well.
By Richard A Cline, Esq., Chair and Dennis Day, Esq., Contributor
The following are some of the highlights from recent cases in the Tenth District Court of Appeals in Franklin County:
Prosecutor's Comments in Closing Argument on Defendant's Failure to Testify is Reversible Error. In State v. Belcher, Franklin Co. No. 99AP-620, September 21, 2000, the Court reversed an aggravated murder conviction and remanded for new trial after, in closing argument, the prosecutor commented on the defendant's failure to testify, finding that the comment denied the defendant's Fifth Amendment rights to self incrimination.
Search & Seizure: Flight is Basis for Terry Stop.
In State v. Holloway, Franklin Co. Nos. 99AP-1455 & 99AP-1456 (Sept. 28, 2000) the Court held that flight after a consensual encounter with police is sufficient basis to justify a Terry stop.
Prosecutorial Misconduct: Close But No Cigar.
In State v. Anthony J. Cunningham, Franklin County No. 00AP-67, Sept. 21, 2000, the prosecutor attacked defense counsel in closing argument, accused defense counsel of "playing the race card", and referred to defendant as a "snitch." While improper, Court held that such statements did not taint the jury nor prejudice the trial.
Rule 404(B): "Other Acts" Evidence Compels Reversal of Conviction. In State v. James C. Fisher , Franklin Co. No. 99AP-1497, October 17, 2000, the court reviewed when evidence of uncharged criminal acts may be admitted. State introduced fact that burglary defendant had pawned jewelry on four occasions in the month preceding the charged burglary, in which jewelry was taken.
HELD: Prior contacts with the pawnbroker irrelevant to issues in this case. Even if relevant, the prejudicial effect outweighed the probative value of this evidenced. Reversed and remanded for a new trial.
There are numerous other criminal court decisions listed and available in the November 1, 2000 report of the committee, a copy of which can be requested directly from the FCTLA office.
Negligence Law Committee Report
By Glen R. Pritchard, Esq., Chair
UDM Coverage Under Homeowner's Policies. On November 29, 2000, the Ohio Supreme Court heard oral argument in Davidson v. Motorists Mut. Ins. Co. (Dec. 9, 1999), Franklin App. No. 99AP-163, unreported, Sup. Ct. No. 00-170. The issue in Davidson is whether the plaintiff's homeowner's insurance policy qualified as a "motor vehicle policy of insurance" with which uninsured motorist coverage should have been offered pursuant to the Uninsured Motorist Statute. The Motorist Mutual homeowner's policy generally excluded liability coverage for motor vehicle accidents but provided limited coverage for injury arising from the use of non-registered recreational vehicles and for injury to "residence employees". Uninsured motorist coverage was neither offered by Motorists Mutual nor rejected by the insured when the policy was sold. The Tenth District Court of Appeals held that the policy operated, in a limited way, as a motor vehicle policy of insurance that triggered the R.C. 3937.18 requirement to offer uninsured motorist coverage. Because uninsured motorist coverage was not offered, the Court held that it was provided with the policy by operation of law.
H.B. 261, effective September 3, 1997, amended the Uninsured Motorist Statute. The amended statute includes, for the first time, a definition for "motor vehicle policy of insurance". It has been widely assumed that homeowner's insurance policies, providing limited coverage for recreational vehicles, do not fit this new definition and, therefore, do not trigger the R.C. 3937.18 "offer" requirement. However, at least one trial court has held that the amended statute does not alter the obligation of a homeowner's policy issuer to offer uninsured motorist coverage. See Burkholder v. German Mut. Ins. Co. (Nov. 1, 2000), Butler C.P. No. CI00-3058, unreported.
Continuing Saga of Scott-Pontzer - Updated. As a result of the Ohio Supreme Court's decision in Scott-Pontzer v. Liberty Mut. Fire Ins. Co. (1999), 85 Ohio St. 3d 660, many claims for uninsured motorist coverage have been brought against policies issued to employers of auto crash victims. The largest employers in Ohio are cities, townships, boards of education, and other "political subdivisions". However, the insurers for political subdivisions (usually Nationwide or its related company, Wausau Insurance) claim that Scott-Pontzer does not apply because political subdivisions are authorized by statute to purchase insurance only for employees while working in the course of their employment.
At least two trial courts have disagreed with Nationwide/Wausau: Congrove v. Wausau Ins. Cos. (Oct. 2, 2000), Pickaway C.P. No. 2000-CI-006, unreported; and Bradford v. Quint (Oct. 16, 2000), Cuyahoga C.P. No. CV-324256, unreported.
To download the courts' decisions (and some of the briefs) in Davidson, Burkholder, Congrove, and Bradford follow the instructions at: http://home.columbus.rr.com/glensworld/doclibrary.htm.
[Editor's Note: There is also an excellent brief provided by OATL member Paul Flowers on political subdivision liability that is now available (in MS Word format). Follow the instructions at http://home.columbus.rr.com/glensworld/doclibrary.htm. The document is called "Panici v. CSX".]
Worker's Compensation Committee Report
By Matt Cincione, Esq., Chair
There are numerous recent decisions that importantly impact your practice in the area of Worker's Compensation. Here are a few we believe deserve your particular attention:
Worker's Compensation Subrogation.
Holeton v. Crouse Cartage , (Case No. 00-428 Ohio Supreme Court)
Is the workers' compensation subrogation statute constitutional? Oral argument was held before the Ohio Supreme Court on October 10, 2000. Note: There was some discussion at the recent FCTLA Board meeting regarding how much money the BWC recovers through subrogation. According to Jay Hurlbert in 1998 the amount was approximately $11.5-$12 million. And in 1999 the amount was approximately $14 million. This does not include amounts self-insured employers recover on their own. Does this seem low? Self-Insured Employer reimbursement from the state Surplus Fund. State Ex. Rel. Sysco Food Services of Cleveland, Inc. v. Industrial Comm., (2000), 89 Ohio St. 3d 612.
Worker's compensation allows a claimant to receive compensation even if the self-insured employer appeals the award administratively or to court. If later the award is reversed the law allows the self-insured employer to recover this money. In Sysco the court had to decide how that procedure works. The state argued that the self-insured employer should only get a credit charge against its future assessment. The court found that the worker's compensation law allows the self-insured employer to recover this money directly form the State Surplus Fund. Worker's compensation assures that if the claimant wins he/she should receive the compensation and not be tied up with endless appeals. The surplus fund is set-up by premiums paid by all employers for the employer to recover benefits paid to the claimant when the award is later reversed. This decision gives the self-insured employer the right of direct reimbursement.
Thirty-day cooling off period applicable to self-insured cases.
Gibson v. Meadow Gold Dairy (2000), 88 Ohio St. 3d 201.
Worker's compensation law provides a mechanism for settlement of claims when they have been appealed to common pleas court from the Industrial Commission (O.R.C. 4123.65). The Court confirmed the provision that provides a 30-day cooling off period before the settlement check can issue to afford any of the parties to withdraw their consent to settlement entered into in the common pleas court. Entries should be drafted accordingly.
Reconsideration in the Supreme Court; it happens.
State ex. rel. Baker v. Industrial Comm., (2000), 87 Ohio St. 3d 561(Baker I)
State ex. rel. Baker v. Industrial Comm., (2000), 89 Ohio St. 3d 376 (Baker II)
In Baker I the court held that a claimant who leaves his former position of employment for reasons unrelated to an industrial injury forfeits temporary total eligibility. The decision was 7-0 per curium. Motions for Reconsideration were filed and the court agreed to hear the matter again. By a 7-0 decision the Supreme Court reversed itself.
In Baker II the court held:
When a claimant who is medically released to return to work following an industrial injury leaves his or her former position of employment to accept another position of employment, claimant is eligible to receive temporary total disability compensation pursuant to Ohio Rev. Code sec. 4123.56(A) should the claimant re-aggravate the original industrial injury while working at his or her new job.
Probate Law Committee Report
By Bryan D. Johnson, Chair
Make Sure Your Contingent Fee Agreement Is Pre-Approved By The Probate Court
When representing a fiduciary in the pursuit of wrongful death or personal injury claims, remember that the Probate Court has exclusive jurisdiction over the approval of your attorney fees and expenses. Rule of Superintendence 71(I) requires you to obtain prior Probate Court approval before the fiduciary may enter into a contingent fee contract with you. A written application seeking specific authority to enter into the contingent fee contract must be filed with the local Probate Court in order for the Court to approve the action of the fiduciary in entering into this fee contract. This rule also provides that the contingent fee may later be revised by the Probate Court depending upon the results obtained.
Many local Probate Courts modify the procedure that must be followed in their court in order to obtain Probate Court approval of your fee. Franklin County Probate Court Local Rule 71.8 provides that the written application for authority to enter into the contingent fee contract must be accompanied by a case plan, time projection, and estimated costs. These documents may be reviewed in camera by the Court. This local rule also provides that any attorney fees incurred in bringing the proceedings before the Probate Court shall be assessed as a portion of the contingent fee, unless otherwise ordered by the court. I have provided forms for the pre-approval of these fees to Tom King at the FCTLA office for your reference.
If you fail to obtain prior approval of your fee by the Probate Court, then the Court may refuse to approve your fee when settlement or judgment is obtained. The written fee contract that you have with your fiduciary is unenforceable unless the fiduciary had received prior approval from the Probate Court. For examples of lawyers who learned this the hard way, refer to In re Estate of Hamrick (1998), 126 Ohio App.3d 624 and In the Matter of the Settlement of Stillwell, CA99-06-112, 2000 Ohio App. LEXIS 1589 (Butler Co., Apr. 10, 2000). These cases are examples of signed contingent fee contracts that were held unenforceable because no prior Probate Court approval was obtained.
It has links to other useful trial lawyer websites and the current calendar of events for 2000-2001. If you want to e-mail a question or raise an issue to the entire list of members of FCTLA then send the e-mail to: firstname.lastname@example.org
B. Ethics Seminar with FREE Food
WHEN: Wed., December 13, 2000
TIME: 4:45 p.m. to 8:30 p.m.
WHERE: Digerati Link Conference Centers,
1 Easton Oval, Columbus, Ohio.
[Easton Shopping Center]
C. Fibromyalgia CLE Seminar and Dinner meeting In January
On Tuesday, January 16, 2001, following dinner at the Athletic
Club, at no additional charge, a respected medical expert, Edwin
Season, M.D., will present a one-hour CLE program titled
"Fibromyalgia and other Functional Illnesses-Are They Real
Disabilities?" You will also receive one hour of CLE credit.
D. Trial Advocacy Seminar and CLE at
February Dinner Meeting
On Thursday evening, February 22, 2001, at 5:00 p.m. Judge Ralph
Adam Fine, a nationally recognized speaker and author on the art
of persuasion and trial advocacy, will be the keynote speaker and
provide one hour of CLE on winning trial techniques. This is an
opportunity and program you will not want to miss! Besides the
delicious meal at the Athletic Club you get CLE credit for free.
E. FCTLA Board Seeking Your Comments
After considerable thought, your FCTLA Board decided to hold the
2000-2001 events at The Athletic Club. Does this location meet
with your personal needs? If so, why? If not, why not? Where
would you like the FCTLA to meet? Send your comments about these
and other concerns and issues relating to the FCTLA to Bill Mann,
Mitchell, Allen, Catalano & Boda, 490 South High Street,
Columbus, Ohio 43215, or via e-mail at:
email@example.com . Bill will share your comments with the
Editor's Correction - Summer 2000 Edition,
Please note that in the last issue of Quarterly Comment the
Editor incorrectly stated that William Mann, Esq. was a member of
the Ohio Supreme Court's Board of Commissioners on Grievances and
Discipline. It should have stated that Mr. Mann is a member of
the Ohio State Bar Association's Legal Ethics and Professional
Conduct Committee and is a member of the Supreme Court of Ohio's
Commission on Professionalism. We apologize to Mr. Mann and the
Quarterly Comment readers for any misunderstanding this may have
About your Contributors:
Brad Koffel concentrates his practice primarily in the area of
DUI defense in central Ohio. For more information regarding Ohio
DUI issues, you may visit his website at
or e-mail him at
Please feel free to contact him regarding any problems you or
your clients may be having. He may be reached at 614-481-4480.
Jane Koprucki is an associate with the Maxwell Law Firm and
practices in the areas of plaintiff's personal injury, domestic
relations and criminal defense. She is also a trustee of the
Franklin County Trial Lawyers Association.
Timothy J. Boone has been a trial lawyer for twenty-three years,
has been an adjunct professor of law at Capital University Law
School since 1991 teaching basic Trial Advocacy skills, and will
teach Advanced Trial Advocacy [The Art of Persuasion] beginning
next semester. He is frequently called upon to make
presentations throughout the state on trial related topics for
the Ohio State Bar CLE Institute. He has also lectured for the
Ohio Academy of Trial Lawyers, National Business Institute, Inc.,
and the Columbus Bar Association, and is co-author of The
Essential Techniques Involved in a Jury Trial (NBI, 1996). If
you have a question you would like answered in the next issue of
Quarterly Comment, send it via e-mail to:
C. Fibromyalgia CLE Seminar and Dinner meeting In January
On Tuesday, January 16, 2001, following dinner at the Athletic Club, at no additional charge, a respected medical expert, Edwin Season, M.D., will present a one-hour CLE program titled "Fibromyalgia and other Functional Illnesses-Are They Real Disabilities?" You will also receive one hour of CLE credit.
D. Trial Advocacy Seminar and CLE at February Dinner Meeting
On Thursday evening, February 22, 2001, at 5:00 p.m. Judge Ralph Adam Fine, a nationally recognized speaker and author on the art of persuasion and trial advocacy, will be the keynote speaker and provide one hour of CLE on winning trial techniques. This is an opportunity and program you will not want to miss! Besides the delicious meal at the Athletic Club you get CLE credit for free.
E. FCTLA Board Seeking Your Comments
After considerable thought, your FCTLA Board decided to hold the 2000-2001 events at The Athletic Club. Does this location meet with your personal needs? If so, why? If not, why not? Where would you like the FCTLA to meet? Send your comments about these and other concerns and issues relating to the FCTLA to Bill Mann, Mitchell, Allen, Catalano & Boda, 490 South High Street, Columbus, Ohio 43215, or via e-mail at: firstname.lastname@example.org . Bill will share your comments with the Board.
Editor's Correction - Summer 2000 Edition, Quarterly Comment
Please note that in the last issue of Quarterly Comment the Editor incorrectly stated that William Mann, Esq. was a member of the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline. It should have stated that Mr. Mann is a member of the Ohio State Bar Association's Legal Ethics and Professional Conduct Committee and is a member of the Supreme Court of Ohio's Commission on Professionalism. We apologize to Mr. Mann and the Quarterly Comment readers for any misunderstanding this may have created.
About your Contributors:
Brad Koffel concentrates his practice primarily in the area of DUI defense in central Ohio. For more information regarding Ohio DUI issues, you may visit his website at www.buckeyedui.com. or e-mail him at email@example.com.
Please feel free to contact him regarding any problems you or your clients may be having. He may be reached at 614-481-4480.
Jane Koprucki is an associate with the Maxwell Law Firm and practices in the areas of plaintiff's personal injury, domestic relations and criminal defense. She is also a trustee of the Franklin County Trial Lawyers Association.
Timothy J. Boone has been a trial lawyer for twenty-three years, has been an adjunct professor of law at Capital University Law School since 1991 teaching basic Trial Advocacy skills, and will teach Advanced Trial Advocacy [The Art of Persuasion] beginning next semester. He is frequently called upon to make presentations throughout the state on trial related topics for the Ohio State Bar CLE Institute. He has also lectured for the Ohio Academy of Trial Lawyers, National Business Institute, Inc., and the Columbus Bar Association, and is co-author of The Essential Techniques Involved in a Jury Trial (NBI, 1996). If you have a question you would like answered in the next issue of Quarterly Comment, send it via e-mail to: firstname.lastname@example.org .