May 2006 Archives
I've had two lawyers ask me so far if I'm doing this to make money. Actually, my wife's not completely convinced that my law practice is intended to be profitable. As she said the other night, "The only thing that amazes me more than what you'll do for money is what you'll do for no money."
Speaking of no money... A personal injury defense lawyer once told me that the McDonald's coffee case was the best thing that ever happened to the insurance industry. More than a decade later, after countless stories of juries returning defense verdicts in cases of admitted liability, I don't think there's much room to debate that proposition.
Actually, there are three different ways in which plaintiffs can get hammered here.
In State v. Moore, the court reiterates for the umpteenth time that preparation of drugs for sale and sale of drugs are not allied offenses of similar import, and that the defendant can be sentenced for both. There's also case law which holds that possession and trafficking aren't allied offenses, but there may be a situation where it is.
An interesting case came down last week that could have major ramifications on the way expert testimony is prepared. The plaintiffs' experts in a wrongful death case were deposed, and testified that they discussed their findings with a nurse-paralegal working for the plaintiffs' attorney, who then prepared a report which the experts signed. Could the defense use that as a justification to take the deposition of the nurse-paralegal?
A gorgeous Sunday morning, marred only by the news of an outbreak of bird flu in Parma. On to the law....
Location, location, location. Every criminal defense attorney knows that the Cleveland Police Department subscribes to Tuco's Law of Human Dichotomies in believing that there are two kinds of people in this world: those who live in "high crime areas," and those who don't, the former group coinciding fairly precisely with the population of the City of Cleveland.
Fortunately, it hasn't spread to the suburbs, at least according to the court in Euclid v. Favors, which involved the propriety of a stop and frisk by a Euclid policeman.
The "wet basement" case -- every lawyer's favorite -- is the subject in Zappitelli v. Miller. The plaintiffs had shelled out over half a million dollars for the property, only to find a week later that the basement was flooded and that the land around the house looked like the set of Waterworld. To top it off, the plaintiffs learned that a few days before the sale, the defendants had been told of the presence of active mold in the basement, but kinda forgot to put that on the disclosure form. The plaintiffs sued, and were awarded $134,000 in damages for fraud, negligence, and breach of contract. The defendants appealed the verdict, and the plaintiffs cross-appealed on the denial of their request to rescind the contract, and of attorney fees.
The court rejected the defendants' arguments, which challenged the verdict, then turned to the cross-appeal. It held that rescission wasn't an available remedy because the disclosure statute, RC 5302.30(K), essentially prohibits rescission as long as the seller provides the required disclosure form.
Spruced up the site a bit. I also turned on the comments, so you can respond to any of the posts, and you can also drop me a line if you'd like.
The police set up a buy of five ounces of crack, and when the deal goes down, they wind up with 130 grams of baking soda for their troubles. Can the seller be given an additional ten-year sentence as a major drug offender?
To the average person, that question might have a certain Alice in Wonderland quality about it, but it's always been the law that one can be convicted of offering to sell drugs even when the "drugs" are bogus. (In fact, the Court ruled back in 1987 in State v. Mughni, 33 Ohio St. 3d 65, that offering to sell drugs which turned out to be fake and selling counterfeit substances under RC 2925.37(B) weren't allied offenses: a defendant could be convicted of both.) But in a case decided yesterday, the Supreme Court rules that some measurable quantity of an actual controlled substance has to be present in order to impose the MDO penalties.
The court reverses a conviction in State v. Strowder because the trial court didn’t permit defense counsel to cross-examine the co-defendant, who’d copped a plea and was testifying for the state, about the potential penalty he’d faced if he hadn’t worked out a deal. Howard, the co-defendant, was facing 100 years, and wound up with eight after a plea. The state argued that what Howard could actually get was irrelevant; the proper focus was on what Howard believed he was facing. While that argument is correct – the co-defendant’s subjective belief is the relevant inquiry for bias – the court found that Howard’s equivocations about how many counts he was looking at warranted full cross-examination as to the penalties.
Strowder cites approvingly, and at some length, the Hamilton County Court of Appeals decision in State v. Gonzalez, which deals with the subject in much more detail. In addition to discussing why the focus should be on the co-defendant’s subjective belief, Gonzalez sets up a two-part test for determining how far defense counsel can go in cross-examination: since the exposure of a witness’ bias is a "core value" of the right of confrontation, the appellate court will review that de novo, but once defense counsel has been allowed to point that out, the trial court can impose limits on how much counsel can "hammer the point home," and the court’s decision will be reviewed only for abuse of discretion. It’s an interesting case, and one a defense lawyer should have handy when faced with the prospect of cross-examining an accomplice who’s turned state’s evidence.
Got appointed to represent a defendant in a car theft case, so I went over to the jail today to interview him. We went through the preliminaries, and then I asked him to tell me what happened. "Well," he says, "I'd gotten out of prison earlier that day..." That'll look good on the "Defendant's Version" section of the presentence report.
On to the law.
These boots weren't made for walking... An employee is required by his company to wear heavy-duty workboots on the job, and although the employee decides which boot to purchase, the company has to approve the choice. The employee then winds up with an ulcerated blister on his foot because the boot proves defective. Is this covered by workers comp?
No, according to Anderson v. Sherwood Food Distributors. Judge Corrigan's majority opinion holds that while the injury occurred in the course of Anderson's employment, it didn't occur within the scope of his employment: "his employment did not cause the blister - his defective boot did." The court distinguishes a 1930 case in which the employee had died - yes, died - from a blister caused by walking over rough ground at a construction site; in this case, the court holds, "nothing particular to the Sherwood workplace contributed to the injury." Judge Blackmon's dissent argues that the what the court is actually doing is applying the "special hazards rule," by holding that in order to be compensable, the injury must arise from some facet of employment that the general public is not exposed to, and that the special hazards rule has no application where the injury actually occurs on the employer's premises.
The trial judge's competency examination of a 12-year-old alleged rape victim was not sufficient, holds the court in In re J.M., in light of the witness' substantial mental disabilities:
The record is replete with indications that B.D. was in special education classes, that she had and continues to have imaginary friends, that she had at least one past diagnosis of schizophrenia, and that her ability to recollect even routine information such as the day, month, and year was severely limited.
Judge Kilbane's opinion contains an excellent summary and analysis of the law pertaining to competency of a witness under Evid.R. 601(A), and the procedure the courts should use in making that determination.
The defendant was indicted in 1999 for crimes that occurred one or two years earlier. The regular-mail letter with the summons was returned "address unknown." The state made no further attempt to serve the defendant until it located him in a Federal prison in 2005. The defendant moved to dismiss the indictment on statute of limitations grounds, and the trial court agreed.
So did the appellate court.
It sometimes amazes me how the law turns on the slightest things. One of the attorneys in my office has a medical malpractice case, and had sent out a 180 day letter under ORC 2305.113 extending the statute of limitations. Actually, being a very cautious sort, he had sent out three of them: a letter to the doctor's office, a letter to the doctor's home, and then had hand-delivered yet another notice to the doctor's office, all within about a month's period of time. The question now is, does the time for filing run from the first letter or the last letter?
A reminder by the court in Olynyk v. Andrish that you can voluntarily dismiss a case more than once, if you're careful. Rule 41(A) actually provides three means of dismissing your case: by simple notice by the plaintiff, under 41(A)(1)(a), by stipulation of the parties, under 41(A)(1)(b), or by order of court, under 41(A)(2). Without getting into the procedural history in Olynyk, which is as confusing as the DHARMA Initiative's orientation film on Lost, the plaintiff had requested the court to dismiss the case once, and then later filed a notice dismissal. The trial court entered an order treating this as a dismissal with prejudice. Judge Gallagher's opinion in Olynyk contains a thorough review of Ohio law showing that the "double dismissal" rule applies only to notice dismissals under 41(A)(1)(a). Judge McMonagle, in her concurring opinion, also notes correctly that the trial court had no authority to enter its order after the dismissal; once the notice of dismissal is filed, the trial court loses jurisdiction.
When the prosecutor reads me the police report at the first pretrial, I'm always pleasantly surprised when the cops' version bears at least a vague resemblance to what my client has told me. So I'm pleasantly surprised: according to the report, the police had seen him standing near a bus stop with an open container of beer, had approached him to give him a citation, patted him down, and felt a hard cylindrical object in his pocket, which of course turned out to be a crack pipe. Oh, sure, the police didn't corroborate his claim that the bottle had been merely sitting next to him on the bench, rather than in his hand, and there was no mention of the two women who he said were there with him, one of whom had been kind enough to furnish the jacket in which the crack pipe was found. But those niggling details wouldn't be a problem. I told the prosecutor that I'd be filing a motion to suppress. He laughed at me. "The guy had an open container!" Another defense attorney at the table pointed out that the police only give a citation for an open container, but shrugged in agreement with the prosecutor's claim that that was good enough to justify a stop and frisk.
So a few weeks later, we had the hearing, and the evidence gets tossed quicker than a Taco Bell burrito after eight beers. What happened?
No sympathy for the plaintiffs, an 80-plus-year-old couple, who tripped and fell while trying to negotiate a snowpile in front of a Denny's restaurant. As we all know, one of the hazards of living in Ohio - besides enduring botched elections and botched executions - is being left without anyone to sue for a fall on ice or snow. Of course, that only applies to a "natural accumulation of ice and snow," leaving a potential remedy for those whose falls are occasioned by unnatural accumulations. That was the question in Dunbar v. Denny's Rest.: the parking lot had been plowed, and the plowing company piled up the snow up in front of the handicapped entrance. The elderly couple argued that the restaurant and the snow-plowing company "were negligent in creating a dangerous condition when [they] altered the natural accumulation of ice and snow by plowing the parking lot so as to create an unnatural mound of snow in front of the restaurant handicap ramp entrance."
The court wasn't buying. Noting prior decisions which had held that "when snow and ice are piled up by plowing or shoveling and then thaw and refreeze, the resulting ice is a natural accumulation," the court found that the ridge of ice and snow at the entrance to the handicapped ramp was an open and obvious hazard. If I were somewhat more enterprising, I might look up how the Americans with Disabilities Act might affect this situation.
The court deferred for another day resolution of whether the food at Denny's constitutes an open and obvious hazard.
Word of caution to all those small business owners out there (a lot of them lawyers) who are writing off 80% or more of the cost of the car as a business expense: it might take you out of the coverage of the Consumer Sales Practices Act. That's what happened to the plaintiff in Lecso v. Toyota of Bedford, Inc. She'd sued Toyota for various problems, but the court held that the CSPA didn't apply, given that "Lecso testified that she primarily used the vehicle (95% of the time) for business purposes." The CSPA applies only to "consumer transactions," which are confined to "the sale of an item of goods or services to an individual 'for purposes that are primarily personal, family, or household.'"
It's Sunday morning, so it's a good time to be a little self-indulgent. (As Dorothy Parker once said, "Well, that's enough about you. Let's talk about me.") Law blogs are hardly new; in fact, there's a term for them: "blawgs." They're not new in Ohio, either. The law school at the University of Akron has a site which discusses the subject, and gives the rundown on a number of blawgs. Some cover Ohio law generally, some cover specific areas, some just tell war stories. There's one by a young lawyer "with a strong interest in LGBT issues." My guess is that if you don't know what that stands for, you probably wouldn't be interested.
As I explain in the "About the Site" section, this is going to be a good bit narrower. It's also going to be a work in progress, especially aesthetically. There's a lot I want to do with the site, and it'll probably get a little dressier in a couple of months. One of the things I'd like to have a button that you can click to send me an email telling me whether you like this idea or pointing out when I goof up. I'll have that up soon.
Eventually, I'd like to use this site to set up sort of a forum for local lawyers to exchange cases, tips, stories, strategies, whatever. Pooled knowledge is a powerful thing. That's well down the road, though. For now, what you've got is me.
Well, that's enough self-indulgence. Powered by my second cup of Dunkin' Donuts coffee (French Vanilla), on to the law.
If you've filed a complaint that doesn't pass the giggle test, and think that voluntarily dismissing it can avoid sanctions, think again. In Brown v. Hageman and Gitlin v. Plain Dealer Publishing Co., the court says that the trial judge retains jurisdiction to grant sanctions for frivolous conduct even after a Rule 41(A) notice of voluntary dismissal.
And an interesting case on sanctions is Orbit Elecs., Inc. v. Helm Instrument Co. The court holds that a trial judge's decision on sanctions can be reviewed only for abuse of discretion, but then divides the kind of conduct that can warrant consideration of sanctions into "factual" and "legal" determinations. A factual one is where the action is imposed when "a party engages in conduct to harass or maliciously injure another party," while a legal one is "whether the claim is warranted under existing law." Interestingly, the court determines that the legal determination can be reviewed de novo by the appellate court, because it's a question of law, while at the same time reaffirming that the decision whether to grant sanctions won't be reversed absent an abuse of discretion.
The trial judge erred in not awarding costs for law clerks as part of attorney fees recoverable for a consumer sales practice act violation, the court holds in Jarmon v. Friendship Auto Sales.
The lower court had awarded damages of $2,500 to the plaintiff, trebled that to $7,500, but then awarded only about $3,500 of the nearly $13,000 in attorney fees that were requested, discounting the charges for law clerk time in their entirety. The appellate court noted that use of law clerks should be encouraged, because it reduces the cost of litigation. Given that the law clerk expenses were more than the trebled damage award, I'm not sure that contention is justified.
The fallout from State v. Foster, the Supreme Court's recent decision nullifying Ohio's sentencing scheme, continues. In State v. Congress, the 8th District vacates a sentence in which the defendant was given more than the minimum sentence. Since the defendant had never served prison time, "the trial court imposed more than the minimum sentence after making findings pursuant to the provisions of R.C. 2929.14(B)..." But since the Supreme Court declared those statutes unconstitutional and "excised [them] from the statutory scheme, . . . defendants that were sentenced under unconstitutional and now void statutory provisions must be re-sentenced." And in State v. Woods, the court vacates a maximum, consecutive sentence and remands it back for resentencing.
You're defending a case in which your client was never actually served. You raised insufficiency of service of process as an affirmative defense in your answer. If the plaintiff never gets proper service, can you wait until a few days before trial and then move to dismiss the complaint?
Sort of a News of the Weird type item. You try a murder case in which the prosecution submits tissue sample slides of the victim. You go to grab a sandwich while the jury is deliberating, but hustle back to the courtroom when the bailiff calls and tells you the jury has a question. You're hoping it's something like a request to reread the instructions on reasonable doubt or the lesser included offenses, and not "Do we get to send this guy away for a really long time, or does the judge get all the fun?" When you get there, you find the jury wants a microscope brought into the deliberation room to allow them to view the slide evidence, because one of the jurors is a "trained and certified microbiologist."
The trial court says no, and the court in State v. Pudelski agrees that that's just a tad over the top in terms of the jury doing its own investigation.
I think I saw something like that on an episode of Quincy once.
The police pull over a car, and a search finds enough drugs to keep Robert Downey happy on his next movie set. The defendants are indicted for several drug offenses and work out plea deals, one defendant copping to a fifth degree felony and the other to a first degree misdemeanor. A few weeks later, the grand jury indicts the defendants for several more drug offenses arising out of the same stop. The prosecution argues that the indictments were delayed because the BCI took so long in analyzing the drugs that were sent to them.
Too bad, says the court in State v. Lloyd, not only agreeing with the trial judge that the second prosecution violated the collateral estoppel principles of double jeopardy, but the defendants' speedy trial rights as well.
The court holds that the trial judge went too far in dismissing the indictment for failure to provide discovery in State v. Warfield, holding that the lower court should have imposed a less Draconian sanction, such as exclusion of the evidence at trial.
Maybe, but then again. . . . The trial court had ordered the prosecution to produce a rental receipt, which was the key evidence, by the pretrial date of February 17, 2005. This is the colloquy between the judge and the prosecutor on that date:
The Court: You talked to Detective Pirinelli and he said he was not bringing it?
Ms. Cameron: That’s correct, but I talked with him last week.
The Court: Oh, okay was there a reason why he was refusing to bring it?
Ms. Cameron: He’s not on duty now and he doesn’t have a subpoena so he wasn't going to come down to court.
The Court: You’re saying a week ago he said I won’t bring it because I’m not under subpoena?
Ms. Cameron: He told me on February 11th.
The Court: That he’s not on duty today and he wouldn’t bring it without a subpoena?
Ms. Cameron: Yes.
The Court: Did you issue a subpoena?
Ms. Cameron: No, Your Honor, I didn’t have authority to.
That's the kind of thing that will make you give some serious thought to a jury waiver on remand.
Your client comes in and tells you that she just bought a car from a local dealership. The salesman assured her it was a new car, but it turns out it wasn't. Visions of treble damages and attorney fees under the Consumer Sales Practices Act dance in your head, plus there's the prospect of whipping the jury into a sufficient frenzy to award punitive damages. (And let's face it: if you can't whip a jury into a frenzy against a lying car salesman, you should be looking for another line of work.) Then you get around to reading the purchase agreement, and there it is: a clause specifying that any disputes arising under the agreement have to be submitted to arbitration. No jury. No frenzy.
Well, cheer up, things might not be so bleak. In Olah v. Ganley Chevrolet the court reverses the trial judge's grant of a motion to stay proceedings pending arbitration.
I suppose the first post on a new blog should be clever. This one isn't. Welcome, and I hope you'll get something out of this.
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