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Case Update

The US Supreme Court's concluded its term, and I'll have a recap of the significant decisions on Wednesday.  Down in Columbus, big news for personal injury lawyers, and the doctors/chiropractors/clinics that treat their clients.  It's not unusual for a medical provider to have a patient sign a form assigning the provider rights to payment for the medical services against the tortfeasor (and his insurance company).  In West Broad Chiropractic v. American Family Ins., the court agrees with the 10th District that such assignments are invalid, although four other appellate districts have held to the contrary.  The certified questions were whether an injured party who hadn't established liability for the accident or present right to settlement proceeds, and thus had only a conditional right, could assign that right to the provider, and whether the provider could then bring an action directly against the tortfeasor's insurer.  No to both.

The decision in Greenspan v. Third Federal is not interesting for its holding, which is that a private action to recover for the unauthorized practice of law didn't exist until the legislature amended the statute in 2004 to provide for one, but for its procedural history.  The court reverses an 8th District decision to the contrary, but notes that the 8th District had decided a case the previous year, Crawford v. FirstMerit, which had come to the opposite conclusion on the same facts.  A different panel had decided Greenspan, and had acknowledged the conflict with Crawford, but dismissed it by declaring that Crawford was "simply in error."  The Supreme Court chides the 8th for not convening "en banc to settle the conflict between the two decisions."

Properly chastised, let's see what the 8th (and the other districts) came up with last week...

Criminal.  10th District rules that in determining whether, for purposes of registration as a sex offender, out-of-state conviction is "substantially equivalent" to an Ohio offense, each offense need not have same elements... 5th District says that if you're going to raise issue of allied offenses, you have to do it at sentencing or an appeal from that; it's too late to raise it on appeal from revocation of probation... 12th District says that officer's testimony as to defendant's age, without introduction of supporting documents such as LEADS printout or drivers license, is inadmissible hearsay... 6th District says that search affidavit based only on claims of informant that defendant was selling drugs from his apartment, and presence of surveillance cameras on scene, insufficient to establish probable cause, good faith... After defendant convicted of murder, court advises defense counsel that two jurors told bailiff they'd looked in law dictionary; 12th District affirms denial of motion for new trial, says aliunde rule requires outside proof of juror misconduct, what jurors told bailiff doesn't qualify...

Civil.  Savings statute can be used only once, says 10th District; where first case voluntarily dismissed and refiled case dismissed for lack of jurisdiction, further filing not allowed... 8th District reaffirms rule that attorney fees can't be awarded in fraud case unless there's also an award of punitive damages... Thorough discussion of forum non conveniens doctrine in this 12th District case... But that doctrine doesn't apply to intrastate transfers, says 4th District in uphold refusal of court to transfer divorce case from Ross to Cuyahoga County... 3rd District holds that party claiming trial court erred by not finding value of 401(k) in divorce case waived error by not presenting his own valuation...

A word to attorneys who've been stiffed.  Yeah, that guy you got off on the domestic violence case never paid the balance of his bill, and you've been waiting out the year to sue him so he can't muck up things by filing a counterclaim for legal malpractice.  As the 10th District reminds us in Shottenstein v. C. J. Mahan, it ain't necessarily so:  back in 1984, the Supreme Court held that such a counterclaim could be filed even after the statute of limitations had expired, as long as it arose from the same transaction and was limited to recoupment; in other words, the claimed malpractice was in the same matter the attorney was suing for fees, and the damages on the counterclaim did not exceed the amount the attorney was claiming.  The 10th District case also includes a good discussion of the requirements of expert testimony in an affidavit in a legal malpractice claim.

Strategic tips for appeals, Chapter 37.  If you're going to appeal a drunk driving conviction, you might want to skip the claim that the evidence was insufficient to show that your client was intoxicated if the record reflects that your client told the cops he'd had fifteen beers that night.

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