Amicus Curiae is Latin and means friend of the court. Mark was chosen to be an Amicus Curiae brief writer on a case pending in the Ohio Supreme Court. The case is Griffith v. Aultman Hospital, 2014-Ohio-1218. The Griffith case started in the Stark County Court of Common Pleas and went to appeal in the Fifth District Court of Appeals. From there the lawyers prosecuting the case appealed to the Ohio Supreme Court. It was at that juncture that Mark was asked to be an Amicus Curiae representative at the jurisdictional level in the Ohio Supreme Court.

In most instances the Ohio Supreme Court can pick or choose the cases they wish to accept. The criteria for them accepting a case is whether they believe a case is of great public interest or is an unsettled area of the law that needs to be resolved. Statistically the Ohio Supreme Court only accepts about 2% of the cases that are presented to it. The Griffith case was accepted by the Ohio Supreme Court. Now the Supreme Court will address the case on its merits. Mark will act in his capacity as Amicus Curiae on this case presenting the arguments as to why a hospital should be required to turn over all medical records of a patient upon that patient’s request for those records.                 

In the Griffith case when Mr. Griffith requested all the medical records from Aultman Hospital, not all of the records were provided. It came to light that Aultman housed some sensitive records outside of their medical records department. In this particular case critical records had been directed to the risk management office essentially keeping them away from the patient. Aultman’s attorneys argue that the hospital should only have to turn over records that are kept in the medical records department. The fallacy in that argument is that the hospital is the one who decides which records to put in the medical records department and which records to direct to and keep in other departments. Essentially that allows the hospital to hide patient records. The case is currently pending before the Ohio Supreme Court. Oral arguments have not yet taken place for the case.

Mark was also requested by his peers to present a continuing education lecture on introducing insurance and subrogation law to new lawyers. This will take place at the state- wide continuing education seminar in Columbus in May. It is gratifying to have the respect of your peers and the request for help in their cases. It’s also nice to receive recognition of expertise in your area of practice by being selected to help teach that field to new lawyers. Unlike most lawyers who practice in a broad range of areas, our firm is dedicated to the representation of injured people which by its very nature brings us into conflict with insurance companies on a regular basis. To fully represent injured people attorneys must understand insurance law and be able to deal with the complexities presented by insurance law and the facts of a particular claim. As Mark often tells clients if “I settled their case for a million dollars they might initially be happy but if  I later told them that they had to pay back to their health insurance company a million and one dollars, that would leave them a dollar in the hole”. The Ohio Legislature (99 representatives and 33 senators ) whose campaign war chests are full with insurance company dollars have changed laws such that it not only matters how much you collect for a client in present time, but you must be able to retain it so that it is not taken back by the competing interests of a client’s insurer.

From the NFL all the way down to Little League, sports authorities have recently taken steps to better protect players from traumatic brain injuries (TBI’s). While most of us are not suiting up for physical sports, we are all routinely riding around in vehicles. In essence, all of our brains are regularly cruising around at 30, or 45, or 70, miles an hour.

The brain is a free floating mass inside the skull. While brain matter is soft, the skull is hard. An injury occurs when the brain hits one side of the skull and bounces backwards to the other side of the skull. Think of putting an egg inside a glass Mason jar and filling it with water. Do you think you could shake the jar hard enough to crack the egg? Not surprisingly, TBI’s frequently occur in motor vehicle crashes. Side impacts snap a person’s head sideways impacting the door pillar or window. TBI’s can also occur in a rear end collision or in a front impact collision or when the head does not impact anything. If the skull is thrown in one direction and snapped back in the other direction, an injury is likely. Simply put: all that is required is the rapid acceleration and deceleration of the head. The inside of the skull is not smooth, but has rough and jagged edges. These abrasive edges can cut and sheer on brain tissue as it is forcefully thrown backwards and forwards in the skull. 

Symptoms of injury can range from mild to profound. If the skull is not broken, the injury is classified as a closed head injury. Closed head injuries often do not show up in CT scans or MRIs. 

A concussion is classified as a mild TBI and by its very diagnosis cannot be seen in any CT scan or MRI. For too long, the effects of TBIs or concussions have been downplayed. Even the very existence of a concussion is often dismissed in particular patients.

If there is visible damage in a CT scan or MRI it is not a mild TBI, but a moderate or greater TBI. “Mild TBI” however should not be confused with minor. Symptoms from a TBI can manifest in many forms: headaches; dizziness/vertigo; nausea/vomiting; double vision; inability to pay attention; loss of concentration; forgetfulness; sensitivity to light; seizures; difficulty with reasoning, problem solving  or judgment; irritability; or depression. Symptoms can be short-lived or indefinite.

Research is now showing that a second concussion while still recovering from a first concussion can cause exponentially more damage than two single events spaced far enough apart the brain has had an opportunity to recover from the initial TBI. Once you have a concussion, you are at a far greater risk for significant brain damage if you suffer a second concussion while recovering from the first concussion. This finding has led to the implementation of concussion protocols in the sporting world.

The head and the neck are extremely vulnerable in a motor vehicle collision.  Advances in automotive safety have reduced those risks, but they are far from eliminated. Airbags may keep you from being launched through a windshield, but they hit with such force that they can cause a concussion. If you are traveling at 35 mph and hit another object the car will stop suddenly; your head however continues to travel forward- and more importantly your brain inside your head continues to travel forward- at 35 mph.  An airbag is deployed at 200 mph to meet your head before it crashes into the windshield. The airbag stops your head from the 35 mph forward momentum and takes it backwards at 200 mph. As the skull is stopped and shoved backwards the brain inside impacts the front of the skull as it comes to a stop and then is propelled backwards only to hit the back of the skull when the head abruptly comes to a rest against the headrest.

In any type of a collision the head is going to be thrown in one direction or another only to come to an abrupt stop and to be snapped back in another direction either through reaching the end of the limitations of the physical body or with the aid of some structure in a vehicle (airbag, window, pillar, headrest).  For a long time traumatic brain injuries were ignored and the symptoms chalked up to symptoms associated with the neck injuries (whiplash) that occur in these collisions.  Because medical imaging was negative it was assumed no damage to the brain had occurred.  

Research however now shows that the brain does truly suffer significant damage at a microscopic level undetectable in modern imagery and it is those injuries that account for the symptoms that once were so often dismissed. 

If you or someone close to you is in a collision and are exhibiting symptoms of a traumatic brain injury it is important that you note those symptoms to EMS and/or emergency room personnel so that adequate testing can be ordered to determine if it is a mild closed head injury or if there is something more profound going on that needs more attention. 

Since the skull is an enclosed space, when the brain is injured to the point that swelling occurs, the force of the swelling can actually cause more damage as the pressure builds inside the skull. Sometimes in these situations holes are drilled through the skull by neurosurgeons which allow the pressure in the brain to dissipate. While that treatment is certainly not a pleasant one it is far more desirable than allowing increased pressure to cause damage to brain tissue resulting in permanent brain damage.

At Willis and Willis Co., L.P.A., we have handled hundreds of cases involving some form of a TBI. These cases pose unique challenges not just to you and your medical providers, but to your attorneys as well. Experience matters, and building these cases correctly from the ground up is the only way to obtain a full recovery for these injuries.

http://www.usatoday.com/story/tech/2015/03/23/voices-ellen-pao-trial/25106331/

Voices: Pao jurors are the ones who hold the power

 Elizabeth Weise, USATODAY 4:16 p.m. EDT March 23, 2015

(Photo: Vicki Behringer)

SAN FRANCISCO – For the past three weeks, I’ve been spending every weekday sitting in the Ellen Pao trial. While I don’t know what the outcome will be, it has reminded me of a very profound truth.

Trial by jury is a remarkable and inspiring part of our legal system. I’m in awe each day I sit and watch this play out before me.

Pao is a former junior partner at Kleiner Perkins Caufield & Byers who is suing the storied venture capital firm for $16 million plus punitive damage, alleging sexual discrimination and retaliation.

USA TODAY

Ellen Pao could get $160 million

Every morning at 9, about 30 or so people stream into room 604 of San Francisco Superior Court. Some are lawyers, some reporters, some bigwigs at Bay area tech firms here to get a feel for a high profile case that’s raising uncomfortable issues for the community.

But the most important are the jurors. There are 15 of them, 12 on the jury proper and three alternates in case one of the jurors falls ill or has an emergency.

They are a range of ages, races and ethnicities. I cannot imagine any of them earn anywhere near what the venture capitalists and experts (some of whom make $750 an hour) taking the stand do.

And yet it is their opinion, and no other, that matters.

It is they who will decide whether a partnership that has more than $7 billion under management is or is not guilty of discriminating against Pao due to her gender.

Unlike in too many places in the world, it won’t be decided in some backroom deal. It won’t be decided by a paid-off government bureaucrat. It won’t be decided by a politician who stands to win votes one way or the other.

It will be up to these six women and six men.

They take their task very seriously. Each day they sit in the jury box, listening intently and writing voluminous notes on court-provided notepads.

There’s a point in the proceedings after the lawyers have finished with each witness that I just want to preserve in glass. It comes when the jury and its questions take center stage. This stands out to me as a great example of what’s right about our system of law.

The judge in this case, Harold Kahn, clearly loves the law, loves jurisprudence and loves to get people engaged in it.

We can tell that by his banter with the jury during breaks, when he calls out, “Got any civics questions for me?” and then joyfully answers them.

He also invites classes of middle-schoolers into court to watch the action every Wednesday. When they file in, Kahn stops the proceedings, introduces whoever is on the stand and explains what’s happening. Then he takes, and answers, the students’ questions.

He also does something else that’s relatively rare, though not unheard of. When the lawyers for Pao and Kleiner are done questioning each witness, Kahn gives the jury the chance to ask its own questions.

This is my favorite part. The jurors aren’t trying to catch anyone in errors; they’re not trying to elicit some fact they can later use to prove a point. Instead, they ask the kind of broad questions many of us in the courtroom would ask if we could.

There is a moment of quiet ceremony when those handwritten question are handed to the clerk, who hands them to the judge, who reads them from the bench.

These 12 jurors are putting some of the most powerful and wealthy people in the state to the test. They ask, and the person on the stand must answer, under oath.

It’s a heady thing, seeing the power of the law take precedence over power or wealth. After all, the word privilege comes from “private law.” Here, there is only public law.

Take two weeks ago, when Kleiner partner general John Doerr was on the stand. He’s worth $3.5 billion. Yes, billion with a B.

Doerr is someone who has several people on staff (Pao was one of them) whose sole job it is to “leverage” his time. That means they work 50 or more hours a week simply to make it as frictionless as possible for him to do the things he does that make all that money.

And yet on the stand, Doerr spent almost an hour patiently answering juror questions.

I would venture that he is not someone who generally spends much time being grilled by people whose total net worth is likely a rounding error in his tax filing.

Their questions are overwhelmingly intelligent, probing and thoughtful.

To Doerr, they included: What’s the venture capital community in Silicon Valley like? Can anyone do venture capital? Why is female participation in venture capital so pathetic?

It’s a small thing, but it gives me a quiet thrill each time it happens. Everyone is equal before the law. In Judge Kahn’s courtroom, we see it in action.

It has been said that a person has to have the right temperament to be a good judge. I believe it takes a little more than the right temperament. In approaching 30 years in the litigation business, I have seen my share of judges; some outstanding, some poor and many in between. The 2014 election cycle is unique in that it has the most local judicial races ever. During my years in practice, I have seen the Summit County Court add four judges for a total of fourteen. Ten of the fourteen seats are up for election this year and each race is contested. This creates quite the opportunity for voters to shape the Summit County Court of Common Pleas. Before we delve into the judicial races in front of us this election cycle let’s do a little background on what it takes to be a judge. Qualifications to become a Judge: RC §1907.13  Must be a qualified elector;  Must be a resident of the county for which they are running;  Admitted into the practice of law in Ohio;  Practiced law in Ohio for at least 6 years preceding appointment;  Must have a petition to run for Judge;  Must have 50 valid signatures from registered voters for that county  (if running under a major political party) before filing petition; and  Maximum age of 70. There are many ways to practice law in society today. Only a few involve court room experience. Many attorney’s practices never take them to the courthouse. As such an attorney can become a judge without any real courtroom experience. There are two ways to become a judge; one is to outright run for the seat in the political process and be elected by the voters, the second is to be appointed by the governor to fill a vacancy. If appointed, you must then run to keep the seat in the next general election cycle. Many of the judges serving in our area were originally appointed to their seat by the governor. There is a perceived advantage to becoming a judge through the appointment process in that you then get to run as the incumbent judge requesting the voters to keep you instead of outright electing you. In about 80 of Ohio’s 88 counties there is a time honored tradition and unwritten rule that no one opposes an incumbent judge. Once that judge leaves the seat (retirement, death), there will be a contested race for the judicial seat. In the more populated counties of Ohio that tradition has long gone by the wayside. There will almost always be opponents in every judicial race. That is the case this year in Summit County. Most candidates prefer the appointment process wherein the governor appoints a candidate to a judgeship. Be aware when a governor makes an appointment, that appointment is based upon the recommendations of the political party in power. Presently, we have a Republican governor so all of the judges appointed under him are Republican and their names have been passed on to him by the local Republican Party. Neither the governor nor the local political party are as concerned about whether the appointee has what it takes to be a good judge as they are about political patronage and whether the appointee will be able to fund their own election expenses. Local political parties are intensely interested in candidates who will not require campaign funding from the party in the next election cycle in order to fund their re-election campaign. Less desirable candidates request campaign funding from their party in the next general election cycle to keep their appointed judgeship. The point being the ability to finance an election campaign is of greater value than the ability to do the job. In addition, campaigning for judicial seats is very time consuming; therefore, you need a judicial candidate who has the time to commit to running for the seat. This excludes most lawyers who have an active trial practice. It favors candidates who either work in a government position or a large practice where they can take time off while others handle their workload. We file many law suits each year in Summit and surrounding counties and have a good feel for how judges handle their case load. When a lawsuit is filed, cases are randomly assigned to a judge. Let me give you some examples of what we have seen our elected judges do and I ask you if you would like to be the client involved in these cases. For example, we appeared for a jury trial ordered by the judge with our client and witnesses all in tow and ready to begin at 9:00 in the morning only to have the judge not show up until 1:00 that afternoon. The jury, the parties, the lawyers, and witnesses had all been sitting in a courtroom since approximately 8:30. The judge stated he was late because he had some things he needed to do and took some time off. He did not apologize for keeping about 50 people waiting half a day. He went on to state that he only had a very limited time in which to conclude this case so we needed to move quickly. He was an appointed judge. Our client was appalled by the judge’s attitude. After waiting many years to get to a trial, a date and time which the judge scheduled, a trial to try to obtain some justice from the situation in which he had been wronged, that was not the way he expected to be treated. In another case at the final pre-trial (parties and lawyers meet to discuss an attempt to resolve the case and potentially how the trial will be run), we appeared at 8:30 as ordered by the Court. The other party and lawyer were also present. The Court room door was locked. Finally at 9:00 some of the judicial staff appeared. When queried about when the final pre-trial would begin, we were informed that the judge had taken the day off since our pretrial was the only thing on her calendar for that day. She was an appointed judge. Evidently, this case was of no importance to the Court although it was of grave importance to the client. I could tell you many stories along this line, I could also tell many stories of judges who spent an inordinate amount of time trying to get cases resolved, make the right decisions and do right by the judicial process. For this reason, I believe that we have a very good grasp on what it takes to be a good judge and who is in fact a good judicial candidate. It is true it takes a good temperament to be a good judge, but it also takes humility as opposed to some sense of self-importance and/or entitlement. It takes a strong work ethic. It takes a person willing to think outside of the box and devote themselves to the task be-fore them with the ability to change gears as different and diverse matters are brought before them each day. Judges see humanity at its worst and occasionally at its best. So they must be able to retain the right spirit within and continue the search for good in people.   We would like to share our opinion about who would make the best judges from the current candidates. This is based upon our own experience with the people/candidates involved as opposed to some political affiliation or some newspaper editor who hasnever represented a client in front of a Court. Attached you will find a list of the judicial races with the choice listed we believe to be the better candidate in bold print. It is printed out three times so that you can share this list with friends and family. You have the ability to make a difference on November 4, 2014. 

2014 Judicial Elections:

Ohio Supreme Court:  

Tom Letson  v.  Sharon Kennedy  

John P. O’Donnell  v.  Judi French  

9^th Dist. Court of Appeals:   Eve Belfance  v.  Julie A. Schafer 

Summit County Court of Common Pleas:

General Division:

1. Ron Cable  v.  Tammy O’Brien (No endorsement in the Cable v. O’Brien race)

2. Tavia Baxter Galonski  v.  Lynne S. Callahan

3. Lisa Dean  v.  Alison McCarty

4. Mary Margaret Rowlands  v.  Beth Whitmore

5. John Clark  v.  Christine Croce

6. Rob McCarty  v.  Tom Parker

7. Jon Oldham  v.  Todd McKenney

Juvenile Division:   Linda Tucci Teodosio  v.  Jill Flagg Lanzinger

Domestic Relations:   John P. Quinn  v.  Katarina Cook

Probate Division:   Elinore Marsh Stormer  v.  Kandi S. O’Connor

*Suggested candidate in bold.

Effective December 22, 2013 state financial responsibility minimums were raised from $12,500 per person to $25,000 per person. Trial lawyers and other consumer groups had lobbied the legislature for years to increase this limit which had become woefully inadequate to cover even basic medical bills in all but the smallest auto collisions. This limit was one of the lowest in the 50 states and was an embarrassment for our great state.

While $25,000 is an obvious improvement, it still trails behind simple inflation and the cost of living. Additionally, medical bills have increased drastically since these limits were last addressed in 1973. (This was an era when movie tickets cost less than $2.00, gas was about 40 cents a gallon, and a stamp was 8 cents.)

All those prices have gone up 500% to 1,000%.  So this recent increase in insurance limits still falls far below where it should be even when looking at simple inflation, let alone the increased costs of medical treatment over the last 40+ years. 

On straight inflation terms, even this new increase is equal to about $5,000.00 in 1973 dollars.  (It takes about $5.25 to buy what a dollar could in 1973.)  Just to keep pace with inflation, the state minimum limits would need to be about $65,000.00.

Meanwhile, it’s a safe bet that your auto insurance premium is 500% to 1,000% more than in the early ‘70’s.  As insurance consumers, we are constantly hit with increased rates most of which have nothing to do with our own claim history.  So the insurance companies get the benefit of increased premium dollars every year and yet this state minimum has not increased a penny in four decades. 

Insurance companies have raised premiums of their policyholders while the slow and steady process of inflation reduces the insurance companies’ risk every year.

Drivers with state minimum limits tend to be younger, higher risk drivers.  Higher risk drivers are those drivers that are the most likely to cause an accident injuring you or your loved ones.  This is one of the main reasons you need to make sure you and your loved ones are protected by maintaining uninsured/underinsured motorists coverage, with limits as high as you can afford.  Liability coverage just protects your assets.  Uninsured/underinsured coverage protects you and your family if you are injured, miss work, and incur medical expenses.  Talk to your agent; you’d be surprised how affordable it can be to maintain this vital coverage.

Imagine you have just been injured in an automobile collision as a result of someone else’s negligence. You have incurred medical expenses. Who is responsible for these bills? Most people believe the person responsible for the collision is responsible for paying the medical bills. This is where legal theory and reality part ways.

Legal theory dictates that you are responsible for the medical bills you incurred. This is due to the fact that you sought the medical treatment; not some insurance company or the person responsible for your injuries. As such, you in essence “contracted for” the medical care and you are the one responsible for the medical bill.

The person responsible for the crash has a legal obligation to pay you your damages which includes the amount you paid for medical care. Their legal obligation is directly to you, not all of the medical providers who treated you. It can take time to finish treating and add up all of the medical bills that need to be reimbursed.  During this time however, medical providers want to be paid.

You may have health insurance to pay these medical bills. You also may have medical payment coverage in your automobile insurance to pay medical bills you incurred as a result of a collision. These contracts of insurance provide that these insurers will pay medical bills on your behalf . Their legal obligation is to you to perform under the contract with you. The medical provider’s contract is also with you to be paid by you for the medical services. Usually this process works and your insurer pays the bills on your behalf. Many medical providers offer to submit your bill directly to your insurer.

However, with medical providers charging more and more and insurers paying less and less we are seeing failures in this system. Some medical providers are refusing to accept payment from your insurers in an effort to gather a greater payment directly from you or even the responsible person’s insurer. Hospitals are becoming especially aggressive about pursuing a higher reimbursement through auto insurance.  Sometimes they submit it to multiple insurers in an effort to see who will pay the most. Sometimes hospitals get paid by multiple sources. This multiple billing and payment process can cause you problems because your insurers will all want to be reimbursed for their payments but the responsible party’s insurer will only want to reimburse you for the bill once. 

Sometimes, despite multiple layers of insurance that are supposed to protect you, this mad dash for dollars will cause a bill to fall through the cracks and begin hurting your credit.

Some medical providers want to bill your automobile insurance medical payment coverage as opposed to your health insurance. That however is not in your best interest as it depletes the relatively small amount of medical payment coverage you have in comparison to the large health insurance coverage you have. We hear excuses from medical providers that the health insurance companies will not pay if it’s a result of an automobile collision. That’s not true. We have yet to see a health insurance policy that says we will pay your health coverage unless you’re involved in a motor vehicle collision. What is going on in reality is the medical provider is attempting to get out of the discount rate they contracted for with the healthcare insurer and go directly to the automobile insurer where they can get paid the full amount of their bill.

Oftentimes, we have clients come into our office months after a collision occurred and we discover that their medical payment coverage on their auto policy has been used up by healthcare providers who treated the client in the front end. Now the client needs to have some diagnostic procedures performed which is not covered by their health insurance. Since the medical payment coverage has already been used up, the client is now responsible for the payment on these bills.

If at the beginning of the case we’re able to manage who pays what bill, we can maximize the coverages offered through health insurance and automobile insurance. In other words, the coverages should be coordinated to the benefit of the injured client, as opposed to the benefit of the billers.

But most insurance policies have a provision that allows the insurer to get their money back from the injured client if the injured client obtains that money from another party, in this case the person at fault for the collision or incident causing the injury. Sometimes that can be a perfunctory practice of reimbursing the insurer for the monies they’ve expended. Sometimes, however, there’s not enough funds to pay both the insurance company and the client, and the fight becomes who should be paid first? Obviously we side with paying the client first. Our view is that the health insurer or auto insurer has been paid a premium to provide coverage. The mere fact that their insured may be able to recover some money is not factored into the premiums that they charge nor any discounts they provide to the insured. Therefore any money that an insurance company recovers is a pure windfall profit. Since the insurance company did not suffer the actual injury or any of the hardships that follow from the injury, their interest should be behind the injured client. If we collect $1,000,000.00 for client A and have to turn around and pay out $1,000,000.00 to reimburse insurance companies then client A ultimately received $0. If however client B collects only $10,000 but has to pay out no monies then client B is better off than client A. As such, the hardest-fought battle in these cases can become where in line does the health insurer or medical payment insurer stand in relationship to the injured party. Do they stand in front of them to collect money first or do they stand behind them to be paid only if there’s enough money to pay the injured party? We view our job currently as a two front war. One front consists of collecting money on behalf of the client and the other consists of ensuring that this money actually benefits the client.

As that second war over keeping the money can be as intense or more intense than the original battle to collect the money, we see numerous situations where lawyers abandon their clients in those claims. We have had success defending our clients in those claims from local county courts all the way to the United States Supreme Court.

When is a letter from a law firm important, and when is it junk? 

People who have been involved in motor vehicle collisions, whether they are injured or not, unfortunately receive ever-growing piles of junk mail.  In the days following the collision, a high percentage of this, unfortunately, is junk mail from lawyers and medical providers soliciting the person’s business. (Our firm has never solicited a single injury case.)

The law firms that engage in this solicitation are required to comply with several rules imposed by the Ohio Supreme Court. The materials must boldly and clearly state they are “Advertising material” or “Advertisement only.” They must also fully explain how they came to know you were in an accident (generally, this is by combing the police departments and ordering up all crash reports that came in that day). They are prohibited from soliciting by phone or in person, and violations can occur if repeated attempts at soliciting a client rise to the level of harassment, duress, or coercion. If you have received such solicitations and believe they don’t follow these rules, or wish to learn more about this practice, you should contact your local bar association.

So while much of the stuff cramming your mailbox is junk, there are still some important items to save. Much of the mail coming from auto and health insurance companies, as well as medical providers, comes from other companies with odd-sounding names. (Healthcare Recoveries, ACS Recoveries, Xerox Recoveries, Meridian Resources, etc.) Many of these actually sound like collection companies, but they are not. 

Some of this mail actually comes from law firms and relates to an important development in your case. A letter from a law firm could pertain to a medical bill that has somehow slipped through the cracks and is on its way to a collection lawsuit.

We recently assisted a smart young professional who grew so tired of all the mail he received that he began to ignore it. One of the letters he ignored was actually from a law firm about to file suit against him on a medical bill that had slipped through the cracks. This particular client had auto insurance, was hit by someone who had auto insurance, and he also had health insurance, but the medical bill remained unpaid.  (See “Who Pays the Medical Bills,” also in this issue of the newsletter.)

We wish there was something that could be done to reign in the attorney and chiropractor solicitations that increasingly clog the mailboxes of those recently involved in collisions. Unfortunately, the U.S. Supreme Court has ruled that this type of communication, as long as it is within certain parameters, is protected free speech. Be that as it may, pay attention to all of your mail and share it with your attorney so that you can avoid unnecessary pit falls.

Ohio has 88 counties. Each county has a court of Common Pleas. Each court of Common Pleas deals with a wide range of legal issues – domestic, criminal, probate, juvenile and just about any other dispute upon which a claim can be made.

Ohio is then divided into 12 districts, each with its own court of appeals.  The 88 counties are grouped into these various district.  For example the 9th District Court of Appeals located in Akron covers Summit, Lorain, Medina, and Wayne counties.

Ruling over all of these courts is the Ohio Supreme Court; established under Ohio’s constitution as the highest court in our state and the so-called “court of last resort.”  The Ohio Supreme Court has seven Justices, one of whom is Justice Paul E. Pfeifer. Each Ohio Supreme Justice is elected for a six-year term by a general statewide election.

The buck stops at the Ohio Supreme Court when it comes to the determination of a legal issue. An issue that arises in a county court of Common Pleas may go through the Court of Appeals and end up in the Ohio Supreme Court where the seven justices will decide its fate.  Once the Supreme Court issues a ruling it becomes the law of the land and must be followed by all the lower courts.  A majority of the seven justices is required to reach a ruling.  Those not in the majority are free to write a dissenting opinion, explaining why they do not agree with the majority opinion. 

Earlier this year the Ohio Supreme Court decided the case of Ruther v. Kaiser.  We have told you in the past that your rights are under attack by well-funded special interests that pour money into legislative and Supreme Court elections.  We have reprinted Justice Pfeifer’s Ruther dissent in full below outlining his thoughts on the attack on your rights, the time-honored law of our nation, and the Ohio Constitution itself.

It is not everyday when one of the seven highest judges in our state calls out the others for falling for the powerful and seductive money interests presently involved in Ohio politcs.

PFEIFER, J., dissenting.

{¶ 40} Early in law school, every student is introduced to the rich historical tradition and critical importance of the common law in our nation’s development. Today, American judges and attorneys are invited to assist both developed and developing countries in applying our common-law traditions, which date back centuries in England, to their efforts in empowering their courts to protect basic and constitutional human rights without interference from political leaders and legislative bodies or their military establishment. The power of every citizen in the United States to seek redress in our open courts for injury done, be it by our government, another citizen, or a large corporation, is a source of some amazement and great envy in many parts of the world. That the resulting decisions by judges and juries are respected and enforced without police or military intervention is incomprehensible in some quarters. Protecting our citizens’ individual fundamental constitutional rights from attack by the government is the proud duty of the American judiciary and a part of our oath.

{¶ 41} The case of Ruther v. Kaiser, rolled out amidst a blizzard of announcements by this court, will be of little immediate notice, except to the parties, the medical community, and a small, specialized element of the bar. Over time, however, Ruther will come to be known for the profound damage done to every Ohio citizen’s constitutional right to remedy in open court for an injury done him in his land, goods, person, or reputation. Ohio Constitution, Article I, Section 16.

420*420 {¶ 42} The sweeping language employed by the majority in this case is the crescendo in our court’s decade-long deference to, and acceptance of, the General Assembly’s assault on our citizens’ right to remedy set forth, without alteration, for over two centuries in the Ohio Constitution.

{¶ 43} When is a fundamental right, contained in the Ohio Constitution and Bill of Rights since 1802, no longer the individual right of an Ohio citizen? According to this court, whenever the Ohio General Assembly chooses to extinguish the right, it will no longer exist, period. The majority writes:

A plain reading of Article I Section 16 reveals that it does not provide for remedies without limitation or for any perceived injury. Rather, the right-to-remedy clause provides that the court shall be open for those to seek remedy “by due course of law.” (Emphasis added.) Article I, Section 16 does not prevent the General Assembly from defining a cause of action.

Majority opinion, ¶ 12. In case the reader did not understand the breadth of the majority’s devastating proclamation, it continues: “Thus, the General Assembly has the right to determine what causes of action the law will recognize and to alter the common law by abolishing the action, by defining the action, or by placing a time limit after which an injury is no longer a legal injury.” Majority opinion, ¶ 14.

{¶ 44} Under Ruther, we now fully abdicate our solemn duty to enforce and protect constitutional rights afforded citizens since the beginning of statehood. If the General Assembly abolishes a remedy, including those recognized at common law when the constitution was written, it is now clearly within its power. We will afford “great deference” in presuming constitutionality of any act of the General Assembly limiting or abolishing a cause of action.

{¶ 45} Continued erosion of the venerable right of every citizen to a remedy in open court for injury done will inevitably flow from the General Assembly. It may come in small drips or in tidal waves, but it will come. The economic interests pushing limitations on causes of action are just too powerful and too seductive for the General Assembly to resist. We have now removed the Assembly’s only dam against the onslaught; this court’s previous vigorous enforcement of the “right to remedy” constitutional protections.

{¶ 46} When Timothy and Tracy Ruther sought a remedy in open court for injuries suffered because of a doctor’s failure to properly respond to three elevated liver-enzyme tests taken more than a decade before Timothy developed a fatal liver lesion and hepatitis C, they could never have envisioned the damage their case would ultimately cause for generations of Ohioans yet to be injured. 421*421 Their personal tragedy has evolved into a undiscovered nightmare for legions of Ohioans who will find the courthouse doors barred for the presentation of their future legitimate injury claims.

{¶ 47} I dissent.

As pointed out by Justice Pfeifer, this decision by the majority of our supreme court will clear the way for the Ohio Legislature to enact laws overriding individuals’ rights as previously protected by the Ohio Constitution.

Why Contingent fees work for Americans

An injury accident can often cost a lot more than you might think. And if you don’t have someone on your side who understands the law and how insurance companies operate, you can get into a lot of trouble. If you are involved in an accident on the road or at work, an attorney can be your best option for regaining your physical and financial life. But the question often arises as to how much it will cost to hire an attorney. The idea of paying legal fees out of your pocket can be daunting, but that’s where the contingent fee system comes into play. Attorneys who represent you for injury claims are usually paid on what is called a contingent fee basis. This means your attorney is compensated only if you get paid by the person who injured you or by their insurance company. If you don’t get paid, then typically you don’t owe your attorney anything.

On the other side, the person who injured you (the defendant) and their insurance company will hire a lawyer who gets paid by the hour. That lawyer gets paid whether the defendant wins or loses, and in fact, defense lawyers get paid more if your litigation lasts longer because they can bill more hours. Not a great prospect, is it?

Contingent fees are often a target of insurance companies because of the benefits they provide working families.

Contingent fees open the courtroom doors. They allow people who are injured to bring suit without having to have the money up front to pay their attorney or other legal costs, such as for investigators and expert witnesses, because their contingent fee attorney pays those costs for them.

Without a contingent fee system, only the wealthiest of injured people could afford to have their cases heard in court. Average Ohioans would not risk their life savings to go to court against an insurance company or corporation that has virtually unlimited resources to fight a lawsuit. Rather than go to court, average people would be forced to accept whatever the defendant offered in compensation.

Contingent fees promote efficiency & discourage frivolous lawsuits. Since contingent fee attorneys pay the injured person’s costs to go to court, the attorney bears a considerable financial risk – if there is no recovery, or if the recovery does not cover their costs, the attorney stands to lose financially. As a result, contingent fee attorneys act as gatekeepers – they do not accept frivolous or unjustified lawsuits. Contingent fee attorneys will listen to the injured person’s story, consider how the law applies to their situation, and then offer the person legal advice about the likelihood of success in the courtroom. Contingent fee attorneys also strive for efficiency because any extra costs will be paid by them and not by the client. In contrast, defense lawyers who are paid an hourly fee have an incentive to draw out the proceedings in order to maximize their hours of billable time regardless of the case’s merit.

Costs for contingent fees are comparable to hourly fees. Despite sensationalized stories of attorneys taking home huge amounts, numerous studies show that, for the number of hours worked, fees paid on a contingent basis are comparable to the hourly fees of defense lawyers in similar cases. Client surveys of contingent fee attorneys show they are highly appreciative of their representation because they recognize that their attorney is fighting for them and their families.

Caps on contingent fees limit access to justice. Limits on contingent fees would make it more difficult for attorneys to accept cases with lower damages. For example, if fees were capped at 10%, an attorney who routinely takes cases of a low dollar value would soon go out of business. The math just doesn’t work when an attorney has invested twenty hours of time on a case that produces a $3,000 award where the attorney’s fee is capped at 10% or $300. Contingent fees must be high enough to take into account the risk of losing, of receiving a low settlement, or of having to try a case through to appeal.

Those who advocate for limits on contingent fees know that caps mean limiting access to the courthouse for average Ohioans. That is their goal – to stop injured people from getting to the courthouse where they have a better chance of being fairly compensated for their injuries.

Caps on contingent fees is un-American. Americans aspire to be successful, and we celebrate our best and brightest. We believe in pay for performance. We understand that our lawyers will be more motivated if their fees depend on success. Why would we retreat from “results-oriented fees” by placing caps on contingent fees for attorneys? Capping contingent fees is just plain un-American. The bottom line is that contingent attorney fees offer working Ohioans a means by which they can compete fairly against the wealthy and powerful, such as insurance companies bent on limiting how much they pay you for your injury. Those who wish to limit or prevent contingent fee systems only have one thing in mind – protecting their company’s bottom line.

Our firm will continue to fight to ensure that the citizens of this state always have a fair shot at justice. Preserving our contingent attorney fee system is one way that we work to keep the courthouse door open for average Ohioans.

According to the latest statistics, there are 1.1 billion users on Facebook worldwide. Twitter, Linkedin and other social media and venues continue to experience growing market penetration as well. You are likely already aware of the everyday risks of social media (spam, hacking, etc.) but if you’ve been injured, there’s another risk: insurance company snooping.

The insurance companies are not blind to the growing amount of personal information that people share online. We suppose it was inevitable that they would eventually view this as yet another way to minimize claims. Accordingly we have encountered in our representation of clients insurance companies trolling through whatever social media footprint is publicly accessible to minimize client’s claims. In one example, the insurance company started copying all of our client’s social media postings in an effort to catch her in a lie about her medical treatment. They failed, and in the process showed how callous they were, but our client was quite unnerved when she realized that one of the biggest insurance companies in the country was reading her posts online.

So let this just be yet another warning to be aware of your social media footprint. Make sure you have your privacy settings configured appropriately and at the end of the day know that if you post it online, someone somewhere that was not your intended audience might be reading it.