As I have gotten older, I have had the good fortune to take a number of vacations with my wife as well as travel on business where we mix in a couple of extra days stay.  On a regular basis, I am renting a vehicle to drive during those trips.  This year while in a car rental location in southern California, I was asked by the person behind the desk if I wanted to buy their insurance so I wouldn’t have the hassle of dealing with my own carrier in the event of an accident.  I thanked the individual and declined his offer. 

Later, while making my way through some miserable traffic, I began to think about coverage issues and whether I was or was not covered under my own policy.  In the case of trips where there is some business being done but not exclusively the basis for the trip, prudence would dictate that you review your policy prior to leaving to see if it contains language such as, “Non-owned car does not include… rented car while it is used in connection with insured’s employment or business…”.  Policies also sometimes require that the person driving be lawfully in possession.  In the past, I had not always paid to have my wife listed on the rental contract and my failure to do so might have resulted in our not being covered if she were to drive the rental vehicle.

Some insurance policies clearly limit your policy, so they do not pay until after the coverage on the car pays.  In the event of a significant accident, this could result in a dispute between carriers and may leave the insured stuck in the middle.  Anyone who travels and rents cars, but does not choose to buy the coverage, should remember to check with their insurance agent regarding what their coverage is on rental cars.  If you are traveling on business and your business has specific limited coverage that applies, you may wish to buy the coverage from the rental car company.

Shareholder Matthew J. Rohrbacher will take part in a round-table discussion on Friday, April 13, 2012 in conjunction with the Ohio Association of Civil Trial Attorneys’ (OACTA) Personal Injury Defense Seminar.  Mr. Rohrbacher will join a distinguished group of attorneys in discussing “What’s Going On In Your Neighbor’s Courthouse: A Panel Discussion on Trends and Issues Throughout Ohio.”  The round-table panel will discuss a variety of topics, including significant developments regarding Robinson v. Bates, tort reform, liability, voir dire and recent trends in jury verdicts throughout Ohio.

The seminar will take place at State Farm Insurance Company’s facility in Newark, Ohio.   More information about OACTA and the seminar can be found at www.OACTA.org.

So you’ve found yourself involved in a legal matter and you’ve decided to represent yourself.  Maybe you’ve just received a copy of a complaint which was filed against you.  Maybe you’ve received a letter from an attorney who claims to represent someone against you.  Perhaps a neighbor who’s borrowed your tools now refuses to return them and you’d like to be reimbursed for their loss.  Regardless of how it happened, you’re facing the prospect of diving headfirst into the legal world.  Where do you begin?

Fortunately, there’s an easy answer.  If you have decided not to hire an attorney to represent you in your legal issues, the first thing you need to do is research.  Research is probably the most critical part of preparing for your case, no matter what the case is actually about.  As it turns out, the legal world can be incredibly complex. Even seasoned attorneys spend a huge chunk of time researching the issues and law involved in a case.  You can bet that any other attorneys involved in the case, their clients and the judge are spending a significant amount of time researching – if you are not prepared to do the same you run the risk of seriously hurting your chances of winning.

First, you need to identify the issues in the case.  Are you being sued because a former business partner thinks that you breached a contract?  Did you get pulled over because you were speeding or because you ran a stop sign, or both?  What facts do you have to prove to show that the person in the Wal-Mart parking lot was negligent when they backed into your car?  Learn what it is that you are trying to prove, or what defenses you have for your conduct before you prepare to make your case.  Once you have identified the issues, it’s time to research.

There are several methods by which you could begin researching the issues in your case.  You could apply to and enroll at a law school, spend three years and significant amount of money learning the basics of law and practice, and pass a bar exam, at which point you might have an idea how to prepare your case.  This is probably not the most cost and time-effective way of going about dealing with a minor legal issue, however.  Instead, rely on the rich variety of resources available at your fingertips.

The most accessible resource is obviously the internet.  There are many excellent sources of information available, free-of-charge, just a mouse-click away.  For example, Cornell University Law School’s Legal Information Institute, found at http://www.law.cornell.edu, provides an enormous amount of information related to the Constitution, federal and state statutes, and information designed to make the law more accessible to non-lawyers.  Likewise, companies such as Westlaw (www.westlaw.com) and LexisNexis (www.lexisnexis.com) publish an exhaustive number of court decisions, statutes, and other resources which are used by lawyers on a regular basis.  These are excellent places for you to begin your search.  Note that some of the best databases such as Westlaw and LexisNexis require a subscription or access to a law library (more on that in a bit).  The Legal Information Institute is free.

A word of warning though: while the internet has tremendous value as a means for locating relevant study materials, you should be extremely careful about the reliability of those materials.  For example, don’t rely on Wikipedia – while information there can be correct and is frequently a way to gain a general understanding of a subject, it is impossible to gauge how accurate that information is.  Always rely on a reputable source.

Another excellent source of legal information is your local law library.  Law libraries frequently have large collections of books containing key case law at both the state and national level, and, more importantly, usually have a public subscription to Internet services such as Westlaw and LexisNexis.  Thus, a visit to a law library can be an extremely cost effective method of doing your research.  Note that not all local law libraries are open to the public.  For example, the Toledo Law Association Library’s computers and online services are only available to members.  On the other hand, the Wood County Law Library, 25 minutes to the south, is open and available to anyone wishing to use its resources.  To locate a law library near you in the state of Ohio, visit http://www.clelaw.lib.oh.us/public/misc/colawlib.html, which contains the address and contact information for county law libraries throughout the state.

Using the types of resources discussed above should give you a head start on understanding the legal issues you face.  If you are representing yourself in a legal matter, take the time to familiarize yourself with these sources of information.  Winning a legal battle requires that you understand the law you are dealing with – now you know where to start looking.  Next time, we’ll discuss the differences between statutes, case law and other types of legal authority in order to help you narrow down your search.

Adam is an associate attorney at Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A.  This article is the second in a multi-part series providing practical tips for pro se parties representing themselves in a legal action.

The owners of small or closely-held business enterprises should be cautious when making personal guarantees of payment to their suppliers.  That was the lesson in an opinion issued by the Ohio Fifth District Court of Appeals on March 12, 2012 in Countywide Petroleum Co. v. El-Ghazal Gasoline Servs., Inc., 2012-Ohio-1009.  In its decision, the Court determined that the doctrine of “promissory estoppel” permitted a supplier of goods to recover damages from a business owner when that owner had personally promised to pay for those goods.

In Countywide, the plaintiff was a wholesale supplier of gasoline.  The Defendant was the sole owner of an LLC, “EGS”, which operated a gas station located in Massillon, Ohio.  The parties entered into a business relationship, during which EGS submitted credit applications to the Plaintiff in which the Defendant and his wife personally guaranteed EGS’s account.

During an audit of the parties’ accounts, it was determined that the Plaintiff was owed approximately $82,000 for the delivery of gasoline that EGS had not paid for.  The Plaintiff asserted that in addition to its contract with EGS, it could recover damages from Defendant personally because he had personally promised to pay the invoices.  To support its position, the Plaintiff relied upon an affidavit filed by the Defendant during the trial.  In his affidavit, the Defendant argued that a cognovit note entered into between the parties during the course of their business relationship was invalid because it had not been properly completed.  However, the Defendant also admitted in the same affidavit that he had originally agreed to “pay each invoice within 30 days” of receiving it.  The Plaintiff asserted that it expected the Defendant to be personally responsible for the payment of the invoices, which is why it continued to do business with him.

The Court decided that the principles of the doctrine of promissory estoppel applied to the Defendant’s promise and ruled that he could be held personally liable for the unpaid invoices.  Promissory estoppel is a doctrine that attempts to prevent harm to parties which reasonably rely upon another party’s false promises.  To establish a claim for promissory estoppel, a Plaintiff must show:

1. A promise that is clear and unambiguous in its terms;
2. The party to whom the promise is made (the Plaintiff) must rely on that promise;
3. The Plaintiff’s reliance must be reasonable and foreseeable by the Defendant; and
4. The Plaintiff must be injured by the reliance.

Countywide, 2012-Ohio-1009, ¶ 26.  The Court determined that, despite the fact that the Defendant’s business was a limited liability company, because the Defendant had personally promised to pay the invoices, he was personally liable for the Plaintiff’s damages under the promissory estoppel doctrine because his promise was “reasonably relied upon” by the Plaintiff to its detriment. Id, ¶31.

If you are a business owner, the lesson that you need to take away from the Fifth District’s decision in Countywide is that you must be extremely careful when negotiating business arrangements with your suppliers or other parties you enter into contracts with.  If, in an effort to get a deal done or to make sure that you continue to receive supplies on a timely basis, you promise that you will personally pay for any shortfalls that your business may run into, you may be forced to fulfill to that promise later even if you otherwise would be protected from liability because of the structure of your business.

The Defendant in Countywide was the owner of a limited liability company, meaning that he had substantial protections from the liabilities and debts of the company that he owned.  However, because he admitted that he had personally guaranteed to pay the Plaintiff for any invoices which his company could not pay, the Court required him to live up to that promise because it believed that the Plaintiff had relied upon that promise and was injured as a result.  This may lead to some hard decisions; because suppliers and lenders frequently require personal guarantees to work with small businesses, you may not have any other options, but you should at least be aware of the possible consequences to your personal bank account.

The temptation to enter into a deal with the Plaintiff caused the Defendant in Countywide to step beyond the protections offered by his company’s limited liability and led him to make a promise that he ended up regretting.  Learn a lesson from the Defendant’s mistake – think carefully before you make a personal guarantee just to get a particular deal done and, if you do make a guarantee, understand the potential consequences of doing so.

Recently, I had the pleasure of cross-examining three individuals during a jury trial, each of whom I had never met before. No lawyer in their right mind would recommend this practice. However, my client and I made the calculated decision to forego depositions, based upon the potential value of the case, versus the cost of deposing three witnesses. In other words, we decided that the cost of depositions wasn’t worth the increased economic benefit at trial.

In hindsight, my experience of cross-examining complete strangers worked out well. This, in spite of the fact that I blatantly violated one of the “Ten Commandments of Cross-Examination”, as taught by trial advocacy legend, Irving Younger. During law school, I vividly remember watching video lectures in which Younger revealed his “Ten Commandments of Cross-Examination.” In these lectures, Younger led thousands of lawyers and law students through the wilderness of cross-examination, into the promised land of success at trial.

Younger’s stone tablets read as follows:

1. Thou shalt be brief.
2. Thou shalt ask short questions, using plain words.
3. Thou shalt always ask leading questions.
4. Thou shalt not ask a question to which you do not know the answer.
5. Thou shalt listen to the witness’ answers.
6. Thou shalt not quarrel with the witness.
7. Thou shalt not allow the witness to repeat his direct testimony.
8. Thou shalt not permit the witness to explain his answers.
9. Thou shalt not ask the “one question too many.”
10. Thou shalt save the ultimate point of your cross for summation.

I confess that I violated the fourth commandment on numerous occasions during trial. It was simply not possible to know the answer to a question I did not have the opportunity to ask during depositions. In order to atone for my transgressions, I followed my own personal eleventh commandment, “Thou shalt prepare.” I located every possible bit of information I could obtain on the witnesses. I studied their credentials, certifications, correspondence, reports and websites, along with any other documentation related to the subject matter of our case. By over-preparing for my cross-examinations of strangers, I was able to anticipate most of the answers to my questions, even though I did not “know” exactly what the response would be.

In summary, there is nothing quite like the feeling of meeting an opposing witness for the first time when they are called to testify at trial. It is not a good feeling, and I do not recommend it. However, by following the “Ten Commandments of Cross-examination,” and by exhaustively preparing, you too can reach the promised land of success at trial.

What happens if you are a victim of a crime, either in a parking lot of a mall or your vehicle is broken into at your favorite restaurant? What duties does the business owner have?

Ohio has been somewhat reluctant to extend significant duties upon the business owner. The caselaw in Ohio has been settled since 1995. The Ohio Supreme Court in Simpson v. Big Bear Stores Company (1995) 73 Ohio St. 3d 130 held:

In the Big Bear case, an individual was mugged in the parking lot. The court ruled that because Big Bear did not own or control the parking lot it could not be liable for the acts of a third party even though there had been multiple muggings in the area.

A case that really summarizes the duties of a business owner is Caywood v. Ryan’s Family Steakhouse, 2006-Ohio-6005 (Ninth Dist., unreported). In Caywood, the Plaintiff was verbally accosted and attacked in a lobby. After the incident, in the parking lot, the Plaintiff was beaten by the other party. The Court noted that the law in Ohio was established in the Simpson case, supra.

The Caywood court then summarized that a criminal act:

The Caywood court further stated that a business owner is not an insurer of an individual’s safety. In looking at this law, the Court stated that:

What is even more interesting is that even when there have been multiple criminal acts in an area, the courts have been reluctant to impose a duty on the business owner when an individual is a victim of a crime because that specific crime was not foreseeable.

As a practical matter, the courts have been very reluctant to extend much of a duty to protect an individual that is a victim of a crime at a business. So the key is the foreseeability of the individual act. While it is not impossible to hold a business liable for the damages of the crime, in Ohio it is very difficult to win such an award.

Some of the best memories I have as an attorney are not in Federal or Common Pleas Court, but instead in the “People’s Court” ….  Small claims court that is.  I think the reason for that is that while small claims court provides access to the average person for what is a dispute too small to merit the expense or hassle of a larger court, it also throws open the door for every crazy claim that anyone can write down on paper and is willing to put twenty five bucks down to file.  At the end of these cases however, there is usually a lesson or piece of information that may seem obvious to some and not so clear to others.  As I revisit some of these cases, hopefully what you thought all along will simply be confirmed or alternatively you’ll learn something, not in front of a bailiff and courtroom full of other people waiting there turn, but instead behind the privacy of your own computer.  The first such lesson is that spicy beef-stick may be spicy.

Yes, you read that last sentence correctly, in approximately 2001, Toledo Small Claims Court swung open its doors to what I like to think was the northwest Ohio case of the decade, up until the Tom Noe or Father Robinson trials.  I represented a local grocery store that was being sued by an older gentleman because he claimed the spicy beef-stick (it was a homemade store brand) was too spicy.  While most plaintiffs would have undoubtedly hired some high-powered product liability attorney, this crafty gentleman chose to go it alone.  When given the opportunity to present his case he kept it simple.  He had purchased spicy beef-stick expecting it to be spicy, “* * * but not that spicy.”  His injuries:  His voice had been changed forever …..  oh, and he had back and neck pain, his hair gotten thinner and whiter, his feet and legs hurt, at times his shoulders would bother him, he had ongoing headaches and his elbow started to crack and bleed one day.  All this from two bites of spicy beef-stick.  Just when I thought his case couldn’t get stronger he pulled out his ace in the hole ….  He told the judge that it wasn’t necessary for the judge to believe him because the Plaintiff had kept the rest of the beef-stick in his freezer for the past year and a half and the Judge was welcome to take a bite to see for himself. 

Perhaps I should have realized that it was my lucky day when rather than try the beef-stick and have the Judge’s elbow start bleeding, the Judge declined citing that he had no desire to eat beef-stick, let alone beef-stick that had been frozen for a year and a half.  The other sign that things were going my way might have been that literally no one could look the Plaintiff in the eyes for fear of laughing hysterically.  Finally, I think it helped that on cross-examination the Plaintiff conceded that he had eaten spicier things in his life without the same results.  Whether it was the cosmos or application of common sense, I managed to triumph in the case with the Court’s ruling serving as an indelible lesson:  When you buy spicy beef-stick, you should expect it to be spicy.

As my practice has progressed to bigger cases involving far larger consequences the lesson to be gained from that case still seems pertinent:  When involved in litigation expect the crazy and unexpected and your chances of success improve greatly. 

In a recent article from Ohio Lawyer Magazine dated January/February 2012, Steven Voged presented an article on recreational immunity relative to government entities which caused me to consider some of the other activities that such immunity might apply to.

In my efforts I came across some jury instructions which I had written a number of years ago involving a trampoline case.  It had been my position at that time that the use of a trampoline as a recreational activity was such an activity that one should be immune from all but reckless or intentional actions.  In the case I defended, an individual had asked to use the trampoline then while in the course of using it, sustained an injury.  We looked at the case of Marchetti v. Kalish (1990) 53 Ohio St.3d 95, for the proposition that “where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either “reckless” or “intentional” as defined by Sections 500 and 8A of the Restatement of Tort 2d.” (Marchetti, p. 100.)

In the case of Kelly v. Rosco, (2009) 185 Ohio App.3d 780, a child, while bouncing a trampoline, at a 4^th of July party, was injured breaking her leg.  The court in that case held that the use of the trampoline constituted the primary assumption of risk, and that certain hazards were known to people who used trampolines, and thus, the Court of Appeals upheld the granting of a summary judgment by the trial court.

From the law in the State of Ohio, it is likely that anyone who uses a trampoline, albeit in the neighbor’s yard, their own yard or somewhere else, they will not be able to collect for injuries they sustain as they have assumed certain risks which are known to arise in the use of a trampoline.  While this interpretation of the law does not constitute “recreational immunity” in the truest meaning of the term, it would be wise for the parents of any child or the parent should they be using the trampoline to be aware that they most likely will not be able to collect for injuries they sustain as a result of any mishaps on the trampoline.

While recently reading an article in the ABA Journal about techniques to taking an expert deposition, I began to do what I perhaps do best ….over-think the issue.  My focused turned not to expert depositions, but depositions in general and the different styles and techniques I have seen over the years, and what was most effective in different situations. 

One approach is the attorney that simply cannot overcome his own personality and thus every deposition is a reflection of his personality.  While sometimes effective, often times this can be the least effective because the defending attorney can prepare his client for what to expect.  If I know the other attorney always has an aggressive, jerkish style, I can let my client know that’s what should be expected.  When the attorney then follows through with the approach I’ve described, the client is not caught off guard, but instead feels assured that what I told him to expect is what’s happening.  If the attorney has a weak personality or is usually unprepared or unfocused a client can feel lost when being deposed because their natural thought is that an attorney is prepared and knows where they are going in a deposition.  Again forewarning the client to expect this aimless approach makes them feel reassured that the situation is as to be expected. 

My conclusion was that the best attorney is not subject to a particular style, but instead can have many styles depending on the person he is deposing and ultimate goal.  More important however is that the most effective technique is not always the one that mimics the personality of the deponent, but often times is the opposite of the deponent’s personality.

That brought me to the Grinch and Cindy Lou Who as an illustration of how taking an approach opposite to the deponent’s natural personality can be most effective.  If sent out on the task of deposing the Grinch and Cindy Lou Who, one’s gut reaction would be to think that an aggressive, in your face type approach would be best to use for the Grinch.  On the flipside, certainly little Cindy Lou would merit a pleasant, friendly environment … sweet as she was.  In reality, just the opposite approaches may produce better results.  The Grinch certainly is not expecting anyone to be nice to him.  Put him in a hostile situation, treat him poorly and disrespect him from the beginning and you’ve simply put him in his own living room.  He’s right at home and thus less likely to give you helpful information.  Treat him nicely, disarm him and force him to re-evaluate the entire situation and you will catch him off guard.  Suddenly you’re not the jerk his attorney told him you were and he’s questioning his attorney while talking to you.  After all, Cindy Lou Who’s kindness caught him off guard so much that his heart grew three sizes and he suddenly became a huge fan of Christmas.

On the other side, with a meeker Cindy Lou Who deponent, a more aggressive approach may produce better results.  The pleasant approach may make the deponent feel comfortable and thus give only the information he or she wants.  Taking the witness out of their comfort zone in this scenario can cause them to be more forthright in their attempt to please you, thereby hoping you will allow them to return to their comfort zone.  A caveat is that a sense of decorum is still necessary.  If Cindy Lou is simply beat up and bloodied she may retreat into her shell and produce absolutely no information.  Thus, the style is aggressive or confrontational, but not simply being a jerk.

Obviously while the approaches with the Grinch and Cindy Lou are only two of many possibilities, they underscore the importance of an attorney’s style being geared toward the desired result and not just a reflection of the attorney’s own personality.  They further underscore the importance of having an attorney that thinks through the strategy and approach of a case to maximize effectiveness on your side and minimize the impact of the other side.  After all, clients hire attorneys to win their case, not simply show up and be themselves.

As I write this blog the official first day of winter is only one day away and I am celebrating its arrival with having just won a slip and fall case stemming from the winter of 2009.  With winter comes the promise that undoubtedly there will be snow and ice and falls.  That’s right, fortunately or unfortunately for me, every winter numerous people fall on the snow and ice and then sue a business or someone else for their fall.  Luckily, slip and falls on natural accumulations of snow and ice are perhaps one of the most easily won premises liability cases.  While I would like to claim its due to the brilliance of defense attorneys (ok, well perhaps in my case), it has more to do with the Ohio Courts consistently recognizing that you cannot impose liability on others to protect an individual from what are natural occurrences in Ohio …. snow and ice.  

The general rule in Ohio is that a homeowner or business is not responsible for a patron/visitor’s fall on a natural accumulation of snow or ice.  Nor are they responsible for removing the snow thereby creating water left behind that turns to ice (i.e. courts do not want to punish people for making an effort to shovel).  Nor is snow or ice unnatural because it accumulates around a man-made structure such as a handicap ramp or curb.  I think you begin to get the drift of the arguments made …. all with the underlying reasoning that it is anyone but the injured person’s fault that they fell.  Keeping this in mind, over the years I have put together an informal list of points that, while they may seem obvious, apparently escape quite a few people until pointed out during a lawsuit. 

1. If it’s cold outside, what looks like a wet spot may be ice.
2. If there’s snow or ice outside, it is cold.
3. If there is snow or ice on the ground, it may be slippery.
4. If it feels slippery when you put your foot on it, it’s probably slippery – don’t continue to walk over it.
5. If you can walk around the snow and ice do it …. it really won’t take you that much longer to get into the dollar store and everything will still be a dollar when you get there.
6. If you’ve just walked around ice, there is a strong possibility that the next wet spot you’re approaching is ice.
7. Snow is the brother to ice.  When you can see snow, you shouldn’t be surprised that it is icy outside.
8. Your rubber soled shoes are not magic …. you can still slip on ice and snow while wearing them.
9. Much like rubber soled shoes, salt is not magic …. you can still slip when you see salt in the area.
10. Just because someone else didn’t slip on the ice doesn’t mean you won’t.

As obvious as these points may seem, if implemented I think about ninety percent of my snow and ice slip and fall cases would have been avoided.  Hopefully by letting you in on these “trade secrets” you can enjoy safe and happy holidays and a wonderful new year!