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 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.

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.

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!

Now the question arises; what does one do if the applicant has a poor credit report?  The employer must notify the applicant of the contents of the credit report before making a decision as to whether to hire or not to hire the applicant.  Further, if the credit report has an impact on the employer’s decision not to hire the applicant, the applicant must be informed of this situation.  If a non-hire occurs, the applicant must be informed of the name, address and phone number of the credit reporting agency that supplied the credit report.  This would allow the applicant to obtain their credit report at no cost.  The applicant may want to do so for the purpose of validating/repairing potentially problematic items appearing on said report.

While the use of credit reports may aid an employer with screening prospective employees/applicants, they must use the reports carefully to avoid any liability.

For a more in depth analysis, refer to the Federal Fair Credit Reporting Act, 15 U.S.C. §1681.

Let’s be clear, though: watching Judge Judy once a week or having “TiVoed” a few episodes of Boston Legal does not make you qualified to argue your case in front of a judge or jury—the real-life legal system is not like what you see on television.  There are many factors to take into consideration before deciding to make the (potentially life-altering) decision to represent oneself in court.  In this article and those that follow, I’ll give some tips and point out some potential problems to anyone considering acting as their own lawyer in handling a legal issue.

A person who represents himself or herself in a court of law or another legal capacity is said to be acting pro se (pronounced “pro say”).  Pro se is a Latin term—and get used to Latin if you decide to represent yourself, since many of the legal terms still in use today derive from Latin—defined as “for oneself; on one’s own behalf; without a lawyer” (see Black’s Law Dictionary, 8^th Ed., p. 1258).  People choose to act pro se in legal proceedings for a variety of reasons: they may wish to avoid the expense of hiring an attorney, the issues involved in the case may be simple enough to handle on their own, they may want to control their own case directly, and so on.

There are certainly situations in which it may make sense to act as your own attorney, such as certain legal matters that may be simple enough to handle on your own.  In Small Claims courts, for example, the amounts being disputed are frequently fairly small, while hiring an attorney can cost hundreds of dollars per hour!  If you’ve been sued for a small amount (a few hundred dollars, for example) it may not make sense to pay an attorney—your costs are going to outweigh any potential benefit.  On the other hand, remember that in the legal world there is no such thing as a “one size fits all” approach.  For example, if you’re only being sued for a few hundred dollars but losing the case means that you’ll miss a house payment or a credit card payment, choosing to represent yourself when you have other legal options may not be the best idea.  Remember that even seemingly simple situations can have far-reaching consequences.

Although I’m a bit biased, being an attorney myself and getting to see the advantages and disadvantages of hiring a lawyer from an up-close perspective, I’m a firm believer that at least in situations where a legal action (such as a lawsuit or criminal charge) is pending or may be filed in the future, it is wise to hire an attorney or at the very least to talk with one to get an opinion on whether legal services are needed.

Don’t EVER make the decision to represent yourself without carefully considering the potential outcome of that decision.  If you choose to represent yourself, the odds are that no matter how good your legal position may be (or how good you think it may be), you will be at a serious disadvantage in most situations.  Opposing parties who have hired lawyers will have access to trained professionals who understand the complex and challenging court system, who know how to try cases, who understand judges and juries, and who have access to research and resources that you may not even be aware of.  Even worse, legal professionals—whether they are opposing attorneys, court personnel, or even judges—will assume that you don’t have an understanding of “the way things work.”  They may view you as a burden on their time and energy and anticipate that you will struggle with doing things the “right way,” even if those assumptions are wrong.  While you technically have access to an equal playing field when it comes to representing yourself in a court of law, the reality is that the legal system tends to favor parties who hire attorneys.  You will need to be prepared to face these hurdles if you are to be successful in representing yourself.

My goal in this article and those that follow is not to provide you with a perfect plan in which you are guaranteed success if you represent yourself—there are no guarantees in the law. Every person’s situation is different, and every legal decision is the result of a lot of different factors; what works for one person might not be effective in another person’s case.  So, instead of looking for a foolproof strategy, please use this information as a resource to learn some steps you’ll need to take if you decide to act as your own lawyer.

Remember, no single approach to resolving a legal action is foolproof.  While you can’t guarantee success or even a good likelihood of success, you can improve your chances by using common sense and being well prepared.  Representing yourself in a legal matter is an intimidating thing to do, so you should only make the decision to do so if you’ve carefully considered your options and are prepared for the results.  Consider talking to an attorney to see whether hiring one will even be necessary; many attorneys will offer an initial consultation for this purpose without charging a fee.

Although the articles in this series will be written with those in mind who are actively involved in a legal matter, the concepts they will discuss can be applied to almost any aspect of the law.  If you’ve made it this far and you feel that representing yourself is the best course of action, hopefully the rest of the articles in this series can provide some useful guidance. 

Finally, and most importantly, remember that no article can provide a substitute for legal advice specifically tailored to your situation from a licensed attorney.  Consult a lawyer if you have any questions about the legal issues you are facing.

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

There are a number of reasons why arson fires are set (i.e.  domestic issues, revenge, and thrill seeking), however, during these difficult economic times, setting fires for the purpose of procuring insurance benefits is the primary motivation.  While arson fires have been set in various areas of Toledo’s central city, the fires are primarily in areas of depressed property valuations. 

In order to establish that an individual intentionally set a fire, in ether a civil or criminal case, the prosecution or the insurance company must prove that someone had the opportunity and the means to have set the fire.  While not necessary as a matter of law, it is also important that the individual have some motivation to have set the fire.  Financial motivation (i.e.  the collection of insurance proceeds) is a strong indicator. 

In making a determination of whether the individual had the opportunity and the means to set an incendiary fire, an inspection of the scene by a certified fire investigator, following proper guidelines established by the Nation Fire Protection Association (NFPA), is critical in making that determination.  As City of Toledo Deputy Fire Chief Phil Cervantes told the Toledo (Ohio) Blade newspaper, “I’m sure there are a lot more out there that are arsons that we can’t determine,” he said.  “I just don’t have what I need to definitively say it’s an arson fire.  I know it is from experience.  I know what I’m looking at or what I’m reading is an arson fire, but if the house fell down or we had to tear it down, we’ve got to list it as ‘undetermined’.

Toledo Firefighters order a structure to be torn down when they believe the structure poses a risk to public safety and/or to the safety of firefighters.  This has become a source of frustration for insurance companies who are called; sometimes days after the fact, and must ask an expert to make a determination of the origin and cause of the fire and the security of the dwelling after the fire is extinguished.  Often, if the arsonist has properly performed his criminal act, the structure is an inferno by the time firefighters arrive and it is unstable and eventually torn down in the interest of safety.  The scene, as a result, is compromised, and often, critical evidence is lost.  While both the Toledo Fire Department and the insurance carrier have a stake in determining whether an incendiary fire occurred, many times, efforts to balance the interests of safety against making a determination of the origin and cause of the fire have been unsuccessful.  The Toledo Fire Department has erred on the side of safety on every occasion.  While public safety is their primary goal, an unintended result is that the suspected arsonist is often unable to be prosecuted or to have his insurance claim properly evaluated because the scene has been destroyed.  This situation makes it difficult for an expert to make an origin and cause determination.

Let’s hope that a solution can be found and a balance struck between these two oftentimes competing yet laudable goals. 

               As Medicaid is such a large part of Ohio’s budget it should be no surprise that, to the extent possible, the Attorney General of Ohio (AGO) is charged with obtaining repayment of Medicaid benefits once a Medicaid recipient has died.  All assets owned by a Medicaid recipient, at the time of their death, whether real property or personal property, are subject to collection.  This includes but is not limited to property that passes through probate. 

               The executor/fiduciary of the estate of a Medicaid recipient is responsible to notify the AGO of the death of the recipient, at which point the AGO will present a claim.  If the fiduciary does not notify the AGO then the time for presenting a claim (statute of limitations) does not run out.  If funds are distributed prior to informing the AGO or before the AGO finds out about the property, the heirs or family members may be ordered to repay the State.  Over the years many offspring of Medicaid recipients have expressed disappointment that the State has any claim to assets of their deceased parents; those same individuals typically did not have a problem utilizing the Medicaid program to take care of their parents while they were alive.  The law requires, and the other citizens of the State of Ohio need, the family members or heirs to repay those assets deceased recipients had in order for Medicaid to continue to be viable in Ohio.

               If you have a question as to whether a decedent was receiving benefits under the Medicaid Program the Medicaid Estate Recovery Unit of the AGO is located at 150 E. Gay Street, 21st Floor, Columbus, Ohio 43215-3130 or contact me and I will contact the AAG in charge of the program to make the inquiry.  It will often take a couple of months for all of the charges to be posted by ODJFS.