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.

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.

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.

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.

Originally from Monroe, Michigan, Sarah holds a Bachelor of Arts degree from Siena Heights University, where she was an Academic All-American and a four-year varsity softball letter winner.  In addition to being active in the Toledo Bar Association and the Ohio State Bar Association, Sarah is active in the Toledo and Monroe communities.  For the last three years, Sarah has coached the local FAST Wizards youth travel softball teams.  She is currently the varsity softball coach at Monroe St. Mary Catholic Central High School.

Sarah’s areas of practice at RCMTZ will include civil litigation, insurance defense, fraud investigation and employment law.  She can be reached at sbeaubien@rcmtz.com.

Perhaps even more exciting than the fact we are opening a second office is that I will be moving back to Columbus to be the managing shareholder of the Columbus office.  I say back to Columbus because as I tell people, I spent seven years going to school at The Ohio State University.  When the response I get is people looking at me strangely wondering if they should be hiring an attorney that went to Ohio State for seven years, I quickly point out that I did manage to graduate twice, with both a business degree and from law school.  Beyond simply going to school at Ohio State though, Columbus is also where my fiancée lives, where a large amount of our family and friends are located and where I’ve spent most of my weekends for the past few years.  And finally, who could ever forget the electric feeling of Saturday afternoons during football season.

While I will undoubtedly miss things about living in the Toledo area, yet another nice thing about the practice of law is that it can now be done effectively state and even nationwide.  Thus, while I will be expanding our office locations and be based primarily out of Columbus, I will continue to spend time in the Toledo office and handle matters in the northern part of Ohio.  Likewise, the Columbus office will serve as a base for my partners and associates based in Toledo, to better address the needs of clients in the central and southern portions of the state.  Without question having attorneys in both locations at all times will better serve the needs of clients in the most economical way. 

While perhaps not directly comparable, as I write this blog I can’t help but think of the timing of the opening of the office and the return of Urban Meyer to Ohio State to coach the Buckeyes.  Both of us spent time at Ohio State and are returning to Columbus.  Both of us are excited about the upcoming year and opportunities that await.  And both of us plan and hope to lead our team to great things in Columbus and across the State of Ohio.  

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.

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.

For further information on the seminar, visit the National Society of Professional Insurance Investigators’ website at www.nspii.com.