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Author Archives: Christopher P. Finney

Navigating turbulent waters: The litigation end game

Author By Christopher P. FinneyPosted on

The Finney law Firm is prepared to fully and vigorously litigate your claim, through appeals if necessary.  Indeed, our attorneys have handled appeals of a case all the way through the U.S. Supreme Court.  So, please do not read this article as a lack of resolve to pursue a case through the end.  Rather it reports the practical reality of the economics of the difficult process that litigation can be.

All litigation resolves.  Whether it is by means of settlement, trial, or preemptive adjudication, somehow all litigation eventually resolves.  (For purposes of this analysis, a Plaintiff simply walking away from their claim [which does happen from time to time] is deemed a “settlement.”)

But many litigants are unaware that the “end game” is not always (or even typically) a trial, but rather (depending on which party you are), simply achieving, or getting past, preemptive adjudication of your case.  For, when preliminary adjudication is off the table and one party or the other is actually facing the reality, risk, collateral exposure and expense of a trial, the likelihood of settlement suddenly increases.

Let us explain, in some detail.

“Everyone is entitled to their day in court” is an axiom that is largely incorrect if “by their day in court” we mean a trial. Rather, counsel for Defendants frequently aim to avoid a trial with three primary procedural and substantive motions: (i) Motion for Judgment on the Pleadings, (ii) Motion to Dismiss, and (iii) Motion for Summary Judgment.

The first two motions say, essentially, that the pleadings (the original law suit, the Complaint) fail to make a claim recognized as the basis for relief (i.e., usually money) that is recognized by the Courts. These two motions can be because the case is innovative (i.e., that the courts are not familiar with this type of claim), or the pleading is poorly-drafted.  In our public interest practice, many times there is a foundational question of “who has standing” to bring the claim?  This is so because, as unfair or illogical as it may seem, a violation of a clear legal duty on the part of an elected or appointed governmental official does not automatically confer standing on every (or any) citizen to challenge the act.  In any event, these preliminary or preemptive motions can end a case as early as just after the filing of the initial case.

The third motion (a Motion for Summary Judgment), in contrast, comes after considerable time and expense has been expended on discovery — e.g., written document production, deposition, site visit and inspections.

Defendants frequently want to run Plaintiffs “through the paces” before even engaging in conversations about settlement. So, the parties spend enormous sums of money and extensive hours in the discovery process, and then draft motions, many times exhaustive, to end the case without a trial.

Usually it is a Defendant who files the motion to end the case, and his risk of loss, without a trial.  Sometimes a Plaintiff’s case is so strong that some or all of the issues can be decided in his favor before facing the Judge or jury at trial.

These motions are then opposed by briefing, and finally argued before the Judge. Typically this process crescendos just weeks or even days before the scheduled trial on the merits before the Judge.

If the Defendant loses its Motion for Summary Judgment, his motivation to settle dramatically escalates.  Sometimes the case can quickly and even generously settle at that stage.  Other times, a Defendant pushes even further, to pretrial conference or even up to jury selection or the presentation of the first witnesses before relenting, in an attempt to wrangle the best settlement possible for his case.

If the Plaintiff wins partial summary judgment, similarly the motivation for the Plaintiff to put money on the table typically increases exponentially.

Once a Plaintiff “survives summary judgment,” the chemistry of the case changes dramatically.

A Defendant is facing all sorts of adverse consequences of litigating his claims at trial: (i) the uncertainty of a significant judgment, (ii) depending on the claim, open-ended punitive damages and attorneys fees, (iii) adverse publicity or hard feelings in the community (what we call “collateral damage”), and (iv) the tremendous cost of a trial.

What this means for litigants in civil disputes is that even though most cases settle, serious settlement discussions don’t even commence until “all the money is already spent” on the litigation.

This is unfortunate as by then both Plaintiff and Defendant have spent significant sums just getting to the table for discussions, money that could have gone to bridging the gap between the parties for an early resolution.

As a result of this practical reality of how litigation plays out, read here the practical reality of litigating cases for smaller amounts of money (say, under $100,000) and read here one very practical approach our firm frequently undertakes to help our clients “navigate the turbulent waters” of litigation.

Please contact us to learn how we can help you with your litigation challenges, either defending against a business or personal claim, or prosecuting a meritorious claim you hold.

Read below four related topics:

Navigating turbulent waters: Very early settlement discussions

Navigating turbulent waters: The economics of litigating low-dollar claims

Navigating turbulent waters: It’s not all black and white for judges

Navigating turbulent waters: Turning the tables on the opposing party

Valuation services right the portfolio

Author By Christopher P. FinneyPosted on

Isolated to a single property, the tax valuation services offered by Finney Law Firm can provide significant annualized property tax savings for clients.  Read about these services here.

But for larger companies, “righting” their portfolio can have such a significant impact, that it affects a quarterly earnings report, and indeed increases the market capitalization of the company.

The attorneys of the Finney Law Firm have been retained to represent several significant regional and national corporations in tax valuation work, efficiently evaluating dozens or hundreds of properties using our affiliated valuation consultants, and bringing challenges on those that are “over assessed” by the County Auditor or Property Valuation Administrator.

When the results begin to roll in in the fall of each year, not for just one or two properties, but across the portfolio, the impact to the bottom line — annualized — can be hundreds of thousands of dollars.  Then, the impact on the quarterly and annualized earnings reports can generate a significant increase in market valuation of the company.

Please contact us to learn how we can help your company “right” its portfolio to pay only your fair share of real estate taxes going forward.

Federal criminal “stings” thrown out

Author By Christopher P. FinneyPosted on

Two different federal judges have tossed criminal charges relative to drug stings as “outrageous,” “fabricated crimes” for being an unconstitutional procedure.

The reasoning is not just the substance of the stings, but, as the article tells us, “Judges are getting really frustrated with not having sufficient answers on how these people were targeted or how they came to be the subject of the sting.”

It’s n interesting development where Judges are actively questioning the decisions of prosecutors instead of just defendants.

Read it here.

OVI Arrest videos are no longer public records in three counties in SW Ohio

Author By Christopher P. FinneyPosted on

We are all used to seeing videos of OVI arrests on television.  Bob Huggins, Paavo Jarvi, and other luminaries’ arrest video have regularly appeared on television and www.youtube.com following the arrest.

Well, pursuant to a recent decision from the 12th District Court of Appeals, in Clermont, Warren and Butler Counties (the area covered by the 12th District Court of Appeals) OVI arrest videos are not considered public records.  If the agencies choose not to hand them out, they won’t be disclosed until after the case is resolved.

Read the decision here.

Is filming an arrest a constitutionally-protected activity?

Author By Christopher P. FinneyPosted on

In my career, I have been asked to evaluate two cases in which our firm’s clients were arrested for merely filming the arrest of another person.  In one instance, our client was leaving a bar in Covington, Kentucky and observed another patron (whom he did not know) being arrested.  He whipped out his camera phone and filmed the arrest.  The Covington police arrested him merely for filming the confrontation.  In the second instance, our client was a “sidewalk counselor” outside an abortion clinic.  A fellow protester was being arrested, and he filmed the same with his video camera.  Again, he was arrested.

In both instances, the charges were ultimately dropped, and our firm was asked to evaluate the claim for a constitutional violation.  In both instances, the clients ultimately decided not to pursue the claims, but we determined that the filming of an arrest is protected First Amendment activity.

This Washington Post piece highlights the continuing problem of police agencies not understanding this developing constitutional right, and the resulting arrests.  It’s an interesting topic and one that certainly will develop more fully in the coming years.

Former Kings Superintendent featured on NBC Channel 4 in Columbus

Author By Christopher P. FinneyPosted on

Our firm is handling an important case dealing with the cruel child abuse of multiple-handicapped, non-verbal children at Kings Local School District’s Columbia Elementary School.

The abuse occurred under the rein of Superintendent Valerie Browning.  Our readers may recall that we sued at the Ohio Supreme Court to obtain copies of eight deposition transcripts that documented the abuse.  Worse, the District gave the abusive teacher tens of thousands in severance and a glowing letter of recommendation.  Finally, Browning read a statement when the documents were released, claiming to have kept the parents of the abused children informed of what had happened to their children. This last statement was not true.

Last November, Kings voters replaced their school board with a more reform-minded group, and last month Browning announced her resignation to accept a new position in the Pickerington Ohio District, a suburb of Columbus.

Local parents are outraged, and last week, a Columbus TV station reported on the events in question.  Watch the story here.

After the fact: NYT’s Adam Liptak’s investigation into the editing of SCOTUS decisions

Author By Christopher P. FinneyPosted on

Sunday, Adam Liptak had this interesting piece in the New York Times shining a light on a little-known practice of our nation’s highest court: corrections “after the fact” of the original released decision.

The late changes by the Justices do not change the outcomes of the decision — the winners and losers — but they do occasionally change the reasoning, which becomes the basis for decades following for other appeals, and as direction to the Courts of Appeals.

I have dealt with Liptak on our U.S. Supreme Court case (here), and on the COAST/Mark Miller “Tweets” case (here) and must say he is a brilliant writer.  Liptak devotes his coverage exclusively to the Supreme Court and has a keen understanding of the law and the workings of the nation’s highest court.

Pillars of Strength: Formatting a corporate signature to protect the “corporate veil.”

Author By Christopher P. FinneyPosted on

Two other posts (here and here) address techniques useful in protecting personal assets from the creditors of a corporate entity (I.e., limited liability company or corporation).  This post addresses specifically how to sign documents to aid in that effort to avoid “piercing the corporate veil.”

The key is to sign documents not in your personal name, but in the name of the corporation, to avoid essentially personally signing for or guaranteeing corporate debt.  In other words, Courts are going to ask “who is a party to this contract?” and how you sign will be indicative of your intention of who is standing behind the contractual obligation.

Thus, the proper way to sign all documents for the corporation is with a corporate (not individual) signature as follows:

XYZ, LLC,

an  Ohio limited liability company

By:____/signature/___________________

Its: ____/title or signer/_______________

 

Read below two related topics:

Pillars of Strength: Three tips for protecting your personal assets when forming and operating a company

Author By Christopher P. FinneyPosted on

When clients approach us for business formation, one of their concerns is protecting their personal assets from a business misfortune, either simple financial failure or a catastrophic situation creating an unexpected liability.

We tell clients, first, that no undertaking is made without some degree of risk.  In shorthand, we say “if you want to avoid all potential liability, don’t get out of bed in the morning.”

But with that as background, it is possible to carefully limit  the exposure one is undertaking with full consideration given to three essential layers of protection:

  1. Engage in good practices.  Despite popular lore, most legal liability arises from either from contractual undertakings — i.e., voluntarily entering into an oral or written agreement — or negligence, i.e, failing to follow the expected standard of care in some function, whether driving a car or manufacturing a product.  As to contracts, be careful what you agree to.  As to negligence claims, if your touchstone is proper hiring, proper training, proper operation and proper supervision, and that you maintain your equipment and real estate in good condition and repair, your risks should be minimal.
  2. Buy appropriate insurance.  Then, consult with your insurance agent and purchase insurance appropriate to insure the risks that you undertake and that are inherent in your operations.
  3. Properly operate under a corporate entity.  Finally, a corporate form, properly created and respected, shields your personal assets from contractual and tort claims.  Read more here about respecting the corporate entity.

Read below two related topics:

Please contact us to learn more about how to protect your assets when forming and operating a business.

Pillars of Strength: Effectively using your corporate form for limited liability protection

Author By Christopher P. FinneyPosted on

Our clients form and do business in the name of corporations and limited liability companies for a variety of reasons, but one primary motivation is to achieve the benefits of limited liability protection that the entity offers.

Optimally, limited liability protection means that the exposure of the investor/owner in a corporate entity is limited to his capital contributions and personal loans to the company, and that his personal assets beyond those are not exposed to voluntary and involuntary liabilities, which are addressed immediately below.

  • Voluntary liabilities are just like they sound — those undertaken willingly: e.g., a real estate lease, a contract to buy equipment, a bank line of credit, and a professional services contracts. Primarily they arise from contractual relationships.
  • Involuntary liabilities are not typically contractual, but are tort and statutory liability such as industrial accidents, employment discrimination claims, and regulatory enforcement actions.

For both types of liabilities, a member of a limited liability company or shareholder of a corporation can cause (intentionally or unintentionally), the “corporate veil” to be pierced.

This entry explores ways to protect that “corporate veil” of limited liability protection, but before we get there, one more introductory comment is appropriate.  Frequently clients tell me something to the effect of: “Oh, why bother with a corporation, the Courts will bypass that anyway and come after my personal assets.”

As a broad principle, this simply is not true.  Ohio Courts and courts throughout the nation have been pretty vigilant in protecting the corporate veil of owners of corporations and limited liability companies.  The protection is powerful, and very difficult to penetrate.

So, forming and properly respecting a corporate form is an important “Pillar of Strength” of your investment strategy for your business.  Here are a few tips to assure that the “corporate veil” is protected of your business entity:

  1. Read here the proper way to sign every contract your company signs to assure respect of the corporate entity.
  2. Carefully consider any request to sign a personal guarantee, as this will indeed give rise to full personal liability.
  3. Every contract your company signs should clearly be in the name of the company (not your name personally) and use the corporate form of signature (see #1, above).
  4. On your printed materials (letterhead, business cards, brochures) note your company name as “XYZ, Inc., an Ohio corporation.” This is to assure for both voluntary and involuntary liabilities you have properly identified to everyone with whom they are dealing.
  5. Do not use the corporate checking account as a piggy bank for your personal finances.  Take money out only as regular pay checks or corporate distributions.  So, don’t pay personal expenses from the account (such as a dry cleaning bill), or put non-corporate income into the account.  This “no-no” is a key element of the “alter ego” analysis in which Courts will engage when a Plaintiff undertakes the difficult task of piercing a corporate veil.
  6. For corporations, have annual meetings and other meetings required by the corporate documents, an d maintain corporate minutes of those meetings and approvals of significant corporate contracts and occurrences.  The Ohio limited liability company statute dispenses with this requirement for LLCs.

Read below two related topics:

Please contact us to learn more about how to protect your assets when forming and operating a business.

 

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