Hi, How Can We Help You?

Blog

The Three Best Ways to Stay Out of Court

Author By Finney Law FirmPosted on

  • posted: Jan. 19, 2016
  • Hemmer DeFrank Wessels PLLC
  • Uncategorized

Written By: Todd V. McMurtry

Foreclosures, criminals and divorces combined with chronic understaffing have clogged the courts.  If you have not been involved in a lawsuit in the past ten years or so, you should count your blessings.  In my opinion, because many states are functionally insolvent, they have understaffed and underfunded their courts.  The brave few who have agreed to serve as judges face large dockets with diminished resources.  The unfortunate few who need the aid of the state courts have to compete with the many forces shaping the legal system to have their case heard. 

Once a person finds themselves in court, it is often very difficult to get out without expending more money than the dispute is worth.  Legal fees for even a simple case can quickly run into the tens of thousands of dollars.  Petitions to the court, called motions, can drag on for months as the courts struggle to keep up with the paperwork associated with such arguments.  It is common for the party that does not want to pay what is due to drag the process out as long as possible and then use the delay as a bargaining chip to pay far less or demand more than is equitable. 

I advise every client that a case can take 12 to 18 months to get through the courts.  On top of that, an appeal can easily drag a case out for another two years.  If the case then goes to the state supreme court, it might take another 6 to 18 months to get a final judgment.  In the worst case scenario, a case can then be remanded to the trial court for further proceedings and it starts all over.  It is not uncommon for a case to take four to six years to reach a conclusion.  During that time, you have to pay your attorneys tens of thousands of dollars to keep your case on the move. 

I share this sobering reality because I strongly recommend that you make every effort to avoid state court as a means to resolve a dispute.  Instead, I recommend these three alternatives:

  • Limit involvement of legal counsel.
  • Choose binding arbitration.
  • Try pre-suit mediation.

Limit the involvement of legal counsel.  For a practicing trial attorney, this is tough advice to offer.  But, the truth is that disputes under $25,000 or so should be negotiated with limited involvement by attorneys.  Net of legal fees, a compromise in a one-on-one negotiation is often the best solution.  A good idea in this situation would be to consult with your attorney, but not have your attorney directly involved.  There may be something very important about your situation that you do not understand.  Buy an hour of your attorney’s time and make sure you understand what type of dispute you have.  As well, legal counsel can draft an agreement that will fully release whatever claims exist so both parties can put the matter permanently behind them. 

Choose binding arbitration.  Arbitration is faster.  Even more complex disputes can be resolved in months instead of years.  It is very hard to appeal an adverse arbitration award, so when it is over, it is usually over.  As well, you can use the courts to enforce any judgment you receive in arbitration.  Arbitration is more streamlined than state court proceedings.  You do have to pay an arbitrator to act as your private judge, but in most situations it will likely save money.  As well, since you can pick your own private judge, you can find someone with particular skill in a given area.  You hire a construction professional for a construction dispute, etc.  Ask your attorney to help you include a binding arbitration provision into contracts you sign. 

Try pre-suit mediation.  Let’s assume a circumstance where you have tried to negotiate a resolution with the opposing party, but failed.  Assume as well that your agreement does not require arbitration.  This means you are headed to state court.  At this point, it is almost always a good idea to hire a professional mediator to attempt a resolution before going into state court.  Your attorney can help you through this process and make it more effective.  The mediation process creates strong momentum for settlement and can overcome obstacles that may have blocked the success of direct negotiations.

A smart business should always try to avoid state court.  But, if your effort to be nice and resolve the problems through negotiation fails, then I recommend that you hire a real trial attorney and do battle!

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Isaac Heintz and Dylan Sizemore instruct: “Five Pillars of Success” to Anderson Chamber of Commerce

Author By Isaac T. HeintzPosted on

Tuesday of this week Finney Law Firm attorneys Isaac T. Heintz and W. Z. “Dylan” Sizemore present “5 Pillars of Success” for the Anderson Chamber of Commerce.

The course addresses the foundations of business success through carefully establishing and planning the success of your business with legal strategies in corporate law, real estate law and estate planning.

A video of the course will soon be available on line.

Chris Finney to present to Cincinnati Bar Association: Empowering the Client in Decision making Along the Way

Author By Christopher P. FinneyPosted on

One of the core values of the Finney Law Firm is empowering the client in decision making on their legal matters, be they litigation or transactions.  From the law firm perspective, it takes a constant, repeated, and consistent effort to communicate the status and options to a client, and to empower the client to make decisions — good decisions — for the future of his legal affairs.

Chris Finney has been invited to present to fellow attorneys at the Cincinnati Bar Association’s “Brown Bag Luncheon” series with the topic “Empowering the Client in Decision making Along the Way” on Wednesday, February 10 from noon to 1 p.m.

We are proud to have developed and implemented aggressive strategies to place the client in the driver’s seat as a legal matter progresses.

For more information on this course, please contact the CBA at (513) 699-1397.

Refreshing: A Court that understands the breadth of the First Amendment

Author By Finney Law FirmPosted on

In Serafine v. Branaman, et al. the U.S. Fifth Circuit Court of Appeals recently ruled that a Texas law proscribing one’s ability to claim to be a psychologist fails Constitutional muster in the context of a political campaign. The case is part of a national trend in the wake of the the Alvarez, Stolen Valor Act decision, apply strict scrutiny to speech that is arguably both “political” and “commercial.”

Dr. Serafine, an attorney who completed a four-year post doctoral fellowship at Yale and whose dissertation for her Ph.D. in education was published in a psychology journal, Genetic Psychology Monographs, ran for the Texas state senate in 2010. Previously, Serafine had been a professor in the psychology departments at Yale and Vassar, even though her lack of a doctorate in psychology prohibits her from receiving a license to practice as a psychologist. Nonetheless, Dr. Serafine referred to herself as a “psychologist” in her campaign materials and website, as she was known collegially and in her role as a professor of psychology as a psychologist notwithstanding her lack of the formal credentials.

During her 2010 campaign for the Texas State Senate, the Texas State Board of Examiners sent Serafine a letter informing her that her political materials referring to herself as a psychologist violated state law and ordered her to cease using the title “psychologist” on her campaign website. Ultimately, Dr. Serafine did remove the title “psychologist” from her campaign materials but brought suit against the chairman and executive director of the State Board of Examiners claiming that the Texas Psychologists’ Licensing Act violates the First and Fourteenth Amendments.

Read the Court of Appeals decision here.

Read more from on the case from Eugene Volokh here.

Judge Susan Dlott certifies class action in Tea Party v. IRS litigation

Author By Christopher P. FinneyPosted on

Today, U.S.  District Court Judge Susan Dlott certified a class action in the lawsuit against the IRS for its illegal targeting of Tea Party groups.

The Finney Law Firm is proud to join lead attorney Eddie Greim of Graves Garrett in Kansas City and local attorney David Langdon in representing the Tea Party groups in this litigation.

The scandal, which broke into the news in the summer of 2013 with stories of how the IRS first segregated applications for tax exempt status from Tea Party groups and then subjected those applications to prolonged delays, intrusive questioning, and additional scrutiny that other groups seeking the same tax treatment did not receive.  Lois Lerner was widely identified as having conceived and advanced the discriminatory treatment of liberty groups.

The Wall Street Journal has today’s development here and the Cincinnati Enquirer has good coverage of the topic here.  Previously, Judge Dlott ruled in favor of the Tea Party groups in denying the government’s motion to dismiss the suit, and has compelled production of key evidence the government has sought to conceal.

 

Cuyahoga County Court of Appeals analyzes primary and implied assumption of the risk in case involving a foul ball at the Cleveland Indians fireworks night

Author By Finney Law FirmPosted on

A recent Cuyahoga County Court of Appeals case distinguishes implied assumption of the risk with the primary assumption of the risk/recreational activity defense discussed in an earlier post here, and recently at Eugene Volokh’s Washington Post blog here.

In July 2012 a spectator was injured by a foul ball at a Cleveland Indians game. As discussed in my earlier post, the Cleveland Indians would generally be immune from liability for the fan’s injuries. However, in Rawlins v. Cleveland Indians Baseball Company, Inc., 2015-Ohio-4587, the Cuyahoga County Court of Appeals found that the trial court erred in granting summary judgment in favor of the Indians on the basis of the doctrine of primary assumption of the risk.

Reds fans may recall that during fireworks Fridays at the Reds games, the ushers and public address announcer wait until after the final out before asking fans near the fireworks to move from their seats. As Sam Wyche once said, “You don’t live in Cleveland.” The ushers at the Indians game may have jumped the gun in moving fans out of certain sections in preparation for the fireworks show. I say may have because there was conflicting testimony in depositions. The original complaint alleged that Rawlins was ordered from his seat, but during his deposition he testified that the usher merely stared at him with her hands on her hips, and that he had overheard other people saying the ushers were telling people to leave their seats.

Primary Assumption of the risk means that in activities which involve risk, each participant (or spectator) assumes the risk for any injury resulting from the risk associated with that injury. As the Court in this case referred to it, the Baseball Rule means that getting hit by a foul ball is a risk normally associated with going to a baseball game – whether you are sitting in your seat or walking to the refreshment stand (or being distracted by the San Diego Chicken). But, when you are being ordered to leave your seat before the final out of the game in preparation for the post-game fireworks show, the club has created a circumstance outside the normal routine of baseball game attendance. In those cases, the club may be liable for injuries resulting from being hit by a foul ball.

 

 

Are you entitled to a refund on Indian Hill School District Class Action Settlement? Here are the details

Author By Christopher P. FinneyPosted on
This firm was privileged to serve as class action co-counsel along with Maurice Thompson of the 1851 Center for Constitutional Law and Paul DeMarco of the Cincinnati firm of Markovits, Stock and DeMarco in securing a refund of illegally-collected taxes levied by the Indian Hill School District for 2010 through 2014.  That legal team has settled claims for our clients relating to the over-assessment and payment of taxes totaling $5.5 million.
A recent article in the Cincinnati Enquirer about the law suit (Sanborn v. Indian Hill Local School District) and the settlement are here.
In the Spring of 2016, class members should be receiving notices from the Settlement Administrator about how to obtain their refund.  Taxpayers must respond in order to get their refund check.
  • PLEASE NOTE: If you or someone you know owned property in the Indian Hill School District for those years and have since sold the property, the Auditor’s Office, and therefore the Settlement Administrator, may not have your address and you may not be notified of your right to receive a refund.  In order to obtain notices about the refund, please be sure to contact the Settlement Administrator noted below and provide the following information: (a) your name and address, (b) the property you owned, and (c) the period you owned the property.
The class includes every property owner who paid the illegal levy for the years in question and includes both residential and commercial property owners.  The amount of the refund will vary by property and payor, but we estimate the average refund will exceed $800.
Here is what is going to transpire on this settlement:
    1. The court-appointed Settlement Administrator will send a letter to every class member who can be identified in the Spring.
    2. The Settlement Administrator will have calculated the pro-rata share of refund due to each taxpayer, which amount will be included in each notice.
    3. The recipients of the letters must respond to receive their refund.  They can also opt to donate the monies to the Indian Hills Public Schools Foundation.
    4. If payors of tax bills cannot be identified, or if they fail to respond, their pro-rata share of their refund will be paid to the Indian Hills Public Schools Foundation.
    5. Inquiries should be sent to the Settlement Administrator:
Dr. Harvey Rosen, Ph.D.
Burke, Rosen & Associates
2800 Euclid Ave., Suite 300
Cleveland, OH 44115
(216) 566-9300
There is also a web site about the settlement: IndianHillSettlement.Com.
If you have any questions, please give Chris Finney of this office a call at 513-943-6655 or email him at [email protected].

Rundown on some of Friedrichs/U.S. Supreme Court oral argument coverage

Author By Christopher P. FinneyPosted on

Traditional media as well as Twitter and other social media outlets are ablaze with coverage, advocacy and commentary on the U.S. Supreme Court oral argument today in Friedrichs v. California Teacher’s Association, which has positioned itself to overturn forty years of precedent allowing public employees to be forced, as a condition of their employment, to pay dues to a chosen labor union.

Those counting votes noted an apparent Court majority that appears in favor of reversing the precedent in Abood v. Detroit Board of Education that in 1977 allowed unions and government entities to negotiate such compulsory arrangements.  It is always difficult to predict the outcome of a court case, high-profile Supreme Court cases being no exception.

Links to some of the major articles are below:

New York Times: Supreme Court seems poised to Deal Unions a Major Setback

Washington Post: Justices critical of forced union fees for public workers

Wall Street Journal: High Court appears to oppose public-sector union fees

The Hill: Supreme Court casts doubt on mandatory union fees

LA Times: Supreme Court conservatives appear ready to overturn mandatory union fees

A decision is expected before the Supreme Court adjourns for this term in June.

Advocating in the halls of government: Indian Hill class action settlement approved by Judge Steve Martin

Author By Christopher P. FinneyPosted on

For those readers following the Indian Hill School District class action litigation (read here for more), yesterday, Hamilton County Common Pleas Court Judge Steve Martin approved the global settlement.  This is good news for all involved, as a six-year legal battle has now wound to a successful end.

Today’s Cincinnati Enquirer has an update here.

We will run a blog entry next week with specific instructions on how those who now or during the class action period did own property in Indian Hill can obtain refunds.  The average refund will be around $800.

Pillars of strength: An agreement to agree upon something later is no agreement at all

Author By Christopher P. FinneyPosted on

When drafting leases, contracts and other agreements, frequently my client informs me that a key provision has been negotiated or an impasse has been resolved by making an agreement to negotiate an agreement later.

For example, the question the parties have is: “what is to be the lease rate upon a renewal in five years?”  Or, “what will be the location of a utility easement across land of the seller to serve new property being acquired by the buyer?”  And the answer the parties provide is: “will be negotiated at that time” or “we will decide at a later date.”

These answers are, of course, not answers at all.  And they constitute no agreement at all, for what if the parties fail to agree?

In the lease scenario, five years goes by, and the tenant exercises a renewal option subject to a “will negotiate the rental rate later” provision.  Then, the parties negotiate and cannot come up with an agreement.  Is the renewal effective?  If so, at what rate?  If the parties don’t set some sort of procedure (e.g., an appraiser will decide the rate) or some sort of benchmark (e.g., applying CPI inflation rate since the signing off the lease).  The “agree to something later” formulation is the recipe for conflict if not disaster.

In the easement scenario, the seller agrees to provide water, sanitary sewer and electricity easements after the closing on the property being sold, at a location to be decided between the parties. But what if the seller offers access only at a location costly and inconvenient to the buyer?  What if the buyer demands access in a location that makes the remainder of seller’s property undevelopable?  Again, without some procedure (a neutral third party will arbitrate disputes) or benchmark (as close to the east property line as practical), the agreement to provide agreed utility easements at a later date is a hallow promise and an illusory contract.

Now, if the parties trust one another, have a history of getting along, or have economic motivations to cooperate, it may make sense for parties to an agreement to “agree to agree later,” but don’t labor under the illusion that the agreement reached is in itself meaningful, binding or clear.

 

 

 

1 … 71 72 73 74 75 … 105