When closing a real estate transaction, every state requires that one or both parties report to the local taxing authority the sales price of the property.  This report is used for two primary reasons: (i) to establish the amount of the transfer tax or conveyance fee for the transaction and (ii) to establish the taxable value of the property for real estate taxation purposes going forward.

In Ohio the sale price is signed by the grantee under the deed, and is reported on a state-mandated conveyance fee form.  In Kentucky, the grantor and grantee must sign an affidavit of consideration attesting to the sales price.  Both forms are prerequisites to getting a deed of record.

Now, before we go any further with this post, it is important to note that the amount reported is not discretionary and not to be treated lightly.  In both Ohio and Kentucky, the reporting form is a sworn statement (i.e., under oath), the falsification of which is a felony.  So we are not suggesting misrepresenting anything on those forms.  But  an honest approach to the consideration question can yield different results depending on the circumstances.

With those items as background, many considerations drive the reported sales price on the conveyance fee form or consideration affidavit: (i) the stated contract price, (ii) federal tax considerations (e.g. basis and capital gains), (iii) the value to be “booked” for a sale, and (iv) appearances for banks and equity partners.  But frequently overlooked by the dealmakers is one of the most significant consequences of the price reported: the real estate taxes for years and years going forward will either be dictated by or strongly influenced by the number appearing on that form.

Many times we find in our property tax valuation work that buyers and sellers thoughtlessly put a high value on those forms, which may include the value of the business operating inside the property, furniture, fixtures and equipment, and other factors unrelated to the actual value of the real estate acquired.

With annual rates of taxation in Ohio ranging between 1.7% to 3.2% of the valuation and annual rates of taxation in Kentucky being around 1.1% annually, the consequence of unnecessarily over-reporting the sales price can be costly year after year after year.

Thus, we carefully counsel buyers to consider stripping  from the reported sales price the FF&E, the goodwill, cash and A/Rs of a business being acquired, and other factors that are unrelated to the real estate transaction.  The net effect can be an annualized savings going forward of 1.1 to 3.2 percent of the excised property’s value going forward.

The meat of the SBA List case is clarification or revision of the federal court’s standing doctrine in First Amendment cases. No matter how the Court slices it, it’s decision is invariably precedential as to future cases.

On the one hand, they were clear in the United States v. Alvarez and SBA List oral arguments that they wanted someone to have standing to challenge state speech restrictions like those present in our case. The Sixth Circuit’s too-restrictive approach was obviously unacceptable to the Justices.  On the other hand, they want to be restrained in establishing a standard that would throw open the courthouse doors to entirely new categories of litigation.

This SCOTUS Blog commentary explores Clarence Thomas’ approach to this issue in his unanimous opinion, being the rule going forward for pre-enforcement standing due to a “credible threat of enforcement” in First Amendment actions.

When a client is being sued, it is important to fully explore all defenses available to them, but many times litigants and their counsel fail to come to the table with clean hands.  And in the right circumstances, that’s when you can turn the tables on your opponent.

Indeed, the law requires that certain counterclaims claims are compulsory, and the failure to bring them in the context of the litigation presented could be a bar to recovery in the future.

When exploring commercial disputes, the tools available to litigants are:

  1. Meritorious counterclaims;
  2. Actions for frivolous conduct against the party and his attorney under O.R.C. §2323.51, a statute designed to protect against being false dragged into court; and
  3. Actions for frivolous conduct against the party and his attorney under Civil Rule 11.

These tools are all too frequently used imprudently, which can either unnecessarily increase the length and expense of litigation or even expose the client to claims of frivolous conduct, but when carefully considered can change the calculus of litigation in favor of the client.


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 litigation end game

Navigating turbulent waters: Economics of litigating low-dollar claims

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

In litigation, the reality of many business disputes is that neither party is 100% in the right, or 100% in the wrong, and, more importantly, even for the cases we believe passionately in, Judges tend to view them in more tempered terms than clients and their paid advocates.

Typically when Finney Law Firm attorneys meet with a client for the first time about their business or personal dispute, they are passionate about their position in the litigation.  They believe they have been wronged and want compensation for their losses, or that they have been unfairly sued, and want a vigorous defense of a disputed if not entirely frivolous claim against them.

However, as we get into the file more deeply, frequently we find the case is not at all just plain black and white, but rather shades of grey.

This has two consequences, at least: (i) it will take skill and attention to develop and present the case to convince the court that our client’s position is correct (read: more costly), and (ii) the odds of winning the case come down, if even slightly, as a result of the ambiguities present.

Clients and attorneys easily can fall into the trap of failing to see the weaknesses in their own case, and to assess them appropriately.

What we experience is that Judges and juries tend to see things less one-sided than we and our clients do initially   As a result, from the commencement of litigation to the day we are heading into trial, we attempt to paint for the client a realistic picture of their prospects for success.


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 litigation end game

Navigating turbulent waters: Economics of litigating low-dollar claims

Navigating turbulent waters: Turning the tables on the opposing party

For individual and small business clients of the Finney Law Firm, brace yourselves.

Anything other than the simplest litigation involving disputes of under $50,000 are difficult to resolve in a fashion advantageous to the client.  Even cases under $100,000 can be tough to resolve economically.  This is because the cost and aggravation of litigation, along with the time and unpredictability, make the cost-benefit of the proceeding difficult, if not upside down.

The exception to this  general rule is litigation in which punitive damages or “fee shifting” are involved.  Punitive damages are for the purpose of punishing the other party.  In Ohio in certain circumstances, punitive damages are limited by statute.  But in any event that means a multiplier above and beyond the actual damages can potentially be obtained in such cases.  Fee shifting means that when you win, the other side pays your legal fees.

But these remedies are limited to only certain types of litigation in Ohio, for example (i) cases involving intentional torts such as fraud, (ii) certain statutory actions where the legislature has specifically provided for these types of remedies, and (iii) cases in which a commercial contract calls for “fee shifting.”

Further, we find that Judges, especially state court Judges, are loathe to award punitive damages and attorneys fees to a prevailing party except in the clearest of circumstances.  Thus, litigants (except in public interest cases) should be exceedingly cautious in assuming that “the other guy” is going to be forced to pay your legal fees when you win.  The :”American Rule” on fees is that each party pays their own litigation expenses, and that’s almost always how it pans out.

What all this means is that for smaller disputes, the cost of litigation can well exceed the recovery, and clients should be cautious about proceeding even the first step down that path.  The reason is that litigation, once commenced, frequently becomes a slippery slope that is easy to enter but hard to exit.

When the Finney Law Firm is engaged for resolution of small disputes, we attempt to explain the risks and anticipated costs up front to empower the client to decide on the best path for himself. We also explore ways to provide value to the client in small cases, including a very early settlement, preemptive resolution, fee shifting and punitive damages, and even turning the table on opponents.


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 litigation end game

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

Navigating turbulent waters: Turning the tables on the opposing party

We missed this podcast, which has been “up” for more than a month, until now, on the important case the Finney Law Firm has pending before the United States Supreme Court, Susan B. Anthony List, et al. v. Ohio Elections Commission, et al.

The National Constitution Center has an interesting dialogue on how the “best Amicus Brief ever” came to be.  The praise was heaped by bloggers and newspaper reporters nationwide over a brief authored by D.C. attorney Ilya Shipro on behalf of his clients the CATO Institute and humorist P.J. O’Rourke.  The brief was filed in support of the positions taken by the client of the Finney Law Firm, the Coalition Opposed to Additional Spending and Taxes (COAST) in that Supreme Court case.

The Finney Law Firm, along with other attorneys, appeared in April before the United States Supreme Court on behalf of two clients seeking to engage in political speech in Ohio without threat of the Ohio “False Claims Statute” hanging over their heads.  The “False Claims Statute” criminalizes political speech in Ohio that a panel — the Ohio Elections Commission — deems “false.”  Finney Law Firm clients challenge the constitutionality of the statute.

The podcast, featuring brief author Ilya Shipro of the CATO Institute and his other client, humorist P.J. O’Rourke, is here.

The case is expected to be decided this month.  You can read more about it here, here and here.

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.


As is explained in these articles, here, here and here, litigation is typically lengthy, expensive, and unpredictable.

Frequently, but not always, the process is withering for the typical business and individual litigant.  With some exceptions noted in the next paragraph, because of the time, cost and uncertainty of litigation, an early settlement is preferential to protracted litigation.

WatersAs a result, one technique Finney Law Firm attorneys frequently employ and may recommend to you an attempt at a very early settlement of your case, whether as Plaintiff or Defendant.

As a Plaintiff, if you can resolve a case before incurring legal fees, expert witness fees, court reporter charges, and other expenses attendant to litigation, if you can tie up a settlement and eliminate the risk — however small — of a loss in Court, and if you can avoid the life distraction of two-to-three years to resolve your Complaint, it may be in your interest to comprise your claim and settle it.

As  Defendant, if you can similarly avoid the costs of litigation, reduce the risk of a large judgment, and avoid the collateral damage to your business that litigation can bring, a settlement can be in your interest.

In our experience, rarely do Judges see things as black and white as do our clients on the original intake meeting.

For cases under, say, $50,000 in value, the two parties frequently can reasonably be expected to spend more than half that in expenses to bring a case all the way through trial.  Even resolving a claim on Summary Judgment, after significant dollars have been expended, can be an expensive approach.

Thus, one approach frequently recommended to clients of the Finney Law Firm is to attempt to settle a claim in the very early stages (i.e., before filing a law suit or before filing a formal answer).

Now, the response to these approaches, is all too often, regrettably, that the other side will not entertain an early settlement.  However, sometimes we are able to settle a claim before the monies of both parties are eaten up on legal fees.  But even when settlement is not accepted in the early stages, it can set the stage for favorable terms later in the proceedings, as the opposing counsel knows the other party and his attorney was and is always willing to attempt to resolve the claim.

And even more unfortunate, the opposing party and their counsel frequently will interpret, incorrectly, that taking a stab at preemptive settlement of a claim shows lack of resolve to see a matter through to conclusion.  Such is the posturing that accompanies much of the “litigation game,” but we prefer to start with the client analyzing the costs and risks of a full litigation of a claim before (not always instead of) embarking on the most expensive path available — litigation.


Read below four related topics:

Navigating turbulent waters: The litigation end game

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

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

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.

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.