Category Archives: Business & Civil Litigation

Frequently our firm is asked to represent parties against whom claims have been made, either defendants in a law suit or recipients of a demand for payment pre-litigation.

It’s easy to just dive in and either respond to a demand letter or to defend such a suit, but that impulsive response can unnecessarily cost the client money.

One question that should be addressed early in the engagement is: Are their insurers or indemnitors who might cover the cost of the claim and/or the cost of the defense of the claim?

Almost all individuals and businesses maintain insurance policies of some sort such as property and casualty insurance (property and auto) or public liability insurance.  Some individuals and businesses will also have a variety of specialty insurance policies such as professional liability (i.e., malpractice) insurance, title insurance and fiduciary coverage.  These all are contractual arrangements whereby the risk for many typical occurrences in personal and business life that give rise to claims and suits are shifted to an insurance company — both the underlying claim and the attorneys fees associated with defending the claim.

In addition, the client may have a variety of contractual relationships that transfer the risk to a third party (not an insurance company).  Commercial leases, for example, many times contain risk-shifting provisions for various occurrences (both shifting risk from landlord to tenant and from tenant to landlord).  Employers frequently cover claims against their employees.

In addition to contractual relationships that give rise to indemnity claims, the positioning or actions of parties can cause risk-shifting as well.  For example, if someone borrows your car and wrecks it, injuring others, or if someone trespasses on your property and causes damage to property or injury to person, those third parties can be responsible to the client and the claimant for the costs of the claim and its defense.

An aggressive and creative attorney will — near the outset of the relationship — thoroughly explore insurance and indemnity issues so as to minimize or eliminate costs to the client — costs of both the attorneys fees to defend the claim as well as the costs of the substantive claim itself.

The idea is not for the attorney to make money — but rather to maximize the value to the client by retaining our firm.  If we can shift the risk near the beginning of the relationship to an insurer or indemnity, we have provided that value.  We have “made a difference” for our client!

Read here one example where we made a difference for a client whose prior counsel had failed to advise him of insurance and indemnity issues in a defamation claim.

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

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.

As 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

Chapter 5321 of the Ohio Revised Code, known as the Landlord-Tenant Act, governs the rights and duties of landlords and tenants in Ohio.  Among other things, the Act requires Landlords to maintain rental properties in a fit and habitable condition, and to keep all common areas of the premises in a safe and sanitary condition.  Recently, in Mann v. Northgate Investors, LLC, the Ohio Supreme Court was asked to determine whether these duties extend not only to tenants, but also to tenants’ guests.

Lauren Mann filed the lawsuit after suffering injuries at Northgate’s apartment building. Mann had been visiting a friend who was a tenant in Northgate’s building. She left her friend’s apartment around 11:00 p.m., and descended two flights of stairs in the dark because there were no functioning lights in the stairway.  When she reached the ground floor, Mann stumbled into a glass panel adjacent to the exit doors, thereby injuring herself.

In her lawsuit, Mann alleged that Northgate negligently failed to maintain adequate lighting for safe ingress and egress into the premises in violation its duties under R.C. 5321.04(A)(3).  The trial court, however, granted summary judgment for Northgate, finding that the Landlord-Tenant Act was intended to establish duties between landlords and tenants, not their guests.  The trial court determined that because Mann was classified as a “business invitee,” Northgate only owed her a duty of ordinary care. The trial court further held that the darkness on the stairs was open and obvious, and that the duty of ordinary care is negated when the hazard posed to the invitee is open and obvious.

Ohio’s 10^th District Court of Appeals reversed the trial court. Unlike the trial court, the 10^th District determined that guests are entitled to protection under the Landlord-Tenant Act. The 10^th District further held that the Landlord’s violation of its duty to keep the common areas safe constitutes negligence per se, meaning that the open and obvious doctrine did not apply to negate the landlord’s duties.

The Ohio Supreme Court agreed to hear the case because the 10^th District’s opinion conflicted with the Ninth District’s decision in Shumaker v. Park Lane Manor of Akron, Inc. The Ohio Supreme Court issued its decision on February 12, 2014, in which it held that “a landlord owes to a tenant’s guest the same duty that the landlord owes a tenant.” Therefore, the Court found that Northgate owed a duty to Mann under R.C. 5321.04(A)(3) to keep the common areas of the premises in a safe and sanitary condition. The Court further held that a landlord’s violation of this statutory duty constitutes negligence per se and obviates the open- and- obvious- danger doctrine.

This case should serve as reminder to landlords of their duties under the Landlord-Tenant Act. Landlords who fail to comply with their statutory duties risk facing lawsuits not only from their tenants, but to guests who are properly on the premises. The Finney Law Firm has extensive experience in both residential and commercial leasing disputes. Please contact our office if you have any questions about current or prospective leasing arrangements.