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Ohio Commercial Litigation: Game still (mostly) “on” with respect to litigation

Author By Christopher P. FinneyPosted on

Most Courts have taken a hiatus for an unknown period of time in response to the COVID-19 crisis for most (but not all) trials and live hearings, but nonetheless, litigation work with the team at Finney Law Firm still marches on. (For example, emergency Probate guardianship hearings still are proceeding and criminal proceedings cannot be stayed indefinitely due to Constitutional speedy trial requirements).

Components of litigation

Litigation at the trial level typically consists of four components, (a) the initial pleadings (Complaints, and Motions to Dismiss or an Answer), (b) discovery (consisting of document production, written interrogatories and requests for admission), (c) motion work and then (d) pre-trial and trial work.

Certainly the initial pleading stage and the discovery can be completed without any person-to-person interaction.

Initial pleadings

For the initial pleading stage, we can exchange documents and emails and interview the client over the phone or on a web chat.  We then prepare the pleading and can, in most jurisdictions, file it electronically or via fax. If not, it can be mailed in.

Discovery

Typically, the first phase of discovery is written discovery, wherein each side asks the other for relevant documents, paper and electronic, and certain questions in the form of interrogatories and “requests for admissions.”  This can all, of course, occur, without any personal meetings. Again, we can gather documents from the client electronically and can interact over the telephone or computer.

Depositions are somewhat trickier, but we have consulted with our Court Reporter, and they assure us that both in-state and out-of-state depositions can be conducted using Skype, Teams or Zoom.Com without any two people being in the same room.

Thus, each component of discovery can be “socially distant” and not endanger any of the litigants, their counsel or the Court reporter.

Motion work

Again, motion work is mostly in writing. In federal Courts, evidence at the motion stage is admitted via a Declaration that does not need to be sworn before a notary public. The attorney does need to maintain an original signature of the Declarant in his files, but that can be mailed between the client and counsel.  Audio-visual materials may need to be physically filed with the Court, but again that can be addressed through the mails. State Court evidence is admitted via Affidavit, which means it does need to have a notary public personally witness the signature, but there are notaries still working throughout the COVID-19 crisis.

Certain motions by statute or by Court Rule require evidentiary hearings or in-person argument (Restraining Orders, Rule 11 Motions, and hearings on Motions to Set Aside Settlement).  However, other than limited statutory exceptions, litigants do not have a right to have an in-person appearance before a Judge on motions.  As a result, the trial Courts could proceed with their work by either eliminating hearings on motions entirely or calling for motion hearings to be held via web or telephone.

Many cases are resolved on motion work, including Default Motions, Motions to Dismiss and Motions for Summary Judgment. If so, the case is “over” or on to the Court of Appeals (see below) without any person-to-person contact.

Thus, all motion work could easily be handled without person-to-person contact or even live court appearances.

Pretrial and trial 

Herein lies the rub. Ohio law and the US and Ohio Constitution require that all trials — civil and criminal — be conducted in public and that means in-person attendance. If this crisis progresses, we suspect that our government officials may feel compelled to allow both litigants and observers to appear via web cam.  (Surprisingly, that change was just recently more or less unilaterally-declared by the Ohio Attorney General for meetings of public bodies in Ohio.)

But until that change occurs, litigation could well be jammed-up indefinitely at the trial stage. And because it will require Constitutional action, that could take some time and procedural maneuvering as well.

 Appellate work

Appeals work at the Ohio and federal Courts of Appeals and Supreme Courts historically is mostly done via paper filings, appellate briefs and occasionally motion work. But by tradition, not by any constitutional or statutory requirement, Appellate Courts have held oral arguments on the merits of an appeal. This is not a right of litigants and therefore the tradition of oral arguments can be waived or modified (such a conference calls or web cams) by the Courts, and if this crisis is protracted, we expect them to do so.

Conclusion

First, most litigation work that does not require the Judge’s involvement (hearings on motions and trials) can proceed in typical fashion with attorneys working from their home or office.  We expect that if this crisis extends into summer, the Courts will free up the logjam by modifying rules to allow at least motion hearings via conference call or web-conferencing. If the crisis extends into the fall, the courts may need to consider evidentiary matters coming into the record in ways other than in-person testimony, including Affidavits, video depositions and Skype, Teams or Zoom video conferencing.

For more information on moving forward with your commercial litigation project, please fell free to contact Brad Gibson (513.943-6661), Casey Taylor (513.943.5673), or Christopher P. Finney (513.943.6655.

Remote Online Notarization is (almost) here

Author By Christopher P. FinneyPosted on

Ivy Pointe Title is actively pursuing Remote Online Notarization (“RON”) in order to effectively and conveniently conduct closings during the COVID-19 crisis.

What is a Remote Online Notary (RON}?

First, understand what this revolutionary technology means: With e-signature and e-notary, original inked documents will no longer be required; everything can be signed through on-line execution.  A buyer on his computer in one place can sign all of his closing documents, including the mortgage and other documents that need to be acknowledged (notarized) in his living room or home office, with a remote notary public sitting at a desk in another location. Similarly, a seller sitting in his kitchen at home can sign the deed and have it acknowledged (notarized) by an on-line notary sitting at his desk in another location. The Seller can likewise sign all of his other closing documents from his living room.  Disbursements can be via wire transfer, mailed or hand-delivered checks. In other words, every single document (including the deed and mortgage) can be signed by a party without leaving his home, and without a notary public physically (but rather virtually) present.

Where are we today?

We are in discussions with our underwriters, lenders and Realtors to comply with all RON laws, mandates and edicts.  Rather than being “first” to the table with this ground-breaking technology, we want to make 100% sure we can do this correctly when we do launch.

We will keep you informed of each step as we navigate these new uncharted waters.  In the meantime, check out this new American Land Title Association (“ALTA”) bulletin:  https://www.alta.org/news/news.cfm?20200317-ALTA-Industry-Partners-Develop-Draft-Bill-to-Permit-RON-Nationwide

Expect more updates from us shortly.

To valued clients, vendors and friends:

Author By Christopher P. FinneyPosted on
Christopher  Finney

 

 

 

 

 

 

 

 

 

We wanted you to know that Finney Law Firm remains open for business and continues daily to fully serve our clients.  However, the COVID-19 crisis is deadly serious, and without everyone’s cooperation, has the potential to endanger the lives of thousands of those we serve in Ohio and Kentucky and those we love.  Thus, we are taking aggressive and careful steps to protect you and our team in interactions with our office:

  • We have expanded our use of teleconferencing, e-signature, and other electronic communications to avoid person-to-person contact where it is not necessary.
  • Many of our attorneys and staff are now working from home where possible to limit person-to-person interactions. We have equipped our Team with laptops and other technology to assure the volume and quality of work remains the same.
  • We are carefully sanitizing each office daily, and conference rooms before and after each and every use.
  • We are asking clients not to bring children and any “extra” parties to the office.  Bring yourselves only.
  • If it is necessary to sign documents, we can come to your house or place of business to limit the number of persons with whom you are interacting. Let us know if you prefer this option.

Finney Law Firm wants to “Make a Difference” in your personal life and business for many years to come. In order to do that, we need to protect your health and that of our team.

Thank you for the trust you have placed in us for these many years.

Sincerely,

Christopher P.  Finney

 

Ohio Employment Law: Employers face unique employment law challenges from Coronavirus pandemic

Author By Stephen E. ImmPosted on

 

 

 

 

 

Attorney Stephen E. Imm

 

The COVID-19 pandemic has dramatically affected every aspect of the Nation’s political, social, and economic life. It should not be surprising, then, that it has implications for employers in terms of their legal obligations to their employees.

Americans with Disabilities Act (“ADA”)

One major consideration is the obligations employers have to their employees under the Americans with Disabilities Act (“ADA”). The ADA limits the inquiries an employer can normally make about an employee’s medical status. So employers must be careful about asking any questions of employees related to the virus. Ordinarily, questions about medical conditions are permitted only when they are job-related, or when the employer has a reasonable belief that the employee poses a direct threat to the health and safety of themselves or others.

In practical terms, this means that you can require your employees to stay home when they are sick, and not to return until they have been symptom-free for a period of time. You may also be permitted to require proof that an employee does not have a fever. Broad, unrestricted questionnaires about medical history or status, however, can violate the ADA.

Employers can require that employees work from home during the pandemic. Note, however, that if an employee has an accommodation at the employer’s facility as a result of a disability, the same accommodation may be required for the employee to work from home.

Layoffs and reduced schedules

Additionally, many employers are being forced to consider layoffs or reduced schedules during this time, due to decreased economic activity. This raises wage and hour issues. In particular, questions arise as to whether certain employees may have to be paid their full rate of pay during periods of reduced activity.

The answers to these types of questions often depend on whether or not an employee is “exempt” or “non-exempt” under the Fair Labor Standards Act, which governs minimum wage and overtime issues. Generally, an exempt employee has to be paid his or her full salary for any week in which he or she performs any work for an employer. By contrast, non-exempt employees only have to be paid when they actually work.

Also, employers are required to keep track of the hours worked by non-exempt employees. If such employees are working from home, however, the normal ways of keeping track of those hours may not work, and alternatives may have to be considered and implemented.

Conclusion

These are very challenging times for everyone, employers included. Companies should reach out to qualified employment law counsel to make sure that they are not inadvertently running afoul of any of the Nation’s employment laws during this most difficult time.

Whether as an employee or an employer, for assistance with your employment law issues, please contact Stephen E. Imm at 513.943.5678.

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