Imagine you are invested in a hedge fund around the time the credit crisis was beginning to rear its head.  You get on a call with one of the hedge fund managers and are told that he is "very comfortable with exactly where we are" and "there's no basis for thinking this is one big disaster."  When asked about redemptions by other investors, the hedge fund manager reports that there were "just a 'couple of million' dollars of redemptions requested by investors in June."  In another conversation, the hedge fund manager assures you that he himself is putting more of his own money in the fund.

It turns out, however, that three days before the conference call the hedge fund manager e-mailed a colleague to say: "The entire subprime market is toast," . . . "[t]here is simply no way for us to make money — ever." He had also written that "if an internal report prepared by a colleague is 'ANYWHERE CLOSE to accurate, I think we should close the funds now.'"  Furthermore, it turns out that rather than investors asking for merely a couple of million dollars back, one investor had informed the fund that "it wished to withdraw its entire $57 million investment."  The fund manager later admits that "he pulled the couple of million dollars amount 'out of thin air.'"  Finally, the manager was taking millions of dollars of his own money out of the fund while claiming to be adding to his investment.

Now let's say that you and the rest of your fellow investors ended up losing $1.5 billion on your investment in this fund.  Were you defrauded?  Should the hedge fund manager go to jail?  Should he go to jail for 20 years?

Well, that's exactly what a jury will get to decide in the criminal trial of former Bear Stearns executives Ralph Cioffi and Matthew Tannin, which began this past Tuesday.  (The quoted language above was taken from here and here.)  Commentators are framing the case as one of spin versus fraud, but the real issue is going to be intent.  Most people would equate "spin" with immaterial puffery.  But even as far as courts and judges are willing to go to label optimistic misstatements immaterial puffery in the context of securities litigation, I think that would be a hard sell on these facts.  Rather, the difficult task for the prosecution in this case will be to prove that these statements were made with an intent to defraud as opposed to being mere responses to "panic and desperation . . . that he was simply paralyzed by circumstances spiraling out of control."  Of course, he apparently wasn't too panicked or paralyzed to pull out his own money or chat up investors.

Question: Isn’t the government protected by immunity?
Answer:  Many actions are protected by sovereign immunity (also called civil immunity), but in 1975 the Ohio Court of Claims Act was passed creating the Ohio Court of Claims.   “The Court of Claims has original jurisdiction to hear and determine all civil actions filed against the state of Ohio and its agencies.”  The Court of Claims Act created a “limited waiver” of immunity and permits certain types of law suits.  Source 

Question:  What kinds of law suits are now permitted? 
Answer: Suits against officers and employees of the state:

1. Arising from the operation of a motor vehicle
2. Actions in which the state is a plaintiff
3. Actions where the officer/employee acted with malicious purpose, in bad faith, or in wanton or reckless manner of whose conduct was manifestly outside the scope of employment. 
   Source:  here and Ohio Revised Code   9.86 Civil immunity of officers and employees; exceptions.

Question:  What are some examples of these types of claims? 
Answer:  Typical claims can involve:

●Contract disputes
●Property damages
●Personal injury
●Immunity issues of state officers and employees
●Discrimination
●Wrongful imprisonment

Question:  How does the Court of Claims work? 
Answer: The Court of Claims handles cases two ways, depending on the dollar amount of the claim.

1.  $2,500 or less – are determined administratively by the clerk pursuant to R.C. 2743.10. ("Administratively" means solely on the contents of the case file.)
2. Claims of more than $2,500 are determined by a judge.

Question:  How do you bring a case in the Court of Claims?
Answer: Below are links to helpful information:

1. Practicing in the Court of Claims- provides detailed instructions.     This link takes you to the web version of a book and there is a PDF version on the web page that allows you to download this 70 page book for FREE.
2. Special court forms for this court 
3. Rules and procedures for this court
4. Search cases and see actual complaints filed.   You can search by an individual’s name, case number, or search by the state agency, state commissions and boards.  You can find all the cases filed against various state agencie such as, the State Lottery, the Civil Rights Commission, the State Medical Board, various state universities, and even cases filed against the Office of the Governor!  After opening a case file, clicking on the PDF icons opens the documents filed in the case.

Contact Information:
website http://www.cco.state.oh.us/index.php
Phone 1-800-824-8263

Want more information? 
Ohio Revised Code sections about the Court of Claims

 Next week we will look at how victims of crime can use the Attorney General and the Court of Claims for compensation.

Sometimes when I am helping library users, they ask for a “simple” description of what happens in a trial.  Cases can get complicated very quickly and  if you are litigating your own case, you need to know what the next step is to prepare your case properly.  Today I am providing links to websites that describe the stages of a typical civil and criminal trial.  Some of the sites are from other state courts but are general enough that they still apply for Ohio.

Civil Trials

What happens in a pre-trial conference? 
What is discovery? 
What is the difference between a motion and a pleading? 

To answer these questions take a look at these sites:

Steps in a Trial, by the American Bar Association, organizes links in the same order you would come across them in a case.  Click the links to get a description of the step.  More information here.

The Anatomy of a Trial describes the process in paragraph format, but still keeps it brief.  Look here  and here .

Criminal Trials

What happens during initial appearance? 
How do you present evidence? 
What is a rebuttal?

The American Bar Association (ABA)  and Findlaw.com (site owned by Thompson Reuters)   describe the steps in a criminal case.  Also, the ABA has a Criminal Case diagram.

Audio and Video Ohio Court Case Tours

For strictly an Ohio focus, try the Ohio Case Tours on the Ohio Legal Services site.  The purpose of the Court Case Tours is “to help the residents of Ohio learn more about their local courts, these audio and video files provide a quick and simple explanation of what local courts do.” The trial steps are broken down into one minute video and audio segments starting with pre-trial proceedings through verdicts at the end of a trial.  Courts covered are civil, criminal, and various court divisions like domestic relations, probate, mayor’s court, traffic court, etc. 

Need a more detailed description of the various Ohio Courts?

The Ohio Supreme Court has a nice description here  and a chart of the judicial structure .  

What is the difference between the Federal Court System and the State Court System?

A general overview of the Federal Courts and a brief explanation of Article III courts and Article I courts can be found here.

A great side-by-side comparison chart that looks at structure, types of cases heard and how judges are selected is found here.  

Next week:

So you want to sue the government?  There’s a court for that!

What is community legal aid?

A non-profit law firm which:

• *Specializes in poverty law and is devoted to providing free, high-quality civil legal services to eligible clients.
• *Is dedicated to providing legal advice, information and representation as assistance for those seeking to achieve and maintain self-sufficiency.
• *Provides information about laws and the legal system to those who work with the poor and elderly so that they may better serve their clients.
• *Is a non-profit corporation governed by local lawyers, members of the client community and others concerned about equal access to justice.

Source:  http://www.communitylegalaid.org/services

Two things surprised me when I was pulling this information together for this post.  First, there are many programs available to Ohio citizens who cannot afford an attorney.  Second, all these services would not be possible without the attorneys and law firms generously volunteering their services and time.  The attorneys that work with the clients are chosen from lists of volunteers.  Some programs reimburse the attorney for very limited expenses, but nothing near the actual cost of litigating a case.

Most of the services listed in this post are for individuals experiencing financial difficulty and have a need for legal assistance with a civil case.  None of the programs listed here assist with criminal cases.  Make sure to read the information on the programs web pages describing the type of cases they will provide assistance with. Due to very limited resources the programs are very selective.

1.   Community Legal Aid

Free assistance is based on the individual’s financial eligibility.  Eligible clients may be represented by either a staff attorney or they may be referred to a volunteer attorney in the community. Type of cases Community Legal Aid handles includes consumer rights, family, housing, foreclosure, health education, public benefits, wills, probate and taxes.  A more detailed listing is found here.

This organization also lists many free clinics and classes conducted on topics like divorce, Akron Municipal court, or home ownership.  The classes are limited so see this page for dates and more information.   
Website: http://www.communitylegalaid.org/ 
Phone: HelpLine: 1-800-998-9454 (Monday through Friday, 9:00 a.m. to 4:00 p.m.)
Or apply for help online. 

2.  Equal Justice Foundation (EJF)

“The Equal Justice Foundation is a 501(c)(3) nonprofit organization providing legal representation to low income persons.  EJF is the only organization of its kind in Ohio specifically created to attack statewide systemic problems facing low-income persons through class-action litigation and individual civil litigation. “

EJF does not accept criminal cases or family law cases.  For more information on the types of cases they do accept go here.
Website: http://www.equaljusticefoundation.com/
Phone: 1-800-898-0545

 3.  Ohio Legal Rights Service- protection and advocacy for people with disabilities

“OLRS is the state protection and advocacy system for Ohioans with disabilities. If you think you have been abused or neglected, discriminated against, denied services or been unable to access public facilities, you should contact the OLRS.”
For information about getting help from this Ohio Government department go here.
Website: http://olrs.ohio.gov/ASP/HomePage.asp
Phone: 1-800-282-9181 or TTY: 1-800-858-3542

4.  Ohio Legal Services- providing legal assistance to low income Ohioans

The website has self-help materials online and staff will connect you to free legal services nearby.
Website: http://www.ohiolegalservices.org/
Phone: 1-866-law-ohio

5.  Pro Seniors Legal Hotline

“The Legal Hotline provides free legal information, advice, and referral for residents of Ohio age 60 and over. The Legal Hotline responds to the legal needs of callers within Ohio regardless of income or location.  Typical questions concern Medicare, Medicaid and Medicaid estate recovery, living wills, durable powers of attorney for health care, and consumer problems.”
Website: http://www.proseniors.org/legal_services.html
Phone: 1-800-488-6070

Pro Bono Programs

A pro bono service is when an attorney takes a case without compensation from the client.  Many attorneys and law firms that volunteer in the programs listed in this post are providing a pro bono service.  Here are a few such programs sponsored by the government or the courts.

6.  Ohio Attorney General Pro Bono Program (Elder Law Program) 

“The Attorney General Office’s Pro Bono program provides volunteer attorneys from within the Office to assist with preparing documents to facilitate end-of-life decisions and estate distribution for elderly Ohioans.”
Website: http://www.ag.state.oh.us/legal/probono.asp
Phone:  1-800-282-0515

7.  Ohio Attorney General Patriot Program (for military service personnel)

“Free legal assistance is available for Ohio servicemen and servicewomen being called to active duty.”
Website: http://www.ag.state.oh.us/citizen/military_veterans/ag_resources.asp  
Phone: 1-866-GI-HELPR (1-866-444-3577)

8.  Northern District of Ohio (federal court) Pro Bono Program
This is done at the discretion of the judicial officer and in only limited cases. 
Website:  Pro Bono Program  
Phone: Akron Court 330-252-6000

9.  Save the Dream – Ohio’s Foreclosure Prevention Effort

This web site is full of help for those experiencing foreclosure.  This unique multi-agency effort pulls together free help easily available for Ohioans.  Don't even think about going through a foreclosure until you have exhausted the resources at this site.  For a description of this program’s pro bono support click on Legal Assistance on the right side of the Save the Dream web page.
Website: http://www.com.ohio.gov/SavetheDream/
Phone:  Hotline 1-888-404-4674

Sources of Help outside of Summit County

Consumers’ Guide to Free Legal Help
Links provided by the American Bar Association.  The listings of resources are arranged by county.  Most of the listings point to the same resources I include in this post but it is useful if you are looking for help outside of Summit County.

To find other Ohio Legal Help, enter your county or zip code in this online directory.
Also try here .

1. My spouse and I are getting a divorce. We were told to attend the "Remember the Children Program." What is that?

2. We cannot seem to work out a mutually agreed on visitation schedule for our child. What is a typical visitation schedule the courts recommend?

3. What is the court cost in Summit County to file for an annulment? We have no children.

The answers to the above questions are all found on the Summit County Domestic Relations Court web site.  Here is yet another example of how to use a court web site to conduct legal research. If you are from a different county, here are the links to some nearby Domestic Relations Court sites:

Medina County Domestic Relations Court   

Portage County Domestic Relations Division   

Stark County Family Court  

All other county court web sites    

1. Jurisdiction of the Court – The first thing you need to find out is what types of cases are heard by the court. On the court's web site, look for information about the jurisdiction of the court or the types of cases heard by the court. The Summit County Domestic Relations Court has a link in the left menu to the Court's Jurisdiction.

We see that the Court handles divorce, dissolution and annulment.  Court control continues until the children born to the parties reach the age of 18.  The Domestic Relations Court shares jurisdiction with other courts on matters of domestic violence.  For a more detailed explanation go here.  

2. Rules of Court – Court rules govern court procedures. Local rules deal with specifics of the local court such as fees, time requirements, filing procedures, and the format of documents filed with the court. The Domestic Relations Court web site links to their Local Rules on the main page. Please plan on reading relevant parts of the Local Rules of Court if you are dealing with an issue in the Domestic Relations Courts. Court forms mentioned in the rules are found on the court's web site.

In addition to the local rules of court, there are state court rules that also apply.  The Domestic Relations Court Rules state that all pleadings, motions and filings shall comply with the Ohio Rules of Civil Procedure.  Other Ohio Rules of Court may apply so consult your attorney to be sure.   Here is Ohio Rules of Court web page with links to all the state court rules, including the Rules of Civil Procedure. 

3. Court Forms -The Court has a very large selection of forms in PDF format. Many of the forms can be filled out online and then printed for filing with the court. There are forms for dissolution, visitation, civil protection order, restraining order, motions, notices and affidavits for this court. The forms need to be properly filed with the court and cannot be submitted over the web. Make sure to read all instructions provided with the forms. Some of the procedures are very complex and require the assistance of an attorney. Check here for the filing fees associated with these forms The forms page includes brochures and other informative instructions. For instance, there is a standard visitation schedule for parents who cannot agree on a visitation schedule on their own. There is also Child Support Enforcement Agency Forms under a separate link on the Court's home page.

4. Case and records search – If you are following a case already in Court, then you will want to search the online case index by clicking Summit County Clerk of Courts -Domestic Case Docket Access . At the Clerk of Courts web page, click the Records Search button in the upper right corner, and then click the Domestic link.

Other useful information on the web site you should look at:

Need more information about domestic relations issues?

Ask me a question

If you ever wondered where to find legal information on the web, post your question below.  I cannot answer legal questions, especially if the question contains facts about a personal situation.  I can direct you to sources of legal information on the web, particularly primary legal materials such as laws, legislation, court material and agency regulations.  So ask away!

I use delicious  (the social bookmarking site) to collect and save all links listed in my Akron Law Café postings.  The bookmark list works best if sorted alphabetically by title.

     Get ready for new methods of computing time periods in federal court litigation.  On March 26, 2009, the U.S. Supreme Court  approved proposed amendments to the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure that will change many time periods set out in these rules and will also change the methods of computing time under these rules.  The rules will take effect on December 1, 2009, absent congressional action to reject, modify, or defer the amendments.   

     The Federal Rules' comprehensive time-computation project was undertaken in response to frequent complaints regarding the time and anxiety and the risk of error inherent in current time computation methods.  Billed as "minor" changes, most proposed rules will further the following principles (1) a "days are days" approach to counting time periods, which will eliminate the current method of omitting intermediate holidays and weekends when the time period is short; (2) a lengthening of shorter time periods to compensate for the new "days are days" approach; and (3) a preference for providing time periods that are less than 30 days in multiples of 7 so that deadlines will less frequently fall on weekends.

     In other time-computation changes, the proposed amendments to the civil rules will clarify how to count forward when a time period is measured after an event and a deadline falls on a weekend or holiday (e.g., 14 days after receipt of a motion); how to count backward when a time period is measured before an event and the deadline falls on a weekend or holiday (e.g., at least 21 days before a scheduling conference is to be held); and how to compute hourly time periods.  The proposed civil rules will also create filing deadlines for electronic filings:  Generally, unless a statute or rule provides otherwise, the last day of a time period for an electronic filing will end at midnight in the court's time zone.  Explanations of the new rules and the proposed language can be found here.

    Additionally, Congress passed H.R. 1626, which amends 28 statutory deadlines to conform with the proposed time-computation amendments to various Federal Rules,  and President Obama signed H.R. 1626 on May 7, 2009.  The statutory changes, like the proposed amendments to the Federal Appellate, Bankruptcy, Civil, and Criminal Procedural Rules, have an effective date of December 1, 2009.  The Act and the amended statutes can be viewed here. 

     At first glance, these rules appear to be no more than mere counting changes.  But take a closer look.  Each set of amended rules — appellate procedure, bankruptcy procedure, civil procedure, and criminal procedure — include rules of more substance.

     In addition to the relatively "minor" time-computation changes, for example, some of the proposed new Federal Rules would have greater impact as follows:

• Proposed Fed. R. Civ. P. 62.1 and Fed. R. App. P. 12.1 – Proposed Civil Rule 62.1 would provide a consistent procedure for obtaining an "indicative ruling" from a district court judge when a case is on appeal.  When a case is appealed from a district court, the district court loses jurisdiction to consider issues involving the case, but a practice has arisen in most circuits that permits district courts to make an "indicative ruling," i.e., to indicate the ruling it would make if it retained jurisdiction.  Proposed Civil Rule 62.1 will provide a uniform procedure for the federal courts that will permit the district court to defer ruling, deny the motion, or indicate either that the motion raises a substantial issue or that it would be inclined to grant the motion if the case were remanded.  Requests for indicative rulings are typically prompted by Rule 60(b) motions for relief from order or judgment that are filed after an appeal has been granted.  Proposed Fed. R. App. P. 12.1 is consistent with Civil Rule 62.1 and facilitates remand to the district court when the district court indicates that it would grant the motion if the appellate court remands for that purpose or indicates that the motion raises a substantial issue.
• Proposed Amendment to Fed. R. Civ. P. 15(a) — Changes the time period for amending, as of course, a pleading to which a responsive pleading is required.
• Proposed Amendment to Fed. R. Civ. P. 48 — Permits a court to poll the jury individually and requires the court to do so on request of a party.
• Proposed Amendment to Fed. R. Civ. P. 50, 52, 59(b), (d), (e) – Changes current 10-day time periods to 28-day time periods for the following:
  • motions for judgment notwithstanding the verdict (renewed motion for judgment as a matter of law) under Rule 50(b),
  • motions to amend a judge's findings of fact following the entry of judgment in a bench trial under Rule 52;
  • motions for a new trial or to amend or alter a judgment in a jury trial, under Rule 59.
• Proposed Amendment to Fed. R. Crim. P. 41 — Proposed Criminal Rule 41 is amended to provide clarification on how warrant procedures apply to seizure of electronically stored information (ESI).  Rule 41 adopts a "two-stage" procedure.  It authorizes (1) a first-stage seizure of the electronic storage media or seizure and copying of ESI; and (2) a second-stage review of the medium or ESI for information consistent with the scope of the warrant, at an offsite location.  

Are you thinking about filing a case in small claims court?

The purpose of small claims court is to handle simple cases quickly and inexpensively.  The rules are simpler and court hearings are informal.  You can bring the case yourself or you can use an attorney if you wish.   In this post I link you to several local small claims court web sites and to 2 useful brochures on how to bring a case in small claims court. 

Before heading off to you local court house, take some time to read two very useful brochures and a section in the Ohio Revised Code about Ohio Small Claims Court in Ohio. 

1. Ohio Small Claims Court, by the Consumer Protection Section of the Ohio Attorney General. This pamphlet is about six pages long with brief descriptions on what types of disputes can be resolved in small claims court and how much money damages you can claim.

2. Small Claims Court: A Citizens Guide, by the Ohio Judicial Conference in cooperation with the Ohio State Bar Foundation. This 25 page booklet is more in depth and presents an overview of the rules and procedures for small claims court. Pay particular attention to the type of claims that can be brought in small claims court and there is even a section explaining what to do if you are being sued by someone else in small claims court.

3.  Representing Yourself in Court: Small Claims, by Ohio Legal Serives.   A 3 page web page in a question and answer format.

4. The Ohio Revised Code has an entire section on small claims court that you should also review, 19 R.C. §1925. This section of the R.C. is about 7 pages long.

Where is your Small Claims Court?

In Summit County there are three small claims courts.  You must file in the correct court so pay attention to the court's jurisdiction description below.

If you are considering bringing a case in small claims court, be prepared to read the entire local rules of court for your local court. There is usually a link to these rules on the court's main web page.  The court rules I listed below, deal specifically with the small claims court division, but sometimes the small claims court is mentioned elsewhere in the court rules.

After reading the material on the court's web site, make sure to call the court for more information on how to proceed.

1. Akron Small Claims Court

Jurisdiction: The Akron Municipal Court serves Akron, Richfield, Bath, Fairlawn, Mogadore, Lakemore, Springfield.    

Court Forms: The site has one small claims court form.    

Court Rules: Claims filed in the Small Claims Division are scheduled for a mandatory mediation hearing.  Make sure to read rules 34 through 37 in the local rules of court for more information. 

Phone: 330-375-2285

_____________________________

2. Barberton Small Claims Court instructions

Jurisdiction: The jurisdiction of the Barberton Municipal Court includes Barberton, Green, Norton, New Franklin, Clinton, Coventry Twp, and Copley twp.     

Court Forms: Barberton has an excellent small claims court web site with detailed instructions and links to forms embedded in the web page.  The site includes hints on how to present your best case in small claims court and how to go about collecting your judgment if you win. 
 
Court Rules:   General rules and informative introduction here.

Phone: 330-861-7192

_____________________________

3. Stow Municipal Court District

Jurisdiction: Includes these communities: Boston Heights, Boston Twp., Cuyahoga Falls, Hudson, Macedonia, Munroe Falls, Northfield, Peninsula, Reminderville, Sagamore Hills, Silver Lake, Stow, Tallmadge, Twinsburg.  

Court Forms: This site has two forms to use in small claims court (a praecipe and a complaint form). 

Court Rules:  Make sure to read Rules 35-36 of the Stow Municipal Court Rules.

Phone: 330-564-4200

_____________________________

 For questions and assistance, please call the phone numbers listed above.  Be kind to the courthouse staff!  Remember, only licensed attorneys can give you legal advice based on the facts of your case.  Court personnel can only answer general questions.  Anything beyond that will get them in trouble with the "unauthorized practice of law" rules.

Links to other court web sites in Ohio are here.   

I use delicious  (the social bookmarking site) to collect and save all links listed in my Akron Law Café postings.  To date there are 99 links collected since my first postings in February.  The bookmark list works best if sorted alphabetically by title.

Help! How can I find an attorney fast?

Well, it is time. I need to draw up a will. How can I find an attorney to help me?

I've been "served" by my nasty neighbor! What should I do?

Today we will look at using online directories to find an attorney.  You may want to live your entire life without needing an attorney and I wish you luck if that is the case.  The average person, however, needs a lawyer from time-to-time and searching for one in a hurry can create stress.  You want to pick someone you feel comfortable with and you want the best attorney for you and your family.

Sometimes you need an attorney to look over a real estate transaction, to write your will or to help an immediate family member who needs an attorney.  A sudden car accident with injuries is never a planned event and can happen at any time.  For this, you need an attorney quickly and one you can trust.  Having an attorney that you have worked with over time is similar to having a good family doctor.  You call, make the appointment, and explain what you need done.  The attorney knows your legal history and your preferences and can advise you on what is best for you.

How to find lawyers

1. Akron Bar Association Online Directory – If you are looking for a lawyer from Akron, the Akron Bar Association has an online directory to attorneys. You can search by the attorney's name or you can search by practice area. If you need help with writing a will, select "Wills, Trusts & Estate Planning." The resulting list of names links to contact information. Medina and Portage Bar Associations do not have a similar online directory.

2. Bar Lawyer Referral Services. Many bar associations provide a referral service to connect people with lawyers. This is provided by the bar as a non-profit public service.

Akron Bar Association (Summit County) – Referral Service

Medina County Bar Association - Referral Service

3. Ohio Supreme Court Attorney Directory - This is a directory of all the registered attorneys in Ohio. Search by the attorney's name or by geographic location. You can search by zip code, county, city, township or village and retrieve a list of nearby attorneys. The attorney's listing includes contact information, when the lawyer was admitted to the practice of law in Ohio, where they went to law school and if there has been any discipline action in their past. It does not list their practice area. The directory search works best with Internet Explorer. I got strange results using FireFox and Chrome.

4. Ohio State Bar Association- has a short article with links and provides a Find a Lawyer database.

5. Martindale-Hubbell Legal Directory - This is a national directory of lawyers. It is a reputable source and has an attorney rating system. You can search by the attorney's name, a law firm, by location or practice area. The online directory has over 1 million lawyer profiles but it does not have every attorney listed so do not be surprised if an attorney you are checking is not listed. For the attorneys listed, the directory provides contact information, their practice area, when they were admitted to the Bar and where they went to law school. Lawyers are peer reviewed using letter grades for the lawyer's legal ability (A,B,C) and professional ethics (V=very high). Not all lawyers have a rating and "the absence of a rating should not be construed as unfavorable." Law firms are client reviewed.

Source: This explains the rating system.

For a list of questions to ask the attorney when you meet with him/her for the first time, see:

• The Akron Bar Association publication - Questions to consider when hiring a lawyer.
• The American Bar Association – When you need a lawyer.

I use delicious (the social bookmarking site) to collect and save all links listed in my Akron Law Café postings.  To date there are 82 links collected since my first postings in February.  The bookmark list works best if sorted alphabetically by title.

Is a stay the same as an injunction?  Do we really care?  The U.S. Supreme Court answered these burning questions Wednesday when it decided Nken v. Holder and poetically explained:  “The sun may be a star, but ‘starry sky’ does not refer to a bright summer day.”

The Court was trying to explain how a stay walks like a duck, talks like duck, but is not a duck — or in this case, not an injunction.  An injunction directs the conduct of the defendant, prohibiting or commanding action.  A stay temporarily halts a judicial proceeding.  As the Court admitted, a stay looks curiously like a preliminary injunction.  These two common (yet allegedly “extraordinary”) remedies share a functional overlap.  Both preserve the status quo, temporarily halt action, and use the same four-part test for qualification.  As Justice Kennedy noted in his concurrence, in most cases, the difference between the two will have “little practical effect.”

Not so in the case of Jean Marc Nken.  In Nken, the technical definitions mattered to interpret an act of Congress, the 1996 immigration reform act, that limited injunctive relief.  The plaintiff, Nken, a native of Cameroon sought asylum in the U.S. claiming that his participation in student protests in the 1990s subjected him to persecution in his home country, demonstrated by his 30-day imprisonment in 2000.  The immigration courts denied his claim and ordered his removal from the U.S.  Nken then sought a stay of the removal order while he appealed.  The lower court of appeals applied the immigration statute’s standard which said that no court can enjoin the removal of an alien unless clear and convincing evidence show that the removal is prohibited by law. 

A solid majority of the Supreme Court led by Chief Justice Roberts rejected this application of the immigration statute.  Instead, they held that a stay is different from an injunction because the stay acts upon the proceeding, while the injunction acts upon the conduct of the defendant or government.  A stay is procedural.  An injunction is substantive.  Thus, the limitations on injunctive relief contained in the immigration statute did not apply to Nken’s request for a stay.  Instead, the traditional test allowing the equities of the circumstances to be factored in would apply. 

The sticking point was the Court was unable to explain what Congress might have meant by its limitation provision if not applied to stays.  That didn’t bother the Court too much, though the dissent by Justices Alito and Thomas were concerned about this dissing of congressional intent. 

In a divided 5-3 decision, a conservative majority of the Supreme Court in an opinion by Justice Souter found the $2.5 billion in punitive damages awarded against Exxon for the worst oil spill in history to be excessive and reduced the award to $500 million, an amount worth about four days of Exxon’s profits.         

The U.S. Supreme Court in Exxon Corporation v. Baker dealt with the ramifications of the oil spill disaster in Alaska over 20 years ago.  The Exxon Valdez ran aground a reef when the alcoholic captain Exxon had put behind the wheel abandoned the deck and the steering of the ship.  The oil spill destroyed the Alaska coastline, wiped out species of birds and marine life, and destroyed the livelihoods of fishermen, cannery workers, and Native Americans.  The Court’s ruling gives $30,000 to each of the 32,000 plaintiffs, $15,000 for their economic and emotional losses, and $15,000 in punitive damages to punish Exxon for its conduct. 

Exxon had tried to avoid any responsibility for punitive damages under a 200-year-old case in which a ship owner was exempted from liability for pirate attacks.  The Supreme Court tied 4 to 4 on that question.  However, it is likely that Justice Alito, who did not hear the case because of his Exxon stock ownership, would have made 5 justices in favor of corporate exemption.

Instead, the Court agreed to limit the amount of Exxon’s punitive damages.  Justice Souter, who has joined the majority in all of the recent cases limiting punitive damages, said that the problem with these damages is their “stark unpredictability” and their “inconsistency.”  The Court found that a “quantitative remedy” was required and adopted a rule that punitive damages should be measured by a 1:1 ratio with compensatory damages (money for the plaintiffs’ proven economic and intangible losses). This 1:1 standard, the Court said, was the common measure seen in similar maritime cases of recklessness where there was no intent to harm or deliberate action for financial gain. 

The Court’s 1:1 standard, while technically limited to cases involved the sea, creates a precedent for other federal and state cases suggesting that punitive damages should not exceed compensatory damages.  This is a significant departure from the Court’s prior decisions.  In a 2003 decision, State Farm v. Campbell, the Court upheld a “single-digit” ratio of somewhere between 3 and 9 to 1 as a measure of constitutionally valid punitive damages.  Justice Souter suggested in a footnote in Exxon that the decision emphasizes a point made in State Farm that the one-to-one ratio is appropriate when compensatory damages are extremely large.  Yet, it is questionable whether compensatory damages of only $15,000 per plaintiff are a large amount for someone who has lost a year of more of his or her economic livelihood.

The Court’s apparent objective standard of reasonableness masks the underlying judicial activism of the Court.  As I have written about before, activism by the conservative justices is prevalent in the Court’s cases of remedies, including punitive damages, injunctions, and civil rights remedies.  A close look at these cases shows a Court that is biased against what it sees as greedy plaintiffs overreaching the intentions of the law.  Instead, the Court is overly concerned about fairness and protection of corporate defendants.   Thus, the U.S. Chamber of Commerce is right to hail this decision as “good news” for companies.  In past punitive damages cases, the Court has been concerned with so-called “runaway juries” who were allegedly awarding outrageous amounts of punitive damages in lots of cases.  Justice Souter admitted in the Exxon case that scientific studies have subsequently proven this concern wrong, as punitive damages are neither increasing in size nor frequency. 

What the Court’s ruling means in Ohio is that those injured from environmental harms or shipping accidents on Lake Erie will have limited ability to punish intentional or reckless conduct with punitive damages.  For most other common tort injuries in Ohio, a different law applies and caps punitive damages at two times compensatory damages.  This double-damages rule came out of the recent tort reform efforts by the Ohio legislature that were upheld as constitutional by the Ohio Supreme Court in December 2007.  Several previous attempts at similar efforts at tort reform in Ohio to limit punitive damages had been declared unconstitutional by the highest court in the state.