Personal Injury Practice Note: What Is The Collateral Source Rule?

Representing the injured party in a personal injury claim is a difficult juggling act for the practitioner.  The experienced litigator is well aware of the traps involved in even the simplest personal injury case, including issues like subrogation, medical liens and tort reform.  The practice is fraught with land mines.

It just got a lot tougher.  On December 20, 2006, the Ohio Supreme Court rendered a decision dealing with the collateral source rule.  Robinson v. Bates (2006), 112 Ohio St. 3d 17.  This decision is being used by insurance companies to try to decrease jury awards and settlements.

Pryor v. Webber (1970), 23 Ohio State 2d 104 was the leading case invoking the collateral source rule.  The rule provides, basically, that evidence of a plaintiff’s receipt of benefits from a source other than the wrongdoer cannot be presented to a jury.  Thus, if the plaintiff had his medical bills paid by health insurance, or med pay, or even by his kind uncle, the fact that those payments occurred could not be presented to a jury.

Robinson v. Bates affects the collateral source rule.  In Robinson, one of Plaintiff’s medical bills was paid in part by Plaintiff’s health insurance and the balance was “written off” by the provider, leaving the balance as fully paid.  The Plaintiff tried to introduce the full bill.  The Defendant argued that only the “paid amount” should be presented to the jury.  The Ohio Supreme Court, breaking with years of contra authority, declared that the original bill and the evidence of the write off could be presented to the jury.  Expect insurance companies to seize upon this decision to try to further whittle settlements and jury awards.

​But all is not lost.  The practitioner is not without options and argument to counterattack Robinson.  We intend to raise several arguments and use different tactics in these cases, including:

1. Making the defense prove the existence of the write off.  This will be more difficult for the defense than might be expected as it will require testimony from the medical practitioners and, potentially, the health insurance carriers.

2.  Reminding the trial court via Motions in Limine that the write off amount does not represent full payments as many health insurance plans utilize “hold backs” and “bonus payments.”

3.  Reminding the Court that Robinson does not modify the collateral source rule.  It merely changes what is and is not a collateral source.

Personal Injury Practice Note: Is It Safe To Amend The Complaint?

Recent pronouncements from Ohio courts pertaining to Ohio Civil Rule 15(C) should make it clear to the plaintiff’s injury practitioner that amending a complaint after the statute of limitations has expired can be fraught with pitfalls. 

Generally speaking, a claim for bodily injuries from an automobile accident must be filed within two years from the date of the accident.  However, if there is any question as to the identity of the responsible defendant, it is not advisable to wait the full two years before filing.  Recent court pronouncements on “relation back” make it clear that the plaintiff’s injury practitioner may not be able to successfully amend a complaint after the two year deadline has expired.

Ohio Civil Rule 15(C) provides that if plaintiff files an amended complaint, the amendment “relates back” to the date of the original pleading, if the amendment contains a claim or defense asserted in the original pleading and arose out of the conduct, transaction or occurrence set forth in the original pleading.  Thus, in certain circumstances, plaintiff’s counsel can file an amended complaint after the two-year statute of limitation has expired, and successfully argue that under Civil Rule 15(C), the date of the filing of the amended complaint “relates back” to the date the original complaint was filed.  But, there is a distinct danger in this approach.  If discovery reveals that the wrong defendant was named in the original complaint or an additional defendant needs to be added, the filing of amended complaint to correct this oversight will, most likely, not “relate back” under Civil Rule 15(C) and, therefore, the amended claim will be barred by the statute of limitations. 

​In Kooyman v. Staffco Construction, Inc. (2010), 189 Ohio App. 3d 48, the plaintiff was killed when operating a motorcycle in a public park.  Plaintiff filed suit against the Metropolitan Park District within the filing deadline for instituting an action.  The discovery process revealed that the proper defendant should be a municipality.  The plaintiff filed an amended complaint, naming the municipality as a defendant.  The amended complaint was filed after the statute of limitations had expired, but plaintiff argued that the case should not be dismissed under a statute of limitations defense, because the amended complaint should relate back under Civil Rule 15(C).  The Kooyman court found this argument to be unpersuasive, and held that 15(C) would not salvage the claim for two reasons.  First, the court noted that the Relation Back Doctrine under Rule 15(C) only applies to fixing clerical mistakes such as the misspelling of a defendant’s name.    Secondly, Rule 15(C) does not allow a plaintiff to add an additional party.  It merely allows the plaintiff to substitute a party. 

​The lesson?. . . file suit well before the two year deadline to allow sufficient time to conduct discovery and, if necessary, add defendants or change defendants before the statute of limitations runs.

What Makes a Good Attorney?

A good lawyer is empathetic, attentive, and responsive.  He or she has developed a reputation for solving difficult problems and offering practical legal solutions.  From negotiating a fair settlement to litigating a high stakes trial, he will work hard to achieve your unique legal goals.

His or her clients include doctors, lawyers, teachers, entrepreneurs, athletes, and many other professionals.  Many of the individuals who seek his counsel are in fear of losing everything; Including their jobs, families, and money.  With that in mind, this attorney does not take his role lightly – recognizing that his clients place a significant amount of trust in him.

​Whether you are a mother, father, grandparent, or other family member, if it matters to you, it matters to a good attorney. 

13 Reasons To Walk Out The Door At An Initial Consultation

How do you know when to walk out the door?  Sometimes, after researching an attorney online and reading their reviews, you get a good feeling about the person or firm and want to meet with them in person.  In fact, meeting with the lawyer in person is the best way to figure out if they are a good fit to represent you and take control of your case.

This is crucial because you should see where they work, how they interact with you and their staff, how they talk about cases and your case, and how comfortable you feel with their approach, system, and personality.

As someone who has worked at multiple firms for over a decade, I can think of a number of indications or scenarios that should automatically raise red flags in your mind.  If you witness any of the following things at the initial consult at an attorney’s office, whether free or not, do yourself a favor and get up from your seat, thank the attorney for his or her time, turn around and walk out the door.

The thirteen reasons to take a hike, in no particular order, are:

1. The attorney is late to your appointment:

Not necessarily if they have an appointment before yours and let it run over.  However, if you see them walk in to the firm for the first time, as long as they aren’t returning from court or other practice meeting or legal proceeding.  If they walk in late from lunch or in the morning, this is a bad sign.  It means they do not value your time and most likely, will not value your case.

2. The attorney is not dressed professionally:

Preferably, they should be wearing a suit when they greet you.  However, if it is a Friday or customary to the jurisdiction in which they practice to go sans tie (like very warm climates, I’m thinking Hawaii, etc.) you can disregard this one.  Again, the lack of professional appearance indicates what is more than likely a nonchalant attitude toward their image and career in general, and is a problem for you, the prospective client.

3. The office is dirty or unkempt:

Enough said.

4. There are files on the ground:

While this may seem like a small deal, I assure you; it is not.

5. They bad mouth other lawyers.

6. They can’t simplify your complex issues in layman’s terms.

7. They can’t articulate how they will help you specifically.  And, or; they can’t tell you about someone in a substantially similar situation to you that they have successfully helped accomplish their legal or practical goals.

8. They do not shut the door behind you when you are speaking about the case.

9. They do not do a “conflict check” on you and your case:

The attorney should find out before hearing to many details about your case if they currently have or have ever had a client or case that conflicts, ethically, or practically, with you or your interests.  Not performing such a check sheds light on the attorney’s lack of concern for ethics and protecting your interests.

10. They don’t clearly explain the attorney-client privilege and that everything you share with them (with a few caveats) will be kept confidential and not shared with anyone without your permission.

11. They don’t explain how you will be charged/they don’t have a written fee agreement.

12. If you would be the Plaintiff in an injury or civil litigation case where you have been wronged and they want to charge you hourly, as opposed to on a contingency basis:

They don’t believe in your case and just want to bill you for their time.  If they believed in the merit of your case or thought it was worth it for you to pursue, they would personally invest in the outcome and agree to take a percentage (usually 33-40% of the award or settlement).

13. You get a gut feeling that they don’t care about you or aren’t interested in their case.

When Can I Modify Spousal Support After Divorce?

Spousal support can only be modified if the original decree of divorce authorizes the court to do so.  If the decree gives this authority, then a “change of circumstances” for either party can lead to spousal support modification.  A change of circumstances includes any increase or decrease in a party’s wages, salary, bonuses, living expenses or medical expenses. (source:  Ohio Domestic Relations Practice Manual).

Language allowing modification of spousal support should explicitly state whether retirement can be considered as a factor.  Just as it is when first establishing spousal support, there is no actual formula to modify support (its length or amount).  However, the predicted length of the paying spouse’s working career is always important.

If an injury or other unpredictable condition occurs, changing the paying spouse’s income – than it is often the case that spousal support be reduced on a pro rata basis.  For example, if the paying husband is injured and receives disability payments equal to 70 percent of his past income, then the spousal support could be appropriately changed to 70 percent of the current order.

When determining spousal support modification, the court should look at the overall financial needs of both parties.  In a post-decree situation, either party may seek attorney fees and court costs from the other party.  The court will base such an award on what is “equitable.”

In asking the court to modify an existing court order for spousal support, it is crucial to have the guidance of an experienced family law attorney in your area.

Digital Marketing For Attorneys: “Kind of a Big Deal”

Most attorneys are, at the least, beginning to understand the importance of legal marketing.  Most attorneys would agree that an online presence is crucial in developing name recognition and bringing in new clients for their firm.  Law firm websites, Facebook groups, Twitter accounts, LinkedIn groups, and legal blogs are a great way to reach the public.

The use of social media for law firm advertising has increased substantially over the last year or two. And, rightly so, as the use of social media by prospective clients has skyrocketed.  Almost supplanting the formerly ubiquitous decision of opening up the phone book, clients in need of legal assistance are now logging in to search engines such as Google, Yahoo, or Bing.  They are also likely to see the ads on Facebook and the up-to-date thoughts on Twitter and legal blogs.   This provides lawyers with an opportunity to reach an even greater number of clients.  

However, while marketing and networking with other lawyers and prospective clients are important in developing a successful law practice, nothing attracts (and keeps) clients like providing excellent legal services. 

For those attorneys who are hesitant to log on and sign in, you may want to consider the positive impact of developing an online presence.