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Most people have seen a television show or movie where the plot revolves around a lawsuit. Attorneys and their clients show up in the courtroom ready to ambush their opponent. Neither side knows what the witnesses will say or what evidence will be introduced. While this plot makes for great entertainment, it could not be further from reality. In a lawsuit, both parties go through a process called discovery. Discovery allows each party to ask the other questions called interrogatories, request documents, and ask the other party to admit or deny statements. Another tool used in discovery is a deposition. Unlike interrogatories, requests for production, and requests for admission, a deposition is a question and answer session that usually occurs face-to-face. A deposition allows the attorneys for both parties to ask a witness questions under oath. In addition to the attorneys for both parties, the witness and a court reporter are present. The court reporter creates a record of the deposition by typing every word spoken. Unlike a trial, the judge and jury are not present. The deposition serves the purpose of allowing both parties to learn what the witness knows and preserve the testimony for trial. Since depositions are under oath, an effective attorney can lock witnesses into their testimony. If the witness attempts to change his or her testimony at a later date, the attorney is allowed to attack the witness’ credibility using their deposition. The appearance of a witness during their deposition is also important. Attorneys will try to assess the witness’ credibility and imagine how a jury may view the witness’ appearance and demeanor. While a written answer may appear credible, the witness’ actions could cause the attorney to believe additional evidence exists. Moreover, the attorneys will likely find information and facts not previously known, which gives them an opportunity to test their theories of the case. Discovery is not only about finding favorable facts, as it is equally important to understand the weak aspects of a case. An attorney certainly does not want to find negative information for the first time at trial. Furthermore, after reviewing the evidence, an attorney and client may decide settling the case is in their best interest. Since discovery allows both parties to understand the facts well before trial, the vast majority of cases settle.

Nearly every family has to face the agonizing decision at some point to have a loved one placed in a nursing home. The stress of that experience is terrible and can unleash a torrent of guilt, anguish, sorrow and concern. When faced with this onslaught of emotions, oftentimes the one through line we cling to in these situations is the hope that that our loved ones will remain comfortable and safe so they can enjoy what quality of life remains. Tragically, that comfort sometimes proves elusive once the paperwork is signed and our loved one is admitted to the home. Unfortunately serial neglect in a nursing home, which leads to death, remains a serious problem. But rather than strive to improve the quality of care, by paying caregivers a living wage, thoroughly training and educating staff and closely monitoring the care being provided to its residents, the nursing home industry has instead sought to shield itself from civil lawsuits by burying something called an “arbitration provision” in the mound of admission paperwork families must sign to admit their loved ones to a facility. These forced arbitration agreements have long been an issue in nursing homes. Many admissions agreements contain a mandatory arbitration clause that prevents residents and their families from suing the nursing home in cases of injury, abuse, sexual assault, or even murder. With a forced arbitration agreement in place, these types of claims are heard in a biased system that often has no semblance of neutrality; in some instances, injured individuals’ claims are heard before lawyers that also represent—and are paid by—the nursing homes. According to Julia Duncan of the American Association for Justice, “or years, the nursing home industry has used forced arbitration to cover up allegations of abuse and neglect in secret proceedings before their hand-picked arbitration provider.” When faced with the decision to admit a family member to a nursing facility, the family—and perhaps the resident as well — often face the very real likelihood that the elderly family member might not ever be able to return home. For all practical purposes, all anyone is trying to do in that situation is get through the paperwork and get their elderly loved one comfortable and secure. The family arrives at the facility and is presented with admission paperwork. An admission coordinator, even if well intentioned, rarely or ever explains the paperwork in detail. The paperwork is also rarely read in full because if it were, each admission would likely take the better part of a day. The typical admission packet requires 25 to 35 signatures, and one of these signatures is to an arbitration agreement. As a result, even the most fairly written arbitration agreement is unfair in that situation, because the family does not know they are giving up their constitutional right to go to court if something goes wrong. In a rare federal acknowledgment of this phenomenon, on Sept. 28, the Centers for Medicare and Medicaid Services (CMS) issued a final rule that actually prohibits nursing homes from using pre-dispute arbitration agreements in admissions contracts dated on or after Nov. 28, 2016. The rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid—the vast majority of all facilities in the United States. Unsurprisingly, on the heels of CMS's issuance of this final rule, the nursing home industry quickly filed suit in federal court in the U.S. District Court for the Northern District of Mississippi, seeking to block implementation of CMS's arbitration ban. And, for now, the industry has succeeded. Although seemingly sympathetic to the rationale underpinning the arbitration ban, District Court Judge Michael P. Mills granted the industry's motion to block the ban on the grounds that CMS is a regulatory agency and that it takes an act of Congress to properly implement such a ban. So, for now, forced arbitration will continue to be the standard in nursing home admissions every day. But all hope is not lost. Judge Mills' decision is unlikely to be the last word in this fight and forced arbitration is likely to receive additional judicial or congressional scrutiny in the future. In the meantime, if you are faced with the difficult decision of having to admit a loved one to a nursing home, please keep in mind that a nursing home cannot refuse to admit your loved one if you refuse to sign an arbitration agreement. So be diligent when presented with the admission paperwork, in looking for a forced arbitration agreement.  Refuse to sign it and protect your loved one in the event that they fall victim to substandard nursing home practices.

The phrase “class action” is thrown around by many of our potential clients and throughout the media. Throughout my career as an attorney, I have had the opportunity to represent clients in several types of class actions, and discuss potential class cases with many prospective clients. So what exactly is a class action and what types of cases should be filed as classes? A class action occurs when one or more people, often referred to as the class representatives, sue on behalf of a larger group or “class” of individuals. While each state has its own rule governing class actions, many of the state laws are similar to Rule 23 of the Federal Rules of Civil Procedure. While there are several types of class actions, all class actions have several common characteristics known as numerosity, commonality, typicality and adequacy of representation. First, the class must be so numerous that joining all of the members is impracticable. There is no magic minimum number that creates a class and knowledge of the specific number of people affected is not necessary. Instead, an attorney must only demonstrate that it would be impracticable to join all of the members. The second prong is known as the commonality requirement, which forces the party seeking to create the class to demonstrate that there are questions of law or fact common to the class. The threshold for commonality is not high, and requires only that a resolution of common questions would affect all or a substantial number of the class members. Not every issue in the case must be common to all class members, but the class members must share at least one common issue. The typicality requirement demands that the claims or defenses of the class representatives be typical of the claims or defenses of the class. A party’s claim or defense is typical if it arises from the same event or course of conduct that gave rise to the claims of the other class members. Importantly, Rule 23 only requires that the claims be typical of the other class members, not identical. Furthermore, the adequacy of representation requirement states that a party seeking class action status must demonstrate that the representative parties will fairly and adequately protect the interests of the class. This inquiry tests the qualifications of the proposed attorneys. Moreover, it serves to uncover any conflicts that could exist between the class representatives and proposed class members. The attorneys’ competence and experience will be examined, in addition to focusing on whether the attorneys have the resources to properly investigate and represent the class members. Once these four prongs have been met, the party seeking class action status must still demonstrate that the claims can be classified as one of the three types of class actions set forth in Rule 23(b). Class actions can arise in many different areas of law and from a variety of events, such as investors who have been harmed by fraudulent activities, defective products that damage the individuals who purchase them and dangerous pharmaceutical drugs and devices that cause harm to patients. Permitting claims to be brought as class actions allows individuals who may have only suffered limited damages to take on large companies with far greater resources. Additionally, class actions allow the judicial system to reach one decision, instead of creating the potential for several judges to reach inconsistent results.

The Americans with Disabilities Act (“ADA”) is a civil rights law passed by Congress in 1990 and amended in 2008, in response to widespread, systemic discrimination against people with disabilities. The ADA, among other things, makes it unlawful to discriminate in employment against qualified individuals with disabilities in job application procedures, hiring, firing, advancement in the workplace, compensation, job training and other terms and conditions of employment.  The ADA covers employers with 15 or more employees, including state and local governments.  It also is applicable to employment agencies and labor organizations, and it covers federal employees under the Rehabilitation Act. The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities.  A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.  When the ADA was enacted, it did not expressly define “major life activities;” however, the Equal Employment Opportunity Commission (“EEOC”), in its implementing regulations, states that major life activities are basic activities that the average person can perform with little or no difficulty, such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” The EEOC has also identified as major life activities mental and emotional processes, such as thinking, concentrating and interacting with others. Although there is no all-inclusive list of major life activities that are covered by the Act, the EEOC has issued regulations that make clear that impairments that are episodic or in remission may be considered disabilities.  In fact, the regulations specifically state that an impairment that is episodic or in remission meets the definition of “disability” if it would substantially limit a major life activity when active. Some examples include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder and schizophrenia.  An impairment such as cancer that is in remission but that may possibly return will also be considered a disability under the ADA amendments. Pregnancy is not a disability under the Act. The ADA excludes from coverage a person who currently engages in the illegal use of drugs; however, a person who no longer engages in the illegal use of drugs may be an individual with a disability if he or she has successfully completed a supervised drug rehabilitation program or is participating in a supervised rehabilitation program, for example, Alcoholics Anonymous or Narcotics Anonymous. Under the ADA, employers must make reasonable accommodations that enable employees with disabilities to enjoy equal benefits of employment.  A reasonable accommodation is a modification or an adjustment to a job, the work environment or the way that things are done that enables a qualified individual with a disability to enjoy an equal employment opportunity.  Essentially, this means an opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment as are available to an average similarly situated employee without a disability. The ADA requires reasonable accommodation, if that accommodation would not impose an undue hardship, in three aspects of employment:  (1) to ensure equal opportunity in the application process, (2) to enable a qualified individual with a disability to perform the essential functions of a job and (3) to enable an employee with a disability to enjoy equal benefits and privileges of employment.  Reasonable accommodation may include any of the following: ·       Making existing facilities used by employees readily accessible to and usable by persons with disabilities. ·       Job restructuring, modifying work schedules, reassignment to a vacant position; ·       Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials or policies, and providing qualified readers or interpreters. If a modification or accommodation would impose an undue hardship on the operation of an employer’s business, that employer does not have to provide the accommodation.  “Undue hardship” has been defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources and the nature and structure of its operation. Although an employer is required to make a reasonable accommodation to the known disability of a qualified applicant, an employer generally does not have to provide reasonable accommodation unless an individual with a disability has requested one.  Once a reasonable accommodation is requested, the employer and the individual should discuss the individual’s needs and identify the appropriate reasonable accommodation.

Unfortunately, many of the people who come to our firm for help have experienced a great tragedy in their lives. In instances where the wrongful conduct of another has caused a death, these families want to know whether or not they have what’s known as a wrongful death case. The easiest answer to that question comes in the form of an example.  Let’s say that during the course of a surgical procedure, a doctor commits an act of medical malpractice.  As a result of the malpractice, the patient requires a long admission to the hospital, incurs significant medical bills and suffers greatly before passing away months later. What type of case is this and what types of damages may the patient’s family recover?  Generally speaking, there are two separate causes of action in this scenario that are both based in the doctor’s underlying negligence.  The first cause of action is commonly known as a “survivorship” action.  This action is brought on behalf of the estate of the deceased patient for all of the damages the patient suffered while he or she was alive.  Said another way, the fact that the patient died does not end the right of the patient’s estate to recover those types of damages. The second cause of action is what’s known as a “wrongful death case.”  This wrongful death cases arises out of the same conduct as the survivorship case (the negligence of the doctor), but it differs significantly in terms of the types of recovery that are available.  The wrongful death case is not brought for the benefit of the estate of the deceased patient.  Instead, it is brought on behalf of, and for the benefit of, what the law calls the decedent’s “statutory beneficiaries.”  Again, generally speaking, the “statutory beneficiaries” are the members of the decedent’s immediate family and “next of kin.”  In this sense, the law recognizes that when a person dies as a result of the wrongful conduct of another, those who loved him or her the most suffer their own, special kind of loss that requires fair and adequate compensation. In the example above, there would be two causes of action contained in a single case:  a survivorship action and a wrongful death action.

One of the first calls a homeowner makes after a fire or water loss is to his or her insurance company seeking help with both cleaning up the immediate mess and eventually repairing the damage. More often than not, the insurer will provide the homeowner with the name of a contractor who will respond to the home to assist with the initial clean up and to secure the home from further damage.  Homeowners understandably assume that when their insurer places them in contact with a contractor who will respond to a loss that the insurer will stand behind the contractor’s work, particularly where the contractor is one of the insurer’s “preferred” contractors and is being paid directly by the insurer for work performed at the home.  Unfortunately, this assumption is wrong more often than it is right. Insurers take steps from the outset to attempt to distance themselves from liability if something goes wrong, such as where the contractor fails to properly dry the home resulting in mold growth and further damage.  When the contractor first arrives at the home, the homeowner is often instructed that certain documents must be signed before the contractor begins work.  If the contractor is one of the insurer’s “preferred” contractors, the homeowner will be instructed that he or she needs to sign a document prepared by the insurer “authorizing” the contractor to perform work in the home before work can commence and later “authorizing” the insurer to pay the contractor.  What the homeowner rarely realizes though is that in these documents the insurer declares the contractor to be an “independent contractor.”  The significance of this designation is that if something goes wrong, the insurer will rely on the document in an attempt to avoid liability for the contractor’s negligence. An argument exists to get around the insurer’s attempt to insulate itself from liability for a contractor’s negligence where there is evidence that the insurer was actually controlling the contractors’ work and/or the homeowner was led to believe that the contractor was working for the insurer by the acts and representations of the insurer and/or contractor.  A key component of holding an insurer vicariously liable for damages caused by the contractor’s negligence is demonstrating that the insurer was actually controlling the contractor’s work.  Control may be demonstrated by evidence that the contractor was communicating directly with the insurer regarding the scope of work to be performed and did only that work pre-authorized by the insurer.  Likewise, evidence that the insurer and contractor are communicating with the homeowner in a manner that would lead a reasonable person to form a good faith belief that the contractor was working as the insurer’s agent and/or representative can be used to find the contractor to be an ostensible agent of the insurer for whom the insurer is vicariously liable. In order to become a “preferred” contractor for an insurer, the contractor often agrees to a lower rate of reimbursement than that which may be charged on the open market in exchange for obtaining the higher volume of work created when the insurer directs insureds to the contractor.  The insurer wants its insureds to utilize the “preferred” contractors because the “preferred” contractor has agreed on the lower reimbursement rate and the insurance company saves itself money on the claim.  Because the “preferred” contractor is beholden to the insurer for work, it will take direction from the insurer despite the protests of the homeowner and in direct contradiction to the insurer’s documents declaring the contractor to be a “preferred” contract.  When this happens and something goes wrong, the loser is the homeowner, particularly where both the insurer and the “preferred” contractor disclaim liability or point fingers at each other.  If you ever have the unfortunate experience of suffering a fire or water loss at your home, you are not required to utilize the contractors “suggested” by your insurer.  If there is a reputable remediation contractor in your area that you want to use, you have the right to do so even if the contractor is not on your insurer’s “preferred” list.  How the remediation contractor is reimbursed for work will be dependent upon the precise terms of the insurance policy at issue.  However, rarely does an insurance policy mandate the use of the insurer’s “preferred” contractor.  Instead, most policies will pay the reasonable costs of necessary remediation work.

So you have hired an attorney, filed a complaint to begin your lawsuit, and are now ready for your attorney to get in front of the judge and jury to have your side of the story told. You call your attorney and ask when the case will be set for trial, and he or she explains to you that many things still need to be completed before trial.  To many people, the fact that their lawsuit could take a year or two to resolve comes as a big surprise. My purpose in writing this blog is to describe one of the activities that takes place between filing a lawsuit and having the claim resolved, the discovery process. Discovery is exactly what it sounds like, each party has the opportunity to discover the other party’s facts and documents. Primarily, this is done in four ways: interrogatories, request for production of documents, requests for admission and depositions. An interrogatory is a question asked by one party to the other party.  For example, an interrogatory could ask a party to name every person they know who has knowledge of a relevant event or to identify every insurance policy that could provide coverage. The party who is responding to the interrogatory would either answer the question or object. A request for admission can be valuable to limit the issues in a case. One party can ask the other to admit specific facts, such as whether they were the owner of a specific vehicle or admit that a document was signed. The party responding to the request for admission has the option of either admitting or denying the statement.  Additionally, the party can qualify an answer or deny only a part of an answer. The answering party may also object or assert a lack of knowledge or information as the reason they are failing to answer. Requests for production allow parties to request relevant documents in the other party’s possession. These documents could range from an insurance policy to e-mails discussing an agreement. The responding party has the option of either producing the requested documents or objecting to their production. If an objection is made, it may need to be accompanied by a privilege log identifying the documents being withheld and the reason they are being withheld. Depositions are another means of discovery that many people are likely somewhat familiar with due to their dramatization on television and in movies. In a deposition, both parties have the opportunity to ask a witness questions.  The witness is under oath and everything said is recorded on a transcript. A deposition is another valuable tool for parties to understand the facts of the case. It is also important to lock a witness into their story so they cannot change it at a later date. While this is not a detailed analysis of every aspect or tool that can be used in discovery, I hope this article has provided you with a better understanding of the basics of this process. Of course, hiring an experienced law firm that has the talent and resources to guide you through the discovery process is important. Battles can often times take place in discovery and it is critical that you have someone willing to stand up for your rights. This will lead to a better outcome for you and your case.

In the case of McLaughlin v. Garden Spot Village of Akron d/b/a Maple Farm Nursing Center, the Pennsylvania Superior Court denied the defendant nursing home's attempt to shield its employee from testifying about the employee's report of abuse of an elderly resident to the Lancaster County Office of Aging. Plaintiffs, Ms. Vickie McLaughlin and Carol L. MacConnell, as co-administratrices of the estate of Dorothy L. Brace, sued the nursing home, and Glenn Hershey, a former resident of the nursing home after Hershey sexually assaulted Brace during their residency.  Hershey was a registered sex offender before he assaulted Brace. Hershey subsequently pled guilty to involuntary deviate sexual intercourse and received a sentence of eight to 20 years of incarceration. Brace passed away 10 months after the assault from unrelated causes. Plaintiffs alleged that the nursing home was aware of the threat Hershey posed to Brace. Plaintiffs sought to depose Carrie Kneisley, a nursing home employee, and examine her about what she told the office of aging.  The nursing home filed a motion for a protective order, arguing Kneisley’s testimony is privileged under the Older Adults Protective Services Act, 35 P.S. § 10225.101 (the "Act"). The trial court denied the nursing home's motion and permitted the deposition to go forward under seal. The nursing home filed an immediate appeal to the PA Superior Court. Section 302(d) of the Act provides, “Any person participating in the making of a report or who provides testimony in any administrative or judicial proceeding arising out of a report shall be immune from any civil or criminal liability on account of the report or testimony unless the person acted in bad faith or with malicious purpose.” 35 P.S. § 10225.302(d). Analyzing § 302(d), the court determined that Section 302(d) protects persons who become witnesses in a judicial proceeding from criminal or civil liability based on their testimony, but does not preclude their testimony. Chapter seven of the Act (“Reporting Suspected Abuse by Employees”) addresses employee reports of abuse of recipients. 35 P.S. § 10225.701(a)(1).  Section 701 requires an employee to report suspected abuse of a recipient to the agency and potentially to law enforcement. 35 P.S. § 10225.701(a), (b). Section 705 governs the confidentiality of reports made under Chapter 7. The court held that if Kneisley made such a report, §705 protects the confidentiality of that report. § 705(e) also precludes the “release of data” that would identify the reporter. 35 P.S. § 10225.705(e). In this case however, the court concluded that § 705 cannot support the nursing home's argument because Plaintiffs are not seeking an agency report.  The court found nothing in § 705(e) that prevents Kneisley from testifying in a civil action arising from the alleged abuse.

With the Republican National Convention in full swing this week, the xenophobic, apocalyptic vision of America on the brink of total destruction thanks to the failed “leadership” of our first “Muslim” President is on full display from the bully pulpit of the Quicken Loans Arena. Fact checkers are on the scene as well, ready to debunk every false and misleading statement that each convention speaker tries to pass off as fact. We’re likely to see much of the same next week, from the other side, when the Democratic National Convention kicks off in Philadelphia. With all of this rhetoric being spouted over the next couple of weeks, some of you might be wondering whether any of these statements are actionable in a Court of law.  Can these speakers be held liable for defamation? To answer that question, we need to take a closer look at defamation law in America.  I chose Ohio’s law since the RNC is happening in Cleveland this week, and since Ohio law on defamation is substantially similar to other state laws around the country. Defamation, includes both slander and libel, and is the publication of a false statement “made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.” A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995). “ ‘Slander’ refers to spoken defamatory words, while ‘libel’ refers to written or printed defamatory words.” Matikas v. Univ. of Dayton, 152 Ohio App.3d 514, 2003-Ohio-1852, 788 N.E.2d 1108, ¶ 27 (2d Dist.). To prevail on a defamation claim, whether libel or slander, a plaintiff must prove that: (1) a false statement, (2) about the plaintiff, (3) was published without privilege to a third party, (4) with fault or at least negligence on the part of the defendant and (5) the statement was either defamatory per se (i.e. words that carry a presumption of falsity, damages, and malice) or caused special harm to the plaintiff. In the case of these convention speeches, the key portion of the law is the “without privilege” language. While there are a number of privileges under the law that might protect one’s speech, the one most often used to insulate the speaker from any misleading or false rhetoric spouted at party conventions is the First Amendment, freedom of speech privilege. In addition, the party against whom the misleading or false statements are spoken would have to show special harm, which would be difficult.  For instance, if Hilary Clinton loses the election, it would be difficult, if not impossible, to blame her loss on the false statements included in Chris Christie’s speech last night. In short, no matter how ridiculous Iowa Rep. Steve King sounded during Monday night’s convention panel when he argued that what non-whites have never made any positive contributions to Western civilization, the only way such speakers are likely to be judged is through the Court of public opinion.

Potential clients, family and friends frequently ask what is required to make a contract legally binding. Many times, a contract simply requires an offer, acceptance of the offer and consideration.  Consideration is something of value that is promised or contracted for that induces or motivates the parties to enter into a contract.  While it is usually smart to document the terms of a contract to avoid future disagreements, verbal contracts are legally binding. However, as with most legal principles, there are exceptions where contracts must be in writing, such as the Statute of Frauds.  The Statute of Frauds states that certain types of contracts must be in writing, signed by the parties and contain the essential terms of the agreement.  While each state has its own laws, generally five types of contracts fall under the Statute of Frauds: (1) Contracts for the sale of land; (2) Contracts for the sale of goods for more than $500; (3) Contracts where one party promises something of value to the other party based on the specific condition that they become married; (4) Contracts that cannot be performed within one-year from the time the contract was made; and (5)  Contracts where one person or entity assumes an obligation or responsibility of another person. There are additional arguments and legal principles that could be made to enforce the terms of an unwritten agreement that falls into one of the five previous categories; however, to make the contract binding, these types of agreements must be in writing.  Enforcing a contract can become complicated quickly.  If any of our readers have a question regarding their rights based on a contract or agreement, they should always feel free to reach out to our firm for a free consultation to better understand what options may be available.

Over the past year, my wife has been hooked on watching some of the recently released documentaries about famous legal cases and crimes. I am sure many of our readers have watched a part of the documentary on Robert Durst called The Jinx, ESPN’s series on O.J. Simpson, or Making a Murderer, which focused on Steven Avery’s trial.  As an attorney, many of my friends have asked me random questions regarding the legal issues in these shows. Many of the recent questions have been focused on the fact that O.J. Simpson was found not guilty in his criminal trial, but lost the civil case filed against him. Does this mean he was found guilty of murder?  Could he still have gone to jail for losing his civil case?  How did one jury find against him, while the other jury found for him? First, it is important to point out the difference between the civil and criminal justice systems.  A criminal case is brought by the local, state or federal government in response to an alleged violation of the law and generally pursues a fine and/or jail time.  On the other hand, a civil case is brought by a party called the plaintiff to generally collect money owed, money for damages, or request an injunction. While there are many factors that could have played into the juries’ decisions in the Simpson trials, one factor was likely the different burden of proof standards.  In a criminal case, the prosecutor has the burden of proving the case “beyond a reasonable doubt.”  This means it is the prosecutor’s job or “burden” to prove his or her case to the point where the jury does not have any “reasonable” doubt the defendant is guilty.  The defendant does not have to prove his or her innocence and, instead, only needs the jury to have reasonable doubt about whether the crime was committed.  This is a very high standard and can be difficult for a prosecutor. The burden in a civil case is much lower and is referred to as a “preponderance of the evidence.”  A preponderance of the evidence simply means the greater weight of the evidence or what side of the case is more likely true. For example, while someone obviously cannot put percentages on their belief, if the jury was 51% convinced the individual bringing their civil claim was correct, then that person would win the civil case. Therefore, while many other factors were likely at play, such as the elements of the crimes and claims, the heightened burden of proof was likely a factor in the different decisions.  While we will never know, the jury in the criminal case may have thought O.J. Simpson was more likely than not guilty, which would have resulted in a decision against him in a civil case.  However, despite thinking he was likely guilty, the jurors could have had reasonable doubts that resulted in the not guilty verdict.

Many local residents are facing, or will soon face, a not-too-uncommon problem - a coal company sending them letters that it is about to start mining activities under their land and home. What can you do?  Can you stop the mining?  What rights do you have once the mining occurs?  The answers to those questions are probably not going to be accurately given to you by the coal company employees.  People facing such circumstances would be wise to contact an attorney to learn what their rights really are. Unfortunately, it is most likely true that there is no way to stop the mining from occurring.  Decades ago, most of the minable coal seams in the Ohio Valley were severed away from the surface of the land.  The result is that many, if not most, people who own surface land in this area probably do not own the coal under their land.  Many years ago, an owner of the land either sold the coal and kept the land or kept the coal when they sold the land.  Those types of transactions are called “severances.”  Even though those transactions occurred, in some cases more than 100 years ago, the terms of those transactions might still control your property.  As coal companies bought coal from landowners, they were able to insert language in the deeds, making sure that they had the right to mine the coal.  The breadth and scope of that language might limit what you can do today in response to coal mining operations.  Some of the language utilized was very broad and, arguably, would give the coal operator the right to mine and remove all of the coal under your land without leaving any support for your surface lands.  Once the coal is removed, the land fills to fill the void.  That is how subsidence damages occur.  If a coal company is planning to mine under your land, it is very important to have a title review done to locate the language used in the coal severance deed affecting your property.   While it is fairly likely that the coal company already owns the coal under your land, the language of the severance deed will help you determine what your rights are to be compensated when your home and land are damaged. Courts have a history of upholding damage and support waivers in prior deeds when it can be shown that the damage and support waivers are clear, unambiguous, and reflect that the parties really did intend that the types of damages that may be caused were waived.  One must consider when the deed was signed, where it was signed, and the language actually used to decide whether a landowner could pursue common law damages for the damages to their land.  Those common law damages might include the cost of repair, even if the cost of repair is more than the value of the property, as well as damages for loss of use, annoyance, and inconvenience.  If, however, the damage waiver language is strong and enforceable, the federal government and the states have enacted laws that do require coal companies to provide certain types of compensation to injured landowners.  The system is imperfect, but for many individuals, it is their only recourse. The applicable Surface Mining Control and Reclamation laws require, as part of the regulatory and permitting process, coal companies to agree to provide certain types of recourse to landowners, even if a deed waiver is enforceable.  Those types of actions might require the coal company to fix the damage to any lands, to replace lost domestic water sources, and to repair and/or compensate for damages to homes and structures.  Coal companies typically argue that it is their choice to determine whether to repair structures or to merely offer compensation.  Many choose compensation and argue that they are only responsible for paying the landowner for the amount of decrease in the property value caused by the mining damages.  As you might expect, in most circumstances, that would leave a landowner severely undercompensated and without the necessary funds to repair or rebuild their home.  At least one local judge has ruled that the law in West Virginia is that the landowner gets to make that decision and that if the home can be repaired, they can select the compensation option and receive the full amount necessary to repair the home even if that amount is more than the value of the property.  Importantly, federal and state law both provide circumstances where a landowner might be able to recover their attorney fees and certain costs incurred in bringing lawsuits under the mining control and reclamation acts. Coal companies complying with state and federal law are required to give landowners notice of mining operations and are required to conduct certain pre-mine inspections, including interior and exterior inspections of properties and structures that are expected to be damaged by the proposed mining.  Importantly, once a coal company conducts a pre-mine inspection of a home, there is a clear presumption that any damages caused to the home after the start of mining were, in fact, caused by the mining.  Therefore, it is important that landowners permit pre-mine inspections of their homes to occur. Also, do not forget that you may have mine subsidence damage insurance under your homeowners insurance policy.  If you live in an area with recent or active coal mining, it is highly likely that you were offered, or should have been offered, that type of coverage.   You should review your insurance policy to see what types and amounts of coverage you might have. If you receive notice that a coal company is about to start mining under your land, you should contact legal counsel as soon as possible to determine your rights.  Knowing from the beginning what you will be facing can be invaluable.  Our firm recently took a mine subsidence damage case all the way to trial in federal court in West Virginia.  Senior Partner Jim Bordas and I were able to receive a $547,000 verdict on behalf of West Virginia residents whose home and land were damaged by coal mine subsidence, and we continue to represent other individuals in ongoing mining cases. If you have been contacted by a coal company that intends to mine under your property, please feel free to get in touch with us for a free consultation regarding your rights.