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The Critical Role of Subpoenas in Litigation

Lawsuits are about evidence – namely, who has it and how much is there.  For that reason, parties (and their attorneys) devote a significant amount of time to gathering information through the discovery process.  Generally, parties are supposed to play nicely and share their information with the opposing side.  But of course, that usually isn’t the reality.  Frequently, parties will object to sharing information, arguing that it’s not relevant or that it’s too burdensome to produce.  Additionally, obtaining complete and truthful information is often easier obtained from disinterested, third-parties than from parties who have an incentive to only provide information that helps their case, not yours.  This is where the all mighty subpoena comes into play.  The subpoena is so fundamental to litigation that it has its own rule of civil procedure, separate and apart from the general rules governing party-only discovery.

Subpoenas, through Civil Procedure Rule 45, authorize litigants to obtain both testimonial and physical evidence from non-parties.  Non-parties are more likely to truthfully and completely respond to subpoenas than parties through traditional discovery because:  (i) they have a less vested interest in the litigation, and (ii) they can be sanctioned if they do not comply with the subpoena.

Time and time again, I have used subpoenas to obtain critical information and valuable witness testimony that the other side claimed simply didn’t exist.  With this information in hand, I have proven my clients’ claims or disproven adversary’s claims.  In turn, this has resulted in dramatically more favorable settlements and verdicts for the client than if I had solely relied on the word (and delay tactics) of the other parties.  In cases such as this, even if the information turns out to be less valuable than expected, the mere discovery of something the other side was trying to hide can be enough to move the litigation forward.

A couple important points about subpoenas:

  • They cannot be used against parties – only non-parties – but those non-parties include both people and businesses.
  • They can be used for more than just forcing a reluctant witness to testify. You can use a subpoena to request a non-party:
  • produce documents, electronically stored information, or tangible things and permit their inspection and copying;
  • produce and permit inspection and copying, testing, or sampling of any tangible things that are in the possession, custody, or control of the person; or
  • permit entry upon property that is in the possession or control of the person.
  • If you require someone to attend a deposition or trial, you must pay them mileage and fees for the day.
  • Subpoenas can be delivered in person or through the mail, by attorneys, or law enforcement.
  • The applicable rule of civil procedure is nearly identical for federal and Ohio state courts, but parties should carefully review each depending on where the suit was filed.

Of course, subpoenas are not a magic fix for every discovery issue.  First, non-parties may legitimately not have the requested information; hence the repeated phrase within their “possession, custody or control.”  Second, either the person subpoenaed or the opposing party may seek to quash the subpoena (have it thrown out) if, for example, it’s unreasonable or would require the disclosure of privileged information.

In partnership or closely held company disputes, subpoenas are particularly effective to obtain records from financial institutions and accountants, because those entities regularly receive subpoenas and know their duties under the law.  At the end of the day, a skilled litigator always considers the value of subpoenas in the discovery process.

Associate Alex Ebert Graduates from “Leadership Upper Arlington”

Kohrman Jackson & Krantz LLP Associate Alex Ebert graduated from the Leadership Upper Arlington program Wednesday, joining the ranks of notable Columbus-area business and community leaders who graduated the program.

For over two decades, “Leadership UA” has fostered the leadership skills of central-Ohio businesspeople, civil servants and passionate professionals who dedicate time each month to study leadership and plan community betterment projects.  This year, Alex and the other graduates organized a community-wide fundraiser to purchase giant games (Connect Four and Jenga sets as wide and tall as the humans playing it).

The games will be free to use for all Upper Arlington community events, and residents can check them out from the Upper Arlington Parks and Recreation Department.  Alex and the other graduates are teaming up with community organizations and the Special Olympics to stage the games at various Upper Arlington shindigs throughout the summer.

“We wanted something that would entertain children, and children-at-heart, during our community events,” said Alex, who practices business litigation for KJK.  “Meeting our fundraising goal was the icing on the cake of a fantastic year of leadership training.  From civility to community engagement, from philosophy of leadership to practical application, Leadership UA develops character and brings the community together.”

The First Advisory Opinion of 2016 Focuses on Fixed Fees

The first Advisory Opinion of 2016 from the Ohio Supreme Court’s Board of Professional Conduct concerns the newly popular practice of fixed fees.  It is important to note that while Advisory Opinions serve as guidance on a particular point of law, they are non-binding and are responsive to mere hypothetical questions.  The opinion can be found here.

Per the Ohio Rules of Professional Conduct, a fixed fee is “a fee of a set amount for performance of agreed work, which may or may not be paid in advance but is not deemed earned until the work is performed.”  The Board’s opinion mainly addresses how attorneys should handle fixed fees.   Specifically, where should an attorney place a fee that been earned versus one that is prepaid?  This difference is important because of Rule 1.15 of Professional Responsibility, which states that attorneys cannot mingle client funds with their own funds.  For this reason, attorneys must set up a client trust or IOLTA account to deposit client fees, like retainers and court costs, in addition to a general account where earned fees can be deposited.

Depending on the time of payment and service, lawyers must place fixed fees in different accounts.  Generally, if a client pays a fee in advance of work, then that fee must be placed in the client trust or IOLTA account because that fee has not been earned by the attorney yet.  But, if the fee is designated as “earned upon receipt,” it means the fee has been earned at the time of payment, even if the attorney does future work on the same project.  This money is considered the attorney’s and so must be placed in the attorney’s general account.  Additionally, if the fee is paid in advance and the attorney does not complete the project, he or she must return any unearned portion of the fee, even if the fee is designated as “earned upon receipt.”

The Board also clarified some other parameters for fixed fees, which are in line with the general rules for hourly fees as well.  For instance, just like with hourly billing, an attorney cannot charge an excessive fixed fee.  What is excessive depends on several factors, including the time involved, complexity of the matter, and the customary rate in the area.  A fixed fee also cannot limit the attorney’s duty to provide competent and diligent representation.  While these rules may see basic and straightforward, many attorneys face disciplinary charges because of the mishandling of fees, and that risk may be greater for attorneys inexperienced with the newer practice of flat fee billing.

Fixed fees are nothing new to Samir Dahman, Partner-in-Charge of KJK’s Columbus office.  Samir has been offering clients a fixed fee approach for years, and brought the practice with him to KJK when his firm, Dahman Law, joined KJK in August.  Samir has continued to perfect the fixed fee model to both meet professional standards and clients’ best interests, and offers this option on nearly all of his work.

Ohio Legacy Trusts for Attorneys: Strike the Balance Between Control and Security

Around 4:30 A.M. last Wednesday—somewhere between changing diapers and rocking my newborn—it struck me that I need an estate plan… What if tragedy struck, and suddenly I’m not around to support my family?  But, at the same time, I don’t plan on dying anytime soon …  So can I set up a trust  that gives me a say in distributions so I have peace of mind in this life, too?  … And then there’s the possibility of defending a legal malpractice claim.  Can I take preventative steps in my estate plan to ensure my assets are safe in the event of a malpractice claim?

If you’re an attorney like me, these thoughts almost certainly entered your mind.  New research finds attorneys have a 2 to 12 percent chance of facing a malpractice claim each year depending on practice area.  An entire law review journal is dedicated to legal malpractice, and in a time when multi-million dollar judgments against attorneys splash the news, lawyers face tremendous liability from malpractice.

Because of this potential liability, attorneys need an estate plan that both prepares for the worst and hopes for the best.  A plan that offers both control and protection.  Good news: both are possible with an estate plan that utilizes an Ohio Legacy Trust, or “OLT.”

The OLT strikes the balance between asset protection and control that hands-on professionals like attorneys find compelling.  Passed March 2013, the Ohio Legacy Trust Act, R.C. 5816, allows you to create and fund an asset protection trust to guard against creditors, yet retain some control over distributions from the trust.  Here are the highlights:

  • Creditors have a short period of time to make claims against your OLT assets–eighteen (18) months in many cases[1]—after your property has been transferred to the OLT;
  • You can be a beneficiary of your own OLTA,[2] which is not true for other trusts;
  • Although you can’t be the trustee of your OLT, you do retain significant power over distributions, including the power to veto a distribution from the trust;[3] and
  • If you don’t like your trustee’s decisions regarding management or distributions, you have the power to change trustees.[4]

Attorneys and other professionals would benefit from this told because transfers to the OLT can receive significant protection.  Unlike other trusts where creditors can make claims against the trust during your lifetime, future creditors have a short 18-month window to file claims against your OLT assets.  Your existing creditors also have a shortened window: either (i) eighteen (18) months after the establishment of the OLT, or (ii) six (6) months after the OLT could have reasonably been discovered by the creditor if the creditor sues within three (3) years of the transfer to the OLT.[5]

Even if the creditor does file within these windows, the creditor must prove bad faith or intent to defraud by “clear and convincing evidence,”[6] which is the highest standard of proof in civil law.  Thus, once your OLT is properly established and funded, most of your creditors will be precluded from reaching the assets of your trust.

The duality of control and protection makes the OLT a powerful tool.  In addition to the ability to appoint and change the trustee, the person setting up their OLT has the following rights and powers:

  • The power to withdraw up to 5% of the trust assets every year;[7]
  • The ability to fund the OLT with virtually any kind of asset (such as stocks, personal property, artwork, investments, and real property);
  • The power to appoint property to other beneficiaries, all while protecting the property from creditors;[8] and
  • The right to live in a home transferred to the OLT.[9]

In exchange for these benefits and protection from creditors, the OLT must be irrevocable.[10]  For that reason, the OLT should probably be used only for “rainy-day” assets you would like to protect from creditors.  Additionally, the trustee you appoint must be independent—not your relative or someone under your control—and must be located in Ohio.[11]  You will also need to sign an affidavit that states the following:

  1. The assets of the OLT are not the product of illegal activity;
  2. You have the full right to transfer the assets;
  3. You will not be insolvent after the transfer;
  4. You have no intention to defraud creditors;
  5. There are no pending court actions against you;
  6. You are not involved in any administrative proceeding; and
  7. You do not foresee filing for bankruptcy.

Because the OLT can be a powerful guard limiting exposure to assets, attorneys should consider using the OLT as part of their estate plan to plan for their family’s future and to guard against potential malpractice claims.  Please contact the attorneys at Kohrman Jackson & Krantz to set up a time to discuss whether a Legacy Trust is right for your needs.

[1] R.C. 5816.07(B)(1)(a).

[2] R.C. 5816.02(D); R.C. 5801.01(C).

[3] R.C. 5816.05(B).

[4] R.C. 5816.05(I).

[5] R.C. 5816.07.

[6] R.C. 5816.08(A)(5).

[7] R.C. 5816.05(F).

[8] R.C. 5816.05(C).

[9] R.C. 5816.05(J).

[10] R.C. 5816.02(K)((1)(c).

[11] R.C. 5816.02(S)(1)(b).

Provide For Your Loved Ones With The Family Estate Plan

You spend most of your life caring for and supporting your family.  Ensuring that loved ones are taken care of after your death should be no different.  Crafting a detailed and thorough estate plan is the first step in continuing to provide for your relatives after you’re gone.  While some choose to create these documents on their own, the process can be extremely complicated and developing an estate plan that will function according to your desires is not an easy task.  KJK has a number of skilled and experienced attorneys who are ready to assist you in this endeavor.  Samir Dahman offers a comprehensive Family Estate Plan, which meets the needs of most Ohio families.

The most important step in crafting your estate plan is understanding what each document means and how it will affect you and your loved ones.  The following documents are included in the Family Estate Plan:

  • Instructions for Titling Assets. This document identifies how to title your assets, such as insurance policies and retirement accounts so that they are distributed in accordance with your wishes.
  • Pour-Over Last Will & Testament. The last will and testament identifies where your assets will go once you have passed away.  It includes answers to these questions:  What happens to your assets when you die?  Who is the executor of your estate?  Who will be the legal guardians for your minor children?
  • Authorization for Use and Disclosure of Protected Health Information. This is a HIPPA waiver that will allow medical professionals to release your medical records to those listed in this document.
  • Advance Directive – Living Will. This is a legal document giving instructions to your family, your doctors, and your healthcare agent concerning the end of your life.  You can indicate your desire concerning artificial life support, treatment or the termination of treatment.  The document indicates your decision on do not resuscitate orders, the removal of feeding tubes, and the removal of hydration.
  • Durable General Power of Attorney. This power of attorney identifies person(s) you name to handle legal and financial matters for you if you are unable to do so because of a mental or physical disability.  They stand in your shoes and have the ability to pay your bills, collect and sell assets, manage investments, file tax returns, and the like.
  • Health Care Power of Attorney. This power of attorney is for medical and health related decisions.  You name an agent who will have the power to: give and receive medical information; hire and fire healthcare workers; select nursing homes; and give informed consent to treat or to operate.  You may also give the agent the power to remove life support including feeding tubes and hydration at the end of your life.
  • Customized Revocable Living Trust. This document determines the beneficiaries of your assets and how those assets will be distributed.  During life, the creator of a Revocable Living Trust (the “settlor”), can change the distribution plan.  Upon the death of the settlor the Trust then becomes irrevocable and cannot be changed.
  • Bill of Sale. This is a document that transfers tangible personal property to the trust.
  • Affidavit of Trustee. The affidavit is a document that your successor trustee can provide which declares that the settlor has passed away.
  • Certificate of Trust. This is a document that the trustee may provide to a person other than a beneficiary – a bank, for example – instead of a copy of the trust document itself. This allows you to keep the terms of the trust private, but still provide proof of its existence.

These documents provide full and complete instructions for your loved ones that will allow you to continue to provide for them, even after you are gone.  Call Samir Dahman at 614.636.1250 today to learn more information and get started on your estate plan.

Samir Dahman selected as Super Lawyer by Ohio Super Lawyer magazine

Samir Dahman, the Partner in Charge of Kohrman Jackson & Krantz, LLP’s Columbus office, was selected for the third time as one of the 2016 Business Litigation Super Lawyers in Columbus by Ohio Super Lawyer magazine, which follows two years of being selected as a Rising Star.  Samir Dahman founded Dahman Law and his firm recently merged with KJK, making him the new Partner in Charge of the firm’s office in Columbus.

After an extensive nomination, evaluation, and research process, Ohio Super Lawyer magazine selected Mr. Dahman to the prestigious Super Lawyer list.  It is a distinction reserved for only the top 5 percent of all lawyers in Ohio.

The Super Lawyer Selection Process

Super Lawyers selects attorneys using a patented multiphase selection process.  Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement.  Selections are made on an annual, state-by-state basis.

The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

The Super Lawyers patented selection process involves three basic steps:  creation of the candidate pool, evaluation of candidates by the research department, and peer evaluation by practice area.

Step 1: Creation of the Candidate Pool

Lawyers enter the candidate pool by being formally nominated by a peer or if identified by the research department during the research process.

Step 2: Evaluation of Lawyers in Candidate Pool

The Super Lawyers research department evaluates each candidate based on these 12 indicators of peer recognition and professional achievement: verdicts and settlements; transactions; representative clients; experience; honors and awards; special licenses and certifications; position within law firm; bar and or other professional activity; pro bono and community service as a lawyer; scholarly lectures and writings; education and employment background; and other outstanding achievements.

These indicators are not treated equally; some have a higher maximum point value than others.

Step 3: Peer Evaluation by Practice Area

In this step, also known as the “blue ribbon review,” candidates are grouped according to their primary areas of practice.  The candidates in each practice area with the highest point totals from steps one and two above are asked to serve on a blue ribbon panel.  The panelists are then provided a list of candidates from their practice areas to review, rating them on a scale of one to ten.

The Super Lawyers research staff also checks each candidate’s standing with the local licensing authority.  And each candidate is asked to aver that they have never been subject to disciplinary or criminal proceedings.

Final Internet searches are performed on each candidate to ensure there are no outstanding matters that would reflect adversely on the lawyer.  Each lawyer is also contacted to ensure accuracy of all published information.

Final Publication

The final published list represents no more than 5 percent of the lawyers in the state. The lists are published annually in state and regional editions of Super Lawyers Magazines and in inserts and special advertising sections in leading city and regional magazines and newspapers.  All attorneys selected for inclusion in Super Lawyers, regardless of year, can be found on superlawyers.com.

Mr. Dahman and the KJK team are passionate about providing exceptional, client-focused legal services.  They handle commercial litigation, business law, employment, and estate planning matters across Ohio and Michigan. But what makes Mr. Dahman different is that you will know up front how much you can expect to pay for legal services, instead of wondering how much you will end up being charged at the end.

Mr. Dahman is able to do this by leveraging experience, creativity, and hard work, with value-based fee arrangements that provide clients predictability and results. So his services, including litigation, are handled on pre-determined, fixed fee or contingency bases. No hourly billing.

Disclaimer.

Dahman Law joins KJK

Dahman Law attorneys Samir Dahman and Alex Ebert and Legal Analysts Aaron Burnside, Alexis Preskar, and Madison Walker have joined Kohrman Jackson & Krantz LLP‘s Columbus Office.

At KJK, Mr. Dahman will serve as Partner in Charge of the Columbus Office. Samir is passionate about providing exceptional, client-focused legal services through value-based fee agreements. While Samir concentrates on business litigation involving disputes up to $65 million pending internationally, he brings a diverse practice, ranging from transactional work for start-ups to family estate planning to executive employment work. Notably, Mr. Dahman brings his acclaimed alternative/fixed-fee structure blended with an efficient and capable staffing model. He has taken alternative fee arrangements and flat billing to a new level, which KJK intends to further incorporate into its culture. Mr. Dahman has efficaciously led his team for years and he will continue the momentum with KJK’s Columbus office to ensure our success not just today, but for decades to come.

“Samir and his team from Dahman Law are a terrific addition to the KJK family and our Columbus office in particular. We are committed to growth in both our markets, building on our traditions of excellence and creating a model for the future practice of law,” said Jon Pinney, KJK’s Managing Partner.

Mr. Dahman noted “KJK is a special place with a rich history and promising future. That coupled with the exceptional people is why I am so excited about our team joining the firm.”

Mr. Dahman previously practiced at two other large Ohio law firms before starting his own firm. Over the past few years, Samir built Dahman Law into a successful small Columbus law firm. In 2015, Samir was named a Top 5 Lawyer in Columbus and Top 100 Lawyer in Ohio in Super Lawyer Magazine. And for his civic and professional efforts he received a Forty Under 40 Award by Business First. He is licensed in Ohio and Michigan. Samir received a B.A. from the University of Michigan a J.D., from the Ohio State University Moritz College of Law, where he is also an Adjunct Professor.

Dahman Law Helps Strengthening Franklin County’s Ties with Brazil

On July 20, 2015, Dahman Law attorney Kessia Cericola had the opportunity to travel to Brazil for a business and cultural mission to Curitiba, capital of Paraná, and São Paulo, capital of São Paulo. The trip was led by Franklin County Commissioner Marilyn Brown and Tim Sword, President of the Greater Columbus Sister Cities.

Franklin County delegation at Curitiba’s Botanical Garden

Franklin County delegation at Curitiba’s Botanical Garden

The group spent the first four days of the trip exploring Curitiba’s tourist attractions, learning about its internationally acclaimed transit and public safety systems, and interacting with local entrepreneurs. As ambassadors, they shared about Franklin County with several business owners, visited local incubators and attended meetings at the Associação Comercial do Paraná—the local Chamber of Commerce. Kessia also had the opportunity to meet Curitiba Mayor Gustavo Fruet. The Mayor’s staff went above and beyond to make the trip a remarkable experience.

Meeting at Curitiba’s City Hall with Mayor Gustavo Fruet, Franklin County’s delegation and several entrepreneurs

Meeting at Curitiba’s City Hall with Mayor Gustavo Fruet, Franklin County’s delegation and several entrepreneurs

U.S. and Brazilian attorney Kessia Cericola and Curitiba’s Mayor Gustavo Fruet

U.S. and Brazilian attorney Kessia Cericola and Curitiba’s Mayor Gustavo Fruet

The last three days of the mission were spent in São Paulo around Avenida Paulista—the heart of the Latin American economy. There, Kessia attended several business meetings, including a happy hour at The Ohio State University’s Gateway Office and a luncheon for Ohio and Franklin County at the American Chamber of Commerce in Brazil (AMCHAM Brazil). The trip concluded with a lively visit to a jazz and ribs festival at Vila Madalena—an artsy São Paulo neighborhood known for its vibrant murals and street art.

Coincidentally, the mission ended during the same week that Brazil’s president, Dilma Rousseff, arrived in the US for a trip aimed at strengthening economic relationships between Brazil and the U.S.

The U.S.−Brazil relationship specifically that between Curitiba and Franklin County, is rapidly converting central Ohio into an international marketplace and serves as a catalyst for economic growth. Kessia looks forward to cultivating future business relationships by introducing Brazilian businesses to central Ohio and guiding U.S. investors interested in economic opportunities in Brazil. For more information, Kessia can be reached by email at kcericola@dahmanlaw.com or by phone at 614.636.1256. You can also follow her on Twitter @k_cericola.

DL Analyst Alex Ebert Testifies Before Ohio’s House Government Accountability and Oversight Committee

Alex Ebert, an analyst with Dahman Law and recent graduate of the University of Wisconsin Law School provided testimony for Ohio’s  House Government Accountability and Oversight Committee, Tuesday, June 23. The committee was considering a bill to raise Ohio’s cap on alcohol-by-volume (ABV) in beer from 12 percent ABV to 21 percent, a move that local craft brewers say would help them compete with the more than 40 other states where high-ABV beers can be legally brewed and purchased.

While attending The Ohio State’s Moritz College of Law, Ebert researched a law review article exploring how state regulations affect craft brewery entrepreneurship. Dan Ramos, sponsor of House Bill 68, asked Ebert to share his research insights with the committee, including the historical context of the law and considerations regarding public safety.

“As a man born and raised in Wisconsin on cheese, beer and bratwurst, the 12 percent cap on ABV for beer in Ohio struck me as peculiar when I moved here to finish law school last summer. So peculiar that I wrote a law review article on this topic.” Ebert said. “As a former newspaper journalist and present masochist I decided to spend an entire day searching through 2001 and 2002 documents on library microfiche digging for any mention of why the cap was imposed, removed, and then re-imposed.”

Ebert was quoted in Columbus Business First, and in the Akron Beacon Journal.

DL Attorney Kessia Cericola to travel with Columbus Business Mission to Brazil

Dahman Law attorney, Kessia Cericola, will be traveling for a business mission to Curitiba and São Paulo, Brazil from June 20-28, 2015. The trip is being hosted by Greater Columbus Sister Cities and Franklin County’s Commissioner Brown.

Curitiba is located in South Brazil and it is the capital of the state of Paraná. Known for its modern transportation system, Curitiba is the eight most populous cities in Brazil and it recently became sister city with Columbus, Ohio. São Paulo is the seventh largest city in the world and it is the heart of the Brazilian economy.

As a native Brazilian attorney, Kessia will have the opportunity to explore both cities, strengthen relationships and learn more about business opportunities between both countries.

To learn more about Kessia’s experience in Brazil, follow her on Twitter @k_cericola. Updates of her trip will also be published at Dahman Law’s blog.