I enjoyed presenting at the National Business Institute’s continuing legal education seminar Business Law: From Start to Finish on June 27, 2017. My segment was on Clarifying Procedures in Mergers and Acquisitions of Privately-Held Companies. More info can be found here: Business Law Start to Finish
I’m honored and excited to present Allied Universal’s Workplace Violence Seminar on Planning & Prevention on May 10, 2017. More info can be found here: http://pages.aus.com/rs/761-TOW-449/images/052017%20-%20WPV%20Seminar%20Agenda%20-%20Columbus.pdf
I was very honored and excited to speak at the Upper Arlington H.S. Cum Laude Society induction banquet on March 26th. I spoke about resilience and compassion.
Founded in 1906, the Cum Laude Society is dedicated to honoring scholastic achievement in secondary schools. The founders of the society modeled Cum Laude after Phi Beta Kappa and in the years since its founding, Cum Laude has grown to 382 chapters, approximately two dozen of which are located in public schools and the rest in Independent schools. Membership is predominantly in the United States, but chapters also are located in Canada, England, France, Spain, Puerto Rico and the Philippines.
Here is a video of the speech:
Samir Dahman, Partner in Charge of KJK’s Columbus office, has been recognized for his significant contributions to the community and will be presented with the 2017 Distinguished Alumni Leader Award. The award, bestowed by Leadership Upper Arlington, is given annually to an alumnus who has had a positive impact on the Upper Arlington community following their graduation from the adult leadership program.
The award is based on the hard work of Samir – and his wife Amalee – in founding and operating The Berkshire Triathlon which has raised over $45,000 to help children with serious illnesses by supporting Flying Horse Farms, Nationwide Children’s Hospital and Ronald McDonald House Charities through the proceeds of this grassroots event. The Berkshire Triathlon is a tax-exempt 501(c)(3) nonprofit organization registered with the IRS as Two Bears Foundation, Inc.
As Partner in Charge of KJK’s Columbus office, Samir provides leadership to the office’s talented team of partners, associates and legal analysts, while counseling clients on commercial litigation, business law, estate planning and employment law in Ohio, Michigan and federal courts. He is known for taking a sincere and serious approach to every one of his clients’ matters.
Here is the video of my talk about resilience at the Supreme Court of Ohio’s Commission on Professionalism’s Symposium on October 21, 2016:
Having an estate plan is important for all families, but it’s crucial for small business owners. Small business owners have a lot at stake and need to plan for the future to ensure their wishes for their company are carried out. What should you, as a small business owner do to ensure the success of your company long after you’re gone? KJK put together a few tips to make estate planning seem less overwhelming.
First, you need to sit down and think about what you want to happen when you pass away and how you want to provide for your family and business. If you don’t come up with a plan, the laws of intestacy will govern how your property and assets are distributed, which doesn’t often match everyone’s desires. Do you want your minor children to get their share of your assets right away or do you want a trust to hold the assets for your children until they reach a particular age? As you’re thinking about these things, make sure to also give due consideration to the potential for incapacitating lifetime disabilities. If you create a durable power of attorney now, which appoints someone to handle your property and financial matters, it avoids the burdensome process of trying to do so when it’s too late. Durable powers of attorney can be in effect for your entire life, or you can set them to “spring” when you become disabled or incapacitated. You should also appoint someone to handle your healthcare decisions. A healthcare power of attorney will make medical decisions for you if and only if you are unconscious or unable to do so yourself.
Second, you need to make preparations for your company. One of the first things you should do is to make sure your business is structured to protect you from creditors. Operate as an LLC or an S-Corporation, not as a sole-proprietorship or general partner. These structures avoid personal liability, although they are not bullet-proof, hence the need for a comprehensive estate plan. You also need to follow all corporate formalities. These things can help protect you and your company from liability while you are alive and after you pass away. You also need to come up with a succession plan that answers the important questions your business partners and employees may have after you’re gone. Where do you want your stock go when you pass away? Do you want your spouse, children, or other family members to gain control of the business? Your business partners may not want your family involved in the business if they are not already a part of it. In this case, a buy-sell agreement with a funding mechanism (such as an insurance policy on the life of the shareholders) could alleviate your partners’ concerns and still give you plenty of control. No matter what the answers to these questions may be, make sure to avoid a forced sale. Forced sales often yield poor prices.
Third, you should implement an asset protection plan now, before liability arises. Small business owners often sign personal guarantees to acquire assets or credit for their business. Additionally, if the business owns customer-accessible property (for example, a store as compared to an office or warehouse which customers don’t visit), the owners can be liable for accidents, such as slip and falls, which occur on the property. It is important to set up an estate plan now to secure assets because if a business owner waits until after they default on a loan or get sued for customer injury, it is often too late to protect assets. This is because if you make transfers into an estate plan (or to other family members or friends) after liability arises, the court may consider those transfers a fraudulent attempt to hide assets from creditors, and can invalidate those transfers – leaving those assets unprotected. Essentially, once a creditor or injured party is in the picture, it’s too late to prepare, but proactively establishing an estate plan greatly improves your chances to shield your assets. Why allow a creditor to undo all of your hard work when you can easily implement an estate plan now to ensure you’re protected?
It is important to keep in mind that making an estate plan should not be a one-time occurrence. Your estate plan should evolve over time. Every 3 to 5 years you should review it to see if your needs or decisions have changed. Please contact KJK’s Wealth Planning practice group to move forward with an estate plan that is right for you and your business.
Recovering attorney fees is not an easy feat in a lawsuit, especially when defending a case. Here in the U.S., we go by the “American Rule” to determine who pays for legal fees. Under this rule, with the exception of contracts between the parties and statutes providing for the recovery of attorney fees, each party is responsible for its own fees, regardless of who wins the lawsuit. The alternative to this, the “English Rule,” which is used in most other countries, provides that the prevailing party in a lawsuit has its attorney fees paid for by the opposing party. The logic behind the American Rule is to encourage people to seek redress from wrongs and not be discouraged by the threat of having to pay a defendant’s attorney fees if they lose. The English Rule, which I personally prefer, tends to discourage parties from continuing on with litigation – either as a plaintiff or defendant – when they are not confident that they will prevail. In essence, the English Rule discourages questionable litigation, while the American Rule does not penalize it.
So the American Rule makes it significantly more difficult to recover attorney fees, especially for a Defendant. But in a recent matter, I was able to recover my clients’ legal fees defending a civil theft claim because of a fee-shifting provision in the governing statute. Pursuant to R.C. § 2307.61, if the defendant prevails in a civil theft lawsuit, the defendant may recover from the property owner:
- reasonable attorney fees;
- the cost of defending the action; and
- any other compensatory damages that may be proven.
In this case, I represented an insulating contractor and its owner facing four separate claims, one of which was a civil theft claim. Through hard work, thoughtfulness, and the plaintiff’s risky claim, I obtained a complete defense verdict in a jury trial. After trial, I then represented my clients in two appeals of the civil theft claim. Although the Court ruled in my clients’ favor, the Court did not initially award attorney fees to them. That did not discourage me or my clients from prosecuting the appeal – mostly because we knew that we would eventually be awarded our fees. Ultimately, after a hearing on our attorney fees, the Court ordered the Plaintiff to pay our attorney fees associated with the civil theft claim. So not only did I successfully defend his clients, I also saved them thousands of dollars in attorney fees, an accomplishment that is extremely difficult under the American Rule.
This demonstrates that the American Rule can provide fair and just results for defendants through thorough and diligent representation.
I’m honored and excited to present at the Supreme Court of Ohio Commission on Professionalism’s Student to Lawyer Symposium on October 21, 2016. This year’s theme is: “The Resilient Professional: Learning How to Rebound, Adapt & Thrive.” I will be speaking about professional and educational development. More info can be found here: https://www.supremecourt.ohio.gov/Boards/CP/
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.
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.”