Gelwicks Law - Thomas Gelwicks

Law Offices of Thomas Gelwicks

Suite 212
10945 Reed Hartman Hwy
Cincinnati, OH 45242
Phone: (513) 421-6688
Fax: (513) 891-5941

The Legal Calculus

Pleadings and Judgements

Early Joining in Declaratory Judgment is Key

A person must be joined in a declaratory judgment action early if he or she is legally affected by it.

Post Judgment Intervention A Wiley Trickster

Post judgment intervention may be allowed in an extraordinary case when it is the only way to protect the intervention of rights.

Intervention as of right may be granted at a time in the proceedings when permissive intervention would not.

Never Overlook Prejudgment Interest

For the purposes of prejudgment interest, a lack of “good faith” is not the equivalent of bad faith.

A close examination of RC 1343.03 (C) underscores the following touchstones for analysis of whether a party has not failed to make a good faith effort to settle a tort action.

  • Did the party fully cooperate in the discovery proceedings?
  • Did the party rationally evaluate his risks and potential liability?
  • Did they attempt to unnecessarily delay any of the proceedings?
  • Did they make a good faith monetary settlement offer or respond in a good faith to plaintiff’s offer?

Importantly, it is not necessary for all four criteria to be denied in order to find a lack of good faith.

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Nuisance Actions

Negligent Road Maintenance

Park authorities are usually held as political subdivisions of the state. More often than not, there will be a finding of grant of immunity under the Political Subdivision Tort Liability Act. Ordinarily, the statutory exceptions of defenses are limited against park authorities where negligent maintenance of roads is alleged.

Study the provisions at RC 2744.02 (A) (1), (B), 2744.03. As always, the notice requirement is a high bar if there was failure to remove obstructions from the public road.
With the prior version of the Political Subdivision Tort Liability Act, the political subdivision must have had either actual or constructive knowledge of the nuisance. The knowledge element must be struck head-on, and the experts must be prepared to address the specific danger on the road, before liability can be imposed.

If the argument is to be one of “constructive knowledge,” the nuisance must be shown to have existed in such a manner that it could or should have been discovered. Additionally, the defect must have existed for a sufficient length of time to have been discovered. In accordance with the 2002 amendment at RC 2744.02 (B) (3), the discovery must have created a reasonable apprehension of the potential danger.

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Negotiating Techniques

The Silent Negotiator

There has been a spate of negotiation books, over the past decade, which discuss the so-called Asian bargaining strategies.

It is more common that I encounter opponents who attempt to emulate the Asian model, which is to use silence as a weapon. The ploy is to make the other party feel uncomfortable, thus encouraging them to keep talking. It the adversary is taken off their script even briefly, the argument goes, the odds are they will become distracted or will divulge more information.

The shrewdest negotiators I know listen a lot and speak less. Their ability to ask questions is refined, and it keeps the other side talking. But they do not attempt a naked strategy of going silent. The best technique is to have carefully planned questions, but to ask them in a more relaxed and casual manner. This subtly keeps you in better control of the discussion dynamics.

In any negotiation there is a rich subtext, and to that attention must be paid.

Be wary of opponents who introduce tangential issues. They are using red herring techniques to distract and to tire you. Later they will often concede a largely irrelevant point they previously emphasized, to lend the appearance they […]

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Negligence Principles

Negligence Per Se

Proof of duty, as required to support a claim of negligence, may be established by:

  • Common law
  • Legislative enactment
  • Particular facts and circumstances of the case (in the absence of legislative enactment or judicial decision)

The Nuance of Negligence Per Se

Not every violation of a provision of law or ordinance constitutes negligence per se. If a legislative enactment commands or prohibits the doing of a specific act, a violation generally will constitute negligence per se. However, where a legislative enactment for the public safety sets forth a rule of conduct in general and abstract terms, liability will be determined by the due care test. The application of this revolves around how a reasonably prudent person would have managed under the same circumstances.

Negligence per se has no application where the duties are so vague that determination of reasonableness is up to jury ascertainment. This nuance sometimes gets lost in the heat of argumentation. Negligence must be found by the jury from the facts, conditions, and circumstances disclosed by the evidence. Negligence per se is a violation of a specific requirement of law or ordinance.

Negligence Per Se and Comparative Negligence

Even if there is a finding of negligence per se, a defendant may still show […]

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Litigation Strategies

Establishing the Prima Facie Case

Establishing a prima facie case of negligence is not a sufficient basis for summary judgment.

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Limitations of Actions

Relations Back Amendment Pleadings

It is important, when drafting complaints, to remember the primary purpose of the rule governing relations back of amended pleadings. It is to preserve actions that, through mistaken identity or misnomer, have been filed against the wrong person.

Consult the wording on action limitation at Rule 15 (C) in the Rules of Civ. Proc. Whether the amendment will be allowed is at the discretion of the court.

Amendment Requirements Require Strategic Precision

Civ.R. 15 (C) sets forth 3 requirements that must be met before an amendment “changing the party” can relate back to the original pleading. First, the claim in the amended complaint must arise “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Second, the party sought to be substituted by the amendment must have received notice of the action “within the period provided by law for commencing the action,” so that the party is not prejudiced in maintaining a defense. Third, the new party, “within the period provided by law for commencing the action,” knew or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against the new […]

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Judicial Concerns

Abuse of Discretion and Its High Standard

It is well known that the trial court is vested with the discretion to decide whether a party has made a good faith effort to settle the case. Beyond this, there is no way the trial court’s decision will be overturned unless plaintiff’s counsel can show abuse of discretion.

Since these battles are always very acrimonious it is easy to forget, in the fray, the very high standard required to establish abuse of discretion. It is more than an error of law or judgment. Counsel usually must show that the court’s attitude was unreasonable, arbitrary or unconscionable.

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Insurance Companies

Insolvent Insurers

RC 3903.02 establishes a priority of classes for payment of claims against an insolvent insurance company. However this section does not authorize the payment of interest on any claim.

The Insurers Supervision, Rehabilitation and Liquidation Act does not expressly authorize payment of open-ended interest to all claimants. RC 3903.02 (D) explicitly identifies the purpose of the Liquidation Act as the “protection of the interests of insureds, claimants, creditors and the public generally.”

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Expert Witness

The Interplay Between Civ. R. 35 and Civ. R. 37

Discovery sanctions apply only to the specific instances enumerated in the discovery rule. They do not apply to the attorney fees and expenses incurred by a party in obtaining an order for a physical or mental examination.

Civ.R. 35 allows a party to seek an order requiring an opposing party to submit to a physical or mental examination “for good cause shown.” If the trial court orders a party to submit to a physical or mental examination and he or she refuses to comply, the party may be subject to sanctions under Civ.R. 37 (B) (2), including the payment of the other party’s reasonable attorney fees. However, there is nothing in Civ. R. 35 that authorizes a trail court to award a party his attorney fees and expenses in obtaining such an order.

The Civil Rules do not provide for an award of expenses associated with making or opposing a motion to compel attendance at a defense mental or physical examination. Failure to comply with an order may be sanctioned. However there is no provision for awarding expenses to procure the order.

The drafters of the Civil Rules clearly and deliberately chose not to […]

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Argumentation

Checklists Curb Random Errors

Lawyers who argue law for a living rely heavily on checklists. Trial Practice Checklists by Danner and Toothman remains a classic in the field.

Now an interesting article has appeared in the Journal of the American Medical Association. It states that the medical community is now using checklists in a new way, to empower operating room teams.

Increasingly, any member of the surgical staff can vocalize concern as to management of the patient. Recent research at 74 Veterans Affairs hospitals was conducted regarding patient safety in surgical suites. It was found that those surgery teams using checklists, for everyone in the operating room, improved the death rate. This rate dropped 18 percent on average, over three years.

Peter Pronovost, a professor at Johns Hopkins Medical School, is the author of a well received book on medical checklists. His lists have been found to work best when a strong sense of team work pervades the operating room. Traditionally, ORs have been extremely hierarchical and even authoritarian venues. What is being found now is that when everyone has input into the patient’s safety, the results are transformative. The older model, of an authoritarian and punitive lead surgeon, is slowly vanishing.

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