Ask Our Lawyer June 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

GOING TO A JURY

I get a lot of calls from people who have been summoned to jury service. Here are some thoughts on what to expect.

Why is jury service so important?

When you are called to be a juror, you become the most important person in our legal system. In the United States, our justice system is based on the belief that a just and fair result in court comes from having disputes settled by our fellow citizens. We have an obligation to our fellow citizens to honor the summons and appear at court. Some cases may be more important than others, but to the parties involved, their case is very important, and they deserve to have it decided by honest and impartial jurors.

How are jurors selected?

Usually, persons are called at random for jury service from the list of registered voters in a court’s geographical area. In some counties and in federal courts, the list of registered automobile drivers also may be used. Jury trials are held in the United States district courts, the county circuit or superior courts, common pleas court, the municipal courts, or county courts.

What are the different types of juries?

Most jurors will be selected to serve on a petit jury, one that is selected to hear and decide a particular case. If the case is a criminal trial involving a felony (a more serious type of crime), the law requires 12 jurors. In a civil case, a smaller number of jurors (usually six or eight jurors) are selected.

Unlike the petit jury, a grand jury hears evidence about alleged crimes, usually felonies, and only decides whether or not a person should be indicted and tried for committing a crime. Also, unlike the petit jury, the grand jury does not decide guilt or innocence. If you are summoned to court to be selected for service on a grand jury, you will probably serve for a longer period of time than if you serve on a petit jury, although in most smaller counties, grand jury duty may only be once or twice a month for a three or four-month period.

What happens when I appear for jury service?

When you arrive at the court, you are directed to a particular courtroom or to an assembly area. Some courts provide a brief orientation talk or video to help acquaint you with the system. All prospective jurors take an oath or affirm that they will answer truthfully and fully questions posed to them by the judge and the attorneys during the selection process.

You are also told a little bit about case so that it can be determined if any past experience or bias might make it hard for you to be fair. You also have an opportunity to tell the court about anything else that might impact your ability to sit as a juror, including health problems, employment situations, and other obligations in your life. You have the right to respond to questions confidentially to the judge and attorneys, if you wish.

Generally, each side in a case has the right to ask that a certain limited number of jurors be excused without giving a reason. This is called a peremptory challenge. Each side also can make an unlimited number of challenges for cause, or for good reason. When attorneys make these challenges, it is not their intent to personally embarrass potential jurors, but to ensure that they engage jurors they believe will evaluate the case as fairly as possible for their clients.

Can I get out of jury service?

Where there is a will, there is a way, as they say. However, serving will give you an “up close and personal” view of the judicial system. Most states provide exemptions for certain occupations or conditions that would interfere with a juror’s ability to serve. If you don’t meet one of the exemptions, you will have to show up for duty and participate in the process.

It should be noted that serving on a jury will be one of the most patriotic events of your life and with representative participation in jury service by the populace having declined over the last several decades, jury service is more important than ever.

CRAZY IS AS CRAZY DOES – LOANING YOUR MOTORCYCLE

Q: My buddy wants to borrow my bike for a ride to Florida. He lost his license a couple of years ago and says he just got it back. Although he’s been riding for years, he’s never gotten his motorcycle endorsement and has had several accidents. He told me his insurance would cover the bike, but I’m kind of nervous about letting him on my bike.

A: And you should be, too. As we all know, most riders are extremely safety conscious, taking care to make sure that their bikes are in tip-top shape and that their skills remain sharp and focused. Unfortunately, there are those who don’t take those responsibilities seriously. While we are generally not our brother’s keeper, if we allow someone who shouldn’t be riding on our bike, his problem becomes our problem.

Generally, a vehicle owner is not responsible for the actions a person who is operating the vehicle. However, most states also recognize cases of negligent entrustment, which happens when an owner allows someone to operate the owner’s vehicle when that person is not qualified to do so. Allowing your buddy to take your bike may make you responsible for any accident he causes, if it turns out that he was unqualified and that we should have known that he was unqualified.

REVENGE FIRING – IS IT LEGAL?

Q: I work at a local manufacturing shop. I got hurt on the job recently, and filed a worker’s comp claim. Shortly after I returned to work, I got fired, and I don’t think they had any reason. Also, when they fired me, they didn’t pay me my accrued vacation pay. What can I do?

A: Maybe quite a lot. One of the first issues to consider is the reason or reasons you were fired. Generally, employers will give some explanation as to why an employee was being fired. Most states, including Ohio, Indiana, and Illinois, have provisions in their statutes that forbid so-called “retaliatory discharge,” or being fired for filing a worker’s compensation claim. While it may be obvious to us to make the connection between the worker’s comp claim and the firing, the employers will often attempt to justify the discharge with evidence that there were other reasons for the discharge. Good record-keeping and sympathetic witnesses can help overcome this hurdle. Penalties for retaliatory discharge can include back pay, reinstatement, and attorney’s fees. In addition, the wage claim statutes in Indiana and Illinois also require that, upon discharge, employees are compensated for accrued vacation time, usually by the next scheduled payday. Failure to do so may lead to additional penalties and an award of attorney’s fees. The answer is much less clear under Ohio law and may depend on whether the employee is covered by a collective bargaining agreement or employed by a state or municipal agency. There may be disagreements, however, over whether the time has been accrued or not, or how much has been accrued. It is important that you speak to someone about these issues as soon as possible to determine your rights and remedies.

LITIGATION FUNDING, OR HOW DOES AN INJURED BIKER PAY THE MORTGAGE WHILE THE CASE IS PENDING?

Everyone knows that litigation can be expensive… very expensive. Often, plaintiffs with a strapped budget have a much harder time riding out the storm until a settlement is reached, potentially causing them to settle for less than their case is really worth. Plaintiffs that have sustained injuries and are now disabled may very well need money to live on during the interim period before they receive their settlement. Moreover, an insurance company, or other wealthy litigant, will probably be in no hurry to settle until they reach an agreement more in their favor, regardless of how long that may take. Regretfully, this is where litigation funding may be of service.

Litigation funding companies may advance a plaintiff money for living expenses, medical care, or for whatever else the money is needed, for a stake in the final settlement. This type of lending is non-recourse, meaning that in the case the plaintiff loses, they owe nothing to the funding company. They are only liable for repayment from the settlement money they receive. Of course, this is not all bliss, and should only be used as a LAST RESORT. The interest a client will owe on the advancement will reach what feels like adding insult to injury, as the interest rate can exceed 100% with no cap.

These companies decide interest rates and the amount they are willing to advance based on the merits of the case. So the stronger the case, the better deal the plaintiff will receive. The longer the case takes to settle, the higher the effective interest rate is going reach, which begs the question, “does this really level the playing field?” Well, maybe in some cases, and maybe not in others. The industry now lends plaintiffs over $100 million a year and remains unregulated in most states. Litigation funding companies are free to ignore laws that protect consumers who borrow from lenders and assert that they are not lenders, but investors. This argument seems to have persuaded regulators in many states. The biggest issue with legal financing is a general lack of transparency in transactions and providing full disclosure to plaintiffs. The industry has recently taken steps to demystify their respective businesses by volunteering to be regulated—albeit on their own terms.

For now, we think the verdict is still out on litigation funding. In the meantime, here are a few pointers if this seems like an option you might want to pursue:

  • Talk with your attorney and discuss options before making any decisions.
  • Exhaust all other means of financing first, as this should be a last resort.
  • Make sure the lender is a licensed financial institution.

Ride Safe & Free,

Rod Taylor


ABATE Legal Services

abatelegal.com

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery and expenses as approved by client, consistent with and conforming to applicable state law. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery. ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number. Call us at (800) 25-RIDER. Questions? Submit them to RodTaylor@abatelegal.com © 2015.

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