When mistakes lead to unfair trials

courtroom witnessA Louisiana district attorney has decided not to defend before the Supreme Court the conviction of an intellectually disabled teenage boy charged with robbery and murder. The Washington Post reports that prosecutors in the case failed to provide the teen’s attorneys with recorded witness statements that could have undermined prosecution witnesses, including the only person who claimed to be a witness to the shooting. The Post reports that the recorded statements suggested that the teen may have been set up. Mary McCord and Douglas Letter, two litigators and visiting professors at Georgetown University Law Center, examine the ramifications of prosecutorial mistakes and withholding evidence in this analysis at The Post.

Video: The Supreme Court’s ruling on employee arbitration

Opponents of arbitration suffered a setback at the Supreme Court Monday when the justices ruled 5-4 that companies can force employees into individual arbitration instead of taking collective action. The ruling could affect up to 25 million employment contracts, and gives employers the right to decide wage dispute and other possible issues like job discrimination in arbitration instead of litigation, according to The Washington Post. Robert Barnes with The Washington Post explains the significance of the ruling in this video.

Podcast: DNA, genealogical websites and privacy

DNADNA posted on a genealogical website helped investigators finally track down the man they believe is the Golden State Killer. While prosecutors and law enforcement personnel are praising the ways new DNA techniques can help identify suspects, defense attorneys and DNA experts say they’re concerned over privacy and ethical questions that have been raised. In this Lawyer 2 Lawyer podcast from Legal Talk Network, hosts Bob Ambrogi and Craig Williams talk to DNA attorney Bicka Barlow and Alameda County District Attorney Nancy O’Malley and discuss the issues raised by genetic identification.

Should they recuse themselves?

Attorney General Jeff SessionsEver wonder whether a judge, prosecutor or other official should recuse themselves from a case? Now there’s an easy way to figure it out.

The American Bar Association has posted a new ABA Legal Fact Check that explores when a prosecutor should consider stepping aside from a case because of a potential conflict of interest.

Late last month, Attorney General Jeff Sessions was subjected to a sharp rebuke from Sen. Patrick Leahy, the ranking Democrat on the U.S. Senate Appropriations Committee, when he declined to say at a hearing whether his recusal from campaign-related investigations also extends to the federal inquiry into President Donald Trump’s personal lawyer Michael Cohen.

The new fact check explores the federal regulations related to recusal and under what circumstances a prosecutor is required to recuse himself/herself from a matter. Prosecutors are not automatically required to step aside in political matters unless a clear conflict exists under state model rules or federal regulations.

ABA Legal Fact Check seeks to help the media and public find dependable answers and explanations to sometimes confusing legal questions and issues. The URL for the site is www.abalegalfactcheck.com. Follow us on Twitter @ABAFactCheck.

NTL member Michelle Simpson Tuegel helped reach $500M settlement with Michigan State

Michelle TuegelAttorneys Mo Aziz of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz and National Trial Lawyers member Michelle Simpson Tuegel of Hunt & Tuegel in Waco, Texas announced they are among the group of attorneys representing survivors of former Michigan State University doctor Larry Nassar in lawsuits against Michigan State University which resulted in a global settlement in principle totaling $500 million dollars.

The settlement applies to only Michigan State University and MSU individuals sued in the litigation. It does not address claims against USA gymnastics, the United States Olympic Committee, Bela and Martha Karolyi, Twistars, John Geddert, or any other parties.

Attorney Mo Aziz said, “This historic settlement came about through the courage of over 300 hundred young women who stood up and spoke out, including our clients. We are honored to represent them.” Attorney Michelle Simpson Tuegel said, “We are hopeful that the legacy of this settlement will be something that not only brings healing to our clients, but also changes the culture in such a way that little girls and young women will not have to face the threat of sexual assault in sports and in our schools. The safety of our female athletes in this country should be a priority over their performance.”

Podcast: An audit checklist for your law firm’s website

smartphoneWhen’s the last time you audited your law firm’s website? In this webcast from Lawyerist at Legal Talk Network, guest Karin Conroy talks to Aaron Street and Sam Glover about ways you can make your website more functional and effective. They discuss tips on design, SEO, content and everything you’ll need to perform your own website audit. Learn about website and SEO tools you can use to make your firm’s website better, faster and more effective.

Reduce Lawsuit Risks and Minimize Tax Liabilities of Owning Real Estate

commercial real estateBy David B. Mandell, JD, MBA & Carole C. Foos, CPA

While real estate is a common investment, few real estate owners have implemented the proper legal structures to get the most out of their investment.  As a result, some real estate owners, including many attorneys, expose themselves to unnecessary lawsuit risks and pay far too much in unnecessary taxes on their real estate investments.  The purpose of this article is to show you how to own real estate so that you may be able to protect yourself from real-estate-related lawsuits.  Perhaps most importantly, the proper structure could more than pay for itself through the tax savings you may realize.

The types of real estate we are referring to include rental residential or commercial properties, the law practice building, or even raw land.   The merits of real estate as an asset class are beyond the scope of this article, but the structure to most efficiently benefit from these holdings is universal.

The last thing you want to do is invest in an asset that generates a lawsuit, threatening all of your other wealth.  Each year, millions of lawsuits are filed against the owners of real estate throughout the U.S.  They are brought by lenders, tenants, guests, lessees and even trespassers.  Let’s look at an example of a real estate lawsuit risk:

Rob the Real Estate Owner is Victimized

Rob owns several apartment buildings. He owns some in his own name and some in his wife’s name.  The total value of the real estate is $4,000,000 and there is about $2,000,000 of debt on the properties.  The rental income more than covers the debt service and Rob and his wife make a small profit every month.  Rob also has a home worth approximately $1,500,000 with a mortgage of about $500,000.

After an unfortunate event at one of the properties, Rob was named in the lawsuit. Though Rob wasn’t even on the property at the time of the event, Rob ultimately lost a judgment for $3,000,000.  His liability insurance covered $1,000,000 of the loss, but he had to come up with $2,000,000 himself.

This left Rob with a dilemma.  Sell all his real estate properties as part of a fire sale and mortgage his house for the remainder of the settlement or sell his house and further mortgage his real estate at relatively unattractive loan rates.  In either case, Rob was unhappy about the consequences as both options resulted in a loss of the equity he had built over 20 years.  In the end, Rob lost his rental properties and his home.

What Could Rob Have Done Differently?

If Rob had gotten the right advice, he could have done a few things to protect himself.  We will show you a few options here that may be helpful.

Review his Property and Casualty (P&C) Insurance

In this case, Rob did not have adequate insurance protection. Had he had the right coverages and limits, either through a “slip and fall” type policy, landlord insurance, business umbrella or other coverages, his personal liability might have been severely reduced… if he had any at all. Also, such coverages can be extremely inexpensive, given their high coverage limits.  

Separate Properties into LLCs

A limited liability company (LLC) is a legal entity that affords both inside-out and outside-in protection.  In other words, if you had one LLC for each piece of property, a lawsuit arising from one property could only threaten the equity in the property inside that LLC. The judgment would not extend to the assets in other LLCs.  Further, if Rob had been sued personally for an accident, for professional malpractice, or for any other personal claim, the LLC would provide a high level of protection from that lawsuit even though Rob and his family own all the shares of the LLC.  This is a popular strategy for real estate owners in the U.S.

Separate LLCs with Management Company

To take the above strategy to the next level, many savvy real estate owners use a management company to manage the LLCs that own properties.  This technique can provide significant tax and retirement advantages, as the management company can be structured as a different type of tax entity from the LLCs.  This allows the owner to get the “best of all worlds” in terms of the taxation of the entities involved.  One benefit the management company can provide the real estate investor is to sponsor qualified or non-qualified retirement plans.  These plans can often be layered on top of existing retirement plans at the practice level, may not require contributions for practice employees, can reduce the taxes on real estate generated income, and can ultimately increase retirement income for the owners.

Conclusion

If you now own significant real estate, or plan to in the future, you will want to maximize the protection of your valuable personal and practice assets (not just the real estate) and minimize unnecessary tax liabilities.

SPECIAL OFFERS:  To receive a free hardcopy of Wealth Management Made Simple, please call 877-656-4362. Visit www.ojmbookstore.com and enter promotional code NTL01 for a free ebook download of this book for your Kindle or iPad. 

David B. Mandell, JD, MBA, is a former attorney and author of more than a dozen books, including Wealth Management Made Simple. He is a principal of the financial consulting firm OJM Group www.ojmgroup.com, where Carole C. Foos, CPA is a principal and lead tax consultant. They can be reached at 877-656-4362 or mandell@ojmgroup.com

 

Disclosure:

OJM Group, LLC. (“OJM”) is an SEC registered investment adviser with its principal place of business in the State of Ohio.  OJM and its representatives are in compliance with the current notice filing and registration requirements imposed upon registered investment advisers by those states in which OJM maintains clients.  OJM may only transact business in those states in which it is registered, or qualifies for an exemption or exclusion from registration requirements.  For information pertaining to the registration status of OJM, please contact OJM or refer to the Investment Adviser Public Disclosure web site (www.adviserinfo.sec.gov).

 

For additional information about OJM, including fees and services, send for our disclosure brochure as set forth on Form ADV using the contact information herein.  Please read the disclosure statement carefully before you invest or send money.

 

This article contains general information that is not suitable for everyone.  The information contained herein should not be construed as personalized legal or tax advice.   There is no guarantee that the views and opinions expressed in this article will be appropriate for your particular circumstances.  Tax law changes frequently, accordingly information presented herein is subject to change without notice.  You should seek professional tax and legal advice before implementing any strategy discussed herein.

 

 

NTL member Juan Dominguez wins record verdict in CA car crash case

juan dominguezTrial lawyers for The Dominguez Firm won a record-breaking verdict in Riverside (California) Superior Court when the jury awarded their client $11,779,154.77 in damages for an auto v. auto injury case.

In early July 2015, Mr. Oscar Esparza returned home to introduce his girlfriend, Cristal and her two children to his parents, knowing that he planned to propose to her soon after. On July 8, 2015, as the happy couple and her children began their drive back to Colorado in his Mitsubishi Eclipse, they came to a sudden stop caused by a third vehicle on northbound Interstate 15 near the 91 merge. Unfortunately, a flat-box truck owned and operated by Win Distribution, Inc. plowed into the back of Mr. Esparza’s car.

The force of the impact was severe to the back of the Eclipse and damaged Mr. Esparza’s seat back. Mr. Esparza took the brunt of the impact, suffering cervical spine injury as well as a mild-complicated traumatic brain injury that put him in the hospital for six days. The defense alleged that the third vehicle and Mr. Esparza were at fault for the accident and injuries.

The general damages portion of the verdict was reduced by 20% for alleged negligence by third vehicle involved in the accident. Still, the result for Mr. Oscar Esparza will much exceed $10 Million dollars and could exceed $12 million dollars after post trial motions for interests, costs and penalties. The verdict is considered to be the highest traumatic brain injury verdict award in Riverside Superior Court in 2018.

“This was a hard-fought case in which defendant tried to introduce irrelevant matters into evidence and tried to blame our client and others for the fact they rear-ended him,” said lead trial attorney Olivier Taillieu of The Dominguez Firm. “At the end of the day, our team and I were able to keep the trial court and jury focused on the relevant, pertinent issues and we were able to get our clients justice, especially Mr. Esparza, who is most deserving.”

The nationally recognized attorney Juan Dominguez of The Dominguez Firm, said, “This was a hard-fought case for two and a half years, including a five-week trial that included testimony from numerous leading experts. Gladly, justice prevailed.”

The Dominguez Firm is a powerhouse injury law firm serving Greater Los Angeles since 1987, with over $500,000,000 recovered for the injured. The Dominguez Firm is staffed with award-winning attorneys and is one of the most recognized and successful law firms in Southern California. Recent 8-dollar-figures personal injury results include: $29 Million Jury Verdict, $12.5 Million settlement, $11.7 Million Jury Verdict, and $10 Million settlement.

NTL member Brian McCormack gets $3.5M for rape victim

Brian McCormackNational Trial Lawyers member Brian McCormack of Callahan & Blaine has secured a $3.5 million verdict on behalf of a California woman who was raped after her assailant got a key to her hotel room from the front desk.

On April 19, 2014, the plaintiff, a 28-year-old clerk at BevMo!, went to visit her boyfriend, who was staying at a Holiday Inn hotel in Frazier Park. While she was asleep in her boyfriend’s hotel room, Jonathan Padilla, a co-worker of the boyfriend who was also staying at the hotel, impersonated the boyfriend to obtain a key from the front desk clerk, Lori Anne Scharon. Padilla then used the key to enter the boyfriend’s room while the visiting girlfriend was asleep. The girlfriend awoke as Padilla raped her, and Padilla fled back to his own room. Police later arrested Padilla at the hotel. Padilla pleaded guilty to rape and was sentenced to six years in prison. The 28-year-old girlfriend sued Padilla; Sharon; and the believed operators of the Holiday Inn hotel, Holiday Inn Express Frazier Park, Holiday Hospitality Franchising Inc., Holiday Hospitality Franchising LLC, Hospitality Inc., Intercontinental Hotels Group Resources Inc., and MRSS Hospitality Inc. Several franchisors obtained summary judgment on the case against them, and Padilla, who was appearing in pro per, was dismissed from the case during trial. Thus, the matter continued against Scharon and her employer, MRSS Hospitality Inc. Plaintiff’s counsel contended that the hotel’s staff provided Padilla with the key to the plaintiff’s boyfriend’s hotel room without obtaining proper identification. The plaintiff’s liability expert opined that Scharon’s provision of the room key to Padilla was a violation of the standard of care and of hotel policy. Counsel for Scharon and MRSS Hospitality claimed that Padilla’s criminal conduct was not foreseeable and that the plaintiff and her boyfriend did not engage the secondary locks available to them in the room.

The plaintiff was raped, but she did not seek medical treatment on the night of the incident. She was later diagnosed with post-traumatic stress disorder and subsequently underwent psychiatric treatment and cognitive behavioral therapy. The plaintiff claimed that she will suffer the effects of the incident for the rest of her life and that she can no longer feel comfortable sleeping at or visiting hotels. She also claimed she became fearful and introverted as a result of the incident. The plaintiff’s father testified that his daughter’s personality had entirely changed since the incident. The plaintiff’s psychiatric expert opined that the plaintiff suffers from PTSD and that she will suffer PTSD and emotional distress for the rest of her life, as she was “triggered” by men who looked like Padilla, by hotels, and by sleeping. There were no special damages requested at trial. The defense’s psychiatric expert concurred that the plaintiff suffers from PTSD, but opined that the plaintiff should recover with a full course of cognitive behavioral therapy. Defense counsel contended that the plaintiff did not comply with the psychiatrist’s recommendations regarding medication and that she did not complete therapy. Counsel further argued that the plaintiff’s alleged damages were excessive.

The jury apportioned 40 percent liability to Padilla, and 60 percent liability to Scharon and her employer, MRSS Hospitality, via vicarious liability. It also determined that the plaintiff’s damages totaled $3.5 million. After apportionment, a judgment was entered against to Scharon/MRSS Hospitality in the amount of $2.1 million.

The trial lasted ten days, and it took the five man, seven woman jury two days to reach a unanimous verdict. Trial information provided by VerdictSearch.

Webinar: The Facebook advertising playbook for law firms

What are the most effective ways to market your law firm on Facebook and other social media outlets? This on-demand webinar with Crisp CEO Michael Mogill shows you how you can leverage Facebook to generate leads, raise awareness for your firm, and take your marketing to the next level.  Whether you’re a Facebook expert or brand new to the platform, this webinar will show you the ins and outs of setting up and optimizing your law firm’s Facebook ad campaigns to create an incoming stream of quality leads. Click here to watch the webinar.

If you don’t have time to watch the webinar, Crisp has also created a free eBook, The Social Media Cheat Sheet for Law Firms. It covers the ways in which attorneys can set up and optimize their social media profiles on Facebook, YouTube, Twitter, LinkedIn, and Instagram.