Copyright © 2013 by Charles E. Boyk,           Michael A. Bruno, and Nicholas M. DodoshAll rights reserved. No part of thi...
TABLE OF CONTENTSPage:	 TOPIC:7	     I.	     Introduction To This Book9	     II.	    The Story Of August 9, 2010	Lesson To...
19	    V.	   The Investigation, Legal Research, And Finding Our Expert19		 Learning That The Diving Board Did Not Comply W...
35		B. The Fight Over The Confidentiality Clause37	    VII.	Dealing With Liens: Maximizing The Amount Of 	             Mon...
48	 X.	 Joshua’s Post-Hospital Treatment And The Impact On 			      School And Family	 Be Learned #15: Even After A Settle...
I.	    Introduction To This Book          What is your worst nightmare? What is the one thing on Earth that youwould never...
may happen to you in the future, because all too often this is the twisted “game”that insurance companies and defense lawy...
II.	 The Story Of August 9, 2010         Lesson To Be Learned #1: I Can Personally Relate To That         Moment That Chan...
When clients or potential clients such as you come into my office forthe first time to discuss their case, I am in a uniqu...
C.	 Arriving At The Hospital         When I arrived at the emergency section of the hospital, I met up withJoann. My son, ...
D.	 Seeing My Eight Year Old Son In Intensive Care        We were eventually allowed to visit Josh in his intensive care r...
III.	 The Hospital: The Story Of What Happened As Time Went On        Lesson To Be Learned #2: Your Road To Recovery Can B...
B.	 Back from the Brink: Slow Improvement         Fortunately, the second surgery was successful at stopping the brainblee...
should be right up at the top of your list. Read on to learn why even though I ama lawyer, one of the first things I did a...
IV.	 Grieving and Reflecting: How Did This Happen To My Son?         Lesson To Be Learned #3: While Grieving Is Normal And...
Although you may not be an attorney, you may be asking some ofthese questions too relative to your case, and that is impor...
Rest assured that Mike and Nick were working overtime to promptlyfind answers to these questions. I can’t imagine having a...
V.	 The Investigation, Legal Research, And Finding Our Expert        Lesson To Be Learned #4: You Need To Make Sure That A...
LAW AND ANALYSISOAC 3701-31-04, “Design requirements applicable to all public swimming pools,public spas, and special use ...
Lesson To Be Learned Recap: You Need To Make Sure That         A Careful Investigation Of The Law And The Facts Of The    ...
The reason that the defense would try and get us to do this is simple.Under Ohio law, there is something called the “open ...
A:	      I never observed that, nor considered it significant or                 insignificant. I can see where it’s a rel...
We used the owners’ testimony to argue that if the hazardous conditioncreated by the unguarded section of the diving board...
C.	 The Decision To Find An Expert Beyond County Health Inspectors         Lesson To Be Learned #6: You Need To Ask The Ri...
brief summary of what we actually learned through taking the depositions of allthe former workers. This will give you the ...
The man who was the pool manager at the time of Josh’s injury beganworking at the club in 2006 and continued to do so unti...
foot and four inches short of the edge of the swimming pool, which exposeddivers to a significant risk of a fall onto the ...
Unfortunately, Josh took an odd step in the precise one foot four inch area ofthe board where there were no guardrails, he...
E.	 Getting A True Expert’s Perspective         Lesson To Be Learned #8: Finding The Right Expert For Your         Case Ca...
My firm immediately retained Dr. Griffiths prior to filing suit, flew him toOhio, and had him personally inspect the pool ...
operators and so forth, and who’ve studied it. They’re                  the only ones who are going to appreciate the risk...
As you can see, Dr. Griffiths’ testimony was critical. In any case thatmy firm handles, one of the first big questions we ...
VI.	 Mediation, The Settlement Negotiation Process, And          Confidentiality         Lesson To Be Learned #9: Going In...
for the rest of this life. With this testimony in hand, the game plan was to get a“demand letter” sent to the defense lawy...
willing to accept their offer so long as they were willing to “tone down” theconfidentiality agreement to something more r...
VII.	Dealing With Liens: Maximizing The Amount Of Money              That Ends Up In Your Pocket         Lesson To Be Lear...
they will reduce their lien. This is because the health insurance companyrealizes that if the attorney had not put forth t...
VIII.	 A Structured Settlement To Last A Lifetime And Probate         Court Settlement Approval	        A.  tructuring The...
let’s say a young child is seriously injured in a car accident. With a structuredsettlement, the settlement money is autom...
payments. That’s different than parents who try to manage the settlement ontheir own because there aren’t a whole lot of i...
Lesson To Be Learned Recap: Your Attorney Can Advise You         On The Ways That You Can Protect The Settlement Money    ...
additional time to the process, not to mention the need for additional legalexpertise. Unfortunately, this can’t be avoide...
IX.	 Switching Roles: The Long-Time Attorney Becomes The          Client         Lesson To Be Learned #13: Because Your At...
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
I've Stood in Your Shoes: The Story of an Injury Lawyer
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I've Stood in Your Shoes: The Story of an Injury Lawyer

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The personal account of Ohio accident attorney Charles Boyk as he experienced the other side of personal injury law: being a client himself!

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I've Stood in Your Shoes: The Story of an Injury Lawyer

  1. 1. Copyright © 2013 by Charles E. Boyk, Michael A. Bruno, and Nicholas M. DodoshAll rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author(s). Printed in the United States of America ISBN-10: 0615782051 ISBN-13: 978-0-615-78205-8 Charles E. Boyk Law Offices, LLC 405 Madison Avenue, Suite 1200 Toledo, OH 43604 www.charlesboyk-law.com
  2. 2. TABLE OF CONTENTSPage: TOPIC:7 I. Introduction To This Book9 II. The Story Of August 9, 2010 Lesson To Be Learned #1: I Can Personally Relate To That Moment That Changed Your Life – That Surreal Moment Where You Couldn’t Believe This Was Happening.9 The Phone Call I Will Never Forget A.10 B. Getting In Contact With My Wife11 Arriving At The Hospital C.12 Seeing My Eight Year Old Son In Intensive Care D.13 III. The Hospital: The Story Of What Happened As Time Went On Lesson To Be Learned #2: Your Road To Recovery Can Be Bumpy, Long, and Difficult. I Know Because I Have Been Down The Same Road With My Child.13 Emergency Brain Surgeries A.14 Back From The Brink: Slow Improvement B.16 IV. Grieving and Reflecting: How Did This Happen To My Son? Be Learned #3: While Grieving Is Normal And Important, Lesson To It Is Also Important For You To Start Asking The “Who, What, Where, Where, Why, and How” Questions.16 A. The Grieving Process17 The Three Meter (10 Foot) Diving Board B.
  3. 3. 19 V. The Investigation, Legal Research, And Finding Our Expert19 Learning That The Diving Board Did Not Comply With A. Code Ohio Lesson To Be Learned #4: You Need To Make Sure That A Careful Investigation Of The Law And The Facts Of The Accident Is Done To Confirm What Went Wrong And How The Injury Or Death Occurred.21 Big Initial Concern: The Legal “Open and Obvious B. My Defense” Be Learned #5: You Need To Be Prepared For The Lesson To Tough Questions That Will Be Asked By Insurance Adjusters And Defense Lawyers During Recorded Statements Or Depositions.25 C. The Decision To Find An Expert Beyond County Health Inspectors Be Learned #6: You Need To Ask The Right Questions Lesson To To Get To The Bottom Of How The Law Was Violated And How The Injury Or Wrongful Death Occurred.26 D. The Pool Background Be Learned #7: Investigating The Background Leading Lesson To Up To You Or Your Loved One’s Injury Can Be Absolutely Critical.30 E. Getting A True Expert’s Perspective Be Learned #8: Finding The Right Expert For Your Case Lesson To Can Mean The Difference Between A Successful Resolution And Getting Nothing.34 VI. Mediation, The Settlement Negotiation Process, And Confidentiality Be Learned #9: Going Into A Mediation With An Open Lesson To Mind, Being Willing To Listen To The Defense’s Offers, And Engaging In A Fair “Back And Forth” Is Essential.34 A. Preparing For The Mediation
  4. 4. 35 B. The Fight Over The Confidentiality Clause37 VII. Dealing With Liens: Maximizing The Amount Of Money That Ends Up In Your Pocket Lesson To Be Learned #10: Your Attorney Is Well Equipped To Negotiate Down Liens On Your Recovery In Order To Be Able To Put The Highest Possible Amount Of Money In Your Pocket.39 VIII. A Structured Settlement To Last A Lifetime And Probate Court Settlement Approval39 A. Structuring The Settlement May Be The Smartest Financial Option Be Learned #11: Your Attorney Can Advise You On The Lesson To Ways That You Can Protect The Settlement Money And Make Sure It Lasts—Especially When A Child Is Involved.42 B. The Probate Process And Your Child’s Settlement Be Learned #12: The Probate Court Must Approve All Lesson To Minor Settlements And Legal Guidance Throughout The Process Is Critical.44 IX. Switching Roles: The Long-Time Attorney Becomes ClientThe44 A. Objective Case Evaluation vs. Emotional Involvement Lesson To Be Learned #13: Because Your Attorney Will Logically Evaluate Your Case, And You Will Likely Emotionally Evaluate Your Case, At Some Point Your Attorney Will Probably Give You News That You Do Not Want To Hear.46 B. Finding An Attorney You Trust, And Then Letting Them Their Job Do Be Learned #14: Letting Your Attorney Take The Lead Lesson To And Listening To His Advice Can Be Difficult, But It Is Essential.
  5. 5. 48 X. Joshua’s Post-Hospital Treatment And The Impact On School And Family Be Learned #15: Even After A Settlement, The Struggles Lesson To From The Injury Often Continue On.52 XI. How Was It To Have Chuck Boyk As A Client? Be Learned #16: The Attorneys In My Office Helped Me In Lesson To My Time Of Need As A Client, And They Can Help You Too.52 A. Chuck Boyk As A Client: A Firsthand Account From Attorney Michael Bruno56 B. Chuck Boyk As A Client: A Firsthand Account From Attorney Nicholas Dodosh58 About Attorney Charles E. Boyk60 Disclaimer
  6. 6. I. Introduction To This Book What is your worst nightmare? What is the one thing on Earth that youwould never want to have happen? For those of us with families, the answer isprobably the catastrophic injury or death of a child. Many of us go through day-to-day life believing that such a terrible thing might happen to other people but“could never happen to me.” I believed the same thing for a long time, until thesummer of 2010, when it did happen to me. This is my story. I’m attorney Charles Boyk. I have been practicing law in Ohio for over29 years and I have handled over 5,000 personal injury cases ranging fromsmall dog bite cases to catastrophic wrongful death cases. Although I work indowntown Toledo, I live in rural Bowling Green, Ohio with my Wife, Joann, andour four school-age children, Sarah, Emily, Jacob, and Joshua. Sarah andEmily are our biological children, while Jake and Joshua were adopted asinfants from Korea. While I have always been sympathetic to the difficult times that myclients often go through, I had never actually been in their shoes. In otherwords, neither I nor my family had ever been seriously injured as a result ofsomeone else’s negligence. That all changed on August 9, 2010 when a localswimming club’s violation of important yet basic safety rules led to one of mychildren being critically injured. This is the story of how I learned what it’s like to be in your shoes as aclient. I am going to tell you a story that is difficult for me to tell – it is about howmy eight-year-old son, Joshua, landed on his head after falling from a negligentlymaintained 10-foot-high diving board that did not comply with Ohio code.Joshua had bleeding on the brain, spent twenty-one days in the hospital,underwent two emergency brain surgeries, contracted meningitis along theway, and ended up with a traumatic brain injury that will affect him for the rest ofhis life. I have felt many, if not all, of the emotions that you may be feeling rightnow. As if the injury and accompanying emotional toll were not enough, Ihad to put up with an insurance company that refused to accept liability for myson’s injuries. I had to sit back and listen to unremorseful defendants insist theydid nothing wrong. I had to witness teams of defense doctors andneuropsychological experts evaluating my son for days on end in an effort to tryand say that he was fine. I had to deal with defense lawyers that tried to havemy son’s case thrown out of court and then made insultingly low settlementoffers. Some of this may be happening to you right now, or, unfortunately, it 7
  7. 7. may happen to you in the future, because all too often this is the twisted “game”that insurance companies and defense lawyers play. One of the most importantand difficult things that I had to learn to do throughout the course of the casesounds so simple, but was sometimes very difficult to do: I had to trust myattorneys. I can relate to what you are going through. It is tough. I have beenthere. I can empathize. I am going to tell you my story in the hopes that you canfind some comfort during your journey through the legal process and know thatyou are not alone. As you read through this book, I will show you how my son’s case wasa perfect example of 16 lessons to be learned when you are seeking out anattorney to handle a serious personal injury case on behalf of you or a lovedone. These lessons are just as applicable to your case as they were to my son’scase.8
  8. 8. II. The Story Of August 9, 2010 Lesson To Be Learned #1: I Can Personally Relate To That Moment That Changed Your Life – That Surreal Moment Where You Couldn’t Believe This Was Happening. A. The Phone Call I Will Never Forget You probably have that moment where you were injured (or when yougot the news that your loved one had been injured) stuck in your memory forever.No matter how bad you may want to forget, the memory is there like a scar thatwill never go away. I know this because I remember August 9, 2010 like it wasyesterday, and it is a day I will never forget. It was your average Monday afternoonand I was sitting in my office talking with my legal staff when the meeting wassuddenly interrupted by an urgent phone call. It was the mother of a womanwhose child was friends with my oldest son, Jake. She went on to tell me that shewas at a local swimming pool and that my younger son, Joshua, then 8, had fallenfrom the three-meter high dive, had hit his head on the concrete pool deck, andwas bleeding from his skull. As I was speaking with the woman, I heard in thebackground a blood curdling scream. It was Joshua. While I took some slight comfort in knowing that Joshua was conscious,the woman could not answer my questions about how badly he was hurt. Shesimply did not know. All that she could say was that there was blood, that theambulance was on its way, and that they would be taking Joshua to the hospital.His older brother, Jake, age 10, who was also at the pool, would ride in theambulance along with Joshua. I had to hang up not knowing how bad Josh’sinjuries actually were. I headed to my car and started driving in the general direction of ToledoHospital and The University of Toledo Medical Center – I knew the ambulancewould head to one of those places. But, I had no idea how bad this was: was ita cut on his head, a fractured skull, could it be worse? All I knew was that hewas conscious and I called my wife, Joann, from the road. 9
  9. 9. When clients or potential clients such as you come into my office forthe first time to discuss their case, I am in a unique position to be able to relateto that moment when their life changed and empathize with them. I think that isone of the things that makes my firm different from the other firms in town.While there are several Toledo law firms that are capable of handling large andcomplex personal injury cases, my firm not only has a proven track record, butalso has been through the personal struggles of handling a tragic case involvingthe boss’s own son. When clients tell me their story for the first time, I canrelate, and I know what it is like to be in their shoes. B. Getting In Contact With My Wife When I called my wife Joann from the road, I learned that it just sohappened that she was already at a doctor’s appointment with one of mydaughters at Toledo Hospital. Because my wife was actually in the appointment,it took me a few calls before I was able to get a hold of her and tell her what hadhappened. Once we got off the phone, Joann called over to the pool and wastold that Joshua, who we often called “Josh,” was not hurt that bad, but theyneeded to know which hospital to take him to. Seeing as how Joann wasalready at Toledo Hospital which is known as having an excellent pediatricsunit, the decision was made to have the ambulance take Josh there. Of course, I would later learn that in fact Josh was hurt very badly.Maybe this happened to you in your case? Maybe at first you were told that yourinjury or your loved one’s injury was not that bad, only to later be told that it waslife threatening. It is like a terrible roller coaster ride, and it is awful. I can relateto my clients who have been in that situation. I know what it is like, and Iunderstand.10
  10. 10. C. Arriving At The Hospital When I arrived at the emergency section of the hospital, I met up withJoann. My son, Jake, met us too. He had seen Josh fall, was shaken up fromriding in the ambulance with his injured brother, and he was crying anddistraught. Even though Jake had been down on the pool deck and Josh fellfrom way up on the high dive, Jake believed it was somehow his fault that hisbrother had fallen. Joann and I tried to assure him that there was nothing hecould have done. I believe that it is a common thing for other family members to feel asthough the accident was their fault, like they could have or should have donesomething to prevent the injury. Maybe you are even feeling that way right now.Oftentimes speaking with an attorney can help to relieve those concerns,especially when the attorney’s investigation reveals that the cause of the injurywas in fact a drunk driver, a dangerous product, or (like in Josh’s case) a pieceof recreational equipment that did not comply with Ohio code. After waiting for a moment at the hospital, a nurse came and told usthat Josh was in intensive care and was unconscious. The doctor then cameout and told us that Josh had a brain injury, that there was probably bleeding onthe brain, and it was an emergency situation. This caused a flood of emotionfor both me and my family. Josh did not have a simple bump on the head – noteven close. This was serious, potentially deadly. It was very tough news tohear. 11
  11. 11. D. Seeing My Eight Year Old Son In Intensive Care We were eventually allowed to visit Josh in his intensive care room. Hewas unconscious (and would remain unconscious through most of his hospitalstay). He was hooked up to what seemed like hundreds of tubes and wires. Hishead had been shaved. To say it was a terrible sight is an understatement.Josh was hooked up to a brain wave machine, and the nurse explained that themachine’s screen had to show certain numbers or else it was dangerous, i.e.brain damage. We stared at the machine hoping and praying it would stay inthe acceptable range. Time ticked by so slowly, and all we could do was wait. This brings me to another point, which is that often the family and lovedones of the victim go through nearly as much mental trauma as the victim. Iknow what it is like to stand in an intensive care hospital room and look at aloved one that I would do anything for, but at the same time feel so helpless, likeI can do nothing. Perhaps you have been through this same situation and canrelate all too well with what I am talking about. This is one of the reasons whyOhio allows for what are referred to as “loss of consortium” claims. This allowsthe victim’s close family members to make claims against the at-fault party toseek compensation for all of the stress and heartache that they went throughalong with the victim. Both my wife and I decided to make these claims againstthe pool owners when we filed suit. I make these claims for my clients regularly,and I can make one for you as well. Lesson To Be Learned Recap: I Can Personally Relate To That Moment That Changed Your Life – That Surreal Moment Where You Couldn’t Believe This Was Happening. I hope the above has been helpful to you in learning about somethingthat is special about my firm: the ability to personally relate with our clients.12
  12. 12. III. The Hospital: The Story Of What Happened As Time Went On Lesson To Be Learned #2: Your Road To Recovery Can Be Bumpy, Long, and Difficult. I Know Because I Have Been Down The Same Road With My Child. A. Emergency Brain Surgeries On the day after Josh was admitted to the hospital, he had his firstemergency brain surgery. The goal was to stop the bleeding on the brain. Butwhen Josh came out of surgery and was hooked back up to the brain wavemachine, the monitor was giving us bad news: there was still a bleed. Thesurgery had not solved the problem and the situation was actually getting evenworse. The doctors did an MRI scan and determined that they needed to doan emergency second surgery to stop the brain bleed, or else there was goingto be irreversible brain damage. It all seemed so surreal, like this could not be happening. Not to me.Not to my family. The emotion became unbearable at times. I don’t think mywife had a dry eye throughout the first two days. After the second emergency brain surgery Josh was still unconscious.They had to keep him in an induced coma in order to keep the brain safe andavoid damage. It was so difficult not to be able to talk to him. We all held ourbreaths as we waited to hear whether the second surgery had been a successor yet another failure. 13
  13. 13. B. Back from the Brink: Slow Improvement Fortunately, the second surgery was successful at stopping the brainbleed. That was absolutely wonderful news. We had been at the hospital fortwo and a half days and Josh had already had two brain surgeries – we wereready for someone to say something positive. Several days went by and Joshremained unconscious in intensive care, but there was still no new brain bleed.While we knew there was still a long, difficult, and uncertain road ahead, wewere at least somewhat relieved to know that the risk of imminent death from abrain bleed had passed. But then a week after Josh’s admission to the hospital, just as webegan to think that the worst might be over, Josh started to show signs ofdistress and we did not know why. Then the doctors confirmed what they hadfeared: Josh had come down with meningitis, which again threatenedirreversible brain damage. This required him to be put on untold amounts ofmedication and once again caused my family and me to fall back into a terriblestate of uncertainty and constantly changing emotion. Fortunately, Josh fought his way through just as he had with the twoprior brain surgeries. He beat the meningitis, and after a 21-day hospital stay,two brain surgeries, and a severe meningitis complication, Josh was allowed toreturn home. While of course we were happy to have Josh home, there was abittersweet component because we knew that he had suffered a traumaticbrain injury and would never be the same again. I will tell you more about this alittle bit later in the book. If fact, I will quote my wife’s emotional testimony thatshe gave during her deposition while being interrogated by a defense attorney. Lesson To Be Learned Recap: Your Road To Recovery Can Be Bumpy, Long, and Difficult. I Know Because I Have Been Down The Same Road With My Child. I have been through a long, painful, and difficult recovery process withmy son. I understand how you may be feeling as you make the trip home fromthe hospital or doctor’s office knowing that your world will never be the sameagain. You likely have a million things on your mind, but I am here to tell you:one of those things should be contacting a personal injury attorney, and it14
  14. 14. should be right up at the top of your list. Read on to learn why even though I ama lawyer, one of the first things I did after the dust settled from Josh’s injury wasto sit down with my colleague, attorney Mike Bruno, to discuss the beginning ofwhat would be a long and complex personal injury case. 15
  15. 15. IV. Grieving and Reflecting: How Did This Happen To My Son? Lesson To Be Learned #3: While Grieving Is Normal And Important, It Is Also Important For You To Start Asking The “Who, What, Where, Where, Why, and How” Questions. A. The Grieving Process Right now you may be going through a period of awful grieving. I knowhow this feels. Backing up for a moment to the three week time span that Joshwas in the hospital, either my wife or I were at Josh’s bedside the entire time.We slept there, ate our meals there, and essentially lived our lives out of thehospital. During this time I learned that from a grieving perspective, you go tosleep, wake up, and you can’t believe that this is really happening. None of mykids had been injured before. You may be experiencing some of these feelingsright now as you are going through your own personal struggle. Another issue that I struggled with was being a part of a terriblesituation that was completely out of my control. I admit that as an attorney I ama bit of a “control freak.” I want to know everything that is going on with anysituation that I am involved in so that I can intervene and fix any problems. Inthe situation with Josh, I felt completely helpless, like there was absolutelynothing I could do. It was an awful feeling that I hope I never have to experienceever again. I did not even want to accept that Josh’s injury had happened, letalone accept that there was nothing I could do to fix it. The first step in the grieving process for me was accepting that it reallyhad happened. I was like most folks: I thought that “things like that happen toother people, they don’t happen to me.” You hear a bad story and think it’shorrible, but you can’t relate because “it just doesn’t happen to me.” Well, nowit had happened to me, and as I sat in the hospital week after week, it causedthe attorney in me to come out and start thinking: why in the heck did thishappen? How in the heck did he fall off the diving board? Was something notstructurally correct with the board?16
  16. 16. Although you may not be an attorney, you may be asking some ofthese questions too relative to your case, and that is important. Sometimes theonly way to get real answers to these questions is to employ the services of anexperienced personal injury law firm and have knowledgeable attorneys lookinto the matter. Sometimes there is a need to have a team of seasoned lawyersperform an investigation of the facts of the case in light of the law. If you readon, you will learn that is exactly what I ultimately did, and it is something youshould seriously consider as well. B. The Three Meter (10 Foot) Diving Board Joann and I had the membership at this pool for my boys to be able toplay with their friends during the summer. I had been to the pool on only ahandful of occasions to watch my children’s swim meets. I had seen the boardin passing, but I never paid any sort of particular attention to it. I had no ideawhat the requirements were for diving boards in Ohio and had never reallyconsidered whether the board was dangerous or not dangerous. I just knew itwas up really high. Also, like most people, I previously assumed the pool and the divingboard were safe because the facility was in business and presumably wassubject to safety inspections. Perhaps you have assumed this about certainplaces that you visit or products that you use. Take it from me: just because aplace is open to the public or just because a company makes a product doesnot mean that the place or product are safe. I wanted real answers about this diving board and whether it was up tosnuff. So, I did the same thing that I have done for my clients in the past andwould do on your case. I started going through my lawyer checklist: what doesthe Ohio Revised Code say about diving boards? How about the OhioAdministrative Code regulations? Are there any national and industrystandards? What does the case law say? Has the Ohio Supreme Courtaddressed this type of an issue or just the lower district courts? Who are thetop experts in this field? What is the best way to find them? What would theysay about this situation? 17
  17. 17. Rest assured that Mike and Nick were working overtime to promptlyfind answers to these questions. I can’t imagine having a more demanding ordifficult client than myself. As I said above, I am a control freak, but when itcame to Josh’s case I felt completely out of control. I think that I tried to makemyself feel like I did have some type of control by putting more pressure thannormal on Mike, Nick, and my staff. I felt like I would have more control if I tookit upon myself to make sure that the investigation and the handling of the casewent off without a hitch. Of course, while barking orders at my attorneys andstaff might have made me feel like I had some type of control, in hindsight Irealize that they knew what had to be done and my control freak attitudeprobably did little to change the course and outcome of the case. Returning to the story of the investigation, I knew from my experiencethat I would need to gather additional information about the diving board beforeany meaningful legal analysis would be possible. I had someone visit the poolduring regular business hours, take some photos, and estimate some roughmeasurements. As I carefully studied the photos and read the measurements,I started to notice that the guardrails up on top of the diving board that aresupposed to keep people from falling did not extend to the edge of the water.Instead, they appeared to stop a few feet short of the edge of the water andexposed people to falling onto the concrete – right where Josh had fallen. NowI at least knew enough about the board itself to look into whether or not it was incompliance with the law. As you read on, you will learn that what I found outwas shocking. Lesson To Be Learned Recap: While Grieving Is Normal And Important, It Is Also Important For You To Start Asking The “Who, What, When, Where, Why, and How” Questions. Simply stated, you may be seriously injured right now or be heartbrokenbecause a loved one was seriously injured or killed. It is a terrible situation tobe in, I know. But it is also important not to let your pain or grief take over somuch that you never find out what happened or what can be done to get justice.That is where my law firm and I come in. We understand that you may be goingthrough the worst time of your life and getting a lawyer may be the last thing onyour mind… but it shouldn’t be. Contacting a lawyer who will ask the difficult“who, what, where, when, why, and how” questions in the search for justice canbe an important part of the recovery process and can provide you with a senseof comfort and closure.18
  18. 18. V. The Investigation, Legal Research, And Finding Our Expert Lesson To Be Learned #4: You Need To Make Sure That A Careful Investigation Of The Law And The Facts Of The Accident Is Done To Confirm What Went Wrong And How The Injury Or Death Occurred. A. Learning That The Diving Board Did Not Comply With Ohio Code Chances are that a lot of things were going on in your life that came toa screeching halt when the injury or death that affected you or your loved oneoccurred. During the entire time period when Josh was injured, I was in theprocess of bringing a new attorney, Nick, into my office for the purpose of doinglegal research and writing. He looked into the “diving board law” in Ohio andwrote a memorandum that said the following. Keeping in mind that I had alreadyconfirmed that the diving board’s guardrails didn’t extend to the edge of thewater, imagine having the following memorandum come across your desk afteryour child just spent three weeks in the hospital complete with two brainsurgeries: TO: Chuck Boyk FROM: Nick Dodosh RE: Diving Board Code Requirements QUESTION PRESENTEDWhether the diving board at ____________________ complies with OhioAdministrative Code (OAC) standards? BRIEF ANSWER No, the diving board in question does not comply with OAC standards. 19
  19. 19. LAW AND ANALYSISOAC 3701-31-04, “Design requirements applicable to all public swimming pools,public spas, and special use pools” provides in pertinent part: (A) Except as provided in this paragraph, the design requirements set forth by this rule apply to every public swimming pool, public spa, or special use pool regardless of construction date. *** (H) All diving stands and boards… shall be of substantial construction and of sufficient structural strength to safely carry the maximum anticipated loads with the following design requirements: *** (3) Platforms and diving boards which are one meter high or higher shall be protected with guard rails as recommended by the manufacturer which, at a minimum, extend horizontally to the edge of the water. (4) Boards or platforms three meters or higher shall have an effective side barrier.OAC 3701-31-04(A), (H)(3), (H)(4). (Emphasis added).The handrails on the diving board in question do not comply with code because they donot extend to the edge of the water. Instead, the handrails end one foot and nine inches(1’ 9”) prior to the edge of the water, thus exposing divers to the risk of falling from theboard and landing on concrete as opposed to landing safely in the water. With respect tosubsection (H)(4), the code and the case law do not indicate what precisely is meant by“effective side barrier,” but, given the manner of Josh’s injury, common sense dictatesthat the barrier on the board in question was not effective. Once I realized that Ohio law required that diving boards haveguardrails that extend to the edge of the water, and I confirmed that the divingboard that Josh fell from did not have guardrails that extend to the edge of thewater (right in the area where he had fallen!), I realized that the pool was inviolation of code – big time. But this led to me asking even more questions.How in the heck can the pool and the diving board pass inspections year afteryear and not be in compliance with basic safety code requirements? Thequestions just kept piling up. Maybe you can relate to what I am saying in the situation you are goingthrough. Maybe something just doesn’t seem quite right, and in your gut youknow that something is wrong. This is exactly the time when you need to pickup the phone and speak with an attorney. Attorneys know what to look for inthese types of situations and are uniquely qualified to investigate personalinjury and wrongful death scenarios. That is why after Josh’s injury I did not actalone, even though I am an attorney. I used the services of the other attorneysin my office to investigate what happened, research the law, and makerecommendations to me about the most effective course of action. You shoulddo the same.20
  20. 20. Lesson To Be Learned Recap: You Need To Make Sure That A Careful Investigation Of The Law And The Facts Of The Accident Is Done To Confirm What Went Wrong And How The Injury Or Death Occurred. The law can be complicated, and the question of whether the law wasviolated in a certain case can be even more complicated. Even speciallytrained lawyers and judges can become confused about what a particular lawactually says or means, let alone whether the law was violated in the case. Aserious personal injury or wrongful death case is not the time for you or a well-meaning loved one to “play lawyer.” The smartest thing for you to do from dayone is to pick up the phone and get an attorney on board immediately. B. My Big Initial Concern: The Legal “Open and Obvious” Defense Lesson To Be Learned #5: You Need To Be Prepared For The Tough Questions That Will Be Asked By Insurance Adjusters And Defense Lawyers During Recorded Statements Or Depositions. You may or may not know a lot about the way in which you or your lovedone were injured. I mentioned previously how Joann and I had the membershipat this pool for our boys to be able to play with their friends during the summerand I had been to the pool on only a handful of occasions and only noticed thediving board in passing. Before this incident, I had absolutely no appreciationfor whether or not the guardrails on top of the three meter board extended to theedge of the water. I had never been on the board and certainly never inspectedit or noticed anything significant about it. However, as a lawyer, I knew that thedefense would try to trip me up from day one and get me to somehow, someway,say something to make it sound like the defect on the diving board was “openand obvious” to me or my wife. 21
  21. 21. The reason that the defense would try and get us to do this is simple.Under Ohio law, there is something called the “open and obvious” doctrine.What this means is that if the defense can prove that a condition, althoughdangerous, was “open and obvious” to anyone who would come near it, thenthere is no liability for any injury that occurs. This defense is often used by retailstores when someone slips and falls on a puddle of liquid on the floor – theyclaim that the puddle, even though dangerous, was “open and obvious” for thecustomer to have seen if he/she had been watching where they were walking.Defendants are often very successful in having cases thrown out of court basedon the open and obvious defense. You can certainly expect the same type ofdeceptive defense tactics to be used in your case. Sure enough, this was the first major defense that the pool owners’lawyer used to try and have Josh’s case thrown out of court. In fact, at one pointearly on in the case, one of the defense lawyers told another lawyer in myoffice, Mike Bruno, that he thought the open and obvious defense was so strongthat he would only consider settling the case for what is commonly referred toas “nuisance value.” In other words, the defense lawyer was saying that hebelieved our case was so weak that he was willing to offer my family a verysmall token payment just to make us “go away” without filing suit. Pause for a moment and think about how you would feel if your childhad just spent three weeks in the hospital after falling off a diving board that didnot comply with code and the defense lawyer implying that your case was anuisance and wanted to pay you off with a tiny bit of money hoping you and yourinjured child would just go away. I obviously did not go away and I left it to thedefense lawyer to try and establish his open and obvious defense. You shouldnot just go away either. In Josh’s case, the main tool that the defense lawyerused to try and establish the open and obvious defense was during mydeposition and my wife’s deposition. In most civil cases, the parties take “depositions” of the other parties.A deposition is a simple question and answer session where the opposinglawyer asks the other party questions under oath. A court reporter is theretaking down everything that is said. I have taken hundreds of depositions ofother parties in my career, but this time it was my turn to be in the “hot seat”answering the questions. Mike spent a lot of time getting me ready for mydeposition and discussing the issues in the case. The defense lawyer askedme the following question in my deposition trying to establish his “open andobvious” defense, and I gave the following answer: Q: If you looked at the diving board itself in relationship to the cement deck, you could see that the handrails on the diving board did not extend all the way to the edge of the pool?22
  22. 22. A: I never observed that, nor considered it significant or insignificant. I can see where it’s a relevant issue now, but at the time, I had no diving expertise, nor -- I mean, it’s not something -- I may have looked at it, but I didn’t appreciate one way or the other where the rails were or where they weren’t. When he asked his question, the defense lawyer was clearly trying toback me into a position where he could “trick me” into saying something to givehim ammo for his “open and obvious defense.” The defense lawyer hoped thathe would have better luck asking my wife a similar question. The defenselawyer asked Joann in her deposition: Q: [T]he handrails that were attached to the diving board extend from the ladder almost to the edge of the cement pool, cement deck, but not quite. Did you understand that the handrails did not extend fully from the ladder to the edge of the pool prior to Joshua’s accident? A: No. The answers that my wife and I gave to these questions, while 100%true, effectively shut down the defense’s open and obvious argument, at leastas far as our testimony was concerned. Our strategy was then to turn the defendants’ own argument aroundon them. While they claimed that the lack of proper guarding was “an open andobvious hazard” as it pertained to my family members, the owners also said intheir depositions that even they had never noticed the hazard – which they werenow claiming was “open and obvious.” We argued that because the pool’slong-time owners never noticed the hazardous condition, that showed that thehazardous condition was not open or obvious. We pointed out how one of thepool owners gave the following deposition testimony: Q. All right, and in looking at [a photograph of the diving board], can you tell from the photo whether there was still a portion where one could fall onto the cement below? A. Never. Q. Never? A. Never. Q. Looking at it as many times as you did over the years? A. Correct, never. 23
  23. 23. We used the owners’ testimony to argue that if the hazardous conditioncreated by the unguarded section of the diving board should have been openand obvious to anyone, it should have been open and obvious to the defendant’slong-time owners who were very familiar with the facility. However, the ownershad clearly indicated in their deposition testimony that they never even noticedthe unguarded section. We argued that the court should not entertain thedefendant’s argument that the hazard was not open and obvious to the long-time owners, but somehow was open and obvious to me, my wife, or Joshua. Although the judge never ruled on either argument because we settledthe case, I believe the defense read our legal brief on the issue and said “uh-oh.” I believe they realized that we were right, and this was the reason that theyultimately agreed to an out-of-court resolution. As an aside, this is another reason why it is so important for you toretain an attorney immediately after an incident occurs. Negligence victimsoften do not understand the critical importance of certain questions that theywill be asked by insurance companies and claims adjusters. The adjuster oftenasks the questions immediately following the incident, and often the non-lawyervictim will be tricked into making a statement (or even saying a few words) thatabsolutely destroys their case. Insurance adjusters do this for a living. If onlythe victim had picked up the phone and called me earlier, we could have gonethrough the process from the beginning – the right way – and ensured a fair andjust outcome. Instead, all too often a person who wants to “do it themselves”gets tripped up and says a word or two to the insurance company or defenselawyer that causes the whole case to fall apart. At that point it becomes too lateand oftentimes there is little that me or any other lawyer can do to fix the damagethat has been done. Lesson To Be Learned Recap: You Need To Be Prepared For The Tough Questions That Will Be Asked By Insurance Adjusters And Defense Lawyers During Recorded Statements Or Depositions. The “open and obvious” defense that we had to deal with in Josh’scase is only a drop in the bucket compared to the countless legal traps that cancome up in your case. Chances are, most non-lawyers such as yourself will notbe prepared for the tough questioning that comes along with a personal injurymatter, and you may find yourself backed into a legal trap pretty quickly. This isnot because you are unintelligent, it is just because you have not had the legaltraining or experience to know what the legal pitfalls are in the first place.Instead, pick up the phone and call a lawyer. As the case progresses, you willbe glad that you did. I know I was.24
  24. 24. C. The Decision To Find An Expert Beyond County Health Inspectors Lesson To Be Learned #6: You Need To Ask The Right Questions To Get To The Bottom Of How The Law Was Violated And How The Injury Or Wrongful Death Occurred. You likely have a lot of questions about how to best go about provingyour personal injury case. After Josh’s injury, I was no different. As I continuedto gather information about the diving board, my lawyer brain switched into highgear again. What kind of additional investigation do we need? Do we need aprivate investigator? Can we get more photos of this board? What witnessesdo we need to talk to? What type of experts do we need? Should we go to anattorney internet message board? Do we need to consult an expert service? The pool owners admitted in their depositions that they did not performtheir own independent safety inspections and were unaware of any standardsrequiring diving board guardrails to extend to the edge of the water. (I’ll talkmore about that later.) However, the owners went on and argued to the courtthat while they did not personally inspect the guardrails, the county safetyinspector did. This got me to thinking: isn’t there some law out there that says that apool owner’s duty to inspect its own pool is “non-delegable,” i.e. can’t be passedoff onto someone else? I asked Nick to look into this, and he found some Ohiocases that confirmed my suspicions. Ohio does not allow a defendant to claimignorance and escape liability by “hiding” behind a health inspector. Rather, thedefendant (1) has a non-delegable duty to not be ignorant, (2) has a non-delegableduty to affirmatively inspect its premises, (3) has a non-delegable duty to discoverhidden dangers such as the unguarded area of the diving board where Josh fell,and (4) has a non-delegable duty to eliminate or warn of the danger. Phew! We ended up taking the depositions of many current and formeremployees of the pool such as pool managers and lifeguards, and we wereable to show that the pool owners failed with respect to ALL of the four duties Ilisted above! I thought this would be a good opportunity to share with you a 25
  25. 25. brief summary of what we actually learned through taking the depositions of allthe former workers. This will give you the background of how the pool anddiving board came to be in such a dangerous condition, despite many priorwarnings to the pool owners. Lesson To Be Learned Recap: You Need To Ask The Right Questions To Get To The Bottom Of How The Law Was Violated And How The Injury Or Wrongful Death Occurred. The above lesson is correct: you need to ask the right questions. Thebest way to do this is to have a lawyer asking the right questions for you – justlike I had my lawyer ask the questions in Josh’s case. In all likelihood, you havematters to be dealing with after the injury apart from investigating what the lawis, how it was violated, how the violation caused the injury, and exactly whichinjuries occurred as a result of the violation. I know I did, and that’s why I put theother lawyers in my office in charge of the case from day one. D. The Pool Background Lesson To Be Learned #7: Investigating The Background Leading Up To You Or Your Loved One’s Injury Can Be Absolutely Critical. The pool where Josh fell opened to the public back in the 1960s. Thepeople who owned the pool at the time of Josh’s injury purchased it in the 1980sand had been the owners ever since. The pool had not been significantlymodified since the current owners bought the place. My family and I became members at the pool in 2006. I was notpersonally involved in signing up my family for membership and so I neverreceived or read an application or any similar paperwork. The only paperworkfrom the pool that was signed by anyone from my family was as an initial“membership application” that my wife signed. This application did not includeany legal disclaimers and did not talk about any rules or regulations. My wifedoes not remember ever being handed a copy of the pool’s rules or regulations,does not remember ever reading that kind of thing, and was never informed thatour family would be using the pool “at our own risk.” 1. The Pool’s Manager Gave Several Safety Warnings And Suggestions Regarding The Diving Board Which The Pool Owners Disregarded. In depositions, we learned the history of how the pool owners hired apool manager who had the job of overseeing the day-to-day pool operationalong with the owners themselves. If the pool manager believed that anychanges were necessary in the pool area, then he would speak to the poolowners, who would then approve or disapprove of the manager’s suggestion.26
  26. 26. The man who was the pool manager at the time of Josh’s injury beganworking at the club in 2006 and continued to do so until December of 2010. Heheld many positions throughout this time, including pool manager, facilitymanager, and general manager. During late April or early May of 2006, he toldthe pool owners that he was surprised that they were able to keep the threemeter board in use based upon safety issues and insurance costs. The ownerssimply told him that the three meter board was “not costing the club very muchmoney” in terms of insurance premiums. We also learned during depositions that there had been another safetyrelated incident on this diving board. Specifically, in 2009 a seven-year-oldchild fell from the three meter diving board’s ladder and injured his head on theconcrete deck below. The next day, the manager spoke to the owners aboutthe need to either remove the three meter board completely or reinstate a rulethat the pool used to have restricting the diving board to children ten years ofage and older. The pool owners said that they did not want to remove the board,but initially agreed to restrict the board’s use to children ten years of age andolder. The manager then told the lifeguards about the new “ten and over” ruleand even made an announcement to the membership by public address systemthat same afternoon informing them of the new policy. However, approximatelythree to four days later, the manager learned from the lifeguard staff that thepool owners had come to the lifeguards directly and instructed them to stopenforcing the minimum age requirement and to allow children of all ages to usethe three meter board. In late February or early March of 2010, the manager had a discussionwith one of the owners about covering the entire diving deck area with protectivepadding to cushion the fall for a child (like Josh) who might fall from any area ofany of the diving boards. Rather than adopt the manager’s suggestion, theowner instructed the manager to draw a diagram showing how much paddingwould be needed to cover just the small area at the base of the ladder of thethree meter board. Based on the manager’s diagram, the owners ordered asmall amount of padding which the manager then installed under the ladderearly in the 2010 pool season. This obviously did not help to cushion the landingfor a diver who fell near the edge of the pool where Josh fell. All of this shows that when the manager made suggestions for safetyrelated improvements in and around the pool area, the owners would oftenstate that it was the intention simply to “fix things as they happen.” 2. The Diving Board Was In Violation Of The Ohio Administrative Code And Many Other Safety Standards. The photographs that were taken of the diving board after Josh’s fallclearly showed that there was no guardrail or other safety device to prevent adiver from falling off the board at the one foot four inch (1’ 4”) area where theguardrail ended but before the water began. The guardrails stopped a full one 27
  27. 27. foot and four inches short of the edge of the swimming pool, which exposeddivers to a significant risk of a fall onto the concrete below in this unguardedarea. In light of this undisputed fact, the diving board was in violation of theOhio Administrative Code and many other safety standards. We made thisclear to the defense and to the court throughout the case. 3. The Pool Owners Failed To Be Aware Of Industry Safety Standards Concerning The Pool Which They Operated For Profit. The pool owners chose not to keep up with the codes and rules thatapply to public swimming pools. They did not have any books or resources andthey did not subscribe to any periodicals or trade journals to keep current in theindustry or to help in understanding what the rules were for the pool that theyowned and operated for a profit. They did not discuss or share information withother pool owners, they never had a third party safety audit, they never broughtin any outside consultants to help keep current with swimming pool industrystandards, and they never attended any swimming pool risk managementseminars. Rather, the owners relied only on health department inspections tolet them know if there were any violations or any changes in swimming poolindustry standards – including standards addressing serious and potentiallylife threatening safety hazards associated with the diving boards. This completelack of a pro-active approach was very upsetting for both me and my family. 4. At The Time Of His Fall Josh Was Not Violating Any Rules. Around noontime on August 9, 2010, my wife dropped off Josh andJacob at the pool. Based on the pool rules, both boys were allowed to be at thepool and were permitted to use the three meter diving board. Specifically, thepool rules required adult supervision for children up through the age of seven.In addition, my boys were not novice swimmers by any means: they had beenmembers of the swim team, were capable swimmers, and were experiencedwith diving boards. The lifeguards even said in their depositions that Josh wasa well behaved swimmer, was not a “troublemaker,” and they did not often haveto blow a whistle at him. Around mid-afternoon, Josh and Jake went over to the diving area touse the diving boards. Josh climbed the ladder, walked toward the end of theboard, and briefly looked down from the board to ask his brother, who was downon the diving deck, what kind of jump he should do. (Our pool expert would latersay that divers and jumpers often walk to the end of the diving board to lookdown at their entry point to see that the landing area in the swimming pool isclear, as the board’s length and width blocks the view of the water under the tipof the diving board so checking the point of entry is not dangerous orunreasonable.) After receiving an answer from his brother, Josh took a fewsteps back to prepare for his forward takeoff as many divers and jumpers do.28
  28. 28. Unfortunately, Josh took an odd step in the precise one foot four inch area ofthe board where there were no guardrails, he fell sideways off of the right sideof the three meter high dive, and he hit his head on the unpadded concretebelow. The lifeguard who was in the lifeguard chair at the diving well closest toJosh said that Josh’s behavior on the diving board was completely normal andthat Josh did not violate any rules while he was on the board. As I am sure you can imagine, there were many things that made meupset during the course of the depositions, but there are a few things that stickout as being particularly upsetting as the parent of an injured child. First, if thepool owners hadn’t discontinued the “ten and over age limit,” Josh would nothave been permitted on the board and would never have fallen. Second, if theguardrails had been in place like the law required, Josh would not have fallen.Third, if the owners hadn’t disregarded the manager’s suggestion to installpadding throughout the diving deck area, Josh would not have been so severelyinjured. I take no issue with the lifeguards. I believe they did exactly what theyhad been trained to do. Immediately after the fall, the lifeguards gave the “threewhistle” emergency signal and responded immediately to attend to Joshua’ssevere injuries. Based on what we learned in depositions, we argued that the courtshould not throw the case out based on the pool owners’ “we didn’t know”argument. Such an argument was not a defense given that (1) the diving boardhad been in existence since the ‘60s and (2) the pool owners had failed tocomply with their non-delegable duty to inspect the board, which resulted incatastrophic injuries to my son. I eventually learned that the county “safety inspections” were a jokeand the inspectors didn’t even know or understand the law. One of theinspectors even stated in a deposition that he had never gone up on the boardbecause he had fallen as a child and was scared of diving boards. And this wasthe safety inspector! When I realized what the guidelines were and how therewas not even an effort to meet the guidelines, it was almost unimaginable. Itwas time to find an expert who knew what they were talking about. Lesson To Be Learned Recap: Investigating The Background Leading Up To You Or Your Loved One’s Injury Can Be Absolutely Critical. As you know from reading everything above, we investigated theentire history of the pool where Josh was injured and we learned a lot of helpfulinformation in the process. The information we learned ultimately helped us toprove our case and successfully reach a settlement. The same thing needs tobe done in your case. Whether you are dealing with a catastrophic car accidentor serious workplace injury, the history of what the other driver was doing thatnight (drinking? texting?) or what management had done in the plant (take aguard off a machine?) must be established. Only then can the case moveforward towards a fair and just resolution. 29
  29. 29. E. Getting A True Expert’s Perspective Lesson To Be Learned #8: Finding The Right Expert For Your Case Can Mean The Difference Between A Successful Resolution And Getting Nothing. You may or may not already realize that you need an expert in yourcase. For example, if you or a loved one were a victim of medical malpracticeduring a complex surgery, you may realize that you need a neutral doctor to gothrough the surgical record and decipher what happened. In Josh’s case Iknew that we needed an aquatics and diving expert, but the question was whoto retain. When we need to find an expert for any case that my firm is handling,we search long and hard to find the perfect one, and we use every resourceavailable to make sure that we find a “perfect match.” We do everything fromutilizing professional expert referral services to making posts on plaintiff’slawyers email listservs which connect thousands of lawyers from across thecountry. We used these same methods on my son’s case. During the courseof our research, we ended up talking with the head of the diving program at TheOhio State University who referred us directly to an individual who is perhapsthe most prominent expert in the field of aquatics in the entire country. He is aman named Dr. Thomas J. Griffiths. Dr. Griffiths is President of the Aquatic Safety Research Group, LLCteaching Aquatic Risk Management programs internationally. He was theDirector of Aquatic and Safety Officer for Intercollegiate Athletics at Penn StateUniversity from 1986 until 2009. During this time period, Dr. Griffiths continuallyand consistently managed aquatic facilities and supervised lifeguards full-time. While at Penn State University Dr. Griffiths oversaw eight diving boardsincluding a 5, 7, and 10 meter diving platform. Dr. Griffiths has published fourvideos, six textbooks, hundreds of articles, has appeared on national radio andTV many times, and has won numerous water safety awards. He had alsoacted as an expert on numerous occasions in litigation where the plaintiff wasinjured by falling from a diving board and hitting the deck below. Needless tosay, Dr. Griffiths was the expert that we had been looking for.30
  30. 30. My firm immediately retained Dr. Griffiths prior to filing suit, flew him toOhio, and had him personally inspect the pool and diving board. As I hadsuspected, Dr. Griffiths found numerous faults with the diving board and wrotea report indicating that the following points of negligence directly led to theserious injuries suffered by my son: • Failure to remove the three meter diving board and the accompanying stand with ladder and railings completely to prevent catastrophic falls as most other recreational swimming pools have done throughout the country. • Failure to renovate the three meter diving board effectively to prevent the possibility of falls to the deck below. • Failure to extend the handrails to 12 to 24 inches beyond the swimming pool wall located 10 feet below. • Failure to install soft and safe landing material completely throughout the drop area under the three meter board including the coping edge. • Failure to restrict the use of the three meter diving board to adolescents rather than young children. • Failure to post and enforce strict rules and regulations for the use of the three meter diving board. • Failure to limit the hours during which the 3-meter board could be used and provide direct supervision directly under the board during those times. Dr. Griffiths’ testimony was critical and highlights the importanceof locating a knowledgeable expert to lay out all of the ways that an injurycould have been prevented. As I discussed a little earlier in this book, one of the big legal defensesthat the pool owners kept waving in my face was their argument that thedangerous condition on the diving board was “open and obvious.” They arguedthat if the dangerous condition was open and obvious, then they were not liablefor Josh’s injury under Ohio law. Dr. Griffiths played a key part in shutting downthe defense’s argument. In fact, he specifically indicated that the hazardWOULD NOT be obvious to pool patrons such as my family members simplyseeking to enjoy a summer afternoon at the pool. In fact, Dr. Griffiths stated inhis deposition: A. I think the only parents that would really appreciate the risks of an aquatic facility are those parents who have worked in the industry, either as lifeguards or water safety instructors, or who have been pool 31
  31. 31. operators and so forth, and who’ve studied it. They’re the only ones who are going to appreciate the risks of what can happen at a pool, particularly in the three meter board aspect. Q. So why are you saying that none of these parents out there are going to appreciate the dangers of this three meter board except for people who are actually experts in the industry? A. Because I don’t believe they realize, they haven’t seen the catastrophic falls that have taken place and, then, they are given a false sense of security when the club does, in fact, put some fabric between the rails and puts some padding under the ladder and station a lifeguard in the diving well. We argued that based on Dr. Griffiths’ testimony indicating that thehazard was not open and obvious to my wife and me, there was no basis for thedefense’s request to have the lawsuit thrown out of court. I believe the defenseheard us loud and clear, and this is one of the reasons we were able to settle thematter out of court without the need for a trial. Dr. Griffiths also assisted us in making the point that although thehazard was not open and obvious to me or my family members, it absolutelyshould have been noticed by the pool’s owners. Dr. Griffiths testified: Q: Are you stating that [the pool owners], before August 9th of 2010, should have seen this space between the handrail and the edge of the pool above the concrete that was not safeguarded by those handrails? A: Absolutely, because it’s spelled out in the Code, absolutely. Finally, Dr. Griffiths assisted us in making the point that the poolowners had been in violation of several “pool industry standards” of which theyshould have been in compliance. He made the important point that if theviolation of an industry standard could result in death or paralysis, then thestandard “must be followed.” Because a fall from a three meter diving boardcould result in death or paralysis, industry standards designed to prevent sucha fall from happening – such as standards requiring diving board guardrails toextend to the edge of the water – must be followed. Because such standardsmust be followed, the pool owners in my son’s case had a legal duty to be awareof such standards and inspect for compliance. Because the pool owners in myson’s case did not do that, the pool owners would likely have been found to beliable for Josh’s injuries had the case gone to trial.32
  32. 32. As you can see, Dr. Griffiths’ testimony was critical. In any case thatmy firm handles, one of the first big questions we address is: do we need anexpert, and if so, who is the perfect match? We then spring into action to findthe right expert, and we will do this on your case as well. I was so pleased withthe job that Dr. Griffiths did on Josh’s case that I can almost promise you that ifyou or a loved one have been the victim of a pool injury or wrongful death, oneof the first calls I make after taking your case will be a call to Dr. Griffiths. Lesson To Be Learned Recap: Finding The Right Expert For Your Case Can Mean The Difference Between A Successful Resolution And Getting Nothing. By now you likely realize the critical importance of finding the rightexpert for your case. It is a very serious matter because the right expert can“make your case,” while the wrong expert can “break your case.” This is why itis so important for you to seek out a knowledgeable attorney who is wellexperienced in complex personal injury cases. Such a lawyer will either knowthe right expert for your case right off the bat, or will know how to take the rightsteps to find the perfect expert – just like my lawyers did on Josh’s case. 33
  33. 33. VI. Mediation, The Settlement Negotiation Process, And Confidentiality Lesson To Be Learned #9: Going Into A Mediation With An Open Mind, Being Willing To Listen To The Defense’s Offers, And Engaging In A Fair “Back And Forth” Is Essential. A. Preparing For The Mediation For those of you who may not be familiar with mediation, it is a voluntaryprocess where the plaintiff(s), defendant(s), and their attorneys get togetheralong with a neutral mediator. The mediator’s job is to try and get the parties toresolve the case for a mutually agreeable settlement number. Typically,everyone involved in the mediation will meet briefly at the beginning and statetheir position on the case for everyone else to hear. After that, the parties splitup into different rooms and the mediator goes back and forth between therooms communicating messages, offers, and counter offers, all while trying toconvince everyone involved of the benefits of a mutually agreeable settlementas opposed to rolling the dice at trial. Normally leading up to a mediation you have quite a bit of cushionbetween the mediation date and the trial date. In Josh’s case, it was clear thatthe defense wanted to push back the July 2012 trial date because they filed amotion in February of 2012 asking the judge to do just that. The judge grantedtheir motion and pushed the trial date back by two months, so that meant wehad to do the mediation in July or early August of 2012. One of the biggest challenges that we had to deal with as the mediationdate got closer was putting together enough evidence to project what Josh’sfuture medical bills would be throughout the course of his lifetime (as well as hislikely career aspirations and educational attainment). Those are the things thatwe figured were necessary to give to the defense in order for them to do aproper evaluation of the case. However, some of our medical experts weren’twilling to put those types of things in writing. So, we had to rely on theirdeposition testimony instead. One of our experts was a neuropsychological expert and another wasa physiatrist. Neuropsychologists study the structure and function of the braindealing with specific psychological processes and behaviors. They do this byusing standardized neuropsychological tests, brain scans (such as MRI scans),and electrophysiological measures (such as EEG or MEG measures).Physiatrists are essentially rehabilitation physicians and are also nerve,muscle, and bone experts who treat injuries or illnesses that affect how peoplemove. Our neuropsychological expert gave a lot of testimony about how farJosh would be able to go in school. Our physiatrist expert gave extensivetestimony on how Josh’s injuries would impact his function and performance34
  34. 34. for the rest of this life. With this testimony in hand, the game plan was to get a“demand letter” sent to the defense lawyers 30 days before the mediationspecifically outlining all of our claimed damages in detail and stating a specificnumber for which we would settle the case. We were successful in getting thisinformation sent to the defense just in time. We got the defense to agree to the mediator that we wanted, Mr. RobertHanson, who is known throughout the state as being the best of the best. I hadused him for a prior large case that I had handled and he definitely impressedme with his mediation skills. We had to book Mr. Hanson months in advance.Then it was simply an issue of Mike getting my wife and I ready for the mediation.Joann and I met with Mike a week or so before the mediation so that Mike couldget us ready. Finally, the day of the mediation arrived. During the mediation wewere up in our office’s conference room and the defense was down on anotherfloor of the building. Our mediation was a little bit different in that we never evensaw anyone from the other side, even at the end of the mediation. It was simplyvisits back and forth by the mediator, Mr. Hanson. It took us a while of goingback and forth, but eventually we agreed to reduce our demand significantlyfrom where it had originally been. This was tough to do, but it caused thedefense to raise their offer to a more reasonable amount. We were moving inthe right direction: towards a settlement. This “decreased demand/increased offer” continued to go back andforth for a long period of time. It was an all-day and intense session. It eventuallybecame clear that we were not going to settle the case on the day of themediation because we were just too far apart. Joann and I were not happyabout this, but at least progress had been made. The mediator asked us to stayin touch and asked both sides to reevaluate their positions. We waited until the following Monday and we were told that there wasgoing to be a new offer coming from the defense. Mike then received a call fromthe mediator and was told that some decisions had been made over on thedefense end and that we would soon be receiving a letter with an offer. We thenreceived the letter with an offer that was very tough to walk away from. However,the offer also contained a stipulation with a broad confidentiality section. B. The Fight Over The Confidentiality Clause Usually when a case is settled with a confidentiality agreement, theconfidentiality relates to the amount of the settlement, but the parties are stillfree to discuss other aspects of the case. Here, the defense’s initial proposedconfidentiality clause was much, much more detailed and went so far as toprevent anyone from my family from ever discussing that the incident had everhappened at all. This would be very difficult, if not impossible, to do for the restof everyone’s lives. We responded to the defense indicating that we would be 35
  35. 35. willing to accept their offer so long as they were willing to “tone down” theconfidentiality agreement to something more reasonable. In my experience,the confidentiality clause is generally not a deal breaker and the parties canusually work something out. We hadn’t even discussed it at the mediation. When we put the ball back in the defense’s court with the request for arelaxed confidentiality clause for only the amount of the settlement, we heardback a few days later that our request might actually be a deal breaker – thedefense wanted broad confidentiality language such that neither me nor myfamily could talk about anything that happened, could not identify how ithappened, and it would be as if the incident had never happened. The questionthat I had was simple, “How do we do this with a ten year old and his three youngsiblings?” It would have been impossible. Modifications to the language weregoing back and forth and days would go by before the defense would respondwith a counter proposal. The problem as we saw it was that we were inching closer to a trialdate. Mediation had occurred during the first week of August, the trial was setto be in September, and here we were in late August and we have an agreementas to the monetary amount but we don’t have an agreement as to confidentiality.It became clear that if the confidentiality couldn’t be agreed upon, then thewhole settlement couldn’t be agreed upon. Of course tensions were pretty high during this entire time. Afterputting up with this for a couple of weeks, Mike called the three defense lawyersand proposed that they all get together at our office to discuss the confidentialityissue. After a significant back-and-forth and excellent negotiating by Mike, thefinal version of the confidentiality clause simply stated that my family and Iwould not disclose the value of the settlement and would not identify thedefendants. My wife and I signed. After months of grueling litigation, it wasfinally over. Lesson To Be Learned Recap: Going Into A Mediation With An Open Mind, Being Willing To Listen To The Defense’s Offers, And Engaging In A Fair “Back And Forth” Is Essential. If your case ever ends up in mediation (and there is a strong chance itwill) being open minded is very important. Although you may be insulted by thedefense’s initial offer (I was very insulted), you have to be willing to consider theoffer and consider how the defense probably views your demand as beingunreasonably high. At the end of the day, everyone has risk in taking a case totrial. The plaintiff often runs the risk of having a bad jury and receiving a big fat$0 verdict. I knew that was a definite possibility in Josh’s case, and it scaredme. The defense runs the risk of having a runaway jury and having to pay a lotmore than the case is worth. I think they knew that was a possibility in Josh’scase, and is scared them. Again, the best thing you can do is approachmediation with an open mind and be willing to listen and respond accordingly.36
  36. 36. VII. Dealing With Liens: Maximizing The Amount Of Money That Ends Up In Your Pocket Lesson To Be Learned #10: Your Attorney Is Well Equipped To Negotiate Down Liens On Your Recovery In Order To Be Able To Put The Highest Possible Amount Of Money In Your Pocket. One of the biggest royal pains that you will have to deal with in an Ohiopersonal injury case is negotiating and paying liens on your recovery. Lienscan quickly become very complicated and if you don’t properly deal with themyou can find yourself in a heap of trouble with an insurance company, the Stateof Ohio, or even the U.S. Government. Trust me: you don’t want any of thoseproblems. The law in Ohio says that if a health insurance company pays outmoney to cover a person’s medical bills where the person was injured bysomeone else’s negligence, the health insurance company is entitled to bepaid back out of any future settlement of the case. This law clearly applied toJosh’s case. Specifically, because our health insurance company had paid forthe vast majority of Josh’s medical bills for the time that he was in the hospital,the health insurance company was entitled to be paid back out of our settlementwith the pool owners. In other words, the health insurance company had a“lien” on Josh’s recovery. By far, the health insurance lien was the biggest lien that we had todeal with during the settlement of Josh’s case. Suffice it to say that after Josh’sthree week hospital stay, complete with two brain surgeries and much time inintensive care, our health insurance carrier had paid out a very, very largeamount of money. In the days following the mediation, we spoke with the health insurancecompany over the telephone extensively to try and get a handle on how muchthey were expecting to be paid back out of the settlement. You see, healthinsurance companies are often willing to negotiate with law firms and oftentimes 37
  37. 37. they will reduce their lien. This is because the health insurance companyrealizes that if the attorney had not put forth the time and effort to recover themoney from the at-fault party, the health insurance company would not begetting paid anything back at all. Mike eventually ended up sending the health insurance company aletter recapping the negotiations that had been had up to that point andrequesting a significant reduction in the health insurance lien. The letter wasdetailed and indicated from a legal perspective all of the risk that we (and thehealth insurance company) would have if we failed to settle the case, includingpotentially having the case thrown out of court by the judge or having the juryfind against us. The health insurance company knew that if either of thesethings were to happen, they would also get nothing. They also knew that themore that they lowered their lien, the more likely it was that we would be able tosettle the case so that at least they would be guaranteed to get something. We eventually heard back from the health insurance company, andthey said they were willing to reduce their lien by a number that was satisfactoryto both my wife and me. In fact, I was pleasantly surprised by just how much thehealth insurer was willing to reduce their lien. I know that if it weren’t for Mike’snegotiation skills, the lien would not have been reduced nearly as much. I amglad I had such a skilled attorney handling my case! Lesson To Be Learned Recap: Your Attorney Is Well Equipped To Negotiate Down Liens On Your Recovery In Order To Be Able To Put The Highest Possible Amount Of Money In Your Pocket. You should bring an attorney into your case from “day one” so that youcan take advantage of your attorney’s advice about the best way to pay for allof the medical care and other expenses that come along with a personal injurycase. Paying your bills the smart way from day one will help to keep the liensunder control and thus maximize the amount of money that will go into yourpocket at settlement time. This makes it even easier to settle and thus save thetime, expense, and anxiety associated with trial. And of course, the more ofyour settlement that you get to keep for yourself, the better.38
  38. 38. VIII. A Structured Settlement To Last A Lifetime And Probate Court Settlement Approval A. tructuring The Settlement May Be The Smartest S Financial Option. Lesson To Be Learned #11: Your Attorney Can Advise You On The Ways That You Can Protect The Settlement Money And Make Sure It Lasts - Especially When A Child Is Involved. Once you have agreed on a settlement figure, the next question youmay ask yourself is, “What is the smartest thing to do with this money to makesure it lasts?” Although no two cases are alike, an experienced attorney will beable to answer that question for you based on the specific factors in your case. Under Ohio law, if a minor settlement is over $10,000, the money mustbe “impounded.” This means that the money must be set aside for the child ina separate court-approved account until the child turns 18. I will discuss thecourt’s involvement in the settlement process in more detail in the next sectionbelow. Maybe you think that putting the money into a CD or money market isa good option. Although the money will be safe in those instances, a CD or amoney market are virtually interest free, and whatever interest there is will betaxed. Frankly, the return on investment is absolutely horrible. Attorneys who are experienced at handling and settling injury casesunderstand that oftentimes one of the best ways to help the client in casesinvolving significant recoveries is to structure the settlement. After reaching asettlement in Josh’s case, Joann and I spoke with a structured settlementbroker to see what our options were - and that is where we ultimately ended upputting the money. A structured settlement pays out a set amount of money to the childover a period of years, often starting when the child turns 18, but other ages canbe chosen as well. In most cases involving a large settlement, putting themoney into a structured settlement makes good financial sense. For instance, 39
  39. 39. let’s say a young child is seriously injured in a car accident. With a structuredsettlement, the settlement money is automatically placed in investmentsguaranteed to produce a certain amount of money every year once the childturns 18. A structure can be set up in a variety of ways. For example, the childcould receive a lump sum at age 18, and then get set payments every month orevery year for a certain period of time. Often, parents will agree to a structuredsettlement that provides most of the money in yearly sums payable when thechild is ready for college so tuition payments can be covered. Usually, thestructure plan is funded by an annuity purchased through a life insurancecompany. The insurance companies are highly rated and regulated by the statein order to guarantee that the money will be there when the child reaches 18. For Josh, he will receive payments of “X amount” per month for the restof his life beginning at age 25. These payments are guaranteed to continue for30 years. For example, God forbid Josh were to pass away young, the paymentswould be made to his estate for at least 30 years. On the flip side, even if Joshlives to be 100 or older, the payments will still continue until the day he dies.Also, once per year, Josh will receive a payment of “Y amount” on his birthdayfor as long as he lives. If you tally it all up, Josh gets “Z amount” total per yearwhich increases 2% annually starting at age 25 - all tax free and all for the restof his life. Now maybe you see the appeal of structured settlements! “So,” you may ask, “What are the other benefits of structuredsettlements?” First, the settlement will be worth significantly more than it wouldhave been had it just been paid out at the conclusion of the case. For instance,our office handled a case (not Josh’s) where the child would have receivedapproximately $60,000 in a lump sum payment, but under the structured plan,she’ll receive approximately $160,000 by the time the payments are made.Obviously the numbers change based on the settlement, the age of the child,interest available at the time of the settlement, and the structure plan chosen. Structured settlements also offer the benefit of providing tax-freeincome to your child. Personal injury settlements in and of themselves are nottaxed, but any income generated by investing the settlement will be taxed. In astructured settlement, the money paid to your child every month or year doesnot have to be claimed as income. Contrast that to what would happen if youplaced your child’s settlement in a bank or money market account. In thosesituations, while the principle couldn’t be taxed, any income generated by theinvestment could be. So, structuring a large settlement makes good sensewhen considering the tax consequences. Structured settlements also take the burden off parents who may beunsure how to best manage their child’s settlement. Parents will know as soonas they choose a structured settlement exactly how much the settlementeventually will yield and what their child will receive through the periodic40
  40. 40. payments. That’s different than parents who try to manage the settlement ontheir own because there aren’t a whole lot of investment vehicles that guaranteea decent fixed return. And, again, any investment income yielded would betaxable if not structured. Structured settlements have the further advantage of letting parentsset up plans that prevent against unwise expenditures that some 18-year-oldsmight make. Can you imagine a kid on his 18th birthday coming into a lot ofmoney all of a sudden? We can probably all relate to the teenaged kid whosebiggest priority is buying an expensive car. We’ve represented plenty ofteenagers who can’t wait to get their hands on their money to buy a new sportscar. While many of us can relate to similar desires when we were that age, mostparents would probably not want their child to blow through the cash in lessthan a year by making those types of impulsive purchases. The structured planspreads the payments out over time, which preserves the settlement over aperiod of years - guaranteed. Sometimes children are injured so severely that they’ll have medicalexpenses and pain that will last a lifetime. Provided that there’s enoughinsurance coverage to pay for those expenses, a structured plan would beparticularly beneficial. Payments made in monthly increments hopefully wouldbe sufficient to pay for a lifetime of treatment and living expenses. If your child is injured, speak with your attorney about whether astructured settlement makes sense. It is critically important to make decisionsabout structured settlements before you accept any settlement money. This isbecause in order to do a structured settlement the insurance company itselfhas to purchase the structure in accordance with federal tax law. Because theinsurance company itself has to purchase the structure, you cannot decide at alater time after the settlement that you want to invest the money into a structure.In other words, you can’t accept a lump sum payment and then try to enter astructured plan because you lose the tax-free benefit that makes structures soappealing. To sum up how Joann and I handled Josh’s structure, we contacted areputable structured settlement broker and discussed the situation and ourgoals in detail. The broker was great, listened carefully, and was extremelyhelpful. I would be happy to refer you or any of my clients to this broker. Weultimately ended up putting half of the money with one structure company andhalf of the money with another structure company. The two companies areinvesting the money differently based on our risk/reward tolerance. Now that itis all said and done, Joann and I know that we have done our best to make surethat Josh is taken care of for a lifetime. You should do the same thing for yourchild. It is definitively to your advantage to have an attorney who has dealt withthese issues before and can make sure that you do the right thing to make themoney last. 41
  41. 41. Lesson To Be Learned Recap: Your Attorney Can Advise You On The Ways That You Can Protect The Settlement Money And Make Sure It Lasts - Especially When A Child Is Involved. As an attorney and as a parent who went through my own child’ssettlement process, I am here to tell you that it is not something for a non-attorney to try and do on their own. These processes require a significantdegree of legal sophistication and experience. A well-meaning parent canliterally cost their child hundreds of thousands of dollars by making a simplemistake during the settlement process. Avoid the potential landmines andpitfalls and contact an attorney immediately after any serious accident. B. The Probate Process and Your Child’s Settlement Lesson To Be Learned 12: The Probate Court Must Approve Minor Settlements And Legal Guidance Throughout The Process Is Critical. You may be wondering what I was referring to above when I said thatthe Probate Court would be involved in the minor settlement process. First ofall, any lawsuit brought on behalf of an injured child is done in the name of theparent or legal guardian. The parent or guardian is presumed to act in the bestinterest of the child. Therefore, any settlements, either before or after thelawsuit is filed, must be agreed to by the parents. However, parents don’t have complete control over the settlement.Some parents have the mistaken belief that they are entitled to collect theirchild’s settlement proceeds and do what they want to with the money. However,the law is clear that the settlement is for the benefit of the child and should beprotected until the child turns 18. Sometimes parents can get a portion of thesettlement for “loss of consortium” as I discussed in a previous chapter, but it’susually a relatively small amount of money. The county’s Probate Court acts toprotect the settlement so the funds are available when the child reachesadulthood. For all settlements over $10,000, the county’s Probate Court willconduct a hearing to ensure that the settlement is in the best interest of thechild. Getting the Probate Court to approve a settlement for a child adds42
  42. 42. additional time to the process, not to mention the need for additional legalexpertise. Unfortunately, this can’t be avoided, but an experienced attorneygenerally can move the settlement through the system in an efficient manner. An application to settle a minor’s claim must first be filed in the ProbateCourt. The application provides a breakdown of the settlement as well as theexpenses coming out of the settlement. It lists the unreimbursed expenses(medical and otherwise), the attorney fees, and any money going to the child’sparents for loss of consortium. The application also tells the court where thechild’s money will be kept until the child is 18. Sometimes the money will bekept in an interest bearing CD or bank account. In other situations like Idiscussed above, the money will be placed in a structured settlement that willdisperse payouts to the child over a period of years. After receiving the application, the Probate Court sets a hearing thatthe parents and child must attend. In some cases, one parent will file adocument with the court waiving his or her appearance and consenting to thesettlement. This can be helpful if one parent may have a hard time getting timeoff from work. At the hearing, the judge or magistrate will review the settlementproposal in order to make sure it is in the best interest of the child. The judge ormagistrate asks the parents if they approve the settlement and asks the attorneyfor specific information about the deal. Perhaps the most important thing parents can do to protect their child’sinterest is to find an attorney experienced at handling injury cases, particularlythose involving children. These cases can be complicated for the reasons I’vediscussed above, and the Probate Court application process and hearingrequire a certain amount of legal knowledge and sophistication. Lesson To Be Learned Recap: The Probate Court Must Approve Minor Settlements And Legal Guidance Throughout The Process Is Critical. Having an attorney by your side to handle the minor settlement processand address the court’s questions and concerns is very important. An attorneycan advise you as to the court procedure as well as what is acceptable in termsof disbursement proposals - and what is not acceptable. Having an experiencedattorney with you throughout the process can make all the difference betweenpromptly resolving the case versus having the entire matter come to ascreeching halt. Trust me: don’t try and do this alone. Contact an attorney toguide you through the legal maze. 43
  43. 43. IX. Switching Roles: The Long-Time Attorney Becomes The Client Lesson To Be Learned #13: Because Your Attorney Will Logically Evaluate Your Case, And You Will Likely Emotionally Evaluate Your Case, At Some Point Your Attorney Will Probably Give You News That You Do Not Want To Hear. A. Objective Case Evaluation vs. Emotional Involvement As a personal injury attorney, one becomes somewhat accustomed todealing with catastrophic injury cases and you learn to evaluate them in acompletely objective fashion; I make decisions based on the logical way Ianalyze the case. As the injured client, your perspective is that you want apound of flesh, justice, and an apology. You may even want to schedule a cagefight with the at-fault party. I have been there. I understand that you feel thisway. What they say is true: when answering the question, “How much is abroken arm worth?” it depends if it’s my arm or your arm. My arm is worth a lot.Your arm is not worth as much. Right? The point is that if you are analyzing asituation in which you are emotionally involved, you are going to analyze it morefavorably to yourself. You will see what happened the way that you want to seeit, not the way that 8 detached jurors would see it. I knew this. Deep down, youprobably know it too. As upset as I was, I could appreciate that I was biased in the situation,and I knew that I had to trust my legal team for objective analysis and not simplytell me what I wanted to hear. Sometimes your lawyer will tell you somethingthat you absolutely do not want to hear or refuse to believe. I will tell you a littlestory about that from Josh’s case. Under Ohio law, a pool facility such as the one where Josh was injuredcan have customers sign a “negligence waiver.” What this means is that if aninjury occurs because of the pool’s negligence, the injured person will not be44

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