Here's the article.  I'm posting this mostly because the issue is geographically near to home, but also because I know personally what junior high and high school bullying can be like. But I can only imagine how bad it must have been for this young girl. It breaks my heart. Of course kids will be kids, but there is no call for anything near the levels of sheer meanness that went on, here. We have to figure out how to do better as a society. How many kids are hurting now for similar reasons but don't go to the length of taking their lives and therefore never make the headlines? How many of you experienced similar treatment? Now in my late 30s, I know that the tides turn. There's no reason to have to go through hell to figure that out, though. And now the matter is before a court. All of that aside, I would encourage all parents to make every effort to ensure that change starts at home.

Ever wonder what an attorney looks for when you ask him or her to review a contract?  There are of course a number of things that I normally look for, many of which I hope to address in future posts.  Today, though, I just want to discuss one such thing - integration.

What is integration?  In Ohio, when a contract is considered "complete and unambiguous," then "extrinsic" (i.e., "outside") evidence, such as emails and conversations between the parties, won't be considered by a court.  (Note: Much of the material here comes from English common law that dates back ages, but for Ohio's modern adaptation of the common law, I am primarily quoting from and considering the 2007 Ohio Supreme Court Case  Bellman v. Am. Internatl. Group, which you can find for yourself online if you're interested...the citation is 113 Ohio St.3d 323.)  The idea is that if the contract itself appears to be a complete representation of the agreement between the parties, then a court will look no farther than the contract itself, but if the contract leaves terms, etc. open for interpretation, then a court can consider additional, "extrinsic" evidence to determine what the parties really meant.  In legal terms, a contract that leaves no room for ambiguity is considered fully "integrated," and a principle of law called the "parol evidence rule" (there's no "e" at the end of "parol") prevents extrinsic evidence from being introduced.

Many attorneys add what is called an "integration" clause as a boilerplate provision to all of their contracts.  An integration clause simply states that the contract is the entire agreement between the parties and that therefore no outside evidence regarding the meaning of the parties is to be considered.  But does the absence of the integration clause mean that a court can automatically look to extrinsic evidence to determine the meaning of the parties?  No, in Ohio it doesn't.  Under the Bellman case I mentioned above, the test for integration isn't whether there is an integration clause, but rather whether the contract "appears to be a complete and unambiguous statement of the parties’ contractual intent."

Early in my practice one of the first things that I would do when reviewing a contract was to look for an integration clause.  But that's not what's important.  Now, I look too see if there is anything in the contract that could be left open to interpretation - any ambiguities.  Does the contract to sell the "red car" mean the brand new red Mercedes or the 1990s red Toyota Corolla?  If it's not clear from the contract, then I want to specify which one is meant.  That way, if my client thinks he or she is getting the Mercedes and the other party delivers the Corolla, there's no question that the contract meant the Mercedes.

So the takeaway is simple - under Ohio law, it's more important for the contract to actually be complete and unambiguous than it is for there to be a clause stating that the contract is complete and unambiguous.

Please remember that these posts are for informational purposes only and should not be considered or relied on as legal advice.  If you are ever in doubt about your rights under the law, you should consult an attorney familiar with the law in your area.

Limited liability is a term you're probably familiar with.  You've heard of limited liability companies (LLCs), right?  They are one of the most popular forms of business entities.  In my practice, I certainly form more LLCs than any other type of entity.  That's probably because they are fairly easy to maintain (especially compared to the formalities required of corporations) and provide a lot of flexibility.  But limited liability also applies to other entities, such as corporations, limited liability partnerships, limited partnerships (at least somewhat), and some variations, such as the professional limited liability company (think doctors' offices, law firms, and similar "profession" businesses).  So when I talk about limited liability, here, it by and large applies to all of these types of entities, but really I'm thinking about what I encounter most, which is LLCs.  (Plus I've been doing a lot of research lately for my forthcoming book on LLCs, so they have very much been on my mind lately - there's my shameless plug.)

What is limited liability?  I think of it as a shield.  It allows your company to operate with some protection for your personal assets.  So let's say your company (not you personally) enters into a contract, breaks the contract, and then the other party to the contract sues for breach and wins.  They can come after the company, but because you didn't personally enter into the contract, they can't come after your personal stuff - your house, car, bank accounts, etc.  That's the "shield" of limited liability.  Another example - one of your employees is driving to a job in the company truck, isn't paying full attention to the road, and causes an accident where someone gets hurt.  The injured party might be able to come after the company, but again, your personal stuff is protected by the limited liability shield.

So how "limited" is limited liability?  Well. there are a handful of things that can penetrate your limited liability "shield" (the legal term for this is "piercing the corporate veil"), and covering them all is well beyond the scope of this post.  I will say that actual piercing is fairly rare.  In most of the cases I've come across where a court has allowed a creditor to penetrate through the limited liability shield, the owners of the company were either doing something bad (like trying to use the liability shield to defraud a creditor) and/or weren't treating the company as a separate entity (I wouldn't pay my home mortgage payment out of my company account...I would transfer the money from the company account to my personal account as a distribution and then pay the mortgage out of my personal account).

That brings me to the issue that I wanted to address in this post.  No matter what kind of limited liability entity you have, you are responsible for your own actions.  As the name implies, there is a "limit" to the protection that "limited" liability provides.  Too often I've encountered business owners who don't understand this.  They think that just because they have an LLC or other limited liability entity that they are completely protected.  Not so.  In the two examples above, if you signed that contract personally or if you were driving that truck yourself, the limited liability shield isn't going to be of much use, because it is your own actions that are at issue, not the company's, and you are always liable for your own actions (almost always, anyway).  This isn't an issue of piercing the corporate veil.  The corporate veil isn't in play, because in these instances it is you, not the company, who is acting.

I definitely don't want to discourage anyone from forming a limited liability entity for their business, because there are many benefits even beyond the limited liability shield (professionalism, structure and protection if you take on a partner...I could go on...).   However, I don't want you to think that just because you have a limited liability entity you are immune from liability.  It's called limited liability for a reason.

There is an old saying in the field of law, dating back a few hundred years or so to colonial-era England, that goes more or less as follows: "For every right, there is a remedy; where there is no remedy, there is no right."  I don't disagree, but it's easy to forget that just because you have a remedy doesn't mean it's worth the cost to pursue it.

Over the course of my practice I've received a number of calls from potential clients who have strong claims, but the cost to file and litigate them would outweigh any benefit that they could possibly receive (and that's assuming that they win and that if they win that they can collect).  These are legitimate wrongs, just with low-dollar price tags, and often the back story is one where the potential client is rightfully quite angry at the other party.

When I run into this situation, usually I first counsel the potential client to try to let go of the emotion and evaluate the situation objectively.  This is often much easier said than done.  Yes you were wronged.  Yes you are angry, perhaps even angry in the sort of way that can only come from when some one you trusted - someone like a friend or co-worker - wronged you in a way that makes you feel like you've been betrayed.  Yes I'd like to have your business...but I can't in good conscience advise you to hire me, because the cost to litigate is more than you'll ever recover.

A common initial reaction is to want to proceed anyway.  Why?  Because we are creatures of emotion, and there is a deep sense of pride and need for justice that being wronged seems to trigger.  If it comes to that, I tell the client to take a day and think it over, and usually, once a little time has passed and the emotion has given way to objectivity, the client agrees that it's best just to move on.

I hate giving that advice, because I can feel their emotion (and it can be contagious, especially as you hear them tell their story!) and agree that they really were wronged.  But in law, much like in life, we have to keep our emotions in check and make the decision that is in our best interest, even when that means that someone else is going to "get away with" having done us wrong, even when our emotions are screaming at us to do something very different.  In the world of law, I think this is just good legal advice.  In life, I think it's a sign of maturity.  Pick up the pieces, try to forget about it, and move on.

So where there is a right, there very well may be a remedy.  But consider, what's really in it for you?  Is it worth the cost, or is it better to let it go and move on with life?

Okay, so the title of this post might be a little bit misleading.  I could go on at length about living trusts and their benefits, such as privacy, probate avoidance, control of your estate after your death, etc.  In fact I plan on doing so in future posts.  But in this post I really just want to provide a brief analogy to try to help everyone understand what a living trust is.

I think of a living trust like a bucket that holds your stuff.  Maybe not all of your stuff, but anything you put into it, like your bank account, your personal belongings, perhaps your house, etc.  Your trustee holds that bucket of stuff.  You might be your own trustee holding your own bucket, which really isn't all that different than just holding the stuff in your hands without the bucket.  But here's the difference - if you become incapacitated or die, someone else (a new trustee) grabs the bucket and holds it for you, without having to involve the court, and then follows your instructions for what to do with the stuff that you've got inside the bucket.

If you're incapacitated, your instructions might say to pay your medical bills and to help your spouse and family maintain their standard of living.  If you die (and as things currently stand we all will), then your trustee might hold your bucket of stuff and give it out according to your instructions all at once or over time.  For example, your instructions might be for the trustee to hold onto the bucket of your stuff until your children reach a certain age, and once your children reach that age, the trustee takes your stuff out of the bucket and gives it directly to them.  This is just one example of many, many ways to set up a living trust.

There's a lot more to all of this, including what can be some very important tax considerations, but hopefully this somewhat crude analogy is helpful.  I'll be posting more on this subject in the near future.

The Consumer Financial Protection Bureau has "propos[ed] rules that would prohibit mandatory arbitration clauses that deny groups of consumers their day in court."  This is the latest in what seems to be a snowballing backlash against forced arbitration clauses, which have been a barrier to suit for injured parties in recent years.  More background and history relating to this issue is available in a number of places elsewhere, and as this has been an issue that I've been following for awhile now, I may dig deeper into the subject in future posts.  For now, here is the press release that the CFPB issued yesterday.

In Ohio (and most states), landlords are prohibited from evicting residential tenants by "self help," such as by changing the locks on the rental unit or shutting off the tenant's utilities.  To evict a residential tenant, the landlord must go through a judicial eviction, usually referred to as a "forcible entry and detainer" or "F.E.D." action.  Before the eviction can begin, the landlord is required to give a three-day notice to the tenant to vacate the property.  I've posted part of the statute below.  Lately I've received a few questions about what constitutes the three days.

Under the general provisions section of the Ohio Revised Code relating to computation of time, the three-day period does not include the day of service, but it does include the last of the three days.  In other words, three days must pass after the day of service, and then on the fourth day, you can proceed with eviction.  However, if the last of the three days falls on a Sunday or a legal holiday, then you need to add a day.

Here's part of the section from the Revised Code requiring the three-day notice:
[A] party desiring to commence an [eviction action] shall notify the adverse party to leave the premises, for the possession of which the action is about to be brought, three or more days before beginning the action, by certified mail, return receipt requested, or by handing a written copy of the notice to the defendant in person, or by leaving it at the defendant's usual place of abode or at the premises from which the defendant is sought to be evicted.
Every notice given under this section by a landlord to recover residential premises shall contain the following language printed or written in a conspicuous manner: "You are being asked to leave the premises. If you do not leave, an eviction action may be initiated against you. If you are in doubt regarding your legal rights and obligations as a tenant, it is recommended that you seek legal assistance."

Bear in mind that local rules also come into play, and they often vary from court to court.  What works in Cincinnati will not necessarily work the exact same way in Cleveland, for example.  Your best bet is to check with an attorney who is familiar with the local rules in your area.  I certainly wouldn't want to have to arrive at court for the eviction hearing only to find that I have to start all over because the notice was invalid!

Please remember that these posts are for informational purposes only and should not be considered or relied on as legal advice.  If you are ever in doubt about your rights under the law, you should consult an attorney familiar with the law in your area.

This is the first in what will be many posts about law, life, and the world as I see it.  My objective is to educate my audience, to share things that I find interesting, and to provide my perspective on the world, especially where it intersects with law.  I hope you will join me on this journey!  I encourage dialogue through comments and just ask that posts be kept respectful and professional.  And here we go...!