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Copyright 2013 by Charles E. Boyk, Michael A. Bruno, and Nicholas M. Dodosh All 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

TABLE OF CONTENTS Page: TOPIC: 7 9 I. II. Introduction To This Book 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 Couldnt Believe This Was Happening. 9 A. The Phone Call I Will Never Forget 10 B. Getting In Contact With My Wife 11 C. Arriving At The Hospital 12 D. Seeing My Eight Year Old Son In Intensive Care 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 A. Emergency Brain Surgeries 14 B. Back From The Brink: Slow Improvement 16 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. 16 A. The Grieving Process 17 B. The Three Meter (10 Foot) Diving Board



The Investigation, Legal Research, And Finding Our Expert

19 A. Learning That The Diving Board Did Not Comply With Ohio Code  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  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. 25 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. 26 D. The Pool Background  Lesson To Be Learned #7: Investigating The Background Leading Up To You Or Your Loved Ones Injury Can Be Absolutely Critical. 30 E. Getting A True Experts Perspective  Lesson To Be Learned #8: Finding The Right Expert For Your Case Can Mean The Difference Between A Successful Resolution And Getting Nothing. 34 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 Defenses Offers, And Engaging In A Fair Back And Forth Is Essential. 34 A. Preparing For The Mediation

35 B. The Fight Over The Confidentiality Clause 37 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 Approval 39 A. Structuring The Settlement May Be The Smartest 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 LastsEspecially When A Child Is Involved. 42 B. The Probate Process And Your Childs Settlement  Lesson To Be Learned #12: The Probate Court Must Approve All Minor Settlements And Legal Guidance Throughout The Process Is Critical. 44 IX. Switching Roles: The Long-Time Attorney Becomes The Client 44 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 Do Their Job  Lesson To Be Learned #14: Letting Your Attorney Take The Lead And Listening To His Advice Can Be Difficult, But It Is Essential.

48 X. Joshuas Post-Hospital Treatment And The Impact On School And Family  Lesson To Be Learned #15: Even After A Settlement, The Struggles From The Injury Often Continue On. 52 XI. How Was It To Have Chuck Boyk As A Client?

 Lesson To Be Learned #16: The Attorneys In My Office Helped Me In 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 Bruno 56 B. Chuck Boyk As A Client: A Firsthand Account From Attorney Nicholas Dodosh 58 60 About Attorney Charles E. Boyk Disclaimer


Introduction To This Book

What is your worst nightmare? What is the one thing on Earth that you would never want to have happen? For those of us with families, the answer is probably the catastrophic injury or death of a child. Many of us go through dayto-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 the summer of 2010, when it did happen to me. This is my story. Im attorney Charles Boyk. I have been practicing law in Ohio for over 29 years and I have handled over 5,000 personal injury cases ranging from small dog bite cases to catastrophic wrongful death cases. Although I work in downtown Toledo, I live in rural Bowling Green, Ohio with my Wife, Joann, and our four school-age children, Sarah, Emily, Jacob, and Joshua. Sarah and Emily are our biological children, while Jake and Joshua were adopted as infants from Korea. While I have always been sympathetic to the difficult times that my clients often go through, I had never actually been in their shoes. In other words, neither I nor my family had ever been seriously injured as a result of someone elses negligence. That all changed on August 9, 2010 when a local swimming clubs violation of important yet basic safety rules led to one of my children being critically injured. This is the story of how I learned what its like to be in your shoes as a client. I am going to tell you a story that is difficult for me to tell it is about how my eight-year-old son, Joshua, landed on his head after falling from a negligently maintained 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 the way, and ended up with a traumatic brain injury that will affect him for the rest of his life. I have felt many, if not all, of the emotions that you may be feeling right now. As if the injury and accompanying emotional toll were not enough, I had to put up with an insurance company that refused to accept liability for my sons injuries. I had to sit back and listen to unremorseful defendants insist they did nothing wrong. I had to witness teams of defense doctors and neuropsychological experts evaluating my son for days on end in an effort to try and say that he was fine. I had to deal with defense lawyers that tried to have my sons case thrown out of court and then made insultingly low settlement offers. Some of this may be happening to you right now, or, unfortunately, it

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 important and difficult things that I had to learn to do throughout the course of the case sounds so simple, but was sometimes very difficult to do: I had to trust my attorneys. I can relate to what you are going through. It is tough. I have been there. I can empathize. I am going to tell you my story in the hopes that you can find some comfort during your journey through the legal process and know that you are not alone. As you read through this book, I will show you how my sons case was a perfect example of 16 lessons to be learned when you are seeking out an attorney to handle a serious personal injury case on behalf of you or a loved one. These lessons are just as applicable to your case as they were to my sons case.

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 Couldnt Believe This Was Happening. A. The Phone Call I Will Never Forget

You probably have that moment where you were injured (or when you got 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 that will never go away. I know this because I remember August 9, 2010 like it was yesterday, and it is a day I will never forget. It was your average Monday afternoon and I was sitting in my office talking with my legal staff when the meeting was suddenly interrupted by an urgent phone call. It was the mother of a woman whose child was friends with my oldest son, Jake. She went on to tell me that she was at a local swimming pool and that my younger son, Joshua, then 8, had fallen from the three-meter high dive, had hit his head on the concrete pool deck, and was bleeding from his skull. As I was speaking with the woman, I heard in the background 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. She simply did not know. All that she could say was that there was blood, that the ambulance 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 the ambulance along with Joshua. I had to hang up not knowing how bad Joshs injuries actually were. I headed to my car and started driving in the general direction of Toledo Hospital and The University of Toledo Medical Center I knew the ambulance would head to one of those places. But, I had no idea how bad this was: was it a cut on his head, a fractured skull, could it be worse? All I knew was that he was conscious and I called my wife, Joann, from the road.

When clients or potential clients such as you come into my office for the first time to discuss their case, I am in a unique position to be able to relate to that moment when their life changed and empathize with them. I think that is one 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 and complex personal injury cases, my firm not only has a proven track record, but also has been through the personal struggles of handling a tragic case involving the bosss own son. When clients tell me their story for the first time, I can relate, 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 so happened that she was already at a doctors appointment with one of my daughters 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 had happened. Once we got off the phone, Joann called over to the pool and was told that Joshua, who we often called Josh, was not hurt that bad, but they needed to know which hospital to take him to. Seeing as how Joann was already at Toledo Hospital which is known as having an excellent pediatrics unit, 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 your injury or your loved ones injury was not that bad, only to later be told that it was life threatening. It is like a terrible roller coaster ride, and it is awful. I can relate to my clients who have been in that situation. I know what it is like, and I understand.


C. Arriving At The Hospital

When I arrived at the emergency section of the hospital, I met up with Joann. My son, Jake, met us too. He had seen Josh fall, was shaken up from riding in the ambulance with his injured brother, and he was crying and distraught. Even though Jake had been down on the pool deck and Josh fell from way up on the high dive, Jake believed it was somehow his fault that his brother had fallen. Joann and I tried to assure him that there was nothing he could have done. I believe that it is a common thing for other family members to feel as though the accident was their fault, like they could have or should have done something 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 attorneys investigation reveals that the cause of the injury was in fact a drunk driver, a dangerous product, or (like in Joshs case) a piece of recreational equipment that did not comply with Ohio code. After waiting for a moment at the hospital, a nurse came and told us that Josh was in intensive care and was unconscious. The doctor then came out and told us that Josh had a brain injury, that there was probably bleeding on the brain, and it was an emergency situation. This caused a flood of emotion for both me and my family. Josh did not have a simple bump on the head not even close. This was serious, potentially deadly. It was very tough news to hear.


D. Seeing My Eight Year Old Son In Intensive Care

We were eventually allowed to visit Josh in his intensive care room. He was unconscious (and would remain unconscious through most of his hospital stay). He was hooked up to what seemed like hundreds of tubes and wires. His head 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 the machines 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 in the 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 loved ones of the victim go through nearly as much mental trauma as the victim. I know what it is like to stand in an intensive care hospital room and look at a loved one that I would do anything for, but at the same time feel so helpless, like I can do nothing. Perhaps you have been through this same situation and can relate all too well with what I am talking about. This is one of the reasons why Ohio allows for what are referred to as loss of consortium claims. This allows the victims close family members to make claims against the at-fault party to seek compensation for all of the stress and heartache that they went through along with the victim. Both my wife and I decided to make these claims against the 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 Couldnt Believe This Was Happening. I hope the above has been helpful to you in learning about something that is special about my firm: the ability to personally relate with our clients.


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 first emergency brain surgery. The goal was to stop the bleeding on the brain. But when Josh came out of surgery and was hooked back up to the brain wave machine, the monitor was giving us bad news: there was still a bleed. The surgery had not solved the problem and the situation was actually getting even worse. The doctors did an MRI scan and determined that they needed to do an emergency second surgery to stop the brain bleed, or else there was going to 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 dont think my wife 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 and avoid damage. It was so difficult not to be able to talk to him. We all held our breaths as we waited to hear whether the second surgery had been a success or yet another failure.


B. Back from the Brink: Slow Improvement

Fortunately, the second surgery was successful at stopping the brain bleed. That was absolutely wonderful news. We had been at the hospital for two and a half days and Josh had already had two brain surgeries we were ready for someone to say something positive. Several days went by and Josh remained 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, we were at least somewhat relieved to know that the risk of imminent death from a brain bleed had passed. But then a week after Joshs admission to the hospital, just as we began to think that the worst might be over, Josh started to show signs of distress and we did not know why. Then the doctors confirmed what they had feared: Josh had come down with meningitis, which again threatened irreversible brain damage. This required him to be put on untold amounts of medication and once again caused my family and me to fall back into a terrible state of uncertainty and constantly changing emotion. Fortunately, Josh fought his way through just as he had with the two prior brain surgeries. He beat the meningitis, and after a 21-day hospital stay, two brain surgeries, and a severe meningitis complication, Josh was allowed to return home. While of course we were happy to have Josh home, there was a bittersweet component because we knew that he had suffered a traumatic brain injury and would never be the same again. I will tell you more about this a little bit later in the book. If fact, I will quote my wifes emotional testimony that she 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 with my son. I understand how you may be feeling as you make the trip home from the hospital or doctors office knowing that your world will never be the same again. 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 it

should be right up at the top of your list. Read on to learn why even though I am a lawyer, one of the first things I did after the dust settled from Joshs injury was to sit down with my colleague, attorney Mike Bruno, to discuss the beginning of what would be a long and complex personal injury case.


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 know how this feels. Backing up for a moment to the three week time span that Josh was in the hospital, either my wife or I were at Joshs bedside the entire time. We slept there, ate our meals there, and essentially lived our lives out of the hospital. During this time I learned that from a grieving perspective, you go to sleep, wake up, and you cant believe that this is really happening. None of my kids had been injured before. You may be experiencing some of these feelings right now as you are going through your own personal struggle. Another issue that I struggled with was being a part of a terrible situation that was completely out of my control. I admit that as an attorney I am a bit of a control freak. I want to know everything that is going on with any situation that I am involved in so that I can intervene and fix any problems. In the situation with Josh, I felt completely helpless, like there was absolutely nothing I could do. It was an awful feeling that I hope I never have to experience ever again. I did not even want to accept that Joshs injury had happened, let alone accept that there was nothing I could do to fix it. The first step in the grieving process for me was accepting that it really had happened. I was like most folks: I thought that things like that happen to other people, they dont happen to me. You hear a bad story and think its horrible, but you cant relate because it just doesnt happen to me. Well, now it had happened to me, and as I sat in the hospital week after week, it caused the attorney in me to come out and start thinking: why in the heck did this happen? How in the heck did he fall off the diving board? Was something not structurally correct with the board?

Although you may not be an attorney, you may be asking some of these questions too relative to your case, and that is important. Sometimes the only way to get real answers to these questions is to employ the services of an experienced personal injury law firm and have knowledgeable attorneys look into the matter. Sometimes there is a need to have a team of seasoned lawyers perform an investigation of the facts of the case in light of the law. If you read on, you will learn that is exactly what I ultimately did, and it is something you should 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 to play with their friends during the summer. I had been to the pool on only a handful of occasions to watch my childrens swim meets. I had seen the board in passing, but I never paid any sort of particular attention to it. I had no idea what the requirements were for diving boards in Ohio and had never really considered whether the board was dangerous or not dangerous. I just knew it was up really high. Also, like most people, I previously assumed the pool and the diving board were safe because the facility was in business and presumably was subject to safety inspections. Perhaps you have assumed this about certain places that you visit or products that you use. Take it from me: just because a place is open to the public or just because a company makes a product does not mean that the place or product are safe. I wanted real answers about this diving board and whether it was up to snuff. So, I did the same thing that I have done for my clients in the past and would do on your case. I started going through my lawyer checklist: what does the Ohio Revised Code say about diving boards? How about the Ohio Administrative Code regulations? Are there any national and industry standards? What does the case law say? Has the Ohio Supreme Court addressed this type of an issue or just the lower district courts? Who are the top experts in this field? What is the best way to find them? What would they say about this situation?


Rest assured that Mike and Nick were working overtime to promptly find answers to these questions. I cant imagine having a more demanding or difficult client than myself. As I said above, I am a control freak, but when it came to Joshs case I felt completely out of control. I think that I tried to make myself feel like I did have some type of control by putting more pressure than normal on Mike, Nick, and my staff. I felt like I would have more control if I took it upon myself to make sure that the investigation and the handling of the case went off without a hitch. Of course, while barking orders at my attorneys and staff might have made me feel like I had some type of control, in hindsight I realize that they knew what had to be done and my control freak attitude probably did little to change the course and outcome of the case. Returning to the story of the investigation, I knew from my experience that I would need to gather additional information about the diving board before any meaningful legal analysis would be possible. I had someone visit the pool during regular business hours, take some photos, and estimate some rough measurements. 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 are supposed 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 and exposed people to falling onto the concrete right where Josh had fallen. Now I at least knew enough about the board itself to look into whether or not it was in compliance with the law. As you read on, you will learn that what I found out was 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 heartbroken because a loved one was seriously injured or killed. It is a terrible situation to be in, I know. But it is also important not to let your pain or grief take over so much 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 going through the worst time of your life and getting a lawyer may be the last thing on your mind but it shouldnt be. Contacting a lawyer who will ask the difficult who, what, where, when, why, and how questions in the search for justice can be an important part of the recovery process and can provide you with a sense of comfort and closure.


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 to a screeching halt when the injury or death that affected you or your loved one occurred. During the entire time period when Josh was injured, I was in the process of bringing a new attorney, Nick, into my office for the purpose of doing legal research and writing. He looked into the diving board law in Ohio and wrote a memorandum that said the following. Keeping in mind that I had already confirmed that the diving boards guardrails didnt extend to the edge of the water, imagine having the following memorandum come across your desk after your child just spent three weeks in the hospital complete with two brain surgeries: TO: Chuck Boyk

FROM: Nick Dodosh RE: Diving Board Code Requirements QUESTION PRESENTED Whether the diving board at ____________________ complies with Ohio Administrative Code (OAC) standards? BRIEF ANSWER No, the diving board in question does not comply with OAC standards.


LAW AND ANALYSIS OAC 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 do not 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 the board and landing on concrete as opposed to landing safely in the water. With respect to subsection (H)(4), the code and the case law do not indicate what precisely is meant by effective side barrier, but, given the manner of Joshs injury, common sense dictates that the barrier on the board in question was not effective. Once I realized that Ohio law required that diving boards have guardrails that extend to the edge of the water, and I confirmed that the diving board that Josh fell from did not have guardrails that extend to the edge of the water (right in the area where he had fallen!), I realized that the pool was in violation 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 after year and not be in compliance with basic safety code requirements? The questions just kept piling up. Maybe you can relate to what I am saying in the situation you are going through. Maybe something just doesnt seem quite right, and in your gut you know that something is wrong. This is exactly the time when you need to pick up the phone and speak with an attorney. Attorneys know what to look for in these types of situations and are uniquely qualified to investigate personal injury and wrongful death scenarios. That is why after Joshs injury I did not act alone, even though I am an attorney. I used the services of the other attorneys in my office to investigate what happened, research the law, and make recommendations to me about the most effective course of action. You should do the same.

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 was violated in a certain case can be even more complicated. Even specially trained lawyers and judges can become confused about what a particular law actually says or means, let alone whether the law was violated in the case. A serious personal injury or wrongful death case is not the time for you or a wellmeaning loved one to play lawyer. The smartest thing for you to do from day one 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 loved one were injured. I mentioned previously how Joann and I had the membership at this pool for our boys to be able to play with their friends during the summer and I had been to the pool on only a handful of occasions and only noticed the diving board in passing. Before this incident, I had absolutely no appreciation for whether or not the guardrails on top of the three meter board extended to the edge of the water. I had never been on the board and certainly never inspected it or noticed anything significant about it. However, as a lawyer, I knew that the defense 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 open and obvious to me or my wife.


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, although dangerous, was open and obvious to anyone who would come near it, then there is no liability for any injury that occurs. This defense is often used by retail stores when someone slips and falls on a puddle of liquid on the floor they claim that the puddle, even though dangerous, was open and obvious for the customer 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 based on the open and obvious defense. You can certainly expect the same type of deceptive 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 Joshs case thrown out of court. In fact, at one point early on in the case, one of the defense lawyers told another lawyer in my office, Mike Bruno, that he thought the open and obvious defense was so strong that he would only consider settling the case for what is commonly referred to as nuisance value. In other words, the defense lawyer was saying that he believed our case was so weak that he was willing to offer my family a very small token payment just to make us go away without filing suit. Pause for a moment and think about how you would feel if your child had just spent three weeks in the hospital after falling off a diving board that did not comply with code and the defense lawyer implying that your case was a nuisance and wanted to pay you off with a tiny bit of money hoping you and your injured child would just go away. I obviously did not go away and I left it to the defense lawyer to try and establish his open and obvious defense. You should not just go away either. In Joshs case, the main tool that the defense lawyer used to try and establish the open and obvious defense was during my deposition and my wifes deposition. In most civil cases, the parties take depositions of the other parties. A deposition is a simple question and answer session where the opposing lawyer asks the other party questions under oath. A court reporter is there taking down everything that is said. I have taken hundreds of depositions of other 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 my deposition and discussing the issues in the case. The defense lawyer asked me the following question in my deposition trying to establish his open and obvious 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?



I never observed that, nor considered it significant or insignificant. I can see where its a relevant issue now, but at the time, I had no diving expertise, nor -- I mean, its not something -- I may have looked at it, but I didnt appreciate one way or the other where the rails were or where they werent.

When he asked his question, the defense lawyer was clearly trying to back me into a position where he could trick me into saying something to give him ammo for his open and obvious defense. The defense lawyer hoped that he would have better luck asking my wife a similar question. The defense lawyer 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 Joshuas accident?

A: No. The answers that my wife and I gave to these questions, while 100% true, effectively shut down the defenses open and obvious argument, at least as far as our testimony was concerned. Our strategy was then to turn the defendants own argument around on them. While they claimed that the lack of proper guarding was an open and obvious hazard as it pertained to my family members, the owners also said in their depositions that even they had never noticed the hazard which they were now claiming was open and obvious. We argued that because the pools long-time owners never noticed the hazardous condition, that showed that the hazardous condition was not open or obvious. We pointed out how one of the pool 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.

We used the owners testimony to argue that if the hazardous condition created by the unguarded section of the diving board should have been open and obvious to anyone, it should have been open and obvious to the defendants long-time owners who were very familiar with the facility. However, the owners had clearly indicated in their deposition testimony that they never even noticed the unguarded section. We argued that the court should not entertain the defendants argument that the hazard was not open and obvious to the longtime owners, but somehow was open and obvious to me, my wife, or Joshua. Although the judge never ruled on either argument because we settled the case, I believe the defense read our legal brief on the issue and said uhoh. I believe they realized that we were right, and this was the reason that they ultimately agreed to an out-of-court resolution. As an aside, this is another reason why it is so important for you to retain an attorney immediately after an incident occurs. Negligence victims often do not understand the critical importance of certain questions that they will be asked by insurance companies and claims adjusters. The adjuster often asks the questions immediately following the incident, and often the non-lawyer victim will be tricked into making a statement (or even saying a few words) that absolutely destroys their case. Insurance adjusters do this for a living. If only the victim had picked up the phone and called me earlier, we could have gone through the process from the beginning the right way and ensured a fair and just 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 defense lawyer that causes the whole case to fall apart. At that point it becomes too late and oftentimes there is little that me or any other lawyer can do to fix the damage that 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 Joshs case is only a drop in the bucket compared to the countless legal traps that can come up in your case. Chances are, most non-lawyers such as yourself will not be prepared for the tough questioning that comes along with a personal injury matter, and you may find yourself backed into a legal trap pretty quickly. This is not because you are unintelligent, it is just because you have not had the legal training 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 will be glad that you did. I know I was.


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 proving your personal injury case. After Joshs injury, I was no different. As I continued to gather information about the diving board, my lawyer brain switched into high gear again. What kind of additional investigation do we need? Do we need a private investigator? Can we get more photos of this board? What witnesses do we need to talk to? What type of experts do we need? Should we go to an attorney internet message board? Do we need to consult an expert service? The pool owners admitted in their depositions that they did not perform their own independent safety inspections and were unaware of any standards requiring diving board guardrails to extend to the edge of the water. (Ill talk more about that later.) However, the owners went on and argued to the court that while they did not personally inspect the guardrails, the county safety inspector did. This got me to thinking: isnt there some law out there that says that a pool owners duty to inspect its own pool is non-delegable, i.e. cant be passed off onto someone else? I asked Nick to look into this, and he found some Ohio cases that confirmed my suspicions. Ohio does not allow a defendant to claim ignorance and escape liability by hiding behind a health inspector. Rather, the defendant (1) has a non-delegable duty to not be ignorant, (2) has a non-delegable duty to affirmatively inspect its premises, (3) has a non-delegable duty to discover hidden 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 former employees of the pool such as pool managers and lifeguards, and we were able to show that the pool owners failed with respect to ALL of the four duties I listed above! I thought this would be a good opportunity to share with you a

brief summary of what we actually learned through taking the depositions of all the former workers. This will give you the background of how the pool and diving board came to be in such a dangerous condition, despite many prior warnings 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. The best way to do this is to have a lawyer asking the right questions for you just like I had my lawyer ask the questions in Joshs case. In all likelihood, you have matters to be dealing with after the injury apart from investigating what the law is, how it was violated, how the violation caused the injury, and exactly which injuries occurred as a result of the violation. I know I did, and thats why I put the other 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 Ones Injury Can Be Absolutely Critical. The pool where Josh fell opened to the public back in the 1960s. The people who owned the pool at the time of Joshs injury purchased it in the 1980s and had been the owners ever since. The pool had not been significantly modified since the current owners bought the place. My family and I became members at the pool in 2006. I was not personally involved in signing up my family for membership and so I never received or read an application or any similar paperwork. The only paperwork from the pool that was signed by anyone from my family was as an initial membership application that my wife signed. This application did not include any legal disclaimers and did not talk about any rules or regulations. My wife does not remember ever being handed a copy of the pools rules or regulations, does not remember ever reading that kind of thing, and was never informed that our family would be using the pool at our own risk. 1. The Pools 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 a pool manager who had the job of overseeing the day-to-day pool operation along with the owners themselves. If the pool manager believed that any changes were necessary in the pool area, then he would speak to the pool owners, who would then approve or disapprove of the managers suggestion.


The man who was the pool manager at the time of Joshs injury began working at the club in 2006 and continued to do so until December of 2010. He held many positions throughout this time, including pool manager, facility manager, and general manager. During late April or early May of 2006, he told the pool owners that he was surprised that they were able to keep the three meter board in use based upon safety issues and insurance costs. The owners simply told him that the three meter board was not costing the club very much money in terms of insurance premiums. We also learned during depositions that there had been another safety related incident on this diving board. Specifically, in 2009 a seven-year-old child fell from the three meter diving boards ladder and injured his head on the concrete deck below. The next day, the manager spoke to the owners about the need to either remove the three meter board completely or reinstate a rule that the pool used to have restricting the diving board to children ten years of age and older. The pool owners said that they did not want to remove the board, but initially agreed to restrict the boards use to children ten years of age and older. The manager then told the lifeguards about the new ten and over rule and even made an announcement to the membership by public address system that same afternoon informing them of the new policy. However, approximately three to four days later, the manager learned from the lifeguard staff that the pool owners had come to the lifeguards directly and instructed them to stop enforcing the minimum age requirement and to allow children of all ages to use the three meter board. In late February or early March of 2010, the manager had a discussion with one of the owners about covering the entire diving deck area with protective padding to cushion the fall for a child (like Josh) who might fall from any area of any of the diving boards. Rather than adopt the managers suggestion, the owner instructed the manager to draw a diagram showing how much padding would be needed to cover just the small area at the base of the ladder of the three meter board. Based on the managers diagram, the owners ordered a small amount of padding which the manager then installed under the ladder early in the 2010 pool season. This obviously did not help to cushion the landing for a diver who fell near the edge of the pool where Josh fell. All of this shows that when the manager made suggestions for safety related improvements in and around the pool area, the owners would often state 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 Joshs fall clearly showed that there was no guardrail or other safety device to prevent a diver from falling off the board at the one foot four inch (1 4) area where the guardrail ended but before the water began. The guardrails stopped a full one

foot and four inches short of the edge of the swimming pool, which exposed divers to a significant risk of a fall onto the concrete below in this unguarded area. In light of this undisputed fact, the diving board was in violation of the Ohio Administrative Code and many other safety standards. We made this clear 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 that apply to public swimming pools. They did not have any books or resources and they did not subscribe to any periodicals or trade journals to keep current in the industry or to help in understanding what the rules were for the pool that they owned and operated for a profit. They did not discuss or share information with other pool owners, they never had a third party safety audit, they never brought in any outside consultants to help keep current with swimming pool industry standards, and they never attended any swimming pool risk management seminars. Rather, the owners relied only on health department inspections to let them know if there were any violations or any changes in swimming pool industry standards including standards addressing serious and potentially life threatening safety hazards associated with the diving boards. This complete lack 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 and Jacob at the pool. Based on the pool rules, both boys were allowed to be at the pool and were permitted to use the three meter diving board. Specifically, the pool 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 been members of the swim team, were capable swimmers, and were experienced with diving boards. The lifeguards even said in their depositions that Josh was a well behaved swimmer, was not a troublemaker, and they did not often have to blow a whistle at him. Around mid-afternoon, Josh and Jake went over to the diving area to use the diving boards. Josh climbed the ladder, walked toward the end of the board, and briefly looked down from the board to ask his brother, who was down on the diving deck, what kind of jump he should do. (Our pool expert would later say that divers and jumpers often walk to the end of the diving board to look down at their entry point to see that the landing area in the swimming pool is clear, as the boards length and width blocks the view of the water under the tip of the diving board so checking the point of entry is not dangerous or unreasonable.) After receiving an answer from his brother, Josh took a few steps back to prepare for his forward takeoff as many divers and jumpers do.

Unfortunately, Josh took an odd step in the precise one foot four inch area of the board where there were no guardrails, he fell sideways off of the right side of the three meter high dive, and he hit his head on the unpadded concrete below. The lifeguard who was in the lifeguard chair at the diving well closest to Josh said that Joshs behavior on the diving board was completely normal and that 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 me upset during the course of the depositions, but there are a few things that stick out as being particularly upsetting as the parent of an injured child. First, if the pool owners hadnt discontinued the ten and over age limit, Josh would not have been permitted on the board and would never have fallen. Second, if the guardrails had been in place like the law required, Josh would not have fallen. Third, if the owners hadnt disregarded the managers suggestion to install padding throughout the diving deck area, Josh would not have been so severely injured. I take no issue with the lifeguards. I believe they did exactly what they had been trained to do. Immediately after the fall, the lifeguards gave the three whistle emergency signal and responded immediately to attend to Joshuas severe injuries. Based on what we learned in depositions, we argued that the court should not throw the case out based on the pool owners we didnt know argument. Such an argument was not a defense given that (1) the diving board had been in existence since the 60s and (2) the pool owners had failed to comply with their non-delegable duty to inspect the board, which resulted in catastrophic injuries to my son. I eventually learned that the county safety inspections were a joke and the inspectors didnt even know or understand the law. One of the inspectors even stated in a deposition that he had never gone up on the board because he had fallen as a child and was scared of diving boards. And this was the safety inspector! When I realized what the guidelines were and how there was not even an effort to meet the guidelines, it was almost unimaginable. It was 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 Ones Injury Can Be Absolutely Critical. As you know from reading everything above, we investigated the entire history of the pool where Josh was injured and we learned a lot of helpful information in the process. The information we learned ultimately helped us to prove our case and successfully reach a settlement. The same thing needs to be done in your case. Whether you are dealing with a catastrophic car accident or serious workplace injury, the history of what the other driver was doing that night (drinking? texting?) or what management had done in the plant (take a guard off a machine?) must be established. Only then can the case move forward towards a fair and just resolution.

E. Getting A True Experts 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 your case. For example, if you or a loved one were a victim of medical malpractice during a complex surgery, you may realize that you need a neutral doctor to go through the surgical record and decipher what happened. In Joshs case I knew that we needed an aquatics and diving expert, but the question was who to 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 resource available to make sure that we find a perfect match. We do everything from utilizing professional expert referral services to making posts on plaintiffs lawyers email listservs which connect thousands of lawyers from across the country. We used these same methods on my sons case. During the course of our research, we ended up talking with the head of the diving program at The Ohio State University who referred us directly to an individual who is perhaps the most prominent expert in the field of aquatics in the entire country. He is a man named Dr. Thomas J. Griffiths. Dr. Griffiths is President of the Aquatic Safety Research Group, LLC teaching Aquatic Risk Management programs internationally. He was the Director of Aquatic and Safety Officer for Intercollegiate Athletics at Penn State University from 1986 until 2009. During this time period, Dr. Griffiths continually and consistently managed aquatic facilities and supervised lifeguards fulltime. While at Penn State University Dr. Griffiths oversaw eight diving boards including a 5, 7, and 10 meter diving platform. Dr. Griffiths has published four videos, six textbooks, hundreds of articles, has appeared on national radio and TV many times, and has won numerous water safety awards. He had also acted as an expert on numerous occasions in litigation where the plaintiff was injured by falling from a diving board and hitting the deck below. Needless to say, Dr. Griffiths was the expert that we had been looking for.

My firm immediately retained Dr. Griffiths prior to filing suit, flew him to Ohio, and had him personally inspect the pool and diving board. As I had suspected, Dr. Griffiths found numerous faults with the diving board and wrote a report indicating that the following points of negligence directly led to the serious 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 importance of locating a knowledgeable expert to lay out all of the ways that an injury could have been prevented. As I discussed a little earlier in this book, one of the big legal defenses that the pool owners kept waving in my face was their argument that the dangerous condition on the diving board was open and obvious. They argued that if the dangerous condition was open and obvious, then they were not liable for Joshs injury under Ohio law. Dr. Griffiths played a key part in shutting down the defenses argument. In fact, he specifically indicated that the hazard WOULD NOT be obvious to pool patrons such as my family members simply seeking to enjoy a summer afternoon at the pool. In fact, Dr. Griffiths stated in his 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

operators and so forth, and whove studied it. Theyre 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? Because I dont believe they realize, they havent 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 the hazard was not open and obvious to my wife and me, there was no basis for the defenses request to have the lawsuit thrown out of court. I believe the defense heard us loud and clear, and this is one of the reasons we were able to settle the matter out of court without the need for a trial. Dr. Griffiths also assisted us in making the point that although the hazard was not open and obvious to me or my family members, it absolutely should have been noticed by the pools 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? Absolutely, because its spelled out in the Code, absolutely.


Finally, Dr. Griffiths assisted us in making the point that the pool owners had been in violation of several pool industry standards of which they should have been in compliance. He made the important point that if the violation of an industry standard could result in death or paralysis, then the standard must be followed. Because a fall from a three meter diving board could result in death or paralysis, industry standards designed to prevent such a fall from happening such as standards requiring diving board guardrails to extend to the edge of the water must be followed. Because such standards must be followed, the pool owners in my sons case had a legal duty to be aware of such standards and inspect for compliance. Because the pool owners in my sons case did not do that, the pool owners would likely have been found to be liable for Joshs injuries had the case gone to trial.


As you can see, Dr. Griffiths testimony was critical. In any case that my firm handles, one of the first big questions we address is: do we need an expert, and if so, who is the perfect match? We then spring into action to find the right expert, and we will do this on your case as well. I was so pleased with the job that Dr. Griffiths did on Joshs case that I can almost promise you that if you or a loved one have been the victim of a pool injury or wrongful death, one of 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 right expert 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 it is so important for you to seek out a knowledgeable attorney who is well experienced in complex personal injury cases. Such a lawyer will either know the right expert for your case right off the bat, or will know how to take the right steps to find the perfect expert just like my lawyers did on Joshs case.


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 Defenses 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 voluntary process where the plaintiff(s), defendant(s), and their attorneys get together along with a neutral mediator. The mediators job is to try and get the parties to resolve the case for a mutually agreeable settlement number. Typically, everyone involved in the mediation will meet briefly at the beginning and state their position on the case for everyone else to hear. After that, the parties split up into different rooms and the mediator goes back and forth between the rooms communicating messages, offers, and counter offers, all while trying to convince everyone involved of the benefits of a mutually agreeable settlement as opposed to rolling the dice at trial. Normally leading up to a mediation you have quite a bit of cushion between the mediation date and the trial date. In Joshs case, it was clear that the defense wanted to push back the July 2012 trial date because they filed a motion in February of 2012 asking the judge to do just that. The judge granted their motion and pushed the trial date back by two months, so that meant we had to do the mediation in July or early August of 2012. One of the biggest challenges that we had to deal with as the mediation date got closer was putting together enough evidence to project what Joshs future medical bills would be throughout the course of his lifetime (as well as his likely career aspirations and educational attainment). Those are the things that we figured were necessary to give to the defense in order for them to do a proper evaluation of the case. However, some of our medical experts werent willing to put those types of things in writing. So, we had to rely on their deposition testimony instead. One of our experts was a neuropsychological expert and another was a physiatrist. Neuropsychologists study the structure and function of the brain dealing with specific psychological processes and behaviors. They do this by using 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 people move. Our neuropsychological expert gave a lot of testimony about how far Josh would be able to go in school. Our physiatrist expert gave extensive testimony on how Joshs injuries would impact his function and performance

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 mediation specifically outlining all of our claimed damages in detail and stating a specific number for which we would settle the case. We were successful in getting this information sent to the defense just in time. We got the defense to agree to the mediator that we wanted, Mr. Robert Hanson, who is known throughout the state as being the best of the best. I had used him for a prior large case that I had handled and he definitely impressed me 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 could get us ready. Finally, the day of the mediation arrived. During the mediation we were up in our offices conference room and the defense was down on another floor of the building. Our mediation was a little bit different in that we never even saw anyone from the other side, even at the end of the mediation. It was simply visits back and forth by the mediator, Mr. Hanson. It took us a while of going back and forth, but eventually we agreed to reduce our demand significantly from where it had originally been. This was tough to do, but it caused the defense to raise their offer to a more reasonable amount. We were moving in the right direction: towards a settlement. This decreased demand/increased offer continued to go back and forth for a long period of time. It was an all-day and intense session. It eventually became clear that we were not going to settle the case on the day of the mediation because we were just too far apart. Joann and I were not happy about this, but at least progress had been made. The mediator asked us to stay in touch and asked both sides to reevaluate their positions. We waited until the following Monday and we were told that there was going to be a new offer coming from the defense. Mike then received a call from the mediator and was told that some decisions had been made over on the defense end and that we would soon be receiving a letter with an offer. We then received 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, the confidentiality relates to the amount of the settlement, but the parties are still free to discuss other aspects of the case. Here, the defenses initial proposed confidentiality clause was much, much more detailed and went so far as to prevent anyone from my family from ever discussing that the incident had ever happened at all. This would be very difficult, if not impossible, to do for the rest of everyones lives. We responded to the defense indicating that we would be

willing to accept their offer so long as they were willing to tone down the confidentiality agreement to something more reasonable. In my experience, the confidentiality clause is generally not a deal breaker and the parties can usually work something out. We hadnt even discussed it at the mediation. When we put the ball back in the defenses court with the request for a relaxed confidentiality clause for only the amount of the settlement, we heard back a few days later that our request might actually be a deal breaker the defense wanted broad confidentiality language such that neither me nor my family could talk about anything that happened, could not identify how it happened, and it would be as if the incident had never happened. The question that I had was simple, How do we do this with a ten year old and his three young siblings? It would have been impossible. Modifications to the language were going back and forth and days would go by before the defense would respond with a counter proposal. The problem as we saw it was that we were inching closer to a trial date. Mediation had occurred during the first week of August, the trial was set to be in September, and here we were in late August and we have an agreement as to the monetary amount but we dont have an agreement as to confidentiality. It became clear that if the confidentiality couldnt be agreed upon, then the whole settlement couldnt be agreed upon. Of course tensions were pretty high during this entire time. After putting up with this for a couple of weeks, Mike called the three defense lawyers and proposed that they all get together at our office to discuss the confidentiality issue. After a significant back-and-forth and excellent negotiating by Mike, the final version of the confidentiality clause simply stated that my family and I would not disclose the value of the settlement and would not identify the defendants. My wife and I signed. After months of grueling litigation, it was finally over. Lesson To Be Learned Recap: Going Into A Mediation With An Open Mind, Being Willing To Listen To The Defenses 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 it will) being open minded is very important. Although you may be insulted by the defenses initial offer (I was very insulted), you have to be willing to consider the offer and consider how the defense probably views your demand as being unreasonably high. At the end of the day, everyone has risk in taking a case to trial. 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 Joshs case, and it scared me. The defense runs the risk of having a runaway jury and having to pay a lot more than the case is worth. I think they knew that was a possibility in Joshs case, and is scared them. Again, the best thing you can do is approach mediation with an open mind and be willing to listen and respond accordingly.

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 Ohio personal injury case is negotiating and paying liens on your recovery. Liens can quickly become very complicated and if you dont properly deal with them you can find yourself in a heap of trouble with an insurance company, the State of Ohio, or even the U.S. Government. Trust me: you dont want any of those problems. The law in Ohio says that if a health insurance company pays out money to cover a persons medical bills where the person was injured by someone elses negligence, the health insurance company is entitled to be paid back out of any future settlement of the case. This law clearly applied to Joshs case. Specifically, because our health insurance company had paid for the vast majority of Joshs medical bills for the time that he was in the hospital, the health insurance company was entitled to be paid back out of our settlement with the pool owners. In other words, the health insurance company had a lien on Joshs recovery. By far, the health insurance lien was the biggest lien that we had to deal with during the settlement of Joshs case. Suffice it to say that after Joshs three week hospital stay, complete with two brain surgeries and much time in intensive care, our health insurance carrier had paid out a very, very large amount of money. In the days following the mediation, we spoke with the health insurance company over the telephone extensively to try and get a handle on how much they were expecting to be paid back out of the settlement. You see, health insurance companies are often willing to negotiate with law firms and oftentimes

they will reduce their lien. This is because the health insurance company realizes that if the attorney had not put forth the time and effort to recover the money from the at-fault party, the health insurance company would not be getting paid anything back at all. Mike eventually ended up sending the health insurance company a letter recapping the negotiations that had been had up to that point and requesting a significant reduction in the health insurance lien. The letter was detailed and indicated from a legal perspective all of the risk that we (and the health insurance company) would have if we failed to settle the case, including potentially having the case thrown out of court by the judge or having the jury find against us. The health insurance company knew that if either of these things were to happen, they would also get nothing. They also knew that the more that they lowered their lien, the more likely it was that we would be able to settle the case so that at least they would be guaranteed to get something. We eventually heard back from the health insurance company, and they said they were willing to reduce their lien by a number that was satisfactory to both my wife and me. In fact, I was pleasantly surprised by just how much the health insurer was willing to reduce their lien. I know that if it werent for Mikes negotiation skills, the lien would not have been reduced nearly as much. I am glad 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 you can take advantage of your attorneys advice about the best way to pay for all of the medical care and other expenses that come along with a personal injury case. Paying your bills the smart way from day one will help to keep the liens under control and thus maximize the amount of money that will go into your pocket at settlement time. This makes it even easier to settle and thus save the time, expense, and anxiety associated with trial. And of course, the more of your settlement that you get to keep for yourself, the better.


VIII. A Structured Settlement To Last A Lifetime And Probate Court Settlement Approval A. S  tructuring The Settlement May Be The Smartest 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 you may ask yourself is, What is the smartest thing to do with this money to make sure it lasts? Although no two cases are alike, an experienced attorney will be able 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 must be impounded. This means that the money must be set aside for the child in a separate court-approved account until the child turns 18. I will discuss the courts involvement in the settlement process in more detail in the next section below. Maybe you think that putting the money into a CD or money market is a good option. Although the money will be safe in those instances, a CD or a money market are virtually interest free, and whatever interest there is will be taxed. Frankly, the return on investment is absolutely horrible. Attorneys who are experienced at handling and settling injury cases understand that oftentimes one of the best ways to help the client in cases involving significant recoveries is to structure the settlement. After reaching a settlement in Joshs case, Joann and I spoke with a structured settlement broker to see what our options were - and that is where we ultimately ended up putting the money. A structured settlement pays out a set amount of money to the child over a period of years, often starting when the child turns 18, but other ages can be chosen as well. In most cases involving a large settlement, putting the money into a structured settlement makes good financial sense. For instance,

lets say a young child is seriously injured in a car accident. With a structured settlement, the settlement money is automatically placed in investments guaranteed to produce a certain amount of money every year once the child turns 18. A structure can be set up in a variety of ways. For example, the child could receive a lump sum at age 18, and then get set payments every month or every year for a certain period of time. Often, parents will agree to a structured settlement that provides most of the money in yearly sums payable when the child is ready for college so tuition payments can be covered. Usually, the structure plan is funded by an annuity purchased through a life insurance company. The insurance companies are highly rated and regulated by the state in 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 rest of his life beginning at age 25. These payments are guaranteed to continue for 30 years. For example, God forbid Josh were to pass away young, the payments would be made to his estate for at least 30 years. On the flip side, even if Josh lives 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 birthday for as long as he lives. If you tally it all up, Josh gets Z amount total per year which increases 2% annually starting at age 25 - all tax free and all for the rest of his life. Now maybe you see the appeal of structured settlements! So, you may ask, What are the other benefits of structured settlements? First, the settlement will be worth significantly more than it would have been had it just been paid out at the conclusion of the case. For instance, our office handled a case (not Joshs) where the child would have received approximately $60,000 in a lump sum payment, but under the structured plan, shell 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-free income to your child. Personal injury settlements in and of themselves are not taxed, but any income generated by investing the settlement will be taxed. In a structured settlement, the money paid to your child every month or year does not have to be claimed as income. Contrast that to what would happen if you placed your childs settlement in a bank or money market account. In those situations, while the principle couldnt be taxed, any income generated by the investment could be. So, structuring a large settlement makes good sense when considering the tax consequences. Structured settlements also take the burden off parents who may be unsure how to best manage their childs settlement. Parents will know as soon as they choose a structured settlement exactly how much the settlement eventually will yield and what their child will receive through the periodic

payments. Thats different than parents who try to manage the settlement on their own because there arent a whole lot of investment vehicles that guarantee a decent fixed return. And, again, any investment income yielded would be taxable if not structured. Structured settlements have the further advantage of letting parents set up plans that prevent against unwise expenditures that some 18-year-olds might make. Can you imagine a kid on his 18th birthday coming into a lot of money all of a sudden? We can probably all relate to the teenaged kid whose biggest priority is buying an expensive car. Weve represented plenty of teenagers who cant wait to get their hands on their money to buy a new sports car. While many of us can relate to similar desires when we were that age, most parents would probably not want their child to blow through the cash in less than a year by making those types of impulsive purchases. The structured plan spreads the payments out over time, which preserves the settlement over a period of years - guaranteed. Sometimes children are injured so severely that theyll have medical expenses and pain that will last a lifetime. Provided that theres enough insurance coverage to pay for those expenses, a structured plan would be particularly beneficial. Payments made in monthly increments hopefully would be sufficient to pay for a lifetime of treatment and living expenses. If your child is injured, speak with your attorney about whether a structured settlement makes sense. It is critically important to make decisions about structured settlements before you accept any settlement money. This is because in order to do a structured settlement the insurance company itself has to purchase the structure in accordance with federal tax law. Because the insurance company itself has to purchase the structure, you cannot decide at a later time after the settlement that you want to invest the money into a structure. In other words, you cant accept a lump sum payment and then try to enter a structured plan because you lose the tax-free benefit that makes structures so appealing. To sum up how Joann and I handled Joshs structure, we contacted a reputable structured settlement broker and discussed the situation and our goals in detail. The broker was great, listened carefully, and was extremely helpful. I would be happy to refer you or any of my clients to this broker. We ultimately ended up putting half of the money with one structure company and half of the money with another structure company. The two companies are investing the money differently based on our risk/reward tolerance. Now that it is all said and done, Joann and I know that we have done our best to make sure that Josh is taken care of for a lifetime. You should do the same thing for your child. It is definitively to your advantage to have an attorney who has dealt with these issues before and can make sure that you do the right thing to make the money last.


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 childs settlement process, I am here to tell you that it is not something for a nonattorney to try and do on their own. These processes require a significant degree of legal sophistication and experience. A well-meaning parent can literally cost their child hundreds of thousands of dollars by making a simple mistake during the settlement process. Avoid the potential landmines and pitfalls and contact an attorney immediately after any serious accident. B. The Probate Process and Your Childs 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 that the Probate Court would be involved in the minor settlement process. First of all, any lawsuit brought on behalf of an injured child is done in the name of the parent or legal guardian. The parent or guardian is presumed to act in the best interest of the child. Therefore, any settlements, either before or after the lawsuit is filed, must be agreed to by the parents. However, parents dont have complete control over the settlement. Some parents have the mistaken belief that they are entitled to collect their childs 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 be protected until the child turns 18. Sometimes parents can get a portion of the settlement for loss of consortium as I discussed in a previous chapter, but its usually a relatively small amount of money. The countys Probate Court acts to protect the settlement so the funds are available when the child reaches adulthood. For all settlements over $10,000, the countys Probate Court will conduct a hearing to ensure that the settlement is in the best interest of the child. Getting the Probate Court to approve a settlement for a child adds

additional time to the process, not to mention the need for additional legal expertise. Unfortunately, this cant be avoided, but an experienced attorney generally can move the settlement through the system in an efficient manner. An application to settle a minors claim must first be filed in the Probate Court. The application provides a breakdown of the settlement as well as the expenses coming out of the settlement. It lists the unreimbursed expenses (medical and otherwise), the attorney fees, and any money going to the childs parents for loss of consortium. The application also tells the court where the childs money will be kept until the child is 18. Sometimes the money will be kept in an interest bearing CD or bank account. In other situations like I discussed above, the money will be placed in a structured settlement that will disperse payouts to the child over a period of years. After receiving the application, the Probate Court sets a hearing that the parents and child must attend. In some cases, one parent will file a document with the court waiving his or her appearance and consenting to the settlement. This can be helpful if one parent may have a hard time getting time off from work. At the hearing, the judge or magistrate will review the settlement proposal in order to make sure it is in the best interest of the child. The judge or magistrate asks the parents if they approve the settlement and asks the attorney for specific information about the deal. Perhaps the most important thing parents can do to protect their childs interest is to find an attorney experienced at handling injury cases, particularly those involving children. These cases can be complicated for the reasons Ive discussed above, and the Probate Court application process and hearing require 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 process and address the courts questions and concerns is very important. An attorney can advise you as to the court procedure as well as what is acceptable in terms of disbursement proposals - and what is not acceptable. Having an experienced attorney with you throughout the process can make all the difference between promptly resolving the case versus having the entire matter come to a screeching halt. Trust me: dont try and do this alone. Contact an attorney to guide you through the legal maze.


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 to dealing with catastrophic injury cases and you learn to evaluate them in a completely objective fashion; I make decisions based on the logical way I analyze the case. As the injured client, your perspective is that you want a pound of flesh, justice, and an apology. You may even want to schedule a cage fight with the at-fault party. I have been there. I understand that you feel this way. What they say is true: when answering the question, How much is a broken arm worth? it depends if its 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 a situation in which you are emotionally involved, you are going to analyze it more favorably to yourself. You will see what happened the way that you want to see it, not the way that 8 detached jurors would see it. I knew this. Deep down, you probably 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 simply tell me what I wanted to hear. Sometimes your lawyer will tell you something that you absolutely do not want to hear or refuse to believe. I will tell you a little story about that from Joshs case. Under Ohio law, a pool facility such as the one where Josh was injured can have customers sign a negligence waiver. What this means is that if an injury occurs because of the pools negligence, the injured person will not be

able to make a negligence claim against the pool. This was one of the major defenses that the pool owners used to try and have Joshs case thrown out of court. Specifically, the defense was arguing that my wife and I had completely waived our right to bring a lawsuit by signing the pool membership application. Legally speaking, they argued that the plaintiffs expressly assumed the risk of personal injuries. It all came down to whether or not the membership application that my wife signed when we became members contained a legal waiver that was actually enforceable. If we were right that the alleged waiver was not enforceable, the case was probably not going to be tossed out of court. If the defense was right, the case was going to be lost. Nick brought me some legal research on this issue which indicated that, when evaluated objectively, it was actually a close call: we might be right or the defense might be right. While in hindsight, yes, it was a close call, at the time I did not even want to accept that there was even a possibility that the defense could be right and that the case could be thrown out of court. In my personally involved emotional state, I was of the mindset that any case law or legal research that supported the defenses position was just stupid and outrageous. That would not be justice! The diving board that injured my son did not even comply with code! So what if we had signed a negligence waiver! As an attorney, deep down I did realize that the waiver issue was a problem, and the defense had a legitimate argument. I recall going into Nicks office (he was writing a legal brief on the issue at the time) and telling him, Whatever you do, win this. I wanted to make the point that whatever we needed to within the bounds of the law and ethics, we were going to do. It had become personal. Lesson To Be Learned Recap: 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. Although I know from personal experience that it can be very difficult, you need to be able to take a step back from your case for a moment and at least realize that you are not evaluating the case from a logical perspective, but that you are emotionally involved. You need to realize that your attorney is basing his evaluation of your case on logic and reason backed up by many, many years of experience of handling these exact types of cases. These two forces of your emotion vs. your attorneys logic will likely butt heads at some point. It happened in my case, and it will probably happen in yours. That brings me to my next point: you have to make sure that you have an attorney that you trust, and then let them do their job.


B. Finding An Attorney You Trust, And Then Letting Them Do Their Job Lesson To Be Learned #14: Letting Your Attorney Take The Lead And Listening To His Advice Can Be Difficult, But It Is Essential.

As a veteran attorney and also as someone who was dragged through two years of highly personal and emotional litigation as a client, I learned countless things that are too numerous to share in this book. But the most important thing that I learned about the legal process from the clients perspective is this: use your logical and objective side to find an attorney that you like and trust, tell them as much as you can about the specifics of the situation and how it happened, and then do the hardest part: get out of the way and let your attorney do his or her job. Trust yourself enough to realize that your objective and logical side chose this person to represent you, but also realize that your emotional side will begin to rear its head the second your attorney tells you something you may not want to hear about the case. You mantra should be: I am emotionally involved in this situation, and rightfully so, but I cannot evaluate this situation rationally or objectively. I have a well trained and experienced attorney that my rational and objective side chose. I need to listen to my lawyer. As the old saying goes, Somebody who represents himself has a fool for a client. I believe this is true, even if the client is a long time attorney. That is why I trusted my case to Mike and Nick, and as difficult as it was, I listened to what they told me and took their advice. You should do the same, even if you choose to take your case to a firm other than mine. After all, if the client starts to step into the attorneys shoes and insists on making key decisions about how the case will be handled, then guess who is running the show: the fool. Not a good situation to be in. Lesson To Be Learned Recap: Letting Your Attorney Take The Lead And Listening To His Advice Can Be Difficult, But It Is Essential. Allowing your attorney to take the reins and following his advice may possibly be one of the most challenging things that you ever do. There is good reason for this: you are likely going through one of the most difficult times of

your life. It was especially difficult for me as a client to hand control over to Mike and Nick because I myself am an attorney and a part of me kept thinking that I could put the emotion aside and put on my logic hat. But now that Joshs case has resolved and I look back on those two years, I am here to tell you: when it comes to being the parent of an injured child, there is no logic hat. Letting your attorney take the lead and listening to his advice can be difficult, but it is essential.


X. Joshs Post-Hospital Treatment And The Impact On School And Family

Lesson To Be Learned #15: Even After A Settlement, The Struggles From The Injury Often Continue On. My wife and I were relieved when Josh was released from the hospital, but it was really just the beginning of Joshs struggle. Having dealt with people who had suffered brain injuries, I knew the damage could be permanent and that we may not actually know the true extent of the injury for a long time. As an experienced personal injury attorney, I had seen a lot of scary results of people who had traumatic brain injuries and were never the same again. For Josh, he went from being an above average student to one who struggled. He developed behavior and concentration difficulties that he never had before his brain injury. I have thought about how to best tell you this part of the story involving Joshs continuing struggles, but I think my wife did the best job during her November, 2011 deposition testimony while being cross examined by the defense lawyer. This is because between the two of us, Joann was the one who by far did the most work in terms of Joshs care after he was released from the hospital. I definitely give her all of the credit for taking care of Josh during a very difficult and stressful time. Here is her deposition testimony: Q. Now that its 15 months post-accident, I know everybody has a little bit better idea about Joshuas recovery. As the mother and a person who is taking a prime interest in his recovery, would you say that hes fully recovered to his pre-accident status? A. No. Q. And why not? A. He is now on ADHD medication, he has very much difficulty in school in terms of remembering and comprehending, he has been recently determined to have hearing loss in his left ear, he is hot48

tempered and can be very difficult to deal with. Q. And what are the issues in school that you say he has difficulty with? A. He has difficulty with reading comprehension; he has difficulty remembering almost anything, which would be including addition facts, multiplication facts; he has difficulty writing his thoughts down on paper; he has some difficulty paying attention and focusing, which is related to the hyperactivity attention problem; and he is struggling in virtually every academic aspect of school. Q. Is he confident in his physical abilities after the accident? A. I would say at a reduced level. Q. Why do you say that? A. Hes been a soccer player for his entire -- because our older children are so Joshua has been playing since hes been old enough to play and he has changed from a very -- hes a small boy, but a very aggressive type soccer player, somebody who goes out there, to a kid who we are now considering removing from the team because he is absolutely the worst child on the team. Hes just not the same child as he used to be. Q. How has this accident with Joshua affected your life?

A. In the immediate, obviously, time after the accident, he was in the hospital and then he came home and he had rehab, considerable numbers of rehab and he needed constant supervision. So for a period of time, he -- his accident consumed my life. I mean, if I wanted to do anything, I needed a babysitter because we really could not trust him alone at all. After he went back to school, tremendous amount of time with the schoolwork, with the tutors, working with the school to get Joshua the help that he needs, which we continue to do. And his behavior, I mean, hes very difficult, I mean, being trapped in a car with a child, you know, screaming at you every single day multiple times a day, just the stress level of dealing with a child who gets upset very easily and goes off the deep end, you know, is very difficult to manage, that -- you know, its not an all-inclusive, but, basically, hes just very difficult to deal with every day. Obviously, Joshua was kept nearly in a coma for what ended up being almost two weeks with the meningitis and, I mean, during the initial time before the meningitis when he -- the brain was swelling, it was every day not really knowing who was going to -- if he was going

to wake up, which we felt he was, but who was going to wake up, are we even going to recognize this person. Not really knowing how badly he was hurt because there was no quantifiable way to know that, what was going to happen after the brain swelling went down. We lived -between my husband and I, we lived at the hospital for the duration, which, I believe, was like nearly three weeks. Juggling one of us taking care of -- you know, going home at night with the other kids and the other stayed. Joshua was never alone in the hospital. Our lives revolved around being there with him. I mean, everything else took a backseat and it was very frightening. And then when he started coming out of the drugs and he was just really goofy, again, not knowing is this the person, I mean, is this who hes going to be or is he going to come back and be Joshua again. And then the terrifying moment when they told us that he had the meningitis and we thought we had kind of gotten to a point where, okay, maybe were going to be okay here and then they told us that it could end up now being worse than it was. So another week of waiting to see if -- who he was going to be when he woke up, if he was going to know us. And when he was first out, I mean, he was just -- he was unable to walk, I had to feed him when he left ICU and moved into a regular room, I fed him. We had to walk with him to the bathroom, we had, I mean, to put a strap around him in case he -- you know, we lost the grip so we could grab him. So it was a very emotionally challenging time for all of us and he -- because he is such a fighter, I mean, he learned quickly again, but he had to relearn, I mean, a lot of language, some words, he had to learn how to walk, he had to learn how to run, he had to learn how to climb, he had to learn how to eat by himself. It was difficult watching that, you know, because no one could give us a definable, okay, two weeks from now, this is where youre going to be. It was just every day, lets see how we do, lets see how we do, lets see how we do. And, you know, Joshua is a fantastic fighter and he moved along quickly, but it certainly could have been different. Thats it. Q. As far as the physical self, can he do everything physically normally now? Youre talking about walking, climbing -A. Yes. Q. -- jumping, that type of thing. A. Yes. Hes -- I mean, I dont think hes as physically strong as he was before, but, yes, I mean, it was part of the process we worked with

the rehab, you know, he was not able to leave rehab until he could, you know, do all of the things so that he could function in life. For example, one of the criteria for him leaving the hospital was the rehab people came in and they worked with him because we have a step from the garage into the house, he had to be able to go up a step or we couldnt take him home. So that was one of our big challenges, go up a step. And then when he came home, we had to relocate, he slept downstairs because the bedrooms are all upstairs so we slept downstairs with him. We altered our entire life until he was able. And then when he went upstairs, we had to be with him for fear he would get up and go somewhere at night and, you know, there was a period of time where if he would have fallen, he could have ended up in worse condition than the original injury. So a lot of worry and just a lot of vigilance by the entire family. (End of Joanns Deposition Testimony.) As my wife indicated in her deposition testimony, Josh continues to struggle, but I believe that he also continues to improve and get better. With the help of a tutor, he is still in school and working hard in his studies. He has begun to enjoy playing soccer and basketball again, and my wife and I have a lot of hope that a happier and bright future is ahead for Josh. Josh is a fighter and I am confident he will lead a successful and productive life. He is just the type of kid where when life throws him lemons, he makes lemonade. Lesson To Be Learned Recap: Even After A Settlement, The Struggles From The Injury Often Continue On. Even after your case is resolved, you or your loved one may continue to struggle for weeks, months, years, or even a lifetime. It can be a difficult pill to swallow, I know. At least you will be able to move forward taking comfort in the fact that the at-fault party has been held accountable and that some form of justice has been done.


XI. How Was It To Have Chuck Boyk As A Client? Lesson To Be Learned #16: The Attorneys In My Office Helped Me In My Time Of Need As A Client, And They Can Help You Too. A. Chuck Boyk As A Client: A Firsthand Account From Attorney Michael Bruno

The summer of 2010 had been a long summer, and I purposely did not schedule a vacation until August that year. In the weeks and days before Joshs injury, I was looking forward to spending several days at a bed and breakfast up in northern Michigan. When the incident with young Josh occurred, the early reports that we heard in the office were that Joshs injuries were life threatening and it was pretty clear that I was not going to be leaving for vacation. Rather, I had to be at the office and run the show because it was clear that Chuck was not going to be in for quite a while. Joshs fall occurred on a Monday and I was scheduled to leave for vacation on Friday. I officially cancelled the vacation and knew that a long summer was now going to be even longer. Throughout Joshs case, there was definitely a different dynamic. Normally in the work we do things occur on the outside, we gather facts by telephone call with the client, or we have a meeting with the client. Following that, then the client goes home and we work on something else for a while and later come back to that file. Joshs case was effectively always open and the client was always at the office. So, I didnt have the freedom to move on to other things and just spend a little bit of time with this file. Rather, it was priority #1 all the time. I had never had a similar situation. My father did. Early in his career, one of his law partners was vacationing in Daytona Beach and suffered the loss

of a young son who was run over on the beach. I remember that being a difficult situation for my dad having to deal with a law partners tragedy. This case fortunately did not end up rising to that level, but for a while we were not sure about that. We were hoping for the best, but we were clinging to daily reports and whatever information we could glean from Chuck and Joann. Once Joshs condition stabilized, we had to start making a lot of decisions in terms of where we were going with the case from a legal perspective. One of the first questions was, Is the insurance company for the pool going to force us to prove a liability case, or were they going to recognize their insured had some shortcomings in terms of the pool? So, the early game plan was to find out the answer to that question. If they were not going to fight us on liability, we were going to take our time, let Josh get the treatment he needed, and when the time came we would simply submit a demand for payment. I dont think the insurer was prepared for that question during the early part of the case because they kept putting off making a decision, and then indicated that they had to discuss the matter with their legal counsel. I do remember one time getting a phone call and discussing the issue with defense counsel. Basically I was given to understand that they would accept a demand from us as long as it was a low level demand, i.e. a nuisance value. Basically, they were saying that they didnt think the pool was unsafe based on what their experts had told them. So, I discussed the matter with Chuck and that pretty much sealed the deal to file suit and learn more about what the defenses case would be. At this point we had already played our hand. The defense knew we had a pool safety expert and they videotaped him doing his inspection, but we did not know anything about their expert. When we filed suit, one of the first things that we wanted to do was have them identify their expert, outline what the expert was going to say, whether the expert had been to the pool, and what conclusions the expert had reached. It took what seemed like forever to get that information. We had secured our expert and he had reviewed the law regarding how diving board guardrails are supposed to extend to the waters edge. And so on our side we were scratching our heads trying to figure out how they were going to rebut that. Were they going to try and argue that the code didnt apply? During this process while we were waiting for them to disclose their experts, we were taking the depositions of the people on the defense side, particularly lifeguards and other pool employees. It became clear throughout that process, especially after the testimony of the pool owners, that they were going to rely on the County health Inspectors lack of citations to carry the day for them. In other words, their theory was that unless we are told there is a violation, we must be in compliance.


I found the defenses theory to be interesting, but it still didnt answer whether they were going to have a separate pool safety expert to give testimony to back up their theory. So we continued to wait for the defense to disclose their expert. As we waited for word on who the defense expert would be, we allowed the defense to perform a day-long psychological evaluation of Josh which took place at a hotel during December of 2011. Once again, the problem was us having to wait to learn the psychologists opinions. Our frustration was growing. First, we werent finding out what the defenses position was on the pool safety rules, and now we are having a problem learning what their position was going to be regarding Joshs psychological condition. From a personal standpoint, I am a pretty laid back individual when it comes to these types of disputes. But, that doesnt mean that everyone falls into that category, especially when you are the father of the injured child. So I had numerous discussions with Chuck as to when we were going to get this information and it was pretty clear that there was some evasiveness on the part of the defense. For some reason they wanted to find out everything about our case before providing us with their expert reports. We went in front of the judge for a hearing on the matter and we came to an understanding as to when we were going to get the defenses expert reports. I think it was probably on a daily basis that I would be visited by Chuck and we would discuss what it was that the defense was hiding and when the information would be forthcoming. In every other case I have had where the defense performs its own psychological exam, the doctors report is forthcoming shortly thereafter. The defense in Joshs case wanted to take depositions of school teachers and have the teachers fill out forms before they would give us any kind of a report. This effectively increased the tension. What sets this case apart from any other case I have handled over the years was that there was a lack of detachment. As lawyers we are trained to be independent advisors showing a level of detachment so that we can be unbiased and give prudent legal advice. That was very difficult to do in this case. Chuck had a very real case going on with a loved one, and every letter that we received and motion that was filed became personal to Chuck. Even though I told Chuck that I engaged in the same conduct as a defense lawyer in the past, it didnt change how he felt about the tactics. A lot of my time was spent calming Chuck down or seeking solace in the other direction by dealing with one of the three defense lawyers, asking him, Whats going on here? Do you realize one of the other lawyers you are working with just did X, Y and Z? He would often say, No. A problem on the defense end was that the three defense lawyers seemed to be acting independent of each other.


Then, there was the issue with Joshs school. All of this time it seemed to us that the defense must have something up their sleeve, because they kept taking depositions of school personnel, and some of these people did not even know who Josh Boyk was. It was odd how in these depositions the defense would find out after the first few questions that the person never even knew Josh, but the defense lawyer would then continue to ask questions. It was odd and I had to state many objections. One of the issues that predates everything I have talked about so far had to do with an initial meeting that I had with Chuck about the handling of the case in general. Chuck asked me whether he thought that we could handle the case in-house (meaning me being lead counsel on the case with Nick assisting in research and writing) or whether we should employ another law firm to handle the case. I did not want to tell the guy that signs my paychecks that he had to seek outside counsel. So, I gave the answer that I thought we could handle the case in-house, which I knew we could. The whole backdrop of the case is that I was representing my boss, the owner of the law firm, and I often thought to myself, What is my greatest fear? My greatest fear was taking this case to trial, asking the jury for a high amount of money, and then have the jury give me nothing and then having to go back and work for Chuck. Essentially I was in fear of losing my job over one case if bad things happened. Whenever I would talk with the lawyers on the defense side, they would joke around with me and say, I wouldnt want to be in your shoes! If you are a defense lawyer and you perform poorly, you might lose one of your insurance clients, but you still have 20 others that are going to send you business. But, if you lose your bosss case, that may be enough to earn yourself a pink slip. On a personal level, the fact that we were able to come to a settlement relieved a lot of the tension from my work life. I think that it is a good thing that the case did not go to trial because I believe that the final jury verdict could have gone either way. The jury could have said that they didnt see this as a big deal, the board was the way it was for a long time, they passed every inspection, and we just dont want to hold them liable. Or, the jury could have said that it was a clear violation of a known safety rule and given us a pretty decent verdict. So there was a lot of variance in risk for both sides, which usually means that a case should be settled, and that is what happened here. I dont think that either side was thrilled about the settlement, which is usually a good sign that it actually was a good and fair settlement. When you are looking at a certain amount of money on the table, you have to view it in terms of risk. It becomes tough to say, I am going to reject X amount of dollars and submit this case to eight strangers who dont want to be on jury duty. I think Chuck and Joann made the right decision to know what they were buying and settle the case for a known settlement value rather than roll the dice with a jury.


B. Chuck Boyk As A Client: A Firsthand Account From Attorney Nicholas Dodosh

My first day at the Charles E. Boyk Law Offices, LLC was set to be August 16, 2010. I had just taken the bar exam during the last week of July and was enjoying a couple weeks off before entering the real world when I received an email from my future firms office manager: Mr. Boyks son had been involved in a terrible diving board accident, had suffered a serious head injury, and was in the hospital. Additional communications from the office let me know: Mr. Boyk wanted answers as to the current Ohio case law regarding the duties that pool owners owe to swimmers. He also wanted to see Ohio Revised Code statutes and administrative regulations concerning diving board construction and maintenance. This is how I was welcomed to the practice of law. Before I even walked in the door, I had written two legal research memorandums outlining the relevant case law, statutes, and regulations on the topic. I was officially working on a huge case, and it was a huge case for my bosss son. No pressure, right? As the case continued on, I wrote eight more legal research memorandums, conducted a nationwide expert search, drafted several witness affidavits, prepared a lawsuit, filed a plaintiffs motion for summary judgment, and opposed a defense motion for summary judgment. It was an odd position to be in. My first boss is also my first client. Of course, veteran attorney Michael Bruno was lead counsel on the case who made the critical decisions but I was right there in the trenches with them, working day in and day out to make sure that the litigation was executed flawlessly and that we kept the defense up against the wall. As the case continued on and mediation and trial dates approached, tensions were high. The uncertainty and questions as to how the defense would evaluate the case and what the judge might do with the defenses summary judgment motion were constantly nagging in the back of our minds. Most lawyers do not start their careers pouring themselves into such a large

and complex case in the manner that I did, but, from a legal perspective, it was very beneficial for me. Being thrown into such a high stakes case with very real implications for my boss and his family caused me to quickly and efficiently learn the real world practice of law, and I am all the better for it. It has helped to give me a confidence and perspective that most young lawyers do not have, and I bring that to work every day as I help my clients pursue their interests both in and out of court. Working on the case also gave me the opportunity to work closely with the firms staff. As a new attorney, the thing that fascinated me about the office staff and that continues to fascinate me to this day is how well the people get things done. Everyone knows their job and executes it quickly and competently, while always keeping their eye on the bigger picture: getting our clients the compensation they deserve. Some lawyers prosecute cases and represent their client at a snails pace. Not us. I learned very quickly that at Chuck Boyks firm, there is no waiting around. If a message is left for an attorney, the call is returned within 24 hours. If a clients medical records need to be ordered, they are ordered that day and the computer system automatically sets a follow-up date. If an insurance adjuster is giving us or our clients the run around, a lawsuit is promptly filed. In sum, the firm is very results-oriented, clientcentered, and I would trust them with my own familys case in a heartbeat just as Chuck trusted us when Josh was injured. Lesson To Be Learned Recap: The Attorneys In My Office Helped Me In My Time Of Need As A Client, And They Can Help You Too. I hope that reading the stories of Mike and Nick has helped you to see that when you choose our firm to represent you on your case, you are getting an excellent legal team that will aggressively and diligently represent you and your interests. If you would like to speak with Mike, Nick, or myself, just pick up the phone and give us a call. You will be happy that you did.


About Attorney Charles E. Boyk

Chuck Boyk has been licensed to practice law in Ohio since 1983. His major areas of practice involve plaintiff personal injury, including car accidents, wrongful death, medical malpractice, slip and falls (premises liability), and construction accidents. Chucks other areas of practice include workers compensation, criminal defense and general civil litigation. Chuck is licensed in all Ohio courts and the Eastern District of Michigan in Federal Court. During the past 29 years, Chuck has acted as counsel or cocounsel in numerous cases in other states, including California, Florida, Indiana, South Carolina, Michigan and New York. Chuck Boyk is a lifelong resident of Ohio. He was born in Toledo, Ohio and graduated from Start High School in 1976. He attended Bowling Green State University on a debate scholarship and graduated with a Bachelor of Arts in Communication with a specialization in Political Science. After college, Chuck went directly to the University of Toledo College of Law and graduated with a Juris Doctorate Degree in 1983. While in law school, Chucks activities included moot court participation and in the Prosecutors clinic in Perrysburg, Ohio. As a legal intern, Chuck participated in numerous judge and jury trials before becoming an attorney. Chuck is a member of the Toledo Bar Association, Ohio Academy of Trial Lawyers, and the Association of Trial Lawyers of America. Chuck has also received a 10.0 Superb rating from the Avvo lawyer ranking system. Avvo is one of the leading websites that provides information about lawyers to consumers. His Avvo profile also provides more information on some of his other awards and recognitions. Chuck resides in rural Bowling Green, Ohio with his wife and four children. His hobbies include running and taking care of his dogs and horses. He spends much of his time watching his four children play soccer, field hockey, basketball, and lacrosse.

WE CAN HELP YOU The authors of this book have over 60 years of combined legal experience. Charles E. Boyk has been in private practice for over 29 years and heads the Charles E. Boyk Law Offices, LLC. During his career, he has handled thousands of personal injury cases ranging from small whiplash injuries to wrongful death claims. He has conducted numerous seminars for other attorneys to help them understand the world of personal injury law. In addition to his personal injury work, Chuck has represented thousands of criminal defendants, handling everything from routine traffic offenses to murder cases. Michael A. Bruno also has been practicing law for over 29 years. Mike, who has been named an Ohio Super Lawyer, has a unique background that benefits our clients. As an assistant Lucas County prosecutor, he handled thousands of felony cases, including death penalty murder cases. As an insurance defense attorney, he handled serious personal injury cases representing insurance companies. That experience has provided him with invaluable insight into how insurance companies will view our cases. Mike has handled more than 100 jury trials, is Board Certified by the National Board of Trial Advocacy, and is AV rated by Martindale Hubbell, the highest rating an attorney can receive.


THIS BOOK DOES NOT OFFER LEGAL ADVICE Were happy that youve taken time to read our book. You should note, however, that ordering or reading our book does not create an attorney-client relationship. We also arent offering a legal opinion in these pages because every case is different. If you want our legal opinion, please contact us at 800-637-8170 or 419-241-1395. Well be happy to set up a free meeting with you.