We have reported about judge’s decisions that are unique here and here.  But, this is really unusual since the judge said specifically where to go to dinner and what to do afterwards.  Obviously, the judge is a fan of a good seafood dinner and then hitting the lanes.  His idea of resolving the marital dispute turned domestic violence arrest was a court ordered date with the destinations pre-determined – Red Lobster and bowling.  The Wall Street Journal Law Blog has the complete details on this unusual sentencing.

In 2004, in an attempt to curb the ever increasing non-economic damages awards in tort actions, the Ohio General Assembly enacted R.C. §2315.21(B).  According to the statute, trial courts must bifurcate a civil trial involving compensatory and punitive damages in a tort claim upon request of a party.  On the surface, this new statute appeared to conflict with the language of Civil Rule 42, which grants the trial court discretion over the issue of bifurcation in all trials.  Accordingly, the result of this legislation was a storm of controversy regarding which rule controlled – the statute or the rule.  At the center of the debate was the Modern Courts Amendment to the Ohio Constitution. 

The Modern Courts Amendment states that the power to create rules of practice and procedure is vested in the courts, while the power to control matters of substantive law remains with the General Assembly.  Where rules and statutes conflict, rules will control procedural matters and the statute will control matters of substantive law.  Thus, the key to deciding whether to follow R.C. §2315.21 or Civil Rule 42, lies in whether the statute was determined to be procedural or substantive in nature.  For several years, this issue was hotly contested in the Appellate Courts.

Specifically, the Tenth District Court of Appeal held that the statute was substantive, rather than procedural in nature, because the intent of the General Assembly in enacting the statute was to create a substantive right to bifurcation in order to avoid potential injustice.  The Fifth and Eighth Districts disagreed holding that R.C. §2315.21(B) was procedural because it merely set out procedural rules whereby courts could protect rights to jury and to due process that parties already possessed.  Thus, they concluded that the statute violated the separation of powers under the Ohio Constitution, in that it conflicted with court rule granting trial court discretion to bifurcate trials.  On February 2, 2011, the Ohio Supreme Court of Ohio certified the issue in a case entitled Havel v. Villa St. Joseph.

On February 15, 2012, the Supreme Court of Ohio issued its ruling in Havel v. Villa St. Joseph, upholding the constitutionality of R.C. 2315.21 and the mandatory bifurcation of punitive damages claims in civil tort actions.  In a 5-2 decision, the Court held that R.C. 2315.21(B) “creates, defines, and regulates a substantive and enforceable right to separate stages of trial relating to the presentation of evidence for compensatory and punitive damages in tort actions.”  In so ruling, the Court struck a blow to attorneys across the state for which the threat of punitive damages acted as an effective tool in pressuring the opposition into larger settlements, and provided some closure to an issue that has been at the forefront of Ohio tort litigation for nearly a decade.

A recent law school graduate has launched a new application for the iPhone which allows users to search and view federal court records via the PACER system.  The app is called FedCtRecords and it is currently free while the designer works through some minor glitches.  Ultimately, the app will cost $19.99.  For lawyers who travel a lot, this could prove to be a handy application.  But, we were thinking a zippier name might encourage more users – something like, Angry Briefs or Words with Foes.

A former attorney decided to opt out of a class action lawsuit and take her case to small claims court in California.  Heather Peters believed she was mislead about the fuel economy of her Honda Civic hybrid.  She opted out of the class action settlement and filed suit in California’s small claim court.  While it is unknown whether Honda will appeal and what the eventual outcome of this matter will be, Ms. Peters obtained a judgment from the small claims court in excess of what the class action settlement offered.  Read the article from MSNBC.com here.

The New York Times reports that Tennessee is the first state to respond to concerns raised by the U.S. Supreme Court relating to campaign contributions.  Tennessee now allows parties to request the recusal of a judge when and if there is a history of excessive campaign contributions.  Although as yet undefined, it appears that recusal will be mandated when contributions raise a “reasonable concern”. 

While the sitting judge will make the initial ruling, the order must be in writing and provide an explanation as to why the request was not honored.  The litigants then may appeal the decision to other judges on the same court.  The new rule has been widely accepted as a model for other jurisdictions. 

It will be interesting to observe the new rules application.  History tells us that few parties wish to ruffle feathers by asking the presiding judge in their case to step down.  The concern over how one will be treated in the event the motion fails still looms. Unfortunately, as long as judges are elected there will be campaign contributions.

The ABAJournal has an interesting and informative article on the art of speaking.  There are several really good tips on how to effectively make your argument.  You can read the article here.

Sometimes, in addition to reading the article, I will glance at the comments.  One comment had a great quote.  It is easy to remember and may be the best recommendation of all.  “When in court, stand up, speak up, sit down, shut up.”  Sometimes, learning when to shut up is the hardest part of all courtroom arguments.

Being that it is Friday and people are beginning to make plans for the weekend, a list of legal movies might come in handy.  Especially if your locale is forecasting the common winter weekend weather of cold, rain or snow.  Now with the advent of Netflix or on demand from your cable provider, movies are just a click or two away. 

Whenever I see a list of great legal movies, I inevitably check to see if my favorites are on the list.  To me, no list is complete without To Kill a Mockingbird, Miracle on 34th Street, and my all-time favorite legal movie, My Cousin Vinny (“What is a yute?”)   Here is a list with many movies I have seen and some I have not.  And if by chance you have not seen My Cousin Vinny, you might need to see it just to find out what a ”yute” is.

The Ohio Eight District Court of Appeals recently issued an opinion affirming a lower court decision to grant a motion to dismiss due to the fact that the compliant contained only legal conclusions without any supporting factual allegations.  In Allstate Ins. Co. v. Electrolux Home Prods., Inc., 2012-Ohio-90, the Cuyahoga County appellate court upheld the trial courts granting of an Ohio Civ.R. 12 (B)(6) motion because Allstate’s 12 paragraph complaint set forth only conclusory statements.  The plaintiff failed to allege “any facts, hazards, or dangers” to which the defendant should have known or would have been a duty to warn against.

Ohio is a notice pleading state and many courts have relied upon that fact to excuse insufficient pleadings that do not provide the defense with adequate notice of the claim. This decision may be of great assistance in the future in battling against vague and undefined causes of action.

Most attorneys who file appellate briefs know the importance of following the applicable rules.  In this case, plaintiffs’ brief was “rife with deficiencies.”  They failed to include the required table of contents, table of authorities, statement of the case, references to the appellate record in the statement of facts, or citation to authority.  More importantly, was the lack of any issues presented for review. 

The appellate court took the position they were not going to do plaintiffs’ work for them.  For their failure to comply with the rules, the court declined to address the merits of the appeal.  It was a harsh result, but one that sounds justified.

The Tennessee Supreme Court has named Sutter O’Connell partner Joy Day as the Chair of the Tennessee Commission on Continuing Legal Education and Specialization for 2012.  Day has previously served as Treasurer and Vice-Chair of the Commission.