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

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
www.charlesboyk-law.com

TABLE OF CONTENTS

Page: TOPIC:

7 I. Introduction To This Book

9 II. The Story Of August 9, 2010

Lesson To Be Learned #1: I Can Personally Relate To That
Moment That Changed Your Life – That Surreal Moment Where
You Couldn’t Believe This Was Happening.

9 The Phone Call I Will Never Forget
A.

10 B. Getting In Contact With My Wife

11 Arriving At The Hospital
C.

12 Seeing My Eight Year Old Son In Intensive Care
D.

13 III. The Hospital: The Story Of What Happened As Time Went On

Lesson To Be Learned #2: Your Road To Recovery Can Be
Bumpy, Long, and Difficult. I Know Because I Have Been Down
The Same Road With My Child.

13 Emergency Brain Surgeries
A.

14 Back From The Brink: Slow Improvement
B.

16 IV. Grieving and Reflecting: How Did This Happen To My Son?

Be Learned #3: While Grieving Is Normal And Important,
Lesson To
It Is Also Important For You To Start Asking The “Who, What, Where,
Where, Why, and How” Questions.

16 A. The Grieving Process

17 The Three Meter (10 Foot) Diving Board
B.

19 V. The Investigation, Legal Research, And Finding Our Expert

19 Learning That The Diving Board Did Not Comply With
A.
Code
Ohio

Lesson To Be Learned #4: You Need To Make Sure That A Careful
Investigation Of The Law And The Facts Of The Accident Is Done
To Confirm What Went Wrong And How The Injury Or Death
Occurred.

21 Big Initial Concern: The Legal “Open and Obvious
B. My
Defense”

Be Learned #5: You Need To Be Prepared For The
Lesson To
Tough Questions That Will Be Asked By Insurance Adjusters And
Defense Lawyers During Recorded Statements Or Depositions.

25 C. The Decision To Find An Expert Beyond County Health
Inspectors

Be Learned #6: You Need To Ask The Right Questions
Lesson To
To Get To The Bottom Of How The Law Was Violated And How
The Injury Or Wrongful Death Occurred.

26 D. The Pool Background

Be Learned #7: Investigating The Background Leading
Lesson To
Up To You Or Your Loved One’s Injury Can Be Absolutely Critical.

30 E. Getting A True Expert’s Perspective

Be Learned #8: Finding The Right Expert For Your Case
Lesson To
Can Mean The Difference Between A Successful Resolution And
Getting Nothing.

34 VI. Mediation, The Settlement Negotiation Process, And
Confidentiality

Be Learned #9: Going Into A Mediation With An Open
Lesson To
Mind, Being Willing To Listen To The Defense’s Offers, And
Engaging In A Fair “Back And Forth” Is Essential.

34 A. Preparing For The Mediation

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

Be Learned #11: Your Attorney Can Advise You On The
Lesson To
Ways That You Can Protect The Settlement Money And Make Sure
It Lasts—Especially When A Child Is Involved.

42 B. The Probate Process And Your Child’s Settlement

Be Learned #12: The Probate Court Must Approve All
Lesson To
Minor Settlements And Legal Guidance Throughout The Process Is
Critical.

44 IX. Switching Roles: The Long-Time Attorney Becomes
ClientThe

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
Their Job
Do

Be Learned #14: Letting Your Attorney Take The Lead
Lesson To
And Listening To His Advice Can Be Difficult, But It Is Essential.

48 X. Joshua’s Post-Hospital Treatment And The Impact On
School And Family

Be Learned #15: Even After A Settlement, The Struggles
Lesson To
From The Injury Often Continue On.

52 XI. How Was It To Have Chuck Boyk As A Client?

Be Learned #16: The Attorneys In My Office Helped Me In
Lesson To
My Time Of Need As A Client, And They Can Help You Too.

52 A. Chuck Boyk As A Client: A Firsthand Account From
Attorney Michael Bruno

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

58 About Attorney Charles E. Boyk

60 Disclaimer

I. 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 day-
to-day life believing that such a terrible thing might happen to other people but
“could never happen to me.” I believed the same thing for a long time, until the
summer of 2010, when it did happen to me. This is my story.

I’m attorney Charles Boyk. I have been practicing law in Ohio for 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 else’s negligence. That all changed on August 9, 2010 when a local
swimming club’s 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 it’s 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
son’s 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 son’s 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

7

may happen to you in the future, because all too often this is the twisted “game”
that insurance companies and defense lawyers play. One of the most 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 son’s 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 son’s
case.

8

II. The Story Of August 9, 2010

Lesson To Be Learned #1: I Can Personally Relate To That
Moment That Changed Your Life – That Surreal Moment
Where You Couldn’t Believe This Was Happening.

A. The Phone Call I Will Never Forget

You probably have that moment where you were injured (or when 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 Josh’s
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.

9

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 boss’s 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 doctor’s 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 one’s 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.

10

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 attorney’s investigation reveals that the cause of the injury
was in fact a drunk driver, a dangerous product, or (like in Josh’s 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.

11

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
machine’s screen had to show certain numbers or else it was dangerous, i.e.
brain damage. We stared at the machine hoping and praying it would stay 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 victim’s 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 Couldn’t 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.

12

III. The Hospital: The Story Of What Happened As Time Went On

Lesson To Be Learned #2: Your Road To Recovery Can Be
Bumpy, Long, and Difficult. I Know Because I Have Been
Down The Same Road With My Child.

A. Emergency Brain Surgeries

On the day after Josh was admitted to the hospital, he had his 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 don’t 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.

13

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 Josh’s 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 wife’s 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 doctor’s 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

14

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 Josh’s 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.

15

IV. Grieving and Reflecting: How Did This Happen To My Son?

Lesson To Be Learned #3: While Grieving Is Normal And
Important, It Is Also Important For You To Start Asking The
“Who, What, Where, Where, Why, and How” Questions.

A. The Grieving Process

Right now you may be going through a period of awful grieving. I 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 Josh’s 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 can’t 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 Josh’s 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 don’t happen to me.” You hear a bad story and think it’s
horrible, but you can’t relate because “it just doesn’t 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?

16

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 children’s 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?

17

Rest assured that Mike and Nick were working overtime to promptly
find answers to these questions. I can’t imagine having a more demanding or
difficult client than myself. As I said above, I am a control freak, but when it
came to Josh’s 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 shouldn’t 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.

18

V. The Investigation, Legal Research, And Finding Our Expert

Lesson To Be Learned #4: You Need To Make Sure That A
Careful Investigation Of The Law And The Facts Of The
Accident Is Done To Confirm What Went Wrong And How
The Injury Or Death Occurred.

A. Learning That The Diving Board Did Not Comply With Ohio Code

Chances are that a lot of things were going on in your life that came 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 board’s guardrails didn’t 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.

19

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 Josh’s 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 doesn’t 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 Josh’s 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.

20

Lesson To Be Learned Recap: You Need To Make Sure That
A Careful Investigation Of The Law And The Facts Of The
Accident Is Done To Confirm What Went Wrong And How
The Injury Or Death Occurred.

The law can be complicated, and the question of whether the law 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 well-
meaning 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.

21

The reason that the defense would try and get us to do this is simple.
Under Ohio law, there is something called the “open and obvious” doctrine.
What this means is that if the defense can prove that a condition, 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 Josh’s 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 Josh’s case, the main tool that the defense lawyer
used to try and establish the open and obvious defense was during my
deposition and my wife’s deposition.

In most civil cases, the parties take “depositions” of the other parties.
A deposition is a simple question and answer session where the 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?

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

When he asked his question, the defense lawyer was clearly trying 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
Joshua’s accident?

A: No.

The answers that my wife and I gave to these questions, while 100%
true, effectively shut down the defense’s open and obvious argument, at 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 pool’s
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.

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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 defendant’s
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
defendant’s argument that the hazard was not open and obvious to the long-
time owners, but somehow was open and obvious to me, my wife, or Joshua.

Although the judge never ruled on either argument because we settled
the case, I believe the defense read our legal brief on the issue and said “uh-
oh.” I believe they realized that we were right, and this was the reason that 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 Josh’s
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.

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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 Josh’s 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. (I’ll 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: isn’t there some law out there that says that a
pool owner’s duty to inspect its own pool is “non-delegable,” i.e. can’t 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

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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 Josh’s 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 that’s 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 One’s 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 Josh’s 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 pool’s 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 Pool’s Manager Gave Several Safety
Warnings And Suggestions Regarding The Diving
Board Which The Pool Owners Disregarded.

In depositions, we learned the history of how the pool owners hired 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 manager’s suggestion.

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The man who was the pool manager at the time of Josh’s 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 board’s 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 board’s 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 manager’s 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 manager’s 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 Josh’s 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
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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 board’s 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.

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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 Josh’s 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 hadn’t 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 hadn’t disregarded the manager’s 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 Joshua’s
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 didn’t 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 didn’t 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 One’s 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.

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E. Getting A True Expert’s Perspective

Lesson To Be Learned #8: Finding The Right Expert For Your
Case Can Mean The Difference Between A Successful
Resolution And Getting Nothing.

You may or may not already realize that you need an expert in 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 Josh’s 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 plaintiff’s
lawyers email listservs which connect thousands of lawyers from across the
country. We used these same methods on my son’s 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 full-
time. 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.

30

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 Josh’s injury under Ohio law. Dr. Griffiths played a key part in shutting down
the defense’s 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

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operators and so forth, and who’ve studied it. They’re
the only ones who are going to appreciate the risks
of what can happen at a pool, particularly in the three
meter board aspect.

Q. So why are you saying that none of these parents out
there are going to appreciate the dangers of this
three meter board except for people who are actually
experts in the industry?

A. Because I don’t believe they realize, they haven’t
seen the catastrophic falls that have taken place
and, then, they are given a false sense of security
when the club does, in fact, put some fabric between
the rails and puts some padding under the ladder
and station a lifeguard in the diving well.

We argued that based on Dr. Griffiths’ testimony indicating that the
hazard was not open and obvious to my wife and me, there was no basis for the
defense’s 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 pool’s owners. Dr. Griffiths testified:

Q: Are you stating that [the pool owners], before August
9th of 2010, should have seen this space between
the handrail and the edge of the pool above the
concrete that was not safeguarded by those
handrails?

A: Absolutely, because it’s spelled out in the Code, absolutely.

Finally, Dr. Griffiths assisted us in making the point that the 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 son’s case had a legal duty to be aware
of such standards and inspect for compliance. Because the pool owners in my
son’s case did not do that, the pool owners would likely have been found to be
liable for Josh’s injuries had the case gone to trial.

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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 Josh’s 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 Josh’s case.

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VI. Mediation, The Settlement Negotiation Process, And
Confidentiality

Lesson To Be Learned #9: Going Into A Mediation With An
Open Mind, Being Willing To Listen To The Defense’s Offers,
And Engaging In A Fair “Back And Forth” Is Essential.

A. Preparing For The Mediation

For those of you who may not be familiar with mediation, it is a voluntary
process where the plaintiff(s), defendant(s), and their attorneys get together
along with a neutral mediator. The mediator’s 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 Josh’s 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 Josh’s
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 weren’t
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 Josh’s injuries would impact his function and performance

34

for the rest of this life. With this testimony in hand, the game plan was to get a
“demand letter” sent to the defense lawyers 30 days before the 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 office’s 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 defense’s 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 everyone’s lives. We responded to the defense indicating that we would be

35

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 hadn’t even discussed it at the mediation.

When we put the ball back in the defense’s 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 don’t have an agreement as to confidentiality.
It became clear that if the confidentiality couldn’t be agreed upon, then the
whole settlement couldn’t 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 Defense’s
Offers, And Engaging In A Fair “Back And Forth” Is Essential.

If your case ever ends up in mediation (and there is a strong chance it
will) being open minded is very important. Although you may be insulted by the
defense’s 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 Josh’s 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 Josh’s
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.

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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 don’t 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 don’t want any of those
problems.

The law in Ohio says that if a health insurance company pays out
money to cover a person’s medical bills where the person was injured by
someone else’s negligence, the health insurance company is entitled to be
paid back out of any future settlement of the case. This law clearly applied to
Josh’s case. Specifically, because our health insurance company had paid for
the vast majority of Josh’s medical bills for the time that he was in the hospital,
the health insurance company was entitled to be paid back out of our settlement
with the pool owners. In other words, the health insurance company had a
“lien” on Josh’s recovery.

By far, the health insurance lien was the biggest lien that we had to
deal with during the settlement of Josh’s case. Suffice it to say that after Josh’s
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

37

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 weren’t for Mike’s
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 attorney’s 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.

38

VIII. A Structured Settlement To Last A Lifetime And Probate
Court Settlement Approval

A. tructuring The Settlement May Be The Smartest
S
Financial Option.

Lesson To Be Learned #11: Your Attorney Can Advise You On
The Ways That You Can Protect The Settlement Money And
Make Sure It Lasts - Especially When A Child Is Involved.

Once you have agreed on a settlement figure, the next question 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
court’s 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 Josh’s 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,

39

let’s 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 Josh’s) where the child would have received
approximately $60,000 in a lump sum payment, but under the structured plan,
she’ll receive approximately $160,000 by the time the payments are made.
Obviously the numbers change based on the settlement, the age of the child,
interest available at the time of the settlement, and the structure plan chosen.

Structured settlements also offer the benefit of providing tax-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 child’s settlement in a bank or money market account. In those
situations, while the principle couldn’t 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 child’s 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

40

payments. That’s different than parents who try to manage the settlement on
their own because there aren’t 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. We’ve represented plenty of
teenagers who can’t 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 they’ll have medical
expenses and pain that will last a lifetime. Provided that there’s 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 can’t 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 Josh’s 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.

41

Lesson To Be Learned Recap: Your Attorney Can Advise You
On The Ways That You Can Protect The Settlement Money
And Make Sure It Lasts - Especially When A Child Is Involved.

As an attorney and as a parent who went through my own child’s
settlement process, I am here to tell you that it is not something for a non-
attorney to try and do on their own. These processes require a 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 Child’s Settlement

Lesson To Be Learned 12: The Probate Court Must Approve
Minor Settlements And Legal Guidance Throughout The
Process Is Critical.

You may be wondering what I was referring to above when I said 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 don’t have complete control over the settlement.
Some parents have the mistaken belief that they are entitled to collect their
child’s settlement proceeds and do what they want to with the money. However,
the law is clear that the settlement is for the benefit of the child and should 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 it’s
usually a relatively small amount of money. The county’s Probate Court acts to
protect the settlement so the funds are available when the child reaches
adulthood.

For all settlements over $10,000, the county’s 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

42

additional time to the process, not to mention the need for additional legal
expertise. Unfortunately, this can’t be avoided, but an experienced attorney
generally can move the settlement through the system in an efficient manner.

An application to settle a minor’s claim must first be filed in the 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 child’s
parents for loss of consortium. The application also tells the court where the
child’s 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 child’s
interest is to find an attorney experienced at handling injury cases, particularly
those involving children. These cases can be complicated for the reasons I’ve
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 court’s 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: don’t try and do this alone. Contact an attorney to
guide you through the legal maze.

43

IX. Switching Roles: The Long-Time Attorney Becomes The
Client

Lesson To Be Learned #13: Because Your Attorney Will
Logically Evaluate Your Case, And You Will Likely Emotionally
Evaluate Your Case, At Some Point Your Attorney Will
Probably Give You News That You Do Not Want To Hear.

A. Objective Case Evaluation vs. Emotional Involvement

As a personal injury attorney, one becomes somewhat accustomed 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 it’s my arm or your arm. My arm is worth a lot.
Your arm is not worth as much. Right? The point is that if you are analyzing 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 Josh’s 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 pool’s negligence, the injured person will not be

44

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 Josh’s 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 defense’s 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 Nick’s
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 attorney’s 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.

45

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

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

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