CBA Blog

Who is eligible for a public defender?

by Jon Sinclair, Lawyer Referral Service Panelist

Most of us have seen and heard on law-themed TV shows law enforcement officers reading the “Miranda Rights” to the people they are arresting. It truly is a hallmark of our American justice system that all persons charged with a crime in the United States are guaranteed the right to counsel under the Sixth Amendment. If you can’t afford an attorney, an attorney will be appointed for you. This appointed attorney is known as a public defender, who is paid by the state and/or county to “provide zealous, effective and ethical representation.” Generally speaking, you are eligible for a public defender if you are a juvenile or are an adult charged with a crime in which prison time may be required and you are considered “indigent,” that is, meet certain financial eligibility requirements based on the poverty level developed by the U.S. Department of Health and Human Services.  (See chart at http://www.opd.ohio.gov/Reimbursement/rm_Guide.htm.) For more information on the role of the public defender, visit the Hamilton County Public Defenders website at http://www.hamilton-co.org/pub_def/default.htm.

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What is an expungement? Can my record be expunged?

by Jon Sinclair, Lawyer Referral Service Panelist

Expungement is the sealing of a crime so it is not publicly available. The ability to have a record  expunged depends on a variety of factors, including the type of crime you were convicted of and whether or not the crime is your first and only offense, i.e., you had no prior record. (Only crimes on your adult record are considered; most Juvenile Court records are not considered.) Generally speaking, if you were sentenced to serve mandatory prison time, were convicted of domestic violence, DUI, or other crimes of violence such as rape, murder, or gun-related crimes, or were convicted of any Level 1 or Level 2 felony, your record cannot be expunged.  For certain misdemeanor convictions, you may seek to file a motion for expungement one year after the probationary period has ended or one year after conviction if there is no probation. For certain felony convictions, you may seek to file a motion for expungement three years after the probationary period has ended. Applying to have your record expunged is done through the judge that sentenced you for the crime.  Individuals in Hamilton County, Ohio, seeking more information about expungement can visit the Hamilton County Municipal Court website at http://www.hamilton-co.org/municipalcourt/expungement/expungement.htm.

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If I am a victim of a crime, can I file a lawsuit?

by Jon Sinclair, Lawyer Referral Service Panelist

Generally speaking, a civil lawsuit should not be pursued while a criminal case is pending. Doing so makes it appear that the criminal case is based on the desire to get money from the defendant. It is best to wait until the criminal case is over and a sentence has been handed down. However, it is very rare for a civil suit to also be filed for most criminal matters simply because most criminals don’t have financial resources. Certain individuals such as victims of violent crimes, or the dependents of victims of violent crimes, may be eligible for compensation through the Ohio Victims Compensation Fund. Contact the Ohio Attorney General’s Office at 800-582-2877 or visit http://www.ohioattorneygeneral.gov/VictimsCompensation.aspx/?from=nav for more information.

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I was in a car accident. Can I pay money to the other person?

by Timothy B. Heather, Lawyer Referral Service Panelist

Don’t offer the other side payment unless your own lawyer recommends that you do so.  Any such payment could be construed as your admission of fault and, unless you obtain a release of all claims, it will not relieve you of further liability.  If you have liability insurance coverage, your insurance company will defend you and either settle the claim or pay any judgment rendered against you up to the extent of your insurance coverage.

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What are the remedies and damages for a breach of contract?

by Timothy P. Heather, Lawyer Referral Service Panelist

The most prevalent remedy for a breach of contract is to require the party who breached the contract to pay damages to the non-breaching party.  In some instances, the injured party can compel specific performance of the contract, or have the contract modified or cancelled.  Sometimes, an order can be obtained from the Court to prevent further loss.

Most often, the best remedy for breach of contracts is money damages for the loss the breach of the contract caused.  The breaching party’s liability is not necessarily the contract price or the value of the contract.  The non-breaching party may be entitled to additional damages.

In some situations, particularly where the subject of a contract is unique, a Court may compel a breaching party to comply with the contract terms rather than pay damages.  An example would be a rare antique or something which is one-of-a-kind.

In some instances, a party may be legally allowed to cancel a contract.  This is known as “rescission.”  One should be careful about rescinding a contract unless the other party has already materially breached it in some fashion.  In Ohio, disputes concerning contracts which have a value of $15,000 or less can be resolved in Municipal Court.  If more than $15,000 is in controversy, contractual disputes should be resolved in the Court of Common Pleas for each county.  Normally, Municipal Court cases are quicker and cheaper than those in Common Pleas.

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Are written contracts better than oral contracts?

by Timothy B. Heather, Lawyer Referral Service Panelist

Written contracts are preferred over oral contracts.  Ohio law requires that certain types of contracts must be in writing.  These are:

(1)   Contracts which require someone to respond for someone else’s debt, default, omission, or wrongful act;

(2)   Contracts by the administrator of an estate for the administrator to use his own assets to pay for damages chargeable to the estate;

(3)   Prenuptial agreements between engaged couples which answer various questions of property and rights made in consideration of marriage;

(4)   Contracts for sale of real estate or any interest in real estate;

(5)   Contracts which cannot be fully performed within one year.

A contract to buy a home is an agreement for the sale of land and, therefore, must be in writing.  The requirements that the above mentioned contracts be in writing is known as the Statute of Frauds.

There are other contracts which must be in writing, even though not listed in the Statute of Frauds.  In the commercial context, one of the most important is the requirement that the purchase and sale of goods involving a value of $500 or more must be in writing.  Oral contracts for the sale of goods over $500 are not enforceable.  Ohio, like most states, has adopted the Uniform Commercial Code, which is a collection of laws and rules for businesses which require that certain contracts be in writing.

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How do written and oral contracts differ?

by Timothy P. Heather, Lawyer Referral Service Panelist

Ohio law recognizes oral contracts, although it provides a shorter statute of limitations date for enforcing oral contracts.  The statute of limitations for oral contracts in Ohio is six years, while for written contracts it is 15 years.

Although there are some important exceptions, if the basic elements are present, an oral contract is every bit as valid as a written contract and enforceable in the same way.  However, it may be more difficult to prove the terms of an oral contract than a written contract.

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What is the difference between an express and implied contract?

by Timothy P. Heather, Lawyer Referral Service Panelist

The terms of most enforceable contracts are usually very specific and unambiguous.  This is known as an express contract.  However, sometimes neither party specifies what certain terms are, but their actions are such that the terms and conditions of their contract can be inferred.  In this case, there may be an implied contract.  A classic example of an implied contract is your legal obligation to pay the bill after you have gone to a restaurant and had a meal.  There is no express contract, but the circumstances and conduct create a contractual obligation for you to pay for the food which you ordered.

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What options are there in the pre-filing stages of foreclosure?

by Thomas D. Richards, Lawyer Referral Service Panelist

There are a variety of options during what is called the “pre-filing” stage of foreclosure. This is the early stage when you are behind a few months (60 to 90 days) on your mortgage, the collection is still being pursued by your lender (typically a bank), and the matter has not gone out to a law firm yet for foreclosure filing.  The first option is a “repayment plan,” in which you pay the amount that is back owed over a period of time, but you also keep up with your current monthly payment.  A second option is a “reinstatement plan,” in which you pay the full amount that is back owed, including interest and penalties, the lender reinstates your mortgage, and you are back where you were before you got behind in payments. A third option is called “loan modification.”  This is when the lender actually changes the terms of your loan, perhaps giving you a lower monthly payment or a little better interest rate. These loan modifications may be temporary or permanent, and are part of the federally sponsored Home Affordable Mortgage Program (HAMP) legislation that was passed a few years ago. HAMP encourages lenders to help qualified borrowers avoid foreclosure by modifying their loans to make them affordable and sustainable.

In those first two to three months of missed mortgage payments, it is critical that you talk to the lender to try to work out your situation.

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What should I do if I am behind on my mortgage payment?

by Thomas D. Richards, Lawyer Referral Service Panelist

There are many reasons for getting behind on a mortgage payment. Perhaps you lost a job, or there is an illness in the family and someone can’t work any longer.  Lots of things happen, but the lender needs to know your situation so they can try to work with you.

When you are behind a few months on your mortgage payment, the worst thing you can do is not communicate with the lender. When they call, you need to talk them. If you can’t take the call, you need to call them back. Communication is critical because if they do not get the impression that you are trying to work something out, they will assume you don’t care to keep your house any longer and will move it into foreclosure.

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