Q:       I was “served” my divorce papers through Facebook. Is that legal?

A:        In some jurisdictions outside Ohio (Utah, for example), social media—and in particular, Facebook—is now being used to provide official legal notice of a court action (called “service of process”) to individuals and sometimes even to businesses. Currently in Ohio, however, social media is not listed in the Ohio Rules of Civil Procedure as one of the ways service can be “perfected” or completed. This means that, even though no Ohio law or court appears to have specifically outlawed it, any attempt to serve process via social media may provoke a number of legal arguments about whether or not the case against you may be dismissed due to improper service of process.

            In Ohio, a court usually gives notice by delivering a set of court documents (sometimes called “process”) that usually includes a complaint (saying why you are being sued) and a summons (asking you to respond and/or come to court). Traditionally, “process” has been served by (a) personal service—physically handing the documentation to the person; (b) service to a party’s residence or place of business by mail; or, if the party cannot be located, (c) service by publication in a newspaper of general circulation. However, serving process through newspaper publication when a party cannot be located may no longer be as effective as sending out a notice through social media such as Facebook.

Q:        What happens if someone doesn’t receive court documents through “process”?

A:        If a person or business who started the lawsuit cannot obtain proper service of process, the other party will not receive the necessary “complaint” and the lawsuit cannot move forward. In some instances, the court may even dismiss the case. On the other hand, if a person or business is “served,” but fails to respond in a timely manner, the court may enter a “judgment” against that person or business.

Q:       Why is service by publication a “last resort” for tracking down evasive defendants?

A:        Realistically, a defendant is not likely to receive notice of the lawsuit through publication, because it is the rare individual who takes time to scour newspapers for fine-print-type legal notices. 

Q:       What do other states say about serving process through social media?

A:        While Ohio courts and the legislature have not yet weighed in on this issue, other states are starting to recognize social media as a viable alternative for service of process. In Utah, for example, when traditional methods of service are not viable options, the court can authorize service by means of social media even though the state’s rules of civil procedure do not specifically address social media. In Texas, pending legislation would allow courts to prescribe alternate service via social media if certain requirements are met. 

Q:       If I am involved in a case originating in a state that allows process to be served via social media (or if Ohio allows this in the future), what should I consider before using social media for this purpose?

A:        Serving process through social media might be an attractive alternative for you or your business to use when other methods such as personal service are not viable or are too costly.  However, you should know that a wary and cautious individual who wants to avoid service through social media could easily adjust his or her privacy settings and limit identifying information, and service through social media would not be a viable alternative.

            You should also be aware of the possibility that you may actually serve process on the wrong person, because it is not difficult to imitate or even steal a person’s online identity. Even so, the potential benefit of locating and serving process on the party so you or your business can move on with litigation may outweigh these pitfalls.

            Remember though, that in Ohio, you should still use the traditional methods of service unless and until the social media option becomes available.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Sara Ravas Cooper, an attorney in the Cleveland office of Walter Haverfield. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

            Lawyers in both civil and criminal trials use direct and cross examination. This column uses the criminal trial as an example of how direct and cross examination of witnesses are conducted.

Q:       What is “direct examination”?
A:        In “direct examination,” an attorney questions a witness to get the witness’s account (“testimony”) of what happened during the event that triggered the trial. There is a lawyer who represents the defendant (the person accused of the alleged crime), and a lawyer for the prosecution, representing “the people” whose law the defendant has been accused of breaking. Both lawyers will conduct direct examinations of the witnesses they call to testify, and both will conduct these examinations to develop the facts (that is, what the witness observed that is relevant to the issues at trial). The lawyers expect that the witness’s testimony will support their clients’ views of what happened. In fact, the only purpose of direct examination is to present to the jury evidence that supports each lawyer’s theory of a case. During direct examination, the lawyer questions a witness to get information before the jury that the lawyer expects will persuade the jury that the facts related by the witness are true, and that the jury should accept and believe them.

Q:       How does a lawyer conduct a direct examination?

A:        Often, the lawyer will begin by asking background questions to introduce the witness as a person who has many of the same personal characteristics that the jurors themselves possess. The lawyer does this based on the theory that jurors are be more likely to believe people they perceive are more like themselves. The lawyer’s use of background questions may also help the witness to become more comfortable (and perhaps more persuasive) while on the witness stand. 

            After establishing the witnesses’ background, the lawyer usually sets the scene for the witness’s factual testimony.  This shows the jury that the witness has personal knowledge from having observed or participated in the events in question. It also allows jurors to visualize the events as the testimony proceeds.

The lawyer usually will ask the witness open-ended questions, so that the witness can testify fully about the topic in his or her own words. The jury may be more likely to accept information that comes directly from the witness rather than something suggested by the lawyer.

The lawyer’s goal in conducting a direct examination is to leave jury members with the impression that they are listening to an interesting conversation between two people (questioning lawyer and answering witness) about a subject critical to proving the lawyer’s side of the case. When done effectively, the lawyer is using the witness to tell part of a story to a jury in a manner advantageous to the lawyer’s theory of his or her case.

Q:       What is cross examination?

A:        After each witness has been questioned during direct examination, the lawyer for each side has the chance to question the other side’s witnesses. This is called “cross examination.” The lawyer’s purpose in conducting this questioning is to make his/her own side’s case look better and to make his/her opponent’s case look worse.

            The first purpose of cross examination is to ask questions designed to get answers that will build up the credibility of the questioner’s own witnesses. To do this, the lawyer carefully controls the witness by using “closed” questions (for example, questions that can only be answered “yes” or “no,”). In direct examination, the lawyer is not allowed to ask “leading” questions (such as, “The car was speeding down the highway, wasn’t it?”). If the lawyer asks a leading question in a direct examination, the other side likely will object and the judge will likely uphold the objection. However, in cross examination, the lawyer not only can, but should use leading questions. The speeding car question, which is inappropriate on direct examination, is appropriate on cross-examination. When cross examination is executed properly, the lawyer will make statements or assertions that only allow the witness to respond with “yes” or “no.” A second equally important purpose of cross examination is to impeach or undermine the witness’s credibility or testimony so that the jury will no longer believe in or rely on that testimony.

           

Q:       Why do lawyers use direct and cross examination to challenge the other side?

A:        Lawyers do not use examination and cross examination to make people “look bad.” Rather, their aim is to fully and fairly represent their respective clients so that the judge and/or jury can get to the bottom of what actually happened and determine who should be held responsible. In our adversarial system of justice, the idea is that, when the lawyers on both sides of a matter are allowed to vigorously represent their clients’ interests, the facts will come out and the jury will be able to determine the truth of the situation.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by David C. Winters, an attorney in the Columbus office of James E. Arnold & Associates, LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Q:       Why might my Ohio driver’s license be suspended?

A:        Your Ohio driver’s license might be suspended for one of the reasons listed below.

·                A judge ordered the suspension as a penalty for an offense of which you were convicted. Many offenses require a suspension, such as drug offenses, OVI, hit-skip and/or “fleeing and eluding.”

·                The Bureau of Motor Vehicles (BMV) ordered the suspension because you did not show proof of current motor vehicle insurance or a bond after you were stopped for a traffic offense or you were randomly selected by the BMV to show such proof. This “non-compliance suspension” is imposed under Ohio’s Financial Responsibility Act.

·                The BMV ordered the suspension because you accumulated 12 points on your driving record in a two-year period. A court may impose points for various traffic offenses, including OVI, some speeding offenses and all other moving violations. Courts must impose two points for minor traffic offenses, and six points for the most serious traffic offenses, such as OVI.

·                The BMV ordered the suspension because you caused an accident (damage of $400 or more) while you were not insured and the other party reported it to the BMV. This is called a “security suspension.”

·                The BMV ordered the suspension after you were arrested for OVI and you refused to submit to a chemical test or you tested over the legal limit for alcohol (.08) or drugs. This is called an “administrative license suspension” (ALS).

Q:       What happens if I am convicted of the offense of “operating a vehicle under suspension”?

A:        If you are stopped and the officer determines you were driving under a license suspension, you might be charged with that offense. If you are convicted of “driving under suspension” (DUS), the penalties vary depending on what type of suspension you were serving. The most serious of these offenses are driving under an OVI suspension and driving under a 12-point suspension, which can result in penalties of six points, up to six months in jail, an additional license suspension, fines and probation.

Q:       If my license has been suspended, how can I get it back? 

A:        The BMV provides information about your license status and reinstatement requirements at:  www.bmv.ohio.gov/suspension_reinstatement.stm. You can also visit an Ohio BMV office and ask for a printout of your license status. To reinstate your license, you may, for example, have to do one or more of the following: pay a reinstatement fee, take a driver’s exam or buy a “high risk” auto insurance policy and file proof of that insurance with the BMV.

Q:       My license is suspended but I need to drive for work. Can I get limited driving privileges while I am under suspension?

A:        If a judge suspends your license because you were convicted of an offense that provides for a suspension, you can usually request limited driving privileges (LDPs) during the suspension. Limited driving privileges are generally given for work, medical, educational and/or vocational purposes. If you were suspended because of an OVI conviction, you must wait until you have been under a suspension for a certain period of time (called “hard time”) until you are eligible for privileges.

            If the BMV has suspended your license because you have 12 points or because you did not show proof of insurance after a traffic stop or when randomly selected, you can petition a court for LDPs during the suspension. A court can only grant LDPs during a BMV suspension if the law specifically authorizes this.

Q:       What if I can’t afford the fees to reinstate my license?

A:        Under a new Ohio law, you may be eligible to set up a payment plan with the BMV for license reinstatement if you are unable to pay your reinstatement fees and that is the only impediment to having a valid license. This new law would allow you to have a valid license while making reinstatement payments. To be eligible, you must:

·                owe at least $150 in reinstatement fees;

·                meet all other reinstatement requirements except for the payment of fees;

·                show current proof of insurance;

·                not have any pending suspensions;

·                not be currently on a court-ordered fee payment plan;

·                make an initial $50 payment, which is applied to the fees you owe whether your application is approved or denied.

            If you are approved for the payment plan, you must pay at least $50 per month toward your fees. 
 

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Bridget Purdue Riddell and Doug Riddell of Riddell Law LLC. The column offers general information about the law. Seek an attorney’s advice before applying this information to a legal problem.

Q:       What is the Health Insurance Marketplace?
A:        The Marketplace is an informational resource you can visit online to shop for, compare and purchase health insurance coverage under the Affordable Care Act. The Marketplace will inform you if you qualify for low income tax credits to lower the cost of insurance. It will also let you know if you qualify for Medicaid coverage and will help you with Medicaid enrollment. In Ohio, the federal government operates the Marketplace. You can contact the Marketplace by visiting www.healthcare.gov or by calling 1-800-318-2596. 

Q:       Who can shop for coverage in the Marketplace?   
A:        The Marketplace offers coverage to individuals and families. Small employers with fewer than 50 full time workers can also buy Marketplace coverage for their workers, but large employers with more than 50 full time workers cannot buy coverage on the Marketplace at this time.

Q:       What kind of health insurance does the Marketplace sell?
A:        The Marketplace sells health insurance offered by private insurance companies.  Marketplace insurance is comprehensive and covers medical services including hospitalization, physician services, maternity, mental health, substance abuse, prescription drugs, lab tests, preventive services, medical devices, rehabilitation, pediatric dental and vision, and other services required by law.

Q:       Will the coverage sold through the Marketplace pay for all my health care? 
A:        In most cases, the health insurance sold by the Marketplace has copays and deductibles requiring you to pay for a part of the cost of health care when you receive it. You can choose from plans with different copays and deductibles to meet your needs.
 

Q:       How much do Marketplace health insurance premiums cost?

A:        Cost varies. Visit the Marketplace to learn what plans are available to you and how much each plan’s premium rate will be. The rate you will have to pay for insurance depends on your age, where you live, your income level and whether you use tobacco. These premium rates are designed to be affordable, so if your income is low, your premiums will also be low, and if you are eligible for Medicaid, you will pay no premiums. For most people, however, health insurance purchased through the Marketplace likely will cost several hundred dollars per person per month.

Q:       Can I buy health insurance coverage anytime I want?

A:        No. Health insurance is offered to anyone who applies, but only during open enrollment periods. The initial Marketplace open enrollment period began on October 1, 2013, and continues to March 31, 2014. During this time period, anyone who applies will be offered coverage. 

            After March 31, 2014, the open enrollment period for 2014 ends, and insurance companies will only enroll people under special circumstances, such as when a person loses his or her employer coverage. Check with the Marketplace or a health insurance company to see if you qualify for a special enrollment opportunity. The next open enrollment period (for coverage to become effective in 2015) begins on October 15, 2014, and extends until December 7, 2014.

 

Q:       What if I already have coverage?

A:        If you have employer coverage, you can stay on your employer’s health plan. If you have individual coverage, you can shop for new health insurance in the Marketplace or keep your current policy. If you have individual coverage, your coverage may change to meet new federal requirements at the time of your annual renewal in 2014, and you can shop for other coverage at that time. 

Q:       Does having employer coverage affect my ability to get low income subsidies through the Marketplace?

A:        Yes. If your employer offers you coverage that meets certain federal standards, you will not be eligible for low income subsidies through the Marketplace. Generally, if the coverage your employer provides is at least as good as coverage sold on the Marketplace, and your employer makes a minimum contribution toward the cost of coverage, you will not be able to get a low income subsidy on the Marketplace. If you do have employer coverage available to you, you should compare the costs and benefits of your employer’s health plan to the costs and benefits of the health insurance offered on the Marketplace. Check with your employer to find out the details of your employer’s health plan, and to see if your employer’s plan meets the federal minimum requirements.  

Q:       Where can I get more information about Marketplace coverage?

A:        To get more information, or to shop for coverage, contact the Marketplace by visiting www.healthcare.gov or by calling 1-800-318-2596.  

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Douglas L. Anderson, an attorney in the Columbus office of Bailey Cavalieri LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.