Ohio Practical Business Law : Columbus Ohio Business Lawyer & Attorney : Teri Rasmussen : Plunkett Cooney Law Firm : Commercial Law, Creditors, Business Formation : Columbus, Central Ohio

Although the whole Leno-Conan-NBC mess appears to have now been settled by the parties, it's well worth looking more closely at the contractual issues involved which influenced the terms of that settlement.  For a great overview of the legal issues involved, visit Conan the Contractarian at the ContractsProf Blog.  And of course, some legal issues remain unanswered.  I'd like to start by recognizing what seemed to me to be the most cogent legal analysis of the situation.  Then in the Part 2 which will be my next post, I have some of my own observations about what is truly an excellent example of what contract law really is and how it actually works in  "real life".

Which is probably why I want to start with a practical "Everyman" take on what the restr of us can take from the entire fiasco, then move on to a more academic and scholarly analysis, followed by a pragmatic application of those foundational principles, and finished with a chaser of  a business oriented "brass knuckles" approach to determining who had the "leverage" to make the rules of contract law really work for them.  So here goes..........      

The Leno Deal,,, Be Careful What You Wish For >>>> David Willis of the Texas Small Business Law blog takes a stab at some important lessons the rest of us can take from the gigantic contract mess now facing NBC.  His important points:

• The terms of the contracts with the hosts do not meet the terms of the contracts with the affiliates.  A company's contracts can be interdependent.  Change the terms of  one and it can also affect what happens in other contractual relationships.  In simple terms, NBC didn't really think about the influence of the affiliates when it moved Jay and is now paying the price.
• Firing an employee with a contract can be expensive.  "The lesson for business owners is be careful of what you contract for because contracts are binding obligations and they can limit the decisions you can make."  
• Take advantage of the opportunity to maximize or limit your damages. 

Contract Law Issues in the Conan-NBC Affair and Conan NBC Contract Issues II >>>> Lawrence Cunningham of Concurring Opinions provides an excellent detailed and quite scholarly analysis of the many contractual issues raised by the NBC-Conan-Jay circus.  His overall assessment of the situation describes the situation found in most breach of contract circumstances:

Ongoing discussions between NBC and Conan illustrates the notion of bargaining in the shadow of the law, working out arrangements in light of known or probable legal claims and cosequences.  Non-legal forces of course are at work.  Conan's legal position, still incrementaly weaker to me.... may play a role in his decision to communicate directly to the public.  But his public relations gambit may also be deftly designed for other reasons [such as disaffecting viewers from NBC by paiting himself as the "guy in the white hat".] 

In NBC Did Breach Conan's Contract - Here's Why, Rachael Sklar focuses more informally on the various legal arguments as to whether Conan was contractually entitled to have his show start at 11:35 PM, concluding that he was.  Her analysis brings in many of the most treasured contract principles such as reliance and "spirit of the agreement" and is quite interesting in its description of various "facts" supporting her conclusion.  However you think things should have turned out, this account is well worth reading.

In Conan/Leno Madness: Parsing the Legal Ramifications, Conan/Leno Madness: The Legal Case for Conan, and Conan/Leno Madness: The Legal Case for NBC, the THR, Esq blog (aka The Hollywood Reporter) examines the strength of NBC's argument that because Conan's contract didn't specify a time slot, moving Conan to 12:05 would not be a breach of his contract.  Fascinating stuff.  Interesting "brass knuckle" approach to determining who has the leverage to make contract law principles work for them.  

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No matter how careful you are, if you have a business, at some point or other you may find yourself drawn into the legal system.  As Michael Hamblin of the Michigan Business Lawyer Blog points out, it is important to understand how the process works to avoid (or at least minimize) unrealistic expectations and/or frustration.  to help make sense of the way litigation works, Mike has written a series of posts, beginning with an overview of the process, explaining the various aspects typically found in a case once a Complaint has been filed.

Although there are some differences from one court to another, Mike's summary is generally applicable to courts in Ohio as well.  I have added some additional comments from my perspective as an Ohio business lawyer.  Click here for a diagram showing the structure of the Ohio judicial system.

Mike divides the process chronologically into five parts, namely

• Filing of initial pleadings
• "Discovery"
• "Summary judgment" pleadings
• Trial
• Post trial/appellate proceedings

Initial Pleadings.  All litigation starts with the filing of a Complaint.  The person or business initiating legal action is called the "plaintiff".  Mike explains the need at this point for both sides to decide whether they would prefer to have a trial in front of a jury or before a judge.  As in Michigan, the person or business against whom the Complaint is filed - known as the "defendant" - must assert "affirmative defenses" in an "Answer" which would contradict and defeat what the Complaint claims occurred.  In state court in Ohio, defendants have 28 days, a week longer than in Michigan, to respond to the Complaint by filing their Answer or certain other pleadings in appropriate cases.

In Ohio, cases seeking more than $15,000 must be filed in the Court of Common Pleas.  if the plaintiff is seeking less than this, the case may be filed in the appropriate  Municipal Court pursuant to Ohio Rev. Code 1901.17 or in the case of very small cases under $3,000 in Small Claims Court (or in some areas of the State, "Mayor's Court"), if the plaintiff so chooses.  Cases filed in Small Claims Court can be transferred to Municipal Court at the request of the defendat.  If the defendant has a countervailing claims against the plaintiff (which is known as a "counterclaim") which is greater than the amount allowed in Muicipal Court, Small Claims Court, or Mayor's Court, the entire case is transferred to the Court of Common Pleas.  For information about Small claims Court in Franklin County, Ohio, click here.  For links to many of the trial and appellate courts in Ohio, click here.

"Discovery".  Mike also explains the next phase typically referred to as "discovery" and describes the different sorts of activites this entails.  Basically, "discovery" is about asking questions, either orally or in writing, about the claims the other side is maing.  it is also the means by which each side is required to provide the other with copies of documents that "back up" their story.  As Mike points out, this can be an extremely time consuming (sometimes months) and often quite expensive aspect of the litigation process.

UPDATE: Chris Moander (Hi Chris, welcome to the blogosophere!) of the still fairly new Wisconsin Business Law and Litigation blog posted a terrific four-part series about "Fun with Discovery: How Discovery Works in Wisconsin".  While there may be some subtle differences between Wisconsin and Ohio law, what Chris has written is largely applicable to cases in Ohio as well.  For anyone caught up in the discovery process and wondering what the point of it all is, this is "must" reading.

• Part 1 - Introduction (focusing on the strategy and purpose of discovery)
• Part 2 - Depositions
• Part 3 - Interrogatories
• Part 4 - Requests for Admissions    

Summary Judgment.  Once discovery is complete, or a party has opted to forgo all or a portion of discovery, either the plaintiff or the defendant may decide to seek "summary judgment" on some or all of their claims.  If summary judgment is granted, the case is over and there is no trial.  This is possible if, given the "benefit of the doubt:, there is no "genuine" dispute of "material" (i.e. important) facts and one party is entitled to judgment as a matter of law.  If there is a lot of disagreement about the relevant facts, it is unlikely that summary judgment wil be granted to either side.  

Trial.  A trial can be held in front of a judge, or if requested at the time the defendant's initial pleadings, before a jury.  Somtimes "trial briefs" - which are generally not brief - are filed which outline the applicable law each side thinks should be applied to the issues in the case.  Depending upon the complexity of the case and the nature of the issues involved, a trial may last only a few hours or many weeks.  Trials are rarely, if ever, as exciting as they sometimes appear on TV or in movies.

After "opening statements", both sides have the opportunity to present evidence.  Evidence can be in the form of documents known as "exhibits" or through the testimony of various individuals known as "witnesses".  Cases involving business or commercial disputes are usually "bench" trials heard only by a judge.  Sometimes the judge will rule immediately at the conclusion of the trial, but more often it will be several weeks before the judge issues a deicison.  As mike points out, having quality legal representation is key to maximizing the likelihood of success.

Post-trial/Appellate Proceedings.  As in Michigan, parties unhappy with the outcome of trial or grant of summary judgment may appeal the judgment, first to the applicable regional Court of Appeals  and then to the Ohio Supreme Court.  That appeal must be filed within thirty days after the final judgment is entered.  As in Michigan, appeals from the Court of Appeals to the Ohio Supreme Court are discretionary in nature.  this means they are permitted only if the Ohio Supreme Court accepts jurisdiction after reviewing the appellant's Memorandum in Support of Jurisdction and the appellee's countervailing brief.  Oho Court of Appeals' jduges and Ohio Supreme Court Justices, like their trial court counterparts, are elected by Ohio voters.

Consensual Resolution.  If a case is going to be resolved by the parties themselves rather than leaving it to a judge or jury, there are several points along this timeline where this typically occurs.  Shortly after the Complaint is filed and before either side has committed substantial resources of time or money, cases are often settled.  At various points during discovery is another common time when cases are resolved by the parties.  And many cases are settled just before trial.  An experienced attorney can be helpful in identifying these windows of opportunity.  

N.B. - Acccidentally deleted this post and had to recover it, 

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