Role of the Office of Legal Affairs
The Office of Legal Affairs is responsible for the representation of the university in all legal matters, and manages all university litigation. The Ohio State University is an instrumentality of the State of Ohio and is subject to special rules and laws which govern the various parts of state government. As an instrumentality, Ohio State may sue and be sued in courts of competent jurisdiction. The university may also be a defendant before various administrative agencies, like the Ohio Civil Rights Commission, the U.S. Department of Education and the National Institutes of Health. No matter what forum the university finds itself before, the Office of Legal Affairs takes the lead in representing it and in managing any litigation which involves the university or its employees acting in their official capacities.
- Alexandra T. Schimmer Associate Vice President and Deputy General Counsel
- Daniel A. Malkoff Assistant Vice President & Senior Associate General Counsel
The Office of Legal Affairs (OLA) is the university liaison with the Office of the Ohio Attorney General. The OAG is the statutory counsel for the university and for all state government agencies in Ohio. OLA works closely with the Attorney General's office in managing litigation and resolving disputes.
Several sections within the Ohio Attorney General's office represent the university in litigation matters. Frequently attorneys from the Employment Law Section, the Education Law Section and the Court of Claims Defense Sections handle cases on behalf of the university. Whenever counsel from the Attorney General's Office or other attorneys handle cases on behalf of the university, they work closely with attorneys from OLA. Guidelines for handling litigation on behalf of the university are made available to those counsel yearly.
OLA also refers legal matters to attorneys at law firms or other private counsel. Those attorneys are referred to as Special Counsel, because they are specially appointed by the Ohio Attorney General's office to represent the university. These attorneys also work closely with attorneys in OLA to handle cases assigned to them by our office.
The OLA assigns cases to both AGO attorneys and Special Counsel on a case by case basis. Significant factors in the assignment of counsel are experience and expertise of counsel to handle a particular matter, the number of cases assigned to that counsel, cost and experience in the forum.
Costs of litigation are borne by the department out of which the litigation originates. Litigation costs vary depending upon a number of factors, which include but are not limited to: the counsel chosen, the length of the litigation, the amount of the award and in some cases the forum. In general, all litigation requires the department to pay the expenses of litigation (which may include depositions and transcripts, court fees and travel expenses) as well as expert fees and costs for counsel. Billing information is included on the "Request for Legal Counsel Form."
The various processes and entities involved in managing a case.
Case Intake Process
- When we receive a complaint, we will expect that all relevant documents will be gathered concerning the matter. These records will also be promptly sent to outside counsel (either the Attorney General's Office or Special Counsel).
- All employees with knowledge about the matter will be contacted and interviewed.
- The case will be assigned to outside counsel who will contact you after they get the assignment.
- The case will generally be filed in one or more of the following forums:
State Court: These courts are enacted by Ohio law and govern disputes which arise in Ohio or which are decided by the law in Ohio
Court of Common Pleas
State Appellate Courts
The Ohio Supreme Court
Court of Claims of Ohio
Federal Court: These courts are enacted by federal law and govern disputes which arise between citizens of different states (provided other requirements are met) and issues of federal law
United States District Courts
United States Courts of Appeals
United States Supreme Court
- 1. This step is a continuing process in which the case is evaluated/analyzed to determine defense strategies and to predict the potential for liability and damages.
- a. Collaborative analysis. OLA and outside counsel will work together with you in order to determine how best to defend the case. Your input is greatly valued in this process and your cooperation is necessary to maximize the chances of a successful outcome. WE ARE ALL PART OF THE SAME TEAM AND YOU ARE A CRITICAL PART OF THE PROCESS.
Role of In-house Counsel
- In-house Contact. OLA will be your in-house contact on the case. We are here to advise you on any aspect of the case and to facilitate communication between the university and outside counsel.
- Directs Litigation Strategy. OLA works with outside counsel and the university in determining our best course of action throughout the life of the case. Questions on strategy or issues with the direction of the case should be addressed to OLA immediately.
- Assistance with Discovery. OLA will coordinate the response to discovery requests and will attend and assist university employees at depositions where appropriate.
- Direct Settlement and Mediation Strategies. OLA will be actively involved in the planning of settlement/mediation strategies and will manage the process of resolving legal disputes.
- OLA will attend and provide assistance to outside counsel at trials.
Role of Outside Counsel
Outside counsel are carefully selected from our Attorney General's Office attorneys and Special Counsel firms to represent the university in litigation matters. Outside counsel work closely with OLA attorneys to represent the university in court proceedings. The responsibilities of in-house, OLA, counsel are outlined above. The role of outside counsel is as follows:
- Works with OLA in determining litigation strategies and legal arguments.
- Acts as trial counsel in all court proceedings, in depositions and in appeals.
- Takes depositions (asks questions of fact witnesses and expert witnesses) and defends depositions (makes objections and otherwise defends faculty, staff and our expert witnesses who are being deposed by plaintiff's counsel).
- Acts as our representative in mediations and settlement discussions.
Role of University Employees
- Cooperate with legal counsel by speaking feely/frankly about the case. Counsel will rely on your experience with the matter to understand the facts involved and to determine defense strategies.
- Timely respond to requests for information from counsel. The court imposes many time constraints so we need to work together to meet deadlines.
- Ask questions-stay involved-stay informed
Post Case Analysis
When a case is resolved, by order of the court or settlement, OLA should generally meet with the affected department to evaluate from a risk management standpoint, any lessons learned from the litigation. The evaluation may include consideration of new policies, procedures and/or education. This process may involve discussions with university employees, OLA and outside counsel.
The process or steps that a case goes through from inception to resolution.
Filing of a Complaint
The complaint is, and will generally contain, the basic allegations of wrongdoing and a claim for relief, such as money damages, injunction etc. To initiate litigation in a court, the plaintiff must file a complaint with the court and serve the complaint on all defendants. Service of the complaint may be accomplished by certified mail or by a process server who will personally serve the defendants.
Answering the Complaint
Following the filing and service of a complaint, the defendants typically must file a response. The time allowed to file this response is determined by the forum. There is typically not much time to investigate the complaint and to prepare a response, so please notify the Office of Legal Affairs as soon as you receive a complaint, and let them know when the complaint was received.
After the response is filed, the parties often engage in what is known as the discovery process. In this process, both parties are permitted to obtain information from each other for the purpose of evaluating the arguments and facts that will be relied upon by each side at trial. The most common methods used by lawyers for discovering information are:
- Interrogatories: Written questions that a party must answer in writing;
- Requests for Admissions: A written statement prepared by a lawyer for one side that the other side is required to either admit or deny. Note: failing to respond may result in an admission;
- Requests for Production of Documents: a written request for specifically identified documents; and
- Depositions: a question and answer session in which a lawyer asks an individual a series of questions. The person being deposed must first pledge to tell the truth and then answer questions in the presence of a court reporter who will transcribe the session.
Subpoenas: Generally attorneys discover information by making a request for the information in writing to the other party. Sometimes, and frequently in litigation, the parties use a device called a subpoena to achieve this end. A subpoena is a legal document that commands the recipient to provide the information listed in the document. Everything from a written record (Requests for Production of Documents) to answers to questions (Interrogatories) to a person's presence to answer questions (Depositions) may be requested by subpoena. If you receive a subpoena in connection with university litigation, please let your in-house counsel at OLA know as soon as possible.
At some point in the litigation a party may ask the court to issue judgment in its favor by filing a motion for summary judgment. In such a motion, which is usually filed after there has been some discovery in the case, the moving party is attempts to convince the court that no issues of material fact exist to support the other side's case. If the court grants summary judgment, the case is over, unless the losing party files an appeal to a court of appeals (the next highest court). If the court does not grant summary judgment, the case continues;
At some point after the parties have obtained information about each other's case, but prior to trial, settlement discussions may occur. Settlement negotiations may take place through a series of discussions between lawyers, or through a more formal settlement process called mediation.
Mediation is a settlement negotiation facilitated by a mediator, sometimes court appointed and sometimes chosen by the parities. The mediator's role is to facilitate discussions between the parties in the hopes of helping the parties agree to resolve their dispute. Any settlement must be approved by the Office of Legal Affairs and the Ohio Attorney General.
If the case cannot be resolved by the parties and the court does not decide the outcome by granting a motion, a trial will commence. Various courts have different procedures for trial. In some courts cases are often tried to juries who decide the question of liability and damages. In others, like the Ohio Court of Claims, a single judge will decide the question of liability and damages.
After the judge or jury reaches a decision, the non-prevailing party may be entitled to appeal an adverse decision to the court of appeals.
Questions that are frequently asked in connection with litigation.
What is litigation?
The term litigation generally refers to a process in which a controversy between parties is submitted to a court or administrative body for determination. Litigation in typically initiated by the filing of a complaint.
What is the Court of Claims?
With few exceptions, lawsuits seeking money damages against OSU may only be filed in the Ohio Court of Claims. The Court of Claims is a special court, created by statute for the sole purpose of deciding cases filed against state entities, such as OSU. Cases filed in this court are decided by a single judge, appointed by the Chief Justice of the Ohio Supreme Court.
What is a Court of Common Pleas?
Each county in Ohio has a common pleas court. The common pleas court is empowered to hear and determine disputes between private parties. Cases in the common pleas court are presided over by elected judges and many common pleas actions are determined by juries. In most instances, the common pleas court does not have the authority to determine cases filed against OSU or OSU employees.
How will I know if I have been sued?
In order to sue an individual, a "complaint" identifying the employee as a defendant must be filed in a court and "served" on the defendant. Service of the complaint on an employee is typically done via certified mail. The complaint will set forth the allegations against the defendant and will include a claim for relief, e.g. money damages. Accompanying the complaint will be a document called a "summons". It will identify the plaintiff, the defendant/employee, and the timeframe to answer the complaint.
If I am named as a defendant in a lawsuit, who should I contact?
If you are served with a complaint, immediately contact the Office of Legal Affairs at 614-292-0611. Under Ohio law, a complaint filed in a state court must be responded to within 28 days of service. The response deadline for cases filed in Federal Court may be as little as 20 days from the date of service.
Who represents The Ohio State University in litigation?
By statute, only the Ohio Attorney General's Office may represent OSU in litigation. In some cases, a private firm retained by the Attorney General (referred to a "special counsel") will defend OSU.
What is immunity?
Immunity refers to a protection from personal liability that may be provided to OSU employees and faculty who are sued in their individual capacity. Immunity may be provided so long as the actions of the employee giving rise to the lawsuit were within the course and scope of the employee's duties and the employee did not act with malice, in bad faith, or in a wanton or reckless manner. If these conditions are met and the employee is named as a defendant in a lawsuit, the University will provide legal representation and take financial responsibility for the conduct of the employee. The process for determining whether an employee is entitled to immunity is set forth in the Ohio Revised Code.
What is the Ohio Court of Appeals?
In Ohio, cases that are tried in a lower court may be appealed to an Ohio Court of Appeals. A Court of Appeals may include several counties in its service area. The Court of Appeals hears cases from each of the Municipal or Common Pleas courts in those counties. In Franklin County, Ohio, the court is called the Tenth District Court of Appeals.
What is the Ohio Supreme Court?
The court of last resort and the highest court in the State is the Ohio Supreme Court. Some cases have a right to be heard by this Court, others must be granted an appearance by the Court.
What is the United States District Court?
When issues of federal law arise a party may file his or her case in the federal district court which has jurisdiction over the case. Federal court trials may be in front of a judge or jury, depending on the case. In Columbus, Ohio, the local U.S. District Court is called the U.S. District Court for the Southern District of Ohio.
What is the United States Court of Appeals?
If your case lands in the United States Court of Appeals, then it probably started as a federal court case and has already been ruled on by the U.S. District Court. The Court of Appeals considers the outcome of that case on appeal and may overturn or affirm the District Court decision. The U.S. Court of Appeals for the Sixth Circuit is the name of the court which governs matters in Ohio.
What is the United States Supreme Court?
The U.S. Supreme Court is the highest court in the country and is the court of last resort. A decision of the U.S. Supreme Court may not be appealed to any other court; and all of its decisions are final.