Anatomy of a Venal, Vindictive, and Dishonest Judge
The following rather sordid facts analyze and describe in detail the history of misconduct engaged in by retired Federal Judge Richard B. McQuade, Jr. of Swanton, Ohio. Included herein is evidence of fraud, intentional conduct aimed at punishing litigants he dislikes, and numerous violations of the Code of Judicial Conduct and Code of Professional Responsibility.
This web site is rather lengthy because I felt it was necessary to explain in detail how this Judge has repeatedly abused his position to punish those he dislikes. As a Judge and an attorney, McQuade took various oaths to uphold the laws and constitutions of Ohio and the United States. In addition, McQuade was duty-bound to conduct himself in accordance with the Codes of Judicial and Professional Responsibility, which applies to all judges. I have included below relevant sections of the Codes McQuade treats with disdain and contempt. First, I want you to read these Code sections, and then after you have finished reading about McQuade's conduct, I think you will also agree that he should never have been allowed to sit in judgment of anyone.
CODE OF JUDICIAL CONDUCT
A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.
A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny.
A judge should be faithful to the law and maintain professional competence in it. A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware. (D), a judge should disqualify himself in a proceeding in which his impartiality might be reasonably questioned, including instances where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.
CODE OF PROFESSIONAL RESPONSIBILITY
A lawyer (judge) shall not engage in illegal conduct involving moral turpitude. Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Engage in conduct that is prejudicial to the administration of justice. Engage in any other conduct that adversely reflects on the layer's fitness to practice law.
A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violations.
A lawyer shall not aid a non-lawyer in the unauthorized practice of law.
The Rule and Code sections alluded to above were taken verbatim from the Ohio Rules of Court and are mandatory in nature. Unfortunately, the facts contained herein establishes that Judge McQuade was and is of the opinion that he was under no particular duty to conform to any of these Rules and Codes. McQuade's tortured and twisted view that somehow he was above the law while he dispensed his own brand of justice elevates hypocrisy to new and as yet unseen levels.
The following is an explanation of the misconduct engaged in by McQuade.
REESE M. WINEMAN V. RICHARD GRIMES, ET AL.
Wineman was the former city law director for Norwalk, Ohio. In 1991-1992,Wineman was prosecuted for alleged misconduct while employed for the city of Norwalk. Subsequently, Wineman prevailed on the criminal charges lodged against him. During the pendancy of these criminal charges, Judge McQuade agreed to testify as an expert witness on Wineman's behalf.
Subsequently, Wineman filed a civil action for malicious prosecution. After the original Judge withdrew from the case because of a conflict of interest, Chief Justice Moyer assigned Judge McQuade to the case. Unbelievably, McQuade never disclosed to defense counsel that he had previously been employed to testify as an expert on behalf of Mr. Wineman in his criminal case.
After McQuade was on this case for several months, attorneys Donald Theis and Kevin Greenfield sent him letters on December 2, 1996 explaining to him they had just discovered he was a paid expert witness on behalf of plaintiff Wineman, and demanded he withdraw from the case. Over a period of several months, McQuade refused to respond to said letters, which caused attorney Gary Piper to write McQuade on February 12, 1997.
It is of course unprecedented for a Judge to accept an assignment in a civil case when the plaintiff previously employed him as an expert witness. Worst of all, is McQuade's concealment from defense counsel facts proving he had an inherent conflict of interest.
GARLIC MOTORS V. CONRAD
This was a case wherein McQuade was assigned as a visiting Judge in 1985 in Norwalk, Ohio. On July 7, 1986, Chief Justice Celebrezze voided McQuade's assignment to this case. The Chief Justice then assigned Judge Joseph P. Mallone to replace.
McQuade displayed his dislike for the plaintiff's attorney, Walter Wagner. On September 15, 1986, over two months after the Chief Justice voided his assignment, McQuade, in an attempt to teach Mr. Wagner a lesson, signed an order granting relief to the defendants, which basically gutted Mr. Wagner's case. On November 10, 1986, Judge Mallone entered an order stating " there is no doubt in this Court's mind that Judge McQuade's jurisdiction was terminated on July 7, 1986." Judge Mallone then voided McQuade's vindictive and unlawful order.
It should be noted that Mr. Wagner then proceeded to trial and obtained a jury verdict of almost $1,500,000.00 on behalf of his client, which establishes that his client's claims were valid.
ANTHONY A'VE V. CORRECTIONS COMM. OF NORTHWEST OHIO
In this case, attorney George R. Smith, Jr. of Toledo, Ohio filed an affidavit of prejudice against McQuade on April 18, 1994. McQuade was assigned by the Chief Justice Moyer to replace the original Judge in this case.
In his affidavit of prejudice, Mr. Smith made reference to the time he represented a client in a civil case wherein McQuade was the primary defendant. In that case it was alleged that McQuade had falsely and fraudulently signed docket and judgment entries in violating his clients constitutional rights. It was further alleged that McQuade acted intentionally and maliciously.
Obviously, McQuade was out to seek revenge against Mr. Smith because he had prosecuted claims wherein McQuade was accused of engaging in fraudulent and unlawful conduct relating to his signing of judgment entries. One need not be a rocket scientist to understand that McQuade's conduct against Mr. Smith and his client was vindictive and punitive.
The following facts relate to the misconduct engaged in by Judge McQuade that was aimed at my wife and me beginning in 1995 and which has continued through 1997.
DAVID PALMER V. DAVID R. PHEILS, JR., ET AL.
Acting on the advice of my attorney E.J. Leizerman of Toledo, Ohio, I filed a "pro se" action against Pheils and his partners Dale R. Crandall and Marshall D. Wisniewski of Perrysburg, Ohio on November 7, 1991 for malpractice, fraud and defamation.
In August 1995, Chief Justice Moyer assigned McQuade to replace the original judge. All that remained of this case was Pheils', et al's. claims for "pro se" attorney fees to defend my lawsuit and claims they suffered great mental anguish.
The following facts prove that McQuade knowingly and intentionally set out to deprive my wife and I of our constitutional rights to a fair trial and due process, and that he personally advocated for Pheils and his partners at the 11-28-95 trial. The following also proves that McQuade repeatedly violated the Code of Conduct and the Disciplinary Rules.
PHEILS', ET AL'S. FABRICATED TIME SHEETS
In June 1992, Pheils, et al. submitted 18 pages of time sheets containing 239 entries of time claimed to been have spent defending against my lawsuit for 265 hours and fees of $26,490.00.
Many of these entries made references to time spent on long distance calls, time spent reading letters, time to travel to certain places, and time spent preparing various documents. From 1992 through 11-28-95, I repeatedly requested copies of documents relating to Pheils' claims, including letters he claimed took 66 minutes to read
Every state, including Ohio has discovery rules, which allows a litigant to obtain copies of relevant documents to test the credibility of a litigant's claims. In other words, if someone claims they incurred $75,000.00 in medical bills as the result of an auto accident and they file a lawsuit, the other party is entitled to copies of the person's medical bills and records to determine the validity of his or her claim. The purpose of these discovery rules is to prevent a trial by ambush and to assure that all litigants can adequately prepare to defend themselves and receive a fair trial.
From 1992 through 1995, I was able to obtain irrefutable evidence proving that at least 55 of the entries contained in Pheils' 1992 time sheets were total fabrications. Therefore, I prepared to present this evidence of fraud to the jury at the 11-28-95 trial. I was convinced a jury would totally disbelieve Pheils' time sheets when it discovered that over 20 % were total fabrications.
On November 27, 1995, a mere 18 hours before the trial was to commence, I receive a packet from Pheils with 47 pages of new time sheets containing over 1200 separate entries. This packet included the June 1992 time sheets that had now been completely revised. The 55 fabrications had been deleted and there were 82 new entries. The following is McQuade's reaction to Pheils' conduct in concealing these time sheets until 18 hours before trial was to commence:
"Now where are our motions? Did I leave them on the desk in there? What is the first motion unresolved yet, Mr. Palmer?"
"It was a motion for--to strike some exhibits and for sanctions for discovery violations. And I had, Your Honor, that--yesterday in the mail I received an additional packet of time sheets that contains somewhere around twelve hundred entries, several hundred of which are new, many redactions, all computerized."
"We can deal with that when they're offered. I'm going to deal with the evidence now."
This was a ridiculous and disingenuous statement because the only evidence that Pheils offered at the trial was the false and fabricated time sheets he submitted 18 hours before the trial commenced.
"I've never had a chance to review them."
"When they're offered, you make your objections and the Court rules on it then."
My repeated pleas to McQuade that my wife and I were being denied any opportunity to a fair trial because of Pheils' concealment of his time sheets until the eve of trial was treated with disdain. When I did object as McQuade had instructed me to do, he refused to act.
MCQUADE'S CONDUCT FORCING ME TO ACT AS MY WIFE'S LAWYER
At this trial McQuade forced me to act, as my wife's lawyer even though he knew this was a violation of Ohio law. At this very same time McQuade was threatening to jail me if I acted as her lawyer in 4 other cases he was presiding over in Toledo, which also involved his attorney friend Pheils.
Immediately after the trial concluded, McQuade awarded his attorney friends $136,000 in fees. Thereafter McQuade threatened to sanction me if I attempted to argue on behalf of my wife to reverse his award.
Unbelievably, after we pursued an appeal of McQuade's award of fees to his attorney friends, and it was argued that it was unlawful to allow me to act as my wife's lawyer at the trial, McQuade and Pheils argued that allowing me to make an opening statement, cross-examine witnesses and make objections on behalf of my wife did not establish that I was acting as her attorney. The following is McQuade's statement before the jury at the commencement of trial:
"Mr. Palmer, you're going to give the opening statement on behalf or your--both yourself and your wife; is that correct?
For anyone to suggest that McQuade did not authorize me to act as my wife's trial counsel is of course absurd. Equally absurd is McQuade's statement in his 12-1-94 order, which is as follows:
"The Palmers represented to the Court that David Palmer would conduct the Palmers defense in consultation with Ok Sun Palmer."
Unbelievably, three appellate Judges in Toledo, Ohio and Chief Justice Thomas A. Moyer of the Ohio Supreme Court agreed with McQuade in upholding his award of pro se fees to Pheils, et al. In their August 29, 1997 judgment entry, these appellate judges stated:
"In his motion, Palmer states that he is acting on his own behalf and on behalf of Ok Sun Palmer pursuant to the trial court's December 1, 1995 judgment entry wherein the trial court authorized David Palmer to conduct appellants' defense in consultation with Ok Sun Palmer." Contrary to Palmer's assertion, the trial court did not "authorize" Palmer to represent Ok Sun Palmer. The December 1, 1995 judgment entry states that "The [Palmers] represented to the Court that David Palmer would conduct the Plaintiffs' defense in consultation with Ok Sun Palmer."
"A non-attorney, such as Palmer, cannot represent another appellant as he is not licensed to practice law in the state of Ohio. Only an attorney licensed to practice law in this state can properly represent persons other than the pro se litigant himself. A pro se litigant cannot represent another pro se litigant without engaging in the unauthorized practice of law. EC 3-1; R.C. 4705.01."
It's hard to believe that three appellate judges with over 100 years of experience could make such disingenuous statements. It is even more absurd that Chief Justice Thomas A Moyer of the Ohio Supreme Court agreed with these appellate judges.
MCQUADE'S REFUSAL TO APPOINT AN INTERPRETER
In early 1993, the Appeals Court ruled that the original judge's conduct was unconscionable when he violated Ohio law that mandated the appointment of a qualified interpreter to assist my wife at the 10-21-91 trial. The Appeals Court stated that the record demonstrated that my wife could not read nor write English and that she spoke it poorly. Because McQuade was assigned to this case in 1994, he was well aware of my wife's difficulties with the English language.
FABRICATED CLAIMS OF SEVERE MENTAL ANGUISH
Although he knew it was unlawful for Pheils to prosecute claims for mental anguish, McQuade allowed him to proceed to trial. At 3:20 on the first day of trial, McQuade called for a recess. Realizing the jury knew I had destroyed his friend Crandall's credibility on cross-examination, McQuade decided he needed to take action on behalf of his friends. McQuade then devised a scheme to con me into dismissing the jury. Relying on my misplaced belief he was honest, the following then took place at the trial:
"On addressing specifically the issue of mental anguish, it's pretty clear--the law is pretty clear mental suffering is not recoverable in a breach of contract action unless there is a willful or independent tort. And I would refer you generally to 30 Ohio Jurisprudence 3d, Damages, Section 83 at page 93."
"I'd like to make a Record that says basically the timing of the Court's ruling has, in fact, jeopardized the future conduct of the trial in that, in fact, we have represented those as being damages, and now the jury will not be instructed, and there will be no further evidence."
"Do you want a mistrial?"
"I think I have to, judge."
"The other question I'd like to raise to the Court, my reading or what I've researched led me to believe and, of course, probably wrong, but is that the issue of what are reasonable attorney fees. It's for a Court, not for a jury. They don't know if it would take an attorney ten hours to do something versus an hour. They don't, you do."
"Do you want to waive the jury and let me determine it?"
"I think that's what the law states."
McQuade well knew that Ohio law did not prohibit a jury from determining whether attorney time sheets were true and accurate. However, he allowed me to misstate the law, which allowed him to act as the jury and award his attorney friends over $136,000 in fees based on what he absolutely knew were fabricated time sheets supported by false testimony.
Prior to dismissing the jury, McQuade dismissed Pheils and Crandall's unlawful claims they suffered severe mental anguish. However, McQuade awarded fees in excess of $10,000 to Pheils for the time he claimed to have spent pursuing these unlawful claims.
MCQUADE'S CONDUCT IN ADVOCATING A CLAIM FOR LOST
CONTINGENT FEE INCOME ON BEHALF OF PHEILS/CRANDALL
The following excerpts of trial transcript proves that McQuade acted as an advocate for his friends and personally promoted a claim for lost income during the trial that Pheils, et al. never claimed prior to or during the trial:
Cross Examination of Mr. Crandall by Mr. Palmer before the jury
"He's not making a claim for loss of--. He's claiming mental anguish affected his ability. He has not testified as to--He's not making a claim for lost profits that I've heard."
The testimony above took place about 45 minutes before McQuade dismissed the jury, and the following took place 40 minutes thereafter.
"Compensation for physical pain and suffering is not compensable under a breach of the contract. That does not mean that loss of business, loss of profits, loss of what you talked about, ability to consult with other parties is not compensatory if evidence is offered in real terms of those losses."
"Thank you, Judge. We appreciate that."
"This is the first time I've been aware that they're claiming they have lost profits. I don't know how I can rebut those claims when I don't know what they are."
"Well, we haven't heard them yet. Let's get in the jury. Let's do something about getting this jury in and out of here first, and we can sit here and discuss it."
"My only question is if you come in and you say--they testify we could have had that contingency fee and we lost $80,000.00, how do you verify that? How do I argue against that?"
"Well, you can get some other attorneys I suppose, get attorney witnesses."
"I don't know what cases, numbers, I don't know what the judgment was."
"Look, you've chosen to represent yourself in this case." There may be ways you can do it, but I'm not going to sit and counsel you on it."
"In light of the Court's ruling about the additional damages for loss of income for clients that have been turned over to other attorneys, Mr. Crandall would like to go back on that issue alone, Your Honor, but just Crandall and Wisniewski and myself. We should be done by noon or shortly after."
We'll try to have a list of clients that each one of us has referred to other attorneys, which we hopefully will be able to pull off computer records. I'm not sure. I have to talk to the secretary who does it, what those referrals were, and what they would have realized us."
"Let's talk about did you have a duty to disclose this information to Mr. Palmer"?
"The problem I've got, Your Honor, is I did not consider that issue until the Court raised it."
McQuade then makes the following gratuitous and disingenuous statement:
"Then I can't help you on that. As far as Ohio Jury Instructions, it's loss of anticipated profits. It's right in the Ohio Jury Instructions. What I'm saying to you is figure it out whether it's ever going to come in because if it's not been revealed, it's not coming in."
Knowing he never suffered any lost income, Pheils then made the following statement to his benefactor McQuade:
"We're going to work on it tonight, and we'll have something in the morning."
"I find that the evidence is undisputed that Crandall devoted 41 percent of his time to contingency fee contract work, at which he earned the sum of or averaged the sum of $423 per hour. Let me state it another way--that it logically follows that having devoted their time to this unnecessary litigation, robbed them of that much, that percentage of their time devoted to contingency fee contracts which they would have earned at a higher rate."
PERJURY RE: CRANDALL'S CLAIM OF LOST CONTINGENT INCOME
On the morning of 11-29-95, Crandall testified as follows while being examined by Pheils:
Based on Pheils' 11-29-95 testimony that Crandall earned about $244 per hour, and based on a 40 hour work week and a 50 week work year, Crandall's average annual earnings would have been about $488,000. The following relates to evidence I discovered in Crandall's divorce action that proves he and Pheils knowingly perjured themselves at the 11-29-95 trial:
At page 3 of Crandall's trial brief in Case No. 93-DR-196, he states:
"Exhibits No. 2 through No. 6 are the husband's tax returns of K-1's from 1989 through 1993. They show varying amounts of income from $20,584.00 for 1989, $64,829.00 for 1990, $36,792.00 for 1991, $115,491.00 for 1992 and a K-1 income for 1993 of $24,993.00."
At a hearing on February 5, 1996 in his divorce action, Crandall testified as follows:
"What was your gross income for Crandall, O'Reilly, and Huffstutler for 1994?"
At a hearing on October 3, 1996 in his divorce action, Crandall testified as follows:
"What is your gross income for 1995 per that form?"
"We are back on the record and I think the Court had inquired of the witness his best estimate as to how he's doing in 1996. Were you able to come up with an answer for me, Mr. Crandall?"
"As best possible, I think it's quite accurate. The total amount is $17,964.14."
The evidence above proves that Crandall's total income from 1991-1995 was no more than $150,000. His average yearly earnings for these five years was about $30,000 and his average hourly earnings was about $15.00. In fact, Crandall's hourly earnings in 1993 was $12.50 and for 1995 was only $9.07. This is a far cry from the $423 per hour Pheils testified to.
On December 15, 1997, Crandall testified that his gross and net earnings for 1997 were $1500 and $1000 per month respectively. This testimony related to determining his monthly child support payment.
It is indeed unfortunate that Ohio attorneys are permitted to testify falsely about their hourly earnings to support fabricated claims of lost income. What is even more disturbing is the fact that Ohio attorneys are permitted to submit false affidavits regarding their income in order to evade paying the proper amounts for child support. However, it is undisputed that Chief Justice Thomas A. Moyer could find absolutely nothing wrong with the conduct engaged in by Pheils and Crandall. In fact, Moyer ruled that Pheils was entitled to $3900 in fees/interest for pursuing this fabricated claim.
PERJURY REGARDING PHEILS' CLAIM OF LOST CONTINGENT INCOME
Pheils testified he earned $512 per hour 50 percent of the time on contingent cases from 1991-1995. Based on a 40 hour workweek and a 50 week work year, Pheils' average earnings would have been $632,000. Pheils' 12-4-97 testimony proves he perjured himself on 11-29-95:
"Well, any time somebody makes $600,000 a year, and particularly Marty Wisniewski is sort of in between myself and Dale as far as hours he spent. He leaves early on Fridays, he takes two or three vacations a year, so I know he spends a great deal less time in the office than I do, and because of the amount that he was making when I was only making maybe $400,000, obviously he had to do much better because he was spending less hours and making more money."
On 11-29-95 Pheils is earning $632,000 per year from 1991-1995. On 12-5-97 he testifies he was earning about $400,000 a year.
On 12-15-97 Pheils testified that his K-1 partnership returns for years 1992-1996 were accurate copies of the original forms submitted to the I.R.S. These K-1 returns show Pheils earned $136,113 in 1992, $26,890 in 1993, $42,815 in 1994, and $89,898 in 1995, which totals $323,765. Pheils' average annual income from 1992-1995 was 80,941, which is a far cry from $632,000. Furthermore, his average hourly rate was $40.24 and not the $316 he falsely testified to on 11-29-95.
All of the testimony cited above was given in the presence of McQuade. Despite Pheils' obvious perjury, McQuade could find nothing wrong with this kind of behavior.
EVIDENCE SUBMITTED TO MCQUADE AND OTHERS PROVING PHEILS' TIME SHEETS WERE FALSE AND FABRICATED
After the kangaroo trial of 11-28-95, I spent a considerable amount of time and resources obtaining evidence proving Pheils' time sheets were fabricated. The following is an example of the fraudulent entries contained in Pheils' time sheets:
Pheils claimed 54 minutes to read a one- (1) page court order on 6-9-93 that I read in 30 seconds. McQuade awarded Pheils $165.
On 12-4-97, Pheils testified as follows regarding this matter:
"How long do you think--can you estimate how long it took you to read it?"
"Oh, probably 30 seconds."
"Do you believe it could have possibly have taken anybody, including yourself, 54 minutes to read that one-page order that you just read in 30 seconds."
"No, I don't believe it would take anybody 54 minutes to read the order."
"Did you sue for that .9 hours (54 minutes)?"
"Did you collect for it?"
"From Ok Sun Palmer, yes."
So you collected from Ok Sun Palmer approximately 160 or $170 for spending 30 seconds, is that true?"
"For spending 54 minutes reading that."
"And you believe you're entitled to at least $165 or whatever it was for doing that, correct?"
"Not anymore, I've already collected it."
"You've collected it and you think that's fair, don't you?"
"Not only do I think it's fair but the trial court, the Court of Appeals all agree it was fair."
"So we have yourself, Judge McQuade, Judge Handwork, Judge Glasser, and Judge Sherck all agreeing that it was credible that you claimed to spend 54 minutes reading that, is that correct?"
"Obviously, that's correct."
Pheils claimed 4.2 hours and was awarded $764 for claiming he attending hearings on 6-1-93 and 4-16-93. Court orders regarding these 2 hearings proves Pheils was never present.
On 12-4-97 Pheils testified as follows regarding this 4.2 hours and award of $764:
When questioned about this being fraudulent, Pheils testified as follows on 12-4-97:
McQuade awarded Pheils, et al. $2,300 for the time they claimed they spent responding to grievances I filed against them. The record proved that my wife never filed these grievances. However, McQuade, the Appeals Court, Ohio Supreme Court, Wood County Bar Association, Toledo Bar Association, Disciplinary Counsel of the Ohio Supreme Court, and Chief Justice Thomas A. Moyer of the Ohio Supreme Court ruled it was lawful for McQuade to order that my wife pay this $2,300.
On 12-5-97, Crandall testified about this matter as follows:
Pheils and Crandall claimed they spent 96.6 hours preparing a 2 1/2 page generic/boilerplate answer and counterclaim regarding my complaint of 11-7-91. McQuade, the appeals court and Chief Justice Thomas Moyer ruled this claim was reasonable and credible.
MCQUADE'S DISENGENUOUS RULINGS OF JUNE 21, 1996
On several occasions prior to June 21, 1996, evidence was submitted to McQuade proving that Pheils and Crandall's claims for lost income was a total fabrication and supported by their perjured testimony. Left with no choice but to reverse his award of $70,000 to his friends after I proved to him they had lied under oath to support their fabricated claims, McQuade reversed himself, and then made the following disingenuous statement in his judgment entry and order of 6-21-96:
"This court disagrees with Palmer's argument that it awarded fees for time spent pursuing mental anguish claims. This court did not award fees for time spent pursuing their mental anguish claims."
McQuade's statements are proven false by his following statements at trial:
"In addition, Mr. Pheils testified that he has spent 42 hours as of yesterday and has spent 4 hours today, or 46 hours in the prosecution of this action, and that his current rate is $140 per hour, and that is an additional $6,440 that he's entitled to".
"Now Mr. Crandall testified that he has 30 hours in the preparation and prosecution of this case, plus today, which what did I give Mr. Pheils? Four hours. So he has 34 hours at $130 per hour, or additional $4420."
The trial transcript proves that Pheils and Crandall spent at least 80 percent of the time at trial pursuing their sham mental anguish claims. This doesn't include the 40-50 hours they claim they spent preparing for the trial.
"This ruling renders Mr. Palmer's argument moot as it relates to the Court's acceptance of Pheils' last minute production of time sheets."
To suggest that his actions cured the prejudice visited upon my wife and me by allowing the last minute production of Pheils time sheets is not only laughable but is patently untrue.
"This ruling renders Mr. Palmer's argument moot as to Pheils and Crandall's false testimony regarding their contingent fee income and the accuracy of any testimony or evidence surrounding the contingent fee issue."
This statement is clear evidence of just how disingenuous McQuade really is. According to McQuade's twisted logic, fabricated facts supported by perjured testimony are somehow cured when he reverses his prior award of $70,000.00 and lets stand his award of fees and interest of an additional $65,000 based on the same misconduct. What we have here is McQuade acting as a priest and granting absolution to Pheils and Crandall for their sins.
However, what is really appalling is that McQuade awarded Pheils/Crandall over $2500 for the time they spent preparing for and perjuring themselves at trial. Who said, crime doesn't pay?
PHEILS V. PALMER
Pheils sued my wife and me on January 27, 1988 claiming he; Crandall and Wisniewski were entitled to 30 percent of all uncontested no-fault benefits paid to my wife until she died because Crandall mailed an application for these benefits to Nationwide after Nationwide mailed it to him. The following is a brief chronology of what happened at the first trial, facts which were well known to McQuade prior to April 1, 1996, because the Chief Justice assigned him to this case on June 17, 1994.
On the morning of the original trial of October 21, 1991, my attorney E.J. Leizerman, who has offices in Toledo, Ohio, Nashville, Tennessee and Detroit, Michigan, for the first time told me he would not appear to defend my wife and me at the trial. He told me that he had to appear at a hearing before the Ohio Supreme Court that morning regarding his misconduct. Leizerman was told of this conflict by the Supreme Court at least 90 days before the October 21, 1991 trial date.
When Leizerman failed to appear and while he was still our attorney, the trial judge brokered a settlement agreement wherein attorney Pheils agreed to pay us$60,000 to settle our claims sounding in fraud, malpractice, embezzlement and defamation. As a condition of this settlement, the judge ordered us to proceed to trial pro se to defend Pheils' claims for fees.
The trial judge was aware that my wife, a Korean born immigrant, could not read nor write English and spoke it poorly. Further, he was aware that she ingested narcotics for pain, anti-depressants, and other mind-numbing medications, which rendered her unfit to appreciate her surroundings. Despite this knowledge he failed to comply with Ohio Revised Code 2311.14(A) which mandated that he appoint a qualified interpreter to assist her.
The trial judge then allowed me to act as my wife's attorney at the trial by putting forth a defense on her behalf. The trial court's conduct resulted in a judgment for Pheils of $147,000.00 in fees, a judgment that was a foregone conclusion given the trial courts conduct.
After the trial we employed attorney James Nooney of Eastman & Smith in Toledo, Ohio to perfect an appeal. The Sixth District Court of Appeals, in a unanimous decision written by Judge Peter Handwork reversed the judgment. Chief Justice Moyer then assigned McQuade to this case in 1994.
On May 30, 1994, Chief Justice Thomas Moyer assigned McQuade to this case after the original judge withdrew. Subsequently, McQuade set a trial date for April 1, 1996 to retry the case.
McQuade's conduct at the trial established he was angry with us because of our December 1995 letters to the Chief Justice. Further, McQuade was upset at me for exposing his misconduct. Therefore, McQuade's trial conduct was intended to further punish my wife and to send another message to me to stop exposing his and his friend Pheils' misconduct. Examples of McQuade's conduct is as follows:
Pursuant to Ohio law, Pheils was limited to a quantum meruit theory of recovery on his claim for fees. Quantum meruit basically means; as much as a person reasonably deserves. The standard for quantum meruit recovery for attorney fees in Ohio after an attorney has been discharged is as follows:
The time and labor required, meaning the hours worked prior to discharge.
The novelty and difficulty of the questions involved.
The skill required to perform the legal service properly.
The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney.
The fee customarily charged in the locality for similar services.
The amount involved and the results obtained.
The time limitations imposed by the client or by the circumstances.
The nature and length of the professional relationship with the client.
The experience, reputation and ability of the lawyer.
Whether the fee is fixed or contingent.
The only money my wife ever received as a result of her catastrophic accident of 1-20-87 was the payment of uncontested Michigan No-Fault benefits to pay her necessary medical expenses until she died. Now, lets take a minute and review the evidence put forth to McQuade by Pheils at the 4-1-96 trial as it relates to the 10 requirements cited above.
Crandall's time sheets prove that the hours he spent submitting my wife's medical bills to Nationwide from 5-5-87 through 11-30-87 were no more than 3 hours.
There was no novelty or difficulty involved in mailing medical bills to an insurer to obtain payment for uncontested claims.
Obviously, one needs no particular skill to mail medical bills to an insurer.
There was never any claim by Crandall that he was forced to refuse other employment because of the 3 hours he spent in 1987 mailing medical bills to Nationwide.
Pursuant to an Ethics Opinion issued by the Toledo Bar Association in 1988, the customary fee charged in this area for mailing a client's medical bills to collect uncontested Michigan No-Fault benefits was zero.
The amount involved and the results obtained was irrelevant, because the only amounts one is entitled to is the reasonable costs of medical expenses incurred.
The only time limitation involved is making sure the bills are mailed on time.
The nature and length of the professional relationship is irrelevant because the last time Crandall represented us was in 1981 on some business matters.
Crandall testified before McQuade that he never had any prior experience dealing with Michigan No-Fault.
The only contingent fee agreement entered into related to Pheils' successful lawsuit against the truck driver that collided with my wife, which Pheils never pursued.
The most important elements in determining a reasonable fee is;  the hours worked before discharge,  the prior experience and reputation of the attorney,  the fee customarily charged in the locality for similar legal services, and  the novelty and difficulty of the matter.
As it relates to the element of the hours worked before discharge, the following facts relate to McQuade's conduct at the 4-1-96 trial:
McQuade knew that Crandall's time sheets were fabricated because Pheils never used them at the trial to support his claim for fees. (at least 80 percent of his entries were total fabrications)
However, during cross-examination of Crandall, Mr. Rupp introduced Crandall's time sheets to prove his and claims for fees were false. While examining Crandall as to page 1 of his time sheets, Crandall admitted that at least 4.0 hours out of the 9.7 hours he claimed had nothing to do with the representation of my wife and me. The other 5.7 hours dealt with the cause of the accident and had absolutely nothing to do with my wife's medical bills.
After Crandall's admission that almost 50 percent of page 1 of his time sheets were false, McQuade cut off Mr. Rupp's cross-examination and made the following prejudicial statements to offer comfort to his friends and did so in the presence of the jury:
"Well, wait a minute. This isn't a document that he introduced in support of his claim, you introduced it, and he did it at the request of the court."
"And he said to us now several times that he--it was pure conjecture, it was built out of error as best he could recollect at the time. Now, this is not in support of his claim. I think you've made your point on this thing, and we really ought to move on. He isn't claiming these hours for compensation. If he were, it would be a little different."
"Your Honor, because of the DR-106, I believe it is, I would like to take a moment to find it.
"Okay. I'm familiar with it."
"Provides that the factors to be considered as guides in determining reasonableness ."
"The time is a key element in this case. If it's overstated throughout there as bad as it is on the first page, which is about four hours over what's claimed instead of "
"We don't need to argue in front of the jury. What I'm saying is, this is not part of his claim. You bootstrapped him into this thing by introducing it and now you're cross-examining him on it. I can't see how it goes to your claims."
What McQuade did was to instruct the jury to ignore the hours worked even though it was the most important element in determining Pheils' claim for fees. In addition, my wife was suing Pheils and Crandall for fraud, and these false time sheets were an important part of Mr. Rupp's case in proving said fraud. In fact, Mr. Rupp was prepared to establish that Crandall's time sheets would prove that at best he spent no more than 3.0 hours in 1987 mailing my wife's medical bills to Nationwide for reimbursement.
After the trial, McQuade ruled that Pheils was entitled to 10 percent prejudgment interest from the date he was fired. He went on and awarded Pheils $117,000 in prejudgment interest after awarding him $160,000 in fees.
McQuade awarded 10 percent prejudgment interest to his friend Pheils on the $81,500 he already collected on his claim for fees in late 1991. $60,000 of this amount came about when Pheils garnisheed the check made payable to the Palmers by his malpractice insurer. McQuade ruled that Pheils was lawfully entitled to $48,000 in interest even though he spent the money in 1991, because no evidence was submitted by Mr. Rupp that Pheils received any interest on this $81,500 from 1991 through 1996.
Additionally, McQuade ruled that even though Pheils received this $81,500 and had spent it in 1991, he would not reduce his judgment of $160,000 by this amount. Unbelievably, McQuade advised that my wife file a lawsuit against Pheils for unjust enrichment regarding this $81,5000 payment in 1991.
In addition, McQuade awarded Pheils over $50,000 in prejudgment interest from January 18, 1988 even though he admitted my wife never received monies from Nationwide Insurance Co. to pay her medical bills until mid-1991. McQuade ruled that Pheils was lawfully entitled to this prejudgment interest because my wife had enjoyed the fruits of these monies from January 18, 1988. This is obviously absurd because she never had the money.
Unbelievably, Chief Justice Thomas A. Moyer of the Ohio Supreme Court agreed with McQuade's making of new law on applying prejudgment interest, which of course only benefits Ohio attorneys to the obvious damage of everyone else.
PHEILS' DEFAMATION SUIT V PALMER
In May 1995, Pheils and Crandall had the audacity to file suit against my wife and me claiming they were defamed and again suffered extreme mental anguish. As usual, Chief Justice Moyer assigned this case to McQuade in order to assure a favorable outcome to his attorney friend Pheils. The following are a few examples of how McQuade acted to further advocate for Pheils:
Pheils claimed the alleged defamation damaged him in his profession in excess of $900,000.
I then demanded copies of Pheils' tax returns and other financial information to determine if in fact he had suffered $900,000 in damages. Unbelievably, McQuade agreed with Pheils' argument that his financial records were not relevant to determine whether his $900,000 claim for damages was valid.
I also demanded information relating to any lawsuits filed against Pheils and any lawsuits or claims he had filed against other persons wherein he made claims of mental anguish or defamation. Unbelievably, McQuade ruled this information to be irrelevant.
I then took Pheils' deposition on 6-27-97. I was able to obtain some information relating to prior litigation involving Pheils in Newark, Ohio and other places. After a review of the court files in those cases and others, I submitted a supplemental witness list based on my discovery.
Again, McQuade agreed with Pheils' motion to strike my supplemental witness list even though I discovered these witnesses after I took Pheils' discovery deposition in June 1995.
My wife employed an attorney to file a motion to dismiss Pheils' sham claim that she had conspired with me to defame him. Mr. Yoder then filed a motion to dismiss Pheils' claims against my wife. Pheils responded with the following laughable arguments:
He would prove we conspired because he would prove that "we had a long standing relationship." We've been married for 34 years!
He would prove that at least one time my wife gave me cash to buy groceries, which gave me the physical power to post defamatory fliers about him.
He would prove that my wife likely paid the electric bill and allowed me to use her electricity to power my computer to make defamatory fliers.