Columbus Bar Fall 2019
This issue examines the practice of law
itself. What are some nontraditional ways to use your JD? What are the different paths to a law degree? How are law schools and law students performing immediately after graduation? We’ll explore all this and more inside. Plus, check out our new Small Business feature: It’s a Small World.
A publication of the Columbus Bar Association • www.cbalaw.org
Fall 2019 President’s Page
Bridging the Gap: Meeting the Legal Needs of Our Community Amy B. Koorn
The Magic of Marrying Legal Logic and Storytelling Mark Kitrick and Mark Lewis
What’s Your Story? Scott R. Mote Increased Collaboration Will Lead to a Better Understanding of Domestic Abuse Stuart Y. Itani
It’s a Small World
The Subjectivity of Value: Why You Should Charge Different Clients Differently Bradley Miller
Points of Practice
How the DOL Changed ESOP Transactions Without Regulations Tim Jochim and Mike Sorice
U.S. Supreme Court Decides Landmark Condemnation Case in Favor of Property Owners Jeremy Young
Expanding Careers by Stepping Out of Your Personal Comfort Zone Angie Blevins
Photo Gallery and Calendar of Events
Fall ‘19: The Practice of Law
How I Have Used My Law Degree in Various Careers Amy Klaben
Earning an LL.M. Shaped My Career Katja Garvey
Law as Business, Profession, or Both Janyce C. Katz
Law Schools: The Real Employment Numbers for the Law Class of 2018 Jason M. Dolin
Columbus Bar Association Editorial Board Chair
Board Members Melanie Tobias Amy Koorn Ashley Johns Garth Rowbotham
Design/Production Sarah Curran
Life Outside the Law
Lawyers with Artistic License: Adam Todd & Adam Florey Heather G. Sowald
The Best of Africa Includes Its People (Part 2 of 2) Hon. David E. Cain, Ret.
Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org
Civil Jury Trials, Franklin County Common Pleas Court Monica L. Waller
Advertising Burgie MediaFusion (614) 554-6294 firstname.lastname@example.org
NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.
Bridging the Gap: Meeting the Legal Needs of Our Community by amy koorn San Francisco–The City by the Bay– hosted the National Conference of Bar Presidents Annual Meeting this year, which CBA President-Elect Rob Erney, CBA Executive Director Jill Snitcher McQuain and I had the pleasure of attending on Aug. 8-10. Of the many speakers and topics presented, by far my favorite was hearing from Katy Goshtasbi, J.D., describe personal branding for lawyers with a focus on creating a strong bar identity with strong member engagement. As she described her journey as an immigrant from Iran as young girl, to a securities lawyer in DC, and ultimately to a business owner of Puris Consulting and author, I was reminded of the many talents we lawyers have and how multidimensional our skill set is. All too often, though, we become hyper-focused on lawyering and neglect the opportunities that await when we clearly and consistently message our worth to prospective clients and the general public. The CBA
recognizes the collective value our members have to the community and our commitment to them will be demonstrated through the re-tooling of our Lawyer Referral program in early 2020. Every day, I see the tremendous need for attorneys and the skills they offer: life situations that range from a death in the family, to parenting time, to an injury in the workplace or enrollment in school for a child with a special need. Despite the important advocacy and diligence that lawyers offer to navigate these waters, the lawyer jokes persist, and the number of unrepresented parties rises annually. With the hope of better pairing potential clients with a lawyer to fit their needs, the CBA is taking a hard look at how we go about communicating our lawyers’ skills to set the stage for your success. Speaking of multi-dimensional and re-tooling, my career has undergone a shift, as I begin as chief legal counsel at the Department of Youth Services. This move away from the courthouse will mark a big change for me as I have spent over a decade coming and going from the court complex. I will miss “magistrating” and crossing paths with so many of you as you traverse the courthouse steps, er, elevators, but I am looking forward to the opportunity and challenges that await. My leadership at the CBA will continue undaunted; only my commute course will vary! As you skim my remarks, I urge you take a longer look at your own work and find the positive ways you and your law office are contributing to the improvement of lives and workplaces. By way of example, and to bring awareness to the significant social role lawyers have,
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Every day, I see the tremendous need for attorneys and the skills they offer: life situations that range from a death in the family, to parenting time, to an injury in the workplace or enrollment in school for a child with a special need. Despite the important advocacy and diligence that lawyers offer to navigate these waters, the lawyer jokes persist, and the number of unrepresented parties rises annually. the Department of Youth Services confines felony offenders ages 10-21 adjudicated by one of the State’s juvenile courts with the goal of rehabilitation and release while offering education, vocation and therapy. It is an exciting opportunity to consider my role as counsel and advisor to the agency that has the best and perhaps last opportunity to restore lives before the criminal justice system becomes involved. If your reflections fall short of your goals, or your workload simply allows you the benefit of picking up a pro-bono case or serving on a community commission or board, I urge you to put your skillset
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to work pro-bono or low-bono. And if you don’t know where to begin, please call me. I would be happy to share legal opportunities with you that will enrich not only the lives and livelihoods of your clients, but also your own knowledge base and legal experience.
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The Magic of Legal Logic and Storytelling bY Mark Kitrick and Mark Lewis In our last Law-Lit essay, we sought to bridge the gap between storytelling and legal reasoning. We argued that reason and narrative are two sides of the same rhetorical coin, each building upon and supporting the other to achieve persuasive efficacy. Logic gives us coherence and consistency, while storytelling captures the emotion and verisimilitude of lived experience. Together they capture the most complete and useful legal meaning. In this essay, we carry on our Law-Lit mission by proposing a practical method of combining legal reason and storytelling in your writing. This marriage of logic and story will refine your legal voice and style, while also allowing you to enjoy the writing process itself. Through your enjoyment, you will find creative and artistic inspiration in your legal work. Before turning to this creative magic, let’s begin with more mundane territory—legal logic. What makes for good legal argument? Many things, to be sure, but two primary ingredients are essential. First, only the legally-relevant facts matter. The law defines what facts are relevant to the legal problem at hand. Those are the legally relevant facts. All the other facts, strictly speaking, don’t matter to the legal analysis. In short, we have two kinds of facts— legal facts and non-legal facts. It is the legal facts that we apply to the law, and vice versa.
When applying those legal facts, we must use logic. This is our second ingredient to good legal argument. Most effective legal arguments take the form of the syllogism. This requires a major premise, a minor premise and your conclusion. We all know the most basic example: to be enforceable, contracts must be supported by consideration. The contract between Tim and Mary is supported by consideration. Therefore, the contract is enforceable. In this example, the law is our major premise. The relevant facts serve as the minor premise. Apply the minor premise to the major, and we reach our necessary logical conclusion. You’ll no doubt note the circular nature of both legal logic and factual relevance. The substantive law suggests what facts will be relevant, while the available facts steer toward the law that might apply to your legal situation. This circular flight between law and relevance shapes much of legal problem solving. But there is a complementary path for legal problem solving, one that avoids the somewhat closed loop of legal analysis. That other path is storytelling. Storytelling lives by different facts and logic than legal reason. Understanding those differences allows us to marry the two disciplines—legal logic and storytelling—in our legal work. In storytelling, the facts and logic that matter most concentrate on character, conflict and arc. You might recall these three narrative fundamentals from our previous essays. In those earlier writings, we shared principles and techniques to help you create empathetic, likeable character-clients. We proposed
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Whereas legal reason depends on legally relevant facts, storytelling relies on facts that fit character, conflict and arc. Whereas law depends on logic, storytelling needs narrative structure. ways to shape the underlying conflict between legal parties into suggestive and memorable plot lines. And we revealed some of the ways in which story structure or “logic” can propel your legal audience to keep reading with interest. Whereas legal reason depends on legally relevant facts, storytelling relies on facts that fit character, conflict and arc. Whereas law depends on logic, storytelling needs narrative structure. Yet good stories often meld with the facts and logic that underlie legal reasoning. Of course, the most compelling and evocative facts don’t necessarily link to the legal elements of the at issue claim or defense at issue. Legally relevant facts can be boring and even lead to narrative dead ends. On the other hand, narrative facts and story structures trigger emotional investment, empathy and understanding.
As one crucial example, think of the age-old story structure that pits the hero against an obstacle they must overcome. The character finds themselves in a problematic situation. They try repeatedly to solve the problem but repeatedly fail. Then, in a climactic struggle, they either fail or succeed, bringing the story to its end. In the related and equally common “good guy vs. bad guy” story structure, we find a good character is in a fix caused by the bad guy. The good character tries to work their way out of the fix, but fails over and over again. After a great contest or battle, the good guy finally succeeds, and the positive values underlying his behavior are affirmed. The good wins, and the bad guy gets their comeuppance. We find these structures in nearly all great stories, whether we think of Homer’s Odyssey or Disney’s Dumbo.
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We recognize these story structures in our favorite movies, TV series, and books. How do we incorporate them into our legal writing? How do we marry the different logic and factual resonance of story and law? We’ve developed the following “Law-Lit Principles” for writers looking to marry law and literature. LAW-LIT PRINCIPLE 1: In most legal writing, legally-relevant facts and logic should guide you first. Make sure your syllogistic legal reasoning is airtight by applying only the legally-relevant facts to the controlling premise. But realize that legal logic is not the end point of your writing and problem solving. It is just the beginning. LAW-LIT PRINCIPLE 2: Once you’ve locked down your legal logic, look for places where narrative facts and story structure align or cohere with their legal counterparts. In other words, which facts are both legally and narratively relevant? Can your best facts support both legal reason through syllogism and effective storytelling through character, conflict and arc? If so, put them in service of both, using the law-lit techniques we endorse here. LAW-LIT PRINCIPLE 3: If your best facts do not allow for such alignment between logic and story, consider the following additional precepts to marry the two. First, storytelling should predominate in factual sections, while legal logic should hold sway in argument sections. When drafting your facts, think not merely about the legally relevant facts, but also about (1) how to truthfully shape the parties as characters whose motives, personalities and actions evoke empathy or disdain, (2) what underlying human, value or moral conflict drives those characters and would resolve the dispute in non-legal terms, and (3) whether the “good guy vs bad guy” or similar story arc would provide the right narrative context to convey the facts. Always keep in mind that your factual storytelling must imply, if not highlight, the legally relevant facts whenever possible.
Helping clients overcome challenging situations and getting back to what matters.
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Commercial & Economic Damages
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law and literature. In further essays, we’ll offer further explanation and examples of these principles in legal writing from practicing lawyers and judges. From U.S. Supreme Court Justices to local practitioners, those who have grasped these principles can help show us the way toward unifying legal logic and storytelling in our own writing. We will all know the magic of marrying law and literature.
Mark M. Kitrick, Esq.
Mark D. Lewis, Esq.
Kitrick, Lewis, & Harris, Co., LPA Kitrick, Lewis, & Harris, Co., LPA firstname.lastname@example.org email@example.com
We hope this summary helps you see from yet another vantage point the important goal of marrying 8 | Columbus Bar L aw yers Quarterly Fall 2019
STORY? BY Scott R. Mote, Esq.
At the Ohio Lawyers Assistance Program, we help lawyers, judges and law students cope with life’s stresses. A common theme we see is that many people wait until they hit rock bottom to contact us. Why do so many shy away from getting help? The biggest reason we hear is they fear that others will find out that they are struggling. They are afraid of the stigma that sometimes goes hand in hand with mental health and substance use disorders. I can assure you that OLAP is confidential. When you contact OLAP about yourself or a colleague, anything you discuss with OLAP will be protected by strong rules of confidentiality: 1. Prof. Cond. Rule 8.3 provides an exemption from the duty to report knowledge of ethical violations
when that knowledge was obtained in the course of OLAP’s work. 2. Code of Judicial Conduct Rule 2.14 provides that information obtained by a member or agent of a bar of judicial association shall be privileged. 3. R.C. § 2305.28 provides qualified immunity from civil liability for OLAP staff (B and C) and for anyone who provides information to OLAP (D). On the other hand, telling your story can help others. When others see that recovery is possible and that seeking help is appropriate and necessary, it helps relieve the stigma; it gives comfort to those who are afraid to surrender to their addictions. When you share your story and speak openly about your struggles, it helps others tell their stories and seek help. The stories that follow are from three courageous women lawyers who share their stories so that others can understand that seeking help is not a sign of weakness. It’s a sign of strength and courage. The weakness is believing the lie that you can do it on your own.
If you see colleagues who are struggling, reach out to them. If you feel you need help, ask for it. It’s not a sign of weakness; it’s a sign of courage. Don’t be afraid to share your story. 10 | Columbus Bar L aw yers Quarterly Fall 2019
A homesick party girl
T.W. started drinking heavily in undergraduate school. Originally from Texas, she moved to Ohio to attend law school and to get away from the “town drunk” stigma. She soon learned that law school was cutthroat and not as easy as undergrad. She did not do well her first semester in law school. She missed her family in Texas and didn’t have many friends in Ohio, so she resorted to going out and drinking, even though the whole reason she moved to Ohio was to get away from the stigma of being a drunk. When T.W. went out with classmates, she didn’t drink the way she wanted to. She was concerned about her reputation and didn’t want other people to see the “drunk” that she was. She was able to control her drinking so that she didn’t get too drunk, but once she got home, she drank alone until she passed out. She would then go to class the next morning reeking of booze and finding it difficult to grasp what was going on in class. Her grades soon began to suffer and she was put on academic probation. On top of that, she missed her family and became depressed. She drank to cope with her depression.
She started skipping class and didn’t study, because she was very depressed and getting obliterated frequently. She got to the point of considering suicide as a final solution to a temporary problem, and she was hospitalized. Shortly after being hospitalized, T.W. called a professor and told him about her situation. The professor recommended the Ohio Lawyers Assistance Program. She called OLAP, went in and had an assessment that made her realize her pattern of drinking had progressed. OLAP recommended an intense outpatient program, and T.W. started her recovery. T.W. got sober in the second semester of her second year of law school. She made the dean’s list and graduated cum laude.
A non-traditional law student in denial
P.B. was a non-traditional student with two small children, who began drinking at 15. After she got divorced, she went to college and then to law school. Although she didn’t struggle in law school, her drinking problem progressed. She could control when she started drinking, but then had
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no control over how much she drank, which always led to drinking more than she intended. She didn’t think she had a problem because she was accomplishing so much. After law school, P.B. got a federal clerkship and worked for a judge, but her drinking continued. She knew her drinking was abnormal, but was in denial because she was still able to go to work and carry on with her responsibilities. She would tell herself that she would drink like a normal person once she achieved certain goals, but that never happened. She was drinking to get drunk. P.B. soon met a great guy, got married and bought a farm. On the outside, everything in P.B.’s life was great, but she was depressed. She continued to drink to get drunk and her drinking was progressing. She didn’t understand that her alcoholism was a disease. She started to drink every day, even though when she got out of bed in the morning, she would tell herself she wasn’t going to drink today. She tried to control it, but failed. P.B. soon got sick and tired of being sick and tired. She was often sick, was depressed and started lying to her doctors and therapists. She never revealed to them how much she drank. She didn’t believe that drinking was the problem. One morning, she had a horrible hangover, and couldn’t imagine living this way any longer. She called OLAP and told them the truth about her drinking. She went in for an assessment, and has been in recovery ever since.
From alcohol to crack cocaine
D.H. was a party girl all through high school and college. She never suffered any consequences from it, so she never thought she had a problem. To her, partying was the only source of fun and entertainment. She went to law school as a non-traditional student and did well, but her drinking progressed. As she continued to party, someone introduced her to cocaine, and she started using it habitually. She started to miss work. She knew she needed help, but was worried about her job. She explained her problem to her law firm,
who asked OLAP for help. She went to rehab, believing that she was a drug addict, not an alcoholic. D.H. stopped drinking and using for a couple years, but nothing changed inside of her. She never surrendered to her addictions. After a couple years, she became bored and irritable. She was at a function and decided to have a drink. She told herself she didn’t have a problem with alcohol, just drugs, and that she obviously didn’t have a problem since she had been sober for two years. Soon, her drinking progressed to drinking to black out. She had no control over how much she drank. She picked up where she left off. She then rediscovered cocaine. Instead of seeking help, she progressed to using crack cocaine. She could not stop, and she didn’t care. She used crack to cope. She got divorced, and the only thing that mattered to her was getting high. She lied to people and thought to herself that she would get it together tomorrow, that way no one would know. She was afraid to seek help. Being a “crackhead” was embarrassing. She thought she would be judged and would never be able to recover. She couldn’t admit that she was powerless and out of control.
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D.H. would stay up for five or six days getting high. One day she looked in the mirror after smoking crack and knew that she needed help to save her life. She contacted OLAP, which recommended a treatment center in Florida. Before getting on the plane to rehab, she smoked crack, but the high wore off as she was on the plane. She started to panic and thought about reality. Would she ever be able to practice law again? How could treatment work this time, if it didn’t work the first time? How could she cope with no numbing agents? When she got to treatment, she slept. When she woke up, things were different. She started to feel safe and that she could control this disease. After 30 days of in-patient treatment, D.H. started her sober life.
Themes There are several common themes in each story. • Many people with substance use disorders live in denial, thinking that they can control their addiction, but the disease progresses until they seek help or hit rock bottom. • Willpower doesn’t help with mental health issues or substance use disorders. You cannot will yourself to feel better.
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• Many suffer from dual-diagnosis, which begins as a mental health issue and leads to drinking or drug use to cope. • Addiction is a disease that you cannot control. I am so proud of these women for sharing their stories. They are helping our profession understand mental health and substance use disorders. They are giving others the courage to seek help. Let’s help each other. If you see colleagues who are struggling, reach out to them. If you feel you need help, ask for it. It’s not a sign of weakness; it’s a sign of courage. Don’t be afraid to share your story. If you find yourself stressed, anxious, or overwhelmed, seek help. The Ohio Lawyers Assistance Program helps lawyers, judges and law students manage life’s stresses. OLAP has saved lives, careers, marriages and families. All inquiries are confidential. (800) 348-4343 / ohiolap.org.
Scott R. Mote, Esq.
Executive Director Ohio Lawyers Assistance Program firstname.lastname@example.org
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Increased Collaboration Will Lead to a Better Understanding of
Domestic Abuse BY STUART Y. ITANI “Angela” is afraid to leave her husband, but she also does not want to stay. He hasn’t hit her in a year. Still, she is afraid—right now. During their marriage, Angela’s husband has hit her a few times while they were arguing, and, on a few occasions, grabbed her arm in front of their two children. But the physical violence Angela has faced doesn’t reveal her whole story. What if I also told you that her husband does not let her work and demands that she stay at home to take care of the children? What if I told you that he scrolls through her phone when she returns from running errands to see whom she had called? What if I told you that he routinely takes her car keys during arguments? What if I told you that he calls her names in front of the children, and that her children, who know not to disobey their father, are starting to mimic his behaviors toward her? Only when we look at the full range of abuse that Angela experienced do we begin to understand her fears. As attorneys who regularly represent low-income victims and survivors of domestic abuse, my colleagues and I know that Angela’s struggles are too common. While LSS CHOICES for Victims of Domestic Violence and other providers of domestic abuse services have long recognized the impact of abuse that doesn’t leave bruises, many in other fields are now understanding its far-reaching effects. Fortunately, the 2019 Intimate
Partner Violence Community Analysisi released by CHOICES identifies an array of domestic violence resources that can help the legal community better understand domestic abuse, identify the barriers victims and survivors face when trying to overcome abuse and alleviate the harmful effects that abuse has on individuals and their families.
Understanding Domestic Abuse: Language Matters Our understanding of the nature and extent of domestic abuse starts with the very language that we use to describe it. For criminal and civil proceedings, domestic violence is defined under Ohio Revised Code Sections 2919.25 and 3113.31. For these purposes, the crux of domestic violence involves physical force, threats of physical force or stalking behaviors. And while it is imperative that attorneys understand these definitions and the statutory framework for criminal charges and civil claims that require proof of these elements, attorneys also must realize that these acts are only some of the harmful behaviors that victims experience as part of abusive relationships. The Ohio Domestic Violence Network defines domestic abuse as when “your partner uses a pattern of coercive and assaultive behaviors to obtain power and control over you.” ii While physical violence can be a component of an abusive relationship, it is not always present, recent or prevailing. ODVN identifies other important hallmarks of abuse: emotional abuse, isolation, intimidation, use
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While it is imperative that attorneys understand these definitions and the statutory framework for criminal charges and civil claims that require proof of these elements, attorneys also must realize that these acts are only some of the harmful behaviors that victims experience as part of abusive relationships of coercion and threats, economic abuse and other behaviors that restrict choices and options in order to maintain power and control. ODVN and other advocacy organizations also use the terms “domestic violence” and “intimate partner violence” when referring to this broader definition of coercive and controlling behaviors, which can sometimes create confusion. But the message is clear: in order to understand victims and survivors, we need to understand their full history and experiences.
Why Does it Matter? Because it Matters to Our Community By looking at domestic abuse more expansively, we can more easily recognize the effects of abuse on individuals and families—and the ways lawyers might have an impact. Indeed, a broader understanding of violence and abuse aligns with the diverse ways that our community is responding to these issues. For example, clinicians and service providers treating adults and children have been implementing the Adverse Childhood Experience questionnaires developed by the Centers for Disease Control and Prevention and Kaiser Permanente. ACE questionnaires, which measure trauma related to childhood abuse and neglect, offer details about an individual’s history and can lead to more comprehensive treatment. The Columbus City Attorney’s Domestic Violence and Stalking Unit trains local law enforcement departments in implementing the Lethality Assessment Program. Under these protocols, law enforcement personnel responding to domestic violence calls not only ask victims questions about the incident, but also about
What happens when we work together?
Central Ohio is healthier.
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other issues that may reveal a history of abuse and violence. With these insights, officers are better able to assess safety risks and link victims to critical community-based domestic violence resources. At a judicial level, the Supreme Court of Ohio’s Office of Court Services, Children and Families Section also promotes a holistic approach. It published the court guide “Domestic Violence and Allocation of Parental
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Rights and Responsibilities”iii that underscores the need to review and evaluate both physical and non-physical abuse histories to properly allocate parental rights and responsibilities and develop appropriate parenting safeguards under the Ohio Revised Code. While some of these initiatives are not new to our community, CHOICES’ recent Community Assessment report underscores the need to renew our collective efforts to improve our understanding of domestic violence and our community’s response to it. The report highlights that victims feel misunderstood by agencies and courts, experience difficulties in accessing legal services and face additional barriers to achieving safety when systems and services are not coordinated.
Collaborating with CommunityBased Resources The central Ohio community is fortunate to have a variety of organizations addressing domestic abuse, and the legal community should be familiar with these resources in order to better serve victims such as Angela. While CHOICES operates an emergency shelter, Angela could also receive a range of other services from CHOICES—counseling, safety planning and financial planning—without entering the shelter. In addition, several of the major hospital systems specifically focus on trauma-informed therapy and counseling for victims and survivors, including: The Ohio State University’s Stress, Trauma and Resilience Program, Mount Carmel’s Crime and Trauma Assistance Program and The Center for Family Safety and Healing at Nationwide Children’s Hospital. Victims and survivors of domestic abuse, however, are not a monolithic group. Rather, victims’ experiences are influenced by the intersection of their different identities. In central Ohio, culturally-sensitive advocacy organizations are responding to the unique needs of our diverse population, including: Ethiopian Tewahedo Social Services (serving victims of African descent and others with Limited English Proficiency), ASHA Ray of Hope (primarily serving South Asian and South Asian American victims), and the Ohio Hispanic Coalition. In addition, organizations such as the Buckeye Region Anti-Violence Organization help us understand the ways domestic abuse manifests itself in the lives of LGBTQ+ victims.
October is Domestic Violence Awareness Month Building a Better Pathway to Safety While CHOICES’ recent Community Assessment report emphasizes the valuable resources in our community to address abuse, it also underscores the need for better collaboration among partners. Attorneys can be a part of that process. Any time there is collaboration with thirdparties, lawyers must think carefully about their clients’ confidentiality, attorney-client privilege and creation of additional discoverable information. But with careful planning, the legal community can ensure that victims have access to critical services that can improve their ability to address and overcome abusive histories. Angela and other victims need the legal community to understand domestic abuse and its effects, and they need us to work collaboratively with others to improve their ability to seek safety and justice. i
Available at https://lssnetworkofhope.org/choices/shelter-information/community-analysis Definitions available at http://www.odvn.org/survivor/abuse.html iii Available at http://www.supremecourt.ohio.gov/JCS/domesticViolence/publications ii
16 | Columbus Bar L aw yers Quarterly Fall 2019
Stuart Y. Itani, Esq.
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It’s a Small World
The Subjectivity of
VALUE by Bradley miller
Why You Should Charge Different Clients Differently Several years ago my wife was really into Coach handbags. She received one as a gift, fell in love with it and things snowballed from there. I tried to ask her why a Coach handbag was $500+ while a very similar (to me) looking bag at the department store sold for a fraction of that price. They were both handbags, of the approximate same size and shape, made of the same materials. Functionally they were the same – she could easily lose her keys and phone in each. Yet one was a “must-have” accessory and the other not fit to be seen in public with. Why was one handbag valued so much more than the other?
The reason is that value is subjective. It is not determined by any inherent property of a good or service, nor by the amount of labor necessary, but instead by the importance an individual places on the good or service for the achievement of the individual’s desired ends.i In other words, value is the perceived beneficial worth of something to someone, irrespective of any intrinsic worth. Despite being nearly identical, my wife perceived the worth of a Coach handbag to be greater than the department store handbag and so was willing to pay such a high price for it.
What makes something valuable How valuable an item or service is to a person depends on how well the item or service satisfies the person’s goals and objectives. Many different factors go into this. If my wife was purchasing a handbag with the sole objective of having a place to put her wallet and car keys, then any handbag that satisfied that objective would be valuable to her. The Coach handbag would not necessarily be any more valuable than the department store handbag–certainly not enough to justify the difference in price. But my wife based the value of a handbag on more than simple utility, however. Color was vital; she loves all things green. The number of pockets was important, as she likes being able to organize and keep track of things rather than just throwing everything in together. Most importantly to her, though, was the way the bag made her feel when she was walking down the street with it. That was enough to make the bag worth the purchase price.ii
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Legal services aren’t immune to the economics of value. One client will value your services differently than another, and the same client may value your services differently from one moment to the next based on the circumstances. Different people, different value Because value is specific to the individual, two people may value the same item or service differently. Take airline tickets. For your last flight, you probably paid a different price than the person seated next to you because you both valued your seat differently. Airlines know that people who travel for vacation are typically more price-sensitive and less loyal to one airline over another. Their flight is merely the means to get to their ultimate destination. What’s most valuable for them is getting the best deal. Business travelers, on the other hand, are less concerned about price. Their tickets are often paid for by their company and are selected based on when the flights arrive and depart. The business traveler sees the flight as a vital component of getting where they need to be on time. Based on the differences in the perceived value of the flight, airlines know they can charge different passengers different prices for the same flight. Vacationers are likely to book their tickets months in advance, so the airlines charge less for tickets booked for future flights
since those are typically purchased by people who are shopping for low rates. Trips for business tend to be scheduled only a few days or weeks out, so airlines charge more for these tickets, assuming they will be purchased by business travelers. Within a passenger class the flight and the seats (and lack of legroom) are the same, but vacationers and business travelers are paying different amounts.iii
Different circumstances, different value Depending on the circumstances, the same person may even value the same item or service differently from one instance to another. A large glass of tap water from your home faucet costs you a fraction of a penny per glass. At the store, you can buy a carton of bottled water and pay approximately $.20 per bottle.iv At a sporting event or theme park, you will happily pay $5.00 for the same bottle (especially if it keeps the kids quiet for a few minutes). And if you are in the middle of the desert with no supplies and are offered a bottle of water, is there a limit to how much you would be willing to pay? Something can also have negative value to you. If your basement is flooded because of a leaky pipe, you will actually pay someone to get rid of the water. All the same water, but it has different value to you–and thus you are willing to pay more or less–depending on the circumstances.
Legal services can be valued differently, too Legal services aren’t immune to the economics of value. One client will value your services differently than another, and the same client may value your services differently from one moment to the next based on the circumstances. 19 | Columbus Bar L aw yers Quarterly Fall 2019
Early in my legal career I practiced in the criminal and traffic courts. A moving violation, even for something as simple as speeding, could result in a commercial drivers’ license being suspended or even revoked. A commercial truck driver, whose livelihood is based on their ability to drive, tended to value my handling of the traffic citation much more than a client who just wants to pay as little as possible. After moving on from criminal and traffic cases I turned my focus to helping clients start up new businesses. When a potential client was in the early planning stages of their business, they tended to not value my services very highly, instead seeing me as an unnecessary expense. Once their bank or a potential investor started asking for information about the business that they didn’t have, however, my services quickly became much more valuable to them and they would retain me for legal work.
A culture of accountability
WE OWN IT.
Price the client and not the work People expect to pay more for something they feel has more value. It is why my wife was willing to take out a second mortgage on our home for a handbag, why business travelers pay more for their tickets and why you expect to pay more for a bottle of water at an amusement park than from your home faucet. And it’s why a commercial driver was willing to pay more for representation on their speeding ticket, and why the business owner was only willing to hire me and pay my fee when they didn’t have the documents they needed. If clients are willing to pay more for something that is more valuable to them, then you should price your services according to the value of your service to your client. The greater the value, the higher the price you should charge. Every client and every circumstance is different, which means that the price for every service you provide should be different. Rather than pricing the service, price the client. The idea of different prices for the same service can be a tough concept to get your head around, especially if you come from a background where every minute is charged the same way. The billable hour mandates that the only thing important to the cost of legal services is how much time is spent. The CEO and the minimum wage worker pay the same hourly rate.
250 W. Old Wilson Bridge Rd., Suite 250 Worthington, OH 43085 614.540.6633 www.cecinc.com
The problem with hourly billing is that clients don’t care about you, your firm or how many hours you spent drafting that perfect brief. They only care about results and the impact on their goals and objectives. People don’t buy drills, they buy the resulting holev; your clients don’t buy time, they buy a solution to their legal problem. That solution has a different value from one client to another, and even for the same client from one situation to another, and you should charge each accordingly. i
Menger, C. (1976). Principles of Economics. p. 120. Our decisions are primarily based on emotions, with facts used to justify the decision once made. From https://bigthink.com/experts-corner/decisions-areemotional-not-logical-the-neuroscience-behind-decision-making iii From https://www.cnbc.com/2018/08/03/how-do-airlines-price-seat-tickets.html iv Outside of some minor differences, the bottles of water you buy at the store contain the same water that comes out of your faucet. In fact, a majority of bottled water actually comes from municipal water sources. From https://www.ecowatch.com/bottled-watersources-tap-2537510642.html v Hall, C. M., Christensen, C. M., & Harvard Business Review. (2016, January 29). Marketing Malpractice: The Cause and the Cure. From https://hbr.org/2005/12/marketingmalpractice-the-cause-and-the-cure ii
Bradley Miller, Esq.
Miller Law LLC email@example.com
20 | Columbus Bar L aw yers Quarterly Fall 2019
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Points of Practice
How the DOL Changed
ESOP Transactions Without Regulations by Tim Jochim and Mike Sorice
During October 2010, the Employee Benefits Security Administration of the U.S. Department of Labor issued a proposed regulation to update the definition of a fiduciary under the Employee Retirement Income Security Act. Within a year, the EBSA and DOL withdrew the proposed regulation in the face of Congressional and pension and securities industry opposition. In particular, organizations that served trustees of employee stock ownership plans (ESOPs) opposed the proposed regulation. In an artful strategic move, the DOL shifted its focus from regulation to litigation to remedy the increased level of
less-than-prudent leveraged ESOP transactions packaged by investment banking firms. The key component of the litigation strategy involved settlement agreements with major ESOP trustee organizations which became the â&#x20AC;&#x153;de factoâ&#x20AC;? standard for all leveraged ESOP transactions. The settlements required defendant trustees to apply more rigorous procedures to assure the reliability of appraisals and the terms of ESOP transaction financing by requiring merit assessment of appraiser qualifications, documentation of appraisal methods and assumptions, confirmation of appraisal decisions, and the use of more reliable and current financial statements. The settlements establish a process for the qualification and use of valuation advisors (VAs), the information relied upon by the VAs and fiduciary oversight and review by transaction trustees.
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Valuation Advisor Selection
Fiduciary Oversight and Review
The GreatBanc Trust Co. Process Agreement required a written analysis addressing reasons for selection, listing all VAs considered, discussing qualifications and consulted references, noting court proceedings against the VA, and explaining the prudence of a VA selection.i A trustee need not re-investigate the qualifications of VAs it has used in the past if the trustee certifies that it previously performed the analysis within a 15-month period immediately before the current transaction and that the information it relied on is still accurate.
The settlement agreements required certain fiduciary oversight and review processes, including requirements for financial and economic analysis, financial statement and fairness analysis, and VA report assessment.
The First Bankers Trust Co. Settlement Agreement added a requirement that trustees list at least three consulted references and consider regulatory investigations into the valuation advisor. A trustee need not re-investigate the VA if it performed an analysis in the preceding calendar year.ii The selection requirements of the Joyner Settlement were the same as the Process Agreement.iii The Alpha Settlement Agreement included the same selection requirements as the Process Agreement.iv Its re-investigation provisions were the same as First Bankersâ&#x20AC;&#x2122;.
FINANCIAL ANALYSIS The Process Agreement required investigation of economic and financial information. VAs must identify people who provided projections and inquire into conflicts of interest. First Bankers required a written record of that investigation. Alpha required reasonable inquiry into projections. Under all the agreements, VAs must compare projections to historical data and investigate returns on assets and equity, EBIT and EBITDA, capital expenditure ratios, revenue growth and cash flow ratios. VAs must explain why they disregard any metrics. They must set out in writing the bases for concluding that comparable companies are actually comparable, including size, customer concentration and earnings volatility. They
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DOL crafted these agreements for broad application to achieve its goal of guidance through litigation. However, some provisions are narrowly tailored to particular situations. must explain discounts applied to multiples and, if no discount is applied, explain why.
other parties and whether the terms are market-based, commercially reasonable and in the ESOPâ&#x20AC;&#x2122;s best interest.
VAs must also consider how ESOP document provisions affect repurchase obligations, transaction prudence and stock value. First Bankers and Alpha added requirements to describe risks facing the ESOP sponsor that could cause financial performance to fall below projections.
REPORT ASSESSMENT The agreements included requirements for assessing reports. Trustees must ensure VAs complied with the requirements, above, and independently review financial statements and projections to determine whether reliance thereon is reasonable and prudent. Under First Bankers and Alpha, if projections are unreasonable, trustees must ask the VA to account for the unreasonable projections. They must prepare a written analysis of reports that addresses marketability discounts, control premiums, economic projections, sponsor strengths and weaknesses, discount rates, financial statement adjustments, reliability of historical financial data, material assumptions, treatment of corporate debt, methodologies, the sponsorâ&#x20AC;&#x2122;s ability to service liabilities and reasonably foreseeable risks of the transaction.
FINANCIAL STATEMENTS & FAIRNESS ANALYSIS The agreements set out requirements for financial statements. Subject to certain exceptions, ESOP trustees and valuators must work from CPA-prepared audited and unqualified financial statements for the preceding five years. If the sponsor provided unaudited or qualified statements, the trustee must determine whether reliance on those statements is prudent and document its bases for its belief. The trustee may not proceed with the transaction if reliance would be imprudent. First Bankers and Alpha allow trustees to proceed with qualified and unaudited financial statements if sellers who are disqualified persons indemnify the ESOP for harms arising from those statements. The agreements also required a fairness analysis. Trustees must determine whether transactions are fair from a financial perspective, fair to the ESOP relative to
In making these conclusions, trustee personnel must read and understand valuation reports, question underlying assumptions and inquire into consistency of information and conclusions. The trustee must document personnel responsible for reviewing valuation reports and record and explain personnel disagreements. If reasonableness, prudence or
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consistency are doubtful, trustees must reject the transaction. OTHER REQUIREMENTS The agreements required that trustees not cause ESOPs to engage in leveraged stock purchase transactions where the principal of the debt exceeds the fair market value of acquired stock. The agreements also required trustees to consider the appropriateness of claw-back provisions. Finally, the agreements required trustees to preserve notes and documents, including the full names and contact information of each member of the trustee’s fiduciary committee, all notes and records on the votes of trustee committee members who voted on the transaction, and all communications between the trustee and its personnel and the ESOP sponsor, nonESOP parties, and any of the sponsor’s advisors.
particular situations. For example, many provisions in Joyner applied specifically to an individual acting as an ESOP transaction trustee. Trustees and their advisors should consult the settlement agreements to determine applicability to their unique situation. i
Solis v. GreatBanc Trust Company et al, No. 5:1201648 (C.D. Cal. 2014). Perez v. First Bankers Trust Servs. Inc., 1:1208646 (S.D.N.Y. 2017). Perez v. BAT Masonry Co., Inc., No. 6:1500028 (W.D. Va. 2015). iv Acosta v. Mueller, No. 2:1301302 (E.D. Wis. 2017). ii
Tim Jochim, Esq.
Walter | Haverfield LLP email@example.com
Mike Sorice, Legal Intern
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DOL crafted these agreements for broad application to achieve its goal of guidance through litigation. However, some provisions are narrowly tailored to 25 | Columbus Bar L aw yers Quarterly Fall 2019
Points of Practice
U.S. Supreme Court Decides Landmark Condemnation Case in Favor of Property Owners BY jeremy young For many years, a property owner seeking compensation from a state or local government for an uncompensated property taking was relegated to filing an action for inverse condemnation in state court. In Ohio, for example, that procedure requires the property owner to seek an extraordinary writ of mandamus, which can be very difficult (and expensive) to obtain.
In a significant victory for property owners, the U.S. Supreme Court recently held in Knick v. Twp. of Scott, Pennsylvania, 139 S.Ct. 2162 (2019) that such a property owner can now bring an action in federal court to recover just compensation for a violation of its rights under the Fifth Amendment to the U.S. Constitution, known as the Takings Clause.
In Knick, the Township of Scott, Pennsylvania, passed an ordinance requiring that “[a]ll cemeteries ... be kept open and accessible to the general public during daylight hours.” Rose Mary Knick, whose 90-acre rural property has a small family graveyard, was notified that she was violating the ordinance. Knick filed suit in the U.S. District Court for the Middle District of
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Pennsylvania under the civil rights statute, 42 U.S.C. § 1983, alleging that the ordinance violated the Takings Clause. The District Court dismissed Knick’s claim on the authority of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108. In Williamson County, the U.S.
Supreme Court held that a property developer’s federal takings claim was premature because he had not sought compensation through the state’s inverse condemnation procedure. The Third Circuit Court of Appeals affirmed the District Court’s decision. The Supreme Court in Knick reversed the lower courts and overruled Williamson County, holding that a government violates the Takings Clause the moment it takes property without paying just compensation, and a property owner may bring a Fifth Amendment claim under § 1983 at that time. The Court further held that the availability of an after-the-fact compensation remedy, such as an inverse condemnation claim under state law, cannot bar or diminish the property owner’s federal constitutional claim. The Knick Court was careful to point out, however, that its holding does not mean that federal courts would enjoin state and local governments’ activities that amounted to takings, so long as an after-the-fact compensation remedy was available. Central to the Supreme Court’s decision in Knick was its earlier holding in San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 125 S.Ct. 2491, which dramatically changed the impact of Williamson County. In this regard, the Court in Knick noted that the Williamson County Court anticipated that if the property
owner failed to secure just compensation under state law in state court, he would be able to bring a thenripe federal takings claim in federal court. But as the Supreme Court later held in San Remo, a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. After San Remo, therefore, the takings plaintiff found himself in a Catch-22: he could not go to federal court without going to state court first. But if he went to state court and lost, his claim would be barred in federal court. The Knick Court called this “the San Remo preclusion trap” and held that it imposed an unjustifiable burden on takings plaintiffs. Knick was a 5/4 decision, with the majority opinion, in which the five conservative Justices joined, authored by Chief Justice John Roberts. Justice Elena Kagan authored a blistering dissenting opinion, in which the four more liberal justices joined. The dissent viewed the majority’s decision as a departure from well-established precedent to the effect that no constitutional violation occurs where the taking precedes the payment of just compensation, so long as an after-the-fact compensation mechanism was in place. The dissent also considered the “San Remo preclusion trap,” but reasoned that it was actually a factor weighing in favor of following the precedent set by Williamson County, rather than overruling it and injecting uncertainty
Perhaps the most significant take-away from Knick is its focus on “restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.”i In other words, a property owner’s right to just compensation for a property taking now stands on equal footing with other civil rights. 27 | Columbus Bar L aw yers Quarterly Fall 2019
into the law. Noting that the principle of stare decisis— the policy in favor of following, rather than reversing, precedent—had “enhanced force” where Congress had the ability to override the prior decision, the dissent focused on the fact that San Remo was based on the Court’s interpretation of the Full Faith and Credit Statute, 28 U.S.C. § 1738, and that Congress therefore had the ability to dispose of the preclusion trap. Additionally, the dissent warned that the Court’s decision would send a flood of cases to federal court that more properly belong in state court, since the outcomes of those cases will often be determined based on sometimes-complicated questions of state law, which federal courts have no experience or particular expertise in resolving. Perhaps the most significant take-away from Knick is its focus on “restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.”i In other words, a property owner’s right to just compensation for a property taking now stands on equal footing with other civil rights. Time will tell whether the Court continues to increase protections for property rights in future cases.
The new option to file in federal court will doubtless be attractive to property owners suffering from uncompensated takings, be they physical or regulatory in nature, for a couple reasons. First, federal judges typically do not have the same close affiliations with the state and/or local government that state court judges have. Depending on the jurisdiction, that may make federal court a more hospitable forum for property owners. Second, a § 1983 action in federal court opens up the possibility, lacking in many states, that a property owner’s attorney’s fees may be covered, since 42 U.S.C. § 1988 grants the court the discretion to award the prevailing party its reasonable attorney’s fees and costs in a § 1983 action. That possibility may make attorneys more likely to take cases they might otherwise have passed on for economic reasons. As ever, eminent domain is a specialized area of practice, and property owners should consult with qualified legal counsel before deciding whether to pursue uncompensated takings claims in state or federal court. i
Knick, 139 S.Ct. at 2170
Jeremy Young, Esq.
Roetzel & Andress JYoung@ralaw.com
28 | Columbus Bar L aw yers Quarterly Fall 2019
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Points of Practice
EXPANDING CAREERS by Stepping Out of Your Personal Comfort Zone by angie blevins When I became a paralegal in 1990, the first attorney who hired me realized I had more skills than the average secretary, but he had no clue how to utilize them. I spent the first four years of my new career performing secretarial work, but I did not have to get my bossâ&#x20AC;&#x2122;s coffee because I was, after all, a trained paralegal. ourselves in what I call a practice niche, creating our own personal comfort zone. While a comfort zone makes us feel good and safe, I believe it comes with a cost.
Fast forward to 2019, and I can absolutely say that paralegals have certainly come a long way. While I was respected in 1990, it was more as a person than a paralegal professional. With steadfast tenacity, paralegals are now seen as professionals who are respected as an integral part of the legal profession no matter if they are
employed in traditional law firms or non-traditional settings like state agencies, corporations, banks or healthcare facilities. Unfortunately, like so many other professions, paralegals often get into daily routines that become repetitive and predictable. This happens because we tend to place
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A personal comfort zone is more than a physical place; it becomes a psychological, emotional and behavioral triad that can lead to monotony. This monotony can lead to professional boredom, job dissatisfaction, development of toxic relationships with colleagues, stifling of professional creativity and a host of other issues. Donâ&#x20AC;&#x2122;t ever think as a highly skilled and respected paralegal that you cannot find yourself in a situation where your job has lost its luster. Our brains need frequent stimulation and new ideas in order for us to be at our best each and every day. After staying in a paralegal position that left me feeling like I was working on an assembly line instead of at
a law office, I wanted to make a change. But the thought of change, and stepping out of my comfort zone, was frightening. Fear for me was a valuable thing as it kept me feeling safe and secure. While I was sitting on the fence pondering how to make changes that would lead to professional growth, I recalled a piece of advice I used to give to my patients when I was a psychiatric nurse. The advice I gave was that for most of us, the reality is that we have the ability to confront our fears, we just chose not to do so. Sound familiar? By confronting fears, we can overcome obstacles and actually succeed in accomplishing something new and challenging. All you have to do is put a plan in place to challenge yourself and risk new experiences. Successes, no matter how small, are cumulative. Every time you try something new and open yourself up to a new experience, you learn something and expand self-knowledge and professional skills. Inevitably, you expand your comfort zone because you have stepped out of your comfortable box. Self-talk is important when you are stepping out of your comfort zone and looking at professional development. While on my journey to find a more substantive and challenging paralegal job, there were 5 concepts that I had written on index cards, and I reviewed them every morning. These concepts changed the way I looked at my fears and my personal comfort zone as I began to pursue professional development.
1. LIFE IS A CONSTANT LEARNING EXPERIENCE Nothing in our personal life stays the same. We are constantly making adjustments because of the changes that occur around us. Whether it is something as simple as dealing with the changing of the seasons, learning a new hobby, getting married or working through the death of a loved one, all of these changes allow us to learn and grow. We fairly easily accept that nothing in our personal life stays the same, so why do we trap ourselves in a professional box and fear stepping out of it? We fear failure! The truth of the matter is, we will all have failures in both our personal and professional lives. Embrace failure, learn from failure and then move on, taking a lesson with you so it can be applied to other learning experiences. 2. GOOD THINGS CAN HAPPEN WHEN YOU ARE STRESSED Thinking about stepping out of the box can be stressful. The goal to successfully processing the stress is to perceive it as a positive. At the end of any given workday, why do paralegals look at what we did not get done? I guarantee you that the list of tasks we accomplished by the end of the day is much longer than what remains. We tend to look at our stress in the negative and we need to stop. Think of stress as a positive tool that can help you obtain a new opportunity which is moving you toward a desired goal. 3. CHALLENGES BUILD CONFIDENCE Donâ&#x20AC;&#x2122;t let your inner critic take control. We criticize ourselves every day, and we are our own worst enemy. Set a small goal each day that takes you out of your personal comfort zone. As mentioned earlier, accomplishing small goals has a cumulative effect and leads to increased confidence for tackling the larger goals. When you accomplish your goal, congratulate and reward yourself; you deserve it.
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Successes, no matter how small, are cumulative. Every time you try something new and open yourself up to a new experience, you learn something and expand self-knowledge and professional skills. Inevitably, you expand your comfort zone because you have stepped out of your comfortable box. 4. KEEP YOUR EYE ON THE PRIZE You must set your professional development goal, clarify your plan to attain the goal and stay focused. Be realistic with your goal setting and expect an occasional setback. If you suffer a setback, it is truly okay. When a setback occurs just take a breath, learn from the setback, make any necessary adjustments and continue to move forward toward the prize. 5. DON’T GO IT ALONE Fear can be paralyzing when facing it alone. Don’t attempt to step out of the box to pursue professional development on your own. Discuss your plans with a trusted friend, or enlist the services of a mentor, and share your fears about this new path on which you are about to embark. As paralegals, we work with some terrific attorneys and other professionals who may be willing to establish a mentor-mentee relationship with you. The right mentor can help you identify and maximize your strengths so you can establish and attain professional development goals. When I set my professional development goal to become a litigation paralegal and stepped out of my box, my next hurdle was to determine how to get noticed. Whether
you are trying to create a new professional path with your current employer or working with a recruiter to move into a position of greater responsibility, you must come to the table prepared to show them your skills and talents. Bragging on a piece of paper is not enough. Top performers get noticed because they take the initiative to develop themselves. They do not wait on the opportunity to come to them. Taking on new tasks and assuming new responsibilities will expand your paralegal role and demonstrates a proactive approach. You benefit under these circumstances because you are challenging yourself to learn new things. I volunteered to assist with a few litigation tasks in addition to my other job responsibilities. It was scary, but as I assumed more litigation tasks, my confidence began to grow, and I got noticed. After six months, I was promoted and was doing litigation paralegal work full-time. Proactively assuming more responsibility on the job is truly a model which lays the foundation for a potential exciting career advancement, including compensation growth. If you are lucky enough to work for an employer that provides opportunities for growth, you need to take advantage of any professional development opportunities. You do this by analyzing your strengths to determine the path you want to take and how it fits in with your employer’s overall mission and priorities. Remember that stepping out of the box and taking on additional work is only valuable if the skills you are growing are beneficial to enhancing your employer’s business mission and priorities. You can push the boundaries of your job and break the rules to cultivate professional development if you
32 | Columbus Bar L aw yers Quarterly Fall 2019
just listen. Most employers have staff meetings where operational issues and problems are reviewed. After a few months, repetitive and problematic themes may appear. Capitalize on what is revealed and work the themes into your personal professional development goals. Most attorneys or departmental leaders are not shy about making organizational problems known to the employees because they want improvement. Figure out how to help them get it! Once you have identified a professional development path, you should share it with your supervising attorney and/or manager. Be specific and discuss small incremental steps and changes you would desire. When you are trying to build career success, progressing in increments is always best. You will want to start with small changes, because you cannot lose sight that you have to deliver on your primary job responsibilities at the same time. When thinking about professional development, we have a tendency to think about it from our own personal perspective. It is easy to get wrapped up in learning new things, being excited about new experiences and thinking about whether your professional development will lead to a promotion and/or compensation growth. Instead, you should think about this from a manager’s perspective. Is your professional development path going to include projects that elevate both you and your manager as well as your team? Promoting a team concept is important to most managers. Paralegals who don’t challenge themselves through professional development are rarely promoted. They are often seen as doing the bare minimum, which almost never translates into any professional growth. These paralegals are limiting themselves to what they already know and are missing out on professional opportunities, life experiences and personal growth. Managers look for certain attributes when considering paralegals for promotion. They look for paralegals who are self-motivated, have the ability to communicate in a professional manner, eagerly accept change, are able to prioritize assignments and are capable of working
independently with minimal oversight. Managers value paralegals who take on projects that benefit, develop and elevate a team as a whole. However, don’t make the mistake of thinking that having good paralegal skills and pursuing professional development is the sole basis for getting promoted. You must keep in mind that your personality plays a role in promotions as well. Paralegals must know the difference between the personality traits of confidence and arrogance. Being confident is non-threatening to your colleagues, but arrogance can set up a scenario which can lead to disharmony between team members. You must also remember that respect is earned and not just handed over because it is demanded. Most importantly, do not participate in office gossip or drama. Participation in office gossip or drama is absolutely detrimental to professional growth. Managers are going to pass you over for promotion no matter how talented and skilled you are if you are clueless about recognizing your own personality traits and their effects. Being a paralegal in 2019 is exciting, so step outside of your comfort zone. Paralegals are taking on management roles, opening independent paralegal businesses, establishing virtual paralegal businesses, being hired as paralegal instructors and representing clients in administrative agency hearings, as well as working in other non-traditional paralegal roles. As paralegals are performing more complex work, and our professional star is rising, we are no longer just the right hand of the attorney. Each time I’ve stepped out of my comfort zone and taken my career on a new professional path, I’ve increased my confidence and developed new professional skills. Don’t be afraid to break the rules and step out of your personal comfort zone. Instead, be daring and innovative so you don’t miss out on the unique opportunities that the paralegal profession can provide to us.
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33 | Columbus Bar L aw yers Quarterly Fall 2019
Diversity & Inclusion Series, Class 1
CBA Board of Governors Retreat
Barrister Leadership Program Volunteers at Mid-Ohio Foodbank Program, Class of 2019 Barrister Leadership
“No Visible Bruises” CLE at Gramercy Books in Bexley
“Not Far From Me: Stories of Opioids and Ohio” CLE at Gramercy Books July and August Committees & Cocktails 34 | Columbus Bar L aw yers Quarterly Fall 2019
What’s Next @ the Bar? For a complete list of events, CLE programs and meetings, visit www.cbalaw.org.
Committees & Cocktails (3rd Wednesday of the month) • 5-7pm @ the CBA
50 Year Luncheon • 12:00-1:30pm @ the Athletic Club of Columbus
All CBA members are invited to this free monthly networking event held on the 3rd Wednesday of each month, offering members from all practice areas a chance to meet, network and make valuable business contacts in a casual, relaxed atmosphere. The CBA provides beer, wine, soft drinks and light hors d’oeuvres. RSVP online at www.cbalaw.org. More Committees & Cocktails: November 20, December 11 (note: 2nd Wednesday).
Help us congratulate CBA members with 50 years of service to the bar! The annual Columbus Bar Foundation Luncheon honoring members with 50 years of service will be held at noon on Thursday, October 17. Cost to attend the luncheon is $40 (all past honorees are invited at no cost). More details available at www.cbalaw.org.
2019 Charitable Giving Seminar • 1:30-4:45pm @ The Columbus Foundation Location: The Columbus Foundation (Davis Hall, 1234 E. Broad St.) Join us at the ever-popular Charitable Giving Seminar, followed by a cocktail reception and networking event. This program has been approved for specialty CLE credit towards OSBA Estate Planning, Trust & Probate Law certification AND CFP Continuing Education Credit by the Certified Financial Planning Board. Register at www.cbalaw.org. 3.0 CLE Hours. Cost: $50.
Free Webinar: A Lawyer’s Guide to PDF Files • 2:00-3:00pm Free for CBA members, this one-hour webinar will cover metadata removal and electronic document security, redaction, Bates Numbering, splitting/combining PDFs, reducing filesize for electronic case filing, review/comment and PDF collaboration, adding signatures & stamps, routing PDFs for comments/feedback, and more. Register at www.cbalaw.org.
LASC/CBA/CBF Pro Bono Reception 2019 • 5-7pm @ the CBA The Legal Aid Society of Columbus (LASC), Columbus Bar Association (CBA), and Columbus Bar Foundation (CBF) will honor this year’s Pro Bono Awards recipients at the 2019 Pro Bono Reception. Join us in thanking these recipients and all of you who donate your time and talent to pro bono programming! There is no cost to attend. Tickets @ www.cbalaw.org.
Bias Interrupters: Evaluation & Compensation• 3-5pm @ the CBA Our Diversity & Inclusion series, “Bias Interrupters,” continues on October 30. This session will examine systemic bias in performance evaluations and compensation and present a menu of solutions to interrupt that bias, leading to better employment practices and greater diversity. There is no cost to attend and lunch is provided. Visit www.cbalaw.org to RSVP.
35 | Columbus Bar L aw yers Quarterly Fall 2019
Fall ‘19: The Practice of Law
How I Have Used My
LAW DEGREE in Various Careers BY Amy klaben
I am the Project Facilitator for Move to PROSPER, or MTP, through my company, Strategic Opportunities, LLC. MTP is a new and innovative initiative to improve life outcomes for children and their mothers by creating opportunities for residential and financial stability through temporary rental support and comprehensive life coaching that facilitates successful moves to higher opportunity communities. MTP’s vision, and my vision, is to create a community in which all are welcome and have the opportunity to thrive.
This is a long way from law school, law firms and billable hours! So how and why did I get here? Are you one of those people who knew you wanted to be an attorney since you were a kid? Well, I wasn’t! I actually didn’t think about going to law school until I was about 24 years old. My first job out of law school was as an associate at Porter Wright Morris & Arthur. Porter Wright gave me two choices. I chose real estate law as I didn’t want to specialize in environmental law. That would have been too much science! At Porter Wright, I developed my legal skills in real estate and corporate law as I represented a large investment group that purchased large Class A multi-
36 | Columbus Bar L aw yers Quarterly Fall 2019
family apartment communities in the late 1980s and 1990s. I handled everything for the acquisitions, starting with the due diligence: obtaining regulatory and zoning approvals as needed; negotiating construction contracts; reviewing environmental and title insurance reports; and negotiating and closing the loans. I was also involved in reviewing partnership and limited liability company governing documents for the single asset entities created to own the projects. During that time, I also had many nonprofit and pro bono clients, as I believe that it is important to be involved in the community and give back. In 1988, I began volunteering for Homeport, which at that time was known as Columbus Housing Partnership. Through volunteering my legal skills with this organization, I had the opportunity to learn about the housing needs of low income families in the community, especially
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https://www.seakexperts.com/members/11680-luis-l-perez the needs of single women with children. Although I started out only assisting with real estate issues, I quickly began providing advice on general corporate matters as well. In this way, I also learned about employment and nonprofit law. Over time, my pro bono work became paid work as the projects got larger and more complex. In June 1999, the executive director of Homeport resigned. The organization retained me, by that
time a partner at the law firm, to serve part time as interim executive director while it did a search. While serving in this capacity, I decided that it was time for me to â&#x20AC;&#x153;follow my heartâ&#x20AC;? and I applied to become the permanent leader of Homeport. I assumed that role on Jan. 1, 2000. Although I continued at the law firm as of counsel, I fully resigned in March 2000 when I realized that I did not have the time to perform both roles.
Could I have done everything I did after my time at Porter Wright without a legal degree? Yes, people do. But I firmly believe that my legal background and the skills I developed practicing law were highly beneficial and contributed significantly to my success over the years. 37 | Columbus Bar L aw yers Quarterly Fall 2019
I was the President/CEO of Homeport until Dec. 31, 2015. During that time, my legal skills were invaluable and utilized daily as Homeport is a complex non-profit that develops affordable housing. I worked with the real estate team to develop or renovate approximately 2,000 units of housing. Some were complex low-income housing tax credit projects, while others were condominium projects. All involved numerous layers of financing and construction contracts. Many had zoning, easement, regulatory and environmental issues. Homeport contracted with third-party property management companies to manage the properties. Knowledge of contracts and fair housing law was important. Homeport also provided homebuyer education, foreclosure prevention and financial literacy programs. Legal issues were involved in providing these programs as the funding came from HUD and staff needed to understand lending and compliance issues. As a large non-profit, there also were also employment and nonprofit law issues to address.
In addition to my work leading Homeport, I was involved in policy issues at the national and state levels. My interest in housing was always from a policy perspective, so we looked at the laws governing access to affordable housing, resident services and funding for programs. My legal skills were an asset for making recommendations for regulatory and legislative change. Which brings me back to Move to PROSPER. After leading Homeport for over 16 years, I decided it was time to again get involved in policy. While it is critical that we continue to build affordable housing, I wanted to take a step back and analyze how we were providing affordable housing and if there were other ways to do this. I came to believe that we could not build enough affordable housing to meet the need, and that the location of the housing being created is not always best for families. In early 2016, I filed the necessary paperwork to create my own limited liability company. I then began researching how other communities were meeting the
housing needs of families. I read the book “The Color of Law”, by Richard Rothstein, which enlightened me to the role of the government, the banking industry and developers in creating neighborhoods of concentrated poverty which are very difficult to escape from. What I learned is that it is important to create mixed-income housing opportunities throughout the region so that everyone has a true choice of where to live. I read about Raj Chetty’s research on moving to opportunity, which has been in the news recently with his new research in Seattle. Working with a dedicated group of volunteers, we created MTP as an initiative of The Ohio State University’s City and Regional Planning program along with community partners. Again, my legal skills have been important as we have created many contracts and other documents, reviewed regulations and legislation and filed paperwork to create a new nonprofit. Fair housing, landlord-tenant law and other real estate issues have arisen as the participants in MTP rent their housing in high-opportunity neighborhoods. MTP hires consultants which requires other types of contracts and relationships. MTP’s strategy is to enable very-low-income single women in low wage jobs, with children ages 13 and under, at least one of whom is in school, to have access to existing rental housing in higher opportunity communities by providing three years of rental support and life coaching. This enables access to social and economic opportunity, which research has shown benefits all children, especially those from lower income families. Many organizations locally and nationally are advocating for increased funding of rental support, as this is the most economical and efficient way to create the most affordable housing. This will also lessen the well-documented economic segregation in central Ohio, as our region is the second most income segregated in the country. MTP launched in the summer of 2018 with a three-year pilot of 10 families, and the families are in their new homes. The pilot is being evaluated by Jason Reese, Ph.D., and his colleagues at The Ohio State University. The MTP team is beginning to explore funding for
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a three-year, 100-family demonstration project. We are also discussing policy changes that are needed at the local and state level to create mixed income neighborhoods. Again, this involves understanding legislation and regulations and advocating for change. Could I have done everything I did after my time at Porter Wright without a legal degree? Yes, people do. But I firmly believe that my legal background and the skills I developed practicing law were highly beneficial and contributed significantly to my success over the years. Practicing law enabled me to see the complexities of running a real estate company and gave me credibility in my new roles.
Amy Klaben, Esq.
Strategic Opportunities, LLC Amy.Klaben@StrategicOpportunitiesLLC.com
39 | Columbus Bar L aw yers Quarterly Fall 2019
Fall â&#x20AC;&#x2DC;19: The Practice of Law
Earning an LL.M.
Shaped My Career by KATJA GARVEY
Law school in my home country of Germany is a little different than in the U.S. First, aspiring lawyers go to law school right out of high school. After about five years they take the first bar exam, and eventually take a second bar exam after a two-year rotation program that requires them to work with a judge, a prosecutor and then in private practice for a few months each. The law school I attended at the University of Passau had a study abroad program with Capital University Law School. In 2007, after my second year of law school, I traveled to Columbus as an exchange student at Capital. In addition to gathering substantive knowledge about the U.S. legal system, I really enjoyed spending time in Columbus. I was able to experience the city, make connections and forge friendships. Ultimately, this played a key role in helping me decide to apply for
the Master of Laws (LL.M.) Program at The Ohio State University Moritz College of Law, and return to Columbus in 2011. The other major decider that influenced my application was the LL.M. program itself. Open to lawyers and law school grads from other countries, it is a oneyear program designed for fulltime students, but with flexibility for part-time students. Students are mostly free to choose their classes based on their objectives, which range from taking a bar exam in one of the U.S. states, solely focusing on obtaining a U.S. law degree, or specializing in a certain area of law, which requires at least 12 credit hours in that area. I chose to specialize in business law. My class was an interesting mix, with several students already living in Columbus before the program, and several that had just arrived in the U.S. for the very first time a few days before orientation. My class was
The growth of this program is both beneficial for foreign lawyers, as earning an LL.M. is a fantastic opportunity for them to leverage their foreign law degree and learn about the U.S. legal system, and an advantage for U.S. law firms or companies doing business abroad, as they are able to add someone with a unique set of skills to their team. 40 | Columbus Bar L aw yers Quarterly Fall 2019
fairly small, with 12 students from all over the world, including Brazil, Dominican Republic, India, Ireland, China, Tajikistan and Sudan. My classmates had diverse goals, as well. Some were planning to get their degree and go back to their home country where it would be highly regarded. Others planned to take the bar exam and gain some work experience before heading back home. Some, like me, would stay here and work as a U.S. attorney. No matter our individual goals, we all participated in classes just like any J.D. student and took the same exams. In my second semester, I made the decision to take the Ohio Bar Exam and started preparing for the application process. As a foreign attorney, I had to fulfill certain conditions to be able to take the Ohio bar, or any other state’s bar exams for that matter. In Ohio, to be eligible to apply to the bar, the Ohio Supreme Court must find that the candidate with a foreign law degree has equivalent education of a J.D. graduate. Then, the candidate must go through a rigorous review process of their foreign credits and show that the credits are from an ABA-approved law school. Once approved by the Ohio Supreme Court, LL.M.s have to go through the same character and fitness process as any other applicant, and then pass the bar exam.
Kohr Royer Griffith
Commercial Real Estate Services
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41 | Columbus Bar L aw yers Quarterly Fall 2019
“The year-long LL.M. program is designed for across
interested in learning about the American legal system and is intentionally limited to 30-35 students. The program offers specializations in key legal areas, including alternative dispute resolution, corporate law, intellectual property, international law, and more. Students have the opportunity to learn both in and outside of the classroom through internships, moot court and a variety of clinics. In addition, LL.M. students have the option to apply to transfer from Ohio State’s LL.M. to the J.D.
I am proud to say that I am the first LL.M. from Moritz to pass the Ohio bar exam and like to joke that the passage rate for LL.M.s that year was 100 percent (the national average is under 50), without, of course, mentioning that I was the only one. It wasn’t until after I had passed the bar and was working as a staff attorney at a local workers’ compensation law firm that I connected with the amazing global business team at Kegler Brown Hill + Ritter. I joined the team in 2013 and have been advising U.S. and global businesses on corporate and privacy issues ever since.
program.’ “In 2018, the law school celebrated the 10th anniversary of its LL.M. program, with the largest and most diverse class to date–39 students from 15 countries, including China, Nigeria, Mexico, Israel, Russia & Brazil–to name a few. More than 260 international LL.M. graduates from more than 50 countries are now counted among Moritz alumni.”
Laura Fernández-Álvarez, Esq.
Assistant Dean for International and Graduate Affairs at The Ohio State University Moritz College of Law
Since my experience, the program has continued to grow. It has expanded to about 30 students each year and the number of students taking and passing the Ohio bar has grown, too. The growth of this program is both beneficial for foreign lawyers, as earning an LL.M. is a fantastic opportunity for them to leverage their foreign law degree and learn about the U.S. legal system, and an advantage for U.S. law firms or companies doing business abroad, as they are able to add someone with a unique set of skills to their team. My background and knowledge of German law and doing business in the EU in general has been useful to many of my clients, ranging from European companies setting up subsidiaries in the U.S., or requiring assistance with operations here,
42 | Columbus Bar L aw yers Quarterly Fall 2019
to U.S. companies with operations abroad, including compliance work with respect to the EU’s recent data protection law, the General Data Protection Regulation. Coupled with my German legal background, my language skills and general cultural understanding have been invaluable to clients when drafting agreements and during long video conferences with dozens of participants who don’t all speak sufficient-enough English to follow the discussions. In addition to working with international clients, I have also helped expand my firm’s global efforts through a three months secondment with the law firm Friedrich Graf von Westphalen in Freiburg, Germany. I’m proud to continue being a part of Moritz’s LL.M. program by serving as co-chair of the International & Graduate Affairs Advisory Council, helping to support new LL.M. students through mentoring, networking and career development programs. Earning my LL.M. has been incredibly rewarding and invaluable in shaping my career, and I look forward to helping others shape theirs.
Katja Garvey, Esq.
Kegler Brown Hill + Ritter email@example.com
BECOME AN OHIO NOTARY PUBLIC www.cbalaw.org/notary
The Columbus Bar Association has everything you need to prepare your Traditional Notary Public application for the Ohio Secretary of State
WANT TO BECOME A NOTARY PUBLIC IN OHIO?
NEW TRADITIONAL NOTARY: Instructions for Attorneys
(Not an attorney? Visit www.cbalaw.org/notary for step-by-step instructions.)
STEP 1: Take a notary class You must complete a new notary class. Attorneys are not required to take a test. The class is available in person at the Columbus Bar Association in Columbus, OH and online beginning in January 2020. The fee for the class is $75 paid directly to the CBA. Please visit www.cbalaw.org/notary to register.
Get started at cbalaw.org/notary Class Dates and Time Notary Education for In-Person Notarial Acts (note: this class is eligible for 2.5 hours of CLE credit!) The class is offered two Saturdays per month from 9:00am-12:00pm at the Columbus Bar Association office. Visit our website at
STEP 2: Complete the electronic application Complete and submit a New Notary Application electronically to the Secretary of State’s office. That application must include your name, attorney registration number, residential or business address, signature and evidence that you have successfully completed a notary education course through an authorized education provider. A $15 application fee must be paid directly to the Secretary of State with a credit or debit card when the application is submitted.
www.cbalaw.org/notary for upcoming class dates and to register.
Contact Us Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 Phone: (614) 340-2031 Email: firstname.lastname@example.org Website: www.cbalaw.org/notary
The Columbus Bar Association is Ohio’s Notary Public Resource Center
Background checks • Education for new, attorney and renewal applicants • Testing for new applicants • Stamps and supplies
Fall ‘19: The Practice of Law
Law as Business,
Profession, or Both by JANYCE C. Katz
Doesn’t it sometimes seem as if our legal cases are nothing more than verbal/ written chess games, where the goal is to use strategy to win against an opponent? As part of the goal of winning the case, each step is to be researched, each move carefully calibrated with the end goal of knocking out the opponent in some way, perhaps by catching a filing error (an easy out), or by overpowering with depositions (especially effective when it a very small law firm representing a single aggrieved plaintiff comes up against a large law firm whose actions are being financed by a wealthy corporate entity), or “scorched earth” litigation tactics.
The goal of winning seems to be key to building a reputation, to making a firm profitable, to getting a better position, a higher salary and perhaps a partnership with a corner office and all other perks. The motto sometimes seems to be ‘anything to win’, short of tactics that could result in jail. Sometimes, that last part of the motto also goes by the wayside. Then, take the need to win as the only goal one step further. Add today’s technology plus the need to continually grow the firm bigger into the mix. For some practitioners of law, legal services have morphed into products, and delivery of these “products”
...the search for justice and truth should be paramount. We should serve our clients well, meaning we understand the nuances of laws and regulations and how they operate and are interpreted in the world of today. And, we should never forget the ancient fiduciary-based ethical principles on which the legal profession is based. Nor should we not remember that we, as human beings, are to pursue justice. 44 | Columbus Bar L aw yers Quarterly Fall 2019
is more about efficiency and measurable outcome, not labor intensity, hours billed or origination or just decisions. Today, the business of law is also about using technology and process to identify and automate repetitive tasks, ‘productize’ routinized functions, streamline efficiency, promote transparency and diversity, compress delivery cycles and provide legal buyers with ‘more for less’ within acceptable risk parameters. Now, we see legal firms as global businesses, some with over 1,000 attorneys, with cultivation of clients, public relations, business management and growth of business a major goal and billings in the billions. A leaked message by K&L Gates Chairman Pete Kalis, as reprinted in the ABA magazine in 2011, summed up the legal business as he saw it. That message said, in part:
“We are a US-based global law firm. US law firms operate on a cash basis of accounting. Our fees must be collected by midnight within the fiscal year in which they are due. You don’t get to opt out of this feature because it doesn’t appeal
to you. Again, I couldn’t care less whether it appeals to you. It is who we are and therefore it is who you are. Get us paid by tomorrow.”i Certainly, a business should not be operated as a charity. If it is, it probably won’t survive. And, these days, many charities are competing as business, seeking revenue and customers/clients as well as providing their services for which they are receiving tax deductions. While they may have a charitable shell, these charities may also have for profit entities managing part of their functions and operated like businesses. The world of business vs charity, service provider verses profit has gotten quite convoluted and mixed these days. For lawyers, the largeness and access to more resources, including more people in the larger firms, can overwhelm smaller firms and their clients. The results, sometimes, are that one side wins through better, more thorough research, better written motions and a more articulate presentation of their side of the case even if they really shouldn’t win if one really looked at the underlying facts of the case. Every now and then a win comes just because it is the just outcome of a case. It comes even when the
45 | Columbus Bar L aw yers Quarterly Fall 2019
opponent has out-lawyered the winning side, because it is the correct decision based upon the facts of the case and the law. And, because many of us still believe that justice should prevail, we applaud such wins. How many of us went to law school, believing that the outcome of years of training would be to be part of a great profession following the biblical commandment of “justice, justice shall you pursue?”
For certain, the conflict between law as a profession (based upon intellectual study and analysis of the laws and case law defining the laws) dedicated to the pursuit of justice and law as a business (designed to make lawyers at least very comfortable financially, if not wealthy, with name recognition and perhaps elevated titles based upon multiple wins in cases pleasing to the correct people) is not a new issue. Back in 1900, George F. Shelson decried those attorneys whose “best is at the command of the largest purse.”iii He argued that the broadest possible education, perhaps also a classical background, broadened attorneys’ understanding of the world and gave them an intellectual and moral base through which to better formulate legal arguments.
Then, after a few years of trying to make certain every case was a victory, every one of the firm’s clients were happy and the billable hours were at least sufficient, how many of us wondered what happened to the dream of pursuing justice and making the world a better place? A survey in the latter part of 2018 of lawyers in Florida who had been in the profession less than five years found that 58 percent were dissatisfied with the profession and were considering switching to a different firm or career.ii The Florida Bar study of lawyers in its Young Lawyer Division found lawyers were stressed by their work and felt that they had no time for vacations or family. One-third of the young lawyers said they would not have applied for law school had they known what the profession was and the amount of one’s life it consumes.
In June 1908, a then-prominent attorney, Champ A Andrews’, article titled “The Law – A Business or a Profession?” was published in Yale Law Journal, 17, p. 602-610. Mr. Andrews derided attorneys who pretended to be professional, living up to a higher standard, concerned about public welfare, individual rights and justice when their real goal was selfaggrandizement and enrichment. He called for a truthful education of young potential lawyers, warning
Certainly, law must have business elements to it. Those of us not born to enormous wealth need to make a living. Most of us prefer a comfortable life rather than one on the edge of poverty. 46 | Columbus Bar L aw yers Quarterly Fall 2019
them that the road of pursuing justice could be not as lucrative or status-enhancing as the option of treating law like a money-making business. But, they could choose what they wanted to do with their law degree. President and former Princeton University President Woodrow Wilson entered into the argument, declaring that “the country is full of men…whose practice is so specialized that they have become parts of the great business machine and are no longer parts of a great profession.”iv In 1916, Julius Henry Cohen, one of the founders of the Port of New York Authority and of the American Arbitration Association wrote a book, “The Law: Business or Profession”, in which he argued that there was a profound tension between profit-seeking in business
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as opposed to public service in the legal profession. While recognizing the inherently commercial nature of the work of lawyers, he also called upon lawyers to uphold noble ideals and contribute for the good of society. He saw law as a profession relying on a thoughtful and
intellectually honest consideration of the nature and relationship between salient aspects of law and society. At the same time, he wanted lawyers to uphold the noble ideals of contributing to the good of society and, perhaps, make it better.
47 | Columbus Bar L aw yers Quarterly Fall 2019
The idea was that we, as professionals, should use our professional judgment to help our clients and to put their interests above our own. As then-Chief Judge of the US Court of Appeals 4th Circuit John Parker distinguished the practice of law from a business or a skilled trade when addressing the student body of the University of South Carolina Law School in 1955, said: â&#x20AC;&#x153;While the elements of service and gain are present in both, the chief end of a trade or business is gain; the chief aim of a profession is public service.â&#x20AC;?
Perhaps because the late 19th Century and early 20th Century were years of great change, the battle over whether the practice of law was a business or a profession erupted during those years. Factories had become industrialized, but salaries for workers were low and hours working in the factories were many. The face of the nation was changing. Immigrants were coming in from places like Italy and Eastern Europe, and their arrival meant additional Catholics and Jews, neither of which were particularly welcome in the USA at that time.v Unpleasant sciences like eugenics
48 | Columbus Bar L aw yers Quarterly Fall 2019
with the measuring of head size, the condemnation of entire groups of people as inferior and the forced sterilization of those deemed hopeless arose, in part, because of the disruptions and change in the social structure and the society. In a sense, the movements seeking to restore privacy or to perpetuate the professionalism was a reaction to the change then. I believe that one reason we see a concern about professionalism over law as a business today is the same reaction against massive changes to the economy, to how business
is conducted and to the nature of our culture. These changes, including the creation of international businesses that really need massive, international law firms to handle all of their legal issues in assorted countries and venues, seem to be undercutting all of our values and replacing them only with goals of financial success. But, even so, there should be, no, there must be a place for professionalism in these large, international firms as well as in the smallest of law firms. We need to protect our clients’ rights, and need to do so in a way that is ethical as well as legally correct. And we need to put their interests above our own, but never to the extent where we cross lines and break laws or needlessly harm others in our zealous pursuit of the rights and needs of our clients. As I write this, I am thinking of an attorney who blindly attempted to protect his client’s public reputation from destruction by means that were, shall we say, less than kosher, and who is now serving a jail sentence. Certainly, law must have business elements to it. Those of us not born to enormous wealth need to make a living. Most of us prefer a comfortable life rather than one on the edge of poverty. So, we do need business practices to bring in clients and to make sure bills are paid in a timely manner.
At the same time, the search for justice and truth should be paramount. We should serve our clients well, meaning we understand the nuances of laws and regulations and how they operate and are interpreted in the world of today. And, we should never forget the ancient fiduciarybased ethical principles on which the legal profession is based. Nor should we not remember that we, as human beings, are to pursue justice. i
Paul Lippe, Law Is Both a Profession and a Business—Forget That at Your Own Peril, ABA Journal, January 27, 2011, http://www.abajournal.com/legalrebels/article/law_ is_both_a_profession_and_a_business--forget_that_at_your_own_peril ii
Jack Schlein, 58% of Young Lawyers Think Legal Profession Is ‘Less Desirable’, Bar Survey Finds https://www.law.com/dailybusinessreview/2019/05/08/58of-young-lawyers-think-legal-profession-is-less-desirable-bar-surveyfinds/?slreturn=20190804051934 iii
“Law as a Business”, Yale Law Journal, V. 10, October 1900-July 1901, p. 282.
Woodrow Wilson, ‘The Lawyer in Politics”, Kentucky State Bar Association Proc., 10 (1911), 111. v
Hence, the 1924 immigration law which radically limited the numbers of Italians and Eastern Europeans who could come to the USA and continued the ban on Asians.
Janyce C. Katz, Esq.
General Innovations and Goods, Inc. email@example.com
49 | Columbus Bar L aw yers Quarterly Fall 2019
Fall ‘19: The Practice of Law
The Real Employment Numbers for the Law Class of 2018 BY jason m. dolin
Happy Days are Here Again? The employment results for Ohio’s 2018 law graduates seeking fulltime, permanent, JD-required (FTPJD) jobs improved over those of the 2017 class. Ohio’s Class of 2018 had 888 graduates compared to 951 graduates for the Class of 2017. The 2018 class had an FTPJD employment rate of 64.3 percent, an improvement over the 61.4 percent rate for the class of 2017, and its unemployment rate improved to 8.1 percent from 9.7 percent for the Class of 2017.
While we can question whether a hiring rate where approximately one-third of graduates do not find FTPJD employment – the type of job that they typically desire - is a successful overall outcome, compared to the FTPJD rates that hovered in the low 50s and 40s a few years ago, these numbers look good. But the recent and protracted lawyer-hiring-recession augurs caution. Are these good/better times here to stay? The data are not encouraging. First, the Class of 2018 was 6.6 percent smaller than the Class of 2017, but its FTPJD employment rate improved by only 2.9 percent. The Class of 2018 actually landed fewer FTPJD jobs (571) than the Class of 2017 (584). Second, as it has year after year, Ohio’s FTPJD employment rate has lagged behind the national FTPJD employment, which was 69.1 percent. Seven of Ohio’s nine law schools had FTPJD employment rates that were worse than the national average with five of
You don’t need to be an economist to understand that pumping more law graduates into a state with a slow growth economy, an even more slowly growing legal economy, an aging population, lower than average household income and that already has too many lawyers, is a recipe for continuing un(der) employment for new attorneys. 50 | Columbus Bar L aw yers Quarterly Fall 2019
those underperforming schools having FTPJD employment rates that were more than 10 percent lower than the national rate.
Ohio’s Slow Growth More ominously, Ohio’s demographics show a population that, while perhaps needing legal services, is not well situated to pay for those services. In significant metrics, Ohio is a slow-growth state with little foreseeable prospect for substantial improvement. The United States is at full employment with an economy that has been in expansion for a decadei, the longest in American history.ii Yet during that time, relative to national averages across several critical measures, Ohio’s growth has been meager. At its most basic, Ohio’s population is barely growing. Census data shows that from 2010 through 2018 Ohio ranked 41st of the 50 states and the District of Columbia in its rate of population growth. Other data show that from 2000 through
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the fall of 2016, the population of the United States increased 15.7 percent. Ohio’s increased 2.7 percent.iii Ohio’s Department of Development Services projects that from 2010 through 2040, a span of thirty years, Ohio’s population will increase a total of approximately one percent.iv In 2016, the median age of Ohio residents was 39.4 years, as opposed to 38.0 for the nation as a whole. Between 2000
and 2016 Ohio’s median age increased 3.2 years.v Analysis by the U.S. Commerce Department shows that in every year from 2015 through 2018, the percentage change in Ohio’s gross domestic product lagged behind the national average, ranking Ohio 32nd among the states.vi More recently, it was worse. From the first quarter of 2017 through the
51 | Columbus Bar L aw yers Quarterly Fall 2019
fourth quarter of 2018, Ohio’s rank dropped to 35th among the states in the percentage by which its gross domestic product increased.vii In 2017, Ohio ranked 36th in household income, with median income more than 10 percent below the national median income level.viii At 14 percent, Ohio has the 18th highest poverty rate in the nation.ix In 2019, Ohio’s job growth placed it 37th amongst the states, with job growth over 12 months (ending in July 2019) placing Ohio’s job creation in 41st place.x And while Ohio has slower population growth, slower GDP growth, lower household income, a higher poverty rate, and is older than the nation as a whole, in 2017, its per capita ratio of lawyers-to-population ranked it 21st out of the 50 states and the District of Columbia.xi In other words, we have a population with limited current and future ability to pay for legal services in an economy that already has enough lawyers.
Ohio’s Legal Economy Projections from Ohio’s Bureau of Labor Management Information (OLMI) for the 2016 – 2026 periodxii project paltry growth in newly created lawyer jobs in Ohio (i.e., those that did not exist in 2016). Overall, during that period statewide, newly-created lawyer jobs are projected to increase 1.1 percent; not 1.1 percent per year, 1.1 percent across 10 years. In
all of Ohio’s metropolitan statistical areas (MSA), growth in newly-created lawyer jobs lags behind the growth of occupations in the general economy. In the northern tier of the state, some MSAs are projected to lose lawyer jobs through 2026. For example, in the Cleveland-Elyria MSA, OLMI projects a contraction of 1.2 percent of lawyer jobs through 2026 versus an “all occupations” expansion of 3.3 percent. In the Toledo MSA, projections show a loss of 2.6 percent of lawyer jobs versus a 1.6 percent increase for “all occupations.” On the other hand, projections for the Akron MSA show an increase of 3.5 percent of lawyer jobs over that 10year period, but that still trails the “all occupations” increase of 4.9 percent. The Dayton MSA also shows negative growth of 1.5 percent for lawyer jobs. Even in the Columbus MSA, the bright spot for the State, newly created lawyer jobs across that 10-year period are projected to grow 6.6 percent, which still falls below the “all occupations” growth of 9.1 percent. You don’t need to be an economist to understand that pumping more law graduates into a state with a slow growth economy, an even more slowly growing legal economy, an aging population, lower than average household income and that already has too many lawyers, is a recipe for continuing un(der)employment for new attorneys. In that regard, Ohio’s future law graduates are in for rough sledding in the years ahead.
Now What? Ohio’s market for new lawyers is not at death’s door but neither is it healthy. It annually struggles to find FTPJD jobs for the law graduates it produces and continually does so at rates that trail the nation. More than half of its law schools find FTPJD jobs for their graduates at rates substantially lower (e.g., 10 percent or more) than the national rate. In some parts of the state, the lawyer market is contracting. In others, it is flat. Where it is expanding across the state it does so at rates that lag behind the growth rate of all other occupations. As this is written in September 2019, the national economy is at full employment. The Ohio economy is at full employment. This is it. It is not likely to get any better, yet Ohio’s market for new lawyer entrants remains fragile. We are one economic disruption – and in my view, not a major one – from FTPJD employment rates for new graduates that drop back to the netherworld of the high 40 or low 50 percents that they occupied a few short years ago. No one controls the overall economy: not presidents, not governors, not mayors. But there is one thing we can control: the number of law schools we have and the number of lawyers we produce. Ohio has nine law schools, five of them state-supported. It’s too many. Law schools can only shrink their class size so much because they have fixed costs (primarily personnel) that have to be covered. As long as they remain open, the data indicate they will continue to produce too many graduates and that those graduates will struggle to find FTPJD employment. Look at the 2018 employment numbers. For the most part, the school-by-school results reflect a pattern of FTPJD employment relative to one another that has existed for years. With a clear eye, you can figure out which ones need to go. This isn’t astrophysics. So when next year’s alumni solicitation letter arrives, the best thing you can do for the legal profession in Ohio is to say, “No thanks.”
See https://www.cbpp.org/research/economy/chart-book-the-legacy-of-the-greatrecession ii See https://www.cnbc.com/2019/07/02/this-is-now-the-longest-us-economic-expansionin-history.html iii See https://development.ohio.gov/files/research/P7001.pdf iv See https://development.ohio.gov/files/research/P6090.pdf v See https://development.ohio.gov/files/research/P7001.pdf vi See Table 4, https://www.bea.gov/system/files/2019-04/qgdpstate0519_4.pdf vii See Table 1, Ibid. viii See https://factfinder.census.gov/faces/tableservices/jsf/pages/productview. xhtml?src=bkmk ix Ibid. x https://www.dispatch.com/news/20190730/in-ohio-mike-pence-defends-donaldtrumps-slam-of-black-congressman-from-baltimore xi See https://lawschooltuitionbubble.wordpress.com/original-research-updated/lawyersper-capita-by-state/ xii Data obtained from OLMI is on file with the author. i
Jason M. Dolin, Esq.
email@example.com 53 | Columbus Bar L aw yers Quarterly Fall 2019
Total Employment Rate: Akron Total 2018 Graduates (“Grads”)
Cincinnati Cleveland St. Ohio State
% of 2018 grads employed 54.2% in full-time/permanent/JD 65/120 required (“FTPJD”) jobsTHE REAL EMPLOYMENT RATE National Average = 69.1% 2017=59.2% [total grads/# of FTPDJ jobs] (2016=66.2%) (school %s in red are below nat’l average) % of 2018 grads unemployed 8.3% at any job 10 months after 10/120 graduation (both seeking and not seeking employment) 2017=7.5% National Average = 7.3% (seeking only)* (2017=7.9%)
2017=76.4% 2017=55.3% 2017=53.8%
Private Law Practice: Akron
Cincinnati Cleveland St. Ohio State
% of 2018 Grads in FTPJD Private Law Practice
45.0% 54/120 2017=44.2%
64.4% 58/90 2017=41.4%
59.1% 52/88 2017=39.3%
48.2% 34.4% 36.6% 81/168 20/58 37/101 2017=42.4% 2017=40.8% 2017=38.5%
42.1% 53/126 2017=41.3%
37.1% 29/78 2017=31.3%
23.7% 14/59 2017=40.4%
44.8% 398/888 2017=38.0%
Of Grads in FTPJD Private Law Practice, % in Solo Practice
0.0% 0/54 2017=5.7%
0.0% 0/58 2017=3.4%
5.8% 3/52 2017=4.3%
0.0% 0/81 2017=1.4%
8.1% 3/37 2017=25.6%
2.0% 1/53 2017=0.0%
7.7% 3/29 2017=0.0%
7.1% 1/14 2017=14.3%
2.8% 11/398 2017=4.7%
Of Grads in FTPJD Private Law Practice, % in firms of Solo through 25 Attorneys (small practice)
61.1% 33/54 2017=64.2%
44.8% 26/58 2017=55.2%
61.5% 32/52 2017=56.5%
34.6% 70.0% 73.0% 28/81 14/20 27/37 2017=38.6% 2017=67.7% 2017=73.3%
52.8% 28/53 2017=43.9%
69.0% 20/29 2017=80.0%
100.0% 14/14 2017=71.4%
55.8% 222/398 2017=59.1%
Of Grads in FTPJD Private Law Practice, % in “mega” firms of 501+
7.4% 4/54 2017=1.9%
12.0% 7/58 2017=20.7%
5.8% 3/52 2017=6.5%
23.5% 19/81 2017=30.0%
0.0% 0/20 2017=3.2%
5.0% 1/20 2017=0.0%
2.7% 1/37 2017=0.0%
18.9% 10/53 2017=15.8%
13.8% 4/29 2017=10.0%
0.0% 0/14 2017=4.8%
12.3% 49/398 2017=11.5%
Law Graduate Debt: Akron
Cincinnati Cleveland St. Ohio State
% of 2018 Grads with at Least One Law School Loan**
Total Law School Debt for the Class of 2018+
Average Amount Borrowed by 2018 Grads**
Average Amount Borrowed by 2017 Grads
% Increase/Decrease in Average Amount Borrowed of 2018 Grads vs. 2017 Grads
See ABA data at http://abarequireddisclosures.org/EmploymentOutcomes.aspx
* The national percentage includes only those who are unemployed and seeking employment. This chart includes those unemployed who are also not seeking and whose start dates have been deferred as well. ** This was obtained at https://data.lawschooltransparency.com/costs/debt/?scope=schools + Calculated by multiplying total graduates at each school by the percentage of total graduates at that school with at least one law school loan (from Law School Transparency data) to determine the number of 2018 graduates at each school with at least one law school loan. The product of that multiplication was then multiplied by the average debt per student from that school who had at least one law school loan.
54 | Columbus Bar L aw yers Quarterly Fall 2019
ADVERTISE YOUR PRACTICE
IN THE COLUMBUS BAR DIGITAL DIRECTORY (directory.cbalaw.org)
Be found online: $35/year Online advertising doesn’t get more affordable than this. Select your areas of practice, foreign language abilities, and admissions to be listed in the searchable Columbus Bar Directory. For just $35 (per category) your profile will appear in search results for your chosen categories for a full year (1/1/2020-12/31/2020). CBA members only.
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q Receivership q Regulatory Law q Real Estate: Commercial q Real Estate: Residential q Retirement Plan q Securities Law q Small Business Law q Social Security Law q Sports Law q Surrogacy q Tax Law q Transportation Law q Trusts q White Collar Defense q Workers’ Compensation q Zoning and Land Use
q ASL q Arabic q Cantonese q French q German q Greek q Hindi q Mandarin q Russian q Spanish q Other:
STATE AND COURT ADMISSIONS: (Other than Ohio)* *CBA members admitted in Ohio already have this information on their profiles
q Arizona q Arkansas q California q Colorado q Florida q Georgia q Illinois q Indiana q Kentucky q Maryland q Massachusetts
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q Tennessee q Texas q Virginia q Washington D.C. q West Virginia q Wisconsin q Wyoming q U.S. Appeals-2nd q U.S. Appeals-3rd q U.S. Appeals-4th q U.S. Appeals-6th
q U.S. Appeals-7th q U.S. Appeals-10th q U.S. Appeals-DC q U.S. Appeals-Federal Ct. q U.S. Court of Claims q U.S. Military Appeals q U.S. Dist. Ct.-Northern Dist. Ohio q U.S. Dist. Ct.-Southern Dist. Ohio q U.S. Supreme Court q U.S. Tax Court q Other:
RETURN BY NOVEMBER 8, 2019 Your Name: Phone #:
Method of Payment: q Credit Card q Check (payable to Columbus Bar Services) Credit Card #: Exp. Date:
The Columbus Bar Directory has always been central Ohio’s premier resource for navigating the local legal community. With more people than ever searching for lawyers online, having a strong presence in the Columbus Bar Digital Directory (with its user-friendly “find a lawyer” search fields) is a must.
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Return this form to: Columbus Bar Association, 175 S. Third St., Suite 1100, Columbus, OH 43215 (fax: 614-221-4850, email: firstname.lastname@example.org)
Life Outside the Law
Adam Todd & Adam Florey BY HEATHER G. SOWALD Adam Todd and Adam Florey find they brainstorm and decompress best by picking up one of the acoustic guitars they keep in their offices and jamming together. One often picks up the tune where the other left off. The Adams generally play music from the 60s to the 90s, including the Beatles, Bill Withers, John Prine and Bob Dylan. Adam Todd admits, as a result of pressure from his teenage daughters, to playing Ed Sheeran under protest, as well as other more contemporary pieces. They also occasionally perform at open mic nights around the city.
These two men only met in 2018 when each were ready to combine their law practices. They formed the firm of Florey Todd, LTD. (www.law-flc.com). The Adams quickly discovered that they had many life events in common, including their love of music. Both attorneys remark that they push the other to become better musicians and lawyers. Adam T. admires Adam F.’s ability to focus on unraveling puzzles, whether caserelated or figuring out the guitar. Adam F. raves about Adam T.’s singing, stating with a smile that Adam is one of the “great tenors.” The two men have many similarities. Each one is married and has children, graduated magna cum laude from law school and are similar in age. Even more unexpected, both Adams coach soccer, were Indian Guides and each earned junior certifications in scuba diving as young teens. Despite their similarities, their respective paths to their fourth decade of life have differed.
graduated from Pickerington with a guitar from his grandmother in hand and a vocal scholarship to college. He performed in cover bands, often as the lead singer, and sometimes on the keyboard. After earning a business degree at OSU, he worked at Grange Insurance while attending evening law school. He and his wife, Jennifer, whom he met in childhood at 56 | Columbus Bar L aw yers Quarterly Fall 2019
church, have four children, one of whom was born during law school and the second born just four days before the bar exam. Their children range in age from 8-17. Upon graduation from Capital Law School’s evening program (J.D. 2004) and a stint in the Grange legal department, Adam T. practiced civil litigation with Frost & Maddox and later with Dinsmore & Shohl. He attained his lifelong dream of having his own firm when he hung out his own shingle in 2011. His law practice concentrates on small-to-medium business and real estate clients, for both transactional and litigation services. In his spare time, he runs, participates in races, plays for his church’s worship band and is involved in his children’s activities. He had put aside his guitar for many years, but found he missed it and began playing again in 2017 after his grandmother died. Adam relates that after he recently settled the wrongful death case of his grandmother, he used a portion of the settlement monies to buy a classic Martin guitar, which he has named “Thelma Jean” in her memory.
has a similar client base to Adam T.’s, as well as handling construction litigation and transactions, an area of familiarity due to his own work experience prior to law school and from family connections. Adam F. lived in several states growing up, but always had an outlet playing soccer and, as an accomplished saxophonist, playing in the jazz and concert bands in the various schools. Ultimately, Adam F. made his way to Ohio Wesleyan for college, where he met his future wife, Erin, and six friends with whom he started the band “Genuine Taste.” Their band composed its own music and recorded several albums. During college, Adam was gifted his father’s guitar, which he says his father always kept under his bed but never played. Adam and his band members named it “My Father’s Guitar,” which they learned to play and share.
These two men only met in 2018 when each were ready to combine their law practices... The Adams quickly discovered that they had many life events in common, including their love of music. Both attorneys remark that they push the other to become better musicians and lawyers. 57 | Columbus Bar L aw yers Quarterly Fall 2019
Adam Florey also attended Capital Law School’s evening program (J.D. 2009), after which he worked at a large firm in Boston. He returned to Columbus, where his wife’s roots were, to raise their two children, who are now ages seven and four. Adam worked in the construction law department at Bricker & Eckler for several years, and then went in-house with an engineering firm until he left to start his own practice in late 2016. Both Adams appreciate the extra dimension that their similar backgrounds and mutual musicianship bring to their personal and business relationship, whether for the stress relief or their ability to challenge each other to new heights. Adam Todd and Adam Florey foresee many more years of entertaining themselves and others while working toward their next “eureka” moment when it all comes together both in their legal and musical endeavors.
Adam F. is fascinated with dissecting the patterns and logic to the guitar’s fretwork. He mentioned that the fretboard and notes are in repeatable patterns that are fun to unravel. Adam is always seeking the next “eureka” moment when he finds answers to his curiosity about solving both musical and legal puzzles, and how and why these patterns work.
58 | Columbus Bar L aw yers Quarterly Fall 2019
Heather G. Sowald, Esq.
Sowald Sowald Anderson Hawley & Johnson email@example.com
Columbus Bar Association
INSURANCE As a benefit of Columbus Bar membership, you have access to a wide range of insurance products through HEMA— the official insurance broker of the CBA.
health/dental/vision Medicare planning life insurance disability insurance individual/family/group
Schedule a wellness check for your health insurance plan
GROUP HEALTH, VISION, DENTAL, LIFE, DISABILITY
(614) 890-7373 (x129) firstname.lastname@example.org
John Susie is located in the CBA offices to provide personal help for your firm. He brings many years of experience to compare options. In the complex, highly regulated health insurance world, the CBA wants to have an expert to assist members with their questions. Contact John Susie to discuss the plan that fits your firm’s goals and budget.
INDIVIDUAL AND FAMILY HEALTH
(614) 890-7373 (x114) email@example.com
Columbus Bar members have access to many types of insurance coverage including individual and family health, dental and vision. Contact John Dodd for assistance with individual and family insurance options.
MEDICARE PLAN ASSISTANCE
Suzanne McClain (614) 448-1834
When the time comes to enroll in Medicare, you’ll have questions about all your options. With years of experience, National United Medicare Advisors can help you choose the right plan for your needs. Contact Suzanne McClain for assistance.
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Life Outside the Law
The Best of Africa
Includes Its People (Part 2 of 2) BY Hon. David E. Cain, Ret. Between two flat countries in south central Africa is a gigantic crack in the earth that reaches depths of more than 400 feet. And what makes it so much more spectacular than just a T-shaped, gaping gorge is the 500 million liters of white water pouring over the mile-wide cross rim every minute. The rising mist can sometimes be seen for miles. Natives long ago called it the “smoke that thunders.” That’s Victoria Falls, a Natural Wonder of the World, on the border of Zimbabwe and Zambia. A visit there started the second half of our Best of Africa tour and
followed tent camping in the Hwange National Park, about a three-hour bus ride away. That trip along the two-lane rural highway was somewhat of a wonder in itself. Well-dressed young people walk all along the highway, usually to school. Many walk several miles each way. The schools have no buses for commuting. One could only imagine where they live, because for miles and miles we could see only bush country stretching from the sides of the highway. Also common along the roadways were small herds of beef cattle, donkeys and goats paying little attention to the traffic whizzing by. The cattle are “somebody’s bank account,” a guide commented. They are branded and usually a cattle master is nearby keeping track of them.
60 | Columbus Bar L aw yers Quarterly Fall 2019
The landscape had changed from flatlands to rolling hills; from some-trees-mostly-bush to strings of huge orchards bearing citrus, macadamia nuts and avocado to recycled forests with straight lines of pine or eucalyptus trees. Banana plantations stretch for miles and now and then are flowered by indigenous coral trees covered with orangish-red blossoms. Occasionally, police officers stop most of the automobile traffic to shake the drivers down for money. If they refuse to pay, they just sit, blocking the traffic behind them. Buses and other vehicles with occupants who know how to brush off the corrupt officers are waved on past. Small world. We’d no sooner checked into the Victoria Falls Inn when I met two young ladies who live in the Short North neighborhood of Columbus. Our conversation started when they noticed the OSU logo on my pullover jacket. They are in graduate school there. Our first look at the falls came near the Statue of David Livingston, who “discovered” Victoria Falls and named them after the queen of England in 1855 (although natives had been living there an estimated 200,000 years). Close by is the Devil’s Cataract (local tribes made human sacrifices there) at the most western edge of the falls. A “chain walk” at the next viewpoint leads a short distance down into the gorge
and offers great views down most of the length of it (until obscured by clouds of mist). Continuing along the footpath, one can get views from different angles of the Main Falls, Livingston Island, Horseshoe Falls, Rainbow Falls and the Eastern Cataract (in the neighboring country of Zambia). The next to last overlook is Danger Point, across from Rainbow Falls and above the place where the
water from the falls flows from the east-west gorge that catches it and continues down the river in the gorge that extends perpendicular from the falls. We could also see “the Boiling Pot” and Rapid Number One where commercial rafting trips begin. Most people are drenched by this time, as the rain forest area –across the gorge from Horseshoe and Rainbow Falls – is one of the few places on earth with a downpour 24 hours a day all year long.
61 | Columbus Bar L aw yers Quarterly Fall 2019
The gorge formed more than 150 million years ago when volcanic magna cooled quickly as it met with air and water, developing great cracks, i.e., faults. The last viewpoint is away from the falls to the south and offers a good look at the 650-foot-long Victoria Falls Bridge constructed in 1905 as a result of British businessman Cecil John Rhodes’ vision of building a railway from Cape Town to Cairo. The inn was built that year to accommodate the builders. Rainbow Falls is so named for the rainbows, often more than one at a time, that are delightfully visible through the mist whenever the sun is shining. Even moonlight creates rainbows on occasions. The next day, Mary Ann and I enjoyed a totally different look at the falls from a three-passenger helicopter that flew a complete circuit above the falls – in one direction and then the other. An exciting 15-minute ride. The day after that, we walked across the bridge – damp from passing by the other side of the rain forest on our approach to it. A sign marking the border of Zambia sits in the middle of the bridge on one side and a commercial bungy jumping operation is on the other side. The gorge is 350 feet deep along the falls, but has extended to the depth of 420 feet below the bridge. The bridge quivers when heavy rigs cross it, but that didn’t cause as much queasiness as the bungy people who were jumping – some even diving – off the side. We saw the falls at a time of year when it is near the highest water flow (spring in the USA but autumn in Africa). Water from the summer rains takes a couple months to get to the falls, which are about halfway between the source of the Zambezi River and its termination 1,599 miles later at the Indian Ocean. During the late spring in Africa (November/December), water flow can get down to 10 million liters per minute. On one of the evenings in the area, we rode into the neighboring Chinotimba Township, divided into groups of four and went to local homes for dinner. Mine was
at the small but neat home of Sibb Ndlovu, a gracious, English-speaking hostess who first asked us to hold our hands above a dish pan while she poured water over them for cleansing. After an appetizer of homeroasted peanuts, she explained how we would be eating without silverware. First, one makes a ball (golf ball size) out of the polenta, AKA corn meal mush, and then while holding it between the thumb and index finger uses its sticky surface to grab meat and vegetables off the plate. Those included a chicken leg and chunk of beef, green beans and carrots, kale in peanut butter, kale fried in cooking oil, catpapilla (an insect larva that I passed with an apology), matemba (fish), chicken stew and beef stew. The meal was topped off with hot tea and lemon slices. The next afternoon, we had a very nice visit at the Chinotimba Primary School where smiling students danced and sang to the beat of their bongo drums and then were happy to talk with us about their studies. Those included English, arithmetic, home economics, woodworking and African culture. They also told us 63 | Columbus Bar L aw yers Quarterly Fall 2019
to strings of huge orchards bearing citrus, macadamia nuts and avocado to recycled forests with straight lines of pine or eucalyptus trees. Banana plantations stretch for miles and now and then are flowered by indigenous coral trees covered with orangish-red blossoms. South Africa has nine tribes and each one is a political party, a local guide commented. “Post apartheid politics are now tribal wars,” he added. “And there are signs the presently-ruling party is selling out to the Chinese.” Kruger is about 50 miles long (north to south) and about half that wide, with about ten private game reserves bundled against the middle of its western edge. Together, they form the five-million-acre Greater Kruger wildlife haven. It is home to 147 large mammal species (more than any other park in Africa) and more than 500 species of birds.
of their hopes and dreams for the future. Several want to be teachers. One young lady has her heart set on becoming an airline pilot.
But Kruger is getting a little crowded with tourists, at least around the main gate at opening time. Safari vehicles (with entrance fees prepaid) crowd the parking lot near the gate in the pre-dawn hours on a first-come, first in basis. Other vehicles, from private cars to SUVs and vans, line up nearby to check in as soon as possible. At 6 a.m., the gates open and the vehicles race to get as deep into the bush as possible so as to be ready for the sun to rise and stir the animals.
The school principal told us some 1,800 students – grades one through seven with two levels per classroom – attend the small campus that was built in 1940. The average class has 50 students, but some go as high as 65. The students are divided into morning and afternoon sessions to accommodate them all.
On our two drives in Kruger, we were fortunate to see a now rare pack of painted dogs, so-called because of the colorful black, beige and gold strips on their huge, regal bodies. We saw more rhinos; a hyena nursing its young in a dugout right against the side of our path; numerous elephants, some gigantic; cape buffaloes; a variety of colorful birds; tons of giraffes; wildebeests and zebras; and more impala then anyone could count.
The next day, we flew from the Livingston Airport near Victoria Falls to the Nelspruit Airport in South Africa where we boarded vans to complete our trip to a campground outside of Hazyview near the Kruger National Park. The landscape had changed from flatlands to rolling hills; from some-trees-mostly-bush
So, the game drives were worthwhile. But Mary Ann and I had been spoiled by our stay at Londolozi, one of the private game reserves, on our visit to South Africa six years ago. Londolozi limits the number of theater-style seated Range Rovers it uses for safaris and they are not required to stay on the roads (as is the law in national
64 | Columbus Bar L aw yers Quarterly Fall 2019
parks). There, we saw male and female lions (one with cubs), a leopard and a cheetah, along with others from the Big Five (which includes lions, elephants, cape buffaloes, rhinos and leopards) and many other animals. Big cats are easily irritated and, therefore, hard to find in the tourist-heavy Kruger. On our last day in Kruger, one of our group took “a bit of a tumble” in a picnic area and broke her hip. Always and forever a nurse, Mary Ann volunteered to accompany her to a hospital in Nelspruit, more than two hours away. The ambulance ride became an African adventure in and of itself. “Aren’t you going awfully fast?” she inquired of the driver, who looked to be about 20 years old. “We have to go fast, m’am. This is an ambulance,” he responded. “Did you get training to drive this way?” she asked as they darted from one back bumper to the next. “Yes, m’am.” “Did you pass?” At the hospital, she was impressed and appreciative of their skills and equipment. The patient had surgery and returned to the states just a few days after the rest of us.
Hon. David Cain, Ret.
65 | Columbus Bar L aw yers Quarterly Fall 2019
Civil Jury Trials
Franklin County Common Pleas Court by MONICA L. WALLER Verdict: $2,607,000.00. Medical Malpractice. On Sept. 15, 2011, Plaintiff’s decedent, Barbara Mullins, underwent a procedure to treat a stricture in her small bowel. The next day, she went to the emergency room of Mount Carmel West complaining of abdominal pain, nausea and weakness. A CT scan was done and the radiologist noted that it was worrisome for perforated bowel. Mullins was admitted to the hospital and came under the care of Defendant Hospitalists, Nora Algothani, M.D., Thomas Brady, M.D. and Deborah Woidtke, D.O. Mullins was also evaluated on Sept. 16, 2011, by two general surgery residents. One of the residents called the attending colorectal surgeon, Defendant Karamjit Khanduja, M.D. at home on Saturday evening and the two physicians concluded that Mullins did not need immediate surgery. Another resident also spoke with Khanduja the next morning and advised that he did not believe that it was necessary for Khanduja to evaluate Mullins. On Sunday afternoon, Khanduja came
into the hospital and rounded on patients, but Mullins was not on the list of patients that Khanduja was to see. Khanduja did not see Mullins before Sept. 20, 2011, when Mullins was discharged to a rehabilitation facility. Mullins returned to the Mount Carmel emergency room on Sept. 22, 2011, via EMS in septic shock and died later that morning. After Mullins’ death, Khanduja reviewed Mullins’ chart and made notations indicating that the residents failed to inform him of the results of the CT and told him that he did not need to come in to see Mullins. Khanduja further commented that, had he been advised of the results of the CT, he would have scheduled Mullins for surgery. Plaintiff sued Mount Carmel, the ER physician, the general surgery residents, the hospitalists (Brady, Woidtke and Alghothani), and Khanduja (the colorectal surgeon). Before trial, Plaintiff dismissed her claims against Mount Carmel, the ER physician and the general surgery residents. She proceeded to trial against the hospitalists and Khanduja only. The jury concluded
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that Khanduja was negligent and that he failed to meet the standard of care by not evaluating Mullins during her hospitalization. The jury concluded that the hospitalists had not breached the standard of care. The jury awarded $1,857,000 on the wrongful death claim and $750,000 on the survivorship claim. The Court reduced the non-economic damages award from $750,000 to $350,000 after the verdict. There were no settlement negotiations before trial. Plaintiff’s Experts: Ralph Silverman, M.D. (colorectal surgeon), Paul Genecin, M.D. (internist), Ronald Flenner, M.D. (infectious disease specialist), Mark Campbell, M.D. (oncologist), Robert Vogelzang, M.D. (radiologist), Harvey Rosen, Ph.D. (economist). Defendant Khanduja’s Experts: Indru Khubchandani, M.D. (colorectal surgeon), Anthony Senagore, M.D. (colorectal surgeon), Frank Miller, M.D. (radiologist), Bruce Farber, M.D. (infectious disease specialist). Defendant Hospitalists’ Experts: Thomas Parker, M.D. (pulmonologist), Larry J. Russell, M.D. (family practice hospitalist).
Length of Trial: 15 days. Counsel for Plaintiff: Charles H. Cooper, Jr. and C. Benjamin Cooper. Counsel for Defendant Khanduja: Vincent J. Lodico. Counsel for Defendants Brady, Woidtke and Alghothani: Davic C. Calderhead and Joel L. Peschke. Judge William Woods. Case Caption: Estate of Barbara Mullins v. Mt. Carmel Health System, et al. Case No. 16 CV 11892 (2018).
Verdict: $1,424.44 ($0 in non-economic damages). Automobile Accident. On Dec. 16, 2014, Plaintiff Jason Royal entered the intersection of Park Center Avenue and Blazer Parkway heading eastbound on Park Center when Defendant Richard Clouse came through the intersection northbound on Blazer Parkway and his vehicle collided with Royal’s. Royal reported that Clouse had run a red light and failed to stop. Royal suffered from chronic pain in his neck after the accident that required treatment with an orthopedic specialist, physical
therapy and radiofrequency ablation. Royal alleged that he would need additional radiofrequency ablations in the future. Clouse argued that Royal’s neck pain was related to pre-existing degenerative disk disease and that the need for future treatment was not related to the motor vehicle accident. Claimed Economic Damages: $7,305.60. Plaintiff’s Last Settlement Demand: $60,000. Defendant’s Last Settlement Offer: $22,000. Plaintiff’s Expert: James Craig, D.O. Defendant’s Expert: Gerald Steiman, M.D. Length of Trial: Two days. Plaintiff’s Counsel: Jay Hurlbert. Defendant’s Counsel: Christy Rafferty. Magistrate Pam Browning. Case Caption: Jason Royal v. Richard Clouse, et al., Case No. 16 CV 11537 (2018).
Defense Verdict. Property Defendants Rick and Jennifer Brunner rented a home in Grandview from Plaintiff Sandra Cairelli from 1984 to 1987. The lease agreement contained a right of first refusal providing the Brunners an option
to purchase the property if sold. The lease was not filed, but the parties filed a memorandum of lease and right of first refusal. The lease terminated in 1987, but the memorandum of lease and right of first refusal was not released. In 2014, Cairelli attempted to sell the property and learned that the right of first refusal still encumbered the property’s title. After negotiations for the removal of the right of first refusal failed, Cairelli filed suit to quiet title and included claims against the Brunner’s for slander of title, tortious interference with contract and promissory fraud. The Trial Court issued a decision quieting title in Cairelli’s favor. The Brunners appealed the Trial Court’s decision. A panel of Fifth Appellate District judges sitting by assignment in the Tenth District Court of Appeals affirmed the Trial Court’s decision. The case then proceeded in the Trial Court on the remaining causes of action. The Brunners filed motions for summary judgment on all three remaining claims. The Trial Court granted summary judgment in their
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favor on the slander of title and tortious interference with contract claims. The case proceeded to trial on Cairelli’s claim for promissory fraud. Cairelli argued that the Brunners moved out eight months before the end of the lease term in 1987 and promised to release the right of first refusal when they moved out. According to Cairelli, she relied on the Brunners’ promise to release their right of first refusal and, in exchange, did not attempt to collect rent from them for the remainder of the lease term. Cairelli claimed damages equal to the attorney’s fees incurred to quiet title, the costs and expenses incurred in the upkeep, maintenance and management of the property and damage due to the inability to sell the property while the litigation was pending. The Brunners denied making a promise to release their right of first refusal in 1987, denied moving out early in breach of the lease, and contended that the right of first refusal survived the termination of their tenancy. Additionally, they argued that the damages claimed by Cairelli were not recoverable and that the most Cairelli could recover if she succeeded on her claim would be the rent lost due to the claimed premature termination of the lease, which the Brunners estimated to be approximately $4,400. After a jury verdict in favor of the Brunner’s on the promissory fraud claim, Cairelli appealed the trial court’s summary judgment decisions on the other claims. A panel of judges from the Fifth Appellate District sitting by assignment in the Tenth District
affirmed the trial court’s decision. Plaintiff’s Claimed Damages: $383,179.05. Plaintiff’s Last Settlement Demand: $400,000.00. Defendant’s Last Demand: None. Plaintiff’s Experts: Heinz Ickert, CPA, and David Douglas, J.D. Defendant’s Expert: None. Length of Trial: Five days. Plaintiff’s Counsel: B. Casey Yim and Robert G. Kennedy. Defendant’s Counsel: Patrick M. Quinn. Judge Stephen L. McIntosh. Case Caption: Sandra K. Cairelli v. Rick L. Brunner, et al. Case No. 14 CV 007770 (2018).
Defense Verdict. Medical Malpractice. Plaintiff Leanne Larson was referred to Defendant Jay Iams, M.D., for prenatal care because her pregnancy was considered high risk. On July 12, 1999, Larson was admitted to the Ohio State University Medical Center where Iams treated her with the assistance of thenresident physician, Defendant Jason Sayat, M.D. During her hospitalization, Larson was found to have low amniotic fluid and the fetal heart monitor showed some abnormal heart activity. Larson claimed that Iams and Sayat did not respond appropriately to these abnormalities and failed to timely perform a c-section delivery of her son, Braydin. Larson further alleged that, as a result of these failures, her son suffered a hypoxic ischemic brain injury, cerebral palsy and physical developmental delay. Iams and Sayat disputed Larson’s claim that they failed to timely deliver
68 | Columbus Bar L aw yers Quarterly Fall 2019
her son or that his injuries were the result of a delay in delivery or the medical staff’s response to her son’s condition at birth. Plaintiff’s Claimed Damages: (No information provided.) Plaintiff’s Last Settlement Demand: (No information provided.) Defendants’ Last Settlement Offer: (No information provided.) Plaintiff’s Experts: Marcus Hermansen, M.D. (neonatologist), Alan Hill, M.D. (pediatric neurologist), Theonia Boyd, M.D. (placental pathologist), Derek Armstrong, M.D. (pediatric neuroradiologist), Stephen Pelton, M.D. (pediatric infectious disease specialist), Russell D. Jelsema, M.D. (OB/GYN). Defendants’ Experts: David N. Franz, M.D. (pediatric neurologist), Charles G. Prober, M.D. (pediatric infectious disease specialist), Robert A. Zimmerman, M.D. (pediatric neurologist), Janice M. Lage, M.D. (placental pathologist), Alan D. Bedrick, M.D. (neonatologist), Dwight D. Rose, M.D. (OB/GYN). Length of Trial: Seven days. Plaintiff’s Counsel: David W. Skall and Romney Cullers. Defendants’ Counsel: Gregory B. Foliano and Gerald Todaro. Visiting Judge Daniel Hogan. Case Caption: Leanne Larson, et al. v. University Obstetrics & Gynecology, Inc., et al. Case No. 16 CV 3105 (2018).
Defense Verdict. Automobile Accident On Dec. 15, 2011, Plaintiff Charlene Walnoha was travelling in the right turn lane of Lazelle Road at the intersection of Lazelle Road and North High Street. She stopped to
allow traffic on North High Street to clear the intersection before making her turn onto North High Street when her vehicle was struck in the rear by a vehicle operated by Defendant Kalee Rogers and owned by Defendant Melissa Munger. At the scene of the accident, Rogers admitted that she did not have a valid driver’s license and asked Walnoha not to call the police. Walnoha initially suffered neck and back pain and migraine headaches. She was diagnosed with cervical disc protrusion and degeneration, cervical nerve root compression, lumbar facet arthropathy and radicular symptoms with paresthesia of the hands and feet. She also developed insomnia. Walnoha filed suit against Rogers for negligently operating the vehicle and Munger for negligently entrusting the vehicle to Rogers. Rogers did not dispute liability, but disputed that the claimed injuries were caused by the accident.
Rogers argued that the impact was insignificant and that all of Walnoha’s conditions were either preexisting or degenerative in nature. Walnoha ultimately dismissed her claims against Munger. Claimed Economic Damages: $48,795.05 (reduced to $10,168.70 after write offs). Lost Wages: $32,000.00. Plaintiff’s Last Settlement Demand: $100,000.00. Defendant’s Last Settlement Offer: $7,200.00. Plaintiff’s Experts: Kevin Kemp, D.C. (chiropractor), Carolyn Guarino, M.D. (primary care physician), Mark Reed, LPT (physical therapist). Defendant’s Experts: Gerald Steiman, M.D. (neurologist), Richard Stalnaker, Ph.D. (biomechanical engineer). Length of Trial: Four days. Plaintiff’s Counsel: Kristie A. Campbell. Defendant’s Counsel: L.W. “Ike” Westfall. Judge Kim Brown. Case Caption: Charlene Walnoha v. Kalee Rogers, et al., Case No. 17 CV 274 (2018).
Monica L. Waller, Esq.
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69 | Columbus Bar L aw yers Quarterly Fall 2019
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