Columbus Bar Lawyers Quarterly Spring 2021

LAWYERS

Columbus Bar Spring 2021

QUARTERLY

EVOLVING

LAW

In this issue, Columbus Bar Lawyers Quarterly examines how the law is evolving. Dive inside for articles on the cannabis industry, COVID-19 vaccine requirements for employees, compensatory education and more. Plus, an analysis of criminal justice reform in Ohio, marketing tips, book reviews and more.

A publication of the Columbus Bar Association • www.cbalaw.org

After 50 years, can we keep our edge?

Can we keep innovating?

Can we continue to lead?

Can we get better?

Piece of cake.

Celebrating 50 years of finding the truth. The truth is, being an industry leader is never easy. In our five decades, S-E-A has pretty much done it all. Forensic engineering and investigation. Vehicle testing and safety. Consumer product testing and health sciences. Just to name a few. And we do it all with the best talent and technology in the business. So yeah. We’ve blown out our candles and eaten our cake. Now we’ll get back to working on the next 50 years.

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Know. +1.800.782.6851 © 2021

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Table of

LAWYERS

QUARTERLY

Contents EVOLVING

Spring 2021 President’s Page

4

I Love This Bar Rob Erney

Bar Insider Bar Introduces: 10 Columbus Digital Media Studio Kelley Marchal

Way Ahead on Criminal 14 The Justice Reform in Ohio David Leland

Better Lawyer

LAW

Spring ‘21: Evolving Law

42 46

Your Mind Around 22 “WRAP” Legal Solutions

Mark Lewis and Mark Kitrick

It’s a Small World Shifting Sands of Search 26 The Bradley Miller

Points of Practice

32

Supreme Court of Ohio: 2020 Year in Review Saša Trivunić

Bar Happenings

40

Photo Gallery and Calendar of Events

A publication of the Columbus Bar Association • www.cbalaw.org

Local Lawyers’ Crystal Ball: 2021 Legal Landscape Following a Year of Quarantine Tami Kamin Meyer To Plant a Seed: The Rapidly Growing Cannabis Industry Chad Blackham

50

Police Video and Public Records: The New Rules Mark R. Weaver

54

Compensatory Education & Recovery Services: COVID-19 Considerations for Students on IEPs & 504 Plans Lauren A. Sabo

Courtroom 6E Style 18 Mediation: Hon. Mark Serrott and Paige Kohn

In this issue, Columbus Bar Lawyers Quarterly examines how the law is evolving. Dive inside for articles on the cannabis industry, COVID-19 vaccine requirements for employees, compensatory education and more. Plus, an analysis of criminal justice reform in Ohio, marketing tips, book reviews and more.

Student Section

58

Where to Invest Your Time: Law Review or Moot Court?

Emily L. Smith

Life Outside the Law

64

Lawyers with Artistic License: Justice Evelyn Stratton Lundberg (Retired) Heather G. Sowald

66

The Importance of Self-Love Scott R. Mote

70

Remote, Online Notaries: What It’s All About, and How It Works Teresa Scharf

74

For Relief from the Election, the Constitution and Recovery from Turmoil, Read a Book Janyce C. Katz

Jury Verdicts

80

Civil Jury Trials, Franklin County Common Pleas Court Monica L. Waller

Columbus Bar Association Editorial Board Chair

Melanie Tobias

Board Members Gwen Bocher Damon Durbin Ashley Johns Tami Kamin Meyer Janyce Katz Garth Rowbotham Doug Vonderhaar

Editor

Brianna Antinoro

Design/Production Sarah Curran

Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org

Advertising Burgie MediaFusion (614) 554-6294 leslie@burgiemediafusion.com

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.

President’s Page

I LOVE

THIS BAR

by ROB ERNEY Toby Keith sang about a bar he loved: “I love this bar. It’s my kind of place.

Just walkin’ through the front door puts a big smile on my face. It ain’t too far.

Come as you are... I love this bar.”

I feel the same way about the Columbus Bar. Let me explain.

Most of us became lawyers because we were interested in the law, wanted to study it and wanted to use our knowledge to help people solve their legal problems. We found law school to be rigorous but rewarding, and it tested our mettle. We studied hard for the bar exam. It was one of the greatest days of our lives when we found out that we passed.

A f t e r obtaining our law licenses, we found legal positions and began our journey into the practice of law. Some went into private practice. Others chose government or corporate positions. Several chose judicial clerkships and professorships at law schools. Still others went into the prosecutor’s or public defender’s office.

We worked very hard for the first several years, trying to prove to ourselves and others that we could be successful.

We worked long days and made many sacrifices in order to succeed. We quickly learned that the practice of law was very different from the study of law.

4 | Columbus Bar L aw yers Quarterly Spring 2021

As you succeed, the CBA succeeds with you.

As your practice changes, the CBA changes with you. As you grow, the CBA grows with you.

After the initial shock abated, and after a few years of practice, we had some time to think about the things that are most important to us as people and as lawyers.

•

There are four things that we, as lawyers, care most about. They are: 1. Be the best lawyers we can be; 2. Serve our clients to the best of our abilities; 3. Give back to our community and serve those less fortunate than ourselves; 4. Live a healthy, balanced life.

The Columbus Bar Association has developed resources and benefits that are designed to help us achieve these four deepest needs. The CBA exists to advance the legal profession and help lawyers be successful.

The Bar inspires members to be the best they can be and make practicing law easier, more manageable and more fulfilling. The CBA has established programs designed to help members learn, connect and position themselves for professional development.

Some of these programs and resources are summarized here:

1

Be the Best Lawyers We Can Be

The CBA provides resources that are geared toward providing attorneys w i t h a chance to learn and expand their professional and personal networks.

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• •

•

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World-class continuing legal education in-person, online or live webinars • CLE Easy Pass: 12 hours of in-person/live webinar or online recording CLE credits, at a discount • New Lawyer Training: 12 free hours of NLT CLE credits for attorneys who have been barred within the past two years Over 30 committees • Six professional development committees • 24 substantive law committees • Six board-appointed committees Guidance on professional ethical issues Barrister Leadership Program, available to attorneys practicing ten years or less • Develops leadership skills • Provides networking opportunities with leaders in the central Ohio legal community • Advises on building a successful law practice and career Client development tools • Lawyer Referral Service • Columbus Bar Digital Directory • Find a Lawyer Leadership opportunities • Committee chairmanships • Board of Governors • Opportunity to write for CBA publications Media Studio Free headshot for members every 2 years Digital video production Audio production Live stream and webinars

5 | Columbus Bar L aw yers Quarterly Spring 2021

!

OT SH AD FR

EE

HE

www.cbalaw.org

C O LU M BUS BA R A SSO CIATION NEW! Kelley Marchal—the CBA’s Multimedia Specialist and highly experienced photographer/videographer—is available to assist you with professional headshots (including a FREE headshot for members) and any other audio, video and photography needs.

PHOTOGRAPHY CBA Members:

Free 30-minute photo session and professional digital headshot

Non-Members: $100 for headshot

Also available:

Event coverage and meeting documentation

VIDEOGRAPHY Video services:

Bring your message to life! Kelley has years of experience producing digital video, from small social media posts to full blown multi-camera live production. Discount for members.

AUDIO Audio services: • • • •

Voice overs Spot tags Podcast production Transcription

Discounted rates for CBA members.

CONTACT US Kelley Marchal

kelley@cbalaw.org • (614) 340-2044

2

Serve our Clients to the Best of our Abilities

We want to do all that we can to ensure that our members are putting their best foot forward as attorneys, to ensure that clients are being given a high level of quality legal service. There are a number of resources that we provide to help support your practice.

• Practice Management Center, which provides resources to build and develop your law practice • Checklists • Whitepapers • Videos • Other resources • Learning Library: instructional videos on a wide range of legal topics that help develop core competency in a variety of practice areas • Central Ohio Docs: a user-friendly document assembly service • Create multiple forms at once • All forms can be viewed and edited on any device with internet access • Forms Library • Real estate forms • Probate forms • Title search standards • Advanced directive • Uniform Ohio Domestic Relations Forms • Legal Resource Guide: an index of central Ohio mediators, expert witnesses, attorney support services, and more • Guide to Ohio Courts, specifically designed for Central Ohio attorneys and legal professionals • Columbus Bar Interpreter Service: access to professional, dependable interpreting and translation services in a variety of languages including Spanish, French, Russian and Mandarin • Conference Center • Unlimited access to legal research through Fastcase • Probate bonds

3

Serve the Community

While we support our members and provide them with as many resources as they need, we also want to provide support to the central Ohio legal community at large.

•

•

We strive for diversity and inclusion within the legal profession. This includes: • The Minority Clerkship Program established in 1987 • The Managing Partners’ Diversity Initiative, which works with law firms to create a diverse community of lawyers in central Ohio We strengthen Bench-Bar relations by facilitating frequent conversations between judges and the practicing bar regarding court operations, COVID-19 updates, court protocols and rule changes

We also do our best to support the central Ohio community through providing resources and support.

This includes, but isn’t limited to: • Pro bono opportunities through the Columbus Bar Foundation and connections with the Legal Aid Society of Columbus • Notary Public services (including tests, classes, and background check services) • Ask the Attorney, a weekly legal advice call-in show in collaboration with WSYX, Channel Six News

7 | Columbus Bar L aw yers Quarterly Spring 2021

While we support our members and provide them with as many resources as they need, we also want to provide support to the central Ohio legal community at large.

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•

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Community Conversations, which serve to educate the public about the law and create greater confidence in the administration of justice.

Examples include: • Immigration: An Understanding of the Separation of Powers and Executive Orders • Federalism, States Rights, and the Affordable Care Act • The Civil Rights Act of 1964 through Obergefell v. Hodges • Civil Liberties vs. National Security: The Ongoing Challenge of Democracy • Presidential Pardon Power: Does the Constitution Grant the President Absolute Power?

The Franklin County Municipal Court Self Help Center: in collaboration with the Columbus Bar Foundation, the Franklin County Law Library Foundation, and the Franklin County Municipal Court, the CBA established this walk-in service to help non-lawyers represent themselves in court proceedings • Sealing of records • Landlord-tenant issues • General division claims • Small claims • Creditor/debtor issues We provide judicial election information: • Judicial preference poll: Franklin County attorneys evaluate performance of sitting judges • Judicial candidate preference poll: Franklin County attorneys are asked which judicial candidates they prefer with results released in time for November election

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Judicial screening: Candidates are independently evaluated through interviews, a review of questionnaire answers and past performance evaluations, if applicable. The committee then votes for one of three categories: Highly Recommended, Recommended or Not Recommended Judge The Candidates: a website that provides biographies for judicial candidates

4

•

•

Live a Healthy, Balanced Life

At the CBA, it’s important that we encourage all aspects of wellbeing for attorneys.

Lawyer Physical and Mental Well-being Committee • Help identify stressors in practice and personal lives • Identify practice, lifestyle and other changes to help mitigate stressors • Conflict Management • Dealing with Difficult Personalities • Resilience and Mindfulness • Work-Life Balance: Policies and Procedures to Eliminate Stress Developing relationships with peers • Networking • Engagement with leaders of other organizations

The CBA is designed to help us meet our four deepest needs. With its programming and resources, we can make strides toward being the best lawyers we can

8 | Columbus Bar L aw yers Quarterly Spring 2021

be, serving our clients to the best of our abilities, giving back to our community and living a healthy, balanced life. These four core values are necessary to finding success, joy and peace in the practice of law.

The Bar has given me more than I will ever be able to repay.

I love this Bar.

The legal profession is changing, and the CBA is changing with it. Our bar association is poised to help us find success as the practice of law evolves. The CBA will always be there for us, no matter where the demands of our practice take us.

Rob Erney, Esq.

As you succeed, the CBA succeeds with you. As your practice changes, the CBA changes with you. As you grow, the CBA grows with you.

Robert D. Erney & Associates Co., LPA robert.erney@erneylaw.com

Being a member of the CBA has made me the best lawyer I can be. The Bar has helped me serve my clients to the best of my abilities. The CBA has given me opportunities to serve my community. It has helped me to develop a healthy, balanced life.

NEW

Welcome MEMBERS

Suzanne E. Kelly

Kevin Scott

Nicholas Konves

Richard M. Scott

Eric Lee LaFayette

Anna M. Seidensticker

Rodd B. Lape

Bridget Sewell

George W. Leach, Jr.

Jessica P. Tarantine

Kenneth W. Macke

Josefina B. Taylor

Shafiyal Ahmed

Sue Fauber

Thomas H. Mallory, Jr.

Matthew Wood Upton

Catherine M. Ballard

Christopher J. Gant

Thomas Evan Morgan

Joseph R. Vesper

Christopher Begin

Annemarie C. Gill

Amanda Morris

April Ward

Mallory Margaret Benadum

Craigg E. Gould

MacKenzie B. Newberry

Elizabeth A. Warren

David D. Bolon

Abby Graves

Finley L. Newman-James

Catherine Mary White

Frank W. Bumb

Trenton Matthew Grohe

Terrence O’Donnell

Asa Benjamin Winkler

Peter R. Casey, IV

Adam Bradley Hall

Vincent Parisi

Dirken D. Winkler

Alex Jordan Castle

Felice L. Harris

Margaret Smith Replogle

Jennifer Wondracek

Thomas Vincent Donadio

Megan R. Hayden

Madeline J. Rettig

Nicholas W. Yaeger

Christine Donovan

Rhiannon Herbert

Elizabeth K. Robbins

Vincent P. Zuccaro

Jordan R. Edmonds

Richard Thomas Herman

Kristin J. Sabgir

Corinna Vaughn Efkeman

Jasmin J. Hurley

Katarina V. Schmidt

9 | Columbus Bar L aw yers Quarterly Spring 2021

Bar Insider

Columbus Bar Introduces:

DIGITAL MEDIA

STUDIO

bY KELLEY MARCHAL

One of the most important tenets of marketing is that you need to meet people where they are; customers will not always come to you, so you must go to them.

More people than ever are online – in 2019, the Pew Research Center ran a study and found that internet usage increased by five percent since 2016. That number has only increased, especially over the past year. Businesses need to pivot to reaching their clients digitally; advertisements in magazines and the newspaper aren’t going to cut through the noise of other ads that they see on a daily basis. Digital media is here, and it isn’t going away anytime soon.

NEW! According to a survey run by Biteable in 2020, nearly 60 percent of businesses use video as a marketing tool, and 94 percent of these businesses plan to continue. Nearly 74 percent of marketers say that videos are more effective than static imagery and also lead to a higher return on your investment. Plus, any video content you create can be used in myriad ways: on your website, on social media, as ad campaigns… the options are (nearly) limitless, depending on how creative you are.

Not a fan of video? No problem! If you’re not comfortable behind the camera, how about behind a mic? Recording a podcast can help center you as a thought leader on a particular practice area, and you can engage your

You can have video shot for your website or a television spot or something for your YouTube channel. You can come in and do a podcast. We have a photo studio, and members can come and get a free headshot for your website or your directory photo.

10 | Columbus Bar L aw yers Quarterly Spring 2021

customers that way as well.

If you don’t want to record a whole series or episode, you can still create an ad that’s neatly slotted into a relevant podcast with listeners who will take note of your name. (According to a 2019 eMarketer survey, 54 percent of listeners are more likely to consider hiring someone after hearing them advertised on a podcast.)

Videos and podcasts are only a couple of examples of how you can use digital media to build your brand, and there are certainly a number of other avenues through which you can do this. The point is, you don’t want to get left behind; even without COVID-19 keeping a good amount of people out of the office, clients are much more likely to be looking at your website and your social media accounts instead of giving you a phone call or, even less likely, showing up in person to ask for assistance.

So, what does this mean? Pivoting to digital media isn’t a necessity, but if you want yourself and your firm to continue being relevant (and beating out your

competitors), having a strong digital presence is a great option, especially as people are still hesitant to meet face-to-face in the wake of COVID-19.

We’re here to help you put your best foot forward through the smart application of digital media. We’ve put together our very own “Media Studio”, led by skilled A/V specialist Kelley Marchal. We couldn’t have a better person at the helm to bring the CBA Media Studio to new heights; we’ve already gone through numerous professional headshot appointments and have loads more on the schedule. Members and nonmembers alike can take advantage of any number of digital media resources, including (but not limited

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to) professional headshots, podcast recording, virtual event hosting, video messaging for your website and “about me” profile videos. All of these tools (and more) will give you the opportunity to put digital media to work for you and your firm.

Now, without further ado, we’re happy to introduce everyone to Kelley!

Kelley Marchal

My dad gave me my first camera when I was five years old. It was a little crappy Kodak instamatic. The first time I got my prints images back from the drugstore, I was hooked. I continued taking snapshots throughout my childhood.

Pretty terrible stuff.

When I got to high school, I got on the newspaper and yearbook staff and really enjoyed taking photos.

I went to a couple of summer camps at Ball State for photojournalism, and it took me to the next level. I remember dad taking me when I was a junior in high school to Dayton, OH to buy me my first real camera.

It was a Nikon FM. It was beautiful and I loved it. I remember the trip vividly, because it was the night the U.S. hockey team beat the Russians in the Olympics.

My dad and I were listening to the game on the way

home, going crazy with honking the horn and flashing lights. It’s a very fond memory.

When I eventually got to college, I started work with my roommate in the AV Department at Wright State University. That is where I got introduced to video.

We had this ENORMOUS desktop-sized video recorder and a couple of cameras, and my roommate and I were the only ones who really figured out how to work them efficiently. So, we ended up by default being the video guys for taping lectures and classes. In the summer after we completed inventory, there wasn’t much for us to do – so, we started doing goofy skits and some crash editing and made copies for some of the people who worked on the staff. One of the administrative assistants saw the video and took it to her husband (John Stevenson) who worked for a small company called Greater Dayton Cable. They produced local television commercials in the Dayton, OH market.

He thought I had some talent and asked if I would come work for them. I worked for that company for quite a few years writing, directing, shooting and sometimes even starring in a plethora of local commercials that would be inserted into cable networks. It was a very

12 | Columbus Bar L aw yers Quarterly Spring 2021

new technology, and the company I worked for was pioneering the technology that led to total automation of local add insertion automated.

they were all taking a toll, and I knew it was only a matter of time before I would not be able to function at 100 percent at that level…in the trenches.

As I continued in the video field, one opportunity led to another. I was offered a position at Merlin productions in Springfield, OH. Paul Cronley, the owner of that company, decided that we were going to invest in a high-definition camera and lens package. At that time, that investment was well over $100,000 for just the camera and lens. Not including vehicle, lighting, audio, etc...

March of 2020 changed everything. COVID-19. We called it COVID the destroyer. All work stopped. The company was force-laying everyone off, except for a few key people. They were able to bring people back after a few weeks once they got a small business loan; but, once that dried up, we were back in the same boat. I was laid off and was unemployed for several months. In all my years, it was the first time ever filing for unemployment. I was crushed.

I worked at Merlin productions for 24 years. During my tenure there, I shot video for so many networks, I can’t remember them all. ABC, NBC, CBS, Fox, PBS, CNN, Discovery Channel, National Geographic, History Channel, A&E, Spike, USA, ESPN, TLC, HGTV, TBS and on and on. At one point in my career, it was typical to have multiple projects that I worked on airing on the same day.

Then around 2006 or 2007, the DSLR revolution took place. That meant that a young person could go out, get a credit card, and, for under $25,000, put together a pretty nice package and start creating professional content for a fraction of the cost it used to take. It was a game changer. A lot of companies that didn’t respond and react did not survive. And then in 2008 when the recession hit, I can remember going months without a single job. Tough times for many of my friends and colleagues.

I really enjoyed my time at Merlin productions, but after a while I felt like I needed to move on to something else and accept a new challenge. I took a position at Ohio HD video here in Columbus. I thought I had a pretty good skillset, until I ran into these incredibly young talented folks who worked at that company. Some of the smartest people I have ever met! I was enjoying my time there, but also starting to feel the effects of a long career in the biz. The 14-hour days… the weekends…

During that time, I really got a chance to reflect on what I wanted to do and what I enjoy doing. My thoughts kept coming back to the Columbus Bar Association. I used to do a lot of work for them a few years ago as a vendor, and I just enjoyed the environment and the people I worked with. So, I put together a proposal, sent it to Jill Snitcher, the executive director, and, with the help of Judy McInturff, I was offered a job Dec. 1 as the A/V specialist for the Columbus Bar Association.

Right now, it’s a very exciting time because we’re building out a lot of different types of technologies that we can make available to our members at an affordable rate. You can have video shot for your website or a television spot or something for your YouTube channel. You can come in and do a podcast.

We have a photo studio, and members can come and get a free headshot for your website or your directory photo. We’re really building something here that we hope our members take advantage of. Nonmembers are always welcome too, as the price for services is structured so that it’s affordable to everyone.

Kelley Marchal

Columbus Bar Association kelley@cbalaw.org

13 | Columbus Bar L aw yers Quarterly Spring 2021

Bar Insider

The Way Ahead on

Criminal Justice Reform in Ohio

BY DAVID LELAND

The United States has the highest incarceration rate in the world, and racial disparities pervade the justice system. Individuals of color are vastly overrepresented in both number of arrests and time behind bars.

Ohio’s criminal justice system hasn’t fared any better.

If Ohio were a country, it would incarcerate at a higher rate than any other in the world, and Black Ohioans— approximately 14 percent of Ohio’s population— comprise nearly 50 percent of Ohio’s total prison

population. Ohio law also has hundreds of “collateral sanctions”—legal handicaps imposed on former inmates—that make it exceedingly difficult for former inmates to get jobs, housing, education and other essential needs. This structure often leads to a cycle of poverty and hardship, causing those who’ve been incarcerated to be far more likely to be re-incarcerated and, ultimately, to have their lives shaped by their interactions with the state.

Spurred by that stark reality, Ohio’s leadership has finally made criminal justice reform a top priority.

As the Ranking Member of the Ohio House Criminal

14 | Columbus Bar L aw yers Quarterly Spring 2021

These changes and others are certainly welcome reforms, but we have more to do.

Justice Committee, I am proud of the progress we made last session to address some of our criminal justice system’s most concerning aspects. Last session alone, we enacted four pieces of major criminal justice reform legislation, each of which passed with overwhelming bipartisan support and made impressive strides toward reducing the inequalities present in Ohio’s criminal justice system.

House Bill 1, for example, provides treatment instead of incarceration for those suffering from an underlying drug addiction. Rather than punish them for their addiction, HB 1 ensures that people with drug addictions can get the help they need to make positive and lasting change in their lives. House Bill 1 also expands the sealing of criminal records, reducing the barriers that former inmates face when reentering society and increasing their chances of future success.

To further remove barriers to reentry, we also passed Senate Bill 68, which allows people to reinstate their driver’s licenses by performing community service if they cannot afford the fee.

These changes and others are certainly welcome reforms, but we have more to do. Many of the reforms we hope to see passed in this upcoming session were introduced during the last General Assembly with broad bipartisan support and are critical for reducing and reversing the worst trends in our criminal justice system.

We need to expand on the progress we made with last session’s HB 1 and steer low-level drug offenders toward treatment rather than prison. With drug possession being the number one reason that people enter Ohio’s already-overcrowded prison system, we need to truly prioritize treatment over incarceration.

We also need to address the quiet scourge of domestic violence. Ohio law makes it difficult to identify domestic violence when it happens and difficult to deal with in its early stages. House Bill 3, which passed the House with near-unanimity, created a continuum of protections for

We also passed House Bill 136, which prohibits the death penalty for those affected by severe mental illnesses at the time they committed the crime. In a similar vein, Senate Bill 256 conforms Ohio law with U.S. Supreme Court precedent, which prohibits sentencing juveniles to life in prison without parole. Senate Bill 256 also increases the opportunity for parole for those who have demonstrated an adequate level of rehabilitation.

15 | Columbus Bar L aw yers Quarterly Spring 2021

As Martin Luther King, Jr. once wrote from the Birmingham Jail, “Injustice anywhere is a threat to justice everywhere.” victims of domestic violence and adopted several tools and resources to better identify domestic violence and provide support to victims. This reform is critical for protecting some of the most vulnerable Ohioans.

It’s also important to ensure that we have a sufficient number of public defenders to protect the rights of Ohio’s indigent defendants. In Ohio, 70 percent of defendants facing prison time are considered indigent, meaning they’re most likely to be represented by overworked public defenders. That’s why I’m reintroducing legislation that would reimburse law school graduates’ student loans in exchange for their service as public defenders in Ohio’s most underserved communities.

Every American has a constitutional right to a lawyer – we need to strengthen that guarantee here in Ohio.

I also anticipate a vigorous debate on Ohio’s bail system. The concern expressed by many is that the current system is primarily a wealth-based system of detention. In other words, if you are wealthy enough to make bail, you are released, while if you don’t have the money, you are incarcerated. Unsurprisingly, the outcomes often fall along racial lines, with people of color more likely to serve time in pre-trial detention.

This has other effects – if you’re behind bars, you could lose your job or lose custody of your children, and these collateral effects make it more likely that someone would accept an unfavorable plea bargain just to secure release. The goal is to move toward a pre-trial system where, if you’re a threat to others or

you’re likely to purposefully skip court appearances, you’re detained, and if you don’t meet those criteria, you’re released while you await trial.

Another area of concern, wrongful convictions, is being addressed by Ohio’s Task Force on Conviction Integrity and Post-Conviction Review, of which I am a member. Our goal is to provide recommendations that will deliver swift and just avenues for post-conviction relief. These recommendations should be forthcoming later this year.

As Martin Luther King, Jr. once wrote from the Birmingham Jail, “Injustice anywhere is a threat to justice everywhere.” Through that lens, the legislation passed last session was not so much an end as a beginning towards criminal justice reform in Ohio. I look forward to continuing that work with members of the 134th General Assembly.

David Leland, Esq.

Carpenter Lipps & Leland State Representative for Ohio House District 22 Ranking Member – House Criminal Justice Committee

16 | Columbus Bar L aw yers Quarterly Spring 2021

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MEDIATION:

COURTROOM 6E STYLE

BY Hon. Mark Serrott and Paige Kohn

For those that regularly practice civil litigation, mediation can be an excellent alternative to trial. While trial can be more interesting and sometimes necessary, the overwhelming majority of disputed civil cases settle short of getting to a jury.

Indeed, out of the nearly 500 civil cases that were closed on our docket in 2020, we only had one civil jury trial. During that same time, however, Judge Serrott personally oversaw 23 civil mediations, only six of which did not settle. Similarly, Magistrate Mike Thompson, who assists both our docket and that of Judge Chris Brown, conducted 28 mediations, only five of which did not settle. Combined, out of these 51 cases in 2020, we had a settlement success rate of about 80 percent.

Thus, compared to trial, which is riskier, costly and unpredictable, court mediation can become quite attractive for both clients and lawyers. Although the pandemic certainly impeded jury trials and mediations in 2020, we still had only one civil jury trial in 2019.

Because trial is so rare, mediation can often become one of the best options for resolving a disputed civil case. Even more, during his 10 years on the bench,

Judge Serrott has mediated about 400 cases, settling the vast majority.

Benefits of Mediation Part art, part science, mediation is a fluid process where pros and cons can be weighed without the overly formal and time-consuming approaches of motions, experts or trial. Mediation can work for a wide variety of cases.

While the most common cases involve personal injury, especially vehicular accidents, or breach of contract, we also regularly mediate property, employment, attorney fees/legal malpractice and general business disputes. While it is hard work for the court, clients and lawyers, mediation can be rewarding and provide many benefits over other forms of dispute resolution.

Lowers Costs for All Parties One of the most pressing issues for any civil case is cost. Litigation is very expensive. When attorneys bill hundreds of dollars per hour to resolve discovery disputes, draft motions and conduct depositions, a few hours spent at the court with the goal of settlement can be quite cost-effective. Unlike private mediation, which can cost $350 an hour or more, court mediation does not cost either party anything. Further, the court does not play messenger “games” between the parties, which reduces the time spent on unnecessary

18 | Columbus Bar L aw yers Quarterly Spring 2021

posturing and gamesmanship. Instead of drafting a costly motion for summary judgment that is difficult to win, sometimes it makes sense to go directly to mediation. Other times, of course, motions can serve as leverage.

Provides A Reality Check for Clients and Lawyers The court is in a great position to provide a neutral but educated perspective to clients, and even lawyers, about the strengths and weaknesses of their case. Lawyers do not always want to give their clients bad news, which makes the court’s input valuable. Sometimes, clients listen to a judge or magistrate more than their own lawyers. Often pointing to the jury box, the court can provide insight into how juries make decisions and what factors influence their judgments. A client might have a decent legal position, but may not be the best witness, which could alienate jurors. The cost of

retaining an expert or going to trial may not be worth the amount that could be saved by settling. Even if the matter does not settle that day, the session is often meaningful to encourage movement on the case as a whole, and these cases frequently settle soon thereafter based upon the court’s initial involvement.

Acknowledges Emotions and Client Expectations At the heart of many civil legal disputes can be strong emotions and expectations, which can make cases difficult to resolve. Unlike trial, however, mediation provides an open dialogue about the more personal aspects of litigation. Emotions and expectations can be heard, but also assessed in light of the bigger picture. Sometimes clients just want to be heard by the judge. A client could have been wronged by a long-time business partner; a former employee who worked years for their company could feel unfairly forced out; or neighbors could be having an escalating spat about a fence, leading to anger and mistrust. In any of these cases, after acknowledging these real emotions exist, the court often encourages clients to “make a business decision.” The court will also try to

19 | Columbus Bar L aw yers Quarterly Spring 2021

Part art, part science, mediation is a fluid process where pros and cons can be weighed without the overly formal and time-consuming approaches of motions, experts or trial. help clients understand the physical and emotional toll of litigation on their personal lives. Finally, whereas clients have to sit quietly through week-long trials, mediation encourages regular client input.

How Lawyers and Clients Can Be Effective at Mediation Different Perspective In many ways, mediation is different than other litigation techniques like oral argument or trial. While the latter approaches are more adversarial and aim for victory, mediation is a negotiation where both sides stand to gain and lose more equally. The process acknowledges muddled factual circumstances or questionable legal defenses, but does not pick a winner. As a result, mediation is often more effective when lawyers and clients come to court with a negotiating viewpoint rather than the traditional argumentative perspective typical of other aspects of civil litigation.

Adequate Preparation Coming to the mediation prepared is crucial. A key aspect of such preparation is a well-written and organized mediation statement, which is kept confidential and not shared with opposing counsel in our court. Beyond a brief summary of the dispute, the most vital sections include the status of the negotiations and strengths and weaknesses of the case. It is especially important

to share the last demand, realistic statement regarding settlement, client expectations and potential barriers.

The exercise of writing the mediation statement goes beyond assisting the court; it can force both lawyers and their clients to realistically evaluate the case. As a result, it is wise to take sufficient time to draft the mediation statement and not view it as just a cursory task.

How Mediation Works in Our Court Basics In Franklin County Common Pleas Court, mediation can be pursued either voluntarily or through a mandatory conference ordered by the court pursuant to Loc. Rule 105. In our courtroom, mediations generally last between two to three hours, sometimes more if the case is complex. The sessions are most effective when the parties are open to settlement and provide good mediation statements, which the court carefully reviews before starting the mediation. We prefer both clients and attorneys to be present in person, but both Magistrate Thompson and Judge Serrott have been conducting mediations on Zoom videoconference technology because of the pandemic. Judge Serrott finds in-person mediations more effective because of the personal nature of many cases, and his success rate is higher than mediations via videoconference.

20 | Columbus Bar L aw yers Quarterly Spring 2021

Considerations We begin in the courtroom and explain Judge Serrott’s broad experience with mediations and what to expect.

Each side is then caucused into a separate room, where we discuss the case with the parties individually.

While financial issues and costs are often the prime leverage points, sometimes a case benefits from thinking outside the box and developing non-financial solutions. We also discuss levers such as the likely outcome, jury verdict exposure and significant factual or legal points. Further, there are important non-legal considerations that can greatly influence an outcome, which are the goals, emotions and needs of the parties.

Role of the Court We strive to be personable and objective, but also a realistic third party that helps both clients and lawyers carefully evaluate their case. Given Judge Serrott’s experience of overseeing approximately 100 criminal and civil trials, along with about 400 mediations, for the past 10 years at Franklin County Common Pleas, the court has a great deal of insight as to what works and what does not. Such experience provides a good sense of what is reasonable for a case, whether it be a car accident or a complex business dispute.

Concluding Thoughts While mediations are not easy, they offer many benefits for both lawyers and clients. They are low-cost, more personalized and less formal. Clients also have the opportunity to vent their frustrations, expectations and, most importantly, have their “say.” This form of resolving disputes is effective because it balances the legal aspects of a case with the emotional needs of clients, which often leads to a more just result for all sides. Mediation acknowledges that disputes and litigation are challenging, but presents a more personal forum to sort through these disputes. The goal is not winning, but achieving a fair outcome. It permits parties to evaluate their case with less pressure of legal formalities, and encourages making a business decision. Ultimately, mediation often works and is an underutilized function that the court can provide.

Clients have often thanked us afterwards, noting how helpful the process was for them. We encourage you to consider it. i

On the Franklin County Common Pleas Court website, Judge Serrott’s webpage provides a list of information to include for an effective mediation statement. ii An alternative to court-ordered mediation is compulsory arbitration under Loc. R. 103, which is rarely used, but can also achieve similar aims to mediation.

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21 | Columbus Bar L aw yers Quarterly Spring 2021

“WRAP”

Your Mind Around Legal Solutions

BY Mark Lewis and Mark Kitrick

The Heath brothers — those prolific scientist-authors whose handy advice helps us live well — have authored many books on problem solving. In “Decisive: How to Make Better Choices in Life and Work”, they help us synthesize and apply years of robust research to improve our decision-making in both law and life.

As always for the Heath brothers, an acronym focuses their teaching on how to make better decisions: “WRAP”

1. Widen Your Options Investigate the full range of choices available to you.

Do not accept the problem’s frame as it first appears.

Re-frame it. Ask others, including both lay people and experts who have faced the same or similar choices.

Read and research the problem as well. Above all, do not hurry your decision. Time allows for conscious and subconscious cogitation that will lead you to additional options. As a result, your choices will be more comprehensive and beneficial.

2. REALITY-TEST Your Assumptions Do not seek to confirm what you already know (or assume you know). Rather, attempt to falsify what you know. Look for contrary evidence. It is not an easy task. So, again, ask for outside opinions, taking special note of those who disagree with your initial leanings or those who advise you to ask further questions. Listen.

Be wary of anyone who confirms the direction in which you may already lean. These steps help avoid selfserving and confirmation biases that afflict us all.

3. ATTAIN Distance Before Deciding Again, take your time to allow initial short-term emotions and thinking to subside and recalibrate. Wait, in other words, before making your decision. It is a physiological fact that your vision and thinking narrow when the stress and immediacy of a problem confront you. This is true no matter how cool under pressure you think you may be; this is your anatomy responding to millions of years of evolutionary training. Walk away, sleep on it and - most importantly - write out and study your long-term goals and values to ensure that you take them into account.

22 | Columbus Bar L aw yers Quarterly Spring 2021

4. PREPARE To Be Wrong Accept fallibility to advance the objective of avoiding future obstacles and pitfalls. Be ready for bad outcomes. Remain humble.

Be especially careful not to overidentify with the decision. We all must make ambiguous choices based on incomplete information. We never have all the information. So, we will get it wrong - a lot. Remember our fallibility. Only then can we hope to lessen the cognitive dissonance that prevents us from recovering and learning from our mistakes.

As helpful as these framing devices are for everyday life, they can be even more useful to lawyers in their day-to-day practices. How might we apply WRAP to our legal cases and problems?

1. Widen Your Options Don’t simply accept the way you’ve framed similar legal problems in the past, or the way the law has treated past similar cases. Treat the legal choice

facing you and your client as novel. See it with a beginner’s mind: a mind open to questions about the nature of the problem itself. This does not mean you disregard the settled law on the issue, but rather that you consider non-legal options too. How to do this?

Ask a non-lawyer how they might frame the issue. Ask an intelligent 12-year-old what they think. Seek the opinion of a colleague unfamiliar with the specific area of law. In other words, don’t rely solely on your own conception of the problem.

2. REALITY-TEST Your Assumptions Whatever you initially think about the problem and the solution, you should doubt it. Scrutinize the basic assumptions that guide your approach. Again, this does not countenance or propose some disregard for the law, or disrespect for settled legal procedures. It urges instead complimenting the “standard” lawyerly approach to decisions with questions for non-legal experts. Ask for opinions outside the legal system.

Seek opinions that disagree with your or your client’s approach or suggested solution. This is formidable for us lawyers, trained as we are in the art of advocacy (otherwise known as the “art of confirming our biases through selective evidence”). But we should always put our assumptions on trial for their life! Request to hear and then actively listen to the weakness of your position.

Ask for opinions outside the legal system. Seek opinions that disagree with your or your client’s approach or suggested solution. This is formidable for us lawyers, trained as we are in the art of advocacy.

23 | Columbus Bar L aw yers Quarterly Spring 2021

3. ATTAIN Distance Before Deciding Wait as long as you reasonably can to make legal decisions, unless you truly face a “legal emergency.”

Generally, the legal system moves slowly for many reasons – some of them less rational than others.

But one salient reason for the seemingly snaillike momentum of many legal outcomes remains instructive: we tend to get it right when we slow it down, let the emotional dust settle and consider all solutions with more objectivity and dispassion. Yet, we can still be wrong more often than we want to admit, which brings us to…

4. PREPARE To Be Wrong Focus here on “prepare.” As we say, invite dissent and try to forecast the consequences of wrong choices as early as possible. This “pre-mortem” analysis helps widen frames of reference for the legal problems and allows different solutions to develop. It is also an important reminder of an inescapable reality: unpredictability and uncertainty endure as features of legal life, despite our best efforts. Accepting unwanted outcomes that inevitably result from the sometimes random and uncertain legal world will strengthen our decision-making and resiliency in law practice. A mindset that accepts, as opposed to fears, mistakes will promote better decisions. Few, if any, truly good legal decisions are made from a fear of being wrong.

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Kitrick, Lewis, & Harris, Co., LPA mlewis@klhlaw.com

If we employ these “WRAP” techniques, we are bound to make better decisions both in life and in law.

Mark Kitrick, Esq.

Kitrick, Lewis, & Harris, Co., LPA mkitrick@kitricklaw.com

24 | Columbus Bar L aw yers Quarterly Spring 2021

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It’s a Small World

THE

Shifting Sands

OF SEARCH The best way to get your ideal client to your website

by BRADLEY MILLER

My law firm website used to be ranked at the top of the search results for “Columbus business lawyer” and several similar search terms. Not just on page 1 of Google, but one of the first 2-3 organic search results. Depending on where the person who was searching was located, I also showed up on the local listing map (the irony being my mailing address was a post office box).

I’m not sure how I came to realize it – maybe I was just checking out my competitors’ sites – but I was proud of the fact when I did. Particularly considering I built my website myself: first, by copying other websites I liked

and learning enough HTML code to make tweaks, and then migrating to Wordpress when I wanted something easier to update.i My site stayed at the top of the ranking for several years.

Fellow solo and small firm lawyers would regularly ask me for my secret. They assumed I used paid ads or hired a company to optimize my site for search. I honestly told them I didn’t know how it happened. I didn’t spend any money on ads or search engine optimization (SEO) and wasn’t aware of anything I had done to make my site rank well.

During those years, somewhere around 85 percent of my clients ultimately came from my website. That equated to about one new phone or internet inquiry a day. Unfortunately, out of those, I spent a lot of time dealing with tire kickers, price shoppers and people looking for free advice. Most of the resulting work was start-up business matters that required minimal legal knowledge but often disproportionate effort. I eventually narrowed my practice away from the low-value work and stripped down my site to just those narrow areas.

I have done some research into SEO since then and, looking back, my high ranking was probably a combination of the longevity of my site (I built my first firm website back in 2007) and the fact most business

26 | Columbus Bar L aw yers Quarterly Spring 2021

The end goal is for your ideal clients to see you as a resource for legal information. You want to come across as an “expert” in your practice area while seeming personable. law firm websites were mostly an afterthought at the time so were, quite frankly, pretty awful. Search engines put a lot of importance on perceived authority and trustworthiness, and length of existence is one of the factors that go into whether a site is seen as “authoritative.”

Almost all my current clients are referrals, but, if I decided to focus on using my website to attract new clients, here is how I’d do it now.

Buyers and Info Seekers There are two main reasons that someone might visit a law firm website. The first is that they are looking to hire a lawyer. I call these people “Buyers.” Buyers have a legal problem and have decided that they want formal legal representation. They are checking out law firm websites to find a lawyer or firm to work with.

The second reason someone visits a law firm website is that they are looking for information about a legal issue.

27 | Columbus Bar L aw yers Quarterly Spring 2021

These people are “Info Seekers.” They have a problem (which they may not be sure is even a legal one) and are looking for answers related to that problem. They are NOT looking for a lawyer. If they come across a law firm website, it is in search of information that answers their questions. Info Seekers may turn into Buyers if they decide their problem is one they want a lawyer to help resolve.

Because they are looking for different things, Buyers and Info Seekers search for and will come across your firm website differently.

The problem is that all your competitors also know this.

There are likely hundreds of other local lawyers in your particular practice area. They would love more Buyers visiting their websites, and so many of them are trying to rank for those same general lawyer search terms. There are also legal directories, related service providers and review sites trying to direct traffic to themselves. They want access to these Buyers, too. When it comes to generic lawyer search terms, you are a little fish in a big pond, and the big fish have a lot of money to spend on SEO. Everybody is fighting for Page 1, and there are only 10 (organic) spots.

Buyers

Info Seekers

Some Buyers are searching for a particular lawyer or firm. They might have been given your name from a client, a lawyer who knows you or another referral source. Now they are looking to find out about you. If someone puts your name into a search engine and you don’t show up in the top couple of results – at least on the first page – they will assume you don’t exist. Maybe you retired or changed careers; maybe the firm was shut down. Whatever the reason, they are going to move on to someone else, and you have lost your chance.

An Info Seeker is searching for information, often in the form of a question they have. They search using “longtail keywords” like “penalties for shoplifting in Franklin County Municipal Court” or “difference between a will and a trust” rather than general lawyer search terms.

Even if you don’t care about ranking for any other search terms, it is important that your firm website at least shows up when someone searches for your name or that of your firm. If your site doesn’t show up on the first page when you type “[your name] lawyer” or “[your firm name]” in the search engine, fire your web designer (especially if it is you!) and work on getting your website to at least show up when someone is specifically looking for you.ii If a Buyer isn’t looking for a specific lawyer or firm, they are likely using general search terms like “bankruptcy lawyer Columbus” or “divorce lawyer near me” to find a lawyer. If you can rank highly for these types of terms, you can get a good stream of potential clients looking to hire a lawyer to your site. I was getting up to five calls and emails a week, and more people are looking for lawyers online now than when my site was ranking well.

28 | Columbus Bar L aw yers Quarterly Spring 2021

They may even type their question directly into the search box: “how can I get creditors to stop calling?” or “can I kick my husband out and change the locks if I file for divorce?” Ideally, Info Seekers want to find a webpage that directly answers their question, whether that be from a law firm or someone else. A site that answers all their questions will become a trusted resource.

While there is less overall traffic for long-tail keywords, there is also a lot less competition. People using these search terms aren’t currently looking for a lawyer.

Most firms and businesses look at the return on the investment in their website based on new clients and fees generated. They want Buyers who are currently committed to hiring a lawyer and so are focused on the search terms Buyers use.

However, some Info Seekers will eventually hire a lawyer. If they can find the information they are looking for on your site, and it is explained in a way that is easy to understand and shows your expertise, you can be the first lawyer or law firm they think of when that time comes. They are essentially “pre-sold” on you, and you

can avoid competing with other firms and companies.

This is what I think is the sweet spot for solos and small firms, and where I would focus my time and attention.

Becoming a Resource for Your Ideal Client So, how do you take advantage of this opportunity?

The task is two-fold: you need to show up in the search results for the questions your ideal client is asking, and you need to answer the question to the reader’s satisfaction.

I’m not going to get into the details of SEO and getting your content found here, as much of that is beyond my paygrade. Plus, as a lawyer, going into the weeds on your website SEO is not going to be the best use of your time.iii What you need to know is that the goal of a search engine is to return the most relevant pages that answer the user’s search query.iv A great way to show Google, Bing or your favorite search engine that your content does this is to use the exact long-tail keywords in your content. If your ideal client is looking for “can a police

29 | Columbus Bar L aw yers Quarterly Spring 2021

dog sniff my car without my consent?”, you want to have that phrase somewhere on your page, ideally as the title or a heading.

You can also see what sites currently come up when you search for your client’s question to make your content rank better. Look at how often the specific keyword you are looking for shows up on the page. If you want to go a little deeper, there is a browser plugin called SEO Minion that will perform an SEO analysis on a webpage for you.v It will show how many words and headings the topranking pages have. If you want your content to rank for a particular search phrase, then you will need to meet or exceed what the current top-ranked sites are doing.

Once your page satisfies the search engines as being relevant, it must then satisfy your ideal client. Does your content answer the client’s question? Or are you evasive in your answer, dismissing the question as something that can only be determined after an exhaustive legal analysis? The answer to many legal questions is “it depends,” and it is OK to say that in your content. But you should at least mention some of the factors that go into the analysis and how they might impact the result.

Deciding how in-depth to go with your explanation of a legal concept or procedure is a balancing act. To protect yourself, be sure to throw a disclaimer in at the end against this being legal advice and advising them to seek counsel.

What you write should not sound like a brief or a law school casebook. Remember that Info Seekers are looking for information that directly answers their question. What they find must be easy for them to understand. Don’t use legal jargon or complex sentences. Your content should be simple enough for an eighth grader to read and make sense of.vi The page where the information is found should also appear trustworthy. Having your firm name and logo on the page will give you some instant credibility, but that can be lost if your site looks dated. You don’t need to spend excessive amounts of money on it, but your firm website needs to look professional and modern. About 60 percent of all search is done on a mobile device, so your site should be responsive and look good on a smartphone.vii

The end goal is for your ideal clients to see you as a resource for legal information. You want to come across as an “expert” in your practice area while seeming personable. When they are ready to engage a lawyer, you want them to feel you can help them and be their first call.

Coming up with content that ranks well and resonates with potential clients can be a challenge. Here are a few DOs and DON’Ts that might help.

1. DO Get Content Ideas From Your Current Clients

One of the biggest fears that lawyers have is not knowing what to write about. How do you know what your clients want to know? Ask them. Or more accurately, listen to them. What are the most common questions that potential clients ask during their initial consultation?

Make a list. What are things that you or your staff find yourselves constantly explaining to clients? Add those to the list. If you listen, your clients will tell you exactly what to write about.

2. DO Use the Language Your Clients Use

When you listen to the questions your clients ask, pay particular attention to the specific words and phrasing they use. Do they use the term “litigation” or “court case”? Do they ask about the “adjudication” of an issue or “what the judge decided”? Remember, the terms you use as a lawyer may not be what your clients use. If you try to write like a lawyer (unless your clients are lawyers), your content will never show up in your clients’ searches and won’t be helpful to readers.

3. DON’T Try to Sell, Just Educate

Info Seekers are not looking to buy anything. They simply want information. So just give them information.

If you try to sell to them – by forcing them to contact you to get an answer to their question – it will turn them off and you will lose their trust.

4. DON’T Limit Yourself Just to Written Content

Video is hot right now. There still aren’t many law firms taking advantage of it, so it can be a way to distinguish

30 | Columbus Bar L aw yers Quarterly Spring 2021

yourself. You can make a short two or three-minute video of yourself explaining a legal concept or answering a client question and then upload it to YouTube. The video can be embedded on your website, plus, it can show up in YouTube searches. Video gives you the added benefit of allowing you to show your personality, which is important when a prospective client is deciding who to hire.

Your trusted advisor in • Structured Settlements • Trusts Services • Taxable Damage • Mediations • Structured Attorney fees

If you feel you have a face for radio, audio is another way to set yourself apart. It is estimated that almost 118 million people in the U.S. will listen to podcasts on a monthly basis in 2021, and hosting a podcast is a great way to show your expertise.viii Episodes can be played directly from your webpage or subscribed to through a service like iTunes or Spotify, providing extra opportunities for them to be found.

To make your audio or video content searchable, however, you must include written transcripts. Google and the other search engines can’t (yet) parse out the text from these formats, so you need to provide it. If you don’t have the time to pull out the text yourself, there are online services that can do it for you. Otter is an example of one that uses artificial intelligence to transcribe your audio and video within a few minutes.

5. DON’T Worry About Someone Using Your Content Themselves

Finally, don’t worry about a potential client taking the information you provide and using it to do the work themselves. It might happen. But the people who do it weren’t going to hire you anyway. In fact, having the information on your website saves you from having to talk with these DIYers only to find out they aren’t looking to hire a lawyer.

Michael W. Goodman, Esq. CSSC mgoodman@nfp.com

Claire B. DeVan, CSSC cdevan@nfp.com

Ohio Based

800.229.2228 www.nfpstructures.com

i

I had a lot of time on my hands as a new lawyer with a new solo practice and few clients. ii If you just launched your website within the last several months, you can hold off firing your designer (for now). It can take some time for the search engines to find a site and index it so that it turns up in search results. iii If you are really interested in learning about webpage SEO, Google has an SEO Starter Guide you can find at https://support.google.com/webmasters/ answer/7451184?hl=en. iv Aim of a search engine algorithm, from https://www.deepcrawl.com/knowledge/ technical-seo-library/how-do-search-engines-work/. v SEO Minion can be found at https://seominion.com/. vi This particular paragraph is readable to a ninth grader, based on the readability test at https://www.webfx.com/tools/read-able/check.php. vii Statistics from https://www.statista.com/statistics/297137/mobile-share-of-usorganic-search-engine-visits/. viii From https://techcrunch.com/2021/03/02/spotify-podcast-listeners-to-top-applesfor-the-first-time-in-2021-forecast-claims/. ix I have some limited experience with Otter but so far have been impressed with its accuracy. Otter has both a free tier and paid options and can be found at https://otter.ai/.

Bradley Miller, Esq.

Miller Law LLC brad@bradleymillerlaw.com 31 | Columbus Bar L aw yers Quarterly Spring 2021

Points of Practice

SUPREME COURT OF OHIO

2020 Year in Review

by Saša Trivunić

With all that happened in 2020, you might have missed some important decisions from the Supreme Court of Ohio. This year, in addition to the typical decisions about nuanced areas of the law, the Court’s decisions included several interesting cases about things like: •

Whether the caller of a false 911 call must pay restitution to the municipality

•

The duties of Ohio drivers involved in a car accident

•

Whether a juror’s letter of regret over their vote is admissible evidence to overturn a jury verdict

•

The defense of reasonable parental discipline to charges for domestic violence

•

Whether you can be pulled over for touching the edge lines of the road with your tires

This article summarizes these cases and highlights some others decided by the Supreme Court of Ohio in 2020.

The City of Centerville v. Knab

No restitution to municipality for false 911 call.

This case started with a 911 call to report an active shooter and ended with an interpretation of Marsy’s Law in the Ohio Constitution that municipalities could not recover restitution for false 911 calls because they are not “victims” of crimes under Marsy’s Law. Michael Knab called 911 and told the dispatcher at the Centerville Police Department that someone was “shooting up the place.” Police officers responded

32 | Columbus Bar L aw yers Quarterly Spring 2021

We’re sharp, but we never cut corners.

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to the call but did not find an active shooter or any firearms in Knab’s house. Knab was charged with two misdemeanors: making a false report to police and improper use of the 911 emergency system. After a bench trial, the trial court found Knab guilty of both charges.

The City of Centerville asked the trial court to order Knab to pay restitution to the City for the costs it incurred in responding to the call, which the City estimated was

$1,375.56. The trial court ordered Knab to pay the restitution and serve a jail sentence. Knab appealed his sentence and the restitution order, arguing that the City is not a victim to which restitution can be ordered under Ohio’s restitution statute.i The City argued that it was entitled to restitution because Marsy’s Law (an amendment to the Ohio Constitution) expanded the definition of a “victim” of a crime to include municipalities.

The Second District Court of Appeals vacated the trial court’s restitution order and the City appealed.

2020 was full of interesting cases before the Supreme Court of Ohio…

Here’s to wishing that 2021 is (legally) as interesting and unpredictable.

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The Supreme Court of Ohio affirmed. Marsy’s Law— Article I Section 10a of the Ohio Constitution—is a 2017 amendment to Ohio’s Bill of Rights. The Amendment is named after a University of California student, Marsalee (Marsy) Nicholas, who was stalked and killed by her exboyfriend in 1983. On their way home from the funeral service, Marsy’s family stopped at a local market where they were confronted by Marsy’s killer, who was released on bail. Marsy’s family was not notified of the killer’s release because no law required the court or law enforcement to keep Mary’s family informed.

Ohio’s Marsy’s Law arose from a national victims’rights movement to give crime victims constitutional rights equal to the rights of individuals accused of committing crimes. Among those rights are the right to notice of the release or escape of the accused, the right to privacy, and the right to restitution. The question before the Supreme Court in this case is whether the

City of Centerville is a “victim” under Ohio’s Marsy’s Law and thus eligible for restitution as the victim of Michael Knab’s crime (making a false 911 call).

The Court held that municipalities are not “victims” of crimes under Marsy’s Law and thus are ineligible for restitution. The Court looked at the language and purpose of Marsy’s Law in the Ohio Constitution, what the voters understood about Marsy’s Law when they voted to amend their Constitution, the relevant sections of the Ohio Revised Code, and recent decisions of the Court interpreting the word “victim” for restitution purposes.

The Court concluded that Marsy’s Law intended to benefit only victims who are natural persons or private partnerships and corporations, and not political subdivisions or municipal corporations that are public in nature and treated differently under law.

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State v. Bryant

Ohio drivers can (sometimes) leave the scene of an accident without waiting for police.

If you’re involved in an accident in Ohio, can you leave the scene before the police arrives? According to State v. Bryant, you can (sometimes).

Michael Bryant got into a car accident with Elanor Everhardt. After the crash, both drivers pulled into a nearby parking lot to exchange information. Everhardt alleged that Bryant was stumbling and smelled of alcohol. Bryant gave Everhardt his name, phone number and license plate number. Bryant didn’t have his driver’s license with him, and he asked Everhardt not to call the police because he was drinking and driving, he was a drug dealer and he had drugs on him. Bryant even offered Everhardt money not to call the police.

Although Everhardt ultimately called the police, it is unclear whether she called before Bryant left the scene.

It was undisputed that Bryant left the scene before the police arrived. Additionally, there was no evidence that Bryant knew Everhardt was calling (or had called) the police.

Bryant was tried and convicted for leaving the scene of a car accident without (1) giving certain information to the “police officer at the scene of the accident or collision” and (2) giving Everhardt the “registered number” for his vehicle.ii The appellate court affirmed and the Supreme Court reversed.

First, the Supreme Court said that the statute’s requirement for divers to provide information to police officers does not require drivers to remain at the scene of an accident to wait for a police officer when, like Bryant, the driver is unaware that the police have been or will be called and the driver has given the necessary information to the other driver. Other sections of the statute require drivers to stay at the scene in limited circumstances, such as when the other driver is unable to comprehend and record the necessary information due to injury.iii Second, among the information drivers must provide after a collision under the statute is their vehicle’s “registered number.” The Supreme Court said that

term “registered number” is ambiguous in the statute at issue, but the statutory scheme for registering and licensing cars in Ohio establishes that the car’s licenseplate number is the distinctive number assigned to the car upon registration—its “registered number.” Because Bryant allowed Everhardt to take a picture of his license plate, he complied with the statutory requirement to give Everhardt his vehicle’s “registered number.” Thus, finding that Bryant complied with the statutory requirements at the scene of the accident, the Supreme Court reversed the appellate court and Bryant’s conviction.

Jones v. Cleveland Clinic Foundation Juror’s letter of regret after trial inadmissible.

What could go wrong with handing the case over to the jury on a Friday, making the jury restart their deliberations eight hours later and then forcing the jury

35 | Columbus Bar L aw yers Quarterly Spring 2021

to continue deliberating after they told the court they were “tired” and “cranky”? A compromised verdict by tired and cranky jurors who wanted to go home rather than continue deliberating.

ReDon Jones died of a heart attack. His estate sued the Cleveland Clinic and several doctors who treated ReDon, alleging medical malpractice and wrongful death. The trial lasted just four days: the case opened on Monday and jury deliberations began on Friday morning. At 5 p.m. on Friday, the jury was deadlocked at 4-4 and asked the judge what they should do. The judge told them to keep deliberating.

Later, one of the jurors asked to be excused because of a family emergency. After consulting with the attorneys, the judge dismissed the juror and empaneled an alternate juror. At 7:20 p.m., and at the request of counsel for Jones, the trial court instructed the jurors to restart their deliberations from the beginning with the replacement juror. After that, the jurors exchanged a few more notes with the court, telling the judge that they’re deadlocked, “tired, cranky, and see no change in [their] opinions,” and asked the court to go home for the weekend.

At about 10:00 p.m., while the judge and attorneys discussed reading to the jurors the standard jury instruction relating to deadlock deliberations (a Howard instruction), the bailiff announced that the jury reached a verdict. In the courtroom, the judge confirmed the 6-2 verdict in favor of the defense and polled the six jurors in the majority, each juror confirming their vote.

Jones moved for a mistrial. Jones argued that, in moving from a strong deadlock to a verdict in less than 30 minutes after the judge instructed the jurors to return for deliberations on Monday morning, certain jurors compromised their honest opinion as to the weight of the evidence to avoid returning for deliberations.

While the motion for a mistrial was pending, the trial court received a letter from one of the jurors in the majority stating that she ultimately agreed to a defense verdict in order to avoid coming back for deliberations the next week—just as Jones argued. Although the juror “felt very strongly that the plaintiff was correct in the case and the defendant was negligent,” she changed her vote “to speed the process along . . . as the hour approached 11 p.m.”

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The trial court denied Jones’ motion for a mistrial and refused to consider the juror’s letter under Evid.R. 606(B) because the juror did not suggest a threat, bribe or impropriety by an officer of the court. The court of appeals reversed, finding that the trial court’s denial of the motion for mistrial was an abuse of discretion, and its failure to issue a Howard charge on deadlock deliberations was plain error.

The Supreme Court reversed. First, the Court said that the juror’s letter was inadmissible under Evid.R. 606(B), which prohibits jurors from testifying “as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s minds or emotions as influencing the juror to assent to or dissent from the verdict . . .” Under the Rule, a juror may testify about outside evidence or outside influence improperly brought into deliberations, but neither of those exceptions was present in this case.

The Court also said that the juror’s note is “exactly the type of internal juror dynamics that the [Rule] is designed to keep sacrosanct.” Without evidence of a threat, bribe, attempted threat or bribe, or impropriety by an officer of the court, the letter was inadmissible.

State v. Faggs

Corporal punishment, domestic violence and the defense of reasonable parental discipline; Supreme Court clarifies prior decision.

Is the “reasonableness” of corporal punishment an element of domestic violence that the prosecution must prove beyond a reasonable doubt? Or is it an affirmative defense that the accused must prove when defending a charge of domestic violence? The Supreme Court said it’s the latter.

The State of Ohio charged Clinton D. Faggs, III, with domestic violence and assault for beating his girlfriend’s son after he misbehaved in school. At trial, Faggs’s lawyer argued that his actions were a reasonable and necessary exercise of parental discipline and corporal punishment and that the prosecution failed to demonstrate that Faggs’s actions were unreasonable.

The trial court disagreed, convicted Faggs of both charges, sentenced him to four years of probation and ordered him to complete 100 hours of community service. Faggs appealed, arguing that the trial court

erroneously placed the burden of proving the affirmative defense of reasonable parental discipline on him, thus violating his constitutional right to due process. The court of appeals affirmed the trial court, finding that the burden of proving the affirmative defense of reasonable parental discipline is on the accused.

The Supreme Court affirmed. The Court looked at Ohio’s domestic violence statute and clarified its prior decision in State v. Suchomski, which “caused considerable confusion when it came time for Ohio’s courts of appeals to apply” the domestic violence statute in cases involving corporal punishment.

R.C. 2919.25(A)—Ohio’s domestic violence statute— says, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.”

By re-examining the language of the statute, the Court clarified that “reasonableness” is not an element of the crime because the statute’s definition of “physical harm” does not contain a reasonableness component.

To the contrary, the statute defines “physical harm” as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” Thus, the State does not bear a burden to prove the unreasonableness of the physical harm—the corporal punishment in this case.

Rather, in domestic violence cases, reasonableness is a component of the affirmative defense of parental discipline, and the burden is on the accused to prove it.

State v. Turner

Touching edge lines on the road alone not enough reasonable suspicion for a traffic stop.

With the amount of time we spend on the road (or used to spend on the road before the pandemic), all of us have moved within our lane, sometimes touching the white, edge line on the right side of the road. Is touching that line sufficient grounds for pulling you over? The Supreme Court said it’s not.

A state highway patrol trooper stopped Ryan Turner for a marked-lanes violation when the tires of Turner’s car touched, but did not cross, the fog line (edge line) on the right side of the roadway. During the traffic stop, the trooper charged Turner for the marked-lanes violation and driving under the influence. Turner argued that the trooper did not have probable case or reasonable and

37 | Columbus Bar L aw yers Quarterly Spring 2021

articulable suspicion to initiate the traffic stop. The trial court agreed, finding that touching the fog line does not establish probable cause that a traffic violation occurred. The court of appeals reversed, concluding that touching the fog lines is a violation sufficient to initiate a traffic stop.

Evan v. Akton Gen. Med. Ctr.

The Supreme Court agreed with the trial court. The Court analyzed Ohio’s traffic laws and regulations, including ODOT’s traffic manual upon which the relevant laws are based. The Court concluded that the white edge line on the road that Turner was driving served only to mark the right-hand edge of the road and the law only discourages or prohibits crossing the line, not driving on it or touching it.iv Thus, Turner’s touching the edge line was not a marked-lanes violation and the trooper did not have reasonable and articulable suspicion to conduct a traffic stop.

State v. Bates

2020 was full of interesting cases before the Supreme Court of Ohio. Some others include:

Brook Park v. Rodojev

Results of speed guns are admissible in court without expert testimony.

Claims for negligent hiring, retention or supervision of an employee need not show that an employee has been adjudicated civilly liable or found guilty of a crime for a plaintiff to maintain the claim.

Attorney’s failure to strike a racially biased juror amounts to ineffective assistance of counsel.

Conviction and death sentence reversed.

Buddenberg v. Weisdack

Two sections of the Ohio Revised Code that authorize civil actions for damages caused by criminal acts—R.C. 2307.60 and R.C. 2921.03— do not require underlying criminal convictions as conditions precedent to the civil actions.

Here’s to wishing that 2021 is (legally) as interesting and unpredictable. i

See R.C. 2929.28(A)(1) See R.C. 4549.02(A)(2) See R.C. 4549.02(A)(1) iv See R.C. 4511.33(A)(1) ii

iii

Bey v. Rasawehr

A civil-stalking protection order enjoining future internet posting was an unconstitutional prior restraint on protected speech and violates the First Amendment to the United States Constitution.

Saša Trivunić, Esq.

Kegler Brown Hill + Ritter STrivunic@keglerbrown.com

38 | Columbus Bar L aw yers Quarterly Spring 2021

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Bar Happenings

Family L aw and L GBT Law Joint Co mmittee Meeting

Bankruptcy Law Committee Meeting

ittee Law Comm Health Care

Meeting

“Brain Science in Collaborative Law” CLE program

“Constitutional Conversation: Freedom of Assembly & Speech” (with David Thomas and David DeVillers)

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40 | Columbus Bar L aw yers Quarterly Spring 2021

Bar Happenings

What’s Next @ the Bar? For a complete list of events, CLE programs and meetings, visit www.cbalaw.org.

SPRING 2021

may

4 may

6

may

12 may

19 june

3

june

10

Judicial Meet & Greet with Hon. Sheryl Munson • 4-5pm on Zoom The Columbus Bar Association has planned a Judicial Meet & Greet series on Zoom with the newly-elected Franklin County Common Pleas judges. These events will be hosted by CBA President Rob Erney between May 4 and June 4. More Judicial Meet & Greets: May 11 (Hon. Carl Aveni), June 4 (Hon. Lasheyl Stroud)

An Evening with #1 Bestselling Author Lisa Scottoline • 7pm on Zoom Join #1 bestselling author Lisa Scottoline to learn about her first historical novel, ETERNAL, a sweeping epic and emotional story of a love triangle set against the backdrop of Fascist Italy and the Italian Holocaust. This event is a partnership with Gramercy Books and Jewish Columbus. More info @ www.cbalaw.org.

2021 Probate Law Institute • 9am-4pm on Zoom This year’s Probate Law Institute spotlights our new Probate Judge, Hon. Jeffrey D. Mackey.

Topics include Law in the Time of Corona; The Future of “Remote” Practice; Hot Issues in Inheritance Litigation; and a View from the Bench. Approved for 6.5 CLE hours, with 2.5 Prof.

Conduct. Sponsors are CBS Agency Inc. and Reminger. Registration @ www.cbalaw.org.

Zoom Training for Lawyers on Security Issues • 1-2pm on Zoom This session explores the issues of security when information streaming using popular services like Zoom. Approved for 1.0 Prof. Conduct CLE/NLT hour.

Details and registration @ www.cbalaw.org.

Resuming Jury Trials Post-Pandemic • 12-1pm on Zoom Now that the world is used to living remotely, how does that affect the future of jury trials?

What are the courts’ future operating plans? AND how has COVID altered the composition of jury pools? Learn all of this and more during this fast-paced program. Approved for 1.0 CLE hour. Details and registration @ www.cbalaw.org.

2021 Columbus Bar Association Annual Meeting • 12:30pm on Zoom Please join us as we swear in the 2021-2022 officers and Board of Governors. We’ll also recognize outgoing Board members and 2021 award winners (Janyce Katz, Bar Service Medal and Anne Marie Sferra, Professionalism Award), and hear from incoming CBA President Charles Schneider. Registration @ www.cbalaw.org.

41 | Columbus Bar L aw yers Quarterly Spring 2021

Spring ‘21: Evolving Law

LOCAL LAWYERS’

CRYSTAL BALL 2021 Legal Landscape Following a Year of Quarantine

BY TAMI KAMIN MEYER The pervasive impacts of COVID-19 on every aspect of our everyday lives are mindboggling, and lead many to prognosticate about what lies ahead for us and our nation in the coming year.

Lawyers are no different. We constantly predict outcomes. Sometimes, we’re right. Other times, not so much. With that in mind, members of the Columbus Bar Association reveal how their law practices were impacted by 2020’s quarantine and what areas of law will be in greatest demand in 2021.

A.C. Strip, Senior Partner

Strip, Hoppers, Leithart, McGrath & Terlecky Co., L.P.A. A.C. Strip is in his 61st year of practicing law (an even more impressive number in dog years). His law practice focuses on business and insolvency.

Lawyers are no different. We constantly predict outcomes. Sometimes, we’re right. Other times, not so much.

42 | Columbus Bar L aw yers Quarterly Spring 2021

When the coronavirus caused Ohio businesses to shutter in early 2020, Strip’s workload saw a decline. But not for long. “Eventually, insolvency work came as a result of Covid. 2020 was our best year ever,” he says.

Strip is a no-nonsense kind of guy. When asked how long he worked exclusively from home after Ohio governor Mike DeWine imposed a quarantine on much of the state in May 2020, Strip retorted, “About 15 minutes. Working from home is for wimps.” In fact, Strip says his demanding practice and workstyle “never changed. Business as usual.” That included manning his office full-time, meeting face-to-face with clients and whatever else he needed to do to continue practicing law.

Strip has advice for attorneys attempting to restart their law practices as the proverbial cobwebs created by COVID-19 slowly uncoil. “Get aggressive in marketing,” he says. And, as if he’s taking his own advice, Strip adds, “Any rumors of my retirement (or death) are premature.”

STRIP’S PREDICTION FOR 2021: Insolvency will cause many business failures.

Marie-Joëlle (Joëlle) C. Khouzam, Partner Bricker & Eckler, LLP

Marie-Joëlle C. Khouzam has been practicing employment law for nearly three decades. Just as with Strip, the coronavirus proved a boon to Khouzam’s caseload.

“Unfortunately for clients, this is an area that has had a significant impact on many aspects of being an employer, and I’d like to think I was able to help them corral and manage some of those challenges,” she says.

Working from home at the onset of the pandemic proved challenging for Khouzam, at least initially, because of the volume of information upon which her practice relies.

“It was very hard to interpret, distill and distribute large quantities of information coming out of the federal

government and to have answers to many interesting client questions. Sometimes the Department of Labor was updating information before we’d even understood the last publication, and sometimes the IRS was publishing something that seemed to contradict or not align with what the DOL was saying. In short, there were days that a Magic 8 Ball might have been helpful.

After digesting hundreds, if not thousands, of pages of new and evolving regulations, we are ready for the next inevitable wave of change,” she says.

RE HA PLY TR Y A ZY, GA IN

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Despite its challenges, Khouzam worked from home just shy of 12 weeks. She is now back to working fulltime in her downtown Columbus office, meeting with clients and conducting business as usual. She relies on Zoom to maintain in-office relationships, since not all of her colleagues have returned to the workplace.

Khouzam’s advice for lawyers as they return to a brickand-mortar location to practice? “Keep networking, however you have to do it.”

KHOUZAM’S PREDICTION FOR 2021: Employment, health care, corporate restructures/ creditors’ rights attorneys will be busiest.

Kendra Carpenter Carpenter Family Law, LLC

Kendra Carpenter is a domestic relations practitioner who represents clients in divorce, dissolution, child custody and child support matters. She has been practicing 20 years.

As fate would have it, Carpenter had relocated her office in March 2020. Almost immediately, “the nation went into lockdown.” She practiced from home, but not for long.

“I was going stir-crazy. My new office isn’t crowded, so I felt comfortable going back in,” she says.

Even when working from home, Carpenter worked fulltime, just as she does today. “For the most part, I’ve always been heavy into emails and phone conferences with clients, so that didn’t change much. I haven’t had many interested in Zoom calls. I built plexiglass dividers in our large conference room and have held client meetings and depositions in there with no trouble.

Some of my colleagues agreed to use my conference room solely because of the dividers, and then went on to get their own. That ‘small’ investment went a long way,” she explains.

Carpenter’s advice for attorneys rekindling their law practices includes tips for both personal and professional stability. “Be good to yourself and find an outlet to relieve stress and to be positive.”

As for returning to work, she suggests attorneys “rethink the process of practicing law.” Consider what technology will best support efforts at representing clients most effectively.

She also advises lawyers to create a space where clients feel comfortable coming. “People want to feel safe in this time of uncertainty and misinformation. Though courts are operating in a limited capacity, find a way to bring this into the client narrative – “Yes, the case may take a little longer, but here’s something we can do…”

Assure them and offer solutions,” says Carpenter.

CARPENTER’S PREDICTION FOR 2021: Family law and criminal law practitioners will be busiest of all attorneys, because the isolation and limits on people’s freedoms are taking their toll on them.

Tami Kamin Meyer, Esq.

attorneytkm@gmail.com

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45 | Columbus Bar L aw yers Quarterly Spring 2021

Spring ‘21: Evolving Law

To Plant a Seed:

THE RAPIDLY GROWING

CANNABIS INDUSTRY

by CHAD BLACKHAM

Despite cannabis remaining illegal under federal law and being classified as a Schedule I drug under the Controlled Substances Act, U.S. legal cannabis sales exceeded $15 billion in 2020 alone, and the industry has already created 300,000 new jobs in the U.S. Given the continuing federal prohibition of cannabis, a natural question arises: “how can a new, federally illegal industry emerge so quickly?”

The first notable piece of legislative reform occurred when California voters passed Proposition 215 in 1996, making California the first state in the union to permit the use of medical cannabis. Since then, 35 states, including Ohio, have enacted similar laws or legalized recreational cannabis use.

Despite being a Schedule I drug, recent years have seen the federal government largely adopting a policy of nonintervention with regard to state cannabis regimes.

During the Obama administration, Deputy Attorneys General David Ogden and James Cole promulgated a department-wide policy of non-interference with

The cannabis industry’s growth is also notable in that it reverses a nearly century-long trend in American culture of stigmatizing cannabis usage, both politically and socially. As a consequence, the industry is also more tightly regulated than most and faces unique hurdles pertaining to compliance.

46 | Columbus Bar L aw yers Quarterly Spring 2021

cannabis businesses operating in compliance with state regimes, in a series of documents referred to as the Ogden and Cole Memos.

Additionally, continuing legislative renewal of the Rohrabacher-Farr Amendment prohibited the Justice Department from allocating funds to interfere with the implementation of state medical cannabis laws.

President Trump’s first attorney general, Jeff Sessions, raised concerns among cannabis advocates by rescinding the Cole Memo, though ultimately the administration’s stance remained one of nonenforcement. Then, on June 8, 2016, Governor John Kasich signed House Bill 523 into law, authorizing the creation of Ohio’s Medical Marijuana Control Program.

The bill created a unique regulatory triumvirate by assigning oversight of dispensaries to the Ohio Board

of Pharmacy, regulation of cultivators, processors and testing facilitates to the Department of Commerce, and regulation of physicians to the State Medical Board.

A new Medical Marijuana Advisory Board was also created to provide recommendations on the program.

In late 2018, Congress passed the 2018 Farm Bill. Under the bill, farmers could now grow hemp, defined as cannabis containing .3 percent or less tetrahydrocannabinol, and process cannabidiol derived from such cannabis. The bill also required states to submit proposed regulatory schemes to the U.S. Department of Agriculture for approval and developed a licensing framework for hemp farmers.

Because of the federal prohibition on cannabis, the nascent industry’s rapid growth is all the more eyecatching. The reasons are multifaceted, but a key factor is consumer demand. The first states to legalize cannabis saw high interaction from both domestic and national consumers, the latter of whom often viewed cannabis as a tourist attraction. These states, able to benefit from increased tax and sales revenue, were hesitant to interfere or disrupt. Additionally, the

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continuing federal policy of non-enforcement meant that states felt empowered to continue enacting cannabis reform. In many ways, this has led cannabis to be a unique exemplar of the federalist principle that the states should be viewed as “laboratories,” free to experiment with their own laws and policies, and to arrive at the best result.

The cannabis industry’s growth is also notable in that it reverses a nearly century-long trend in American culture of stigmatizing cannabis usage, both politically and socially. As a consequence, the industry is also more tightly regulated than most and faces unique hurdles pertaining to compliance, such as highly technical standards and the threat of state enforcement.

Furthermore, because of the federally illegal status of cannabis, regulation is left up to each individual state.

Nationally based operations must contend with a patchwork of divergent, and sometimes contradictory, legislation.

As a young industry, cannabis is exceptionally challenged as it faces a regulatory onslaught on

multiple, similarly emergent, legal fronts. Cannabis companies must handle and store employee and patient personal information, which invokes numerous state privacy laws. In most states, businesses are generally required to retain employee thumbprints or retinal information, which introduces biometric security laws. Cannabis companies that employ software billing systems and retain patient identifying information must implement security breach and cyberattack protocols. These companies often collect consumers’ telephone numbers for text or call purposes, requiring compliance with the Telephone Consumer Protection Act, which itself was recently subject to fundamental change in the Supreme Court’s ruling in Facebook v.

Duguid. The coronavirus pandemic has forced cannabis businesses to adapt to consumer concerns and has necessitated changes including contactless delivery and curbside pickup, with such changes often being made in conjunction with state regulatory bodies such as was the case in Ohio. And the coronavirus has raised additional novel questions regarding the enforcement of force majeure clauses, a boilerplate element of many cannabis contracts.

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Although President Joe Biden has stated he does not support full legalization of cannabis, big changes are likely coming down the pipeline in 2021. Cannabis legalization has become a bipartisan issue with a majority of voters on both sides of the aisle in support. Current proposed legislation includes the SAFE Banking Act, which would provide cannabis companies access to FDIC insured banks, and the MORE Act, which would decriminalize cannabis entirely and enact sentencing reform for non-violent drug offenders. Other proposals include rescheduling the status of cannabis. However, states are likely to continue implementing additional legalization measures in the meantime. For example, New York, New Mexico, and Virginia all legalized adult-use cannabis in April 2021.

Despite cannabis facing significant hurdles at the federal level, there is great reason to be hopeful for the industry’s success. The industry has grown exponentially over the past decade, and some estimates project that the market could increase to $100 billion by 2030. Public sentiment continues to evolve in a pro-legalization direction that is likely to chip at the rigid stance historically adopted by the executive branch.

Cannabis businesses themselves continue to achieve historic revenue and may soon have greater financial legitimacy following the likely passage of the SAFE Banking Act. Though the

industry’s legal evolution is far from established, the next few years point toward increasing success for businesses and greater adoption among states and consumers as cannabis continues to grow to new heights.

Chad Blackham, Esq.

Mac Murray & Shuster cblackham@mslawgroup.com

49 | Columbus Bar L aw yers Quarterly Spring 2021

Spring ‘21: Evolving Law

POLICE VIDEO AND PUBLIC RECORDS: The New Rules

by MARK R. WEAVER

TV news and the internet often feature videos of pets, sports highlights and– everyone’s favorite category–dumb people doing dumb things. Now, there’s a new contender in videos vying for your attention: cameras worn by police, known as body-worn cameras.

It’s important to distinguish between two kinds of videos that might be available at your local police department. The first category covers police body-worn camera and dashboard camera footage. These records – created by the law enforcement agency itself – should be released to the public, unless one of 17 statutory exceptions apply.

More on that later.

Until 2019, Ohio law concerning public accessibility of this footage was as inconsistent and hard to follow as your drunk friend’s explanation about how he lost his shoes. But, after years of lobbying from groups with opposing views on how and whether to release body-worn camera video, Ohio lawmakers finally set standards that clarify what can be released.

The other category of footage police maintain is video supplied by others. Think bystander phone videos or images captured by security or doorbell cameras.

Police don’t create these records, but they do collect them during investigations. While fitting the definition of a public record in R.C. 149.011(G), such videos would likely be protected from release as a confidential law

50 | Columbus Bar L aw yers Quarterly Spring 2021

enforcement investigation record.

That exception lasts through the end of the criminal trial or until prosecutors determine that no case will go forward. Then, the records can be released unless some other exception applies.

One exception to the rule of keeping footage confidential until the first trial is over is security camera footage created by a public office, such as surveillance footage of a government building’s lobby.

Surveillance video like this was at issue in a case where a vengeful litigant ambushed and tried to kill a judge walking near the Jefferson County Courthouse. Luckily, the judge was carrying a handgun (prosecutors and judges are permitted to carry concealed weapons, including in courthouses) and was able, with the help of a nearby armed probation officer, to stop the attack. An exterior courthouse security camera captured the incident and – you guessed it – the media immediately requested a copy. After months of litigation, the Ohio Supreme Court, in Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ordered the video released.

Bystander and security camera videos are often voluntarily publicized by whoever made the recordings.

Their desire to score social media buzz often leads them

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to post it before police collect it for an investigation.

When detectives do obtain such private footage, it becomes that agency’s record and – despite their ability to withhold it as a confidential law enforcement investigation record – police may choose to proactively release it to, for example, seek public assistance to apprehend suspects. As is true with nearly all purposeful release of records that could otherwise be

Since body-worn cameras go everywhere an officer goes, the legislative considerations about what to release are more complex.

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withheld, the record provided will then be available to anyone who asks for it, until destroyed pursuant to a records retention schedule. The release essentially creates a waiver of future ability to withhold that record.

are “yellow-light” records. This includes attorneyclient privileged materials (the client may release), government trade secrets and confidential law enforcement investigatory records.

Not every release of confidential records constitutes a waiver. Recently, I was the special prosecutor tasked with charging a sheriff who ignored mandatory confidentiality statutes regarding child abuse records and posted them on the internet. The jury convicted the sheriff and he resigned from office. The lesson? If a statute protects a record from release, a public records practitioner should determine if that statute mandates or permits withholding the record.

A public official who releases a record that is, by statute, a yellow-light exception creates a waiver – a bar from withholding that record again. Conversely, a public official who releases a record that the law designates as a red-light exception risks going to jail for 180 days.

The offense is not listed in Title 29 (where most criminal offenses are found), but rather at R.C. 102.03(B).

In the public records law classes I teach, I use a traffic light analogy to illustrate this concept. Records prohibited from release are “red-light” records.

Examples include LEADs database criminal history reports, tax returns filed with the state, HIV test results and – as one now former sheriff discovered – child abuse reports. Records that a public office may permissively withhold based on an exception

Now that you understand the public records status of video that police obtain after someone else filmed it, let’s focus on the first category – body-worn and cruiser cam video. While R.C. 149.43 (A)(1)(jj) places body-worn camera and cruiser cam footage in the same category, the difference in these two types of video creates different policy impacts. For example, unless a police cruiser drives through your living room window, a dashboard camera is unlikely to film you in your underwear, watching The Masked Singer and

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binge eating chocolate-covered pretzels. The footage a dashboard camera collects is almost always in a public area, where the expectation of privacy (and the likelihood of encountering people in their underwear) is reduced.

Since body-worn cameras go everywhere an officer goes, the legislative considerations about what to release are more complex. In any given shift, an officer wearing such a camera can be in the bedroom of someone who reported a prowler, the hospital room of a rape victim, or a public bathroom where someone overdosed on fentanyl. Advocates for police warned legislators that privacy issues raised from footage taken in places like that indicated that body-worn camera video should have significant restrictions on release. On the other side of the argument were news media lobbyists and critics of police, who urged as much openness as possible. Working with these competing factions, legislators created a general rule of openness for these videos, with 17 specific exceptions from release.

These exceptions are self-explanatory and, as of this writing, no courts have interpreted them. A few examples shed light on how lawmakers sought to balance the interests between victim/officer privacy and the desire for transparency. One exception says that an agency may withhold footage that depicts “the death of a person or a deceased person’s body, unless the death was caused by a peace officer.” Another: agencies may withhold footage that depicts “a conversation between a peace officer and a member of the public that does not concern law enforcement activities.” Other exceptions protect images of children, household interiors unless an adversarial encounter occurs there, and personal

information of someone questioned but not charged by police. In some cases, the subject of the recording can waive the agency’s withholding of the record. If a lawsuit ensues, a judge can balance the competing interests – an option not available to courts in cases involving most other public records.i As more Ohio police agencies mandate that officers wear cameras to record their work, courts will further explore these issues. Until then, to better understand which ones can be withheld from public records release, grab a bag of chocolate-covered pretzels and review the 17 statutory exceptions at R.C. 149.43 (B) (15-17). It’s a better use of your time than watching The Masked Singer, anyway. i

R.C. 149.43(H)(2).

Mark R. Weaver

Isaac Wiles mweaver@isaacwiles.com

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Spring ‘21: Evolving Law

Compensatory Education & Recovery Services:

COVID-19 CONSIDERATIONS FOR STUDENTS ON

IEPs & 504 Plans

by LAUREN A. SABO

On March 12, 2020, Governor DeWine ordered all of Ohio’s public, community and private K-12 school buildings to be closed due to the ongoing coronavirus health crisis. If a school district closed to prevent the spread of COVID-19 and did not provide educational services to the general student population (whether via in person or virtual instruction), then the district was not required to provide services to students with disabilities during that time period.

However, once schools resumed, the district, to the greatest extent possible, was required to make every effort to provide special education and related services to the child in accordance with their Individualized Education Program (IEP) or 504 Plan.i Schools had a lot of flexibility in how to provide these services to students throughout the pandemic, but ultimately, the requirement for schools to provide Free Appropriate Public Education (FAPE) to students receiving special education services was not waived due to the COVID-19 pandemic.

Compensatory Services Although compensatory services (also called compensatory education or comp ed) are not addressed in the Individuals with Disabilities Education Act (IDEA) or other federal or state regulations, most state education agencies have released guidance surrounding compensatory education as well as the potential for recovery services that may be needed as a result of COVID-19 school closures. Compensatory services are educational services above and beyond what is normally due to a student, resulting from a failure of the school to provide those services under a child’s IEP or 504 Plan. The purpose is to place the student in the position they would have been in if the school had provided the appropriate services, or to “compensate”

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the student for learning and skills that were lost when special education and related services were not provided. Under compensatory services, there is no obligation to provide a minute-by-minute or day-for-day compensation for the time missed, although sometimes it is determined that missed services will be calculated by minutes or days and made up as an equitable remedy. However, in some cases, comp ed could be more than what was lost depending on the child’s circumstances as each situation should be determined on a case-by-case basis.

Recent case law has established that “whereas ordinary IEPs need only provide ‘some benefit’, compensatory awards must do more – they must compensate.”ii However, since school building closures were due to a

public health emergency, the typical framework used to determine whether or not compensatory services should be provided may not be appropriate under the circumstances, as most school districts did not outright fail to provide FAPE. Rather, they were unable to provide a Free Appropriate Public Education because of state-mandated school closures.

Notably, if the child with a disability was refused services by a school district or did not receive services or instruction during building closures while students in general education were receiving services, then actual compensatory services may be warranted.

Recovery Services As school districts begin to return to normal, most are planning on how best to meet and transition the needs of students who receive special education and related services during such an unprecedented time.

Since school building closures were due to a public health emergency, the typical framework used to determine whether or not compensatory services should be provided may not be appropriate under the circumstances, as most school districts did not outright fail to provide FAPE.

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Many states have announced recovery services or COVID-19 specific compensatory services, which refer to services determined by the IEP or 504 team needed to remedy a student’s skill regression, behavior loss, and/or lack of progress that resulted from a school district’s inability (not intentional failure) to provide FAPE during an unavoidable closure. Recovery services should be considered only after a period of recoupment is assessed. This occurs when a student receives the services set out in their IEP or 504 Plan for a set period of time once schools reopen, thus allowing them time to “recoup” the lost skills or behavior or to make progress to the level(s) determined appropriate by the IEP or 504 team prior to the extended school closure. If the student continues to show gaps in their learning and skills after this period, they may need additional supports and services to “recover” from the

interruptions in the delivery of their services during COVID-19. Recovery services are also not defined in the IDEA but have been increasingly used to describe a school district’s response to the gaps in student learning caused by COVID-19 and the school closures beginning in the 2019-2020 school year. As with compensatory services, recovery services should be based on a child’s individual needs, assessments and progress documentation.

ESY Services Compensatory and recovery services are not the same as Extended School Year services (ESY). ESY services provide individual instruction and services to a child in order to prevent the severe or considerable loss of skills or learning during time outside of the regular school year. ESY services are not dependent on the

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appropriateness of services provided in an IEP or 504 Plan, and a child may be entitled to ESY services as well as compensatory or recovery services. These services may look similar in practice and delivery but should be made on an individualized determination based on what is necessary for the child to make meaningful progress in the least restrictive environment.

A child is not automatically entitled to compensatory, recovery or ESY services by virtue of state-wide school closures alone. Parents and guardians of children with disabilities should know the difference between these services to which their child may be entitled. School districts should never pressure families to waive special education services, including compensatory, recovery or ESY services. Families and schools should work together to determine what educational services will be provided based on the individual student’s needs. Ultimately, due to the nature of the shutdown resulting from a global pandemic, education agencies and courts will likely show deference to the emergency determinations made by school officials during this unprecedented time. Parents should regularly communicate with their child’s school and document these conversations about the potential for additional services related to COVID-19.

What happens when we work together?

Central Ohio is healthier.

To assist your clients in fulfilling their charitable interest in health and wellness through the CMA Foundation, please contact: Weldon E. Milbourne 614.240.7420 wmilbourne@cmafohio.org

•

Key Points/Recap •

•

•

•

If a school district intentionally fails to provide FAPE to a child with a disability, they may be entitled to compensatory services.

If a child with a disability tends to regress after long break periods, they may be entitled to extended school year services.

If a school district was unable to provide special education and related services to a child with a disability during a school closure, and the child has not made progress in their learning after a period of recoupment, they may be entitled to recovery services.

A child with a disability is not automatically entitled to these services due to COVID-19 school closures;

i ii

rather, the determination of services should be made on an individualized basis by the IEP or 504 team.

Compensatory, recovery and ESY services can be provided over an extended period of time but should be provided in the least restrictive environment for students receiving special education.

34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504) Reid ex Rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005)

Lauren A. Sabo, Esq.

Albeit Weiker, LLP lauren@awlawohio.com

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Student Section: Observations from Law Students

WHERE TO INVEST YOUR TIME:

Law Review or Moot Court?

by EMILY L. SMITH

By now, you’ve probably heard about your school’s Law Review Journal or Moot Court Team, but you may not know enough about either to decide where, or whether, you want to invest your time.

While there are some students who choose to participate in both, many students simply do not have the time. As a current 2L student who is both a law review staff member and a moot court team member, I hope this article gives both incoming and current 1L law students some basic information about each academic endeavor.

The Basics:

Law review is a student-run journal that publishes articles from both academic scholars and students exploring novel and interesting aspects of the law.

Students are responsible for connecting with authors, choosing articles and editing them according to

STUDENT SECTION

law review standards. There is a workflow hierarchy that includes an editor-in-chief, a managing editor and several other positions that all share different responsibilities regarding editing and publishing.

Moot court is a competition in oral advocacy. There are a number of competitions throughout the country, all of which are specific to an area of law. A school’s team typically consists of two to three individuals, and perhaps some fellows, who share the responsibility of writing a brief that responds to a hypothetical and

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relevant “appellate court opinion.” Each team also has at least one volunteer coach, typically a lawyer in the community. At the competition, each team participates in multiple rounds of oral arguments, arguing as counsel for both parties, regardless of which side the team brief represents.

Requirements for Joining:

Generally speaking, after the first year of law school, law review will invite somewhere between the top 1020 percent of students to become staff members for the next year’s volume. Those who are not invited are often able to participate through a summer write-on competition. If being invited onto law review is your goal, then first-year grades should be your top priority.

Moot court typically has a more holistic approach to member selection. For 2L students who wish to be team members, considerations include a review of a resume, transcript and grades in specific classes that demonstrate moot court skills (such as appellate advocacy). For some schools, moot court is a less sought-after academic pastime for students, and thus positions are easier to achieve. If you feel like you aren’t quite up to the commitments of law review, do not overlook moot court as a possibility.

Moot court and law review are both considered high achieving academic extracurriculars, and both certainly look nice on a resume.

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Generally speaking, after the first year of law school, law review will invite somewhere between the top 10-20 percent of students to become staff members for the next year’s volume.

Additionally, many moot court teams allow 1L students to become fellows. There is a lot less involvement as a fellow, as they typically do not compete, but it is a tremendous learning experience if you want to become a team member the following year. It looks pretty good on a resume going into 1L summer job interviews.

Time Commitments:

Time is probably the biggest consideration in deciding whether to join (or return the following year) to one of these activities.

The 2L students on the law review are generally staff members that assist 3L students in checking

the citations for articles. The 3L students, in their respective roles, take the first pass at the articles for some basic formatting and editing, and those versions are then passed on to the staff members who locate sources for citations. Depending on the length of the article, the number of citations, and your knowledge of the Blue Book, each “citation check” can take varying amounts of time.

Additionally, each 2L staff member is required to write a student “note” or “comment” on any legal issue of choice. Student articles are tough to write; there’s very specific formatting and style requirements, and it is a very time-consuming (and usually weekend) project. In addition to classes, externships, jobs and interviewing for jobs, it can feel a bit overwhelming.

For most, law review commitments eat up time from August until the end of February. I looked back at the time I spent this semester from August through January on all things law school (including reading for class, time in class, externing, applying for jobs, law review, moot court, etc.), and in total, it equals 875 hours. Of those 875 hours, I’ve spent roughly 100 on law review, which is about 11.5 percent of my time. There’s still one month to go, including one more cite check and final student notes, but hopefully that gives some idea of the time commitment required for Law Review as a 2L student.

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Moot court is a different ball game. Teams are typically busy for a shorter period of time during the year based on the dates of the release of the problem, the final brief and the competition itself. For my team, our problem was released in mid-October, briefs were due in January and the competition was at the end of February. Researching and brief writing takes up the first few months, and then mooting practices take up the back few. To give a similar idea regarding time requirements, I’ve spent roughly 50 hours from August through January, or 5 percent of my time, on all things moot court. At this point in the year, there are still 13 more practices and the competition, so it’s a tough call deciding which academic extra is truly more time consuming, as practices can be lengthy and the competition can take a full weekend.

Academic, Career, and other Benefits:

Both law review and moot court offer some academic benefits, including one or two credits toward graduation.

In addition, if students successfully write a student note or comment, law review can satisfy the upperlevel writing requirement needed to graduate and allow students the opportunity to become published. Nearing the end of your time as a 2L staff member, you may also have the ability to apply to a higher-level position within law review, giving you an additional resume boost, and potentially a decent stipend. Moot court also has an executive board, typically run by 3L members, and these positions allow students to be more involved; and, again, they offer a nice resume boost.

Moot court and law review are both considered high achieving academic extracurriculars, and both certainly look nice on a resume. Both allow opportunities for networking with classmates, but moot court allows for networking within the local legal community. During the short span of time while practicing oral arguments, team coaches connect with their fellow lawyers and judges and ask them to participate in practices. This experience is unlike others in law school – not only do you get to practice your oral advocacy skills, but

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Group, Individual and Family Health Insurance for Columbus Bar Association members

Group Health, Vision, Dental, Life, Disability

John Susie: (614) 890-7373 x129, jdsusie@nubgroup.com We have teamed up with HEMA to offer you a wide range of Health Insurance.

John Susie is located in the CBA offices to provide personal help for your firm.

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Individual and Family Health

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In the complex, highly regulated health insurance world, the CBA wants to have an expert to assist members with their questions. (For individual employees and their families)

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Suzanne McClain: (614) 448-1834, suzanne@nuMedicareAdvisors.com When the time comes to enroll in Medicare, you’ll have questions about all your options.

Suzanne will meet you at your office, our office, or at the CBA offices to go over your options.

you get feedback from professors, lawyers and judges from different practice areas about both your legal arguments and your presentation. In my opinion, it is an invaluable experience.

How Do You Choose?

It is difficult for students to have the time and energy to do both law review and moot court. It is manageable, but that is a subjective assessment for each person to make. Law review is admittedly more of an introverted extracurricular, as you spend a lot of time reading and fine-tuning citations. Moot court is arguably a more extroverted experience. To determine what is right for you, think about what is important for you. Are you hoping to get an offer at a top firm? Are you going to pursue a judicial clerkship? If so, your goals might be better served by law review (note that many judicial clerkships actually require participation in law review in order to apply). However, if you are hoping to gain practical experience in public speaking, or if you hope

to be a litigator or trial attorney, moot court might better serve your interests. While law review doesn’t directly teach as many practical skills as moot court, it does offer an opportunity to hone writing skills and potentially become published. Moot court has a more practical application, as participants are able to practice research and writing, as well as oral advocacy.

My advice: really consider how you want to spend your time, what skills you want to improve and what you think is going to benefit you in the long run when pursuing job opportunities.

Emily L. Smith

Law Student Capital University Law School

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T h e C o l u m b u s B a r A s s o c i a t i o n i s O h i o’ s N o t a r y P u b l i c R e s o u r c e C e n t e r

Want to Become an Ohio

NOTARY?

www.cbalaw.org/notary

The Columbus Bar Association is an authorized education and testing provider for traditional notaries under the Ohio Notary Public Modernization Act. If you want to become a notary public or renew your existing commission, we’ll assist you with each step of the process. From your background check and required education and testing to your stamps and supplies – we are Ohio’s Notary Public resource center.

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Life Outside the Law

Lawyers

Artistic License:

Justice Evelyn Stratton Lundberg (Retired)

BY HEATHER G. SOWALD

Justice Evelyn (Eve) Stratton Lundberg, retired, is always looking for the next challenge, whether it is a new project, job, life event or artistic endeavor.

Of the latter, her creative outlets have spanned from piano playing to writing short stories and poetry, from hand-carving and decorating special occasion cakes to trying out different painting techniques and styles.

Jack Lundberg, a paralegal she met during her second judicial campaign.

Eve was subsequently appointed in 1996 to a seat on the Ohio Supreme Court, and was reelected several times. She discovered new passions while serving on that court, advocating for stronger state and national

Eve and her siblings were raised by missionary parents in southeast Asia, attending boarding schools in Thailand and Malaysia. After a school assignment to write poetry, she continued to craft poems based on her observations of life and society. Eve also took up painting, piano and organ. She was the piano accompanist for the choir at her South Vietnam boarding school, a role she would continue later in Texas for her college choir and travelling quartet, and in Columbus for church services and its choir.

Eve made her way to Texas at age 18, and then to Ohio for college and law school (J.D., O.S.U. 1979). During this time, she met and married her first husband, and they had their now adult sons, Tyler and Luke Stratton.

Eve practiced law at small civil defense law firms until 1989, when she ran for and was elected the first female Franklin County Common Pleas court judge. After her first marriage ended, she later met and married

Spring Flowers in the Meadow

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Eve continues to write both rhyming and free verse poetry, usually highlighting societal contrasts, such as homemaker versus suited-up female attorney. adoption regulations and mental health services.

She formed task forces and services across Ohio and the country and continues to be a frequent speaker on these issues, assisting others to create such needed programs.

While Eve was on the bench, she resurrected her high school enjoyment of painting. She began with oil paints. However, Eve admits to being an impatient painter, and oils took too long to dry, so she moved on to acrylic paints and pastels. Her paintings are of animals and outdoor scenes. Now Eve wonders what to do with the rest of her many painted and stored canvases!

In 2016, Eve stepped down from the Court and joined the Vorys firm ‘of counsel’. She admits that she has not picked up a paintbrush since then, although she doesn’t rule out resuming that hobby.

Eve has, however, continued to pursue other creative outlets, including crafting birthday and special occasion cakes. She began making theme cakes for each son’s birthday. The themes have ranged over the years from teddy bears and trains to lightsabers, shields

and swords. Eve bakes the cakes in square or round pans, and then cuts and pieces the shapes together to create her desired form. She finishes them off with decorative frosting and icings, considering them “definitely home-made.”

Leopard in Jeep’s Headlights

Thai Fishing Boats at Sunset

Eve continues to write both rhyming and free verse poetry, usually highlighting societal contrasts, such as homemaker versus suited-up female attorney.

She also expanded into writing short stories, which tend, she says, to be sci-fi in nature.

Her current project is working on the “best of” photo albums for each of her sons and taking care of family members. She is thinking that maybe she’d like to take up clay sculpture or perhaps furniture making, or maybe she’ll use her old tins of eye shadow make-up and paint with those as a “makeup artist.” There is still a world of creativity for Eve to explore with talent and enthusiasm.

Heather G. Sowald, Esq.

Sword and Shield Cakes

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com

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Life Outside the Law

The Importance of

SELF-LOVE

BY SCOTT R. MOTE, ESQ.

In Alcoholics Anonymous, we recite the Serenity Prayer at every meeting: [Higher Power], grant me the serenity To accept the things I cannot change; Courage to change the things I can; and wisdom to know the difference.

This is a powerful prayer, which asks a Higher Power to help us love and accept ourselves no matter what we have done in the past, what we do in the present or what we might do in the future. It helps us recognize what we can change about ourselves to lead healthier lives. We can also think about this saying as a way to help us love ourselves.

Self-love is a basic human necessity. It means loving all parts of yourself: accepting your flaws and weaknesses, taking charge of your emotional, mental and physical well-being. Practicing self-love does not mean you are selfish or narcissistic. It means that you are taking the steps to be the best you to live a healthy and meaningful life.

I first learned about self-love in AA many years ago. I learned that once I started loving myself, it was much easier to create meaningful relationships, I slept better and I had a better mentality on life, among many other things. As lawyers, we are responsible for other people’s problems. We help them with all parts of life, whether it’s buying a house, getting help for unfair employment practices, gaining custody, getting justice for a crime,

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We all make mistakes. Let me be clear.

You are going to make mistakes. You will fail. We all do! It’s how you recover from that mistake that matters. Forgive yourself. etc. We are constantly helping and thinking about others’ issues, but it is very important that we take care of ourselves and learn how to love ourselves.

So what can we do to love ourselves?

Be aware of the negative voice inside your mind Have you heard it? The negative thought that pops into your head when you make a mistake, when you say the wrong words, when you wake up in the morning, when you are late? It might tell you that you are stupid, that you are ugly, that you are not good at your job.

Learn to recognize these thoughts and challenge them. Replace them with something positive. For example, if you double-booked meetings, if the voice tells you that you’re unorganized and a failure, tell yourself that you will do a better job of keeping your calendar up to date. If you wake up in the morning and look in the mirror and the voice tells you that you are ugly and old,

squash it. Tell yourself that you look pretty good for your age! Just as we start to believe our negative thoughts, if you replace them with positive affirmations, you will start to believe them.

about a mistake will only cause a grudge, and grudges hold negative energy. Release that energy. Forgive yourself.

Put an end to toxic Forgive yourself relationships We all make mistakes. Let me be clear. You are going to make mistakes. You will fail. We all do! It’s how you recover from that mistake that matters. Forgive yourself.

Holding on to negative feelings

A dysfunctional family member, a bitter friend, a nosy neighbor, a jerk law partner (yes, they exist!). These are just a few examples of toxic people. Think about the people who make you feel drained, confused,

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guilty, abused or taken for granted. You need to remove these toxic relationships from your life. A good friend of mine had a toxic relationship with his mother. She abandoned him when he was young, but then tried to make up for it when he got older and had a family of his own. After a couple years of trying to reconcile with her, he realized that she did not change. She was still her narcissistic self, she manipulated him and she brought back tragic memories from when he was a child. This affected his relationship with his wife and his children.

He finally realized that he could not have a relationship with her. It was toxic. Once he removed her from his life, his entire view of life changed for the better. Sometimes we don’t even realize that people are toxic, but once you remove them from your life, you can feel that a huge weight has been lifted.

to meet everyone’s demands and say yes to their invitations. It’s ok to say no. If saying no is difficult for you, try: “Thank you for the invitation, but I have a prior engagement,” or, “I would love to attend your event, but I have already committed to another event.”

It’s ok to say no

Many people believe that it’s their job to make others happy. This is far from the truth. For example, your significant other hasn’t been happy at their job. Every night you coach them and try to fix their problem. You start feeling stressed because you feel helpless and cannot fix it for them. There’s a difference between loving and supporting someone and trying to fix their

You are invited to several parties, lunch gatherings, soirees and galas. Your best friend is stressed and wants to get together to talk, your workload is heavy, your client needs you to review paperwork, you have to make time for your child’s holiday play and your mom wants your help baking cookies. It is nearly impossible

If you are having trouble determining if you should say yes or no to the invitations, set up criteria based on your values. Ask yourself questions, such as: “Do I really want to do this? What do I gain from doing this? Does it interfere with family events?” This will help you choose wisely.

It’s not your responsibility to make other people happy

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problems in hopes that they will be happy. We cannot change how others feel. Your spouse is responsible for their own emotions. What you can do is support them, love them, listen to them and give them advice, but you cannot change the way they feel. They own those emotions. The truest source of happiness comes from within.

Don’t forget about self-care Don’t forget to eat a healthy diet, get enough sleep, and exercise. There is only one you, and you are special. You deserve to be loved and treated with respect. That love starts from within.

Scott Mote, Esq.

Executive Director Ohio Lawyers Assistance Program smote@ohiolap.org

If you find that you are 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

69 | Columbus Bar L aw yers Quarterly Spring 2021

Life Outside the Law

REMOTE, ONLINE

NOTARIES

What It’s All About, and How It Works

BY TERESA SCHARF

On Sept. 20, 2019, many aspects of notary commissions in Ohio changed. SB 263, the Notary Modernization Act, was passed by the Ohio legislature, making, among other changes, a provision for remote/electronic online notarizing of documents.

It entails new and additional requirements, including completion of a course of instruction approved by the Secretary of State and successfully passing an examination with a minimum score of 80 percent based on that training.

The Notary Modernization Act also places new requirements for obtaining and renewing a traditional notary commission.

What It’s All About The Paralegal Association of Central Ohio worked in collaboration with the Columbus Bar Association to prepare its members for these changes. PACO

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sponsored a CLE presented by Jill Snitcher, executive director of the CBA, who spoke about this topic at PACO’s General Membership meeting in February 2019, so we were ready and equipped with the information we needed. But experience is the best teacher, so I’d like to share from a personal perspective some of what I’ve learned so far.

Coincidentally, I had to renew my traditional notary commission shortly after the new law was enacted. I considered taking the extra step to become a Remote Online Notary (RON) as well, since a current traditional notary commission is required before obtaining the RON authorization and I was preparing to renew my traditional commission under the new rules anyway. But it was decided that the additional training (and cost) for authorization wasn’t warranted – it is expensive, and it is a very involved process. Had I known what the coming months would bring with COVID-19 and all the restrictions that ensued because of the pandemic, I’ll bet that I would have pursued it at the same time when I renewed my traditional notary commission. Later, in the summer of 2020, I completed the training, successfully passed the exam, and qualified as a Remote Online Notary.

The next step was researching and selecting a software product that is approved by the Secretary of State. Once that was completed and a contract was executed with the software company, I notified the Secretary of State and was issued authorization commissioning me as a RON.

How It Works The software platform has three components: (1) document preparation, (2) Knowledge-Based Authentication of the signer whose signature will be witnessed and/or notarized and (3) an audio-video program with which to meet the signer. Each interaction with a signer is recorded. (Ironically, the platform that I’m using has Zoom integrated with it.) The platform also creates an audit trail, or electronic log, documenting each encounter between the RON and the document signer.

That was just the beginning. Then it got real.

After completing the required training and passing the exam, a RON must establish an account with a software platform approved by the Ohio Secretary of State in order to exercise the notarial duties. This usually involves licensure by the software company. After completing my application and uploading my certificate of completion onto the Secretary of State’s website, I identified (as required) the software programs that I intended to use: DocuSign and Zoom. To my dismay, my application was denied, as neither of these options, when used independently, meet the Secretary of State’s guidelines for online notarization.

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1. There are steps that the RON must complete in preparing the document(s) to be notarized. This process is designed by the software platform.

2. T he individual(s) who will be executing the document(s) must complete a Knowledge-Based Authentication process to verify their identity, during which they will need to provide certain personal information in a secure application.

3. T he RON schedules a web meeting with the signer(s), during which they will meet and the signer will complete step (2) above, followed by executing the document(s).

After the document(s) have been executed, the transactional data created, specifically the electronic journals and audio-video recordings, must be saved and stored electronically by the RON for 10 years. Upon expiration of the RON’s commission and authorization,

the data must be uploaded to the Ohio Secretary of State’s website, who will then retain that data for an additional 10 years. As long as the RON timely maintains their RON commission, it is not required to provide the electronic data to the Secretary of State.

The Executed Document Once signed, each document is encrypted with a certificate reflecting validation of the signers’ identities and other digital information. It is a legally notarized (and/or witnessed) document, honored by courts and businesses. There are some considerations, however, that vary from one entity to another. The first instance that I encountered was with the Office of Attorney Services at the Supreme Court of Ohio, after remotely notarizing affidavits of out-of-state attorneys who were renewing their pro hac vice admission status in an Ohio case. The Court accepted the affidavits that were notarized remotely, but it would not accept/receive the same electronically – meaning, once the affidavits were

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A duly-authorized Remote Online Notary may notarize documents signed by individuals anywhere in the world (providing that signers successfully complete the KBA).

However, the RON must be physically located within the borders of the state of Ohio when performing the service. remotely notarized, each affiant was required to print a “hard” copy of it and mail it to the Supreme Court. The staff at the Supreme Court would not accept the same item electronically (via e-mail or website portal upload) or print it themselves.

I checked with the Ohio Secretary of State’s Notary Commission Coordinator, who provided confirmation referencing ORC 147.591. The statute states that a digital copy of a document executed electronically by the parties must be accepted by county auditors, engineers and recorders for purposes of approval, transfer and recording. It also states that a county auditor, engineer, and recorder must accept a printed copy of the document that was notarized electronically if the document contains an authenticator certificate. However, there is no language in the statute requiring other government offices to accept a remotely notarized document. This law is relatively new in Ohio, and government agencies are still adjusting to it and working on their procedures.

If there is any uncertainty, the person who is signing and/or submitting the document may need to reach out to the intended receiver and confirm that a remotelynotarized document will be accepted, and in what form (electronically, “hard” copy, or both).

Additional Notes A duly-authorized Remote Online Notary may notarize documents signed by individuals anywhere in the world (providing that signers successfully complete the KBA).

However, the RON must be physically located within the borders of the state of Ohio when performing the service. This applies to those possessing a traditional notary commission as well. The circumstances we find ourselves in, precipitated by the COVID-19 pandemic, have certainly altered how and where we work. Thankfully, the Ohio legislature’s passage of the Notary Modernization Act has provided an unforeseen avenue to complete the important task of notarizing documents across the spectrum of legal, governmental and business functions.

Teresa Scharf

Ulmer & Berne LLP tscharf@ulmer.com

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Life Outside the Law

For Relief from the Election, the Constitution and Recovery from Turmoil,

Read a Book

BY JANYCE C. KATZ

One month to the day after the inauguration of the 46th president of the United States, Joe Biden, Suffolk University/USA Today released the results of a poll indicating that 73 percent of Republicans who voted for a second term for the 45th President still believe Donald Trump actually won the election.i The survey of 1,000 Trump voters, identified from 2020 polls, was taken by landline and cellphone Monday through Friday the week before. About half of those polled said that they supported Trump over

the Republican Party, and considered it important that Republicans be more loyal to the former President.

Many of them also believe that Antifa, not Trump supporters, stormed the Capital on January 6.

One day later, SCOTUS refused to hear a case brought

by Republicans (petitions for writs of certiorari denied and case moot) and even the minority dissent, written

by Justice Thomas and another by Justice Alito, joined by Justice Gorsuch, agreed that there were not sufficient votes in contention to change the election results.ii The three justices did argue that the question of the State’s Supreme Court having the ability to extend the date ballots could come in but needed to be decided before the next election.

This case joins the other cases, over 60 of them, that were filed and decided during the after-election period.

No evidence of the alleged massive fraud emerged in any of the cases. But, still, people believe the stories and lies. Many of those arrested for their actions on January 6 said that they were trying to defend the country and the presidential election results they thought were accurate. Still others, like some of the Republican party leaders when condemning those who voted for impeachment of Trump, argue the attack on the Hill was a hoax of some sort. Either Antifa in MAGA costumes were there, or it was all a created illusion; in either interpretation, they saw it as an attempt

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However, rest assured, this is not the first challenge our country or the U.S. Constitution has faced, although it is and has been a major one. to discredit Trump. So, given the vast difference in understanding as to what happened during the election and thereafter, we still have a challenge to our democracy and the U.S. Constitution.

However, rest assured, this is not the first challenge our country or the U.S. Constitution has faced, although it is and has been a major one. For example, perhaps as many as a million people died during the 1861-

1865 Civil War, but the Constitution survived.iii And, our democracy grew stronger because of the 13th, 14th, and 15th Amendments, which freed the slaves, ensured Black people were U.S. citizens and mandated that the right to vote was not to be denied because of the race, color or past servitude of a man.

Watergate was another test of our democratic system.

The late Sen. Sam Ervin (D-N.C.), chairman of the

Senate Select Committee to Investigate Campaign Practices, saw the Watergate scandal as the biggest threat to the U.S. Constitution, far more than the Civil War.iv

THE COURT AND THE CONSTITUTION Archibald Cox The late Archibald Cox, a former Solicitor General known for many accomplishments during his lifetime, but remembered as the Special Prosecutor chosen by then Attorney General Bill Richardson during the Watergate Scandal wrote “The Court and the Constitution” after Nixon left DC.v, vi His goal was to help all of us understand:

“[t]he genius of American constitutionalism, which supports the rule of law, lies, first, in the Constitution, which provides the opportunity for both change and continuity; second, in the method of judicial interpretation; and third, in the skill with which the generations of justices, despite a few bad mistakes, have steered between the horns of their dilemma.”vii

By July of 1973, considerable evidence had shown that the Nixon Administration had engaged in planning a “cover up” to hide the responsibility for “encouraging” individuals to break into the Watergate headquarters of the Democratic party. All of President Nixon’s words were on tapes. Cox won the right to subpoena them with a ruling that no president is above the law.viii However, Nixon didn’t want to release the tapes, except in a very limited manner. When Cox insisted all tapes had to go to Congress, Nixon wanted him fired immediately.

On Saturday, Oct. 20, 1973, Richardson and Deputy Attorney General William Ruckelshaus resigned rather than fire Cox. The then-Solicitor General Robert Bork became head of the Justice Department and promptly fired Cox. Cox’s statement on his termination indicated the danger the country was in at that time: “Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people.”

Point of information: When Cox first wrote his book and was in Cincinnati (for reasons related to the book and to something else), I was a reporter/producer/sometimes anchor on WGUC in Cincinnati. Before interviewing the former Solicitor General/Special Prosecutor/Harvard Law professor, I bought and read his book. Thorough research makes for better questions not only in legal cases. After watching the attack on the Hill on January 6, I went to my library searching for something that might give me hope for the future of the country and its democracy. I found and reread Cox’s book.

Cox’s well-written book is easy to read and is a pleasant way to brush up on U.S. Constitutional law and history.

When it discusses a case, it gives not only the ruling, but the impact on the Constitution, the government and the history leading up to the case. For example, when Cox writes about the McCulloch v. Maryland argument, the conflict between Maryland’s policy of levying a stamp tax on the notes of any bank without authority to have a branch in Maryland, he describes the actual argument upholding the bank’s constitutionality and statement that the government is “acknowledged by all to be one of enumerated powers.”ix He also points out that Ohio officials continued to levy tax on the bank’s notes and money in the form of coins; then he reminds us that the bank did not survive President Jackson.x Finally, Cox explains the significance of the case: it preserved the federal government; allowed for intergovernmental immunities freeing the agents of the State and federal governments from taxation or regulation of the other; and because of it, we expressly adopted the “implied powers” theory.

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In the book, Cox noted the contradictions in the words of the Declaration of Independence with the inequality of the slave, people of color, women, those without property, etc. And, he discussed the various attempts during the 19th and 20th centuries to eliminate the disparity, and the resulting issues raised when trying to rectify the original inequality of some Americans.

PRESIDENTIAL ELECTIONS AND MAJORITY RULE:

You ask, “why review and suggest people read this older book now?” Why, because it provides hope. The Watergate constitutional crises had abated by the time Cox wrote this book. His view of our constitutional history is of a slow progression into a better society.

(Alert: Cox was not a founding fathers/textualist believer.) Perhaps, after the January 6 attack on the constitutionally required Congressional certification of the Electoral College fades a bit from memory, people will become more positive about our government and its institutions and another, very hopeful, book about our government and Constitution will emerge. Until then, do enjoy Cox’s work.

Edward B. Foley

The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College

But, confusion continues now, and until that is somehow calmed down and cleared up, our democracy is threatened. For example, Justice Thomas’ dissent to the dismissal of the case brought by the Pennsylvania Republican Party challenges our elections and their accuracy, thereby reflecting the continuing confusion in that great numbers of people have about the presidential election’s outcome.

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We failed to provide clear guidance, wrote Justice Thomas. And, with that, he confirmed the doubt that exists about this election in 2020, but also, implicitly and possibly without thinking to do so, Thomas argues that there was valid uncertainty about the Trump election victory in 2016 as well as other, earlier presidential elections.

The same could be very true for the 2016 election, where Donald Trump won the electoral votes, but Hillary Clinton had a 3 million plus vote. The minority parties took votes that may or may not have gone to Clinton or to Trump, and the result was not a majority of a majority as the Jeffersonian constitutional changes were meant to have produced.

The Electoral College has created such issues multiple times since its origination in the U.S. Constitution.

After problems with election results, the procedure for electing the president was constitutionally altered in 1803 to allow for an allegedly smoother process.

However, as Edward B. Foley wrote in his recently published book, “Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College”, the Jeffersonian idea was that use of the Electoral College could create a majority of a majority.xi This means that the vote results would, in actuality, be representative of the desire of the majority of US voters.

Foley suggests that since the 1803 changes to the way the Electoral College votes were counted, 16 presidents have won based upon a state giving a candidate with a plurality, rather than with a majority, the state’s electoral vote.xiii Changing the Constitution is not an option, he argues, especially given the hyper-divisiveness of the political world these days. He believes if all states comply with a majority rule requirement, we would be more likely to elect presidents who reflect the wishes of the majority. Foley discusses the strong and weak points of some of the attempts to change the problems of the Electoral College without an amendment to the Constitution, like the National Popular Vote Multistate Compact Plan. But, even with the extra expense of holding a second election, Foley seems to favor a run-off of the top two candidates in every state over rewarding the win to the person who receives the highest count of votes out of 10, or even three, candidates.

But, as we saw in 2000 with hanging chads and a bit of manipulation to get SCOTUS to decide the case, SCOTUS stopped the vote count and gave the Republicans Florida and the White House.xii George W. Bush won Florida by only 537 votes out of the almost six million cast. With Florida’s 26 electoral college votes, Bush led Gore in electoral votes nationally 271-266.

Even though Gore won the popular vote nationally, he was out of legal options. With concern for the integrity of the country and Constitution, Gore conceded. As Foley and others have pointed out, 10 candidates ran for president on the Florida ticket. Ralph Nader, Green Party, received 97,488 votes or 1.6 percent; Patrick Buchanan, Reform, received 17,484 votes or .29 percent and the lowest vote count, 562 votes or .01 percent that James Harris received, was just a bit more than the number by which Bush won 26 electors. So, if all the votes for candidates other than Bush are added up, it is clear that the majority of people in Florida did not want to elect him.

BENDING THE ARC TOWARD JUSTICE Col Owens Being a bit tired of world affairs and politics over which I have no control, I picked up Col Owens’ book, “Bending the Arc Toward Justice” (Cincinnati Book Publishing, Cincinnati, Ohio 2020) and a glass of wine and read the life story of someone I should know or should have known. Suddenly, I felt as if I was sitting and listening to a good friend talk about his life, recalling all he did and the people he worked with. Col spent his life trying to make the world better. He dedicated his life to social justice. We have that in common.

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What was really fun was reading about how he worked with some of the same people I used to be around when I was in Cincinnati and, later, with others in Columbus.

He came to UC Law just as I was graduating from it.

He was active in Covington, Kentucky’s government. I wanted to ask him about people I knew whom he didn’t mention. For example, my dear friend, the late Sandy Cohen, a Covington Commissioner who was brutally murdered in 1985 and whose body was discovered in a dump by a psychic.xiv Did he work with, or against, or even know Sandy? One day, maybe I will actually sit down with Col Owens and discuss this more thoroughly.

Be prepared: the book has quite a few “I did” sentences and reading it can seem a bit like listening to a monologue. But, it is interesting. It reminded me of a talkative person who has accomplished much in their life and just wants to tell someone about it, possibly over a glass of wine. And, it is good in this era of duplicity, fake history, conspiracy theories, etc. to “listen” to the story of a lawyer who dedicated himself to making the world just and helping others. Right now, we need more people like Cal Owens who are fighting in their own way to preserve and improve our democratic system. i

Exclusive: Defeated and impeached, Trump still commands the loyalty of the GOP’s voters, Susan Page and Sarah Elbeshbishi, USA TODAY: https://www.usatoday.com/ story/news/politics/2021/02/21/exclusive-trump-party-he-still-holds-loyalty-gopvoters/6765406002/ Released 12:01pm. 2/21/2021 and updated; Almost half of Republicans would join Trump party: poll, Dominick Mastrangelo THE HILL https://thehill.com/homenews/politics-101/539779-almost-half-of-republicanswould-join-trump-party-poll?rl=1 released 02/21/21 12:47 PM ET; QAnon and other groups continued to believe Trump would somehow be sworn in on March 4, the original inauguration day and the Capital security remained strong for that reason. Why QAnon Followers are Pinning Their Last Desperate Hopes on Trump Emerging as President on March 4, Joshua Zitser YAHOO NEWS! https://news.yahoo.com/why-qanon-pinninglast-desperate-110800228.html, released March4, 2021. ii Republican Party of Pennsylvania v. Veronica Degraffernreid, Acting Secretary of Pennsylvania, et.al,. Nos. 20–542 and 20–574. Decided February 22, 2021. iii https://en.wikipedia.org/wiki/List_of_wars_by_death_toll. iv President Refuses to Turn Over Tapes; Ervin Committee, Cox Issue Subpoenas: Action Sets Stage for Court Battle on Powers Issue, Carroll Kilpatrick, Washington Post July 24, 1973; Page A01 https://www.washingtonpost.com/wp-srv/national/longterm/ watergate/articles/072473-1.htm. v In July of 1973, considerable evidence had shown that the Nixon Administration had engaged in planning a “cover up” to hid the responsibility for “encouraging” individuals to break into the Watergate headquarters of the Democratic party. All of President Nixon’s words were on tapes. Cox won, but Nixon didn’t want to release the tapes. On Saturday, October 20, 1973, Richardson and Deputy Attorney General William Ruckelshaus resigned rather than fire Cox. The then Solicitor General Robert Bork became head of the Justice Department and promptly fired Cox. vi Houghton Mifflin Company, Boston 1987. vii Id. at p. 27. viii In re Grand Jury Supoena Duces Tecum to Nixon, 360 F. Supp. 1 (D.D.C. 1973); Nixon v. Sirica, 487 F.2d 700 (D.C. Circ. 1973) and U.S. v. Nixon, 418 U.S. 683. ix Id. at p. 77. x Id. 79. xi Oxford University Press 2020. xii Id. 162; Bush v. Gore, 531 US 98 (2000). xiii Id. 53-54. xiv A Gift: Psychic Knew at Once, Michael Collins, http://www.patriciam.com/OLD/ kentucky_post.htm, July 15, 1986. Sandy had befriended psychic just as he had befriended almost everyone he knew. She allegedly “saw” the spot where his body had been discarded. Teams searched areas near the Ohio River to see if they could find him, as the police had not at that point figured out what happened to him. A late friend of mine was on the team that followed this psychic’s instructions and found Sandy under a discarded couch in a dump near a river.

Janyce C. Katz, Esq.

General Innovations and Goods, Inc. janyce.c.katz@gmail.com

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Jury Verdicts

Civil Jury Trials

FRANKLIN COUNTY COMMON PLEAS COURT

by MONICA L. WALLER Verdict: $1,712,250.00 (Reduced to $1,006,000.00 with application of caps.)

Medical Malpractice.

In February of 2016, Plaintiff Ronald Fairrow went to Riverside Methodist Hospital for a laparoscopic appendectomy. After Fairrow was placed under general anesthesia, nurse Megan Conrad attempted to insert a Foley catheter. The attempts to catheterize Fairrow were not documented in the chart.

It was determined that Conrad attempted the catheterization two times with different catheters and was unsuccessful. Plaintiff contended that Alon Geva, M.D., who was a surgical resident at the time, also attempted to catheterize Fairrow and was unsuccessful.

Defendants disputed this allegation. Geva then consulted Jason Jankowski, M.D., a urologist.

Conrad informed Jankowski of all of the catheterization attempts when he answered the consult.

Jankowski attempted to perform the catheterization using a Coude catheter (a catheter with a curved tip). That attempt was also unsuccessful. After these

attempts, Jankowski then inserted a scope into the urethra and found multiple false passages in the urethra that he attributed to the prior unsuccessful catheterization attempts.

Then, Jankowski performed serial dilations of the urethra with Amplatz dilators in order to place the catheter. These dilations occurred with the patient positioned in a difficult position and without the aid of fluoroscopy.

After repositioning the patient, Jankowski was ultimately able to successfully catheterize Fairrow.

The appendectomy proceeded without further complications.

After surgery, Fairrow experienced episodes of diffuse bleeding and developed strictures in the urethra.

Over the next eight months, Fairrow underwent 12 procedures including re-catheterizations, scopes and the placement of a suprapubic catheter (a catheter inserted directly into the bladder through the low abdomen).

In November of 2016, Fairrow had a surgical reconstruction of the urethra that involved removing several centimeters of the urethra.

Fairrow recovered without requiring further surgery. Plaintiffs sued OhioHealth, Jankowski, Geva

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and Conrad. The claim against Jankowski was dismissed prior to trial and the case proceeded against OhioHealth and its employees, Geva and Conrad. Plaintiffs argued that Geva and Conrad were negligent in their attempts at catheterization and that his injuries included permanent and substantial deformity, entitling them to the higher statutory cap on non-economic damages.

Defendants disputed all elements of the claim. Defendants argued that creating these trivial false passages when performing a catheterization was not a breach of the standard of care. Defendants also argued that plaintiffs’ experts could not link the false passages from the initial attempts at catheterization to the injuries that necessitated the urethroplasty. Defendants also argued that Jankowski’s blind use of the Amplatz dilators in a difficult position actually caused the injuries that necessitated the urethroplasty.

Finally, defendants argued that Fairrow did not prove that he had a permanent and substantial deformity because plaintiffs did not present objective evidence of the alleged deformity, which plaintiffs alleged consisted of scarring and

shortening of the penis. The jury found in favor of plaintiffs and concluded that plaintiffs had established a permanent and substantial deformity. The jury awarded plaintiffs $256,000.00 for economic damages, $1,206,250.00 for Fairrow’s pain and suffering and $250,000.00 for Fairrow’s loss of consortium. Defendant appealed. The Tenth District Court of Appeals affirmed.

Past Medical Specials: $251,260.85. Counsel would not comment on pre-trial settlement negotiations. Length of trial: Five days. Plaintiffs’ Experts: Jonathan Vapnek, M.D. (urology); Janet Carr, RN (nursing). Defendant’s Expert: James Donovan, M.D. (urology). Plaintiffs’ Counsel: Kathy A. Dougherty and Sarah Lodge.

Defendant’s Counsel: Robert Graziano and Michael Traven. Judge Patrick Sheeran. Case Caption: Ronald L. Fairrow, et al. v. OhioHealth Corporation, et al. Case No. 17CV1898 (2019).

Verdict: $348,525.00. ($173,525.00 in economic damages; $175,000.00 in noneconomic damages). Automobile Accident.

On March 25, 2018, Florencio Espinoza was driving westbound on State Route 73 when he crossed the center line and collided with a vehicle headed eastbound, causing the vehicle to spin and hit a guardrail. Plaintiff Deborah Pritchard, 69, was a rear seat passenger in the vehicle that was struck. Pritchard was taken by ambulance to the emergency room.

She was evaluated and admitted to the hospital with diagnoses of nondisplaced fractures to the sternum, three ribs, and a cervical and two thoracic vertebrae.

She also had a compression fracture of a lumbar vertebra. She remained in the hospital for five days.

She did not initially have surgical repair of any of the fractures. She went to physical therapy and treated with a pain management specialist. In August of 2018, she had a kyphoplasty (surgical procedure in which synthetic bone is injected to stabilize fractured bone) to her fractured lumbar vertebra. Florencio Espinoza was uninsured. Pritchard sued Motorists Mutual Insurance Company and American Automobile Association, Inc. seeking compensation under uninsured motorist policies. American Automobile Association, Inc. was later replaced by CSAA General Insurance Co. Motorists and CSAA then agreed that Motorists would pay its prorata share and Motorists was dismissed as well. The case proceeded against CSAA only. Pritchard claimed that she sustained permanent injury to her low back that limited her mobility and ability to use stairs and caused

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her ongoing pain and suffering.

She asserted that she would need future medical care for that injury.

CSAA had Pritchard evaluated by their retained orthopedist who concluded that the only ongoing symptom that could be related to the accident was mild lumbar discomfort. The orthopedist found that Pritchard had a history of back and gait symptoms which were the cause of her continued mobility problems. The jury found in favor of plaintiff and awarded her $173,525 for future medical specials, $125,000 for past pain and suffering and $50,000 for future pain and suffering. The verdict was reduced to CSAA’s policy limit of $250,000 and further reduced by $5,000 for prior medpay payments and by $71,500 for Motorist’s payment, resulting in a judgment against CSAA of $173,500. Future Medical Specials: estimated $173,525.

Plaintiffs did not seek past medical specials. Last Settlement Demand: $250,000.00. Last Settlement Offer: $60,000.00 was offered pre-suit.

No settlement offer was made after Motorists was dismissed. Length of trial: Four days. Plaintiff’s Experts: Aaron Fritz, D.O. (orthopedist), David W. Boyd, Ph.D. (economist), and Laura J. Lampton, R.N. (life care planner). Defendant’s Expert: Gerald Rosenberg, M.D. (orthopedist).

Plaintiff’s Counsel: John K. Fitch.

Defendant’s Counsel: Julian T. Emerson and Douglas K. Fifner.

Magistrate Elizabeth Watters. Case Caption: Deborah Pritchard v. CSAA General Insurance Company, et al.

Case No. 19CV2640 (2020).

Verdict: $60,625.39. ($45,625.39 in economic damages; $15,000.00 in non-economic damages).

Automobile Accident.

On Aug. 6, 2012, plaintiff Kathryn M. Hamilton was driving on Park Road near Worthington Woods Boulevard when her vehicle was rearended by a vehicle driven by Ovuworie Uchebuike. The impact pushed Hamilton’s vehicle into the vehicle in front of her. Hamilton went to the emergency room that day, where she was diagnosed with a chest contusion and left shoulder sprain/ strain. She began chiropractic care nine days later for left shoulder and low back pain. She continued chiropractic care for the next three months. In March of 2013, Hamilton began treating at OSU for ongoing neck and left shoulder pain that she related to the accident. Her treatment included physical therapy and injections. Hamilton filed suit against Uchebuike and against Hamilton’s UM/UIM insurer, State Farm. Uchebuike’s insurer tendered the policy limits of $30,000 and Uchebuike was dismissed. The case proceeded against State Farm only. Hamilton claimed that she suffered a cervical sprain/strain, lumbar sprain/strain, left shoulder sprain/strain and rotator cuff tendinitis as a result of the accident.

State Farm disputed the nature and extent of Hamilton’s injuries, arguing that it was a low speed, low impact collision that did not cause the magnitude of injury alleged. The jury found in favor of plaintiff. The

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verdict was reduced to $30,625.39 after setoffs for the settlement with the tortfeasor and payments made under the medpay portion of the policy. Past Medical Specials: $56,103.91 ($26,115.95 accepted as payment in full). Future Medical Specials: estimated $24,000.00. No settlement negotiation information was provided. Length of trial: four days. Plaintiff’s Experts: Douglas J. Chonko, D.O. (orthopedist) and James H. Rutherford, M.D. (orthopedist).

Defendant’s Expert: Stephen J. Voto, M.D. (orthopedist). Plaintiff’s Counsel: Nomiki P. Tsarnas. Defendant’s Counsel: Todd M. Zimmerman.

Visiting Judge Daniel Hogan. Case Caption: Katheryn M. Hamilton v. State Farm Mutual Automobile Insurance Company, et al. Case No. 16CV12251 (2020).

Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com

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