Columbus Bar Lawyers Quarterly Winter 2021

LAWYERS

Columbus Bar Winter 2021

QUARTERLY

Digital

Law

This issue of Columbus Bar Lawyers Quarterly examines digital law: Zoom depositions, videoconferencing etiquette, and a perspective on the remote bar exam. Plus, look inside for an analysis of potential Biden administration immigration policies, an update from the Ohio Tenth District Court of Appeals, book reviews and more.

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

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Table of

LAWYERS

Contents

QUARTERLY

Winter 2021 President’s Page

4

Reflections of a Virtual President: Improvise, Adapt and Overcome Rob Erney

Bar Insider

8

Lawyers Suck at Apologies: Empathy Reform in Legal Writing Mark Lewis

Hands on Deck at the Tenth 11 All District During COVID-19 Hon. Julia L. Dorrian

It’s a Small World Law in the 16 Immigration Time of Biden

Kyle Knapp and Kevin Rouch

Points of Practice

20

Santa in Pandemic Times Anonymous

24

Pardon Power Hon. Laurel Beatty Blunt

Bar Happenings

28

Photo Gallery and Calendar of Events

Winter ‘21: Digital Law

Columbus Bar Association Editorial Board

30

Zoom Ethics and Common Sense Advice for Lawyers Charles Kettlewell

34

Are Remote Depositions Here to Stay?

Angie Starbuck

Melanie Tobias

38

Bar Prep During COVID: A Lawyer’s Perspective Katherine Silver Kelly

42

Zoom and Its Impact on Litigation: One Local Litigator’s View Tami Kamin Meyer

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

Student Section

46

What I Wish I Knew Before I Started Law School Hannah Travis

Chair

Board Members

Editor

Brianna Antinoro

Design/Production Sarah Curran

Life Outside the Law

52

Lawyers with Artistic License: Deborah McNinch Heather G. Sowald

54

Getting Your Mind Off of 2020 at Least for a Few Hours Janyce C. Katz

58

How to Save a Life Scott Mote

62

Book Review: Soul Full of Coal Dust: A Fight for Breath and Justice in Appalachia Paige Kohn

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

Jury Verdicts

66

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

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

Reflections of a Virtual President: Improvise, Adapt and Overcome

by ROB ERNEY I could not wait for 2020 to arrive. I knew I would finally achieve my dream of being sworn in as President of the Columbus Bar Association. I am an extrovert, a people person and the consummate face-toface guy. I was so excited about all of the personal appearances, receptions, events and board meetings. I felt that I was at the peak of my professional career.

had been put in place by the governor, it was clear to all of us that the annual meeting was in jeopardy.

Our annual meeting was canceled on May 1. That was a defining moment for me. On that day, I knew that, more likely than not, I was going to be the first virtual president of the Columbus Bar Association. At that point I was not sure what I was going to do, but I knew I had to improvise, adapt and overcome.

In March 2020, Governor Mike DeWine declared a state of emergency and shut down the state of Ohio for all non-essential businesses. Although we as lawyers were determined to be essential, my staff and the others in my building no longer felt comfortable working at the office. We began the process of working remotely and communicating daily through Zoom and GChat. After a couple of weeks, we settled into our work protocols and things began to run smoothly.

The Columbus Bar Association closed its doors on March 13, and the staff began working remotely from home. I was hoping that the closure of the CBA offices would only last a couple of months. I was looking forward to being sworn in as President at our annual meeting scheduled for June 11 at the Sheraton. In mid-April, I was advised by Jill Snitcher, our Executive Director, that a decision would have to be made soon regarding the annual meeting. An event this size required appropriate planning and publicity. As more details emerged about the growing pandemic, as well as the restrictions that 4 | Columbus Bar L aw yers Quarterly Winter 2021

We are lawyers and we have a resilient legal community. We have never backed down from challenges before, and we will not back down now.

In early May, the decision was made to hold our annual meeting virtually. I was relieved and overjoyed.

Almost 5,000 invitations were sent out by email. It was a beautiful ceremony that went off without a hitch. I delivered my remarks virtually from my office with my family and staff around me.

From that day forward, I have never looked back. I completely changed my attitude about the situation.

I have embraced my virtual presidency with joy and enthusiasm. I have felt tremendous support from our executive director Jill, the staff, the Board, the officers and the membership. Being a virtual president has afforded me the opportunity to reach out and touch the lives of members in a way I never could have otherwise.

Being a virtual president is the best thing that could have ever happened to me.

I am also very proud of how well the CBA staff has operated during the pandemic. We have maintained our membership and all of our benefits, resources and services are available remotely. All of our committees are meeting via Zoom and we have noticed an uptick in attendance. We have successfully developed several different avenues of non-dues revenue, including our Notary Public program with background checks, our insurance agency and our growing probate bond business.

home to support the educational needs of their children.

Working remotely is on the rise with many businesses, and lawyers working outside of the office will probably become a permanent staple in our legal community.

It is highly likely that lawyers and law firms will reevaluate their need for office space. With the use of current technology, lawyers can practice very effectively on a remote basis and I suspect we will see commercial rents being lowered across our city. Productivity, efficiency, quality of life and health issues make working remotely very attractive.

Client meetings and depositions are now routinely being conducted via video conferencing. Documents can be sent to clients via DocuSign or other electronic signature applications. With the number of coronavirus cases increasing, law firms have successfully changed the way they are doing business.

Our Columbus legal community has also done an exemplary job of improvising, adapting and overcoming obstacles created by the coronavirus pandemic.

Although most law offices remained open during the pandemic, many lawyers and their support staff worked from home for at least a period of time. Many of those working from home were parents of school-aged children, who were required to learn remotely. Working from home afforded those lawyers and support staff the ability to work productively and be at 5 | Columbus Bar L aw yers Quarterly Winter 2021

Our state and federal court systems have certainly felt the impact of the coronavirus. Courts have gone to staggered schedules and have conducted hearings and pretrials via video conference. Jury trials are being continued into 2021 and we do anticipate a serious backlog of cases. Justice is changing in America today, and the court systems need us to help them devise new ways to resolve civil and criminal cases.

Maintaining a positive attitude and a healthy perspective is absolutely necessary during the coronavirus pandemic. The Columbus Bar Association’s Health and Wellness Committee has been putting together programs to respond to the needs of those experiencing depression and anxiety. Although the coronavirus pandemic has challenged all of us, many opportunities have been born out of this crisis. We must remember that this is temporary, and because of it, we are experiencing tremendous personal growth. Vaccines have been developed which appear to hold great promise.

we will not back down now. On the contrary, we will rise to the occasion and lead others through the hardships of this crisis. We will continue to find ways to deliver legal services to clients efficiently, effectively and safely.

We will continue to improvise, adapt and overcome. Our best days are ahead. Please know that the CBA has your back and will help you through the challenges that lie ahead.

Rob Erney, Esq.

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

We are lawyers and we have a resilient legal community.

We have never backed down from challenges before, and

NEW

Welcome MEMBERS Emily Anstaett Sarah Davis Arnold Julia R. Baxter Anthony T. Betta Andrew Wayne Bowsher Brian J. Bradigan Kathryn Brown Charles Michael Caldwell Brandy A. Chandler Kwame O. Christian David Copenhaver Patrick D. Cornelius Abigail N. Dalesandro Hilary R. Damaser Porothea Dennis Kristen M. Dickerson Lori Duckworth John Dunn

Shane A. Farolino Kiera Finelli Bryan Finneran Robert C. Folland Jeffrey D. Fortkamp Nita Garg Maria J. Gargrave Salomon Gicherman Dinu Godage Lori Patrice Harris Molly Hegarty Jonathan Lawrence Hilton Allison Hoyt Margaret M. Huck Syed Ahmadul Huda Sarah Clark Huffman Pamela Izvanariu Carol Marie Jonhenry

Rasheeda Z. Khan Mark A. King Damien C. Kitte Colleen M. Koehler Sylvia Kramarius Amy Lynn Kramb Lawrence L. Levinson Ann Whitlow Lippman Stephanie Loucka Chelsea Joy Lund Jeffrey D. Mackey Anne E. Marsico Patrick E. McCausland Sara McElroy Todd J. McKenna Mark Meterko Lana A. Momani Adam Z. Morris Lisa Musielewicz Craig S. Myers Julia C. Nemecek Nicole Pakiz Thomas P. Pannett Geoffrey Craig Parker Ryan Pelfrey Sara Radcliffe Jennifer M. Rausch Joseph James Recchie

6 | Columbus Bar L aw yers Quarterly Winter 2021

Catherine A. Ritterbusch Gabriel J. Roehrenbeck David Roper Rachel Ann Rubey Colleen Ryan Bethany E. Sanders Edmund Albert Sargus Megan Schenk Lizett Schreiber David B. Schultz Joel L. Schwartz William A. Settina Edward Lee Shank Daniel J. Skinner Marcia Katz Slotnick Tiffanny L. Smith Jim Smolik Clinton Oney Snyder Lawrence J. Stelzer, Jr. Jonathan K. Stock Erica C. Vincent George N. Vorys Sonia Tanferi Walker Nicole E. Wannemacher Whitney Webster Keith Whann Robert J. Yaptangco Georges S. Zeidan

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Bar Insider

Lawyers Suck at Apologies: Empathy Reform in Legal Writing

bY MARK LEWIS During an early courtroom scene in the movie Erin Brockovich, the seemingly demure, sweet-talking Erin undergoes cross-examination. The other driver ran a red light, smashed into her car and hurt her neck, she says, leaning gingerly toward the jury in her cervical collar. She is winning them over with her forlorn smile.

But then Erin falters when counsel attacks her motives by implying that she’s merely gaming the system for money, another greedy plaintiff looking to get rich on a broken thumbnail. At this suggestion, Erin’s gentle mask drops; she loses her composure and shouts profanities across the courtroom at the opposing lawyer and his client. Well before the camera pans to the jury’s grimacing faces, we know her case is lost.

The film cuts to Erin and her attorney, Ed, as they flounce dejectedly from the courtroom. Erin lays into Ed, castigating him on the way to the elevators for not preparing her better for the cross-examination that sunk the case. Ed sheepishly offers an exasperated and hollow-sounding, “I’m sorry.” To which Erin claps back that law schools must not teach lawyers to apologize because Ed, “sucks at apologies!” Ed hangs his head and shrugs his shoulders as the scene ends.

A meaningful apology entails at least three ingredients.

First, we sincerely express our remorse. Second, we admit our fault and the resulting harm we caused. Third, we make it right. These three ingredients – remorse, admission and reparation – create the conditions for contrition and acceptance, without which neither party is likely to feel satisfied. From sincere remorse can come understanding and, if we are fortunate, forgiveness. This concept of apology ultimately rests

The usual dynamic of legal writing in contested matters is to trade blame in highly formalized legal language that paints the other party as stupid, foolish or mean.

8 | Columbus Bar L aw yers Quarterly Winter 2021

on our empathy, our ability to understand and feel the other person’s emotions. Both sides must empathize with the other. Mutuality is key.

Naturally, we all stumble with apologies. Whether giving or receiving an apology, we often feel angry, offended, indignant. We deny our misstep. We impute bad motives to the other. We might even relish our own resentment, holding onto the hurt too long for all its bitter-sweet salve. As much as this is true of human nature generally, it becomes even more pronounced in the fraught arena of legal practice, where emotions run hotter and consequences more dire. As a result, lawyers suffer special propensity to trip over the remorse, admission and reparation needed to successfully land their or their clients’ apologies. Failure to set the conditions for apology is not typically the result of character defects but rather the consequence of some unfortunate side effects or professional hazards in law practice.

We know those hazards all too well. For starters, we carry the heavy burden of agency responsibility for our clients. That agency responsibility is our ethical calling.

It requires attention, care and diligence. Someone’s wellbeing rests in our hands. The consequences of our inattention can be devastating to the client. Making matters even more stressful is that we don’t control most of the important variables that determine the outcome in any given case. We have little dominion over the facts, the parties, the court, the law and the jury in those rare cases that go to trial. This profound

agency responsibility combined with little to no control over the outcome makes for potentially unhealthy emotional mixtures. And we can’t ignore the reality that clients often come to lawyers carrying heavy emotional axes to grind against their perceived legal enemies.

Lawyers also struggle with apologies because there are many professional and institutional incentives for detachment, denial and disrepair in our legal system, especially in the way we write to and about one another.

The usual dynamic of legal writing in contested matters is to trade blame in highly formalized legal language that paints the other party as stupid, foolish or mean. This detached, stylized name-calling ignores the inevitable and often poisonous emotional valence that accompanies such accusations for both sides. We

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objectify and diminish the other side and vice versa, with both sides reacting defensively. Of course, none of us wants to believe we or our clients are the bad people depicted in the legal briefs. Yet we are often too quick to attribute depravity to the other side in our own writing. And so goes the verbal blame game, a contest that is now set for its zero-sum conclusion: only we virtuous can win, the wicked other must lose. None of which helps with apologies.

In light of these troubling dynamics, how then can lawyers become better at apologies? We can start by acknowledging that apologies don’t come easy in our business, and that we’re very often hemmed in by our client’s legal interests that can remain at odds with any admissions of error. It is an unfortunate reality of many disputes that an apology can too easily be interpreted as an admission of legal liability or weakness, neither of which are true.

hallmarks of effective advocacy. Empathy helps us understand what motivates and drives the other parties in any legal transaction or conflict. Only through such understanding can we hope to resolve the conflict or transaction on emotionally satisfying terms, in addition to legal, factual or financial ones. And it is the emotional dimension that most often undergirds the possibility of remorse and repair.

As we apply this mindset to our legal writing, we might begin our next email, letter or brief by stating the most favorable version of the opposition’s emotions. Let’s be as charitable as possible.

Let’s attribute good faith, good will and good meaning to the other side. Let’s place ourselves in their emotional space. Consider beginning with, “You are right to feel . . .” or “I understand your feeling of . . .” or similar expressions of sincere, well-considered empathy. We can also describe what feelings animate our own writing or the emotional valence of our client, not as a perch from which to preach our moral or legal rectitude, but as an invitation to mutual empathy. Nothing further should be said until we’re clear on how each side feels. We should still advocate, argue and solve problems in our writing as needed, among the other reasons we write as lawyers. Only now we do so from the perspective that invites all sides to emotional understanding even while they might disagree. We thereby presuppose the conditions for apology even if one never comes. In the heart of the disagreement or problem to be solved, we frame our legal writing with the implied preconditions for remorse, admission and repair. We seek to give and receive empathy.

MEANINGFUL APOLOGY: remorse + admission + reparation

To reform our legal writing, we begin with a counter-intuitive first principle: Lawyers must start acting less lawyerly when they write. We should seek to imagine the most charitable version of the other side’s motives and interests, and then how they would feel when reading our writing. We should tune our ethical imaginations to the likely emotional response of both the lawyer and client to whom we write. By so doing, we seek a kind of “empathy reform” in our legal writing, the quality of understanding and even sharing the feelings of another. We reflect back to our audience their feelings. Such empathy is the basis for many, if not all, of our moral sensibilities. It is what makes us decent.

Some might argue that empathy reform in legal writing threatens our duty of loyalty or advocacy to the client.

It does not. It fosters the opposite. Empathy makes us better advocates. Empathy is another way of reminding us to simultaneously “know our audience” and the other side of the argument or case. Both are

Mark D. Lewis, Esq.

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

10 | Columbus Bar L aw yers Quarterly Winter 2021

Bar Insider

All Hands on Deck at the Tenth District During COVID-19

BY HON. JULIA L. DORRIAN

“The Tenth District Court of Appeals continues to serve the people of Franklin County during this COVID-19 public health emergency.”

From day one of the coronavirus pandemic, this statement has been posted front and center at the courthouse and on our website. We are still in the midst of this emergency, and many people have and continue to contribute in significant ways to the Tenth District’s efforts to continue serving the public while mitigating the risk of exposure to and spread of COVID-19. This article summarizes the measures we have implemented to continue operations at the court,

and the hard work, cooperation and dedication that have made those measures possible.

A Year Unlike Any Other Begins.

At the Tenth District, the judges rotate, year to year, serving as the Administrative Judge (AJ) of the Court.

2020 was my year.i My term began in January, with an Ohio Judicial College course on the Fundamentals of Serving as AJ. At the course, faculty presented on the topic of emergency continuity of operations planning (or COOP) and a resource that Chief Justice Maureen O’Connor had recently mailed to judges across Ohio.

The resource: The Ohio Judicial Guide to Public Health. The Chief Justice was clairvoyant. Throughout late January and February, national and local media

11 | Columbus Bar L aw yers Quarterly Winter 2021

I am immensely proud of our Tenth District staff, who have continued researching, analyzing, drafting, editing, filing decisions and assisting litigants, lawyers and the public during this COVID-19 emergency. increasingly reported on the spread of the coronavirus strain that causes COVID-19.

Following up on what I learned at the AJ course, I discovered our court did not have an updated COOP plan and that we, like many courts, had never contemplated continuance of operations in the event of a pandemic. In February, I began reading the Ohio Judicial Guide to Public Health, drafting an updated COOP framework and learning as much as I could about COVID-19.

Watchful Monitoring.

In early March, Court Administrator Doug Eaton, Deputy Court Administrator Cindy Sgalla and I began monitoring the developing COVID-19 situation.

The first week of March, we determined the staff necessary to be present on-site to continue court operations, surveyed staff and judges regarding their home technology capabilities for teleworking, began researching alternatives for remote oral arguments, and assigned the task of preparing general memoranda regarding legal issues that could come before our court as a result of COVID-19.ii On March 9, the Governor declared a state of public health emergency.

Implementing Our Response.

On Monday, March 16, the judges of the Tenth District, some of whom had just returned from traveling, convened for the first of many meetings to address safely continuing court operations in the midst of COVID-19. At that meeting, the judges voted to (1) require court staff to telework; (2) temporarily consider all cases as submitted on the briefs unless oral argument was granted for good cause shown;iii (3) begin preparations for remote oral argument; and (4) adopt the updated COOP framework.

Going forward, it was a full team effort among the Tenth District judges and staff. Judge Klatt would serve as point on COVID-related personnel matters; Judge Brunner on developing a procedure for remote circulation of decisions; Judge Luper Schuster on working with our technology team to develop a secure and reliable platform for remote oral arguments; Judge Beatty Blunt on working with the Clerk of Courts regarding continued filing of notices of appeal, briefs, decisions and judgment entries, as well as transmission of trial records; Judge Nelson on reviewing R.C. Chapter 2501, the Rules of Appellate Procedure and our local rules to ensure our COOP and COVID-19 policies were in compliance; Judge Sadler on working with our magistrates and mediators to determine their needs for continuing their important duties; and Judge Brown on reviewing the Chief Justice’s tolling order and other state and federal applicable statutes.iv Court Administrator Doug Eaton, my judicial staff attorney, Joseph Wenger, and Judge Brunner’s legal assistant, Leah Ferron, undertook herculean efforts to enable our court to telework and conduct oral arguments remotely. Court Administrators Eaton and Sgalla, Assignment Commissioner Nikki Scott and Judicial Secretary/Bailiff Kristie Frank have kept our lights on and doors open, assisting pro se litigants and lawyers who have called the court or come to our office. My former judicial staff attorney, Josh Kimsey, and legal assistant, Erika Schorejs, researched Ohio Department of Health orders, assembled COOP and emergency contact lists, and edited administrative orders. Our magistrates continued deciding original actions, and our mediators continued mediating.v

12 | Columbus Bar L aw yers Quarterly Winter 2021

We are fortunate that the nature of our work and access to good technology has enabled most of our staff to telework. But, as many of you know, teleworking has its own set of challenges – overcoming technology hurdles, adjusting to new routines, simultaneously overseeing remote learning or care for our children or family members in need and/or seeking quiet corners in our now crowded houses to conduct work without (or at least with minimal) interruption. As we have implemented protocols and procedures to mitigate the risk of COVID-19, some of our staff have returned to work on-site for limited periods as needed. I am immensely proud of our Tenth District staff, who have continued researching, analyzing, drafting, editing, filing decisions, and assisting litigants, lawyers and the public during this COVID-19 emergency.

It Takes a Village.

Beyond the efforts of our judges and staff, the Tenth District’s COVID-19 response has relied on and benefitted from the work of many other individuals and entities.

The Chief Justice, other appellate courts and judicial associations, and the trial courts.

As noted, the Supreme Court’s Ohio Judicial Guide to Public Health was the first resource I turned to in developing our court’s COOP and COVID-19 response. Throughout the pandemic, the Chief Justice and Supreme Court Administrative Director Jeff Hagler have continued to provide guidance through administrative orders, notices and a database of resources for courts. I conferred with and learned from many AJs from other appellate courts regarding their responses to COVID-19. The Ohio Judicial College, the Ohio Judicial Conference and the National Center for State Courts presented invaluable webinars on the topic. I frequently participated in conference calls with the AJs of the General, Domestic and Juvenile, and Probate Divisions of the Common Pleas Court, and the Franklin County Municipal Court to discuss COVID-19 operations. Those trial courts, which have the most direct contact with the public, have worked admirably in confronting the immense challenges presented by the COVID-19 pandemic. I wholeheartedly commend the trial judges and their staff for these efforts.

Columbus Public Health, Franklin County Public Health, and Ohio Department of Health.

At the Tenth District we have done our best to understand information regarding COVID-19, reviewing orders and advisories from the Governor and the Director of the Ohio Department of Health, and the Responsible RestartOhio plan, with special focus on recommendations for work in an office environment. Franklin County Public Health has advised us on office and courtroom layout for social distancing and PPE. I regularly monitored and reported to the judges on the COVID data and trends presented on the statistical dashboards of the health departments, particularly those published by Columbus Public Health and Franklin County Public Health.

Franklin County’s unenviable position as first among Ohio counties in COVID-19 positive tests influenced our decisions regarding operations during COVID-19. I, and Judge Luper Schuster have continued to monitor developments in these last couple weeks of the year.

As we continue with this pandemic, then we will adjust our response as appropriate.

County Administrative Agencies.

Critical to continuing to serve the people of Franklin County during COVID-19 has been the Tenth District’s close partnerships with Franklin County administrative agencies. The Tenth District consults frequently with Franklin County Commissioners John O’Grady, Marilyn Brown, and Kevin L. Boyce, and County Administrator Ken Wilson and Deputy County Administrator Kris Long, Esq. Administrators Wilson and Long facilitate regular calls with county elected officials, court AJs and county agency leaders to update each other on COVID-19 matters. The County’s Public Facilities Management team, led by Deputy County Administrator Kris Long and Director Darla Reardon, has been working overtime installing plexiglass, procuring and providing PPE and cleaning supplies, redesigning public counters and office spaces to accommodate social distancing, and implementing policies for safe passage through security and in elevators.

Two other county offices also deserve special mention.

County Auditor Michael Stinziano (as Data Center Chief Administrator) and County Chief Information Officer Adam Frumkin, and his Data Center team, have provided technological expertise and equipment to

enable us to telework and conduct oral arguments remotely. Franklin County Clerk of Courts Maryellen O’Shaughnessy and her Executive and Appellate Teams, led by Chief Deputy/Chief of Staff Angela Mathews, Deputy Clerk Tammy Seelig, Director of Legal Operations Torrey Taylor, and Appellate Division Manager Lyrinda Marcum, have ensured the continued filing and acceptance of notices of appeal, original actions and briefs, as well as our access to the trial courts’ records (electronic and hard copy). COVID-19 has reminded us in a very stark way that access to the courts is not possible without access to the clerk.

Members of the Bar. Many members of the bar in Franklin County have assisted us in testing technology for remote oral argument and providing feedback regarding our continued operations during COVID-19. We have worked closely with counsel from the appellate divisions of the County Prosecutor, the Public Defender, the City Attorney and the Attorney General, and we have consulted private practitioners informally and formally. In early August, CBA Executive Director Jill Snitcher organized a Zoom meeting of appellate practitioners so we could seek input regarding the remote oral argument experience and the eventual return to in-person oral argument. We also sought input from the leadership of the Ohio State Bar Association.

Practitioners’ input has been very helpful in developing our oral argument policies.

The Court’s Developing COVID-19 Response.

As a result of the efforts of our judges and staff, and the resources and partnerships described above, the Tenth District has continued to refine and adjust its response to COVID-19. Since the Governor declared a state of public health emergency on March 9, acting as AJ, in 2020, I filed five administrative orders implementing our court’s decisions regarding continued court operations and oral arguments.vi Unable to speculate what each month, week, or even day will hold in terms of COVID-19 in our community, the judges have made these decisions incrementally based on the latest statistics available, the latest health department orders or guidance, and the Chief Justice’s updated guidance.

We have also considered our technological capabilities, each judge’s comfort level with using technology, and input from members of the bar.

14 | Columbus Bar L aw yers Quarterly Winter 2021

Pursuant to our administrative orders, the court’s oral argument practice has evolved as the pandemic has continued. From mid-March through April, we considered cases as submitted on the briefs without conducting oral arguments. In May, we began conducting audio-only remote oral arguments upon request, using the Zoom platform. Shortly thereafter, in June, we resumed conducting oral arguments remotely in all cases, unless waived, continuing to use Zoom. In mid-July, we updated to the Zoom webinar platform, allowing us to have audio and video for oral arguments. From the time we resumed oral arguments in May, the court also provided live-streaming via YouTube so interested individuals could listen to or view the proceedings. We resumed in-person oral arguments on-site in September, requiring all attorneys and parties to wear masks during arguments.

However, we continued to use the Zoom platform as needed upon request for COVID-19 related reasons and we implemented technology to facilitate remote participation by a judge for COVID-19 related reason.

We also continued to simultaneously live-stream the in-person oral arguments on our YouTube link. In November, with the significant increase in COVID cases and designations at Levels 3 and 4, we converted once again to conducting all oral arguments remotely via Zoom with live-streaming via YouTube.

rolled over past midnight on Jan. 1. I am immensely grateful to every person, who in the face of significant challenges, contributed to the efforts described in this article and innumerable other measures large and small. Through all of these efforts, the judges and staff of the Tenth District Court of Appeals have been able to ensure that “The Tenth District Court of Appeals continues to serve the people of Franklin County during this COVID-19 public health emergency.” i

Judge Betsy Luper Schuster begins her term as AJ of the Tenth District on January 1, 2021. ii In our COOP, persons required to be present on-site to continue court operations are identified as “essential staff,” however all Tenth District staff have been essential to continuing to serve the people of Franklin County during this COVID-19 public health emergency. iii Upon Judge Nelson’s “eagle eye” review of Appellate Rule 22, we amended our initial policy to granting oral arguments from “upon good cause shown” to “upon request.” Importantly, however, even though “upon good cause shown” was our policy in late March and early April, in practice we granted every request for oral argument received during that time and conducted those arguments remotely in May. iv At the time, the Chief Justice had not yet filed the tolling order, which subsequently was made retroactive to March 9, 2020. v In response to the Chief Justice’ tolling order, our mediation team, with Judge Nelson’s assistance, developed and implemented a pre-notice of appeal mediation process in addition to our existing post-notice of appeal mediation process. See our website at https://tenthdistrictcourt.org/Mediation. vi See In re COVID-19 Emergency I, II, III, IV and V 10th Dist. No. 20AP-01 posted on our website at www.tenthdistrictcourt.org.

A Final Thought.

With my term as AJ coming to an end, I cannot help but reflect on how this year presented challenges that scarcely could have been imagined when the clock

Hon. Julia L. Dorrian

Tenth District Court of Appeals Jldorrian@franklincountyohio.gov

15 | Columbus Bar L aw yers Quarterly Winter 2021

It’s a Small World

Immigration Law in the Time of

BIDEN

by Kyle Knapp and Kevin Rouch This article was prepared for publication before several regulatory changes in the waning hours of the Trump administration and before President Biden announced his comprehensive immigration reform bill.

The new Biden administration has promised to pursue a number of legislative and regulatory initiatives, some reversing the efforts of the previous administration and some attempting to resolve large issues where consensus has eluded the federal government for decades. President Biden has expressed that he intends to tackle an area that encompasses both types of initiatives: immigration law.

Perhaps the best way to examine this area is to break the immigration law prospects into those that may be dealt with on a short-term, medium-term or long-term basis.

Short Term 1. Look for a quick move to fully restore DACA (Deferred Action for Childhood Arrivals), the program that shields from deportation some 640,000 undocumented immigrants who were brought to the United States as children. The Trump administration had terminated DACA, but the U.S. Supreme Court found that the termination was done in an arbitrary and capricious manner, in violation of the Administrative Procedure Act.i The administration’s response was to refuse initial applications but allow renewals while working on a new way to terminate the program in a manner that would survive court challenges.

2. The incoming administration is expected to rescind the travel and immigration restrictions set forth in a series of Executive Orders and Presidential Proclamations, on 13 countries, most of which are African or predominantly Muslim.ii 3. President Biden, while a candidate, announced that his administration will place a 100-day freeze on deportations, except in the case of undocumented immigrants who commit felonies. This is in response

16 | Columbus Bar L aw yers Quarterly Winter 2021

Individuals and organizations will continue to look to immigration attorneys for guidance. The turbulent Trump years put immigration in the forefront more than ever, with the Trump administration’s xenophobic view and lack of recall for how much immigrants have contributed to this country. to Trump’s efforts to scrap Obama-era memoranda that prioritized the deportation of immigrants.

4. The current bans on many non-immigrant (temporary, e.g., H-1B and L-1) and immigrant (permanent/green card) visas, which ran to December 31 of last year, will likely not be renewed

by President Biden.iii 5. The Buy American, Hire American Executive Order, directing federal agencies to restrict lawful immigration, is expected to be rescinded.iv Rather

Photo: Gage Skidmore

than the architecture that the current administration created to pave the way for the Buy American, Hire American Executive Order, President Biden has expressed a more straightforward approach to support U.S. businesses. Specifically, the Biden campaign stated that its emphasis will be on offering tax credits, establishing offshoring tax penalties and closing offshoring loopholes, to support local businesses.

17 | Columbus Bar L aw yers Quarterly Winter 2021

6. T he annual quota for asylum seekers will likely rise.

In October of last year, the Pew Research Center reported that, under an admissions ceiling set by the Trump administration, the U.S. planned to admit a maximum of 18,000 refugees in fiscal year 2020, down from a cap of 30,000 in the fiscal year that ended the previous month.v

Medium Term 1. The Department of Labor regulation from October 2020, promulgated pursuant to the previouslymentioned Buy American, Hire American Executive Order, that dramatically raised prevailing wages for H-1B visa and green card cases will likely be withdrawn. A court already has put the regulation on hold, because the Trump administration did not follow proper notice-and-comment rulemaking procedures but instead tried to ram through the new rule under the ostensible reason of protecting jobs in a time of high unemployment.

2. The USCIS-proposed regulation to award H-1B lottery winners based upon the highest salaries, rather than done randomly, likely will not be implemented. The Trump Administration is furiously scrambling to put this in place for the 2021 H-1B lottery, which will run in March. If implemented, the new selection process effectively would prevent employers from obtaining H-1B visas for entrylevel employees. The new rule would be especially problematic, because many organizations hire recent graduates, who have one to three years of work authorization based upon their student visas and then require an H-1B visa to continue working.

After just a year or two, few of those employees would have advanced beyond entry-level wages to qualify for the H-1B lottery and, therefore, may be forced to return to school to remain in the U.S. or go home.

3. The USCIS-proposed regulation to restrict H-1B visas to only persons with a university degree that is “directly related� to the proposed job likely

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will not be implemented. This rule is a regulatory update to insert the agency’s years of rather burdensome policies to deny H-1B visa petitions on grounds that the employee’s education is not related to their job. In other words, USCIS officers will point to the regulation rather than a policy memo in denying H-1B petitions.

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Long Term 1. Restrictive policy memoranda issued under President Trump will be revised or withdrawn, such as one that eliminated deference to prior approvals when adjudicating an extension of an employee’s status and work authorization.

2. Even though the chance of passage is slight, comprehensive immigration reform, including a path to citizenship for the estimated 11 million undocumented persons, will find a place on the agenda of President Biden. Biden supported the bipartisan comprehensive immigration package that passed the Senate in 2013, but failed to get approval in the House of Representatives.

Individuals and organizations will continue to look to immigration attorneys for guidance. The turbulent Trump years put immigration in the forefront more than ever, with the Trump administration’s xenophobic view and lack of recall for how much immigrants have contributed to this country. Attorneys have scrambled to decipher ever-changing rules and Friday afternoon Executive Orders to allay concerns and fears of clients and find creative ways to maintain family unity and continued employment.

While much of the developments under

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Trump have been negative, it forced immigration attorneys to brush off their research and advocacy skills and become better practitioners. They now are poised to continue helping clients as we once again prepare for change. i

Department of Homeland Security v. Regents of the University of California, 591 U.S. ____ (2020) ii Executive Order 13769 (January 27, 2017; Executive Order 13780 (March 6, 2017); Presidential Proclamation 9645 (September 24, 2017); Presidential Proclamation 9723 (April 10, 2018) iii Presidential Proclamation 10014 (4/22/20), as amended iv Executive Order 13788 (April 18, 2017) v “Key facts about refugees to the U.S.”, by Jens Manuel Krogstad, Pew Research Center (October 7, 2019)

Kyle Knapp, Esq.

Knapp Law Co., LLC kyle@knapplawco.com

Kevin Rouch, Esq.

Albeit Weiker, LLP kevin@awlawohio.com

19 | Columbus Bar L aw yers Quarterly Winter 2021

Points of Practice

in Pandemic Times

by ANONYMOUS The COVID virus and the rapid increase in dependence on artificial intelligence, smart machinery and internet hit the workshop at the North Pole just as these changes have touched the lives of everyone else in the world.

Luckily, as Dr. Fauci explained to the world on Nov. 20, 2020, Santa Claus has an innate immunity to the COVID-19 virus sweeping the world.i This meant that he could enter and exit houses, delivering gifts and not worry about getting ill or giving this horrible disease along with the gifts.

However, the various Santa Claus associations around the world who lack innate immunity have had to be more cautious. For example, the Fraternal Order of Real Bearded Santas, which describes itself as “a 501C devoted to the professional claus”, a Santa group that “still believes a real beard is better” has postponed its 27th anniversary of its January “most prestigious

Christmas event”.ii This organization, which provides access to insurance for members, also requires members to provide background information assuring the organization that they have no record of sexual or other crimes.iii The International Brotherhood of Real Bearded Santas has similar requirements for membership and also provides access to insurance and other benefits.iv This group also cancelled their organization’s all-member meeting originally scheduled for September. Both groups have membership options for Mrs. Santa Claus and assorted elves. Their goals are similar - to provide friendly laps upon which children sit, resulting in experiences that become positive memories for the children and their parents.

So, this year, some Santa helpers and Santa stand-ins backed away from the Santa role to protect themselves and children from COVID-19. Still others have been

It is not clear that all Zoom Santa stand-ins have had background checks, or have been evaluated on how they will handle the contact and other information received from the Zoom calls and other internet contact with children.

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seated behind plexiglass or other shields to better protect themselves and the children this year. But, of course, since all of us are on Zoom, Santa had Wi-Fi installed at the North Pole and made Zoom available to children, with various different access points (and different Santa stand-ins) so that Santa could even show up at board meetings or other events, as well as take orders for gifts from children. Prices varied for contacting “Santa” via Zoom.v It is not clear that all Zoom Santa stand-ins have had background checks, or have been evaluated on how

they will handle the contact and other information received from the Zoom calls and other internet contact with children and others. As to the liability for the Zoom Santas if information is misused, perhaps the Fraud and Abuse Act (CFAA), enacted by Congress in 1986, amending 18 U.S.C. § 1030 would be controlling.

In late March of 2020, the head of Santa’s North Pole legal defense team, managing partner at Elf and Elf LLC, read a memo sent by Deputy Attorney General Jeffrey Rosen to U.S. attorneys and federal law enforcement agencies saying they should consider prosecuting

21 | Columbus Bar L aw yers Quarterly Winter 2021

certain “purposeful exposure or infection of others with COVID-19” under federal terrorism-related statutes.vi The last thing Santa wanted was to be prosecuted under one of the terrorist statutes for spreading a deadly virus when delivering toys. He knew that such a charge would ruin his reputation and he would no longer be welcome in the homes of boys and girls.

When Santa was told about his immunity from COVID-19, he was quite relieved. Seems that back in 1918, he had a bout of flu that was so serious that he could not make any of his store appearances and children had to rely on the U.S. Post Office to deliver their wishes to him.

With all the efficiency changes made in the post office, letters seemed to take longer to arrive. Some, having first been sent to the South Pole instead of the correct address at the North Pole, were late and almost missed the Elf Factory deadline for gift production. So, this year, Santa has been depending on e-mails as well as mail and other means of communication. To check whether

the individual has been good or bad, Santa has relied, in part, on information gleaned from smart houses with cameras watching behavior and smart refrigerators that tell whether the person has been gorging on sweets or eating veggies by calling out what needs to be purchased, a signal Santa has picked up through his Honest Hacking Elf company. Elf and Elf has developed a strong defense plan to fight against a privacy tort based on the hacking, if Santa’s access to this information is ever challenged.

The reindeer seemed a bit off this year, draggy and a bit depressed. Rudolph’s nose had become extra red, unusual for him. In addition, he had developed a bit of a cough. Not sure whether reindeer could or could not get the COVID virus or if it was just a fall allergy, Santa isolated him from the other reindeer for two weeks to be on the cautious side and fed him warm corn with a bit of warm brandy in it. Rudolph seemed quite happy with that arrangement and perked up rather quickly. Santa tried the corn and brandy mix for the other reindeer and

22 | Columbus Bar L aw yers Quarterly Winter 2021

they, also, seemed to have an entirely different and more positive outlook on life. Santa was relieved about that.

The elves in the elf factory diligently churned out gifts for children throughout the world. A representative from World Against Toys Causing Harm, Inc. (W.A.T.C.H.) sent its list of the top 10 most dangerous toys on store shelves in 2020 to the head elf at the factory to encourage the elves to make or purchase only safe toys. The elves and Santa do not ever want to have any product liability issues because any of their toys had been defectively designed, built or labeled. “Never are we to have anyone say that ‘but for the defective design’ of that toy from the elf factory, my child would have both arms,” Santa told the elves when countries started having laws that held toy producers responsible for toy injuries to children.

“We have a duty of care for all children,” Santa said.

Elf and Elf long ago resolved the breaking and entry issue of Santa going down the chimney, as Santa has clearly been invited into the bulk of the homes.vii Santa has the ability to slip into any chimney, no matter the size, so that there has never been a danger of him being stuck in a chimney. When he sticks to drinking and eating whatever was designated for him, he cannot be accused of theft. His reindeer have special shoes on their feet, plus they are magically light, being able to fly. No damage to roofs, nearby trees or wires can be blamed on them.

While a dog may become unnerved by the arrival of a strange contraption pulled by animals with which the dog is not familiar, the dog’s barking or snarling would not be a Santa liability, although a neighbor might find it a nuisance to complain about if it persists. And, who

would sue if Santa brought the wrong size socks or toy?

If someone does, Elf and Elf is ready to respond.

All and all, Elf and Elf, LLC, has an excellent command of the legal issues surrounding Santa, Mrs. Claus and the various Elf factories with their Elf workers during this hard year of 2020.

Belated Ho Ho Ho and HAPPY NEW YEAR! i

Adrianna Rodriguez and Grace Hauck Fauci says Santa has innate immunity. USA Today https://www.usatoday.com/story/news/nation/2020/11/20/covid-19-andchristmas-santa-immune-coronavirus-fauci-says/3777871001/ ii https://forbsantas.com/ iii https://forbsantas.com/joinus/default.html iv https://www.ibrbsantas.org/ibrbs_goals.html v https://www.islandernews.com/news/santa-zoom-boom-of-2020-zoom-withsanta-claus-this-christmas-what-does-it-cost/article_aaa6a67c-37c1-11eb-9b9137647060fdca.html vi https://www.justice.gov/file/1262771/download vii See, e.g., State v. Willis, 52 NC 190 (1859)

“Elf 57”

Elf and Elf, LLC

23 | Columbus Bar L aw yers Quarterly Winter 2021

Points of Practice

Pardon POWER

by HON. LAUREL BEATTY BLUNT

The presidential power to pardon has made a lot of headlines lately, so let’s talk about the president’s pardoning power.

What is a pardon? Simply and historically, it is considered an act of grace, which exempts an individual from the punishment the law inflicts for a crime he has committed.i There is a ton of history about the power to pardon, from early Greek history through preindependence English rule.

The president’s power to pardon comes from the U.S. Constitution, Art. II, Sec. 2, Clause 1, the Pardon Clause, which says that the president has the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

That’s it. That’s all it says. So, what does that mean?

At a minimum, it means that the president has a broad power to pardon individuals who have committed a federal crime. The president cannot pardon someone for violating a state law (state governors have a similar power to grant clemency for violations of state law, though), and he cannot issue a pardon related to a civil judgment or an impeachment.

We also know from the small number of cases analyzing the extent of the president’s power to pardon that the power extends to any federal offense, big or small.ii The President can pardon an individual any time after the crime has been committed, including preemptively, i.e., before the person is charged.iii Famously, President Gerald Ford pardoned outgoing President Richard Nixon

A full pardon restores civil rights that may have been lost as a result of a federal conviction. For example, an individual can have their right to vote or right to own a firearm restored. But a pardon does not affect the criminal conviction itself.

24 | Columbus Bar L aw yers Quarterly Winter 2021

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before Nixon was ever charged with a crime related to the Watergate scandal.

An individual may reject a pardon, and acceptance of a presidential pardon implies a confession of guilt.iv A full pardon restores civil rights that may have been lost as a result of a federal conviction. For example, an individual can have their right to vote or right to own a firearm restored. But a pardon does not affect the criminal conviction itself. It does not expunge a conviction from an individual’s criminal record, and it does not protect that individual from other consequences of their criminal actions. An individual who has been pardoned can still face disciplinary action by a professional association, and the conviction can still be used in subsequent legal proceedings.

Importantly, the individual must still disclose their conviction of a federal crime on any form that requires disclosure of that information.

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The Code of Federal Regulations outlines the procedure and general guidelines for requesting and receiving a pardon. For example, generally, an individual must wait at least five years after their conviction before submitting an application for pardon to the Department of Justice’s Office of the Pardon Attorney. The president is not bound by those guidelines, though. The president is bound only by the Constitution.

The biggest topic of discussion currently is whether a president can pardon themselves. No court has addressed that question, and legal scholars have reached different conclusions. The Constitution’s Pardon Clause expressly prohibits a president from issuing a pardon related to an impeachment. Beyond that, though, it is silent. Legal scholars who argue that a president can pardon themselves point to the broad language in the Pardon Clause and the lack of any language prohibiting a self-pardon. Legal scholars who conclude that a

25 | Columbus Bar L aw yers Quarterly Winter 2021

president cannot self-pardon argue that doing so would violate other constitutional provisions. They also argue that the Pardon Clause only allows the president to “grant” pardons, which implies giving something to another individual, not themselves. An Office of Legal Counsel opinion issued shortly before President Nixon’s resignation concluded that the president cannot pardon themselves “[u]nder the fundamental rule that no one may be a judge in his own case.” Until recently, this view has been generally accepted.

If ever faced with the question, a court would likely look at the text, structure and history of the Constitution’s Pardon Clause to determine whether the framers intended to allow a president to pardon themselves. i

Burdick v. United States, 236 U.S. 79, 89-90 (1915)

ii

Ex parte Garland, 71 U.S. 333 (1866)

iii

Id.

iv

Burdick at 90-91, 94

Legal scholars have also identified another reason a president should be hesitant to try to pardon themselves.

Because acceptance of a pardon implies a confession of guilt, a president may invite impeachment proceedings related to the federal offense for which they pardon themselves.

Hon. Laurel Beatty Blunt

Tenth District Court of Appeals

26 | Columbus Bar L aw yers Quarterly Winter 2021

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Bar Happenings

Participants in the CBA (Virtual) 5K

Municip

al Court Committ

ee Meetin g

Bankruptcy Law Committee Meeting

Awards Pro Bono

Bench Bar Conversations with Judges McIntosh and O’Donnell (left) and Judge Browne (right)

28 | Columbus Bar L aw yers Quarterly Winter 2021

Bar Happenings

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

WINTER 2021

february

4-5 february

11

february

18 march

11 march

18

Real Property Law Institute 2021 • Presented live on Zoom COVID-19 has had a big impact on the real estate market. Find out what you need to know about real estate law in 2021. Approved for 9.5 CLE hours, with 1.0 Professional Conduct hour. Approved for OSBA Residential and Commercial Specialty Credit. Pending approval by ODI for Title Insurance credit.. Details and registration @ www.cbalaw.org.

Brain Science in Collaborative Law • 2:00—4:00pm on Zoom In this advanced three-part program, learn about the non-rational side of family conflict and dispute resolution, focusing on 21st century research in the fields of evolutionary neuroscience, behavioral economics, decision science, cognitive and social psychology, and more. 2.0 CLE hours / 6.0 CLE hours for the full series. More in this series: February 18 & 25.

Hitler’s Courts: Betrayal of the Rule of Law • 2:00—4:30pm on Zoom Join Emmy-nominated filmmaker Joshua Greene and international law expert Raymond M. Brown, Jr., Esq. as they delve into the consequences that occur when those who are sworn to uphold the law break their promises and capitulate to political pressure. Approved for 2.5 CLE hours. Details and registration @ www.cbalaw.org.

A Daily Dose of Now: Meditation for Lawyers • 12:00—1:30pm on Zoom It is difficult enough during “regular” times to remain calm, compassionate, and insightful when dealing with clients. A pandemic adds another layer of stress to an already challenging job. Learn simple techniques for cultivating and maintaining positive attorney-client relationships. Approved for 1.5 CLE hours. Details and registration @ www.cbalaw.org.

Avoiding Conflicts of Interest • 12:00—1:30pm on Zoom What do the Rules of Professional Conduct mandate in a conflict situation? Is it as easy (or challenging) as it appears to properly waive a conflict? Learn the answers to these questions, along with practical takeaways, in this ethics CLE. Approved for 1.5 Professional Conduct CLE hours. Details and registration @ www.cbalaw.org.

29 | Columbus Bar L aw yers Quarterly Winter 2021

Winter ‘21: Digital Law

Zoom Ethics and Common Sense Advice for Lawyers

BY CHARLES KETTLEWELL Since sometime between March of 2020 and what seems like forever ago, Ohio professionals have needed to quickly learn how to level up their video conferencing skills. Prior to March 2020, I’m guessing most Ohio lawyers and judges had never even heard of Zoom. I certainly had not.

FaceTime? Sure, I’d heard of that. I cannot say I have had a lot of use for this app, but there has been the occasional FaceTime with my wife when I’m lost somewhere in an aisle and need her photographic memory to assist me navigating safely through my own shopping incompetence. FaceTime has saved me many a return trip back to the store. Skype? I know it exists and may even have an account with a long-sinceforgotten username and password. We have family that lives across country, and my son visits with his cousins via Skype while they log onto their respective iPads and play games together online. For me at least, the use for

these two video conferencing apps was pretty few and far between and were certainly casual and personal.

On those rare pre-COVID occasions where I was involved with a “video” conference or deposition, some professional reporting service or other had to be used to provide the cameras and technology necessary just to make video conferencing work. (Or so we thought.)

Prior to March 2020, I would not have dreamed of asking a client if they wanted to have a video conference with me. It just felt too Star Trekky, like a gimmick. And I certainly was not going to rely on the face freezing lag I always associated with FaceTime and Skype calls, so I either did actual in-person meetings or scheduled phone calls, depending on the nature and importance of what needed discussed.

And then came COVID-19, lockdown orders, mask wearing, social distancing, remote working and Zoom. It seemed overnight, everyone either had or was expected to get a Zoom account. “Great!” we collectively thought, another account to create! Choose a username, forget

30 | Columbus Bar L aw yers Quarterly Winter 2021

Prior to March 2020, I would not have dreamed of asking a client if they wanted to have a video conference with me. It just felt too Star Trekky, like a gimmick. another password and give yet another company our credit cards to auto-bill monthly to infinity and beyond. At first, there were Zoom conference calls with clients, then some Zoom board meetings, Zoom family calls, and then attending and teaching CLE seminars via Zoom.

Sometime after getting through all of the above, I eventually got to experience my first of five Zoom trials. To be clear, these were bench trials, three before the Board of Commissioners on Character and Fitness and two before the Board of Professional Conduct. I would not recommend a jury trial by Zoom, but I can say from my personal experience it has worked out fairly well for these types of cases With all of the aforementioned in mind, I’ve been asked to share what I’ve learned, and thankfully most of it is not from personal experience.

First, there was the Supreme Flush, and I’m not referring to some new poker hand name here.i If you are not aware, during oral argument before the Supreme Court of the United States on May 6, a toilet flushed. During. Oral. Argument.

Presumably, it was one of the

Justice’s toilets, although I only repeat this speculation because it is generally understood that the Justices were the only parties to the call with mute button autonomy.

This leads us to:

Lesson 1: Learn How the Mute Button Works. Whether you are on your office phone, cell phone, a computer or a tablet, learn how each device you plan to use works before you use it. Learn not only how to use the mute button, but also where the microphone is located on each device so that you can be

clearly heard speaking into it when speaking, and not at all (flushing or otherwise) when you should not be heard.

Lesson 2: Don’t Be Like a Certain Individual Who Shall Remain Nameless. Did you hear the one about a certain lawyer/ journalist doing his best zoo monkey impersonation whilst participating in a Zoom conference with a live video feed? Yes, I also wish I hadn’t heard about it, but here we all are with this information we cannot now “unknow.” With Lesson 1 being

31 | Columbus Bar L aw yers Quarterly Winter 2021

about muting microphones, a reader might be forgiven for jumping ahead to conclude Lesson 2 is about learning how a video camera works before participating in a video call, but that would be missing the point of Lesson 2 entirely because it has nothing to do with microphones, cameras, or technology at all. Lesson 2 is this: certain conduct is unacceptable during a Zoom conference, regardless of whether you think a camera or microphone is on or not. Period. “Just say no” may not have worked out so well for the war on drugs, but I submit it can and should be repurposed as the mantra for anyone who is remotely unclear about Lesson 2. (I truly cannot believe I even have to write this paragraph as though I’m unearthing some heretofore buried nugget of wisdom.) This could have, and should have, remained an unspoken and unbroken Rule.ii

Lesson 3: Post-It Notes Are Your Friend.

For all of my professional Zoom conferences, I use my computer with its built in camera. The lens is centered at the top of the monitor and has a little switch above it that allows me to open and close it. Unfortunately, in the trendy “minimalist” style of computers having less buttons and knobs and even less in the way of useful instructions for those few that still exist, there is conveniently nothing near this switch that tells me whether the lens is open or shut to the left or the right.iii Notwithstanding my inability to figure out my lens cover toggle switch, I can at least figure out when a small sticky piece of yellow paper is staring back at me

instead of the abyss of a lens hole that I can never tell whether it is open or shut.

Lesson 4: Post-It Notes Should Not Be Necessary. I say this because no one should be doing anything in front of a camera during a Zoom call that cannot be seen by every other participant in the Zoom call. See Lesson 2. That said, however, there are times when you are not the moderator, and a break is scheduled but the conference link is not paused, and there is simply no reason to remain connected while the conference is on such a “break.” In these instances, I recommend using the mute button, the camera lens cover, and a post-it note.

Lesson 5: What’s in the Background? For me personally this is incredibly boring, as I just have a blank wall behind me, but it is also somewhat on purpose. I have a credenza behind my desk that in the pre Zoom days was covered with some combination of family pictures, client files, and miscellaneous office supplies.

I am proud to say (in my ethics geek sort of way) that shortly before my first Zoom call, I had the foresight to think, “I probably should not have client files out on display in my background.” So, I moved the files, moved the photos, and moved the supplies. Now, I am the only thing (hopefully) of interest on the screen during my Zoom conferences so my audience will (hopefully) stay engaged. For the most part, when I have viewed other lawyer’s offices on Zoom conferences, I have

Keep your background clean and your clients’ information out of the picture.

32 | Columbus Bar L aw yers Quarterly Winter 2021

not seen anything particularly noteworthy. But I do recall one situation where a lawyer had issues with the forward and rear facing cameras on a laptop and broadcast for all participants to see an image of a desk and office covered in what appeared to be open client files. Fortunately, the laptop was being whipped around like a bad “found footage” horror movie and nothing could be clearly seen. But Lesson 5 stands: keep your background clean and your clients’ information out of the picture.

Lesson 6: A Picture is Worth a Thousand Words. If you are going to be performing on camera, you must “act” like you care. And I say “act” not because the objective is trying to win an Oscar, but rather because you should actually care. For example, do not have your camera facing a window where you are backlit such that no one can see you. Either rearrange your workspace for the next X number of months or close the blinds if you must be situated in front of a window. Also make sure that there is a light on somewhere in front of you so that you can be seen on camera; otherwise, what’s the point of participating in a video conference? There are many more tips online about how to make your appearance better on Zoom from people who know a lot more about lighting, camera placement, etc., than I ever will.

In conclusion, my simple advice for lawyers, whether it’s participating in Zoom calls, or conducting a trial via Zoom, is to continue to appear and behave as a professional whenever, wherever, and however you are working. You may be working from home, but that’s no excuse not to shower, shave, or dress appropriately for the occasion. Have a Zoom trial coming up? Learn in advance what file sharing program is going to be used and how to use it, learn what will be expected and who will be controlling the screen during presentations, prepare your exhibits accordingly, and prepare your clients and witnesses for what they should expect. Overall, my advice to any lawyer with an upcoming Zoom hearing is to be prepared to treat a day behind your desk looking at your monitor as if it is the most important day you will ever spend in court. Because for both your clients and the foreseeable future, it likely will be.

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i

I know, technically this isn’t a “Zoom” story, but its value as a cautionary tale still stands given its otherwise sacrosanct source. ii

I regrettably agreed to write about this topic only to later realize I have no idea how to diplomatically write about this topic. iii

I’m looking at you Apple.

Charles Kettlewell, Esq.

Charles J. Kettlewell LLC charles@legalethics.pro

33 | Columbus Bar L aw yers Quarterly Winter 2021

Winter ‘21: Digital Law

Are Remote Depositions

Here to Stay?

by ANGIE STARBUCK Given that the deposition process began in the 19th century, and the first stenographic machine for court reporters was invented early in the 20th century, one can only imagine the changes the legal and court reporting professions have seen over the years. This is not an article about the history of these professions but, rather, an optimistic look at the ability to adapt to our current situation and what the future may look like for the deposition process.

Like many other businesses across the country, the courts and legal proceedings came to a screeching halt in mid-March 2020 due to the COVID-19 pandemic. For the first month or so, attorneys had to adjust to working from home, solve remote IT issues and some had to juggle their kids and/ or spouses being at home with them.

During this time, court reporters were working hard to transition their home offices into a remote deposition location. Many court reporting firms already offered remote videoconference deposition services long before COVID-19, so those technologically advanced firms were already in a good position to educate attorneys about remote depositions and guide them on best

Now more than ever, a stenographic court reporter is an important part of obtaining an accurate record of a witness’s testimony for your case.

34 | Columbus Bar L aw yers Quarterly Winter 2021

practices. The ability to adapt and change could be a hallmark trait of a good court reporter. Our machine technology and software has been changing and evolving and improving along with many other tech advances across the globe.

Now more than ever, a stenographic court reporter is an important part of obtaining an accurate record of a witness’s testimony for your case. While technology is changing and becoming more and more automated, that human touch is still necessary for the times when technology fails – and it will fail! The stenographic court reporter is still the gold standard for an accurate record.

According to the 2020 Legal Trends Report from Clio, a leading practice management software solution, “The need to work remotely has encouraged the online transition that many law firms had been putting off and it’s a direction they won’t be able to turn back from.”

In this study, 68 percent of legal professionals are more prepared to handle the impact of future waves of coronavirus and the vast majority of legal professionals say they will continue using these technologies beyond the pandemic.

mean that a remote deposition is the perfect alternative to an inperson deposition in every case, but you can probably imagine there are some witnesses whom you could depose remotely in certain cases.

This could potentially save you and your client thousands of dollars in travel costs and expenses.

The Clio Legal Trends Report also focuses on what a “better normal” beyond the pandemic might look like. The better normal could include more virtual office spaces and less brick-and-mortar offices for attorneys and their clients. Clio CEO

While remote depositions have been occurring for many years, we may be seeing a shift to this method of depositions in many more cases going forward. Now, that doesn’t 35 | Columbus Bar L aw yers Quarterly Winter 2021

Jack Newton states in the introduction of the report, “We’ve seen a seismic shift from lawyers working in physical spaces to working remotely, a trend that many— both lawyers and their clients—will look to maintain even beyond the social impact of the global pandemic. In turn, the technology adoption that we’ve seen during this period has laid the foundation for a new legal-service model that will be better suited to the needs of clients.”

•

•

If you are unsure about the remote deposition process, your local court reporter should be able to assist you with the details and setup. If you are conducting a remote deposition or considering it, below are a few tips to make the process go smoothly and, most importantly, ensure you have an accurate record.

Plan Ahead •

•

•

•

Include language in your deposition notice that states you will be taking the deposition by videoconference. Be sure to check the discovery rules where the case is venued to ensure they permit videoconference depositions and remote oath administration. (Note: The Ohio Supreme Court issued Administrative Actions on July 31, which state “any oath or an affirmation required by a rule of the Court may be administered remotely by use of audio or video communication technology, provided the technology shall allow the person administering the oath or affirmation to positively identify the person taking the oath or making the affirmation.”)i If it is a state case, make sure you know where the witness will be located and hire a licensed court reporter in that state, a notary public in that state or an individual authorized to administer an oath. Many states have mandatory court reporter certification requirements.

Decide how you will distribute the exhibits. It’s best to send either hard copies or electronic copies to all parties in advance of the deposition. You can also screen share the exhibits during the deposition.

Check your computer’s technical specifications. At a minimum, you’ll need a webcam and microphone.

Your internet connection will be stronger if you’re able to hardwire to the internet. Be sure you can mute and unmute your audio.

•

Test all of your equipment and the Zoom platform prior to the deposition. Ask your court reporter to run a test with you if needed.

Remember, a videoconference deposition is not a videotaped deposition. If you want a video recording of the deposition, please schedule a videographer.

• The court reporter should not act as both a videographer and a court reporter, especially during a videoconference deposition.

• By recording the deposition through Zoom, there is no ability to edit the file and remove offthe-record discussions. This could potentially violate attorney/client privilege, which no attorney wants to do.

• Include language in your notice if you want to record the Zoom deposition with a videographer.

If you are defending the deposition, make sure your witness has the proper setup and necessary equipment to appear remotely. Ask them to set up in a quiet room in their home or office. The last thing you want is for your witness to be driving, walking through the grocery store or using the restroom during their deposition. Be sure they have their driver’s license or other identification available to show the court reporter.

In-Deposition Reminders •

• • •

•

Maintain professionalism. Be sure to dress professionally and maintain the same deposition decorum you would if it were in person.

Mute your audio if you’re not questioning.

Remove as many distractions as possible (kids, dogs, television, etc.).

Don’t forget to take frequent breaks. Zoom depositions can be mentally taxing for everyone and may require more breaks than in-person depositions.

Slow down and try not to interrupt. It’s hard enough for court reporters when people talk over each other in person, but when using technology, complete words can be cut out. While you may get the gist of what the witness was saying, it’s the court reporter’s job to get every word.

Maybe you only want to utilize remote depositions as a temporary solution until the pandemic is over and

36 | Columbus Bar L aw yers Quarterly Winter 2021

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then resume in-person depositions. Perhaps you could envision modifying your litigation practice to include more remote depositions. Either way, the key takeaways for remote depositions are PREPARE, PRACTICE and PATIENCE! I would challenge you to consider the remote deposition as another tool that could be beneficial to you and your client, both now and in the future. As Max McKeown writes, “Adaptability is about the powerful difference between adapting to cope and adapting to win.”ii i

07/31/2020 Administrative Actions, 2020-Ohio-3861(D)

ii

Adaptability: The Art of Winning in an Age of Uncertainty, Max McKeown, 2012

Angela R. Starbuck, RDR/CRR/CRC PRI Court Reporting, LLC angie@priohio.com

The National Court Reporters Association, the country’s leading organization representing stenographic court reporters, captioners and legal videographers, has designated Feb. 6-13 as the 2021 National Court Reporting & Captioning Week. The weeklong event, themed ‘All you need is love and steno’, brings court reporters, captioners, court reporting firms, schools and others in the legal industry together to help highlight the many aspects that make court reporting and captioning a viable profession. Learn more: https://www.ncra.org/ home/events/court-reporting-captioning-week

37 | Columbus Bar L aw yers Quarterly Winter 2021

Winter ‘21: Digital Law

BAR PREP

During COVID: A Lawyer’s Perspective

by KATHERINE SILVER KELLY

Everyone on the planet has felt the impact of COVID. It has consumed our lives, and the legal profession has slowly begun to adapt to this new virtual reality. We’ve stopped waiting for things to “get back to normal” and instead are pushing forward into uncertainty—will your internet go out, will your neighbor’s dog start barking, will your kids have a meltdown, will you be able to log-in to that hearing?

I have the good fortune to teach at THE Ohio State University Moritz College of Law, where I am a clinical professor of law—I teach legal analysis and writing— and am the director of academic and bar support.

38 | Columbus Bar L aw yers Quarterly Winter 2021

I define success as what the bar takers did to get themselves to and through this exam. Ohio bar results are out and 93% of Ohio State first-time takers passed. But 100% of 2020 grads demonstrated resiliency, problem-solving and critical thinking skills well beyond that of minimum competency.

I work with students and graduates to prepare them for the bar exam, and the past nine months have been like nothing else I have ever experienced.

When Ohio State president, Dr. Drake, shut down the entire university system in early March, we all thought we’d just hunker down for a few weeks until this thing blew over. I didn’t give the bar exam a second thought; it was more than four months away, and everything would be fine by then.

Within two weeks, my dean and I knew an in-person exam at the end of July could not happen. It would have been too big a risk to bring 900+ bar takers, plus test proctors and bar examiners, under the same roof.

At the time, the National Conference of Bar Examiners was adamant that the in-person July exam would (and should) happen, so all I could do was start preparing my students for a July exam while also trying to guess when it would actually happen. “After Labor Day,” I thought. We’ll all stay home, follow what the scientists and health experts tell us to do. It will be over by the end of summer. I planned two sets of summer bar support programs and I waited. A few weeks later the NCBE, still insisting that an in-person exam was the only viable option, agreed to provide test materials for two different September exams. And still we waited. My students became grads but there was no graduation. We were in the second day of bar prep when Ohio announced it would postpone the exam until September and it was like a dam broke loose. Grads scrambled to contact

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employers about start dates, ask landlords to adjust move-out and in dates, cancel post-bar trips, check health insurance coverage and assess their finances.

It would be tight for a lot of folks but they could make it through. “It’s just a six-week delay,” I said to my dean.

“I can coach them through a six-week delay. We’ve got this.”

39 | Columbus Bar L aw yers Quarterly Winter 2021

While the majority of Moritz grads sit for the Ohio bar exam, we are a national law school and the class of 2020 sat for 26 different state exams. Some of those states chose not to postpone the exam, so quite a few of our grads had to continue studying - most employers did not give an option to defer to February. I can say this now - I pretended I wasn’t scared for them and instead told them it would be ok and they could do it. Well, it was not ok, but the grads pushed through and they did it (as of this writing, 100 percent of Moritz’s July takers passed the exam). They were amazing and stronger than I’ve ever had to be. We are lucky to have them as members of this profession.

As Ohio, and the majority of bar examinees nationwide, trudged forward preparing for a September exam, we watched the pandemic worsen. Grads started requesting medical accommodations because they

could not risk being in a facility with 1,000+ others, even with social distancing and masks. At this point, the NCBE had agreed to provide material for an abbreviated remote exam in early October - while still insisting that an in-person exam was best. And then it happened; almost every state that had delayed from July to September delayed again, this time to the abbreviated remote exam in October. It was the end of July, and everyone was exhausted from studying and dealing with a pandemic that was supposed to be over in April.

The dam broke loose again and the stress level was overwhelming. Some employers pushed start dates to after the exam (or January), while some expected grads to start working full-time in August or September, thinking they’d be “finished” studying. On paper, both seem reasonable. The reality is that neither was a great option. Those who were not working stressed

40 | Columbus Bar L aw yers Quarterly Winter 2021

When Ohio State president, Dr. Drake, shut down the entire university system in early March, we all thought we’d just hunker down for a few weeks until this thing blew over. I didn’t give the bar exam a second thought; it was more than four months away, and everything would be fine by then. about paying bills. It’s already a stretch for many to make it through the regular 10 weeks of bar prep even those with stipends - but now grads had to make limited funds last through early October. Many lost their student health insurance in mid-August, which meant cancelled doctor appointments, inability to fill prescriptions, and no access to healthcare.

Ohio was one of many states to offer temporary practice licensure, so some grads were able to use this to secure employment. Those who had to work might not have had financial struggles, but they had to figure out how to maintain their knowledge and skills for two additional months. A good number of grads also had to figure out childcare, as most schools had already announced they would not be going back in-person.

Not only were grads studying and working and trying to stay healthy, they were also managing their children’s education.

On top of the second delay, the exam would be unlike any other bar exam, as it would be administered remotely. Again, this looked good on paper: two half days and you could take it on a computer in your own home. Easier said than done; with so many folks working from home, it was not that easy to find a room to yourself with no interruptions and little to no outside noise. Even if you had a room to yourself, you had to hope your neighbors would stay quiet because you couldn’t wear earplugs, talk or make other sounds, move around or take your eyes off the screen for more than four seconds. Laptops also had to meet certain

minimum system requirements so the testing system and artificial intelligence program could monitor you.

The Office of Bar Admissions asked law schools to step in and provide testing spaces for their grads who needed it. And we all did: some schools found space in their buildings, while others negotiated discounted rates at local hotels. My colleagues were incredibly generous, and within fifteen minutes of sending the email asking if grads could use office space, more than fifty had volunteered. It’s a good thing, too, because almost forty grads took the exam at the law school. Bar admissions offices across the country proclaimed the exam a success. Perhaps it was, but I think it depends on how you define success.

I define success as what the bar takers did to get themselves to and through this exam. Ohio bar results are out and 93% of Ohio State first-time takers passed. But 100% of 2020 grads demonstrated resiliency, problem-solving and critical thinking skills well beyond that of minimum competency. We can all learn from this group of bar takers; they will make the profession better and I hope we are smart enough to let them.

Katherine Silver Kelly, Esq.

The Ohio State University Moritz College of Law kelly.864@osu.edu

41 | Columbus Bar L aw yers Quarterly Winter 2021

Winter ‘21: Digital Law

Zoom and Its Impact on

LITIGATION: ONE LOCAL LITIGATOR’S VIEW

by TAMI KAMIN MEYER

If you still associate the word ‘zoom’ with that colorful, live-action children’s television program that appeared on PBS from 1999 to 2005, then it’s time to poke your head out of quarantine and get with the latest must-have for the practice of law.

Former Columbus Bar Association and Ohio State Bar Association president Stephen Chappelear, a litigator with Eastman & Smith Ltd., has represented hundreds of clients over his 43-year career. He shared his views on how Zoom has impacted the practice of law.

Attorneys are communicating virtually in ways they most likely weren’t just one year ago. For example, lawyers are conducting depositions and appearing ‘in court’ via virtual platforms such as Zoom and WebEx. And, due to COVID-19 concerns, lawyers are even speaking with clients using those applications in lieu of in-person meetings.

SC: I explained to them the importance of not only giving truthful testimony, but appearing to be giving truthful testimony, which means not looking nervous, shifty-eyed, evasive, confused, lost, distracted, etc.

Many people have behavior mechanisms that have to be overcome for successful courtroom testimony. That is made even more difficult when you are presenting

TKM: How have you trained/ acclimated clients to testify via Zoom?

Pandemic or not, our society needs a mechanism to resolve disputes fairly, quickly, efficiently and economically, and in a way that does not jeopardize people’s health. Until we are able to meet face-to-face again without significant health risk, Zoom is a helpful tool for depositions, hearings, trials, mediations and conferences.

42 | Columbus Bar L aw yers Quarterly Winter 2021

your testimony to a computer camera.

We did some practice sessions, which were recorded, and then used that as a teaching tool.

TKM: Did any clients/ witnesses have problems adapting to Zoom?

SC: Most did fine, but some were distracted by looking at other images on the screen, or things happening in their background (barking dog, as an example).

TKM: Did you start training people immediately upon quarantine or only after the first “debacle”?

SC: It was apparent very quickly that depositions, hearings and trials would not be proceeding as before, for a while, so we right away added to normal witness preparation specific instruction about what is different about testifying via Zoom versus in a courtroom.

TKM: How do you compare deposing people via Zoom vs. in person?

SC: Taking a deposition via Zoom is better than not taking a deposition at all, but it is not ideal. Dealing with exhibits is cumbersome. The psychological dynamics are different. It is harder to read the witness and evaluate how they will do testifying in trial.

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TKM: Anything you want to add about Zoom and its place in litigation?

SC: Pandemic or not, our society needs a mechanism to resolve disputes fairly, quickly, efficiently and economically, and in a way that does not jeopardize people’s health. Until we are able to meet face-to-face again without significant health risk, Zoom is a helpful tool for depositions, hearings, trials, mediations and conferences.

Tami Kamin Meyer, Esq.

attorneytkm@gmail.com

43 | Columbus Bar L aw yers Quarterly Winter 2021

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45 | Columbus Bar L aw yers Quarterly Winter 2021

Student Section: Observations from Law Students

What I Wish I Knew

BEFORE I STARTED LAW SCHOOL

by HANNAH TRAVIS

To begin, don’t let anyone talk you out of it. From a young age, I always knew I wanted to be a lawyer. I don’t have any lawyers, or even anyone in law enforcement, in my family—it was just an interest I had on my own. I liked the idea of the law, the idea of being in a courtroom and the idea of representing and advocating for others.

Here’s why I say not to let people talk you out of your dreams: I’m from a smaller town. When I was a junior and senior in high school, I began looking into colleges.

From this point on, and even through the next few years, I can’t tell you how many people told me NOT to be a lawyer. I heard about how “I wouldn’t be able to get a job,” but yet I wanted to be a family lawyer and divorce rates are pretty high! Riddle me that logic.

Anyway, back when I was finishing up high school, I really began questioning myself. I thought maybe those people were right—maybe I wouldn’t get a job

STUDENT SECTION

or maybe I wasn’t even smart enough to be a lawyer.

I let the idea of being a lawyer go and entered college with a declared major in Communication Sciences and Disorders (to go on to become a Speech-Language Pathologist). During my first semester of college, I kept getting drawn to seminars that had anything to do with law or crime. I literally couldn’t stay away. After listening to one professor talk about how I could do anything I wanted, I left the building, called my dad, said I was doing everything wrong and changed my major within a week. I ended up graduating college with a B.A. in Sociology-Criminology and a B.A. in Psychology.

During my senior year, I took the LSAT (Law School Admission Test) and was accepted to my first-pick law school.

46 | Columbus Bar L aw yers Quarterly Winter 2021

Back on the real topic, as I mentioned above, I went into law school kind of “blind.” I didn’t have family members that were lawyers; I relied on networking in my community to have even the slightest clue about what being a lawyer really looked like (that’s all for another article). I want to share what I learned during my first year of law school, so that other “first-gen law students” feel they aren’t alone.

1. Cold-call.

I didn’t have family members that were lawyers; I relied on

Getting “cold-called” isn’t that bad. Most law school professors use the Socratic method of teaching, meaning that you go to class (having read all of the assigned reading, of course) and the professor randomly calls on a student to tell them the facts of the case. I may be biased toward my school and professors, and I can’t speak for other schools, but the professors TRULY want you to learn. Most professors aren’t going to try and embarrass you. They definitely want you to try your best, and they will know if you haven’t read and are unprepared, but this isn’t the death of your law school career. To be honest, your classmates probably aren’t even listening to what you’re saying because they’re still calming down after not being called on. On the flip side, even if they are listening, they don’t care if you get something wrong. Seriously.

networking in my community to have even the slightest clue about what being a lawyer really looked like (that’s all for another article). I want to share what I learned during my first year of law school, so that other “first-gen law students” feel they aren’t alone.

47 | Columbus Bar L aw yers Quarterly Winter 2021

Go see your professors. Establish good relationships with them. I’ll be the first to admit I didn’t do this much in undergrad, but in law school, it’s important.

2. Read.

Speaking of #1, do the reading for class. It’s not fun, and it’s a lot, but it’s worth it. You’ll never forget the first time you get called on and feel so prepared to answer any question the professor asks. You’ll also never forget the first time you get called and don’t know the answer to anything the professor asks—so just read or at least skim the cases. You also want to brief the cases, as this will help you have an outline of what happened in the case. I’ll explain briefing, don’t worry. It’s also important to read, because reading the cases is what helps you learn and understand the law. It’s much easier to follow along in class if you know what’s going on. (P.S. You need to take your books to class!)

3. Briefing.

What the heck is briefing? Basically, when you’re reading a case, outline what’s happening. There’s a reason these cases went to court and a reason you learn about them in law school. You’ll want to note: •

•

•

•

• •

The facts of the case (who, what, when, where) • Who are the parties? What happened? Where did it happen? What court? When did this happen?

The issue • What issue is the court deciding/resolving in the case?

The rule • What rule did the court give for this case and similar cases that will follow?

The reasoning • Why did the court come to this conclusion? Did they look to previous case law?

The holding • What was the outcome of the case?

The policy • Was there any policy reason given for why the court made this decision?

4. Outlines.

If you’re anything like me, you’ll actually LOVE outlining.

I truly enjoy the organization and color-coding (if you’re into that). Your outlines are like study guides that you will use to study for exams. You’ll have big main topics and a bunch of subtopics. Outlines are written as if they’re a template for writing answers to exam questions. With each rule or test, you’ll do an “IRAC.” This stands for 48 | Columbus Bar L aw yers Quarterly Winter 2021

issue, rule, analysis, conclusion. The issue is what’s the issue here, what am I trying to resolve, what’s the problem. The rule is the rule that you learned and will apply. The analysis is the longest part. Each rule or test will have elements. Under each element, you will list facts that meet or don’t meet that element. Then, you conclude briefly based on your analysis.

Additionally, don’t wait until the end of the semester to begin your outlines. You should start your outlines within the first couple weeks of school and add to them periodically. Some people update their outline after each big topic, and some people like to outline after each class. You will find what works for you. In the beginning, outlining is hard because you have to come up with your own style. Once you get better at it, I think it’s a lot easier to outline after each class so that you don’t get behind (and the topic is fresh in your mind).

Lastly, I wouldn’t recommend relying on legacy outlines.

For one, creating the outline is part of learning it. You will create your outline in a way that best helps YOU understand the material. Someone else’s outline was created to help them best learn the material. With that being said, this doesn’t mean you can’t look to legacy outlines for guidance. Sometimes these outlines can help you fill in gaps or add tips that you didn’t catch.

You can also use these to compare your outline with or see how others organize their outline. Again, the biggest thing to remember here is that your outline should be created by YOU to help YOU learn.

5. Exams.

For most classes, a final exam at the end of the semester will account for your entire grade for that class, or at least a majority of it. Again, this is what your outlines

49 | Columbus Bar L aw yers Quarterly Winter 2021

really have to.) Additionally, if you find a good group, you can lay out exactly what you need to be successful. For example, my friends and I are really good about getting a table in the library, talking about questions with each other when necessary and then sitting quietly together and doing our reading or outlining. The important thing is that you’re together, so if you do need to interrupt and ask a quick question, you can. However, there is a mutual understanding that you are together to get work done. There’s no time to waste in law school.

prepare you for (and why you should create your own).

This also ties in with the “IRAC.” On an exam, you will be given a fact pattern and question on that fact pattern.

Your essay will be set up in paragraphs—issue, rule, analysis, conclusion. State the issue, state the relevant rule, analyze each element of the rule (including arguments for both sides where necessary), and then make a conclusion to the issue.

Also, having a study group is great for exams. The best thing to help you prepare for law school exams is taking practice exams the professors will give you. Having a group is important because you can try the exam on your own and then collaborate with your group to see if you all spotted the same issues, used the same rules and applied the facts correctly. With that, professors are really open to having office hours with study groups to go over these practice exams collectively.

6. Study groups.

7. Office hours.

I have always been someone who studied alone. I’m someone who needs quiet to study, and I never got much done with other people. If you’re like me, this will likely change in law school. First of all, law school is hard enough. It’s important to make a good friend group that you can work with. If you need to miss a day of class because you’re sick, these are the people you can get notes from. (Side note: Don’t skip class unless you

Go see your professors. Establish good relationships with them. I’ll be the first to admit I didn’t do this much in undergrad, but in law school, it’s important. You want your professor to know who you are, learn your name, and know that you care and are trying. Going to office hours can also be helpful for those that are shy about asking questions in class.

8. Attire.

Okay, this one might be a little crazy, but it’s something I literally googled!!! I was an athlete in college, so I often went to class after lifting or practice and looked like

50 | Columbus Bar L aw yers Quarterly Winter 2021

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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)

Medicare Plan Assistance

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.

a bum. I wondered if I had to dress professionally in law school. Seriously—I googled what to wear to law school class. I don’t know about other schools, but at my school, people wear whatever just like undergrad.

Sometimes you will see upperclassmen dressed up, but this is because they either are working while going to school or have an interview that day. On a day-today basis, you can wear whatever you normally would though. Jeans, hoodies, leggings, whatever you want.

It’s just like undergrad. However, I will say, the nice thing about law school is that if you want to dress up for a day just for fun, no one will question it. Just do your thing.

10. Networking.

You’ll have the word “networking” drilled into your brain in law school. You’re networking with your classmates every day. Remember, these people are going to be your colleagues—be nice. Networking really is important, though. You want to get your name out there for job offerings. Make good first impressions!

I understand this is getting to be lengthy, so I’ll wrap it up. I just know there are so many things I wish I knew before going to law school. I also went straight from undergrad, so my input is from a different perspective than those who may have worked or taken time off.

9. Anonymous grading.

Exams are graded anonymously, so your professors don’t know they’re grading your exam. You’re given a number to identify yourself on your scantron. This is so that there is no bias when grading your exams.

Hannah Travis

Law Student Capital University Law School

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Life Outside the Law

Deborah McNinch

BY HEATHER G. SOWALD Deborah McNinch finds relaxation and connection with her family through her hobbies of singing, traveling, gardening and genealogy research.

Growing up in Warren, Ohio, Deborah was inspired by her mother’s early career as a singer with the touring U.S.O. Her mother, a homemaker, and her father, a G.M. systems analyst, encouraged Deborah and her sister in their appreciation of music and art.

She spends time almost every weekend with either her parents up near Andover, Ohio, or traveling to the family farm in West Virginia. She and her parents also take several long road trips each year, one of which is generally to Niagara Falls. They enjoy going there to see the shows and try their luck at the casinos’ penny slots. These weekly and vacation road trips add up to about 30,000 miles of driving each year for

Deborah played the flute and bassoon in her high school’s symphonic band and was a flute and piccolo player in the marching band. A soprano, she sang in the Western Reserve High School’s choir, quartets and madrigal singing groups. She took singing lessons to hone her skills for her performances in high school regional and state solo and group singing competitions. Deborah says it was like being in the show “Glee” before Glee became popular.

Deborah and her mother still sing “Messiah” together with the Warren Community Chorus during the Easter and Christmas season.

Fortunately, because she loves to sing along to recordings of Broadway musicals, she is able to keep her vocal chords in shape the rest of the year.

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Deborah began working for the Joseph & Joseph law firm 13 years after law school (OSU Moritz, 1991). She first worked for five years for Thomas Bolon, a domestic relations attorney, and then spent five years with a small Cleveland civil law firm. her. Deborah admits to enjoying the frequent long-distance driving, which she says relaxes her.

Deborah and her mother also spend time together indulging in their love of gardening in her parents’ large yard. They combine their artistic visions and knowledge of plants to map out what to buy and where to plant, tending them during the growing season.

She is also a history buff who became enamored with researching her family’s origins after finding out that she qualifies, on her father’s side, to be a member of the Daughters of the American Revolution (D.A.R.).

Deborah finished researching her father’s family, and is currently researching her mother’s ancestry, searching historical books and societies, clerks’ offices and census records looking for birth, marriage and death records.

Several years ago, Deborah took oil painting and drawing classes at the Cultural Arts Center downtown. She enjoyed these classes as another outlet for indulging her creative nature.

Deborah began working for the Joseph & Joseph law firm 13 years after law school (O.S.U. Moritz, 1991). She first worked for five years for Thomas Bolon, a domestic relations attorney, and then spent five years with a small Cleveland civil law firm. She has been with the Joseph firm since 2004, handling civil and business matters, including domestic relations cases.

Deborah hopes someday to take more art classes and rejoin structured singing groups when she is no longer traveling every weekend. She is also a history buff who would love to indulge in more reading and research. In the meantime, she counts herself to be fortunate to be able to spend so much time with her parents, and to indulge with them in traveling, gardening and the occasional singing performances.

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com

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Life Outside the Law

Getting Your Mind Off of 2020 at Least for a Few Hours

BY JANYCE C. KATZ The year 2020 has been a difficult one, from a problematic election to a deadly virus and the economic issues it is leaving for all of us to deal with during the next few years.

One thing one could do is to pick up a bottle of a good scotch, vodka or brandy and just drink until you can’t differentiate between Biden, Trump and the COVID-19.

A far healthier response would be to exercise to stay healthy and read fiction to envision other worlds without such issues.

I am suggesting three books that could take your mind off of 2020 just long enough to let 2021 get a good start, and, hopefully be a much better year: John Grisham’s “The Brethren”, Carl Hiassen’s “Squeeze Me” and S. Lee Manning’s “Trojan Horse”.

THE BRETHREN John Grisham John Grisham’s The Brethren is about good ol’ corrupt judges, CIA meddling in the elections (an American attempt, not the alleged Russian fingers) and a very ambitious elected official turned presidential candidate.

Only, this official has a great big secret that could derail his campaign.

Mind you, this book came out the year some of our newest attorneys were five years old. If you can remember back then, it was before 9/11 changed the New York skyline and our worldview, before we had an unending war in Afghanistan against the Taliban: an organization whose members believe women should not be educated or go out of the house without a male escort, before Saddam Hussein, President of Iraq from 1979 making threatening noises was destroyed, before hanging chads and the Supreme Court decided the presidential election by stopping the vote count and before we started making peace with said Taliban.

Back in those pre-internet days, the mail was used to send messages. Today, we worry that it might not send briefs, ballots or secret love letters to the right place.

Grisham introduces us to Joe Roe Spicer, Finn Yarber and Hatlee Beech, who have given up the black robes of a judge for the pin stripes of a prisoner of Trumple, a minimum-security federal prison in Florida with no

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I am suggesting three books that could take your mind off of 2020 just long enough to let 2021 get a good start, and, hopefully that will be a much better year: John Grisham’s “The Brethren,” Carl Hiassen’s “Squeeze Me” and S. Lee Manning’s “Trojan Horse.” fences, no guard towers, no razor wire and lax security.

These three prisoners wore old pale green, goldtrimmed church robes from a church choir when they sat once a week to adjudicate prison cases. Cases ranged from a prisoner’s use of a cell phone (illegal to have in prison), when that prisoner had “borrowed” the phone from another prisoner, to ordinary disputes. The prison staff allowed the “court”, as it defused tensions.

Luckily for the three “judges”, no prison authority really

watched what happened in the court or monitored the judges’ activities.

The judges did have a little money-making scam on the outside. To tell how and why the CIA started tracking them, and where the presidential candidate fits into the mess these judges created, would be a plot spoiler and would ruin the suspense. I will say that an alcoholic, derelict lawyer who loved gambling handled the money

when it came in, along with the mail to and from the three judges. Somehow he had avoided his state’s ethics and professional committees for many years while having a very strange case load.

“The Brethren” is a light, fun read with relevance in an era when people are concerned about a presidential election and about the judges and justices appointed for life by whomever is elected. The best part of this book, at least for me, was that it so engrossing, it pulled me into the reality of 2000 Florida/D.C. so that for a while, I totally forgot about virus spikes, voting issues, candidates grubbing for money and the wars between and against media.

Oh yes, and some Florida developer issues plaguing me were also obliterated, at least for the moment. What a well-needed rest. I recommend it to all political, legal and thriller junkies as well as to everyone else.

SQUEEZE ME Carl Hiassen Speaking of Florida, Hiaasen’s newest book, “Squeeze Me”, offers a different view of Palm Beach, Florida: one filled with slimy huge snakes with a propensity for swallowing little old ladies. No, this book does not feature a two-legged snake prowling the elite balls and parties looking for a lonely, extremely wealthy widow in need of a companion. While such snakes do show up periodically in Palm Beach, one particularly problematic snake was a python - a huge one. The python had somehow or other wiggled itself north from the Everglades to Palm Beach and found itself a comfortable spot in the yard behind an elegant facility used for very fancy, very exclusive, very expensive events. The unfortunate lady, Kiki Pew Fitzsimmons, had purchased a table for herself and friends at a major charity gala: the annual White Ibis Ball. Hiaasen described the event as “the marquee fundraiser for the Gold Coast chapter of the IBS Wellness Foundation, a group globally committed to defeating Irritable Bowel Syndrome”. Kiki made the mistake of stepping outside, while well-lubricated on fancy alcoholic drinks, and vanished. For a while, only that python with its new, satisfyingly large bulge, knew what happened to her.

The lady in question held quite an important position in a group designed to promote the U.S. President, who

just happened to have a winter house in Palm Beach.

No comparison, of course, to the real Mar-a-Largo or real President Donald Trump. Prior to her encounter, she had been a leader of the Potussies, which had been rehearsing a number to present to the President at his next big event. Her disappearance meant that someone else had to fill in for her at the event. Her fellow Potussies used their powerful White House connections to increase the pressure on local police and sheriffs to find out what had happened to their friend.

Again, not to ruin the plot for anyone who needs a good chuckle, let me just mention that somehow an illegal immigrant, rather than the python, is found to be the murderer of poor Kiki. Also, a one-eyed former governor living in the Everglades takes revenge on people who smash poor alligators on the head and torment people just for fun. I must leave out the pole dancer and her book, as well as other animal control and police interactions, so that Hiaasen’s humor and satire isn’t undermined and foiled by a mere book review. The court case, however, should be food for thought. Do remember the stories as to how Jeffrey Epstein was treated when you read Hiaasen’s satire.

TROJAN HORSE S. Lee Manning More on the thriller, hard-to-put-down side, S. Lee Manning’s “Trojan Horse” features spies, an impaling terrorist, betrayal, disloyalty, danger and a few murders.

Point of information, the author is my sister who always wanted to be a writer, but due to a great love of eating and comfortable housing, became an attorney who worked first for Cravath Swaine & Moore in New York, then for the NJ Attorney General’s office and had her own small firm for a few years thereafter. Retired from law and living in Vermont, she has returned to her first love, writing. Not because she is my baby sister, but because she wrote an extremely good thriller, I am recommending this book.

First, spy Gina Antonia, specifically implanted in the bedroom of a terrorist, Mihai Cuza, is murdered. Cuza, handsome, charming and deadly, had a plan. Gina seemed to be more interested in finding out about that plan than in the bedroom activities with Cuza. So, he impaled her and left her on the pole.

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As an aside, a small history lesson about the murderer, who happens to be a descendent from the Romanian “hero” Vlad III, Voivode of Wallachia, the second son of Vlad Dracula, who became the ruler of Wallachia in 1436. Vlad III, better known as Vlad the Impaler, Vlad Dracula and the role model for Dracula, liked to impale his enemies on poles, not only because death became more painful, but because the bodies could just hang around, so to speak, to serve as a warning to others. Vlad III’s upbringing could have shaped him, as he and his brother were held hostage by the Ottoman Sultan of the time so that his father would be properly subservient to the Ottoman empire. As an adult and as the Voivode, Vlad III had the Sultan’s two envoys captured and impaled when the Ottoman Sultan sent an order that Vlad III had to pay homage to him personally. Cuza, his relative in the 21st Century, uses the same method of killing those who cross him.

No need for court systems in their world!

Fellow spy Nikolas Ivanovich Petrov, known as Kolya, was heading the attempt to find out what Cuza had

planned and had allowed Gina to become Cuza’s playmate in an attempt to get critical information from him. Kolya’s boss decides sacrificing him to get information might be the best way to find out whatever Cuza had planned to do. So, he kisses his fiancé good-bye, thinking he was headed toward a piece-ofcake assignment, and walks into a trap. Can’t tell you anymore about this book, either, or I will spoil the fun of reading it.

What I can say is that reading any of these books (or all of them) will distract you from the real world and all its current issues. Enjoy the books!

Janyce C. Katz, Esq.

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

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Life Outside the Law

HOW TO SAVE A LIFE

BY SCOTT R. MOTE, ESQ.

If your friend were having a heart attack, what would you do? Would you call 911, or would you watch them suffer? Most people would seek medical attention as soon as possible.

You want your friend to live.

If your friend, colleague or family member were slowly dying from a substance use disorder or a mental health issue, what would you do? Would you seek help, or would you watch them suffer? Unfortunately, many people do not understand that substance use disorders and/ or mental health issues are just as serious as a heart attack. Many people will die from these disorders if they do not seek professional help.

At the Ohio Lawyers Assistance Program, we get many calls from friends, co-workers or family members who are concerned about a person’s substance use. They call to inquire about what to do, but are afraid to let us know the name of the person of concern. They don’t want to “snitch” or get the person in trouble, they don’t want the person to know they called, etc. This does not help the person in need. The only thing you are doing is prolonging the inevitable.

A sad story at OLAP I will never forget is when a paralegal called OLAP several times concerned about her boss’s drinking problem and lack of professionalism. The paralegal did not want to give the attorney’s name because they had been friends for 20+ years, and she didn’t want to lose her job. The last time the paralegal called, she was concerned because the attorney did

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Whether it is drinking too much, overusing prescription drugs or street drugs, substance use disorder is an illness that needs professional treatment. A concerned friend, parent, partner, colleague or supervisor cannot cure a sick person. not show up for a client meeting.

The paralegal called the attorney’s brother to let him know that she did not show up to work. The brother went to the attorney’s house, and he found her dead. It was too late.

If only OLAP had known the name of the attorney, we could have intervened and helped her get the treatment she needed.

OLAP is 100 percent confidential.

This means that the person you are concerned about will never know it was you who called. You are doing the best thing for the person. You wouldn’t let this person die in front of you if they were having a heart attack, right? So why would you let them suffer from something they cannot control?

Whether it is drinking too much, overusing prescription drugs or street drugs, substance use disorder is an illness that needs professional treatment. A concerned friend, parent, partner, colleague or supervisor cannot cure a sick person.

It is tough to understand the mindset of an addict if you are not one.

Addicts will do whatever it takes to continue the lifestyle they believe works for them. A friend of mine [Jane] who has been sober for 20+ years told me a story of the lengths she would go to just so she could keep drinking. Jane was at work when her good friend Sara caught her drinking in the ladies room. Sara was concerned and asked Jane how she could help. Jane knew that Sara genuinely wanted to help, but now that Sara knew how problematic Jane’s drinking had become, Jane knew she had to sever the friendship.

For fear of never drinking again and of losing her job, Jane made up a rumor about Sara, told their boss and Sara got fired. Not only did Sara get fired, she got evicted from her apartment. All because Jane did not want to quit drinking. This is the mindset of an alcoholic/addict.

It is common that people with substance use disorders will disown you once you start questioning their substance use. They will believe you are overreacting. Jane was quick to get Sara fired just because Jane

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wanted to keep drinking. The addict does not believe they have a serious problem. The easiest thing for them to do is to write you off.

People with substance use disorders will often turn the problem around on you - the friend, partner, colleague, family member. Some common excuses they will give are: • • • •

•

I wouldn’t drink so much if you would just stop nagging me.

I would stop taking my anxiety medication if you didn’t give me constant anxiety.

I wouldn’t have to drink if you stopped giving me so much work to do.

I would get help for my mental illness, but I don’t have a mental illness. You are the one who is always worrying about me. That’s your problem.

I don’t have time to get professional help, and I don’t even need it. You do.

What should you do?

If you are concerned about a friend, partner or colleague, the first thing you should do is call OLAP. We can provide

you with information on how you can talk to the person, and how you can take care of yourself.

OLAP can also help you stage an intervention. We will coach you on how to compose very specific, hardhitting but nonjudgmental written statements that point out examples of the person’s unacceptable behavior.

We will then facilitate the intervention.

Call OLAP The most important thing to remember is that you cannot cure a person with mental health and/or substance use disorder. The best gift you can give the person is a call to OLAP. They will never know you called. If you call OLAP, you could save a life.

(800) 348-4343 www.ohiolap.org

Scott Mote, Esq.

Executive Director Ohio Lawyers Assistance Program smote@ohiolap.org

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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.

Background Checks

Education & Testing

Stamps & Supplies

www.cbalaw.org/notary The Columbus Bar Association is Ohio’s Notary Public Resource Center

Background checks • Education for new, attorney and renewal applicants • Testing for new applicants • Stamps and supplies

Life Outside the Law

BOOK REVIEW:

Soul Full of Coal Dust: A Fight for Breath and Justice in Appalachia

BY PAIGE KOHN The story told here echoes the legal struggles explored in films, some based on books, such as “A Civil Action”, “Erin Brockovich”, and “Dark Waters”. Instead of water pollution as the backdrop, however, “Soul Full of Coal Dust” explores the dust that causes coal workers’ pneumoconiosis, more commonly known as black lung.

Chris Hamby, an investigative reporter for The New York Times, travels to the heart of coal country—West Virginia—and weaves together a moving narrative of coal miners and their lawyers.

Yet, black lung did not end in 1969, nor did the benefits system work as planned as the decades passed. By centering on the personal experience of Cline, along with his clients such as Gary Fox, a selfless coal miner who wanted a better life for his wife and daughter, Hamby explains why.

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One of these lawyers is John Cline. Originally from New York, Cline moved to West Virginia in 1968 as a young man working as a VISTA, a program designed to fight the War on Poverty.

An idealist who wanted to help others, Cline began working with coal miners. Just one year later, in 1969, the landmark Federal Coal Mine Health and Safety Act was enacted, which was heralded as the end of black lung.

Through newly imposed safety measures, it was meant to limit miner exposure to dust, and also created a federal benefits system to compensate injured miners.

Yet, black lung did not end in 1969, nor did the benefits system work as planned as the decades passed. By centering on the personal experience of Cline, along with his clients such as Gary Fox, a selfless coal miner who wanted a better life for his wife and daughter, Hamby explains why. By 1988, approval of benefits by the U.S. Department of Labor had reached a staggering 4 percent.

By the 1990s, black lung began rising again, and was affecting younger miners more quickly. While unfortunate explosions dominated headlines and caused more than 300 deaths between 1995 to 2004, about 10,000 miners died during the same period of black lung.

While the benefits system was intended to be a remedial workers’ compensation system, it really had become more like civil litigation warfare. A major reason for this development was when the responsibility for paying claims transferred from a federal trust fund to coal companies. This incentivized the coal companies to contest just about every claim, and in doing so, an effective legal strategy was born.

Through his perseverance, Cline found an opening in one of the civil litigator’s favorite phases – discovery.

Ironically, civil procedure was one of the courses in law school Cline found most distasteful. But, he knew a coal company’s legal strategy relied on minimizing the disclosure of medical expert reports, some of which actually showed black lung. For example, in Fox’s case, whose pathology report showed complicated pneumoconiosis, the evidence was buried. In many

Through extensive research and interviews, Hamby shows how politics, business, medicine and the law worked together to create this state of affairs. His reporting is well-deserving of the Pulitzer Prize he won in 2014 for his work, which culminated in this book published in 2020. It will appeal to those interested in legal areas like workers’ compensation, medical malpractice and civil litigation.

Regarding the law, miners faced what Hamby calls a “bizarre legal system that has become dizzyingly complex.” Most lawyers wouldn’t take the benefits cases for miners. The fee was not commensurate with the risk nor the time required, which could take years. Many miners died before their cases were even over. Indeed, the legal challenges were one of the prime motivators behind why Cline went to law school at age 53.

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cases, after Cline would finally get the medical reports through discovery, the coal company would agree to pay the benefits rather than continue fighting.

As for the increase in black lung, miners were cutting into areas with more silica, which caused more severe black lung. Another source was widespread safety fraud. The Appalachian coal industry was struggling economically - production was shifting to surface mines and fracking for natural gas – and safety didn’t pay. In what was called the “Great Coal Dust Scam” in the field, there was tampering with the filters that monitored coal dust. Litigation began in the early 1990s, pitting the Labor Department against the coal companies, but it fell apart through legal obstacles from semantics of the word “alter” to the burden of proof. Criminal cases were also filed, largely without much success, though CEO of Massey Energy, Don Blankenship, was found guilty of a misdemeanor charge of conspiring to willfully violate mine safety and health standards in 2015.

Amid all the political and legal wrangling, Hamby illustrates the human element of miners. In West Virginia, while there has been a wealth of natural resources, there is continued poverty. Many, like Fox, went into mining because it was the best economic option in the southern part of the state where he lived.

He wanted his daughter to be able to attend college, and he kept working even when sick so she could afford to

go. When she enrolled at West Virginia University, and eventually became a nurse, Fox was bursting with pride.

While Hamby’s account is not meant to offer solutions to these disparities, his narrative shows how economic imbalances can wreak this havoc on everyday lives.

In 2015, the U.S. Labor Department reiterated what Cline and miners had been saying for years: “Congress had designed a system that, while adversarial, was supposed to function more like a hybrid workers’ compensation system; it was a remedial program meant to protect miners.” Reforms were finally passed. And in a capstone moment for Cline, a mandatory medical expert report disclosure rule passed and was made effective in May 2016. While Fox had been dead for seven years by then, Cline had achieved something that had underscored all his efforts for his clients. Fox would have been proud.

Paige Kohn, Esq.

Franklin County Common Pleas Court paige_kohn@fccourts.org

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Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court

by MONICA L. WALLER Verdict: $44,514,226.00 ($24,514,226.00 in economic damages; $20,000,000.00 in non-economic damages).

Medical Malpractice.

9-year-old Bradley Metts was taken to his pediatrician’s office on Nov. 5, 2013 with symptoms that included headache, light sensitivity, nausea, vomiting, fatigue, dizziness and decreased appetite. Bradley had seen his pediatrician about a week earlier with similar symptoms.

The nurse practitioner ordered laboratory tests on a STAT basis and sent the blood to Athens Medical Laboratory for analysis. Bradley came back to the pediatrician’s office the next day for his results. The lab results did not include results for the erythrocyte sedimentation rate and C-reactive protein. Without seeing those lab results, the nurse practitioner concluded that Bradley had mononucleosis. She sent him home with instructions to take fluids and rest. Two days later, Bradley was taken to Children’s Hospital because his condition had worsened. There, he was diagnosed with an infection in his brain and underwent surgery.

Following

surgery, the pressure in Bradley’s brain increased and caused damage to Bradley’s brain that resulted in near complete paralysis.

It was later discovered that the ESR and CRP lab results were abnormal.

Bradley’s father filed suit on behalf of himself and Bradley against the pediatrician, nurse practitioner, the Lab, Children’s Hospital and the neurosurgeon who performed Bradley’s surgery. Plaintiffs argued that, if the nurse practitioner had seen the ESR and CRP results on Nov. 6, the infection would have been diagnosed and treated without causing damage to Bradley’s brain.

Plaintiffs also argued that Bradley’s paralysis could have been prevented if the neurosurgeon had properly monitored the increasing pressure in Bradley’s brain. Plaintiff asserted that Bradley was cognitively intact but unable to talk and locked in a body that was permanently paralyzed. All of the defendants except the Lab settled before trial.

The Lab argued that the failure to return the lab results by the following day was not a breach of the standard of care. The Lab also argued that returning the results earlier would not have changed the

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outcome. The jury found for plaintiff and apportioned 50 percent of responsibility to the Lab, 45 percent to pediatric office, and 5 percent to hospital. The Lab moved to reduce the verdict based on statutory damage caps. Plaintiff moved for pre-judgment interest arguing that the Lab did not make a good faith effort to settle before trial. The Court concluded that the caps did not apply because the claim was not a medical claim and because the caps were unconstitutional.

The Court also ordered the Lab to pay pre-judgment interest. The Lab appealed. The parties reached a settlement while the appeal was pending. Medical Specials (past): $3,223,647. Other Special Damages (past): $65,000. Special Damages (future): $18,557,568.

Lost earnings (future): $2,668,011.

Length of Trial: Nine days. Plaintiff’s Experts: Michael Chaparro, M.D. (neurosurgery); Mark Zonfrillo, M.D. (emergency medicine); Kenneth Fisher, M.D. (neurology); Michael Brookshire, Ph.D. (economist); Cam Parker (life care planner).

Defendant’s expert: Joseph Gigante, M.D. (primary care). Last settlement demand: $5 million. Last settlement

offer: $250,000. Plaintiff’s Counsel: Gerald S. Leeseberg and Craig S. Tuttle. Defendant’s Counsel: Andrew S. Good and Michael J. Hudak. Judge Charles Schneider (2018).

Verdict: $100,000 ($65,000 for economic loss; $35,000 for non-economic loss).

Automobile Accident.

On June 8, 2015, a vehicle driven by defendant Donald D. Harper crossed the center line on Tremont Road and struck a number of vehicles headed in the opposite direction including a vehicle driven by plaintiff Schuchun Li. Li claimed that the injury caused a mild traumatic brain injury that was permanent and caused him functional and emotional disability. At the time of the accident, Li was a visiting scholar in the Mechanical and Electrical Engineering Department at The Ohio State University. The focus of his work was electronic car battery optimization. Li claimed that, as a result of the accident, he was unable to complete the work necessary to earn his Ph.D. He presented testimony from a vocational and economic expert who testified that

he would have earned between $1.7 million and $3.2 million over the course of his career. Defendant died of unrelated causes before trial. His counsel conceded liability and the parties agreed to limit recovery to the available insurance coverage, which was $2 million. Defendant’s counsel argued that Li did not suffer a traumatic brain injury, but only a concussion and post-traumatic stress disorder. Plaintiff did not seek compensation for medical expenses. Li was working full time at the time of trial. In closing argument, Plaintiff asked the jury to award $3.2 million for future lost wages and an additional $3.2 million for pain and suffering. The jury concluded that he did not suffer a traumatic brain injury, but suffered a concussion. Future Lost Wages: $3.2 million. Length of Trial: Seven days. Last Settlement Demand: $1.9 million. Last Settlement Offer: $150,000.00. Plaintiff’s Experts: Randall R. Benson, M.D. (neurology); Sara Ford, MRC (vocational economist); Richard Frederick, Ph.D. (psychologist). Defendant’s Experts: Gerald Steiman, M.D. (neurology); Angeles M. Cheung, Ph.D. (neuropsychologist); Joshua Shimony, M.D. (neuroradiology); Donald Tosi, Ph.D. (psychologist).

Plaintiff’s Counsel: Daniel R. Volkema and Christopher R. Green.

Defendant’s Counsel: Robert C. Buchbinder. Visiting Judge Guy

Reece. Case Caption: Shuchun Li, et al. v. Progressive Direct Insurance Company, et al., Case No. 17CV004974 (2020).

Verdict: $5,001.00. ($5,000 in economic damages; $1 in noneconomic damages).

Automobile Accident.

According to plaintiff, Ramona Schwalbach, on Jan. 26, 2018 she was traveling southbound on Sawmill Road just north of I-270 when her vehicle was struck from behind by a vehicle driven by Defendant Kelly Rogers. Neither vehicle had noticeable damage.

The drivers exchanged information and left. Schwalbach claimed that her neck snapped back when her vehicle was struck. She felt pain in her neck and shoulders. She also experienced memory lapses and cognitive difficulties after the accident. Her family physician diagnosed her with whiplash and a concussion and related those conditions to the accident.

Schwalbach saw a chiropractor, a physical therapist, and a speech therapist in addition to her family physician. Schwalbach was to start a new job the day after the accident at Key’s Tax Service. However, she was never able to start that job due to post-concussive symptoms.

Defendant argued that she did not hit Schwalbach’s car. In fact, Rogers testified that Schwalbach rearended her. She also argued that the contact between the vehicle was very minimal with no damage to either vehicle. Therefore, the impact was insufficient to cause the physical injuries that plaintiff

67 | Columbus Bar L aw yers Quarterly Winter 2021

claimed. The jury concluded that Rogers caused the accident and awarded Schwalbach $5,000 for her medical expenses and $1 for her pain and suffering. Plaintiff filed post-trial motions for judgment notwithstanding the verdict, for a new trial, and for additur. The Court denied those motions. Medical Specials: $16,147.82 (reduced to $8,997.32 after write-offs).

Lost Wages: $3,840.00. Length of Trial: Two days. No information regarding settlement discussions was provided. Plaintiff’s Expert: Katherine Westra, M.D. (family medicine). Defendant’s Expert: None. Plaintiff’s Counsel: Shawn Dingus. Defendant’s Counsel: Alix West. Magistrate Ed Skeens. Case Caption: Ramona Schwalbach v.

Kelly Rogers, et al. Case No. 18 CV 6554 (2020).

Defense Verdict.

Medical Malpractice.

On May 30, 2015, Oumou Diakite was admitted to Grant Medical Center. She was 37 years old and had a sickle cell disease. She came in because she was in pain due to sickle cell crisis. Upon admission, she came under the care of defendant Jacinda Allen, M.D., a hospitalist, and hematologists, defendant Anitha Nallari, M.D. and defendant Adam C. Necker, CNP. On June 4, 2015, Diakite fired Dr. Allen because of a dispute about her narcotic pain medication.

Defendant Francisco Garabis, M.D. took over as Diakite’s hospitalist.

On June 5, 2015, Dr. Garabis was informed by nurses that Diakite

had become lethargic and admitted to taking pain medication that was not authorized. Diakite was administered Narcan. On the afternoon of June 5, 2015, Diakite’s condition deteriorated and she was transferred to an intensive care unit.

Diakite developed acute respiratory distress syndrome and died on the morning of June 6, 2015. Plaintiff sued Dr. Allen, Dr. Garabis and the hematologists. Plaintiff argued that all of the defendants fell below the standard of care in failing to appropriately monitor Diakite’s labs and respond to a report of increasing nucleated red blood cells. Plaintiff’s expert argued that Diakite needed a rapid exchange blood transfusion, which would have stopped the accumulation of fat emboli and prevented further deterioration of Diakite’s pulmonary function. Plaintiff also argued that Dr. Garabis fell below the standard of care in failing to evaluate Diakite after the administration of Narcan and failing to communicate with the hematology group about Diakite’s deteriorating condition. Plaintiff resolved her claims against Dr. Allen, but proceeded to trial on the claims against the remaining defendants.

Defendants’ experts testified that defendants met the standard of care and that the plaintiff’s expert’s opinion that defendants should have responded to the increase in nucleated red blood cells with treatment is not the standard of care and not supported by any medical literature. The jury found in favor of defendants on the standard of care. Plaintiff appealed asserting that the Court erred in failing to

68 | Columbus Bar L aw yers Quarterly Winter 2021

remove certain jurors for cause. The Tenth District affirmed the Court’s decision. Length of Trial: Seven days. Last Settlement Demand: $1.5 million. Last Settlement Offer: None. Plaintiff’s Expert: Andrew Eisenberger, M.D. (hematologist).

Experts of Defendant Dr. Garabis: Martin Tobin, M.D. (pulmonary/ critical care expert); Fred Miser, M.D. (family medicine/hospitalist expert); Ronald Sacher, M.D. (hematologist).

Expert for Defendants Nallari and Necker: Martin Steinberg, M.D. (hematologist); and Biree Andemariam, M.D. (hematologist).

Counsel for Plaintiff: David Shroyer.

Counsel for Defendants Garabis and American Health Network Co: Grier D. Schaffer and Gerald Todaro. Counsel for Defendants Hematology Oncology Consultants, Inc., Anitha Nallari, M.D. and Adam C. Necker, CNP: Frederick A. Sewards.

Judge Richard Frye. Case Caption: C. Thomas Hoy, Administrator of the Estate of Oumou Diakite v.

OhioHealth Corporation, et al. Case No. 16CV-5305 (2018).

Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com

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