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LAWYERS

Columbus Bar

Fall 2016

QUARTERLY Fall 2016 Special Edition:

Campaigns & Elections

27

28

30

Judicial Votes Count: Round Two

The Struggle for Suffrage

A Look Inside the Conventions

A special update from Chief Justice Maureen O’Connor as her Judicial Votes Count initiative kicks off its second year

Janyce Katz examines a history of voting rights in America and why modern Election Day turnout has fallen so low

Two Columbus Bar members attended the 2016 party conventions, bringing back their reflections on the national events

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


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© 2016


Table of

LAWYERS

Contents

QUARTERLY

Fall 2016 President’s Page

4

Climbing a Multigenerational Mountain, Brigid E. Heid

Bar Insider

6 8

New Columbus Medical-Legal Partnership Uses the Law to Increase Health, E. Jane Taylor Lawfully Present or Legally Present?, Orsolya Hamar-Hilt and David S. Bloomfield Sr.

Schools: The Real 10 Law Employment Numbers for

Fall ‘16: Campaigns and Elections

27

Make Your Judicial Vote Count in 2016, Chief Justice Maureen O’Connor

Chair

28

Voting: A Right Fought for but Ignored, Janyce C. Katz

Board Members

30

National Convention Serves as Unity Point for Political Parties Ahead of Election Day, Councilmember Michael P. Stinziano

32

Every Lawyer Should Attend a National Political Convention, Frank J. Reed Jr.

the Law Class of 2015, Jason M. Dolin

Better Lawyer

14

Staff Attorney Positions Offer Good Option for Some Working Moms, Rachel Chodera Monaghan

16

Flipping the Tables: Mock Trial Offers Opportunities for Attorneys to Learn from Students, Daniel P. Porembski

Points of Practice

18

The Lost Art: Negotiation in the Small Business World, Kwame O. Christian

20

Effective File Management, Gretchen K. Mote

24

The Professional Judgment Rule in Ohio: Part 1, Rick E. Marsh

Columbus Bar Association Editorial Board Janyce Katz

Scott Bent Jack D’Aurora Jeffrey Eyerman Amy Koorn Andrew Moody Melanie Tobias

Editor

Caitlin Roberts

Life Outside the Law

34

Art and the Law at the Ohio Judicial Center, Ashley Bartman Watson

36

Snow, Hail and Wind Add Adventure to Annual Hike, Hon. David E. Cain

38

Lawyers with Artistic License: Athena Inembolidis, Heather G. Sowald

Production Sarah Curran

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

Jury Verdicts

40

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.

3 | Columbus Bar L aw yers Quarterly Fall 2016


President’s Page

Climbing a

Multigenerational Mountain by Brigid E. Heid My husband and I, along with more than 300 million people, visited the national parks this summer for its centennial celebration. Kurt and I spent a week with friends and family relaxing and hiking—yes, they can go hand-in-hand—at our favorite national park of all, Glacier National Park in northwestern Montana. With over 700 miles of hiking trails, breathtaking vistas from Going-to-the-Sun Road, serene mountain lakes and abundant wildlife, Glacier is known as the “Crown Jewel of the Continent.” As the National Park Service marks its centennial, it is using the occasion as a launching pad for the next 100 years. As the National Park Foundation website, www.nationalparks.org, states, “It’s about kicking off a second

century of stewardship for America’s national parks and for communities across the nation... [I]t’s about inviting you to join us. We all have a role to play in ensuring that future generations of Americans will be able to enjoy the thrilling experiences of nature and wildlife, history and culture, and the spirit of adventure that is waiting at every national park.” A recent report on National Public Radio identified four key challenges for the park system: climate change, overcrowding, financing and relevancy. While there is no shortage of visitors to most parks, the vast majority of visitors are not representative of the community and nation as a whole, in that they are older—average age is 41— and mostly white. The superintendent of Great Smoky Mountains National

Park is reaching out to include young people from minority groups or urban areas to introduce them to the parks, because he understands they are the future of the park. While attendance is at an all-time high, Congress hasn’t increased funding to help pay for more than $12 billion in deferred maintenance expenses, like roads, buildings and sewers. Likewise, the park system recognizes that technology is changing how different generations interact with the parks and whether they want to come in the first place. On our trip to Glacier, these challenges were evident. Besides the melting glaciers, overflowing parking lots, a barrage of bear safety messages and ubiquitous bear spray on the trails, I saw firsthand how the generations

I saw firsthand how the generations experience the park in different ways. Our group was generationally diverse, with Baby Boomers, Gen X-ers including me, a Millennial, and two Generation Z-ers. Kurt and our friend Nancy making their way up Ptarmigan Tunnel Trail. 4 | Columbus Bar L aw yers Quarterly Fall 2016


Panorama of Swiftcurrent Lake on my way to a bountiful huckleberry patch. experience the park in different ways. Our group was generationally diverse, with Baby Boomers, Gen X-ers including me, a Millennial and two Generation Z-ers. Not surprisingly, those of us in our late 40s and 50s were more than happy that we didn’t have cell service or internet access while in the park and could disconnect from the outside world. We found it cathartic and refreshing. The younger crowd, however, was not so happy about it, and that’s putting it mildly. They lamented not being able to send text messages, post to Facebook and connect with their friends while in the park. One actually went to the trouble of prewriting text messages to his friends so that when we drove outside the park and found cell service, he could instantly send messages and post to Facebook. One of the best examples of how the generations experience the park in different ways came when the Millennial climbed to the top of a fire lookout, at a stunning elevation of 8,500 feet, and his first reaction was not to exalt in the panoramic views of the entire park but rather to exclaim, “I have four bars!” and proceed to send messages to his friends. I admit that I found this astounding. While I cannot relate, I realize it is not wrong but just a different way of experiencing the park and life itself.

the delivery of legal services and how generations interact. Like the national parks, we recognize the future of the bar association lies with an increasingly diverse community, and we are exploring ways to enhance diversity and inclusion in our membership and programming. As the CBA Board of Governors fine-tunes our strategic plan and sets goals for the association, we invite you to join us and get engaged! To borrow the words from the National Park Foundation, “we all have a role to play” to ensure current and future generations of lawyers will be able to enjoy this noble professional and succeed in the practice of law here in Columbus for many years to come. Pictured, left: Sunset behind Mt. Gould over Swiftcurrent Lake.

Brigid E. Heid, Esq.

Carlile Patchen & Murphy LLP bheid@cpmlaw.com

Like the NPS, the CBA is planning for the future. The challenges of the National Park System are not unlike the challenges we face at the CBA. We recognize that we need to remain relevant, find new funding sources and help our members be successful and thrive in a changing legal environment. Technology has changed the practice of law,

5 | Columbus Bar L aw yers Quarterly Fall 2016


Bar Insider

New Columbus Medical-Legal

Partnership Uses the Law to Increase Health by e. jane taylor

When Patrick Clark was a public defender working in the Bronx borough of New York City, he witnessed firsthand the destabilizing impact poverty can have on families but also realized that providing legal care to those in crisis may lead to better outcomes. Clark is the first attorney to staff the new Nationwide Children’s Hospital/ Legal Aid Society of Columbus medical-legal partnership, or MLP. A graduate of Brown University and New York University School of Law, he learned about the MLP model by listening to a presentation given by Mallory Curran, NYU alum who directed The Legal Aid Society of Cleveland’s Family Advocacy Program. Clark was drawn to the collaborative, holistic approach to addressing the same destabilizing impact of poverty that he was seeing in his work as a public defender. When he moved to Ohio to be closer to his wife’s family, he felt lucky to find an opening for a medicallegal partnership attorney. While not widely known outside the medical and legal professions, medical-legal partnerships between health care providers and legal aids have existed since at least the late 1960s, when a doctor in Mississippi hired a lawyer to help with patient housing and hunger problems.1 Twenty-five years later, the first formal medical-legal partnership was formed when doctors at Boston Medical Center realized that repeat visits by pediatric asthma patients stemmed from living in mold-filled apartments that landlords had refused to treat. The hospital asked Greater Boston

Legal Services for help, and the success of that collaboration led to it being replicated in communities across the country.2 According to the National Center for Medical Legal Partnership, founded in 2006 at Boston Medical Center and now a project of the Milken Institute School of Public Health at George Washington University, there are now 292 medicallegal partnerships in 36 states.3

owned by the landlord and brought those conditions to the landlord’s attention, with supporting statements of physicians documenting the impacts on children’s health. It also filed suit on behalf of one severely disabled child. Legal aid’s persistence led eventually to repairs throughout the buildings owned by the landlord.4

An Ohio case featured in a 2014 New York Times story is a good example of how medical-legal partnerships work. In 2010, a summer heat wave led doctors at Cincinnati Children’s Hospital Medical Center to urge families of children with asthma to use the air-conditioning. Soon, however, patient after patient came in with letters from the same landlord, stating that if they ran the air conditioning, they would be evicted. The hospital turned to the lawyers in their medicallegal partnership with the Legal Aid Society of Greater Cincinnati, known as the Cincinnati Child Health-Law Partnership, or Child HeLP.

As might be expected for a complex collaboration between entities dedicated to similar goals but with different missions, the NCH/ LASC medical-legal partnership has required thought, planning and imagination. Initial conversations were between Tom Weeks, executive director for the Ohio State Legal Services Association; Kate McGarvey, LASC’s director; Stephanie Harris, LASC’s development director and the MLP Advisory Board at NCH. Once the decision was made at the executive level to pursue the partnership, the complicated and intense work began of creating systems on both sides of the partnership. The hospital would have to figure out how problems with a potential legal solution would be identified and by whom; LASC would have to figure out how those matters would be referred and assigned to an attorney quickly and, from the patient’s perspective, as seamlessly as possible. For both partners, thoughtful consideration had to be given to what would be considered success and what outcomes would be measured to document that success.

The Child HeLP lawyers soon discovered other health-related conditions in the apartment buildings

To lead this work for the hospital, registered nurse-community educator Tracy King was chosen to be NCH’s

While the partnerships are configured to meet local needs and resources, typically legal aid attorneys or paralegals are onsite at a hospital or other health care facility to allow medical staff to refer patients immediately and seamlessly when it appears a legal problem may be contributing to an acute or chronic health problem.

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1

In 2010, a summer heat wave led doctors at Cincinnati Children’s Hospital Medical Center to urge families of children with asthma to use the air-conditioning. Soon, however, patient after patient came in with letters from the same landlord, stating that if they ran the air conditioning, they would be evicted. The hospital turned to the lawyers in their medical-legal partnership.

Ellen Lawton, “A History of the Medical Legal Partnership Movement,” Community Health Forum Magazine, Fall/Winter 2014.

2

Id.

3

National Center for Medical Legal Partnership, http://medical-legalpartnership.org/, site visited 5/11/16. 4 “When Poverty Makes You Sick, a Lawyer Can be the Cure,”, New York Times, http://opinionator.blogs.nytimes.com/2014/07/17/whenpoverty-makes-you-sick-a-lawyer-can-be-the-cure/?_php=true&_ type=blogs&_php=true&_type=blogs&_r=2& , July 17, 2014. 5 Social Determinants of Health are the conditions in which people are born, grow, live, work and age, including factors such as socioeconomic status, education, the physical environment, employment, social support networks and access to health care. “Beyond Health Care: The Role of Social Determinants in Promoting Health and Health Equity,” Kaiser Family Foundation, http://kff.org/disparities-policy/issue-brief/beyond-healthcare-the-role-of-social-determinants-in-promoting-health-and-healthequity/ November 4, 2015.

first Medical-Legal Partnership Program Coordinator. King was tasked with helping to identify Social Determinants of Health5 to incorporate into clinic patient interviews and with training resident physicians who staff the neighborhood clinics. According to Clark, the doctors are not supposed to become lawyers but will learn to spot issues by developing a base competency in legal issues. The interview process and questions will be evaluated on an ongoing basis, and the partners are working on how to collect feedback to ensure that what’s been envisioned is actually working as planned. At legal aid, an intake process was developed to accommodate patients dealing with a crisis requiring immediate attention, along with a more traditional legal aid intake and a dedicated intake staff person for non-emergency cases. LASC and NCH are working out how medical-legal partnership attorneys will interact with patients in the clinic setting when an emergency situation exists. Clark says his biggest challenge is how to realize the full potential of the collaboration. It takes time to develop relationships that will benefit clients, but he is excited about the direction in which the partnership is going and wants to become more enmeshed in both places. “We have an obligation to do this right, to make the case that this is good for families, for both the doctors who treat them and the lawyers who advocate for them,” he said.

E. Jane Taylor, Esq.

The Columbus Medical Association Foundation A unique 501(c)(3) partnership of physicians and the community that can assist your clients in fulfilling their charitable interest in the medical and health and wellness arena. For more information on the Foundation, its charitable options and services, contact:

Weldon E. Milbourne 1390 Dublin Road Columbus, Ohio 43215 614.240.7420

wmilbourne@goodhealthcolumbus.org Learn more at www.CMAFOhio.org

Ohio Legal Assistance Foundation jtaylor@olaf.org 7 | Columbus Bar L aw yers Quarterly Fall 2016


Bar Insider

Lawfully Present or Legally Present? by Orsolya Hamar-Hilt and David S. Bloomfield Sr. Is there a difference between these two statements, or is it just a game with words? In everyday language, the two statements have very similar meanings but not in the world of immigration law. This confusing term came up during the oral argument in United States v. Texas, decided on June 23, 2016. The case started two years ago. In November 2014, President Obama issued an executive order, Deferred Action for Parents of Americans. DAPA is a form of prosecutorial discretion by which the Secretary of Homeland Security deprioritizes an individual’s case for humanitarian reasons, administrative convenience or in the interest of the department’s overall enforcement mission. In December 2014, the state of Texas, along with 25 other states, sued in the District Court of Southern Texas to enjoin implementation of DAPA. On Feb. 16, 2015, the court issued a preliminary injunction to implement the order. The administration appealed the order to the U.S. Court of Appeals for the 5th Circuit. On Nov. 9, 2015, the Circuit Court affirmed the lower court’s decision. In November 2015, the Justice Department decided to take the case to the United States Supreme Court. The basis for their argument was the cost of drivers’ licenses and a question regarding standing. Texas contends that it would lose millions of dollars if it must provide a license to almost 600,000 eligible immigrants in the state. The state subsidizes the cost of each document by some $130. The state of Texas had to convince the

court that it would suffer real harm, otherwise the state would not have standing in the case. In January 2016, the Supreme Court agreed to hear the case and asked for briefings on whether DAPA violates the “Take Care” clause. On April 18, 2016, the case was argued to the Supreme Court. During that argument, the above stated technical term came up, which confused the judges. Chief Justice Roberts noted that in its brief, the United States asserted that individuals covered by DAPA are “lawfully present” in the United States. Later on in the same brief, the same individuals were “present in violation of the law.” This begs the question: how it can be lawful to work here but not lawful to be here? The answer begins by understanding how deferred action is defined. Deferred action is a discretionary decision by the immigration agency to grant a temporary, time-limited bar from deportation to a non-citizen in the United States without authorization. 8 C.F.R. § 274a 12(c) states, “Aliens who must apply for employment authorization. An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document.” 8 C.F.R. § 274a 12(c)(14) includes in that group “an alien who has been granted deferred action, an act of administrative convenience to the

8 | Columbus Bar L aw yers Quarterly Fall 2016

government which gives some cases lower priority.” It is apparent from the text of the rule that an administrative action does not grant any type of lawful immigration status or any ability to remain in the United Sates; it is simple a forbearance policy. On the other hand, the immigration regulations also state that a person who is in deferred status is considered “lawfully present” but not legally present. Again, the person is not legally present, because DAPA does not grant a lawful immigration status. The immigration law concept of unlawful presence is very technical. 8. USC. § 1182 (a)(9)(B) states that any alien who was unlawfully present in the U.S. for more than 180 days, who then leaves the U.S. and again seeks admission within three years, or any alien who has been unlawfully present in the United States for one year or more, who leaves the U.S. and seeks admission within 10 years is inadmissible. The rule further states that “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” Each day spent in the United States without having a legal status counts


Each day spent in the United States without having a legal status counts toward the unlawful presence. However, there are some exceptions to the rule. toward the unlawful presence. However, there are some exceptions to the rule. Days spent in the U.S. as a minor do not count toward the unlawful presence time. However, days spent after the minor turns 18, assuming no change in their immigration status, do count toward the unlawful presence time. The accumulation of the days through unlawful presence creates a bar to reentry to the United States either for three or 10 years. This concept is different from the inadmissibility to the U.S. based on being present without having been previously admitted or paroled. In this current litigation, the lawful presence was misused. The interpretation and application of those above specifically stated statutory provisions have no bearing upon the validity of the guidance establishing eligibility criteria and

processes for deferred action under DAPA. Deferred action involves toleration of continued presence of individuals who lack lawful immigration status and communication of that toleration to those individuals. It does not state that deferred action transforms that continued presence into something “lawful.” It shall be noted there is a huge difference between saying that deferred action tacitly tolerates someone’s “unlawful presence” and saying that it affirmatively confers “lawful presence.” DAPA would not have converted unlawful presence into lawful presence. On June 23, 2016, the Supreme Court affirmed the judgment by an equally divided court. It left in place the lower court’s decision. Recently, the Department of Justice filed a rehearing petition with the Supreme Court, once a ninth justice is appointed.

A New Approach to Senior Living

Wesley Woods at New Albany: Retirement Living with a Conscience Following the success of Wesley Glen, which was founded almost fifty years ago, Wesley Ridge was opened to serve even more community members. Now, with two successful retirement living communities under her command, Peg Carmany is fulfilling a growing community need. The success of Wesley Glen and Wesley Ridge has proven that the people of central Ohio do place great emphasis on wellness in senior living. With this in mind, the Wesley family is growing once again, to expand to New Albany. Wesley Woods at New Albany was thoughtfully developed for older adults, those looking for luxury living, keeping in mind varying degrees of health care available as needs change.

“We’re leading the way for positive change.” – Peg Carmany, CEO Architecture is similar to the elegant Georgian-style homes found throughout upscale New Albany. Inside, attention to detail shows in carefully selected colors, materials and finishes. The main building is designed to encourage community. Elegant courtyards and patios are available to host outdoor activities. In addition, chef-prepared meals are offered throughout the day to suit any palate and mood.

Orsolya Hamar-Hilt, Esq.

Bloomfield & Kempf orsolyahilt@gmail.com

David S. Bloomfield Sr., Esq.

Bloomfield & Kempf dbloo@msn.com

614-656-4100 | WesleyAtNewAlbany.com 4588 Wesley Woods Blvd. • New Albany, Ohio 43054

9 | Columbus Bar L aw yers Quarterly Fall 2016


Bar Insider

Law Schools:

The Real Employment Numbers for the Law Class of 2015 by jason m. dolin

If law schools were publicly traded companies and the measure of market success was the percentage of full time, permanent, JD-required (FTPJD) jobs obtained by their graduates, you’d dump the stock. The employment market for law graduates is flat, particularly in Ohio, and there is no evidence that the legal employment market for new Ohio law graduates will substantially improve any time soon. But, law schools aren’t like stock companies. They live in a costly, inefficient and change-resistant educational bubble dominated by lifetenured faculty and enabled regulated by the American Bar Association, that protects the weak law school performers along with the strong. And the numbers show that there are weak law school performers, at least in employment results, including several in Ohio.

Weather Report: More Rain

The employment results for the Law Class of 2015 - the most recent available - are one more dreary season in what is a now familiar multi-year procession of rainy days for Ohio’s law graduates. Ohio’s law school Class of 2015 had 1,089 graduates, which was 208 fewer than the Class of 2014. Despite the fact that the 2015 class was 16 percent smaller than the 2014 class, and that there should have been significantly less competition for jobs, the FTPJD employment rate for 2015 was only 54.5 percent; barely better than the 54 percent FTPJD rate for the Class of 2014. As it has for the last several years, the statewide FTPJD rate for Ohio’s law graduates continues to underperform the national rate.

But even that – albeit modest – percentage increase in FTPJD jobs for Ohio graduates is discouraging because the number of FTPJD jobs for the Class of 2015 actually decreased compared to the 2014 class. The Class of 2014 obtained 700 FTPJD jobs. For the 2015 class, that number shrank to 594 FTPJD jobs. Five of Ohio’s nine law schools placed a lower percentage of their graduates in FTPJD jobs than they did in 2014. If the total number of FTPJD jobs for Ohio law graduates had simply remained at 2014 levels, the FTPJD rate for the Class of 2015 would have been ten points higher. In 2015, in both absolute numbers and as a percentage, Ohio’s law schools placed fewer graduates in FTPJD private practice than in 2014. Locally, like in 2014, Capital had the worst FTPJD employment rate of all Ohio law schools at 38.5 percent, and Ohio State had the best at 75 percent. Capital’s FTPJD rate has been below 40 percent for the last two years and has not exceeded 50 percent since 2011. Further, Capital’s unemployment rate - unemployed at any job of any kind - was 21.6 percent, also the worst in the state for the second year in a row, while Ohio State’s unemployment rate, at 1.7 percent, was the best in the state.1

Limited Demand, Limited Opportunities

By May 2014, the U.S. had recovered all of the jobs it lost in the Great Recession.2 Not so for the legal economy, which both nationally and in Ohio has still not recovered the jobs it

10 | Columbus Bar L aw yers Quarterly Fall 2016

lost. Indeed, the legal services sector in Ohio has been shrinking. According to the U.S. Bureau of Labor Statistics (BLS), since July 2008, prior to the start of the Great Recession, the number of people employed in the “legal services” sector in Ohio has steadily declined and as of March 2016, was still more than 6,000 jobs short of where it was pre-Great Recession.3 Nationally, the BLS predicts a bleak outlook over the next decade for new attorney employment. According to the BLS, “Competition for jobs should continue to be strong because more students graduate from law school each year than there are jobs available.”4 There is further support for that projection. In the spring of 2016, national law firm consultant Altman and Weil conducted a survey of 356 law firms that had 50 or more attorneys. The results showed an erosion in demand for legal services, with over 60 percent of firms failing to return to pre-Great Recession demand levels. Altman and Weil reported that “62 percent of firm leaders believe that erosion of demand is a permanent trend in the legal landscape.”5 Further, there is broad “overcapacity” – too many lawyers with not enough work to do. According to Altman and Weil: Firms are having trouble keeping their lawyers utilized, with half of all firms (52 percent) reporting their equity partners are not sufficiently busy. Overcapacity and underutilization are worst among non-equity partners: 62 percent of firms report their nonequities are not sufficiently busy, including 80 percent of firms with 250 or more lawyers.6


With partners scrapping for work, the decrease in demand foreshadows difficult times for new graduates.

Demographics are Still Destiny

The law schools in Ohio are regional and local, with the employment prospects of their graduates intimately tied to the regional and local economy. The data consistently show that those Ohio law graduates who find employment are overwhelming employed in Ohio. For example, of the 171 graduates of Ohio State’s 2015 class who found any kind of employment, 136 found work in Ohio (79.5 percent). The next closest state got five Ohio State graduates. Similarly, of the 108 Capital graduates who found any kind of employment, 94 found it in Ohio (87 percent), with the next closest state getting three Capital grads. Even Cincinnati, on the border with Kentucky and Indiana, sent 74 of its 109 grads to jobs in Ohio (68 percent). The next closest state, Kentucky, got 5 Cincinnati graduates. By contrast Northwestern, a national law school in Chicago, sent less than 40 percent of its 2015 graduates to jobs in Illinois.7 As the local and regional economy goes, so goes the legal sector. If the Ohio general economy does not thrive, neither will the legal profession that services it. In that regard, Ohio’s demographics foretell a difficult economic future. In 2014, Ohio’s rate of population growth was 45th out of 50 states.8 The median age of Ohio residents is the twelfth oldest in the U.S., tied with two others;9 an aging population is typically considered a negative economic indicator.10 A demographic study commissioned for Ohio’s Department of Transportation shows that “[t]he majority of Ohio’s metropolitan regions have been losing population since the 1950s, and this long-term trend has accelerated in recent decades” and that “[e]very major city in Ohio except Columbus has lost significant shares of its peak population...”11 Further, the growth of Ohio’s younger population is significantly lower than that of the rest of the nation.12 According to that study, in the future, Ohio’s share of young people will be smaller than the nation as a whole, with the population of Ohioans aged zero to 14 expected to decline by six percent between 2010 and 2030. Members of Generation Y - those born between 1985 and 2004 - living in Ohio are expected to shrink compared to the nation as a whole.13 As of March 2016, Ohio’s job growth had lagged the national average for 38 consecutive

months.14 The demographic projections of an aging and shrinking population in Ohio bode ill for both the general Ohio economy and for the legal services sector.

Not with a Bang, But a Wither

The smoke stack industries that existed in Ohio in the 1950s, 60s and 70s aren’t coming back. Certainly new businesses will arise and need legal services, but they are unlikely to employ the large numbers employed by Ohio’s smokestack industries of the past.15 But while the industries of an earlier day are gone, some things remain, including Ohio’s legal-education infrastructure – i.e. law schools – built in an earlier time to service the needs of a more economically robust era. Eight of Ohio’s nine law schools were accredited between 1923 and 1961,16 when Ohio was an industrial powerhouse with a growing population, increasing economic and political clout and an ever-increasing need for legal services to service that growth. But, times have changed and there is, and clearly has been for some time, overcapacity in Ohio’s law schools. We have too many law schools in this state, chasing too few students, who have too few job opportunities to practice law. The demographics in this state and the other Midwest states simply do not support the large number of law schools that exist in the region, Ohio in particular. Why the state of Ohio continues to fund the largest number of statesupported law schools in the nation, producing graduates at high cost, with large amounts of debt, for an already saturated market, is anyone’s guess. No doubt it has more to do with inertia, political expediency and indifference to the prudent use of taxpayers’ money than need. Lack of political will notwithstanding, by virtue of their dismal employment results over several years there are some Ohio law schools that should close or be closed and that shouldn’t continue to live off of the gobs of federally guaranteed student loans borrowed by students who have bleak prospects for employment in an economy that can’t support them. If there are too many law schools in Ohio, they will continue to crank out too many law graduates. Period. If the state won’t close some, the marketplace might. A telling recent study by David Barnhizer, Law Professor Emeritus at

Continued on page 12

11 | Columbus Bar L aw yers Quarterly Fall 2016


Continued from page 11 Cleveland State, based on the declining demographic trends in the Rust Belt concludes that owing to these negative demographic trends, several Midwest law schools “...are likely to simply wither away.”17 Or, perhaps it’s time for the state of Ohio or the parent universities of some law schools to step up, show some spine and dump the stock. 1

http://employmentsummary.abaquestionnaire.org/

2

http://www.latimes.com/business/la-fi-jobs20140607-story.html 3 http://beta.bls.gov/dataViewer/view The “legal services” category encompasses not only lawyers, but also judicial clerks, administrative law judges, adjudicators, hearing officers, arbitrators, mediators, judges, magistrates, paralegals, legal assistants, court reporters, title examiners, and other legal support workers. See http://www.bls.gov/oes/current/oes230000.htm 4

http://www.bls.gov/ooh/legal/lawyers.htm

5

http://www.altmanweil.com/dir_docs/ resource/9eead77f-0f2a-471a-b400-c6ddec0af265_ document.pdf, page 3. 6

Id.

7

http://employmentsummary.abaquestionnaire.org/

8

http://www.cleveland.com/datacentral/index. ssf/2014/01/ohio_ranks_45th_for_population.html 9 http://www.statista.com/statistics/208048/median-age-of-population-in-the-usa-by-state/ 10

http://ije.oxfordjournals.org/content/31/4/776.full

11

https://www.dot.state.oh.us/Divisions/Planning/ Transit/TransitNeedsStudy/Documents/DemographicTrendAnalysis.pdf 12 https://www.dot.state.oh.us/Divisions/Planning/ Transit/TransitNeedsStudy/Documents/DemographicTrendAnalysis.pdf 13

Id, at 2-12.

14

http://www.cleveland.com/business/index. ssf/2016/03/ohio_unemployment_rate_49_stat.html 15 http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2744854 16 http://www.americanbar.org/groups/legal_education/resources/aba_approved_law_schools/in_alphabetical_order.html 17 http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2744854

Jason M. Dolin, Esq.

jmdolin@sbcglobal.net


13 | Columbus Bar L aw yers Quarterly Fall 2016


Staff Attorney Positions

Offer Good Option for Some Working Moms BY Rachel Chodera Monaghan It is no secret that women with children make up a large proportion of the smart, hard-working and committed lawyers who ultimately leave traditional, high-stress legal jobs that require long hours. While the reasons vary greatly — some lack the child care support necessary to continue working long hours, while other simply do not want to spend nights and weekends working instead of with their families — they share a common challenge: what’s a person to do when they find themselves unhappy with their 50 or 60 or more hour a week job? A lucky minority will find themselves in offices that are willing to negotiate reduced schedules for their established employees. The rest of us have a few options.

Many female lawyers with young children take this last option, as I did two years ago when my daughter was born. The problem with dropping out of the workforce — especially in the legal profession — is that it can be difficult to return after a period of absence.

Many seek new jobs in the public sector, in-house with a company or just leave the profession entirely for other fields that offer more work-life balance or that lend themselves more easily to alternative work schedules. Of course, there are often obstacles to these paths, such as limited related experience, lower salaries and limited opportunities due to the high desirability and demand for positions with reduced or otherwise flexible work schedules. Or you can simply quit, if you have the financial ability to do so.

Enter the role of staff attorney. As the product of a small firm, staff attorney positions were not something I was aware of when I left the legal field. Many firms now utilize staff attorneys as a means of providing clients with competitively priced legal services that complement the services traditionally provided by associates or partners. These positions can include a variety of tasks such as document review, research, drafting, discovery support and litigation support — skills where your prior experience can give you an advantage over applicants who just graduated from law school.

In an ideal world, the job market would be ripe with positions that are exciting and challenging and still allow you to be home with your family for dinner each night, but this is not an ideal world.

Despite my best intentions, retaining my critical thinking skills, keeping up with industry news and networking were extremely difficult when I spent my days thinking about bottles and diapers and making sure my toddler doesn’t try to ride the dog. Suddenly my previous life as a professional felt very far away and finding my way back to meaningful employment two years later was exceedingly hard.

In my limited experience as a staff attorney, I can attest that while the work may not always be as challenging or intellectually demanding as a traditional associate position, the benefits make it an extremely attractive position for someone desiring more flexibility and work-life balance than a mid-level associate position typically offers. Staff attorney positions generally have lower billable hour requirements than associate positions, and those requirements can be easier to meet because of the reduced focus on non-billable activities like business development and serving on firm committees. Night and weekend work is also frequently reduced based on the nature of the

14 | Columbus Bar L aw yers Quarterly Fall 2016


position — smaller workloads, more discrete project-based assignments and far fewer direct client demands. And while staff attorney salaries are not as high as associate salaries — for obvious reasons — they can still be generous and in many instances, higher than entry to mid-level work in other positions with similar hours. For me, the real value of the staff attorney position was the increased predictability and flexibility of my work schedule. Barring unforeseen circumstances such as emergency filings or surprise deadlines, I work a 7:30 a.m. to 4:30 p.m. schedule. Most days I pick my daughter up at daycare around 5 p.m., which is almost unheard of in our field. The specifics of each staff attorney job will vary from firm to firm and even department to department within a firm. Generally, though, these positions will allow you to keep your skills up, keep abreast of industry news and continue to form relationships with people both inside and outside of your firm who may be able help find you your next job when you are ready for increased responsibility, along with increased hours. In an ideal world, the job market would be ripe with positions that are exciting and challenging and still allow you to be home with your family for dinner each night, but this is not an ideal world. Working within the confines of the industry we have chosen and the current economic landscape, staff attorney positions are a viable option for many mid-level attorneys who want to keep a foot in the door while still prioritizing their personal life for a period of time.

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Flipping the Tables: Mock Trial Offers Opportunities for Attorneys to Learn from Students BY Daniel P. Porembski

Learn More Volunteers are needed to serve as judges and facilitators. NOTE: A law degree is required to serve as a judge for the mock trial competitions.

Visit: www.oclre.org

I’m seated in a small courtroom at the Franklin County Court of Common Pleas. I am watching a trial over an alleged assault and battery that occurred during an act of police violence. Counsel for the case vigorously debate the issue of justification – whether an officer that attacked a man outside of a convenience store acted reasonably to take him down in light of an alleged threat. Things begin to get heated as objections are belted across tables. The judge firmly tells everyone to take a seat. An attorney to my right leans over, and whispers “these kids are good.”

for young attorneys to sharpen and refine their trial practice skills. All attorneys should have an understanding and appreciation for trial and appellate practice. Unfortunately, opportunities for young attorneys to immediately get into court and practice these skills in a significant way are few and far between. Considering the small number of cases that make it to trial or through an appeal, in addition to the high stakes attached to those that make it before a jury, it is understandable that these occasions are often saved for more experienced attorneys.

Wait…kids? The four “attorneys” in front of us couldn’t be older than eighteen, if that, and yet their knowledge of the law and trial practice are enough to leave myself and a practicing trial attorney of 20 years in awe.

This is why getting involved with OCLRE as a judge has proven so rewarding. Taking part in mock trial and moot court competitions places you in the driver’s seat to qualitatively measure a trial. It goes beyond being a passive observer. It requires you to become familiar with the case and pay close attention to what did or did not work as part of the participant’s performances.

The two of us were at the 33rd Annual Ohio High School Mock Trial State Championship, sponsored by the Ohio Center for Law-Related Education. This is just one of many mock trial and moot court competitions set up by OCLRE, an organization jointly sponsored by the Supreme Court of Ohio, the Ohio State Bar Association, the American Civil Liberties Union of Ohio and others. These competitions are judged, and competitors are coached by local attorneys, a role that provides particularly invaluable experience 16 | Columbus Bar L aw yers Quarterly Fall 2016

Attorneys young and old get the chance to discuss successful trial practice when conferring with other judges to score competitors after a hearing. Meeting with coaches for both teams allows the judges to understand how they approached the trial – what was the theory of their case, what they considered the “strong” or “weak”


Wait…kids? The four “attorneys” in front of us couldn’t be older than eighteen, if that, and yet their knowledge of the law and trial practice are enough to leave myself and a practicing trial attorney of 20 years in awe. parts of their case, as well as how they prepped their witnesses. In conclusion, judges get the opportunity to personally break a trial apart and understand it from every angle, an opportunity rarely granted to attorneys who aren’t already involved in a trial. Perhaps most rewarding, though, has been taking the time to guide the young students who may be the future of the legal community both in Ohio and throughout the nation. Every competition provides time for judges to meet with students and provide feedback. In many cases, this requires a judge to act as a guide for young students. At a recent moot court competition, one competitor lost track of their place in the midst of their argument. After standing in near silence for over a minute, they sat down and conceded their point, while leaving nearly ten minutes of time on the clock. After the round was finished, several judges and I found that the student hadn’t lost due to lack of preparation, it was due to nerves. Several judges took time to speak to the student, and others, about preparation and handling the stress of the moment. In other cases, such as my recent experience judging a trial for students from Cleveland’s Orange High School, the level of preparation and the skill some students show can be astounding. I’d be lying if I said I didn’t learn a few things myself. The duty is on young attorneys to keep their skills in top shape, including trial practice. Even with years of mock trial and moot court experience in law school, there is always a concern of getting “rusty” when an attorney has spent months, even years, out of a courtroom. While CLEs are always going to be available, as is sitting in trials at the local courthouse, getting involved with OCLRE as a judge or coach has been one of the best ways I’ve come across to feel like you’re a part of a trial, without actually getting in front of a jury.

Daniel P. Porembski, Esq. dp.porembski@gmail.com

17 | Columbus Bar L aw yers Quarterly Fall 2016


Points of Practice

The Lost Art:

NEGOTIATION IN THE SMALL BUSINESS WORLD by kwame o. christian

Jan is a grocery store owner, trying desperately to get her expenses down. She’s always been passionate about health and wellness and her life’s mission is to provide highquality, locally sourced produce at a reasonable price. She’s had some interest from outside parties to franchise her store, but her high food costs are making them hesitant. She’s increased efficiency, switched suppliers and more, all to no avail. It still hasn’t been enough to seal the deal. Then one day, out of sheer desperation, she asked her suppliers for a lower price. To her surprise, she got it. Negotiation is undoubtedly one of the most important skills for entrepreneurs. It gives you the unique opportunity to increase your profit margins without increasing sales. Successful negotiators are not only able to get more for their business, they are able to save more, and most importantly, they are able to strengthen the key relationships in their lives. However, despite all of this, it is arguably the most overlooked tool in the entrepreneur’s toolbox. Not only is it underutilized, but entrepreneurs rarely take the time to invest in improving these critical skills. Entrepreneurs often fall victim to what I call the expert’s fallacy of exceptionality. Most people become entrepreneurs because they have highlevel skills or interest in a particular area. Furthermore, they believe that the best way to move their business

forward is by continually honing that specific skill. For example, an artist may start an art gallery because of his passion for art. In an effort to improve the business, he is likely to keep up with the current art trends and continue to hone his skills through training. Although these activities are important and they will make him a better artist, they don’t necessarily make him a better businessman. In order to have a successful company, he needs to develop his overall business acumen. There are two main reasons why entrepreneurs fail to negotiate. First, entrepreneurs often fail to recognize there is an opportunity to negotiate. Negotiation is one of the few business skills that you can use every day. What is negotiation? It is a conversation where one or more of the participants want something. I prefer this broad definition of negotiation because it helps people to realize that negotiation is everywhere. When you are able to recognize that you are in a negotiation, then you can implement the requisite skills to get what you want. Second, even if people are able to recognize that there is an opportunity to negotiate, they have a fear of negotiation. The ask is the first step in any negotiation, and unfortunately, this is where most negotiations fail, because the ask is never made. Cash flow is an ever-present issue in small businesses. Many entrepreneurs are

18 | Columbus Bar L aw yers Quarterly Fall 2016

afraid that negotiation can jeopardize the relationship with customers or clients. Because of that, although entrepreneurs are willing to take the risk to start a business, they are significantly less likely to take the perceived risk of losing business. However, if these entrepreneurs took the time to invest in developing this skill, they would see negotiation not as a potential risk but as a potential opportunity to strengthen relationships with prospects. Good negotiators are able to create deals that leave both parties in a better position. These conversations give the entrepreneur the opportunity to craft creative solutions that better serve the client without jeopardizing the company’s financial situation. Considering the fact that entrepreneurs rarely negotiate to get better business deals, it is not surprising that they rarely use negotiation to resolve conflict. Clients often come to me with a problem that they believe requires litigation. However, in the majority of circumstances, I am able to talk to the other side and work something out before we even get to the point of filing. Leaning on negotiation rather than litigation saves significant amounts of time, energy, money and frustration. I believe that as attorneys it is our duty to resolve these kinds of issues in the most efficient way possible. In order to do this, we need to continue to hone our own dispute resolution skills. We also need to learn how to


The ask is the first step in any negotiation, and unfortunately, this is where most negotiations fail, because the ask is never made. sell negotiation and other methods of alternative dispute resolution to our clients. A study from the U.S. Chamber of Commerce shows that litigation costs small businesses approximately $105.4 billion annually.1 Litigation is a risky prospect. Win, lose or draw, the final costs could easily cripple a small business, which would affect the livelihoods of everybody involved with the company. An additional and often overlooked benefit of negotiation is that the parties involved become the ultimate decisionmakers. They are able to work together to craft a unique agreement. These kinds of agreements are narrowly tailored to address the key issues in dispute in a manner that works for both parties. Negotiation and mediation create an atmosphere that is ultimately less damaging to the fractured relationship. These methods of dispute resolution put the parties in a position where it is more likely that the process will culminate in a workable relationship. We are not only responsible for the legal wellbeing of our business clients; we must also take it upon ourselves to look for extralegal ways to help them achieve business success. Negotiation is a potent skill that often lays in the blind spot of entrepreneurs. Impress upon them the benefits of negotiation to move their businesses forward. Entrepreneurs are leaving a lot of value on the table.

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Kwame O. Christian, Esq.

kwameomarichristian@gmail.com 19 | Columbus Bar L aw yers Quarterly Fall 2016


Points of Practice

Effective

FILE MANAGEMENT

by gretchen k. mote As we slog through the “dog days” of summer and look ahead to fall activities, it’s a good time to reassess file management in the law office, reorganize systems where needed and refocus on using effective file management to improve client services and help prevent potential ethics and legal malpractice problems. I’ve outlined some steps to facilitate that process.

Reorganize Systems Where Needed

Reassess Office File Management

Or better yet, use an electronic file checklist that everyone in the office can access via the office network that will show what is being done on the file, when and by whom. Of course, be sure your network system is encrypted and password protected.

Let’s start in the lawyer’s office! If your office uses paper files or a combination of paper and electronic files: • • •

Are paper files kept in locked, fireproof cabinets when not in use? Is there a system to keep track of who has the file and what is being done on it? Is there a “work in progress” file drawer to which files are returned at the end of the day to protect them from theft and damage by fire or other disasters?

Even if the above measures are the “official” procedure for your law office, in reality, is the “pile” system used? This means, instead of having files to be worked on for that day or specified period of time on the lawyer’s desk, there are piles of files on the lawyer’s desk, credenza and maybe even on the floor! If the lawyer is currently using the “pile” system, reassess the downside of doing this. Files kept this way are vulnerable to theft or damage. Often files cannot be located, necessitating a search party to find them. If the lawyer is absent or something happens to him or her, it may not be clear what files are open and require immediate attention and what files are just lying around, waiting to be closed or closed waiting to be processed in keeping with the law office file retention plan. Next, move to the support staff locations. Just as the lawyer should not leave files out when they are not being worked on, neither should the support staff. The tracking card for the file should reflect that the support staff has the file, on what date and what is being done on the file. At the end of the day, support staff should also lock files in a fireproof work in progress drawer.

If there aren’t adequate locking, fireproof file cabinets, and the lawyer intends to continue to use paper files or a combination of paper and electronic files, consider investing in these cabinets. Set up a tracking system for the files. This can be a paper “out card” system, listing the date checked out, who has the file and what is being done.

Refocus on Effective File Management

Actually using a good file management system will save time and allow everyone to know the status of each file. This will make it easier for the lawyer to provide clients with monthly updates and keep them involved with the representation. The file management system should tie in with the calendar to give reminders of upcoming deadlines, court dates where applicable and client meetings.

Even if the above measures are the “official” procedure for your law office, in reality, is the “pile” system used?

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the strength of an industry leader The file management procedures should be written out and followed by everyone. It has to be a workable system that everyone can agree to use. If this is done, there should be no exceptions. Even the most experienced attorney and support staff must be onboard with this to have it work.

Benefit from the strength of an industry leader

At the end of the representation, ideally the lawyer will return the original file to the client. The lawyer should first scan or copy the file. This is what the lawyer will retain for his or her records. It should contain information to reflect the representation sufficient to defend any future allegations of an ethics violation or legal malpractice. Remember that pursuant to Rule 1.15(a)(1) of the Ohio Rules of Professional Conduct, the lawyer shall maintain a copy of any fee agreement with each client for seven years after termination of the representation. When this process of scanning or copying the file is complete, the lawyer can return the original file to the client. It should be spelled out in the initial engagement letter and fee contract that the lawyer will return the original file and all original documents to the client at the conclusion of the representation. The lawyer should have the client sign and date a receipt for receiving the original file that should then be scanned into the lawyer’s scan file or placed with the paper file the lawyer is retaining. It is a good idea to copy the photo ID of the client onto the receipt so the picture of the client is on the receipt with the client’s signature. Returning the file to the client at the conclusion of the representation saves the problem of trying to locate the client at the end of the firm’s record retention period.

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appropriate equipment. Files CANNOT be thrown in a dumpster or landfill. If shredded, they must be shredded beyond any recognition, usually by crossshredding, not just “ribbon” shredding.

Dealing with Closed Client Files

The ultimate file management dilemma is dealing with closed client files. The Ohio Supreme Court Board of Professional Conduct issued Ohio Ethics Guide: Client File Retention in March 2016 to provide guidance to Ohio lawyers. If the lawyer has closed client files in storage, this may be a good time to begin going through them.

Handling Stored Files

Are these files adequately stored? Are they protected from the elements? Could they be subject to flooded floors, leaking roofs or chewing rodents? If any of these apply, the files should immediately be moved to a safe location.

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Inventory the files to know what files exist. This should include all locations and how many files at each location.

Organize or list the files by year closed.

Set aside a particular day of the week and make it “Closed Client File Day.” Set a specific goal for what will be accomplished. For example, “We will go through one entire file box.”

Establish a review process by which:

Then, the file review process can begin. Here are suggested steps to follow:

extraneous materials are removed from files (paper clips, legal pads, pens).

Decide where and how to store the files the lawyer will retain.

original documents are set aside to return to clients (wills, deeds).

If it is decided to scan files for future storage, purchase appropriate equipment and learn how to operate it or hire competent persons to handle it.

documents are scanned or copied to be kept in perpetuity (releases).

relevant file portions are copied or scanned for duration of file retention.

a date is determined for file destruction.

If using cloud storage, be certain data is adequately protected (Rule 1.6).

Consider how to dispose of the files and purchase

Continued on page 22

21 | Columbus Bar L aw yers Quarterly Fall 2016


Continued from page 21 After files are checked to be sure documents to be retained in perpetuity are safe and the file to be kept is actually on the scanned disc or in the retained file, then and only then can the discarded file be shredded. If a lawyer is reviewing long-closed files, it may be useful to consider newspaper notice that any former clients can contact the office to arrange to pick up files. A note of caution here: the file belongs to the client and disclosure of confidential lawyer-client information must be in accordance with Rule 1.6. Questions of who owns the file of a deceased client will require careful consideration. When releasing the file, proper identification that the person is who they purport to be and a signed and dated receipt for the file is also prudent.

Protecting your reputation before, during and after the storm. OBLIC is there to protect your reputation when you need it most.

This article focused on paper file management or a combination of paper and electronic files, necessitating handling of paper files. If the law office is completely electronic, the systems should be encrypted and password protected. Even electronic files may need to be reorganized with closed files being moved to another segment of cloud storage, external hard drive or other digital device. Systems for client file management are unique to each law office. Whatever is used, it should be agreed upon, reduced to writing and used by everyone in the law office. The goal is to have an integrated file management system that will improve effective client relationships to help grow the law practice while avoiding ethical and legal malpractice problems. This information is provided for loss prevention purposes and does not constitute legal or ethics advice. If you have questions about this topic, please contact Gretchen Mote, Director of Loss Prevention at gmote@oblic.com or 614-572-0620.

Reputation Matters. Let OBLIC Protect Yours. Owned and Proudly Endorsed by the OSBA, OBLIC is the only carrier exclusively devoted to protecting Ohio attorneys. #REPUTATIONMATTERS Visit www.oblic.com to Apply Now or call (800) 227-4111 for more information.

Gretchen K. Mote, Esq.

Director of Loss Prevention, Ohio Bar Liability Insurance Co. gmote@oblic.com

Portions of this article were originally printed in OBLIC’s The Malpractice Alert, May/June 2013. 22 | Columbus Bar L aw yers Quarterly Fall 2016


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23 | Columbus Bar L aw yers Quarterly Fall 2016


Points of Practice

The Professional Judgment Rule in Ohio: by rick e. marsh

Part 1

One would think that in an article captioned “The Professional Judgment Rule,” the first discussion would be to define the rule and demonstrate its applicability. However, it seems a better approach – in light of the limited and sometimes confusing court decisions with regard to the rule – is to look at some of the factual scenarios in which at least trial lawyers are placed on an everyday basis, using those scenarios to explain and discuss the Professional Judgment Rule. If one were to query lawyers randomly about the Professional Judgment Rule, there would undoubtedly be a variety of responses. Some might say “never heard of it,” “what is it,” or “how is that of interest to me?” If you are a lawyer, then the Professional Judgment Rule should be of great interest to you, because it could make the difference between being found liable for legal malpractice or not. In the case of Kingsley v. Browning, 1982 Ohio App. LEXIS 14115, the attorney filed suit to collect a fee and as quite often happens, drew a counterclaim for malpractice. The court stated that “it is universally recognized that an attorney will not be held liable when, acting in good faith and in a belief that his conduct is in the best interest of his client, for a mere error of judgment or for mistakes on points of law which are subject to dispute and unsettled.”

assumed that in all cases, the attorney was acting in good faith. The quoted language from the Kingsley case really means when the law is unclear, is subject to dispute or is unsettled, no one knows what the law is on this subject. Hence, an attorney cannot be held negligent.

Normally, attorneys are acting in good faith when they represent their clients. For purposes of this article, it is

Even that is questionable, depending upon the complexity of the various options, as the attorney may be

However, is the rest of the quote a fair statement of what the liability of an attorney should be? Paraphrasing and re-working the quote, it reads: “It is universally recognized that an attorney will not be held liable for a mere error of judgment when he believes that his conduct is in the best interest of his client.” What is “a mere error of judgment”? If one understands that the phrase does not mean the attorney is excused for mistakes made as to the status of the law, when the status of the law is not in dispute, then the statement is correct. An attorney should not be held liable for judgment calls or strategy decisions made during the course of litigation or a trial. However, there may be circumstances where the attorney could be held liable for a judgment call – not that he made it but for the fact that the attorney had adequate time to explain the various options to the client and failed to give the client an opportunity to engage in the discussion about which option should be selected.

24 | Columbus Bar L aw yers Quarterly Fall 2016

negligent in failing to discuss the options with the client. There would still be the issue of proximate cause and the fact that it was a judgment call regarding trial strategy. If the court in the Kingsley case is correct that a lawyer is not liable – if acting in good faith and in the belief that his conduct is in the best interest of his client – for either a mere error of judgment or for mistakes on points of law which are subject to dispute and unsettled, does not Ohio recognize the Professional Judgment Rule? In answering that question, one must first ask what is the Professional Judgment Rule? The Professional Judgment Rule, as stated by retired Judge John F. Bender in Christopher E. Flaum v. P. Ted Latham, Case No. 06CVA-04-4868, in his Decision and Entry of Oct. 17, 2011: A number of jurisdiction recognize the “judgmental immunity rule” also referred to as the “attorney judgment rule” or “error of judgment rule” as an affirmative defense to a legal malpractice action. The judgmental immunity rule relieves an attorney of liability caused by an honest error in judgment concerning a doubtful or debatable point of law. It is a narrow exception that only applies if: (1) the law that was the subject of the professional advice was clearly unsettled


If a lawyer is not liable for either a mere error of judgment or for mistakes on points of law which are subject to dispute and unsettled, does not Ohio recognize the Professional Judgment Rule?

when the advice was given; and (2) the attorney conducted sufficient research and analysis to make an informed decision as to a course of conduct based on an intelligent assessment of the issues. One of the most often quoted cases in Ohio regarding the Professional Judgment Rule is Murphy, Young & Smith Co., L.P.A. v. Billman, No. 84 at AP-49, No. 84AP-198. This decision of the 10th Appellate District, in an opinion written by Judge Alba Whiteside, states that “if an attorney acts in good faith and in an honest belief that his acts and advice are well founded and in the best interest of his client, he is not liable for a mere error of judgment” (7 American Jurisprudence 2d 250, Attorneys at Law, Section 200). With that background, the court went on to say: Accordingly, there can be no claim for malpractice with respect to an attorney selecting one of several courses of action in conducting the defense of his client in litigation, including a disciplinary proceeding. This constitutes selection of trial strategy, as to which there may be a difference of opinion among attorneys. However, where there is a good-faith selection of a particular trial strategy, there can be no claim for malpractice, even if the strategy be unsuccessful. In most instances, it is mere speculation as to whether a different strategy would have been successful. The court indicated that “client satisfaction is not the test to be employed in determining whether or not the representation meets the accepted standard.” The Billman case relates to a set of facts in which the claim for malpractice dealt with the trial strategy. Thus, it would appear that the Professional Judgment Rule applies in at least two situations. The first situation is the case where the law is unsettled, and the second is the right of the lawyer to select a trial strategy and not be second guessed because the trial strategy was not successful. The court determines the law at the time the events occurred; if the law was unsettled and unclear, and there were conflicting appellate decisions, no definitive statement by the Ohio Supreme Court as to the law or no cases whatsoever addressing the particular legal issue, how can the lawyer be negligent? In other words, how can there ever be a successful legal malpractice case if the law is truly unsettled?

Judge Bender, in his decision on a motion for summary judgment, indicated that Ohio has not accepted the Professional Judgment Rule. However, if the law is unsettled, how can the lawyer be negligent? The Billman case indicates that a lawyer has immunity in selecting a trial strategy, and it would seem that is a correct statement of the law as long as the trial strategy is reasonable. The case of Koslen v. Chattman, Gaines & Stern, 2001 Ohio App. LEXIS 2982: 2001 WL 1035192 is of interest because of the facts of the case and because the decision was written by Terrence O’Donnell, now on the Ohio Supreme Court. In the underlying medical malpractice case, the plaintiff’s lawyer, who became the defendant in the legal malpractice case, concluded that since she was the third or fourth lawyer to represent the medical malpractice plaintiff, the experts which prior counsel had obtained were not adequate to make the case. She knew the case had been dismissed once before and researched the law, indicating at the time of the legal malpractice case that she had found cases permitting a second re-filing and that the law was not clear as to whether the Savings Statute could be used more than once. When it was ultimately held that the Savings Statute could not be used more than once, the legal malpractice case was filed. The opinion in the legal malpractice case indicates that one lawyer testified as a legal expert for the defendant and opined that the law was unsettled, and that the defendant acted as a prudent person when she dismissed the action a second time. Two other lawyers testified that there was no authority supporting the proposition that the Savings Statute could be used more than once. These two legal experts testified that the lawyer fell below the standard of care. There was a verdict for the defendant lawyer and one of the issues was whether or not the verdict was against the manifest weight of the evidence. The court found that it was not. One of the issues presented, on appeal, was that the attorney’s conduct was negligent as a matter of law, or per se, pursuant to the case of DePugh v. Sladoje, 1996 111 Ohio App. 3d 675. Judge O’Donnell ruled that the Sladoje

Continued on page 26

25 | Columbus Bar L aw yers Quarterly Fall 2016


Continued from page 25 case was not applicable because in that case, the attorney misread the Savings Statute and did not recognize that at that time, the Savings Statute only applied to cases that were dismissed after the expiration of the statute of limitations. Judge O’Donnell said that this court recognized that Ohio has not adopted the Professional Judgment Rule and that this particular court had recently declined to adopt it in another case. He stated that the court remained “disinclined to do so today.” Thus, it appears that in the legal malpractice trial, lawyers were allowed to opine as to what the law was and there is no indication as to what the trial judge did when it came to a charge as to telling the jury the status of the law at the time of the events in question. In the DePugh case, there was a settlement and the court stated that: Where a settlement is entered into as a result of an attorney’s exercise of his reasonable judgment in handling the case, the settlement bars a malpractice claim against the attorney. On the other hand, a legal malpractice claim is not barred by the settlement with a party in the underlying action when the attorney has acted unreasonably or has committed malpractice per se. In our judgment, when an attorney has made an obvious error which seriously compromises his client’s claim and a settlement is on the table (albeit an inadequate one) the client should not be forced to forego the settlement offer as a condition of pursuing the attorney for malpractice. In other words, if the settlement is forced upon the client because of the lawyer’s mistake, then the fact that the settlement occurred does not bar the client from suing the lawyer. The court also said that: In many cases, an attorney will be faced with strategic choices, any one of which may lead to a favorable result of his client. An attorney must make an educated guess as to which course of action is most likely to succeed. The practice of law is not an exact science, however, and generally, when a client settles a claim, an attorney should not be subject to a client’s malpractice claim in an effort to obtain additional monies as long as the attorney has made reasonable decisions in handling the case and represented his client competently.

He stated in his dissent: However, it was not the arguable weakness of the merits of the claims that barred their continued pursuit; it was the simple undeniable fact that the claims were settled, with finality, and therefore, further pursuit on the merits of the settlement, even though against attorneys and not the alleged tortfeasors, was forever waived. He cites and refers to the brief of counsel for Appellee Landis David C. Greer, a respected attorney in Dayton, indicating that if the plaintiff’s position is correct, every beneficiary of every wrongful death action would be entitled to three bites at the apple and goes on to describe the three bites. Another case which is often cited for Ohio’s position with regard to the Professional Judgment Rule is the case of Howard v. Sweeney, 27 Ohio App.3d 41, 1985 Ohio App. LEXIS 10281. The court in the Howard case stated that when determining whether or not an attorney breached his duty of care, “it is important to note that liability will not attach for lack of knowledge as to the true state of the law where a doubtful or debatable point is involved.” In the Eighth Appellate District, there was a case arising in domestic relations court that involved a settlement, Briggs v. Wilcox, 2013-OHIO-1541, 2013 Ohio App. LEXIS 1460. The plaintiff was dissatisfied with the settlement terms to which she agreed and contended that her decision to settle was the result of ineffective assistance in counsel and that she would have received more money had she gone to trial. The court referred back to the DePugh case and found that the lawyer had made a reasonable decision and could not be liable. These examples show instances of where the Professional Judgement Rule may come into play in Ohio’s courts. In the next Lawyer’s Quarterly, I’ll delve even deeper, examining issues such as who determines whether or not an attorney made reasonable decisions and why it’s necessary for the law to be debatable.

In the DePugh case, even though there was no question but that the lawyer had committed malpractice, Judge Young dissented and stated that he did not see a difference between cases in which there was alleged malpractice and cases in which there was malpractice as a matter of law.

26 | Columbus Bar L aw yers Quarterly Fall 2016

Rick E. Marsh, Esq.

Lane Alton & Horst rmarsh@lanealton.com


Fall ‘16: Campaigns & Elections

Make Your Judicial Vote Count in 2016 by Chief Justice Maureen O’Connor Given the amount of media coverage devoted to the presidential election this year, many Ohioans may believe that the race for the Oval Office is the only one on the ballot in November. Not so. In fact, I would argue that there are statewide, regional and local candidates on the ballot that will have a far greater impact on the daily lives of Ohio voters than the president will have. Those individuals are judges. There are 157 seats up for election statewide this fall. Judicial candidates are running for the Ohio Supreme Court, courts of appeals, common pleas courts and county courts. It is imperative that voters get to know these candidates in order to make an informed decision on Nov. 8. In order to increase meaningful voter participation, I launched last year the first statewide judicial voter education website: JudicialVotesCount.org. For the first time, Ohioans have access to quality information about all candidates for judge. In addition to candidate profiles, JudicialVotesCount.org features information about what judges do, descriptions about the duties of different courts and brief videos of former judges explaining how the court system works. Most people don’t know the powers and limitations of judges, and this feature really lays it out. My Judicial Votes Count partners include the Bliss Institute of Applied Politics at the University of Akron, which houses the website; the Ohio State Bar Association; the League of Women Voters of Ohio; the Ohio Newspaper Association and the Ohio Association of Broadcasters. There are many reasons to better educate Ohioans about judges and the judiciary. In 2012, voting patterns were analyzed and one thing became clear: a lot of Cuyahoga County voters who cast a ballot for president didn’t vote for judge. In fact, the

Cuyahoga County judicial voter drop-off that year was as high as 40 percent. This staggering statistic speaks to the obvious: a need for ways to encourage voters to educate themselves about the candidates for judge and to vote accordingly. Another impetus for creating the website came from a survey of 1,067 registered Ohio voters who said the biggest reason they don’t vote for judge is because they don’t know enough about the candidates. The survey, conducted in 2014 by the Bliss Institute, focused on the drop-off in votes cast in judicial races. In speaking out on the issue over the last four years, I continue to be concerned about judicial voter drop-off. While Cuyahoga County has delivered an adverse high-water mark, voters elsewhere in Ohio are similarly shy – in great numbers – when seeing judicial races on the ballot. A quarter of the electorate – or more – routinely skips voting for judges, who, by law, are listed near the bottom of the ballot. A separate finding in the survey also confirmed the existence of the dropoff phenomenon, as about half of the respondents admitted they seldom vote in judicial elections. I believe it’s unreasonable to expect voters to be knowledgeable about judicial candidates when that information either doesn’t exist or is difficult to find. JudicialVotesCount.org strives to give voters easy access to quality information. It is my hope that by raising awareness about the availability of this type of information, voter participation in judicial races will increase. Better still, I hope that more Ohioans become better educated about their judges and vote in a more informed way, rather than relying on a comfortable name on the ballot.

your family, friends and supporters by any means, but specifically via social media, to let all know of the website and to encourage voters to log on and learn – and most important – vote. You can connect with Judicial Votes Count via a Twitter account, a Facebook page and a YouTube channel to spread the word. Please follow, like and watch. This is a public service. I would argue that every government website should have a link to JudicialVotesCount.org. Sharp readers will note that municipal court judgeships were not listed among the candidates on the ballot this year. That’s because they run in odd-numbered years. Judicial Votes Count has and will continue to rotate information featuring judicial candidates depending on the year. Past years’ election results will be archived on the site for posterity and, eventually, to study voting patterns in judicial races. Academics and researchers will find this information useful and won’t be able to obtain it anywhere else. While there can be no doubt that presidents make important decisions every day, judges make those same kind of decisions that hit closer to home for most Ohioans. Go to JudicialVotesCount.org and take the time to learn who’s on the ballot for your local court, their legal background and why they are running for judge. Take that knowledge, step into the ballot box on Nov. 8, and make your judicial vote count.

Chief Justice Maureen O’Connor

Supreme Court of Ohio maureen.o’connor@sc.ohio.gov

As I have noted in other areas of the state, members of the bar can play a critical role in publicizing the existence and value of Judicial Votes Count. I urge the roll of the Columbus Bar Association to contact

27 | Columbus Bar L aw yers Quarterly Fall 2016


Fall ‘16: Campaigns & Elections

Voting: A Right Fought for but Ignored by JANYCE C. KATZ At 89, Simon Glazman entered the polling place early, before almost all of the poll workers had arrived. A few months before that election, immediately after he had been sworn in as a U.S. citizen, he had registered to vote. When, for the first time, he stood behind the curtain of the polling booth in the U.S. and made his choices, my late father-in-law fulfilled his life-long dream. Simon wanted to participate as a citizen in what he believed was a just society that received its powers from the consent of the governed, to paraphrase Thomas Jefferson in the Declaration of Independence. Simon knew “consent of the governed” translated into “my vote means something important.” Simon, whose voting experience in the former USSR included choices like voting for Stalin or visiting the Gulag, could never understand why some Americans decide not to exercise this very important right, when the ballot offered a real choice between candidates and on issues. Living in a totalitarian state, his vote showed his loyalty to the person in power, something almost 100 percent of those eligible to vote felt obligated to do. A visit to one of the camps in Siberia or the Urals had a good probability of resulting in a most unpleasant, unhealthy stay or death.

Those who struggled for years, some even dying,

to

obtain

the

ability to vote that so many seem to scorn wouldn’t understand the national indifference to this precious right.

Unfortunately, too many of us in the U.S. have been taking our right to vote for granted, not bothering to vote or in some instances, even to register. The percentage of eligible voters who make it to the polls is embarrassingly low. For example, in the 2014 midterm election, the national average of eligible voters who voted was under 37 percent, with only 28 percent voting in Indiana, only a fraction more in Texas and Utah and 36.2 percent in Ohio. This means 60 to 70 percent of U.S. citizens prefer others decide who governs this country and its states, cities and towns or what issues are supported or defeated. Even more depressing, how many of those who do go to the polls actually have informed themselves about issues and candidates? How many just walk in and check the names as listed on the card of a political party or decide at random which judicial candidate to choose? Those who struggled for years, some even dying, to obtain the ability to vote that so many seem to scorn wouldn’t understand the national indifference to this precious right. Take a trip to the National Voting Rights Museum and Institute, located at the foot of the Edmund Pettus Bridge in Selma, Alabama, and study the exhibits about some of the struggles to obtain the right to vote. Those women who fought get their right to vote, those AfricanAmericans and their white supporters who faced the whip of Dallas County Sherriff Jim Clark or the fury of the white-sheeted Ku Klux Klan members, those groups who passionately fought for their vote would have no understanding today of those who can’t be bothered with it. The history of voting in the U.S. shows the access to the polling booth and the

28 | Columbus Bar L aw yers Quarterly Fall 2016

legal right to vote both expanding and contracting over the years. Alexander Keyssar’s “The Right to Vote: The Contested History of Democracy in the United States” disputes an older theory that voting in the U.S. was a gradual expansion of rights to all citizens. In his awardwinning history of suffrage in the U.S., Keyssar described four distinctive periods. First, in the pre- and early industrial period, the right to vote expanded. Keyssar argues that from the 1850s to World War I, voting rights narrowed and the upper and middle classes “antagonism to universal suffrage” grew. He sees little change occurring during what he labels as the third period, a time from WWI until the 1960s. Even in the North, the period was “distinguished by state-sponsored efforts to mitigate the significance and power of an unavoidably growing electorate.” The fourth period he saw as an expansion of voter rights, emerging out of the success of the civil rights movement. In his book, Keyssar writes a more complex description of each period, delving into the laws as well as the arguments for and against them. Throughout U.S. history, some people have always preferred to restrict voting to a limited few. One common question in U.S. suffrage history was whether people should be qualified by property ownership, education, sex, race or religion to vote. In part, the real argument is whether the U.S. is a republic, with some elected making decisions for all or a democracy with universal suffrage empowering everyone to have a part in the selection of the government of the country. Even those who advocate for universal suffrage, see a need to have some limitations, such as


age restrictions denying those under a certain age the right to vote. The idea that an individual should have a “stake in society” – be taxpayers or property owners – was a theme especially prevalent in the pre-Revolution years, but it reappears every so often. The idea was that possession of property or payment of taxes showed that these individuals were committed members of the community and sufficiently situated to vote independently. Benjamin Franklin allegedly advanced an argument against a property test based upon the ownership of a donkey worth $50. With the donkey, one could vote. After a few years, the donkey died, and the individual owned nothing but was an experienced voter. Franklin thought denying the donkeyless-butexperienced-in-elections the vote made no sense. In 1790, Vermont was the first state to eliminate the tax and property owning restrictions. But by the 1850s, fear of impoverished immigrants led to calls for restrictive citizenship as well as voting laws. There were other tests, especially during the early years, that have reoccurred throughout history. For example, a religious test meant that Catholics and Jews could not vote in close to half of the colonies. This came back in the mid-19th century when the Know-Nothing Party thought to keep Catholics and certain recent immigrants from voting. Rights gained at the turn of the 19th century vanished as groups such as the Know-Nothing Party advocated strict registration laws and requirements for becoming a citizen. Of course, color played a part. Native Americans never had easy access to voting. In contrast, in the early years of the country and during the preRevolutionary period, African-Americans who owned property could vote. They were disenfranchised during the early 19th Century, in part because of a concern that they might vote for the other party but also because of blatant racism. As to women, some voted in the 1790s but were disenfranchised in the early 19th Century. The argument “no taxation without representation” that triggered the Boston Tea Party – not the cake and sweets at 4 p.m. event but the tea over the side of the boat to avoid taxes event – combined with the contributions of the men who fought for the new country fueled changes in voting requirements after the Revolution ended. The industrialization and waves of immigrants in the mid-19th century

resulted in the limitation of voting rights. While the Constitution, adopted in 1787, stressed the importance of voting, it left the determination of suffrage laws in the hands of the states. As Keyssar pointed out, “citizenship in the new nation – controlled by the federal government – was divorced from the right to vote.”1 The goal: to prohibit immigrants, specifically Catholics, from voting and subverting American values and institutions. Concern about paupers and a denial of the right to vote to freed blacks who had previously been permitted to vote also produced restrictions in many states. For example, in 1857, Oregon limited the right to vote to white, male citizens. While both women and men of all races worked to abolish slavery and for universal suffrage, the aftermath of the Civil War brought the Thirteenth, Fourteenth and Fifteenth Amendments into the Constitution, including the wording that no male should be disfranchised. The women’s suffrage movement split but reunited late in the 1890s. Women’s right to vote in federal elections became part of the U.S. Constitution only on Aug. 26, 1920, although some individual states already permitted women to vote in state and local elections.

Modern Struggle for Voting Rights in America” takes us through the fight to pass the Voting Rights Act, which guaranteed enfranchisement for minority groups almost 100 years after the passage of the Fifteenth Amendment. The book reads like a novel while documenting a history of the return of obstacles to voting once thought removed forever. An updated version of the book was published in early August 2016. Now, we just need to watch court cases and state legislatures to see what happens to the right to vote. In addition to knowing who is permitted to vote, we should study who actually votes and why those who are eligible to vote decided not to use this very significant right. However, I think Simon would never have understood any reason for not voting in an election. 1

The Right to Vote: The Contested History of Democracy in the United States (Basic Books 2000, revised 2009). p. 24.

In “Blackballed: The Black Vote and U.S. Democracy”, Darryl Pinckney weaves his family’s story in and out of his short history of African-American suffrage. He talks about the post-Civil war era, when freed male slaves were given the right to be full citizens and vote through the Fourteenth and Fifteenth Amendments. Until President Rutherford B. Hayes and the Compromise of 1877 ended Reconstruction, African-Americans voted, were elected to office and owned property despite being beaten or killed by gangs of hooded vigilantes. Both the original and revised editions of Keyssar’s history of suffrage, however, were published prior to the Supreme Court’s five to four decision in Shelby County v. Holder, 570 U.S. (2013) that held Section 4 of the 1965 Voting Rights Act was unconstitutional. In his concurring opinion, Justice Clarence Thomas argued Section 5 was unconstitutional as well. In her dissent, Justice Ginsburg argued that Congress’ power to enforce Fourteenth and Fifteenth Amendments of the Constitution encompassed the Voting Rights Act.

Janyce C. Katz, Esq.

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

Ari Berman’s “Give Us the Ballot: The

29 | Columbus Bar L aw yers Quarterly Fall 2016


Fall ‘16: Campaigns & Elections

National Convention Serves as Unity Point

for Political Parties Ahead of Election Day by Councilmember Michael P. Stinziano Serving as a delegate to the 2016 Democratic National Convention was truly a unique experience for me. Although I have attended Democratic conventions before – first in 2004, where I served as a page to the Ohio delegation and heard then Illinois State Senator Barack Obama deliver an electrifying keynote address, and again in 2012 when I served as a delegate to the Democratic Convention in Charlotte – our convention in Philadelphia was special, historic in fact. For most people prime time TV, the routine enough. delegates adopted

watching during convention looked The first night, the party platform

and heard a moving speech from First Lady Michelle Obama. Night two saw the roll call of the states, with Senator Bernie Sanders calling for the Democratic nomination to be decided by acclimation. President Obama, Vice President Joe Biden and Senator Tim Kaine spoke on the third night. The final night of the convention was truly historic as Hillary Clinton accepted the Democratic nomination for president of the United States. But, for delegates like me, each day was far from routine. Every day started with a delegation breakfast meeting, where we heard from speakers from across the country about the importance of the Ohio vote

in the upcoming election. As by now everyone knows, only President John F. Kennedy has been elected without winning Ohio in the last 72 years. After breakfast, delegates traveled to the convention hall where activities started in the afternoon, well before prime time. For me, starting with each day’s delegation meeting to the numerous forums, networking opportunities and strategies to learning what the quickest and less stressful way to get into the Arena, the Democratic National Convention served a once in a lifetime opportunity. I experienced not only living through the historic nomination of our first female major party candidate, but

Photo credit: Benjamin Leland

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I also had a wonderful opportunity to witness the immensity of our country’s opinions and the diversity it holds. I enjoyed being able to meet and discuss perspective and politics with so many individuals who weren’t just Ohioans or even Midwesterners but who were from throughout the United States and its territories. While Ohioans have become accustomed to our recognition as the state that ultimately selects the president and even with the onslaught of political commercials and literature that accompanies this important and historic designation, Ohio clearly wasn’t the focus in the hall. The pride each Delegate feels for their state and the issues of utmost concern shine not only in the unique outfits, chants and slogans but in the many, many speeches and conversations while waiting for overpriced water or the coveted access to a cell phone charger. Of course, Ohioans did star in many ways during the convention. Ohioans Ruby Gilliam, the convention’s oldest delegate and extremely popular iPhone selfie participant opened the convention with the Pledge of Allegiance. Cleveland Congresswoman Marcia Fudge chaired the convention. Chillicothe Mayor Luke Feeney, Cincinnatian

Every

day

started with a delegation breakfast meeting, heard

where

from

we

speakers

from across the country about the importance of the Ohio vote in the upcoming election.

Photo credit: Benjamin Leland

Jim Obergefell, Gold Star Mother and Wood County School Board Member Sharon Belkofer, Beth Mathias of Marion, Congresswoman Joyce Beatty, Congressman Tim Ryan and U.S. Senator Sherrod Brown all played an important role at the convention. Having attended three conventions now, Philadelphia clearly stood on its own for the differences and new experiences that occurred. A hall that on Monday night was dedicated to a revolution by first time delegates’ strong support for Senator Bernie Sanders became more united throughout the week as the party platform and an all-star lineup of people, communities and influential voices from across all places throughout the country reminded all in the hall and those watching on television just how diverse the Democratic Party has become. Humorist Will Rogers once famously said “I am not a member of any organized party. I am a Democrat.” The 2016 Democratic National Convention went a long way, I think, in demonstrating that Ohio Democrats and indeed all Americans are stronger together.

Councilmember Michael Stinziano, Esq.

Columbus City Council mstinziano@columbus.gov


Fall ‘16: Campaigns & Elections

Every Lawyer Should Attend

a National Political Convention by frank j. reed, jr. This is my 25th year practicing law and being an active member of our Columbus Bar Association. So, I was honored to be invited to write about my experience as an honorary delegate to the 2016 Republican Party National Convention, held the first week of August 2016 in Cleveland. By way of background, my first political campaign was for Ronald Reagan, where I was a volunteer for the rally held in October 1984 at St. John’s Arena at The Ohio State University. Frances, who later became my wife in 1989, was a youth delegate the summer of 1984 for the RNC convention held in Dallas. Although we’ve attended a presidential inauguration, this was my first experience attending a national political convention. We knew this convention would be very different.

Security

Prior to the start of the convention, there was wide-spread concern expressed about security. There were fears of violence and perhaps riots. Our college-age son had signed up to be a volunteer for the convention, so when we took him to stay at the dormitories at Case Western Reserve, we saw a sea of uniformed police officers. This was the area where the RNC had assigned most of the police officers to stay during the week of the convention. We saw police officers from all over the country, including Utah, Texas, Florida, Georgia, Michigan and every part of Ohio. At one point, during shift change, we saw 24 school busses packed with 40 police officers in each bus, with a police escort, lights

and sirens blaring, headed toward downtown. My wife mentioned to me that it looked like a scene of a movie and that the police were preparing for Armageddon. Once we began to explore the streets of downtown Cleveland, we noticed that the police had erected what they called the “hard zone.” This was the inner core of downtown that was fenced and protected by police patrols. It encompassed Gund Arena, which was the site of the actual Convention, and probably a 10-block area immediately surrounding the Arena. In addition, the police erected a separate 10-foot metal fence in order to protect one lane of traffic on every major street. I was later told that this was so that emergency vehicles could get through the streets, in the event of an emergency. This route was also used for the many dignitaries and motorcades that rushed through the streets of Cleveland. When we were out and about, we saw all sorts of police patrols. All of the police were uniformed and travelled in large groups. Some patrols were on horses, motorcycles, bicycles or segways, and some were on foot. Some groups were driving in armored vehicles, trucks or police cruisers, and some were in helicopters or perched with high powered rifles hidden on rooftops.

The People

The Ohio delegation consisted of 66 delegates, 66 alternate delegates and over 250 honorary delegates. Many of these folks hold law degrees and either

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actively practice law, serve as lobbyists or do both. The delegates are chosen by the campaign of the presidential candidate that won Ohio’s primary, in this case, Governor John Kasich. The honorary delegates do not have any voting authority but are invited to attend most of the programs and the parties. There are numerous of elected officials who attend at least part of the convention activities.

Why Go?

I think there are two main reasons why people attend the convention. One is because the person is sincerely interested in observing the process of nominating a candidate for president. Another is because the person has a job, usually as a lobbyist or other person who does work or has clients that work closely with elected officials in Ohio, that requires that they become familiar with the elected officials and their staff who do attend the convention.

What to Do?

The first event was a party on Sunday afternoon in Little Italy, an Italian neighborhood on the east side of Cleveland, sponsored by Ohio Attorney General Mike DeWine. In the evening, there was a “Welcome Party” sponsored by the Republican National Convention in Voinovich Park, located on the edge of Lake Erie. There were food trucks, drinks, live entertainment, a band and evening fireworks over the lake. That party included delegates from all over the country. A private


party for just the Ohio delegation, sponsored by Ohio House Speaker Cliff Rosenberger, followed the fireworks. The delegation was entertained with a concert performed by Lynrd Skynrd. On each day of the work week, the Ohio delegation was invited to a breakfast beginning at 8 a.m. Several of the convention floor speakers visited the Ohio delegation and spoke at the breakfast, including U.S. Senator Tom Cotton, U.S. House Speaker Paul Ryan, Florida Attorney General Pam Bondi and many of our statewide officeholders.

The Convention Floor

As an honorary delegate, I did not have a pass to every day of the convention. However, I was able to secure a oneday pass for the last evening of the convention. There were busses that took us to the convention; we went

through security and then into Gund Arena. The Ohio delegation was stuck in the southwest corner of the floor, but I did manage to make my way to the floor and snap a picture with the post and the banner that said Ohio. It was exciting to able to observe the activities that evening as they unfolded on live television. All in all, I enjoyed the convention. I enjoyed the many people I met. I was impressed on what a great job the city of Cleveland did in hosting the Convention. I was happy to be a part of the process. I appreciate the support that my firm gave me in order to attend, and I encourage every lawyer to be active in the political process, learn about the candidates and their positions and attend a national convention at one point in their career.

Frank J. Reed Jr., Esq.

Frost Brown Todd freed@fbtlaw.com

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Life Outside the Law

Art & the Law

at the Ohio Judicial Center BY ASHLEY BARTMAN WATSON For many, the Supreme Court of Ohio has significant meaning as a bastion of judicial integrity. However, the Thomas J. Moyer Ohio Judicial Center also represents a unique joining of two disciplines that, on their face, may appear quite disparate: art and the law. Murals, relief sculptures and mosaics depicting scenes and people from Ohio history and important Ohio industries adorn the walls and ceilings of the public spaces including the Courtroom, the Law Library and the Grand Concourse. The Court has also acquired a large collection of art in the form of paintings and sculpture since moving into the Judicial Center in 2003. Inspired by former Chief Justice Moyer, a great supporter of the arts, the Court has acquired over 50 paintings that are on display throughout the building, as well as historical maps and photographs of each of the 88 county courthouses. This article provides a brief preview of some of the impressive art to be found in the Judicial Center that celebrates Ohio, law and the pursuit of truth. Perhaps the most recognizable pieces of public art at the Judicial Center are located outside the building on the north and south plazas. Both installations were funded by grants from the Ohio State Bar Foundation. Andrew F. Scott’s “Gavel” is located in the south reflecting pool, made of stainless steel and thirty feet long. Known as the “world’s largest gavel,” the sculpture represents the decision-making authority of the judiciary. On the north plaza, Malcolm Cochran’s “Words of Justice” features ten words intrinsically related to the

American justice system: wisdom, integrity, peace, truth, justice, honor, reason, equity, compassion and honesty. Both artists also have connections to The Ohio State University; Scott received his master of fine arts from OSU and Cochran is currently an emeritus professor of art, teaching in the sculpture and foundation programs. Moving inside the Judicial Center, visitors will discover the Kingsley A. Taft Map Room on the first floor, home to 18 original, historically significant maps. Donated by Sheldon A. Taft, son of the late Chief Justice Taft, the maps range in date from the 17th century through the 19th century and reflect the evolution of mapping in the geographic area that would become Ohio. The oldest dated map in the collection, titled “America Septentrionalis,” was created around 1641. Mapmakers of the time often depicted California as an island, floating off of the west coast of North America. The area that became Ohio was relatively unexplored at the time and, in fact, only one Great Lake is identified by the mapmaker. In contrast, the circa-1835 map titled “Ohio and Indiana” clearly outlines the two states as they are recognized today. However, the northwest border of Ohio is noticeably lower than at present and leaves the mouth of the Maumee River and the city of Toledo in Michigan; a reminder of the bloodless Michigan-Ohio War over the city in 1835-36.

2

3

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1

In the dining room on the second floor, visitors will find several superb works of art, both from the Supreme Court’s collection and loaned from the Columbus Museum of Art. For example, internationally recognized local artist Aminah Brenda Lynn Robinson’s “Church Quilters on Water Street,” part of the Supreme Court’s collection, depicts a community of African-American women constructing a quilt that relates their family history and the history of their community. The painting itself is unique because it is composed of cloth, pen and ink, buttons, thread and paint on paper. Robinson trained at what is now the Columbus College of Art and Design. The Tuskegee Airmen Portrait Series, also located in the dining room, was donated to the Supreme Court by Delaware, Ohio artist Robert E. Tanner in 2008. The five portraits in this series depict five African-American aviators who served in the 99th Fighter Squadron in World War II. These men contributed significantly to social change and fighting racial inequality in the American military. The Tuskegee Airmen also have a local connection. What was the Tuskegee 99th Fighter Squadron eventually became 332nd Fighter Group, with a home base of Lockbourne Air Force Base, now known as Rickenbacker Air National Guard Base and located here in Columbus. Visitors who travel up to the 11th floor of the Judicial Center will find the law library, which features a wealth of exquisite art and architecture. The Rule of Law Gallery at the entrance of the library is home to a series of six four-by-eightfoot oil paintings created by Columbus artist Ron Anderson that depict the evolution of law in Western civilization. The paintings are on permanent loan from the Ohio State Bar Association. Each of the six paintings depicts an important period in the development of

the legal system as we know it today. The series begins with “The Code of Hammurabi and The Rule of Ramses the Great” and ends with “Lady Justice Leading the People,” a representation of the civil rights struggle of the 1960s through the present. Just past the Rule of Law Gallery is the completely restored Reading Room, featuring seven murals portraying the history of the printed word as well as two large glass sculptures by world-renowned Dale Chihuly. In addition to the permanent collection, the Court works with Ohio museums and historical societies to feature temporary fine art loans that further enrich the Judicial Center’s artistic environment. The Judicial Center has received loans from the Columbus Museum of Art, the Ohio History Connection, the Zanesville Museum of Art and the Southern Ohio Museum, Portsmouth. The collection is managed by the Fine Arts Committee of the Commission on the Thomas J. Moyer Ohio Judicial Center. In order to view the entire public art collection, please visit www.supremecourt. ohio.gov/VisitorInfo/art/ and www. supremecourt.ohio.gov/VisitorInfo/ art/catalog.pdf or stop by the Thomas J. Moyer Judicial Center. For a tour of the Judicial Center and its public art collection, call 614-387-9223 or e-mail mcourttours@sconet.state.oh.us.

1) Andrew Scott, Gavel (detail), Funded by a grant from the Ohio State Bar Foundation, 2008. 2) Ron Anderson, Lady Justice Leading the People (detail), Permanent loan from the Ohio State Bar Association, 2005. 3) H. Jansson/J. Hondius, America Septentrionalis, Collection of the Supreme Court of Ohio, 1636-circa 1641. 4) Dale Chihuly (with Lino Tagliapietra and Ben Moore), Mottled Citron Green Ikebana with Blue and Teal Flowers, Permanent Loan from the Ohio State Bar Association, 2002. 5) Aminah Brenda Lynn Robinson, Church Quilters on Water Street (detail), Collection of the Supreme Court of Ohio, 2000-2007.

Ashley Bartman Watson Art Collection Intern, Supreme Court of Ohio ashleylbartman@gmail.com

4

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Life Outside the Law

Snow, Hail & Wind Add Adventure to Annual Hike BY HON. DAVID E. CAIN Backpacking in the snow was never our idea of a good time.

loop that would take us back to our cars by Sunday.

But neither was many other surprises over a 29-year stretch of annual springtime journeys into wilderness domains. The National Park Service is celebrating its 100th year. And we have hiked in the national parks for a good chunk of that span. But, in early May, this was the latest we had ever done it. And, as usual, we went south – more than 300 miles south – to Mt. Rogers National Recreation Area in southwestern Virginia where it fingers between Tennessee and North Carolina.

Around 3 p.m., light snow began to fall. Within an hour it was snowing heavily and we had no time to look for a “regular” campsite – just the first place with a few flat spots to pitch tents and cover our packs. No water source was within sight or imagination. We hadn’t filled our water bottles since morning and chances were that our water would have to last until the following morning when coffee and instant oats would be mandatory to sustain life.

The weather forecasts had indicated “cold and wet” but who cared. Been there. Done that. As always, we gathered on a Wednesday afternoon at a place where you rent a campsite and park your car beside it. We took our time the next morning breaking up the “Cadillac camping,” parked our cars in a designated area, hooked up with the Appalachian Trail and headed north. About mid-afternoon, we peeled off onto a spur to begin a

We gathered matchstick sized twigs to try to start a fire in the now accumulating snow. I confess to swearing at a fellow hiker when he started to sing, “It’s beginning to look a lot like Christmas.” With everyone’s help gathering wood, breaking it up and blowing on the red ashes, we finally had flames leaping several feet in the air. The choice was to stand near the flames and frequently suffer burning eyes and lungs from smoke in the shifting winds or walk a few feet away and suffer from chills setting

36 | Columbus Bar L aw yers Quarterly Fall 2016

into already frigid bones. It would be another three days before we could walk into a warm building. We put off fixing dinner in hopes the snow would stop. When it was still falling after several hours, we proceeded to scoop snow off our tent – which actually once collapsed from the weight of the snow – boiled the white stuff and fixed mac and cheese with cut up chunks of cheddar and summer sausage. Then, we crawled into our tent and sleeping bags – I even kept on four layers of shirts and jackets – to try to warm up. I awoke a few hours later by what sounded like a train approaching from afar and then passing near the tents. It was confusing, until I realized the sound was a strong wind passing through the trees. A good thing about backpacking is a new appreciation for things usually taken for granted – sinks and faucets, toilets and a real bed. Twice during the night, I had to empty my bladder and the experiences were among the worst I’ve had all year. First, one


has to find the zipper and open the mummy sleeping bag. Then, try to sit up with a tent close overhead and soreness throughout the back, hips and legs. Find your boots and stick your toes in, then lie on your back with feet in the air to try to get enough leverage to pull them on. Now, turn over and try to unzip the front flaps and crawl out without getting water and mud all over the sleeping bag or falling on whoever is sharing the tent. Finally, stand up and wander into the weeds to avoid contaminating the campsite. The rain and snow had stopped when we got up in the morning, but everything was wet and the temperature was still in the 30s. The snow falling in an uncovered mug melted down to about an inch and a half of water. The precipitation had turned the trail itself into a shallow stream which served as a water source … glad I had a new filtering system. That afternoon, we hiked to a better camping spot – a flat area overlooking a lively mountain stream. Not long after we set up camp, we were hit with another first: hail. It was the size of BBs and lasted only 15 or 20 minutes but enough to turn the ground white again for a while. Shortly thereafter, we got a special treat: wild ponies roaming in the woods nearby. We have hiked in the Mt. Rogers area three times over the years and have always run into a small herd at some point. The ponies, a little larger than Shetlands, are accustomed to seeing human beings, since about 120,000 people visit the Grayson Highlands State Park every year. They’re even approachable and sometimes can be petted, although feeding and touching are strongly discouraged. The Park Service actually started the herd some 40 years ago and it grew to about 120 until a recent hard winter, one that brought 112 inches of snow in three months and temperatures down to 15 below, cut the number by more than half. They help keep the bald areas clear along the mile-high ridgeline and help prevent forest fires by eating the underbrush in the wooded areas. Saturday morning was sunny with spectacular scenery and another first: wild steer. I don’t know where they came from, but several had mighty big horns. We kept our distance, just like a small herd of ponies that cowered nearby. That night, we camped in the clouds with rain, of course, and winds so strong we thought they would blow our tents over the ridge. Hiking out the next morning, the rocky terrain and heavy winds made a bad combination. Walking sticks were mandatory to maintain footing as we gingerly lunged from boulder to boulder for more than a mile in winds gusting to 40 to 50 miles an hour. White marks on the rocks about every 100 feet let hikers know they are still on the Appalachian Trail.

The weather forecasts had indicated “cold and wet” but who cared. Been there. Done that.

Hon. David E. Cain

Franklin County Court of Common Pleas David_Cain@fccourts.org

Finally, another “death march” was history, and it doesn’t look like any of us will have enough sense to quit while we’re ahead. There’s still nothing like it.

37 | Columbus Bar L aw yers Quarterly Fall 2016


Life Outside the Law

Lawyers with Artistic License: Athena Inembolidis BY HEATHER G. SOWALD One of the main rules of improvisation is responding “Yes, and…” which advances, adds details to and slightly alters the current scene. Athena Inembolidis took her own “Yes, and…” step in her life a few years ago. On a whim, she became a student in Columbus Unscripted’s improv classes. Since then, she has continued to periodically take classes, including sitcom writing classes, in order to strengthen her skills. Athena is in “Super-Secret,” a twowoman, three-man improv troupe that performs regularly at Wild Goose Creative. Athena has performed at the Chicago Improv Festival and helps host the national five-day Columbus Improv Festival each fall. Her troupe rehearses year-round and runs through improv exercises every Monday evening, working on their long-form style of performing. “Paradoxically,” Athena says, “doing improv is relaxing!”

She says that this is a result of focusing on what each actor is saying and creatively adding to each scene. Athena also finds these newly acquired skills help her in her law practice, forcing her to be in the moment and listen, whether she is in court or meeting with a client.

She was active in high school theater, sports and mock trial competitions. She remained in the Cleveland area for college, graduating from Baldwin Wallace in 2000 with a Bachelor of Arts in International Studies, and for law school, receiving her Juris Doctor from Cleveland-Marshall in 2004.

She adds that being around humor is a release too, and she enjoys how her troupe finds it in unexpected places and scenes. She describes, for instance, a scene in which the other actors identified themselves as teeth, so she chose a different path and declared herself to be dental floss, shimmying around the others.

She was first employed as an attorney at a bankruptcy law firm in Columbus starting in 2006. Athena struck out on her own in 2008 and has remained a solo bankruptcy law attorney with an office in German Village. Her brother came to Columbus to work in her firm in 2010 and her parents came in 2014.

Athena laughingly refers to her life in terms of the movie “My Big Fat Greek Wedding.” Of course, Athena has not yet had her own wedding but is open to introductions to make that happen – contact her at Athena@AthenaLegal. com! Raised in a close-knit family, she spent much of her time at her parents’ small pizza restaurant in Euclid, Ohio and also worked at their travel agency.

When she is not at her office or Wild Goose Creative, Athena attends the downtown Greek Orthodox Church. She’s even coached the girls’ basketball team, even though she’s not a great basketball player! Athena is also active with the Columbus Bar. She is a past chair of the Small Firm/Solo Practitioner Committee and served on the Bankruptcy Law Institute planning committee. Athena sees improv being a part of her life for years to come. She will continue to add to her personal and professional life by responding “Yes, and,” enjoying where each new scene takes her.

Heather G. Sowald, Esq.

Sowald Sowald Anderson, Hawley & Johnson hsowald@sowaldlaw.com 38 | Columbus Bar L aw yers Quarterly Fall 2016


ar sm to rn Tu r fo ls

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te to see the best results. Only Fastcase features an interactive map of search results, so you can see the most important cases at a glance. Long lists of

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Smarter by association. Free, unlimited legal research on your desktop or mobile device for attorney and practicing paralegal members of the Columbus Bar. Members of the Columbus Bar Association now have access to Fastcase for free. Unlimited search using Fastcase’s smarter legal research tools, unlimited printing, and unlimited reference support, all free to attorney and practicing paralegal members of the Columbus Bar. Log in at www.cbalaw.org and click the Fastcase logo. And, don’t forget that Fastcase’s apps for iPhone, Android and iPad connect to your bar account automatically by Mobile Sync. All these features are available as a benefit of membership in the Columbus Bar Association.

39 | Columbus Bar L aw yers Quarterly Fall 2016


Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER Verdict: $229,480.99 ($218,064 plus pre- and post-judgment interest). Breach of Contract. In February 2012, Plaintiff Ron Foth Advertising entered into a contract with Defendant Stanley Steemer to provide advertising services. Ron Foth Advertising interpreted the contract as granting it an exclusive right to do all television and radio production work for Stanley Steemer for the length of the contract. The termination clause of the contract provided that the contract would continue until 90 days after written notice of termination by Stanley Steemer. On Nov. 1, 2013, Stanley Steemer sent Ron Foth Advertising written notice of the termination of the contract. Ron Foth Advertising alleged that Stanley Steemer breached the exclusivity provision of the contract by agreeing to pay others more than $1.5 million for television and radio advertising before the contract terminated on Jan. 31, 2014. Stanley Steemer disputed that the contract gave Ron Foth Advertising an exclusive right to perform all radio and television production because the phrase “exclusive advertising agency of record” was ambiguous. Stanley Steemer also argued that there was no consideration given for an agreement to exclusivity. According to Stanley Steemer, exclusivity was also inconsistent with the parties’ intentions, their expectations, their course of dealing and industry norms. Finally, Stanley Steemer argued that Ron Foth had actual or constructive

notice of termination of the agreement as early as April 2013. Stanley Steemer also disputed Ron Foth’s claimed damages. Claimed Damages: $700,411.80. Plaintiff’s Experts: None. Defendant’s Experts: None. There were no meaningful settlement negotiations. Length of Trial: Five days. Counsel for Plaintiff: James S. Savage. Counsel for Defendant: Kimberly Weber Herlihy and Angelyne E. Lisinski. Magistrate Myron Thompson. Case Caption: Ron Foth Retail, Inc. d/b/a Ron Foth Advertising v. Stanley Steemer International, Inc. Case No. 14CV5249 (2015).

Verdict: $50,000.00 ($41,653.00 in economic damages, $8,347.00 in non-economic damages; reduced by 32 percent comparative). Automobile Accident. In the predawn hours of Dec. 16, 2008, plaintiff Wayne Stoof was headed northbound in the center lane of I-270 between I-70 and Roberts Road when a vehicle driven by Markio Washington merged into Stoof’s lane, causing Stoof to brake. Stoof flashed his lights at Washington’s vehicle and Washington slowed his vehicle to a stop and got out of his vehicle. Stoof was able to bring his vehicle to a stop without striking Washington’s vehicle, but Stoof’s vehicle was then struck from behind by a truck owned by Local Waste Services and operated by defendant Gregory Marcinko. The collision sent Stoof’s vehicle

40 | Columbus Bar L aw yers Quarterly Fall 2016

into a spin. Stoof’s vehicle struck Washington, killing him. Stoof’s vehicle also struck another vehicle in the right lane operated by Constance Lofton. Stoof suffered a concussion and right shoulder injury, aggravation of a pre-existing neck injury and post-traumatic stress disorder. His orthopedist indicated that he would need future shoulder replacement surgery. Stoof sued Washington’s estate, Marcinko, Local Waste Services and Lofton. He also asserted an underinsured motorist claim against his insurer, Motorists Mutual Insurance Company. Lofton filed a separate lawsuit against Marcinko and Local Waste Services. The administrator of Washington’s estate asserted a cross-claim against Marcinko and Local Waste Services. The lawsuit filed by Lofton was consolidated with Stoof’s lawsuit. The court granted summary judgment in favor of Lofton on the claims Stoof asserted against her and Lofton settled her claims against Marcinko and Local Waste Services. Stoof also settled his claims against Washington’s estate. Therefore, the case proceeded only on the claims against Marcinko and Local Waste Services that were asserted by Stoof and the estate of Washington and Stoof’s underinsured motorist claim. Marcinko and Local Waste Services asserted that Washington and Stoof were responsible for the accident by stopping suddenly in the dark without


turning on any hazard lights. They also claimed that some of Stoof’s claimed injuries were unrelated to the accident. The jury concluded that Marcinko and Local Waste Services were negligent and caused the injuries to Stoof. However, their negligence did not cause the injuries to Washington. The jury apportioned 32 percent of the liability to Stoof for his own injuries and found that Washington was 44 percent liable and Marcinko and Local Waste Services were 24 percent liable. Medical Specials: $28,000 in past medicals, $25,000 in future medicals. Lost Wages: $750. Plaintiff’s Experts: Timothy Duffey, D.O. (orthopedic surgeon), Charles May, D.O. (family practitioner). Experts for Defendants Local Waste Services and Marcinko: Frederick Lickert (accident reconstruction). Last Settlement Demand: $300,000.00. Last Settlement Offer: Unknown. Length of Trial: Five days. Counsel for Plaintiff: William R. Thomas. Counsel for CrossClaim Plaintiff: Thomas Bonasera. Administrator for the Estate of Markio Washington: Mark Defossez and Curtis Fifner. Counsel for Defendants Local Waste Services, Ltd. And Marcinko: John Petro. Counsel for Defendant Motorist Mutual Insurance Company: Jennifer L. Wilson. Judge Kimberly Cocroft. Case Caption: Wayne G. Stoof v. Local Waste Services, Ltd., et al. Case No. 10 CVC 12 18255 (2015).

He sued Householder for assault and battery and sued Red Rock, defendants and Red Rock owners Jay Hoy and Matthew Maynard, Selo, manager Scott Boudreau and the property owner, Edgemont Properties, LLC. He claimed that Boudreau and Selo saw Householder preparing to assault Neme and failed to warn Neme and then failed to aid him after the assault began. He further claimed that Red Rock Bar & Grill failed to properly train its employees and supervise its patrons and claimed that the bar violated Ohio’s Dramshop Act. He claimed that Defendant Edgemont Properties, LLC negligently maintained its premises because the parking areas lacked adequate security. The court granted summary judgment in favor of defendants Hoy, Maynard and Edgemont Properties and granted a directed verdict in favor of defendants Red Rock, Boudreau and Selo. The only remaining defendant was Householder, who was unrepresented at trial. The jury found in favor of Neme and awarded him $60,238.17 in compensatory damages, $10,000 in punitive damages and $1,750 in attorney’s fees. Medical Specials: Not provided. Lost Wages: Not provided. Plaintiff’s Experts: Seven W. Blausey, O.D. (optometrist). Defendant’s Experts:

None. Last Settlement Demand: $51,250.00. Last Settlement Offer: $3000 offered by Defendant Edgemont. Length of Trial: Three days. Counsel for Plaintiff: Kinsley F. Nyce. Counsel for Defendants Red Rock Grill & Pub, LLC, Scott Boudreau and Meagon D. Selo: Jack L. Moser, Jr. Magistrate Ed Skeens. Case Caption: Justin Neme v. David Householder Case No. 13CV9634 (2015).

Verdict: $12,796.96. ($6,796.96 in economic damages, $6,000.00 in non-economic damages). Automobile Accident. On March 20, 2011, plaintiff Andrew Fairchild was driving his motorcycle northbound on Central Avenue when, according to Fairchild, a vehicle driven by defendant Ashley Kistler that was headed southbound on Central Avenue made a sudden left turn into Fairchild’s path. When Fairchild applied his brakes to avoid the collision, his motorcycle fell causing him injury and damaging the motorcycle. Kistler denied that she entered Fairchild’s lane or caused him to apply his brakes. The police were not called to the scene.

Continued on page 42

Verdict: $71,988.17 ($60,238.17 in compensatory damages, $10,000.00 in punitive damages and $1,750.00 in attorney’s fees). Premises Liability/Assault. On Feb. 5, 2013, plaintiff Justin Neme was a patron at the Red Rock Grill & Pub. Sometime late on Feb. 5 or early on Feb. 6, Neme was asked to leave by defendant Meagon Selo, a bartender and assistant manager on duty. Neme claimed that as he was walking out of the bar, he was pushed from behind. He turned around and was punched by another patron, defendant David Householder. Neme sustained an injury to his eye.

Franklin County Common Pleas Court 41 | Columbus Bar L aw yers Quarterly Fall 2016


Continued from page 41 Fairchild went to the emergency room later that day complaining of right shoulder and neck pain and abrasions. He followed up with two visits with his family physician and a visit with a dermatologist/cosmetic surgeon. Medical Specials: $3,738.62 ($3,058.34 in property damage). Lost Wages: Not provided. Plaintiff’s Experts: Antonio Phillips, M.D. and Mary Beth Luca, M.D. Defendant’s Experts: None. There were no significant settlement discussions due to the dispute on liability. Length of Trial: Two days. Counsel for Plaintiff: Sydney S. McLafferty. Counsel for Defendant: Kevin J. Zimmerman. Magistrate Mark Petrucci. Case Caption: Andrew Fairchild v. Ashley Kistler, et al. Case No. 13CV4216 (2015).

Verdict: $7,967.83. ($4,967.83 in economic damages, $3,000.00 in non-economic damages). Automobile Accident. On Nov. 5, 2011, plaintiff Joseph Abatkun was headed southbound on James Road when defendant Michelle Sprinkle, who had been traveling northbound on James Road, turned left into Abatkun’s path. The vehicles collided and Abatkun’s right shoulder struck the console. Two days later, Abutkun sought treatment at Advanced Health Center of Columbus for headaches, pain and stiffness throughout his spine and right shoulder pain. After one month of physical therapy, Abatkun had an MRI of his right shoulder which revealed tendinopathy and degenerative changes. In December 2011, Abatkun began treatment with Robert Nowinski, D.O. who diagnosed him with posttraumatic rotator cuff syndrome and AC joint arthritis. Abatkun continued to follow up with Dr. Nowinski periodically. In June 2012, Abatkun was involved in another automobile accident. He reported that he sustained injuries

to his neck, low back, left elbow and left forearm in that accident but did not re-injure his right shoulder. In August 2012, Dr. Nowinski performed arthroscopic surgery on Abatkun’s right shoulder and discovered a rotator cuff and superior labral tear. Abatkun continued to complain of right shoulder and neck pain and followed up with Dr. Nowinski into at least early 2013. In February 2014, Abatkun was involved in another automobile accident. He admitted that his neck, mid-back and left shoulder were injured in the 2014 accident, but he did not re-injure his right shoulder. Defendant admitted negligence but disputed the nature and extent of plaintiff’s injuries. Defendant asserted that the medical expenses related to the automobile accident were less than $6,000 and the related lost wages were under $400. Medical Specials: $24,437.15 (after write-offs). Lost Wages: $1,792.08. Plaintiff’s Experts: Robert Nowinski, D.O. (orthopedic surgery) and Robert Chaykin, D.C. Defendant’s Experts: None. Last Settlement Demand: $85,000.00. Last Settlement Offer: $11,000.00. Length of Trial: Four days. Counsel for Plaintiff: Steven Mathless. Counsel for Defendant: Belinda S. Barnes. Judge Stephen L. McIntosh. Case Caption: Joseph Abatkun v. Michelle Sprinkle, et al. Case No. 13CV9265 (2015).

Defense Verdict. Medical Malpractice. Plaintiff Joshua Thompson, a warehouse towmotor driver, suffered from persistent back pain and developed bowel and bladder dysfunction. On Nov. 14, 2007, Thompson’s family physician sent him for an MRI of his low back. The MRI was read by defendant radiologist John Leach, M.D. and revealed two disc protrusions at L4-L5 and L5S1. Thompson was then referred to orthopedic surgeon, Mark White, D.O., who performed a lumbar fusion in December 2007. The surgery did not alleviate Thompson’s bowel and bladder symptoms.

42 | Columbus Bar L aw yers Quarterly Fall 2016

In April 2008, Thompson had a second MRI. The April 2008 MRI revealed a giant cell sacral tumor. Thompson received treatment but suffered permanent neurogical deficits that impacted his ambulation and bowel and bladder function. Thompson sued Dr. Leach and Dr. White claiming that the tumor was visible on the November 2007 MRI and had it been diagnosed then and properly treated, he would not have suffered neurological damage. The claims against Dr. White were dismissed before trial. Thompson proceeded against Dr. Leach who argued that the appearance of the tumor was so subtle on the November 2007 MRI that a radiologist would not be expected to diagnose it to meet the standard of care. Dr. Leach also argued that diagnosis and treatment of the tumor five months earlier would not have changed the outcome for Thompson. The jury concluded unanimously that Dr. Leach did not breach the standard of care in his interpretation of the November 2007 MRI. Plaintiff presented a life care plan valued between $1,588,216.11 and $3,943,450.87. His lost wages and earning capacity were $1.3 million. Plaintiff’s Experts: Michael BrantZawadzki, M.D. (neuroradiology), Lawrence D. Weis, M.D. (orthopedic oncology), David Boyd, Ph.D. (economics). Defendant’s Experts: David R. Neal, M.D. (radiology), Frank D. Vrionis, M.D. (oncology). Last Settlement Demand: $700,000. Last Settlement Offer: None. Length of Trial: Six days. Counsel for Plaintiff: Curtis M. Fifner. Counsel for Defendant: Gerald J. Todaro and Grier D. Schaffer. Magistrate Edwin L. Skeens. Case Caption: Joshua Thompson v. John Leach, M.D., et al. Case No. 09CV7178 (2015).

Defense Verdict. (In favor of Defendant on Complaint and in favor of Plaintiff on Defendant’s Counterclaim). Employment Discrimination.


Plaintiff Kiasha Lewis worked as an office manager for Defendant Environmental Enterprises, Inc. beginning in December 2012. Her supervisor was Brad Timmons. Timmons alleged that he verbally reprimanded Lewis in February 2013 for making billing errors. He alleged that he reprimanded her a second time in early September 2013 for continued billing errors and for engaging in activities for her personal jewelrymaking business on company time. Timmons was retrained on the billing system and informed that she was to make no more errors over the next 30 days. According to Lewis, she made no further errors. On Nov. 1, 2013, Lewis’s physician discovered a lump on her breast that he suspected was cancer. Lewis notified Timmons of the discovery and her physician’s cancer suspicion that same day. Early on the morning of Nov. 4, 2013, Lewis was fired. Timmons informed her that her termination was due to her consistent billing errors, poor communication and personal agenda distractions. On Nov. 8, 2013, Lewis was diagnosed with breast cancer. Lewis filed suit against Environmental Enterprises alleging that Timmons regarded her as having a disability and discharged her because of that disability. Environmental Enterprises contended

that it did not consider her to have a disability at the time of her discharge and the discharge decision was based upon her inability to perform her job duties after two reprimands. Environmental Enterprises also claimed that Lewis failed to deposit cash that she collected on behalf of Environmental Enterprises, continued to work on her personal jewelrymaking business on company time and submitted a forged expense report using receipts from the purchase of groceries and other personal items. Environmental Enterprises filed a counterclaim against Lewis to recover approximately $1500 in damages resulting from Lewis’s malfeasance. The jury found in favor of Environmental Enterprises on Lewis’s disability discrimination claim and in favor of Lewis on Environmental Enterprises’s counterclaim. Damages Sought: $46,512.00 in back pay, $9,302.00 in lost benefits. Plaintiff also sought reinstatement or one year of front pay and benefits. Experts: None. There were no significant settement discussions. Length of Trial: Six days. Counsel for Plaintiff: Edward R. Forman and E. Ray Critchett. Counsel for Defendant: Charleston C.K. Wang. Judge Alan C. Travis. Case Caption: Kiasha Lewis v. Environmental Enterprises, Inc. Case No. 14CV-00-6399 (2015).

Real Estate Appraisals • Expert Testimony

Thomas R. Horner, MAI

201 Bradenton Avenue • Dublin, OH 43017 Phone: 614-791-0038 Email: info@ohiorealestate.org www.ohiorealestate.org

Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com


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Columbus Bar Lawyers Quarterly Fall 2016  

Legal trends for Columbus, across Ohio, and more. This issue highlights campaigns and elections, with a guest article from the Supreme Court...

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