Columbus Bar Lawyers Quarterly Fall 2017 by Columbus Bar Lawyers Quarterly

LAWYERS

Columbus Bar Fall 2017

QUARTERLY Fall 2017 Special Edition:

Haunting Legal Issues

In this issue, Columbus Bar Lawyers Quarterly investigates haunting legal issues: from zombie legislation to artificial intelligence, sexual assaults to Venmo and stalking lawsuits to ongoing gun deliberation. This issue also examines law school employment, an Addiction Stabilization Center and a Women in the Profession Survey.

A publication of the Columbus Bar Association â&#x20AC;˘ www.cbalaw.org

Table of

LAWYERS

Contents

QUARTERLY

Fall 2017 President’s Page

Finding Happiness: Saving The Heart and Soul of Our Profession One Lawyer at A Time Lisa Pierce Reisz

Bar Insider

WLFC Celebrates 75 Years with Women in the Profession Survey Celia Kilgard-Schnupp

Rick Pfeiffer: A Lifetime of Law and Service Mark Rutkus

Schools: The Real 10 Law Employment Numbers for the Law Class of 2016 Jason Dolin

Better Lawyer

Haunting Legal Issues

Raising the Dead: Zombie Legislation Melanie Tobias

A Retired Judge’s Reflections: Artificial Intelligence Hon. Patrick Sheeran

Chair

Pursuing Justice: The Ohio Attorney General’s Sexual Assault Kit Testing Initiative Mike DeWine

Board Members

Legislating Gun Bills: Lots of Storytelling, Little Data Jeffrey Eyerman and Jack D’Aurora

The Right of the People: The Second Amendment and its Jurisprudence Derek DeBrosse

Editor

Avoid Being Haunted by an Investment Gone Bad David P. Meyer

Design/Production

Advocating Opportunity Benefits All Bryan Gramlich

The Ugly Truth: Sexual Assaults in Franklin County Kacey Chappelear

A Primer on Trending FMLA Issues Peter Friedmann

What the heck is a Venmo? Who is Zelle? Don’t Be Afraid of Peer-to-Peer (P2P) Payment Services Jeffrey A. Willis

Simply Obsesssed: What Makes a Stalker? Stephen Steinberg

Points of Practice

Maximize Your Billable Hour Eimear Bahnson

Making Mediation Work! Jessica Goldman

Going for 20 Greg Kirstein

Columbus Bar Association Editorial Board Janyce Katz

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

Kelsey Pohlman

Sarah Curran

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

Life Outside the Law

Addiction Stabilization Center May Provide Welcome Relief Hon. David E. Cain

Lawyers with Artistic License: Rosemary Ebner Pomeroy Heather G. Sowald

Jury Verdicts

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

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

NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.

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President’s Page

Finding Happiness: Saving The Heart and Soul of Our Profession One Lawyer at A Time by lisa pierce reisz The lure of the legal profession: honorable, prestigious, challenging, lucrative, service to others, societal change. From our first days at law school, many of us were drawn to the profession believing that it would be highly rewarding and personally satisfying. However, as I talk with colleagues, friends and former law school classmates, I am struck by how many of these lawyers say they are tired, stressed and just plain unhappy with their careers. Many even say, if they had to do it again, they would not go to law school. Study after study that I have reviewed confirms that many, many lawyers are very unhappy: •

• • •

•

In a Johns Hopkins University study from 1990 of more than 100 occupations, researchers found that lawyers have the highest incidence of depression; estimated at currently 3.6 times greater than the general working population. An ABA Young Lawyers Division survey indicated that 41 percent of female attorneys are unhappy with their careers. It is estimated that the risk of suicide among lawyers is six times greater than the general population. A 2016 study in the Journal of Addiction Medicine has found that 20 percent of licensed, employed attorneys in the U.S. consume alcohol at levels consistent with problem drinking. Seven in ten lawyers recently responded to a California Lawyers magazine poll by saying that they would change careers if given the opportunity.

My own experience on the Columbus Bar Association Professional Ethics Committee (“PEC”) is consistent with these findings, too. In my 10 years on the PEC,

most of the attorneys who came before the Committee were not the result of bad lawyers. Instead, most cases were rooted in other causes: inexperience, extreme stress, depression, mental health issues and substance abuse. Indeed, in my observation, there is a direct correlation between the factors which cause attorney unhappiness and those which contribute to lawyer discipline cases. The legal profession mixes all the ingredients to make the perfect recipe for lawyer depression and unhappiness. To start, the profession attracts Type A overachievers: individuals who are used to and expected to excel, and who, right or wrong, feel they cannot show any weakness at any time. Add in the fact that the practice of law is demanding and extremely stressful. Combine that with long days and sleepless nights. Mix in billable hour requirements, client development pressures and the shrinking legal market. Fold in what is generally adversarial, often combative work. Sprinkle it with the loneliness of technology and the fact that we as attorneys can go

er, mix: For an unhappy lawy Type A personality ful job Demanding, stress s nights Long days; sleeples ments Billable hour require Loneliness High pressure Adversarial work for help Reluctance to ask

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In a Johns Hopkins University study from 1990 of more than 100 occupations, researchers found that lawyers have the highest incidence of depression; estimated at currently 3.6 times greater than the general working population. days and days without human interaction. Finally, top it with the fact that lawyers, generally, are reluctant to ever ask for help. And, voila… you have one unhappy lawyer. But in some lawyers, this unhappiness is culminating in debilitating depression – a hopeless despair that impacts every phase of someone’s life – and, in its worst cases, is contributing to spikes in attorney suicide rates.

How can we attain happiness in the profession and perhaps save ourselves? 1. Set realistic and attainable goals both professionally and personally. Don’t get caught up in the mythical movie version of what the practice of law is “supposed to” look like. 2. Be yourself, not somebody else. Don’t undervalue who you are and the strengths you bring to your practice. 3. Realize that you will not win every case, and losses (and mistakes) are a part of life, but often make us better lawyers. 4. Do some pro bono work or volunteer for your favorite cause. It is always a good reminder of why I went to law school. A good place to start is the Legal Aid Society of Columbus’ Volunteer Resource Center: www.columbuslegalaid.org/get-involved/ attorney/attorney-pro-bono-application. 5. Channel stress into healthy pursuits, like a vacation, a night out with friends or my favorite – a good tennis game. 6. Seek that ever-allusive work-life balance… but for real this time. 7. Put down your phone, laptop or tablet and be with colleagues, friends and family. 8. Know the warning signs of depression and substance abuse, and critically evaluate yourself. 9. Recognize when enough is enough, and seek help when you need it. 10. Resources are available: call the Ohio Lawyers Assistance Program at (844) 556-1128.

How can we help our colleagues and friends? 1. Know the warning signs for depression, mental illness and substance abuse. 2. Be willing to intercede for a colleague or friend when it is clear they can’t do it themselves. 3. Don’t be sworn to secrecy; make the call. 4. Call the Ohio Lawyers Assistance Program at (844) 556-1128. 5. Never be afraid to ask a friend or colleague if they have contemplated suicide. 6. Call the Suicide Prevention Lifeline at (800) 273-8255. 7. Stay with your friend or colleague until help arrives. We work in an honorable and noble profession. We are the guardians of democracy and agents of social change. We are counselors, problem-solvers and sometimes even superheroes to many. But, sometimes, we must step back from the stress and demands of our jobs to take care of ourselves and each other, too. We, as lawyers, deserve to be happy.

Sources: 1

Ohio Legal Assistance Program National Suicide Prevention Lifeline “The Depressed Lawyer,” by Tyger Latham, www.psychologytoday.com/blog (May 2, 2011) 4 “Lawyers & Depression,” Dave Nee Foundation 5 “Out of the Darkness: Overcoming Depression Among Lawyers,” by Andrea Ciobanu, Stephen M. Terrll, www.americanbar.org/publications/gp-solo (March/April 2015) 6 “Help Me, I’m Depressed, A Look at the Definition of Depression and Resistance to Treatment Among Lawyers and Judges,” by Richard J. Kay and Nathan M. Comerford, Michigan Bar Journal, (September 2009) 7 “Lawyers Are Still Suffering From Clinical Depression,” JD Journal (2014) 8 “Why Are Lawyers So Unhappy?,” by Martin E.P. Seligman, Lawyers With Depression.com (November 16, 2016) 9 “High Rates of Alcohol Abuse, Depression Among U.S. Attorneys, study says,” by Alexia Elejalde-Ruiz, Chicago Tribune (February 3, 2016) 10 “Why Lawyers are Miserable,” by Stephen Carter, Chicago Tribune (September 7, 2015) 11 “Why Are Lawyers Killing Themselves?” by Rosa Flores and Rose Marie Arce, CNN (January 20, 2014) 2 3

Lisa Pierce Reisz, Esq.

Vorys, Sater, Seymour and Pease LLP lpreisz@vorys.com

5 | Columbus Bar L aw yers Quarterly Fall 2017

Bar Insider

WLFC Celebrates 75 Years with

Women in the Profession Survey bY Celia Kilgard-Schnupp “There is a settled gender bias at my firm.” “…called ‘honey’…[and] told I was hired [based on my] looks” “Statements [were made] that male associates need more stability in their paychecks because they need to support their [families.]” “[Others] thought my client was the lawyer because he was male.” “Assignments are provided to male associates first, unless they are unavailable.” “Male opposing counsel have treated me like I am inexperienced.”

These are only a few of the statements that were made by women lawyers in the 112 pages of comments from a recent anonymous survey that was developed and distributed by the Women Lawyers of Franklin County (WLFC). Established in 1942, WLFC is celebrating its 75th anniversary in 2017 as an organization striving to address the professional needs and concerns of women lawyers in the Greater Columbus area. In furtherance of this mission and to celebrate the history of the organization during this milestone anniversary, 2016-2017 WLFC President Ashley Oliker and Women in the Profession Chair Celia Kilgard-Schnupp created a survey to gauge the experiences, concerns and issues facing female attorneys in the legal community today. “While women in the profession have certainly come a long way since WLFC was formed over 75 years ago, it has been our sense that there is still work to be done to ensure the fair treatment and advancement of women in the profession,” Oliker stated. “Our hope was that the survey would serve as a good starting point to gather concrete data about where women in the legal profession stand today and what work is still left to be done.”

Over 60 percent of survey respondents stated that they have experienced gender bias in their legal career.

Participants answered over 40 individual questions and provided over one hundred pages of comments, suggesting that women in the legal field still have concerns that warrant significant attention. Notably, over 60 percent of survey respondents stated that they have experienced gender bias in their legal career. Other top issues concerning female lawyers in Franklin County include high stress, work-life balance, time management, billable hours and business generation. The response rate to the survey was better than anticipated, with over 267 women attorneys in Franklin County participating. The respondents included a diverse cross section of the female legal community, including law firm associates (27 percent), partners (20 percent), solo practitioners (11 percent), government attorneys (10 percent), judges (8 percent) and corporate counsel (8 percent), with a variety of years of practice. A significant percentage of respondents indicated they resigned or left past employment because of lack of advancement opportunities for women. When asked to elaborate on the reasons for resigning or leaving an employer, many of the respondents stated that there was a negative culture against women. Some provided examples of employers giving some “bad actors” a “pass” on their insensitive comments towards females. Others referenced bosses that only took male lawyers out to lunch as an example of legal employers that still felt like a “boys club.” More specifically, one respondent claimed, “My work ethic – and probably abilities – was questioned because I was raising kids and working.” For some respondents, they perceived that their employer did not view them as being on par with their male counterparts despite their experience level. Others did not have to read between the lines as they were directly told “a woman cannot be both a mother and an attorney.” Interestingly, often touted employer programs such as women initiative programs and flexible work policies may not be implemented in a way that furthers the employer’s goals as respondents did not report consistently positive views on these types of efforts. While a majority of employers appear to offer some form of alternative work policy, there seems to be a disconnect between what is available and what is being utilized by female attorneys without jeopardizing some aspect of their careers. This was evidenced by the number of respondents that claimed to have taken advantage of alternative work policies and the conflicting comments regarding the perceptions around utilization of such policies. For example, one respondent highlighted a supervisor’s compliment to a male coworker about his dedication to his work because he worked on his paternity leave. Another respondent even commented that with a specific part-time schedule, there was still the requirement of full-time work even with a “reduced hour” requirement and reduced pay.

Based on the responses to the survey, it appears that only a small percentage of employers have created women’s initiative programs and such programs are being met with some negativity from both men and women. Some of the comments about women’s initiative programs range from women themselves indicating that they are “unclear what they do” or “unsure of the purpose;” to men asking why they do not have a “male-only” equivalent. Despite these criticisms, 80 percent of the respondents reported that they are somewhat or very satisfied with their career. Many of the respondents discussed the intellectual challenge, ability to problem solve and to help people as highlights of their chosen occupation. Another highlight was the ability to have a flexible schedule indicating, “as long as my work gets done, they don’t mind when I do it;” and “[all lawyers at our office] are responsible for their own schedules;” and “I have a schedule dictated by clients, not my firm.” When asked how to increase the treatment of women in the profession or female advancement, a common theme emerged from the respondents to increase dialogue, awareness, advocacy and mentoring. Praise was also given to professionally focused women groups like WLFC. While the full survey results are still being analyzed, one thing is clear: there is certainly still work left to be done and a genuine need for continued improvement in advancing women in the legal profession. According to current WLFC President Katrina Thompson, “For us, the survey process does not end with the collection of data, and a focus for us during the current membership year will be to engage with our members and the legal profession as a whole to figure out what to do with the information we obtained.” WLFC’s motto is “We are our own best resource” and following that motto, WLFC plans to use the survey results to help highlight and better-tailor future discussion, programming and efforts towards our mission of advancing women in the profession.

Other survey results can be seen at: www.wlfc.ws. Interested in joining WLFC or hosting a gender initiative lunch at your employer? Check out our website.

Celia Kilgard-Schnupp, Esq.

Taft Stettinius & Hollister LLP ckilgard@taftlaw.com

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Bar Insider

Rick Pfeiffer: A Lifetime of Law and Service by mark rutkus He was a soldier in Vietnam, an aide to the longest-serving Speaker of the Ohio House of Representatives, an Ohio State Senator, the first Environmental Judge of the Franklin County Municipal Court and the second longest-serving Columbus City Attorney. When he becomes a private citizen in January, Richard C. Pfeiffer, Jr. will depart public life with a sense of gratitude; gratitude that he was able to participate in government and politics at all levels and in all branches of government, and gratitude that he had the help of many good people along the way. He calls himself a “Columbus Kid,” whose idea of enjoyment is moseying around the City, checking out what is going on and asking people he would meet all sorts of questions, which includes where they went to high school. Born in Fort Jackson, South Carolina in 1944 when his dad was in the U.S. Army, Pfeiffer was raised in the Clintonville neighborhood of Columbus. When the school day was over at Glenmont Elementary, he would walk to the High Street bus line to take the bus to the downtown YMCA, his first exposure to life beyond his neighborhood. His quest to learn from

others whose life experiences have been and are different than his has never stopped. With his sister at North High School a year ahead of him, Rick’s mom thought it best that then-introvert “Rickie” should go to a different high school. University High School, where he was active in student government, does not exist anymore. It occupied what is now Ramseyer Hall at the southwest corner of High and Woodruff. At Oberlin College he majored in Government and was again active in student government. Following his 1966 graduation, he headed back to Columbus to attend the Ohio State University College of Law, only to leave after one quarter to volunteer for service in the United States Army. When he got to Vietnam in November 1968, he wrote the law school a will-you-let-me-back-in plea, one which was granted. Within two weeks of leaving Vietnam in September 1969, Rick was back in law school. He was admitted to the practice of law in November 1972. Rick’s private practice work included a stint as a sole practitioner, a brief association with attorney Paul Beery, who specialized in motor carrier law, and a nineyear partnership with Bricker & Eckler. He has been a long-time supporter of the Columbus Bar Association, particularly with the Managing Partners’ Diversity

Backed by more than 125 years of experience 44 commercial service centers 40 countries served worldwide 1 point of contact in Columbus

Initiative, and a longtime board member of the Ohio State Legal Services Association and the Brass Band of Columbus.

Experience the difference.

Why the interest in politics and government? In the late 1950’s, Pfeiffer was a newspaper carrier for the last year of the Ohio State Journal and the first year of the Citizen Journal. He always read the papers’ articles that dealt with politics and government. His dad subscribed to Time magazine whose political pieces were always part of Rick’s reading interests. Maybe it was in his DNA. His paternal grandfather was a one-term Republican State Senator from Franklin County, while his maternal grandfather was active in Pike County Democratic politics.

614.405.8673 q www.firstam.com/ncs

Pfeiffer first ran for office in 1980 when he became the Democratic candidate for the Franklin County Prosecuting Attorney. He got in the race to run against incumbent George C. Smith, now a retired Federal Judge. Smith resigned that position shortly after Pfeiffer got his party’s nomination and was replaced by S. Michael Miller. Miller defeated Pfeiffer, 50.3 percent to 49.7 percent. Following that defeat, Pfeiffer was elected three times to the Ohio Senate, two times to the municipal bench and four times to the position he will leave at year’s end.

While Rick will tell you that Columbus has been good to him and his family, he will be leaving his home city to become a resident of Charlotte, North Carolina after retirement. “That’s right. Janet and I have two daughters and one son. We figured it was the daughter in Charlotte and not the son or daughter in the Boston area who would look after us best as we age. And besides that, our one and only grandchild is with that daughter and her husband in Charlotte.”

Work hard, be honest and be collegial with those with whom you work. Those are traits Rick seeks to find in those he has hired in the City Attorney’s office. He also tries to exhibit those traits in his own conduct. “I suspect my ego will miss not seeing my name in the paper or my image on the TV screen,” says Pfeiffer. “But I will not miss the part of politics I never liked or was good at: asking people for campaign contributions.”

Mark Rutkus

Columbus City Attorney’s Office MKRutkus@columbus.gov

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Bar Insider

Law Schools:

The Real Employment Numbers for the Law Class of 2016 by jason m. dolin Turn Out the Lights

Let’s start with the good news. After years and years in which too many law schools, feasting on guaranteed federal student loan money, continued to produce too many law graduates for too few jobs, it finally appears that some law schools will be closing.1

lawyers, depresses starting salaries and in doing so, keeps law graduates longer-burdened with heavy debt; debt which causes them to delay important life choices like when, or if, to purchase a home or start a family. Since 2006, median annual lawyer salaries have fallen and relative to other professions median lawyer salaries are losing ground.4

2016 Employment Numbers

If law school closures are the good news, the bad news is that none of them are in Ohio, a state with five state-funded law schools, the most in the nation (tied with California). We are, and have been, over law-schooled in this state and not by a little. Year after year, the numbers tell us that we have at least two or three law schools too many in Ohio. For five years, across all Ohio law schools, barely more than half of Ohio’s law graduates have obtained full-time, permanent, JD-required (“FTPJD”) employment within nine or ten months2 of graduation. Worse still, the employment numbers at the six Ohio law schools at the bottom of Ohio’s law school employment spectrum are, and have been, dismal.

The national FTPJD employment rate for the Class of 2016 was 64.5 percent5, an increase of 2.1 percent over the results for the Class of 2015. As they have for the last several years, Ohio’s law schools fell below that national rate. Using the same methodology, the average FTPJD rate for all of Ohio’s law schools for the 2016 Class was 54.8 percent, essentially flat from 2015’s FTPJD rate of 54.5 percent. For the 2016 Ohio class, the total number of FTPJD jobs actually declined from 2015 (9.3 percent fewer FTPJD jobs for 2016 Class than for 2015 Class), although the employment rate ticked up because the Ohio graduating class size was 9.7 percent smaller in 2016 than in 2015. Seven of Ohio’s nine law schools had FTPJD employment rates below the national average.

Make no mistake, having too many law schools producing too many lawyers is not a benign state of affairs. It has resulted in the admission of applicants with lower credentials3 and who, presumably, are less qualified to practice. It drives down employment opportunities for new

Not too long ago, an FTPJD employment rate of 55 percent was considered an embarrassment. Now, only three of Ohio’s nine law schools (Ohio State, Cincinnati and Case Western) routinely surpass that bottom-dragging bar while the other six regularly fail to meet it.

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Of the six schools with the worst employment results locally over the last five years, Capital has experienced a straight line year-over-year decline in its FTPJD employment rate. During that same period, barely four in ten of Capital’s graduates have obtained FTPJD employment within 9 or 10 months of graduation.

Structural Un(der)employment in Ohio’s Legal Market

Nothing in the data anticipates better law graduate employment results in the future. Ohio’s Bureau of Labor Management Information projects that between 2014 and 2024, there will only be an average of 406 job openings per year for lawyers in Ohio (111 new jobs and 295 replacement jobs).6 Because under any foreseeable scenario Ohio’s law schools will continue to annually graduate substantially more students than there are jobs available, the Ohio lawyer market will continue to be oversaturated.

What the data makes clear is that we have structural un(der)employment in the legal market in Ohio. With enhancements to information technology and the outsourcing to non-attorneys of work previously done by attorneys, there are simply fewer billable hours to go around. But there is another, and I suggest, more important cause of structural un(der)employment in Ohio’s legal market: too many law schools producing too many lawyers for not enough jobs. The annual overproduction of new

Continued on page 12

Continued from page 11 lawyers helps to cause the structural un(der)employment in Ohio that we have experienced for the last several years and are likely to see going forward.7 The data has made clear that a saturated attorney market in Ohio is annually flooded with new lawyers that the legal market here can’t absorb.8 History, and nature itself, tells us that nothing lasts forever and professional schools are no exception. From 1982 to 2001, seven dental schools closed including those at Northwestern, Georgetown, Washington University in St. Louis and Emory.9 We somehow survived their passing. The only ones who noticed were dental school alumni, who stopped getting solicitation letters. For the rest of us, life went on. Ohio doesn’t need nine law schools. In particular, we don’t need five taxpayer-supported law schools, several of which have established track records of dismal employment results. The data tell us that it’s time for some law schools to close in Ohio.

Whittier Law School and Indiana Tech law schools have announced they will close and others (ie: Charlotte Law School) appear to be in weak financial condition and may soon have to close as well. 2 Starting with the Class of 2014, the ABA moved the law school employment reporting date from February 15 (nine months after graduation) to March 15 (ten months after graduation). 3 http://abovethelaw.com/2017/06/law-school-applications-with-terrible-lsat-scoresare-soaring/ 4 http://www.abajournal.com/news/article/lawyers_salaries_slipping_compared_ to_other_professions_data_indicates 5 Determined by dividing all FTPJD jobs nationally by the total number of law graduates, whether their employment outcomes are known or unknown. 6 Information from Ohio’s BLMI on file with the author. 7 For the last decade I have argued that we have too many law schools producing too many lawyers. See Dolin, Jason M. (2007) “Opportunity Lost: How Law School Disappoints Law Students, The Public, and the Legal Profession,” California Western Law Review: Vol. 44: No. 1, Article 6 (“There are simply too many lawyers and too many law schools in the United States.”) See also CBLQ, Fall 2012, at 41 (“Our state has too many law schools producing too many lawyers...”); CBLQ Summer 2013, at 27 (“...we have too many law schools in Ohio...”); CBLQ Fall 2013, at 27 (“...the State of Ohio continues to waste millions of public dollars each year by funding the largest number of state supported law schools of any state...”); CBLQ Fall 2015, at 14 (“Further downsizing is still needed in the form of fewer Ohio law schools...”); CBLQ, Fall 2016, at 11 (“We have too many law schools in this state chasing too few students...”) 8 https://lawschooltuitionbubble.wordpress.com/original-research-updated/lawgraduate-overproduction/law-graduate-overproduction-2011/ 9 See http://books.google.com/books?id=w5UrAAAAYAAJ&pg=PA22&lpg=P A22&dq=%22closed+dental+schools%22&source=bl&ots=qsXkpkBz6F&sig=_ SU5826MPevK0QmbdJeMTQVb-PY&hl=en&sa=X&ei=QZ0zUe2TJ7OM0QGyi4GIBg &ved=0CE0Q6AEwBQ#v=onepage&q=%22closed%20dental%20schools%22&f=false and http://www.registrar.northwestern.edu/academic_records/NUDS/nu_dental_ school.html

Jason Dolin, Esq.

jmdolin@sbcglobal.net 12 | Columbus Bar L aw yers Quarterly Fall 2017

Upcoming Events

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

OCTOBER 2017

october

Constitutional Conversations: The 14th Amendment, Part 1 Presented monthly, these events are informal, moderated conversations on modern-day constitutional issues. They are free and open to the public. October’s session will explore the 14th Amendment and seminal cases from 1857 through 1954.

october

Title IX and Student Sexual Assault Litigation (3.0 CLE Hours) What is Title IX and why should every attorney, parent and educator care? Attend this course to learn what schools must do to comply with Title IX and how to most effectively represent a student in Title IX litigation.

october

Maximize Your Billable Hours Using Document Automation (1.0 CLE Hour - FREE) It’s time for a change! Stop drafting new documents by finding old documents. Barron Henley of Affinity Consulting will show you how to greatly increase drafting speed and accuracy with document automation.

october

Hot Topics in Columbus Real Estate (3.0 CLE Hours morning, 3.0 CLE Hours afternoon)

october

Eastman & Smith Ltd. Employment Law Update (3.0 CLE hours)

october

Free Lunch and Demonstration of Central Ohio Docs

october

Chester Professionalism Institute: A Practical Approach to Technology Core Competence

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Columbus’ real estate market is booming, and the development world is busy. If you want to learn from the experts, this event is not to be missed. Attend the morning session, afternoon, or both. Lunch and a post-CLE reception is included.

Taught by seasoned professionals in the area of employment law, this program will provide a wage and hour update, lessons learned from recent FMLA cases, an interactive discussion on real life tricky workers’ compensation scenarios.

Join us from 12-1pm for lunch and a demonstration of Central Ohio Docs, the user-friendly document assembly service offered exclusively to members of the Columbus Bar. Please RSVP to donna@cbalaw.org.

What you don’t know CAN hurt you. You’ll leave this seminar with an understanding of the good, the bad and the ugly side of technology, plus tech tips you can implement right away. Tuition is just $100 for one 3.0 CLE hour session or $175 for the full day. Lunch and reception included.

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Advocating Opportunity

Benefits ALL

BY BRYAN GRAMLICH

Better Lawyers recently sat down with Emily Dunlap, Staff Attorney for Columbus-based Advocating Opportunity, to discuss her position as the second Grief Fellow in Juvenile Human Trafficking and how she ended up in this unique area of public service. For those who are unaware, what is Advocating Opportunity and what do you do in your current role? Advocating Opportunity is an amazing nonprofit organization. If you have ever done any work in the antitrafficking field in Ohio, you know the name Megan Mattimoe. Megan founded Advocating Opportunity five years ago in Toledo, and has been doing groundbreaking work ever since. Advocating Opportunity provides “whole-person advocacy” to survivors of human trafficking. We created an integrated legal services and advocacy-based model where survivors have access to attorneys and social services advocates within the same organization. This integrated approach guarantees a holistic response to human trafficking, seamlessly meeting as many survivor needs as possible all at once.

immigration assistance to eviction defense, family law and guardian ad litem work. My work often includes expunging a survivor’s record of crimes the trafficker forced them to commit. By expunging their record, they can now find safe housing, get a higher paying job or obtain the career they’ve always wanted. Success in much of our legal system depends on individuals having access to lawyers. By doing my job, I am able to take some of the stress and difficulty of these legal obstacles away, navigating the process with my client. Today, Advocating Opportunity Columbus serves 45 clients per quarter and has expanded its staff to include a full time advocate, Grace Tellez, and a part time staff attorney, Leah Reibel. We hope to continue expanding as our referral stream from The Salvation Army’s Anti-Human Trafficking Program, CATCH Court and many other amazing local organizations show no sign of slowing.

I think it’s safe to say that you did not follow a “traditional” career path for recent law school graduates. What made you interested in pursuing a career outside of a firm or the local government?

The need for trauma-responsive legal services for survivors of human trafficking is undeniable. Advocating Opportunity’s services are not limited to any specific type of trafficking or survivor; our clients have survived sex and labor trafficking. While some are from right here in Central Ohio, others hold citizenship from all over the world. We serve clients regardless of race, gender identity or sexual orientation. Some of the youth I served in the Greif Fellowship are now adults and need continuing support.

I have always been driven to use my time and talents for a greater good. While an undergraduate at Ohio University, I helped plan Take Back The Night marches and other local social justice and awareness campaigns. After finishing my undergraduate degrees, I moved to Florida and joined AmeriCorps. I spent a year working to address and lower the local unplanned teenage pregnancy rate through education initiatives and local organizing. Ultimately, I found my niche while I was at The Ohio State University Moritz College of Law and worked hard to pursue law through the lens of social justice and change.

As a staff attorney at Advocating Opportunity, I remove legal obstacles to the survivors’ journeys toward independence. To do this, I provide a number of legal services ranging from

My time in law school involved a strong focus on access to justice. I was part of the Public Interest Law Foundation Board with an amazing peer group. Throughout most of law school I

14 | Columbus Bar L aw yers Quarterly Fall 2017

Advocating Opportunity provides “whole-person advocacy” to survivors of human trafficking. interned at a local law firm, Simakovsky Law. Inna Simakovsky, the attorney-owner, inspired a strong interest in and passion for immigration law. I found joy and satisfaction in the law by working directly with people, working with them through times of struggle. Finding that level of fulfillment became a motivating factor in deciding my career path.

What are some of the positive impacts that you have seen from serving those in need of legal services? Some of the strongest, most positive experiences in this job happen when I meet with a client to complete intake. There is nothing like the relief that floods someone’s face after they tell me a little bit about their problems and I tell them that I can take their case. They feel relieved. They feel safe. They feel supported. Sometimes, I am helping mothers who have fought their way out of trafficking situations. They have completed counseling, substance abuse treatment and now all they want is to be able to see their kids again. When I confirm that I will fight with them in court, half of them break down in tears. These are women who have been working so hard for so long in systems that have beaten them down time and time again. Psychological abuse by a trafficker is only compounded by a system that treats survivors like criminals, useless addicts and failed or undeserving mothers. It can be so re-traumatizing that most people just give up, or worse, relapse. Simply knowing that for the first time they are not alone in their fight can change everything. Working with young survivors can be particularly challenging. Most often, Advocating Opportunities’ clients are children who have been hurt or let down by every adult in their lives. So here I am, a new adult in a suit who they do not know, do not trust, telling them the same story every other adult has ever told them. I work hard, make promises that I can keep and eventually establish trust and rapport. There are few things as emboldened and empowered as a juvenile client standing up for themselves and throwing in a “yeah, well I’m going to tell my lawyer!” for good measure. Knowing that someone as powerful as a lawyer is in their corner, no matter what, can be a catalyst for great change. It can help the child feel like some part of their life is back in their control.

I also see this kind of hope and empowerment in my immigration clients. Unfortunately, even after some clients have been able to escape a trafficking situation, they may place their trust in the promises of a notary or other community member. Several months later, thousands of dollars have been taken from them with no results. These clients fear retaliation from their trafficker and law enforcement, as well as being sent back to a country where their life may be in danger. By helping my clients obtain permission to work and remain in the United States, they are more likely to trust law enforcement and assist in the investigation and prosecution of their traffickers. As immigration enforcement grows, knowing your rights and legal representation have become increasingly important. We not only provide those services, but also combat the isolation and fear that our clients so often experience.

What advice do you have for new attorneys who are thinking about pursuing a nontraditional legal career? Chase your passions and build your experiences to serve those goals. Do not be afraid of trying something different than your peers or taking your career in a direction that law schools do not strongly emphasize. Find mentors and leaders in those fields and learn from them. Thankfully I was able, and continue, to benefit from the guidance of many wonderful and inspiring mentors, including Inna Simakovsky of Simakovsky Law; Inaugural Grief Fellow Nikki Basyznksi; Grief Fellow Supervisor Kim Jordan; and Advocating Opportunity founder Megan Mattimoe.

Bryan Gramlich, Esq.

U.S. District Court, Southern District of Ohio bryangramlich@gmail.com

15 | Columbus Bar L aw yers Quarterly Fall 2017

A Primer on Trending

FMLA Issues BY Peter Friedmann

The Family and Medical Leave Act of 1993 (FMLA) requires covered employers to provide employees with up to twelve weeks per year of job-protected leave for qualified medical and family reasons. The leave may be taken all at once, or intermittently, as the medical condition requires. Private employers with at least 50 employees within 75 miles of the worksite are covered by the FMLA. Government agencies (including local, state and federal employers) are covered by the FMLA regardless of the number of employees. As long as the employee has worked for the employer for at least 12 months, and has worked at least 1,250 hours in those 12 months, the employee will be eligible to use FMLA leave. Compliance with the FMLA can be very convoluted, which in turn exposes employers to a significant risk of liability for noncompliance. Some of the most common issues employers face with FMLA compliance include (1) Not

providing proper training to supervisors and management; (2) Failing to notify eligible employees of their FMLA rights; (3) Denying coverage to eligible employees; (4) Using FMLA leave as a negative employment factor; (5) Counting FMLA leave as an absence; (6) Requiring an employee to perform work while on FMLA leave; (7) Failing to reinstate an employee to the same or similar position. Most FMLA violations occur because an employerâ&#x20AC;&#x2122;s management and supervisors have not received proper training on FMLA law. Management is typically on the front line of receiving notice or request that an employee needs to use FMLA leave. Therefore, without proper training, the management opens the employer up to a serious risk of liability for FMLA violations. For instance, employers are required to provide several notices to employees seeking FMLA leave. Employers must post general notices of FMLA rights in a conspicuous place for employees to see. An employer must provide an eligibility notice within five days of an employeeâ&#x20AC;&#x2122;s request for leave. The employer must also provide a rights and responsibilities notice at the same time as the eligibility notice. Finally, the employer must supply a

16 | Columbus Bar L aw yers Quarterly Fall 2017

designation notice within five days of determining that the leave qualifies as FMLA leave. Because the timing is so strict on eligibility and notification requirements, any mistake by an uninformed manager will expose the employer to liability. Proper training also prevents the wrongful denial of an employee’s request for FMLA leave. Denying an eligible employee FMLA leave can be considered FMLA interference. Denying coverage to eligible employees frequently occurs when an employer’s business grows at a rapid rate, but the employer did not equally adapt its policies and procedures for legal compliance. Wrongful denial may also occur because the employer has a misunderstanding as to what qualifies as a serious health condition.

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Using an employee’s FMLA leave as a negative employment factor can be considered unlawful retaliation. This typically occurs in the form of disciplinary action, demotion, failure to promote because of leave, fabricating performance issues while on leave or using FMLA covered leave as an absence against the employee.

Finally, one of the most common mistakes employers make that results in violation of the FMLA is the failure to reinstate the employee to a same or equivalent position after returning from leave. Changes to work location, schedule, job responsibilities and opportunities for advancement can be considered retaliation. Because the FMLA involves a serious medical condition, the Americans with Disabilities Act (ADA) may apply as well. The Equal Employment Opportunity Commission has recently been taking a stance that additional leave after the permitted 12 weeks of FMLA may be considered a reasonable accommodation for the employee.

become, and that Reladyne had to be “proactive” in addressing his issues. Most importantly, in the termination meeting, Lankford’s manager wrote on the termination paperwork that Lankford was not eligible for rehire because his “life is in ruins, needs outside help.” The manager admitted that his comments were referring to Lankford’s alcoholism. A jury found in favor of Lankford, concluding that Reladyne had interfered with his FMLA rights by not reinstating him, and that Reladyne had retaliated against Lankford for using FMLA leave. Lankford was awarded lost wages, liquidated damages, costs and attorneys’ fees.

It is unlawful for an employer to require an employee to work while on FMLA leave. One theory behind the 50-employee minimum to cover employers under the FMLA is that the employer’s business should have enough employees so that FMLA leave will not disrupt the operations. As such, if the employer requires the employee to perform work while on FMLA leave, and also counts that as time against the employee, the employer can be found to have interfered with the employee’s rights under the law.

In Lankford v. Reladyne, LLC, the employer (Reladyne) terminated the employee (Lankford) immediately upon return from FMLA leave for alcohol rehabilitation1. Alcoholism is considered a disability under the ADA, and Lankford’s leave for treatment was permitted by the FMLA. Just days after Lankford left for FMLA leave, Reladyne initiated an investigation into alleged misconduct by Lankford. However, the upper-level management of Reladyne had circulated emails as to how “unreliable” Mr. Lankford had now

Lankford v. Reladyne, LLC, 2016 U.S. Dist. LEXIS 85003 (S.D. Ohio, June 29, 2016)

Peter Friedmann, Esq.

The Friedmann Firm LLC Pete@thefriedmannfirm.com

17 | Columbus Bar L aw yers Quarterly Fall 2017

Save time

Points of Practice

Maximize Your

Billable Hour by eimear bahnson

A recent national study found that the average solo and small firm practitioner spends 40 percent of his/her time on non-billable work. Couple that with the ability to collect less than 30 percent of those billable hours, and it’s easy to understand why attorneys are struggling to balance it all. As a Board member, I frequently hear from Columbus Bar members looking for ways to cut costs and increase productivity, all while continuing to provide exceptional client service – aren’t we all. Repetitive document creation and form completion is one of the most significant barriers to efficient case management and increased costs to clients. That’s why the CBA launched Central Ohio Docs – to save members time and money. This new member benefit is designed to reduce, or even eliminate, the time and expense associated with repetitive document creation and assembly. Central Ohio Docs applies HotDocs® powerful document assembly technology to enable Columbus Bar members to quickly and easily generate

Save money Improve your accuracy

mu l t i p l e forms by answering a series of automated questions relevant to the legal matter involved. The answers are applied to various technological algorithms (much beyond my comprehension) to produce accurate and customized documents, in a format the court expects. The forms were created by subject matter experts who practice in central Ohio and are specifically tailored to comply with rules and procedures of local courts, including courts in Franklin County, Ohio. All forms will be updated as necessary to reflect changes in the law or local court rules. Lisa Pierce Reisz, President of the Columbus Bar Association noted, “Making Central Ohio Docs is a part of the CBA’s continued commitment to offering our members access to the latest technologies, aimed at improving practice management, generating workflow efficiencies and delivering value for their clients.” Central Ohio Docs addresses some of the common limitations of fillable pdf forms – all of the information is typed in once and saved in the user’s HotDocs® account. Each document can be re-opened, modified and printed as a new document – all without having to retype the entire document or making the same revisions to multiple documents. Central Ohio Docs also eliminates many of the routine tasks required in ordinary word processing, such as cutting, pasting and reformatting, providing a more accurate finished product. Once completed, the documents are produced with all blanks filled in, and all pronouns and verbs in the correct place grammatically and numbered in a fraction of the time it would take using a word processor or fillable PDF. “The HotDocs technology is so sophisticated, but so easy to use. These customizable legal documents can be edited and accessed anytime, anywhere, on any web-enabled device,” Jonathan

Repetitive document creation and form completion is one of the most significant barriers to efficient case management and increased costs to clients. Hoy, VP of HotDocs Market, noted. “A subscription to Central Ohio Docs gives CBA members unlimited use of every template offered in the product. Even if the product is used for just one client, it saves the attorney enough time to effectively cover the subscription fee.” Central Ohio Docs is very cost effective and offers CBA members both a monthly and annual service fee. The monthly cost is $20 per practice area, or $199 annually. As a family law attorney, I’m thrilled that Domestic Relations was the first subject matter to be developed with the Central Ohio Docs service. The Domestic Relations library contains 35 different forms and pleadings that are used most often in divorce and dissolution matters, including required affidavits and notices. I recently had the opportunity to sit in on a demonstration of the domestic relations forms to the Franklin County Domestic Relations Court Magistrates who provided enthusiastic and positive feedback. The Columbus Bar Association Family Law Committee also reviewed the forms and gave positive feedback from practitioners who routinely practice in the Franklin County Domestic Relations Court. All of the documents currently available in the Central Ohio Docs library are listed on the CBA website at cbalaw.org/CentralOhioDocs. The CBA is currently working with real estate professionals to develop a real estate document library and additional practice areas, including estate planning and juvenile law.

Learn more with free CLE: Maximize Your Billable Hours Using Document Automation October 18, 12-1pm @ the CBA It’s time for a change! Stop drafting new documents by finding old documents. The knowledge you get from this event will directly impact your bottom line and improve client satisfaction.

Register for this free CLE online or call (614) 221-4112. Then... on October 24, let’s have lunch Join us on Tuesday, October 24 from noon to 1 pm at the CBA for a free lunch and a demonstration of Central Ohio Docs, a service offered exclusively to members of the CBA. Advance reservations required. Email donna@cbalaw.org.

Central Ohio Docs: Save time

Save money

Improve accuracy

If you’d like to learn more about how document automation can help you maximize your billable hour, the CBA is hosting a free CLE on October 18, which will include samples using the Hot Docs technology.

Eimear Bahnson, Esq.

Massucci Law Group eimear@massuccilawgroup.com 19 | Columbus Bar L aw yers Quarterly Fall 2017

Points of Practice

Making Mediation Work! by Jessica goldman Mediation is the prime opportunity for parties to achieve prudent, businessminded outcomes and avoid the expensive uncertainties of litigation. To be successful, however, advocates must approach mediation with the same diligence and determination with which they approach trial. Preparation for mediation isn’t limited only to lawyers. The parties should actively participate in mediation prep so they can then actively participate in the negotiations. The lawyer-client preparation should involve an analysis of what happens should mediation fail. The most obvious and likely outcome if mediation fails in a litigated case is trial. I’m often surprised when lawyers show up at the mediation without having done the math of what it will cost to take a case through trial. In litigation for monetary damages, the parties must undertake a twopart analysis. First, the parties must determine what it will cost to take the case through trial from the date of mediation. Money expended prior to mediation is a sunk cost and should be checked at the door. The cost analysis must be inclusive of all fees, like attorneys, experts, jury consultants, etc. and costs, like court reporters, deposition transcripts, courtroom technology, witness fees, travel, etc. Second, the parties must evaluate the likelihood of what could happen at trial in terms of damages. What is the best or worst day at court and what is the likelihood that outcome will

So what should an opening statement sound like? Remarks should be respectful and polite. Opening statements are much more effective when delivered at least in part by the parties rather than the attorneys.

occur? Calculating these numbers will help the parties appreciate their best or worst outcomes if the mediation is a bust. In mediation, I commonly question the parties about these costs only to learn that this basic analysis has not been conducted. Without these parameters, it is difficult, if not impossible, for a party to understand if the amount offered in mediation makes good business sense or not. This is important homework that should be conducted prior to mediation – failure to do so will frustrate both the mediator and the opposing party. Futhermore, the mediation statement is a party’s first opportunity to educate the mediator on the key facts and law of the case. Caution: this is not an occasion to cut and paste a summary judgment motion. Mediators do not want or need the complex legal and factual minutiae of your case. Instead, they want to understand

where the parties agree, where they disagree, what prior efforts at negotiation have occurred and where impasse remains. For example, if the issue of liability isn’t being meaningfully contested then focus the brief on damages. A strong mediation statement will address both strengths and weaknesses and how each might play out at trial. This is also an opportunity to acknowledge when one side has made a mistake. Owning a mistake and even expressing remorse for it will earn a party credibility points with both the mediator and the other side. If there is little dispute that an employer inadvertently miscalculated FMLA days, then the employer should acknowledge this mistake in its position papers. While it is important to prepare for a mediation like it is a trial, it is equally important not to go on the offensive like one would in trial. One of the absolute keys to success in mediation is to be, or at least appear to be, reasonable. Your mediation paper is the first opportunity to send the message of rational, reasonable thinking. If you are fortunate enough to have a smoking gun document, attach it to your mediation statement. I do not recommend springing a hot document on either the mediator or opposing party during the mediation. Equally important, mediation is not the occasion to hold back key documents in an effort to keep one’s powder dry. If a party is genuinely committed to settlement, it should disclose the best documents in support of its case so the opposing side and the mediator can effectively evaluate the claims. I also recommend that you expressly state in the mediation statement that you and your client are genuinely committed to settling the case. It seems obvious, but this simple expression of good faith is sometimes overlooked and omitted. It absolutely should be included in the closing paragraph of any mediation statement that will be exchanged with the other side. Finally, and possibly the most important best practice to put into action, exchange mediation papers with the other side. The path to settlement should not be obstructed by partial disclosures. Persuasively make your very best case and tackle your weaknesses. Shielding your position and withholding documents breeds an environment of mistrust and suspicion. If there are issues you would like to bring to the mediator’s attention confidentially, that is certainly permissible. But do so outside the mediation statement. The next opportunity to advance along the road to settlement is with the opening statement in joint session.

I only recommend opening statements where both the parties and lawyers can agree not to squander this opportunity with chest-thumping declarations lauding their case. Mediators are not impressed with 30-minute power point presentations highlighting only the very best aspects of a case. In fact, I would caution lawyers to stay away from power points altogether in mediation. So what should an opening statement sound like? Remarks should be respectful and polite. Opening statements are much more effective when delivered at least in part by the parties rather than the attorneys. I suggest that topics delegated to the parties be an acknowledgment of a mistake or a statement that the party is genuinely committed to resolution. I have seen lawyers deliver an apology with the best of intentions, but generally a lawyer-delivered apology or acknowledgment falls on deaf ears. Any remarks by the party, however, should be discussed and rehearsed prior to mediation so there are no surprises. On the other hand, parties who are struggling with the emotions of a case sometimes use the opening statement as an opportunity to be heard: think former employee who believes he or she has been wrongfully terminated. Allowing for the airing of grievances can also be an effective first step towards compromise. In this case, the other side should listen carefully and thoughtfully, or in the worst case at least appear to do so. The opening statement, if used properly, can be game changing for the good in mediation. A final word on mediation: do not exit the building without a written, signed term sheet. A handshake or verbal agreement might cause the parties major headaches if one side gets buyer’s remorse. Even though all brains and bodies are exhausted, take the extra time to handwrite or type with specificity the major terms of the agreement and have the parties sign the same. See you in mediation.

Jessica Goldman, Esq.

Goldman Mediation jessica@goldmanmediation.com

21 | Columbus Bar L aw yers Quarterly Fall 2017

Points of Practice

Going for 20 by greg kirstein

March 2, 1998. The limo unexpectedly pulled into my driveway, courtesy of my brother. The kids, 12, 10 and wide-eyed, watched in amazement as Dad, all shined up for day one of work at the NHL’s newest franchise, rode off to the Columbus Blue Jackets. Fast forward to April 16, 2017. Despite badly outshooting the defending Stanley Cup champion Pittsburgh Penguins in Games 1 and 2 of the 2017 NHL Playoffs, the Jackets return home down two games to none in the best-of-seven series. And then it happens: just like the 2014 series vs. the same Penguins, Columbus sports fans — many who have been to the Super Bowl, the World Series or the College Football Playoff – report en masse that they have never, ever heard anything as loud and as intense as Game 3 at Nationwide Arena. That is why every one of us who works for the hockey club shows up every day: to do everything possible to bring a Stanley Cup to Columbus and cement our city, once and for all, as major league. March 2, 2018 will mark 20 years since I became the team’s Senior Vice President and General Counsel. It’s been a privilege, a roller coaster ride and a book whose last chapters are still unwritten. On the dark days, we’ve lived through two fan-crippling lockouts (2004-05, 2012); the awarding and then cancellation of the 2013 All-Star Game; seven coaches and two interims in the first 15 years; and attendance peaks and valleys that make it difficult to create budgets or marketing campaigns. On the bright days, the city took one major step closer to shedding the “college town” image when the 2015 All-

Star Game captivated Columbus for a week, complete with the Skills Competition, Winter Park in McFerson Commons and an ice slide down Nationwide Boulevard. Columbus-born kids now routinely get drafted into the NHL, and four original high school teams have sprouted into 35 high school and club teams. And the hockey side of the business has never been more stable. John Davidson, Jarmo Kekalainen and John Tortorella have propelled the team from its 2016 27th-place finish to 2017’s fourth-place finish. Combined with the Club’s 16-game winning streak last year, the 2nd longest in the 100-year history of the NHL, “mercurial” doesn’t begin to describe it. Our Legal Department is just a cog in a much bigger wheel. After nearly 20 years, I can report that the immigration work for Russian prospects grows more difficult given the relationship between our two countries. More embassies, more consulates, more documents. The NHL, much like the NFL, finds itself in class action concussion litigation brought by retired hockey players. Media rights negotiations are wildly more sophisticated, as value is now judged by all things digital, and people get paid to record the number of tweets, Facebook and Instagram posts, and re-tweets. Three other notable, positive things have occurred since I wrote a similar column in 2008. First, the switch to the NHL’s Eastern Conference, which means that all 14 conference rivals play in the Eastern time zone. Previously, 13 of our 14 conference opponents were from times zones to the west; imagine the difference in TV ratings! Second, the combined booking agreement between Nationwide Arena and the Schottenstein Center, which has allowed Columbus to offer every “A-list” concert under the sun. And lastly, moving the

22 | Columbus Bar L aw yers Quarterly Fall 2017

March 2, 2018 will mark 20 years since I became the team’s Senior Vice President and General Counsel. It’s been a privilege, a roller coaster ride and a book whose last chapters are still unwritten. Club’s top minor league team to Cleveland, which has exposed countless Northeast Ohio hockey and sports fans to the Jackets. What lies ahead? We think sustained success. For the non-fan, Columbus’ expectations when the team took the ice in 2000 were unrealistic. The players available to the expansion Jackets and Minnesota Wild were those cast adrift after previous expansion drafts for Nashville (1998) and Atlanta (now Winnipeg, 1999). Whatever modest talent was available was then split between the Jackets and the Wild. Similar to starting a law firm with other firms’ cast-off lawyers. Why such optimism? It took 9 years (2000-09) to first make the NHL Playoffs. But it only took five the second time in 2014. And then it only took three years to 2017. And while last spring’s Stanley Cup Playoffs showed the world just how good the Penguins were, you could sense in our office, in the locker room and with the media that everyone understood the Jackets were close to having a perennially-performing team. The goals haven’t changed since that limo ride in 1998: to provide Columbus world-class entertainment, to give back continuously to the community and to make our fans proud. The Jackets, due to unbelievable commitments by the McConnell family and Nationwide Realty Investors, and hard, hard work by our staff, now belong in the Ohio pro sports conversation at the Reds, Indians, Cavs, Bengals and Browns’ level. It’s just easier to say that now.

Greg Kirstein, Esq.

Columbus Blue Jackets gkirstein@bluejackets.com

23 | Columbus Bar L aw yers Quarterly Fall 2017

Fall ‘17: Haunting Legal Issues

Raising the Dead:

Zombie Legislation by melanie tobias

Lumbering along with an eerie intensity, driven to a specific end and yet appearing aimless at the same time. Seemingly down for the count, only to rise back up, maimed and ever diminished, to carry on the endless slog; lurching, ever lurching toward final satiation. It is the season of ghoulishness, but it is not zombies of which I write, but rather the legislative life of some bills in the Ohio General Assembly. I especially enjoy this time of year and our celebration of the macabre and spooky, mixing in mischief with sweet treats. It makes me ponder, though, the death of certain Ohio House and Senate bills, only for them to rise again and again in subsequent legislative sessions, much like the living dead of current pop culture obsession. Though our zombie bills have their undead status in common, they address a wide variety of issues and meet their perpetual deaths for different reasons. Some encompass controversial issues that deeply divide the public as well as our legislators. Some are pet projects with only a small number of

supporters while others are not able to garner enough attention in a packed legislative session. My professional experience focuses on one such zombie bill, last named Senate Bill 295, but also known as H.B. 383 and S.B. 168; who in life was a fresh faced ingénue masquerading as a municipal law director who wished to have the same authority to issue misdemeanor investigative subpoenas that her county prosecutor sister possessed for felony investigations. The ingénue died a slow death in the 128th General Assembly, only to rise again and again in subsequent years; missing a hand, then a foot and in her current state, short an eye, but nevertheless shambling onward in the current 132nd General Assembly. As an Assistant City Prosecutor, I anxiously anticipate each new legislative year and concomitant reanimation,

ready to cheer her on again, ever hopeful that this time we’ll get to the finish line and with enough body parts left to still be useful. S.B. 295 is not alone in her journey – zombies like to move around in herds, you know. H.B. 228, the latest incarnation of Stand Your Ground legislation, has made its acquaintance with the grim reaper repeatedly since 2005. Bucking the usual rules of the undead, though, H.B. 228 is stronger after its most recent bout with brinkmanship, emerging in the current session with an additional “appendage” that would upend decades of selfdefense law in Ohio and require the prosecution to disprove selfdefense at a trial. I worry for this particular specter, though, and predict that its finish line lies far beyond the point at which it can keep shuffling along. H.B. 258, the Heartbeat Bill, may be the

Though our zombie bills have their undead status in common, they address a wide variety of issues and meet their perpetual deaths for different reasons.

24 | Columbus Bar L aw yers Quarterly Fall 2017

strongest of our zombie coterie, having actually made it out of the house and senate – only to be brought down by a Governor’s veto in 2016. And yet, H.B. 258 has risen for a fourth time with fifty house members signing on as co-sponsors this session. H.B. 53, legislation that would make Ohio a “right to work” state has the ignoble distinction of meeting death not only at the hands of the General Assembly multiple times, but also at the hands of Ohio voters at the ballot box. Recall S.B. 5, a proposed constitutional amendment to scale back public unions that failed resoundingly in 2011. Refusing to shuffle off this mortal coil, H.B. 53 now re-joins its zombie brethren in the Ohio House; might it finally cross-over and shed its zombie skin? No one can fault the tenacity of the undead. Perhaps inspiring their continued press (if indeed a zombie can be inspired), is H.B. 359, Ohio’s

Address Confidentiality Law, which allows domestic violence, stalking and sexual assault victims to obtain a confidential identifier number to be used for all government records in Ohio and was finally signed into law this past summer. The sixth resurrection was the charm for H.B. 359, having first been introduced in 2010. With this ghoulish history in mind, when you open your door to trick or treaters this season and pass out candy to a steady stream of witches, ghosts, goblins and ghouls, be on the lookout for possibly the scariest costume of all – a legislative bill.

Melanie Tobias, Esq.

Columbus City Attorney, Prosecutor Division mrtobias@columbus.gov 25 | Columbus Bar L aw yers Quarterly Fall 2017

Fall ‘17: Haunting Legal Issues

A Retired Judge’s Reflections:

Artificial Intelligence by hon. patrick sheeran Many people will recall the win by the computer Deep Blue over world chess champion Garry Kasparov in 1996. However, humans were still occasionally able to defeat computers in chess competition as late as November 2005, when Rusian Kasimdzhanov defeated the computer program known as Fritz. It’s not happened since. Competitions are no longer even scheduled between top computers and humans. Earlier this year, Google’s computer program “AlphaGo” defeated the world’s best player in what the New York Times called “humankind’s most complicated board game,” Go. The game is so complex,

the Times noted, that “even supercomputers cannot simply calculate all possible moves.” The computer’s prowess in recent years caused top Go players to challenge basic assumptions made about a game that has thousands of years of tradition. But, as in chess, the computer now reigns supreme over yet another human endeavor involving the mind. In the legal profession, computer programs have enabled one lawyer to accomplish in legal research what it took ten or more attorneys to do just twenty years ago. Furthermore, all written judicial decisions are being reported now, even at the Common Pleas level. One result of this is that there are now computer programs that can take the past decisions a judge has written and attempt to predict that

judge’s reactions to a particular case. To use a baseball analogy, these programs attempt to define what a Judge’s “strike zone” is. This is just one aspect of what is called “artificial intelligence.” To be sure, there are different kinds of artificial intelligence. For this article, I will use the terms “Weak AI” and “Strong AI.” Strong AI possesses the entire range of human cognitive ability, including self-awareness, sentience and consciousness. Weak AI has none of these qualities. Weak AI is incredibly fast (the fastest computers are now beyond performing quadrillion computations per second), but they remain ultimately unaware, in that the computer must follow the software program’s instructions. In other words, the computer must literally be told what to do.

Can “Siri” tell me whether to send a particular defendant to prison? Why not? Siri can – given the right program – give me an incredible amount of information about a person. In fact, who needs a human judge? “Siri” could weigh the information based on a myriad of factors, and decide what the correct sentence should be. 26 | Columbus Bar L aw yers Quarterly Fall 2017

When I was an active trial judge, I certainly wished, on occasion, that I had more information or more time to dig into relevant cases from multiple jurisdictions. But with so many cases in the system, one cannot spend weeks on one case to the exclusion of the hundreds of other active cases on the docket. It is with that thought

in mind that I consider whether AI will ultimately replace human judges. Consider that a robotic judge will have literally millions of cases to instantaneously sift through before reaching a decision. Consider, too, that a robotic judge will not be subject to emotion, whether it’s because of the facts of the case, “what the judge had for breakfast that day,” the personalities of the attorneys or anything else. Indeed, another

question is whether the attorneys themselves will be replaced by AI “attorneys.” [Jurors—and intermediate appellate courts— would be superfluous]. Witnesses will still be human, but AI will be able to quickly determine and undermine their credibility by having access to so much of their past. Since privacy will be almost non-existent by then (look at the direction we’re going in now), almost everything will be knowable, from misstatements on loan applications, to medical reports that state the person’s ability to see/hear/remember things, to every Tweet, email, instant message and so on, written by the witness. Since these things will be instantaneously available to the RoboJudge, algorithms (yet to be developed) would arguably make decisions fairer and more exact. Stephen Hawking and many others have written of the extreme dangers and great benefits of AI, and some experts, like Ray Kurzweil, believe AI will match and exceed human intelligence by 2029. Others well known in the AI community posit decades or even centuries before this would occur. But what, exactly, does that mean? “Siri” already knows more than I do: she can tell me the best route to Milwaukee and change recommendations based on traffic congestion. She can name the last thirty singles winners at Wimbledon and tell me who won the Nobel Prize for Literature in 2004. And that’s incredibly “easy” for Siri. Continued on page 28

27 | Columbus Bar L aw yers Quarterly Fall 2017

Continued from page 27 But let’s take this a step further. Can “Siri” tell me whether to send a particular defendant to prison? Why not? Siri can – given the right program – give me an incredible amount of information about a person. In fact, who needs a human judge? “Siri” could weigh the information based on a myriad of factors, and decide what the correct sentence should be. I might add that “Siri” could serve equally well in the Legislature, and come up with proper sentences and sentencing procedures.

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I am going to respectfully submit that the answer is “No.” Clearly, what follows is not just my opinion. Neuroscientists tell us that a computer (robot, etc.) does not have consciousness. It cannot hope, strive or suffer, cannot get old, cannot have acne or balding issues, cannot get cancer, pregnant or jealous, and (given a steady power source and replaceable parts), cannot die. Therefore, it has no consciousness, and remains in the realm of “Weak AI.” That means that while computers remain in the realm of being able to process information faster than most of us can imagine, it cannot truly contemplate. And by “contemplate,” I also include the ability to be stubborn, pigheaded and just plain “wrong.” The jump from Weak AI to Strong AI is truly a quantum leap. We are nowhere near achieving it. We do not even have any idea how to begin achieve it. It’s not adding more processors or combining supercomputers; it is a totally different task, or series of tasks. Perhaps if I put it this way: we cannot quantify what a “thought” is. We cannot see it, weigh it, measure it or transfer it

to another (without speaking or writing it, of course). As far as we know, it has no mass. And yet, we think. How? And if we can’t understand, much less explain that, how can we transfer such a thing to a computer? To conclude, I see weak AI being of tremendous service to making tasks easier and less expensive to perform in an incredible array of human endeavors. This is causing and will continue to cause ever increasing societal issues (e.g. employment). But weak AI operates under the direction of the human(s) who control it. That may well end up being the death of us all (which is what I believe Hawking, et al. rightly fear), but should that occur, our death will come from the human element: the greed, fear, stupidity and anger that we possess, not from the computers themselves.

Hon. Patrick E. Sheeran

Franklin County Court of Common Pleas patrick_sheeran@fccourts.org

28 | Columbus Bar L aw yers Quarterly Fall 2017

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Fall ‘17: Haunting Legal Issues

Pursuing Justice: The Ohio Attorney General’s Sexual Assault Kit Testing Initiative by mike dewine Few crimes are more frightening than sexual assault. The pain that victims of sexual assault endure doesn’t diminish with the passage of time, and that pain is often compounded if their attackers are never caught or even identified. Victims of sexual assault deserve the chance to heal and to have confidence that the perpetrators will face justice. DNA evidence has become a powerful tool used to convict those who commit crimes, especially sexual assault. As the national DNA database has expanded, so have the opportunities for law enforcement and prosecutors to pursue sexual assault cases. Not long after I became Ohio’s Attorney General in 2011, I learned that thousands of sexual assault

kits that had never been submitted for DNA testing – some from crimes going back decades – were still on the evidence shelves of law enforcement agencies around the state. The longer this evidence remained unanalyzed, the longer sex offenders were at large and free to potentially harm more victims. We worked with victims’ rights advocates, law enforcement, forensic scientists and prosecutors to determine what to do and adopted a fairly simple policy: if a crime was committed, the kit should be submitted. Whether the case is prosecuted is a decision made later in the process, but testing ensures that DNA from sex offenders will be uploaded into the state and federal law enforcement databases. In December of 2011, I urged all of Ohio’s law enforcement agencies to submit whatever untested sexual assault kits they may have kept in storage to the Ohio Attorney General’s Bureau of Criminal

By hiring ten additional forensic scientists, the kits submitted under the Ohio Attorney General’s Sexual Assault Kit (SAK) Testing Initiative are being analyzed as quickly as possible. 30 | Columbus Bar L aw yers Quarterly Fall 2017

Investigation (BCI) and our forensic scientists would test the kits free of charge. Despite the increased workload, we made sure the influx of older kits didn’t slow the testing of kits associated with more recent crimes. By hiring ten additional forensic scientists, the kits submitted under the Ohio Attorney General’s Sexual Assault Kit (SAK) Testing Initiative are being analyzed as quickly as possible. As a result, our SAK Testing Initiative is helping take sexual predators who may have thought they had long ago gotten away with their crimes off the streets. As of October 1, 294 law enforcement agencies sent 13,931 rape kits to BCI for testing, including many that were decades old. Of those kits, 94 percent have now been analyzed. The testing has led to 4,768 hits in the Combined DNA Index System: the database where DNA profiles

can be stored and searched. These DNA hits have helped give law enforcement agencies critical evidence to help solve brutal attacks by linking crimes to offenders and identifying serial rapists. In Cuyahoga County – a substantial source of the submitted sexual assault kits – more than 600 defendants have been indicted so far. Ohio Senate Bill 316, which was crafted as a result of our SAK Testing Initiative, became effective in March 2015. SB 316 required Ohio law enforcement agencies to submit any remaining previously untested sexual assault kits associated with a past crime to a crime laboratory by March 23, 2016. Of the 13,931 kits submitted to BCI, 4,601 were submitted after SB 316 went into effect. In addition to bringing criminals to justice and preventing sexual predators from victimizing additional citizens, research conducted at Case Western Reserve University revealed that our SAK Testing Initiative saves communities’ money over time.

Researchers at Case Western’s Begun Center for Violence Prevention Research and Education reported that every conviction resulting from the SAK Testing Initiative amounts to a savings of $40,866 to the community. Based on a conservative 25 percent chance of recidivism, the researchers estimate that for every four rape convictions, at least one rape is prevented; indicted serial offenders represent as many as a third of the SAK cases. The researchers’ calculations were based on tangible costs such as medical expenses, lost workdays and out-of-pocket expenses, as well as intangible costs like pain and suffering, decreased quality of life, and psychological distress. The estimates were based on Cuyahoga County numbers but could be representative of the state. Our SAK Testing Initiative is delivering results: we’re taking steps to make those results even more meaningful through a joint project with Bowling Green State University (BGSU). With funding from the Laura and John Arnold Foundation, the University and the Ohio Attorney General’s Center for the Future of Forensic Science are conducting a joint research project, which will use data mining to develop the most efficient testing process. While BCI currently analyzes everything contained in the kits, the information derived from this project may help shape the sequence in which the pieces are tested and could generate cost savings resulting from greater efficiency. While our SAK Testing Initiative has helped bring sexual predators to justice and enabled their victims to begin the healing process, we have not ignored the

needs of sexual assault survivors for comprehensive support. In 2013, my office conducted a statewide survey and found that only 36 counties offered core services for sexual assault survivors and eight had few or no services. That year I established the Sexual Assault Services Expansion Program, and since then we’ve awarded millions in grant funds as part of this initiative to ensure that victims throughout the state have access to the comprehensive services that they deserve. Today, 80 counties report that they provide all core services, and all 88 counties are expected to have core services by 2018. Our SAK Testing Initiative is helping identify offenders whose crimes will be investigated and, hopefully, prosecuted. We’re collaborating with academic scientists to improve and streamline the analytic process. And we’re working with crime victim advocates around the state to ensure survivors of sexual assault have access to a full range of essential services in or near their home communities. Victims of sexual assault in Ohio deserve no less.

Mike DeWine, Esq.

Ohio Attorney General

Fall ‘17: Haunting Legal Issues

Legislating Gun Bills: Lots of Storytelling, Little Data by Jeffrey Eyerman and Jack D’Aurora The Ohio General Assembly seems to be enamored with guns. And laws designed to get them into more people’s hands. At least six pending bills seek to expand the rights of gun owners in general, and concealed carry holders in particular. The proposals range from the practical (H.B. 152 proposes a “firearm restriction” be added to the hunting licenses of convicted felons) to the questionable (H.B. 201 would allow anyone to carry a concealed weapon without a permit and eliminate the obligation to tell the police you’re carrying). The General Assembly seems to be proceeding on the premise that more guns in hands of citizens is a good thing, but the data — notably lacking in the hearings for these bills — suggests otherwise. Unlike courts which require hard evidence, lawmakers propose legislation based on what makes a good story. Here are a few examples: H.B. 233 would allow all concealed carry holders or, if permitting requirements disappear, anyone to carry their guns into schools, courthouses and daycares, so long as they leave when requested. In introducing the

bill, Rep. John Becker (R-Clermont), has referred to concealed carry holders as the “cream of the crop of the citizenry,” noting that concealed carry holders “are required to pass a background check, be fingerprinted, photographed and trained in gun safety and marksmanship.”1 It’s unclear how these requirements elevate one’s status. After all, folks who get arrested are fingerprinted, background checked and photographed, and some probably underwent gun training. Mr. Becker seems to have resolved this dissonance with what he amusingly calls the “jerk clause.” That is, “if [when asked to leave], you choose to be a jerk about it and refuse to leave, you are then subject to the charge of disorderly conduct.” Why give anyone the opportunity to be a jerk about it in the first place? The reasoning isn’t clear, nor is the benefit that society gains from more concealed guns in more public places. Some lawmakers seemingly want to make it easier for people to use their guns. Rep. Sarah M. LaTourette (R-Chesterland), has co-sponsored H.B. 228, which shifts the burden of proof in criminal prosecutions involving claims of self-defense. A type of “stand-

What costs come with gun proliferation? The data suggests that more guns in a home increase the likelihood of those guns being used to murder family members. 32 | Columbus Bar L aw yers Quarterly Fall 2017

your-ground” law, the proposed bill would require prosecutors, in cases where an accused shooter claims self-defense, to prove beyond a reasonable doubt that the shooter was not acting in selfdefense. To LaTourette’s mind, the law would ensure that “law-abiding citizens in our state don’t have to try to decide if they will be able to defend themselves in court before they decide to defend their family in a life and death situation.”2 LaTourette doesn’t tell us how often this situation arises, though it certainly occurs — recall that a judge in Jefferson County was recently attacked and defended himself by returning fire. As we’ll discuss later on, those instances when citizens actually use a gun in self-defense may be rarer than you think. Rep. Nino Vitale (R-Urbana) is sponsoring H.B. 310, a bill that would let elected officials carry guns into their places of business. It’s a sensible enough policy on its face, but Vitale’s rhetoric is a bit unsettling. As he sees it, “if someone knows someone can defend themselves, they might keep their rhetoric at an acceptable level.”3 Does this mean, people who protest against public officials might need to stay quiet or risk being shot by their representatives? What does the data say about right to carry (RTC) laws and their effect on crime? Little, until recently. A 2004 report from the National Academies National Research Council concluded “it is not possible to reach any scientifically supported conclusion. … The evidence to date does not adequately indicate either the sign or the magnitude of a causal link between the passage of right-to-carry laws and crime rates. Furthermore, this uncertainty is not likely to be resolved with the existing data and methods.”4 Since then, Stanford Law Professor John Donohue has concluded, using a new statistical technique, that on average, RTC states have violent crime rates that were seven percent higher five years after RTC law passage than non-RTC states during the same five years. After 10 years, the gap increased to almost 15 percent. “There is not even the slightest hint in the data that RTC laws reduce overall violent crime,” Donohue stated.5 Donohue makes an interesting analogy concerning widespread gun ownership: “If we gave 300 million people a brain scan, we would save a certain number of

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lives, but you wouldn’t want to advocate that treatment without considering how many lives would be lost by exposing so many to radiation damage. One needs to consider both the costs and benefits of any treatment or policy.” What costs come with gun proliferation? The data suggests that more guns in a home increase the likelihood of those guns being used to murder family members. In a study published in 1993, researchers studied 1,860 murders in three Tennessee, Washington and Ohio counties.6 Of those murders, 420 occurred in the home of the victim, with 76.7 percent of the victims killed by a relative or someone known to them. Homicide by stranger accounted for just 3.6 percent of the home murders. FBI statistics also evidence that most victims are murdered by someone they know. Of the 7,023 homicides (involving both guns and other weapons) in 2015 where the assailant was identified, the victims were murdered by strangers in only 1,375 cases. The other 5,648 murders were committed by relatives or acquaintances.7 Continued on page 34

33 | Columbus Bar L aw yers Quarterly Fall 2017

Continued from page 33 Increased gun availability also increases the risk of gun suicide. The Centers for Disease Control reported 21,334 gun suicides in 2014.8 Researchers have found that “victims of suicide living in homes with guns were more than 30 times more likely to have died from a firearm-related suicide than from one committed with a different method.” Why? Because guns require little preparation — an important attribute, “particularly when the suicide is impulsive.”9 And how often are guns used in self-defense? While advocates have claimed that 2.5 million Americans use guns in self-defense each year, Harvard’s David Hemenway has concluded this number is way off and based on faulty data. Survey respondents claim to have shot more than 200,000 criminals, but only about 100,000 people are treated in emergency rooms for all gunshot wounds annually — including criminals, who “almost all go to hospital emergency rooms for treatment of their wounds.”10 If law-abiding gun owners fatally shot 200,000 criminals annually, they would be doing away with 3,846 bad hombres per week. Yet, FBI statistics for 1993 show only 350 justifiable homicides by citizens — fewer than seven per week.

But legislators eager to ease concealed carry restrictions and make it harder for police and prosecutors to do their jobs could learn something from the courts: rely on facts instead of storytelling when passing bills. We’d probably all be safer in the long run if they did. 1

Testimony offered by Rep. John Becker on June 6, 2017. Testimony offered by Rep. Sarah M. LaTourette on June 20, 2017. The Columbus Dispatch, July 28, 2017. 4 “Firearms and violence, a critical review,” Committee to Improve Research Information and Data on Firearms, Charles F. Wellford, John V. Pepper, and Carol V. Petrie, editors, National Research Council of the National Academies, executive summary at p. 7. 5 http://news.stanford.edu/2017/06/21/violent-crime-increases-right-carry-states/ 6 “Gun Ownership as a Risk Factor for Homicide in the Home,” New England Journal Medicine, October 7, 1993, Arthur L. Kellermann, Frederick P. Rivara, Norman B. Rushforth, Joyce G. Banton, Donald T. Reay, Jerry T. Francisco, Ana B. Locci, Janice Prodzinski, Bela B. Hackman, and Grant Somes. King County, Tenn., was largely white and enjoyed a relatively high standard of living. Shelby County, Wash, and Cuyahoga County, Ohio, were 44 and 25 percent black, respectively. Fifteen percent of Shelby County households lived below the poverty level. Eleven percent of Cuyahoga County’s households lived below the poverty level. The homicides in King and Shelby counties occurred over a five-year period. The homicides in Cuyahoga County occurred during a two and a half year period. 7 https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/ expanded_homicide_data_table_10_murder_circumstances_by_relationship_2015.xls https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/expanded_ homicide_data_table_8_murder_victims_by_weapon_2011-2015.xls 8 https://www.cdc.gov/nchs/fastats/suicide.htm 9 “Guns in the Home and Risk of a Violent Death in the Home,” Linda L. Dahlberg Robin M. Ikeda Marcie-jo Kresnow, American Journal of Epidemiology, Volume 160, Issue 10, Nov. 15, 2004, Pages 929–936. 10 “Private Guns, Public Health,” David Hemenway, Univ. of Michigan Press, 2006, at p. 68. 2 3

Jeffrey Eyerman, Esq.

The Behal Law Group LLC jeyerman@behallaw.com

None of this is to say every gun bill should always be dead on arrival. The quite-reasonable H.B. 253, for example, would allow off-duty police officers to carry their weapons into otherwise “gun-free” zones. One could also see the sense in allowing elected officials a modicum of additional security by allowing them to take concealed weapons into government facilities.

34 | Columbus Bar L aw yers Quarterly Fall 2017

Jack D’Aurora, Esq.

The Behal Law Group LLC jdaurora@behallaw.com

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Fall ‘17: Haunting Legal Issues

The Right of the People: The Second Amendment and its Jurisprudence by derek debrosse “Nowhere else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.”1 For many years prior to 2008, a common notion that existed in the legal world was that the Second Amendment to the United States Constitution only applied in the context of an armed militia. It was not until the landmark case cited above that that proposition was dispensed with thus holding the Second Amendment is an individual right.

JFK, RFK and MLK. As Congress routinely began addressing the issue of violence with regulations on our right to possess firearms, it became increasingly clear that the body of jurisprudence surrounding this matter was lacking. Heller came about in 2008 and for the first time settled the issue as to what the Second Amendment was and to whom it applied. This was a victory for the civil libertarians. Heller thus laid the groundwork for Constitutional analysis to apply to the multitude of gun laws we have become accustomed to in this Country.

We now live in a post Heller world, one in which the jurisprudence surrounding the Second Amendment is fertile territory to be developed. Since Heller, we have seen additional case law developed to include the incorporation of the Second Amendment to the states.2 But what does this mean and where is it going?

Since 2008, there have been an array of issues at the forefront of this legal debate. From what weapons are protected by the Second Amendment to the mode of carry protected, it seems as though challenges are becoming routine. The one issue that the Supreme Court deferred in Heller, which it must eventually address, is the standard of review that should apply to the Second Amendment. Heller clearly established that the Rational Basis standard should not apply, but left the matter open. Many circuits have applied the Intermediate Scrutiny standard including the 6th Circuit. It should be noted, however, that the 6th Circuit originally applied Strict Scrutiny and it was not until the matter was heard en banc that Intermediate scrutiny was established.3 Once established, it will be interesting to see how the various courts applying the appropriate level of scrutiny decide challenges.

Gun control in this country started with the National Firearms Act of 1934 in response to the gang warfare that was occurring in our Country’s history at that time. The regulations stemming from this law began to control possession and transfer of the firearms used in crimes such as the St. Valentine’s Day Massacre. From there, gun control legislation almost routinely was introduced, if not passed, in response to some form of tragedy. For instance, the Gun Control Act of 1968 was passed after the assassinations of

36 | Columbus Bar L aw yers Quarterly Fall 2017

As Congress routinely began addressing the issue of violence with regulations on our right to possess firearms, it became increasingly clear that the body of jurisprudence surrounding this matter was lacking. Heller came about in 2008 and for the first time settled the issue as to what the Second Amendment was and to whom it applied. It is important to understand that whether or not we enjoy firearms, hunting or the like, they are part of not only our culture, but also our civil liberties. It is often said the Second Amendment exists for hunting. This is patently false: Heller clearly established that part of the core right is, in fact, for defense of hearth and home. Additionally, the common thought in our country that “assault weapons” and handguns must be outlawed shows not only a misunderstanding of basic functionality of firearms but also the law. Heller noted that “if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.” The Court went further stating, “[w]hatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.” The United States Supreme Court has made it clear that the purpose of the Second Amendment was not for hunting or sport, but for defense purposes. Regardless of our political view of firearms, the fact remains that we have the Second Amendment and it exists because the founding fathers saw a need for such a civil liberty to be solidified in our Constitution. The Constitution provides a mechanism that allows for this to change and it is not the common understanding of an “alive and breathing” document. No, it is called the Amendment process, and at the point in our future we decide we no longer need or desire this right, we can always amend the Second Amendment. Until then, we must respect our fellow citizens civil rights of all types to include the Second. 1

District of Columbia v. Heller, 554 U.S. 570, 579 (2008) 2 McDonald v. Chicago, 561 U.S. 742 (2010) 3 Tyler v. Hillsdale, Case No. No. 13-1876, 6th Circuit Court of Appeals

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Derek DeBrosse, Esq.

Barney DeBrosse LLC derek@barneydebrosse.com

37 | Columbus Bar L aw yers Quarterly Fall 2017

Fall ‘17: Haunting Legal Issues

Avoid Being Haunted by an Investment Gone Bad by david p. meyer Among the scariest threats to individuals who invest their hard-earned money in hopes that it will grow and provide income and security in the future is the growing prevalence of fraudulent Ponzi schemes. Even the most educated and sophisticated investors can lose millions at the hands of a deceptive scheme. This past summer, numerous Central Ohioans learned that the money they entrusted with a Massachusettsbased advisor named Raymond K. Montoya may have been lost in what is alleged to be a $30 million Ponzilike scheme. Earlier this year, another individual named William Apostelos was found guilty of defrauding countless investors in Dayton, Ohio. The U.S. Attorney prosecuting the case labeled the $70 million Ponzi scheme as “the biggest…that we’ve

investigated in the Dayton area, maybe ever.” Apostelos is simply the most recent example of several other Ponzi schemes prosecuted in Ohio over the past few years; countless others are discovered across the U.S. every year. In light of this growing threat, it is critical that investors know how to spot a Ponzi scheme, and are aware of steps to take to minimize the risk of losing money through fraudulent investments. Spotting a Ponzi scheme is not a simple task. Knowing how the scheme works and understanding what type of fraud is involved is the first step in recognizing its warning signs. A wellorganized Ponzi scheme appears, on its face, as a legitimate investment opportunity. By paying off new investors with money from previous investors, the scheme pretends to be a profitable venture. In reality, little to no actual investing is occurring. Typically, the money that is not used to give false returns to investors is used to fuel lavish life styles for the con artists operating the scheme.

Last year, a group of individuals running a $17 million Ponzi scheme out of Cleveland were prosecuted for using investment funds to purchase high-end cars, boats and vacation homes. Inevitably, all Ponzi are exposed when the funds run out and investors stop seeing “returns.” There are several red flags that every investor should be wary of; many of which can be detected through routine diligence. First, check the credentials of the person who has approached you about the investment. Every financial advisor licensed to sell securities in the U.S. has what is called a CRD number. CRD stands for Central Registration Depository which is a database that holds information about brokers and brokerage firms maintained by the Financial Industry Regulatory Authority, FINRA. FINRA is a non-governmental regulator for all securities firms in the United States and is subject to the oversight from the Securities and Exchange

Commission, the SEC, which is the government agency that serves as the ultimate regulator of the securities industry. We believe numbers are a powerful tool to help our clients resolve critical issues

Although the CRD report is not all-inclusive and can sometimes be incomplete, it does include information about licensing, registration, professional background, complaints and disciplinary actions. Apostelos, who orchestrated the $70 million Ponzi scheme out of Dayton, portrayed himself to investors as a registered broker. A simple search for Apostelos on FINRA’s BrokerCheck1 would have revealed that he was not in fact a registered broker, which could have saved investors millions. While those tools are useful, even registered brokers can go rogue and try their hand at a Ponzi scheme. Similarly, many Ponzi schemes start off as legitimate business operations and turn fraudulent. For example, a man in Michigan once leveraged a Ponzi scheme by using his failing computer company as the investment vehicle. How then can you detect a Ponzi scheme when the broker is registered and the business appears reputable? There are numerous warning signs: Ponzi schemes are able to produce high returns, for a period of time, by stringing along investors with previous investment funds. Therefore, being promised “guaranteed” high returns (in excess of 3 percent) is a glaring red flag. Consistently high returns on legitimate investments are, by nature, always accompanied with high risk. Guaranteeing a high return is therefore something that a bona fide broker should not promise. Similarly, Ponzi schemes almost always use prior investors’ testimonials about their “success” to lure in new investors. If the individual soliciting the investment focuses their attention on returns, rather than the underlying workings of the investment itself, investors should question its legitimacy. Without a regular source of income, Ponzi schemes will eventually collapse. Knowing this, the fraudsters in charge of the scheme are constantly pressuring investors to reinvest. Additionally, Ponzi schemers are often reluctant to provide information. Excuses about missing paperwork, frequent errors or secretive strategies are all red flags that the investment may not be as it appears. Unfortunately for many individuals who invest in Ponzi schemes, they are not made aware of the fraud until it is too late. Their investments have been spent, the fraudsters are on their way to prison and the investors are left out of

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pocket wondering if they are going to get their money back. If the individual who solicited the investment is a registered broker, the brokerage firm where he or she is employed may be liable for the loss. Almost all brokerage firms contractually bind their customers to pursue any claims against the firm in FINRA arbitration. Arbitration is generally quicker, and more cost effective, than litigating a case in court. In addition, rather than having the case determined by a judge, the case is adjudicated by a panel of arbitrators with the authority to make a binding final decision. The financial loss inflicted by Ponzi schemes can be devastating. Families may see their entire life savings destroyed through false hopes of consistently high returns. It is important that victims of Ponzi schemes seek the representation of legal counsel experienced in securities fraud and FINRA arbitration. 1

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David P. Meyer, Esq.

Meyer Wilson Co. LPA dmeyer@meyerwilson.com

39 | Columbus Bar L aw yers Quarterly Fall 2017

Fall ‘17: Haunting Legal Issues

The Ugly Truth:

Sexual Assaults in Franklin County by Kacey Chappelear

In 2016, the Franklin County Prosecutor’s Office indicted 305 felony domestic violence cases, 160 child abuse cases, 78 sexual assault cases, 12 stalking cases and 38 child pornography cases. As of June 30, we have indicted 176 felony domestic violence cases, 62 child abuse cases, 39 sexual assault cases, 6 stalking cases and 23 child pornography cases. For purposes of this article, I will focus particularly on the cases involving sexual assault. The Franklin County Prosecutor’s Office remains committed to not only punishing the offenders who commit these awful crimes, but also working with the victims to ensure that the outcome in each case is the best we can possibly achieve. To accomplish that, we work with victims to determine what justice means for them, which often varies with each individual. Some victims want a significant term of incarceration; some want to be sure that the offender registers as a sex offender for as long as possible; some wish for the offender to receive drug or alcohol treatment; and some victims don’t want to be involved in the court process at all, and just want to move on. The Franklin County Prosecutor’s Office has partnered with law enforcement agencies, medical professionals and social service agencies to work together to accomplish whatever goals each victim seeks to achieve. It is our fervent hope that no one should experience any crime, let alone one that is handled by the Special Victims Unit. However, should you or someone you care about find yourself in that position, there are steps to take and victim’s rights to be aware of. If you are the victim of an assault, get to the hospital as soon as possible. If it is a sexual assault, there is typically a 96-

hour window during which evidence can be collected, but the sooner, the better. The hospital will contact law enforcement. However, even when law enforcement is contacted, that does not mean prosecution inevitably follows. The victim is able to inform law enforcement whether or not he or she wishes to proceed with prosecution. Typically, if an offender is arrested, the case will be presented to the Grand Jury for indictment within ten days. If the offender is not arrested, but there is sufficient probable cause to believe the offender committed the offense, the police can submit an investigative packet to the Prosecutor’s Office for review. After indictment, the offender will either retain counsel or be appointed counsel. The case will be assigned to a judge, and the court will begin to schedule trial dates. Cases generally take approximately six months to a year to resolve, so patience is important. While the case is pending, victims have a number of rights, as outlined in Chapter 2930 of the Ohio Revised Code. Victims shall be given notice of all court dates, if they so desire. Victims have a right to attend any court hearing. Victims shall be consulted before any agreement to a negotiated plea, amendment, dismissal of a charge, or trial. Victims shall be notified of the outcome of any trial and be afforded the opportunity to address the court at sentencing. Marsy’s Law, a constitutional amendment to expand victim’s rights which is on the ballot in November 2017, will also provide an enforcement mechanism for victims. The types of cases that SVU handles have unique challenges. There are still outdated societal views about the role of alcohol use in sexual assault, how a victim’s manner or style of dress and behavior “invites” an assault and/or the force required to commit a sexual assault. There are antiquated notions about how a

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Jurors tend to expect medical findings that are actually quite rare, even in documented cases of acute sexual assault. In our CSI-friendly world, there are also expectations about the presence of forensic evidence that are unrealistic.

victim “should” behave. Jurors tend to expect medical findings that are actually quite rare, even in documented cases of acute sexual assault. In our CSI-friendly world, there are also expectations about the presence of forensic evidence that are unrealistic. Further, these are offenses that are typically committed in a clandestine environment, so eye-witnesses are virtually unheard of. In the face of these challenges, it can be difficult to convince a victim to testify and subject him or herself to potentially hostile crossexamination which will oftentimes involve an attack on their character and choices. That is why so many of these cases resolve in plea deals to amended charges. But even plea negotiations are tricky. If the defendant is not a U.S. citizen, there are virtually no options that won’t carry the substantial risk of significant immigration consequences. Sex offender registration requirements are statutorily prescribed, so any plea to a sex offense necessarily requires an offender to be placed on the sex offender registry. And, most importantly, negotiating the amount of time an offender spends in prison is a delicate balance. Oftentimes there is, understandably, no amount of prison time that feels sufficient for such a heinous act. Parents never want anything less than life in prison for a perpetrator who has violated their child. But it is a rare case when a defendant would plead guilty to an offense and agree to serve a life sentence. Generally, in order to obtain a life sentence in a sexual assault case involving a child, the prosecutor is going to have to take the case to trial and win; which means the child will have to testify and be subject to cross-examination. And that will happen in a courtroom full of strangers, with the defendant sitting in the courtroom. That is quite a lot to ask from a traumatized child. As a result, parents are often tasked with making the difficult decision about whether to seek a reduction for an offense from one which carries a life sentence in order to protect their child from having to testify.

These cases continue to occur, for any number of reasons. What we can do to ease prosecution of these offenders is educate ourselves about the reality of sexual assaults. They can occur to anyone, by anyone. Clothing or intoxication are not invitations to assault. Every victim reacts differently – some cry, some yell, some shut down completely. There is often no witness, no biological evidence and no injury. However, despite these challenges, the Franklin County Prosecutor’s Office and our affiliated service providers successfully continue to assist victims and their families and to get justice and help these individuals start to heal.

Kacey Chappelear, Esq.

Franklin County Prosecuting Attorney’s Office kschappe@franklincountyohio.gov

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Fall ‘17: Haunting Legal Issues

What the heck is a Venmo? Who is Zelle?

Don’t Be Afraid of Peer-to-Peer (P2P) Payment Services by jeffrey a. willis No, “Zelle” is not the most popular baby name for 2017. ZelleSM is a peer-to-peer (P2P) money transfer technology service that recently became available in June 2017 and allows customers of participating banks and credit unions to transfer money — in immediately available funds — to a third party. Zelle has partnered with most large banks and credit unions and is likely available, or will be available soon, to most of your clients. If your bank has partnered with Zelle, you can send money at the push of a button to anyone with a cell phone number or email address regardless of whether that person uses the same bank or credit union as you. Perhaps you have heard

of Chase QuickPay? Well, Chase QuickPay uses Zelle technology to transfer funds electronically to and from one’s Chase bank account. In addition, you have peace of mind knowing you have the same webbased security provided by your bank since you must log-in to your bank app or website to use it. The greatest benefit of accepting money through Zelle is that your client’s funds are available almost immediately, assuming your client is using an account at a participating bank. The biggest drawback is that credit cards cannot be used. Another P2P payment option is Venmo, which has been around longer than Zelle and is owned by PayPal (the precursor to modernday P2P payment services). Venmo is similar to Zelle in that it is a P2P payment provider but, unlike Zelle, Venmo incorporates social media features. One benefit of accepting payments through Venmo is that

your clients can pay with a credit or debit card, in addition to their bank account. Further, if your client is paying with a credit card, they are charged the transaction fee of 3 percent — not you. This is an attractive feature in using Venmo over other merchant payment servicing companies, like LawPay, where you are charged a transaction fee for credit card payments. One disadvantage, however, is that funds transferred through Venmo are not available immediately, at least for now. It has been my experience that the transferred funds take one to two days to become available to the recipient. One major concern with Venmo being used in the legal profession, however, is whether the social media aspects of its payment platform, including comments that are posted for others to see, result in a violation of an attorney’s ethical obligations (e.g., Rule 1.6 of the Ohio Rules of Professional Conduct—

One benefit of accepting payments through Venmo is that your clients can pay with a credit or debit card, in addition to their bank account. 42 | Columbus Bar L aw yers Quarterly Fall 2017

confidentiality of information related to the representation of a client). When using Venmo, you can choose either to sync Venmo with your contact list, which will automatically friend those contacts that use Venmo, or you can invite people to be your friends. When initiating a transfer, you can add a comment such as “Go Cavs” or “Payment of July legal invoice.” Not only can you see these comments, in addition to seeing the names of the payer and payee, all of your friends and your client’s friends can see that information as well. To avoid potential ethical violations, including the impermissible disclosure of client information without informed consent, it is imperative for attorneys accepting payments from clients to update Venmo’s privacy and sharing features so that only the participants to the transaction (payor and payee) can view transaction details and only you have the ability to share the transaction details — not your client. If you choose to use either of these P2P service providers (or other providers such as Snapcash, Square Cash or Popmoney) make sure you update the privacy and sharing features to avoid potential ethical violations. If a client sends you money using a P2P payment service in which you have not created an account, check to see if you are able to make all past transactions private – Venmo has this feature. Also note that these P2P payment providers put caps on the amount of money that can be transferred per transaction, usually between $5,000 and $10,000. Also, similar to accepting money through your credit card processing provider, it is imperative that your client’s funds are going into the proper bank account. Only earned fees are permitted to be deposited into your business operating account, while funds representing unearned fees (e.g., retainers and advanced fees) have to be deposited directly into your IOLTA account. Unfortunately, you can only choose one active account where funds sent through Zelle get deposited. Venmo gives you a choice of multiple accounts. In order to avoid these funds being deposited into the wrong account, you can choose either to use your IOLTA account for all deposits from Zelle and Venmo (which would require you to transfer earned fees into your operating account), or you can use your operating account for Zelle and manually switch to your IOLTA account to receive unearned fees when you know a payment is coming. This is one disadvantage compared to LawPay, which allows for deposits to be separated into your IOLTA and operating accounts without any initial commingling of funds.

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Since these P2P payments services are fairly new, especially Zelle, I have found it helpful to update my invoices to my clients with information on where they can make these P2P payments to me – maybe you will choose to do so, too. In summary, Zelle and Venmo can be great payment options for your clients. I have found that these transactions significantly reduce the time it takes to get paid and the administrative time associated with keeping record of, and depositing, checks sent in the mail. These P2P services are also helpful if a client needs to send you money right away. Plus, both have no monthly fees to use their services. Please be sure, however, to update the privacy and sharing features so that only you and your client can view transaction details and only you have the ability to share the transaction details.

Jeffrey Willis, Esq.

Willis The Firm Legal Services, LLC jeff@willisthefirm.com

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Fall â&#x20AC;&#x2DC;17: Haunting Legal Issues

Simply Obsessed: What Makes a Stalker? by Stephen Steinberg As a Columbus City Prosecutor, I have prosecuted numerous criminal cases over the past thirteen years that involve stalking. Additionally, being a prosecutor offers a clear view into many weird and creepy stalking situations that my colleagues are prosecuting. The examples I give below are just a sampling of the spookier stalking behavior that I, or my fellow prosecutors, have encountered. One stalker waited in the bushes of his former girlfriendâ&#x20AC;&#x2122;s house after having texted her a mix of pleading and menacing messages. Another wrote two long novels about his former girlfriend, casting himself as an aggrieved hero and his girlfriend as a seductive villainess; then he contemplated writing a third. Another stalker faked his own death, sent funeral notices to his victim, a woman he wanted to date, and faked correspondence from his sister informing the victim that a puppy would be sent to a kill shelter if she failed to appear at his funeral. When I learn about these cases, I ask myself why stalkers are behaving this way: what are the goals that this behavior is attempting to accomplish; what were the initial motivations for the behavior? I can never answer this satisfactorily, and creepy human interaction always baffles me. Experts, however, do classify stalker behavior by motivation and goals.

Pamela Kulbarsh, a psychiatric nurse who has worked with law enforcement, authored an article on Officer.com, in which she describes three types of stalker obsessions: the simple obsessional stalker, the love obsessional stalker and the eroto-manic stalker. A simple obsessional stalker usually knows his victim well. Frequently, this victim is a former spouse, intimate partner, co-worker or even boss. Mending the relationship or exacting revenge for a perceived wrong motivates a simple obsessional. By contrast, a love obsessional stalker does not know their victim well. These stalkers develop a love obsession or fixation on their victims. A love obsessional is motivated to make the victim aware of their existence and to make the victim fall in love with them. An eroto-manic stalker deludes him/herself into believing a victim returns their love. The love contemplated is not limited to erotic love, but frequently some higher spiritual love. An erotomanic often believes the victim is their perfect match. The former boyfriend hiding in the bushes was a simple obsessional stalker who had also sent text messages in which he had alternately pleaded for reconciliation, threatened retribution and catalogued the victimâ&#x20AC;&#x2122;s wrongs. The stalker was seeking to mend the relationship and exact revenge for the fact that the victim had left the relationship.

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Likewise, the stalker who had written two novels about his victim was also simple obsessional. In both novels, the stalker portrayed his victim as a conniving seductress who had bled the protagonist, a laughably disguised version of the stalker, of both his money and his vitality. The novels, which were no more than lists of relationship transgressions of the victim, were undoubtedly written to embarrass and belittle the victim. And like the previous two stalkers, the one who faked his own death is also simple obsessional. He wanted to punish his victim for refusing to advance their relationship by convincing her he had killed himself and orphaned a new puppy over her. In the criminal cases our office prosecutes, stalkers’ conduct often generates convictions for any three offenses: menacing by stalking, violation of protection order or aggravated menacing.

Although each of these offenses carries a maximum of six months in jail, stalkers generally do not serve this time initially. Rather, negotiation frequently results in an agreement between both defense and prosecution for two years of probation with numerous conditions selected to attempt to prevent the continued behavior. Such probation conditions, which always include a provision that specifically prohibits the stalker from contacting his victim, are especially necessary in the cases involving simple obsessional stalkers. In these cases, the prosecution’s primary goal is to keep the stalker away from his victim. Another method of classifying stalkers by motivation and goal divides stalkers into five categories. This analysis is part of a stalking risk profile developed by Paul Mullen, Michele Paté and Rosemary Purcell, which you can view on www.stalkingriskprofile.com. Continued on page 46

One stalker waited in the bushes of his former girlfriend’s house after having texted her a mix of pleading and menacing messages.

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In the criminal cases our office prosecutes, stalkers’ conduct often generates convictions for any three offenses: menacing by stalking, violation of protection order or aggravated menacing. Continued from page 45 The five categories listed are the rejected stalker, the resentful stalker, the intimacy-seeking stalker, the incompetent suitor stalker and the predatory stalker. A rejected stalker victimizes someone with whom they were in a close relationship, which closely resembles a simple obsessional stalker. The victim may be a former intimate partner or close family member. A rejected stalker is initially motivated by the possibility of reconciliation or to exact revenge. Frequently rejected stalkers appear to want both resolution of the relationship and revenge for perceived wrongs. In some cases, the stalking behavior serves either as a substitute for the relationship or as method to salvage the stalker’s self-esteem. A resentful stalker feels mistreated or that he/she is a victim of some form of injustice or humiliation. A resentful stalker’s victims are generally strangers or acquaintances of the stalker. A resentful stalker is initially motivated by a desire for revenge, but the motivation often changes to maintaining the sense of power and control the stalker feels over their victim. A resentful stalker is often suffering from a mental illness. An intimacy-seeking stalker is generally lonely and without a close confidante. Intimacy-seeking stalkers are motivated to establish an emotional connection and intimate relationship with their victims. The stalking behavior may continue to be motivated by the gratification that comes from the

belief that the stalker is closely linked to another person. Like a resentful stalker, an intimacy-seeking stalker may suffer from eroto-manic delusions about his victim, or the false belief that the stalker and the victim are in a relationship. An incompetent suitor is a stalker who acts out of a desire for a short-term sexual relationship, and often stalks for a brief period. In cases of persistent stalking of this nature, the stalker is often unaware of the victim’s distress, possibly because of a cognitive limitation or a social disability. Finally, a predatory stalker is motivated by the desire to satisfy a deviant sexual urge. Often, a predatory stalker is a voyeur of a sexual assailant attempting to obtain information about a victim to set up a sexual assault. A predatory stalker generally enjoys the sense of power and control that comes from stalking a victim. The three cases cited above are all rejected stalkers. All three had revenge as a motivation; at least two, the guy in the bushes and the novelist, wanted both some form of reconciliation and continued stalking to substitute for the lost relationship. Although the cases that come most readily to mind are all either examples of a resentful stalker or a simple obsessional stalker, I am aware of cases that fit the other descriptions. A colleague prosecuted a man who believed he had a complete spiritual connection with the seventeen-year-old daughter of a high school

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classmate. The stalker began to appear often at the church where his victim attended with her family. Soon the stalker would send the girl messages about their “destiny.” Eventually, he showed up in the kitchen of her family home to warn her of an impending spiritual crisis. This stalker meets the description of both an eroto-maniac stalker and an intimacy-seeking stalker. The stalker’s messages to his victim along with his utterances in her family’s kitchen suggested he believed his connection to his victim was spiritual rather than merely erotic. Although I accept the stalker classifications presented by the behavioral experts, I wonder constantly what stalkers were thinking. Perhaps it is insanity to attempt to impose rationality on behavior that is fundamentally irrational, but stalker conduct seems to make sense only in the context of the most harmful motivations. Specifically, of the three rejected stalkers discussed earlier, two clearly wanted both reconciliation and revenge. Certainly, the fear and pain their actions caused their victims eliminated the possibility of reconciliation. Related to the lack of self-awareness is the lack of empathy. The weird creepiness of these stalkers’ behavior demonstrated a complete disregard for the feelings of their victims, who were all upset and terrified.

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gysegemlegalnurseconsultant@gmail.com (937) 243-3039 And perhaps the reason I find stalking behavior difficult to understand is that the behavior is irrational; it comes from the confluence of the lack of empathy and self-awareness. But this irrationality, the apparent disregard for others’ perception and feelings, combined with the dissonance between a rational person’s goal and a stalker’s tactics, makes stalking creepy and spooky. And generally incomprehensible.

Stephen Steinberg, Esq.

Columbus City Attorney, Prosecutor Division sjsteinberg@columbus.gov

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Life Outside the Law

Addiction Stabilization Center May Provide

Welcome Relief BY hon. david e. cain The frightening, expensive and frustrating cycle of an addict overdosing on heroin and being sent to the hospital only to overdose again is behavioral healthcare’s currently exploding crisis. No class of society is immune as the plague confounds everyone: from families to emergency responders, health care providers to the judicial system, to the bulging correctional facilities where people get even sicker. If an overdose is discovered and 911 is dialed, emergency personnel rush to the scene and are likely to administer the overdose reversal drug Narcan, or Naloxone, and then transport the patient to the nearest hospital emergency room (ER) for treatment. The drug abuser is then dismissed from the crowded ER as soon as the emergency has passed – or the coroner’s office arrives. Unfortunately, many survivors turn back to the addictive drug as soon as they get home or turn to burglary to feed their addiction. Sometimes it just goes on and on. Sometimes the drug abuser becomes an abuser of the rescuer: “You killed my high.” Sometimes, others say, “Let them die. They did it to themselves. We owe them nothing.” Families may blame doctors who prescribed the first pain pills. A politician may blame the drug company that manufactures them. But nothing is going to work unless the addicts, some who turned to heroin because they couldn’t afford the pills, seek help. A shortage of admission capacity in residential treatment facilities is now a huge problem. If an addict hits bottom

and is ready for treatment, we can’t just say, “Hold that thought” while traditional treatment programs fall further behind. But there’s still hope, a chance to reduce the cycles: a plan to lower the number of Narcan administrations by first responders that have risen to 10-15 times a day in the city of Columbus. The idea for an Addiction Stabilization Center came from the Franklin County Opiate Task Force under the leadership of David Royer, chief executive officer of the ADAMH Board of Franklin County. Royer presented the concept in May to Shawn Holt, the fairly new President/CEO of Maryhaven. Inc. The center opened within four months, the first of its kind in the country. Maryhaven, the largest drug treatment provider in central Ohio, is operating the Addiction Stabilization Center, giving EMS and police a 24 hours, 7 days a week place to transport people who have overdosed. That place is Admission and Triage. The triage has five beds and provides emergency treatment to patients for a maximum of 23 hours; it’s the first of three components at the center. The second is detox with 20 beds and a length of stay between three and seven days. The third is long-term residential with 30 beds and a length of stay of at least 14 days. Holt’s hopeful prediction is that 65 percent of people in triage will elect to go for further treatment, 75 percent of those admitted to detox will choose to continue and 80 percent in long-term residential will complete the program successfully. Outside of Admission and Triage, Maryhaven’s beds are on the fourth floor that formerly housed some of its administrative offices. Originally, it was filled with hospital rooms that are still there. Although a little drab, the floor was converted with little expense beyond the creation of a nurse’s station near the centrally located elevators.

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The facility at 1430 S. High Street has another tenant, Select Medical, that specializes in acute chronic care, and a couple vacant floors. It is in a zip code with the highest number of overdoses. While negotiating for a longer lease, [Shawn] Holt (President/CEO of Maryhaven) was asked by a concerned owner of the building what the addicts look like. “They look like you and I,” he responded.

However, the greater challenge was the need to recruit, hire and train 100 new staff members, including 30 registered nurses. That task went to Andrew Moss, past manager of medically assisted services at Maryhaven and site director at the new center. Meanwhile, Holt was meeting with Franklin County EMS and the City Attorney’s Office to contract for around-the-clock paramedic staff at Triage and meeting with police, fire and sheriff personnel to establish protocols for communication. Royer worked to leverage all eligible federal, state and local resources to finance the program which adds about $5 million to Maryhaven’s budgets for fiscal years 2017 and 2018. The capital budget for the new center is $500,000; the rest is for operational expenses which total about $6.5 million for the two fiscal years. The gap will be filled by “repurposing” funds in Maryhaven’s existing 2017 and 2018 fiscal year budgets, according to Maryhaven CFO Robert Davis. The process to establish the center moved with remarkable quickness, no doubt aided by the public’s awareness of how fast and wide the opiate plague is spreading. On the average day in Ohio, six people die of overdoses. Statewide, there were more than 4,000 heroin (or its synthetic relatives) overdose deaths last year, with Franklin County leading the way. During the first half of this year, overdose deaths in the county increased by 66 percent. Beyond the emergency treatment, Maryhaven will concentrate on Motivational Interviewing, Medication Assisted Treatment and Peer Support Coaching. Recent research indicates that the highest success rates (50 to 60 percent) is accomplished by giving opiate addicts a traditional 12-step program, like Alcoholics Anonymous, on top of medication such as methadone, buprenorphine or vivitrol. The facility at 1430 S. High Street has another tenant, Select Medical, that specializes in acute chronic care, and a couple vacant floors.

It is in a zip code with the highest number of overdoses. While negotiating for a longer lease, Holt was asked by a concerned owner of the building what the addicts look like. “They look like you and I,” he responded. Holt became the new CEO at Maryhaven last August to succeed Paul Coleman, who took Maryhaven from a three-day alcohol program in an old tuberculosis hospital to a $25 million-a-year operation in a new, everexpanding facility at 1791 Alum Creek Drive. During my nearly 25 years as a Maryhaven board member, I have never seen the budget jump so much, so quickly. With the addition of the S. High St. program, the total budget for fiscal 2018 will be nearly $38 million, including operations in Delaware, Morrow, Marion, Union and Crawford counties. Judges Lisa Sadler, Charles Schneider and Guy Reece are also longtime board members. Holt formerly ran the St. Vincent Family Center. At his first board meeting last year, he asked if board members had any special requests. The response was that the waiting time for admission to detox needed to be reduced – from one to two weeks or longer with a daily waiting list of 10 to 100 people. Within a couple of months, 100 percent were being admitted within one week and 52 percent within one day. The waiting list is now down to 10-15 people. With people running programs like the one at Maryhaven, Ohio may be able to reverse the cycle caused by this horrific addiction.

Hon. David E. Cain

Franklin County Court of Common Pleas David_Cain@fccourts.org

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Life Outside the Law

Lawyers with Artistic License: Rosemary Ebner Pomeroy BY HEATHER G. SOWALD Rosemary’s life has always been accompanied by music. It all began at age 7 when a Baldwin piano was delivered to their house: Rosemary quickly volunteered to be the sibling who took lessons to learn the intriguing instrument. She’s been tickling the ivories ever since. Interestingly, her piano lessons also led her to her lifelong hobby of needlepointing. During her teen years, while waiting on her parents to pick her up after piano lessons, her teacher suggested she use that time to needlepoint. Despite her initial reluctance, she quickly embraced this hobby of creating artwork for her home and friends. Decades later, in her unending quest to master the art of piano performance, Rosemary continues to take piano lessons with the goal of playing even

Rosemary is already planning for her future retirement from practice. She reports that she has been developing a repertoire of 40 popular musical pieces so she can try out for her fantasy career of being the Von Maur Department Store piano player.

harder and more complicated pieces. Her current teacher is an Otterbein College professor who plays duets with her; a method that assists Rosemary with her performance rhythm. Rosemary admits to purchasing and performing not only classical music pieces, but also other genres, such as television themes, cowboy music, college fight songs, Beatles tunes, pop music and, especially while her children were young, Disney tunes. She’s sure that she played Winnie-thePooh’s theme music more than 1,000 times when her son and daughter were children! Fortunately, they’re grown now: her son, Michael, is with Ernst & Young, and Sarah is a D.C. lawyer and piano player. Rosemary practices about an hour every day, as she proudly relates, “on her 6-foot black Baldwin grand piano.” On weeknights, she plays the piano while her husband cleans up after the dinners she’s cooked. Rosemary met her husband, Mark Pomeroy, in law school in Detroit and began practicing there in 1988. After they moved to Columbus, she focused her career on estate planning, probate, adoption and assisted reproductive technology law, and has primarily been a solo practitioner. Mark is an inhouse attorney with J.P. Morgan Chase, handling I.P. and technology issues; he is also interested in music and the arts. Mark and Rosemary both sing in their St. Peter’s Church choir and have a history of singing in competitive a cappella barbershop quartet groups.

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Rosemary was an active committee member for the project to convert the old Thomas Worthington High School into an arts center, she served as a Girl Scout troop leader and served for two two-year terms on the CBA’s Board of Governors. She also created and has, so far, been the sole Chair of the CBA’s E.A.G.L.E. (Extraordinary Attorneys Got Legal Expertise) Committee, which allows “experienced” attorneys to meet socially. Rosemary believes that even if one can’t create, one can at least appreciate the arts. She also encourages people to learn about music and the arts through her blog she’s named “10,000hours88keys,” found at: rosemaryebnerpomeroy.blogspot.com. Rosemary is already planning for her future retirement from practice. She reports that she has been developing a repertoire of 40 popular musical pieces so she can try out for her fantasy career of being the Von Maur Department Store piano player.

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com

Needlepoint by Rosemary Ebner Pomeroy

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Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER Verdict: $22,832.51 (Reduced to $11,416.26 upon finding of 50 percent contributory negligence.) Automobile Accident. On September 6, 2012, Plaintiff Danielle M. Tasner and Defendant Linda L. Lowe were headed in opposite directions at an intersection on Little Turtle Way. Ms. Tasner attempted to turn right while Ms. Lowe attempted to turn left. As the two vehicles were turning, Ms. Lowe’ vehicle struck the driver’s side of Ms. Tasner’s vehicle. Ms. Tasner claimed that she suffered injuries to her head including a concussion, post concussive syndrome and later, occipital neuralgia as a complication of the concussion. She suffered from chronic headaches for which she underwent radiofrequency ablation therapy and nerve injections. She also had pain on the right side of her chest and lower abdomen from the seatbelt. Ms. Tasner alleged that Ms. Lowe was liable for the accident by failing to maintain her lane when turning and failing to keep a proper lookout to avoid the accident. Ms. Lowe denied liability and claimed that Ms. Tasner was the one who failed to maintain her lane and failed to keep a proper lookout. She also denied that the accident could have caused the extensive injuries claimed by Ms. Tasner. The jury awarded Plaintiff $15,221.67 in past economic damages and $7,610.84 in

past non-economic damages for a total of $22,832.51, but found that Ms. Tasner was 50 percent responsible for the accident, thereby reducing her recovery to $11,416.26. Medical Specials: $107,258.80 ($45,000 accepted by medical providers). Lost Wages: over $100,000.00. Last Settlement Demand: $100,000.00. Last Settlement Offer: None. Length of Trial: three days. Plaintiff’s Experts: Steven Severyn, M.D. (anesthesiology). Defendant’s Expert: None. Counsel for Plaintiffs: Kathy A. Dougherty. Counsel for Defendant: Kelly N. Grigsby. Judge Charles Schneider. Case Caption: Danielle M. Tasner, et al. v. Linda L. Lowe, et al. Case No. 12 CV 014703 (2016).

Defense Verdict. Automobile Accident. On April 30, 2011, Plaintiffs Karie Gallegos, 46, and Paul Gallegos, 47, were rear seat passengers in a vehicle that was rear-ended by Defendant Brian Barnett. Plaintiffs claimed that Mr. Barnett was looking at his GPS just prior to the collision and failed to maintain an assured clear distance. Ms. Gallegos felt pain in her neck, left shoulder and lower back after the accident. She went to her primary care physician and then had physical therapy for four months following the accident. She was involved in a second accident in May 2012. She was diagnosed with sprains of her cervical, thoracic and lumbar regions

52 | Columbus Bar L aw yers Quarterly Fall 2017

and told that the second accident exacerbated the symptoms from the April 2011 accident. She was referred to Jason Dapore, D.O., a sports medicine physician, and continued to receive treatment from him for the next several years. Mr. Gallegos experienced a visual disturbance in his left eye and pain in his right shoulder after the April 2011 accident. He underwent physical therapy and his symptoms resolved. Mr. Gallegos settled his claim against Mr. Barnett prior to trial. Mr. Barnett did not dispute that he was responsible for the accident, but argued that Ms. Gallegos suffered only minor injuries in the accident and that her treatment was related to the second accident. The jury concluded that Mr. Barnett’s negligence was not the proximate cause of Ms. Gallegos’ injuries. Medical Specials: Approximately $25,000 ($15,700 after reductions). Lost Wages: None. Last Settlement Demand: $40,000.00. Last Settlement Offer: $12,500.00. Length of Trial: two days. Plaintiff’s expert: Jason Dapore, D.O. Defendant’s Expert: None. Counsel for Plaintiff: Curtis Fifner and Sara C. Nichols. Counsel for Defendant: David L. Simms and Rachel L. Ferrara. Judge Patrick Sheeran. Case Caption: Karie Gallegos, et al. v. Brian J. Barnett. Case No. 15 CV 1613 (2016)

Defense Verdict. Automobile Accident. On October 15, 2009, Plaintiff Kim McQueen attempted to cross Broad Street outside of a crosswalk. She crossed the eastbound lanes and waited at the center line for approximately 10 seconds for the westbound traffic to clear. Traffic was stopping to allow her to continue across the street when Defendant Glenn Perry came upon Ms. McQueen. He attempted to stop to avoid striking her, but it was raining and his vehicle slid into her, pushing her to the ground. Ms. McQueen’s left shoulder AC joint separated and she suffered a strain and nondisplaced fracture of the sacral ala, the triangular bone between the hip bones. She was transported to Grant Medical Center where she remained for two days before being discharged to a rehabilitation facility. She remained at the rehabilitation facility for another 30 days. Plaintiff argued that she had established the right of way and that Mr. Perry had a duty to control his vehicle and look out for pedestrians. Mr. Perry argued that Ms. McQueen’s negligence in crossing outside a crosswalk was the sole cause of her own injuries. Medical Specials: $41,368.99 in past medical specials (reduced to approximately $10,000) and $50,000 in future medical specials. Lost Wages: Not itemized. Last Settlement Demand:

$100,000.00. Last Settlement Offer: None. Length of Trial: two days. Plaintiff’s Expert: Robert Corn, M.D. (orthopedic surgeon). Defendant’s Expert: none. Counsel for Plaintiff: Anthony Palombo. Counsel for Defendant: Belinda S. Barnes. Magistrate Pamela Browning. Case Caption: Kim McQueen v. Glenn C. Perry, Case No. 14 CV 9454 (2016).

Defense Verdict. Medical Malpractice. In November 2011, Plaintiff Mark Morgan, 40, went to Mount Carmel Hospital for a hip replacement surgery. The surgery was performed by a resident under the supervision of an attending physician. No complications were encountered during the surgery. However, Mr. Morgan was later found to have damage to his sciatic nerve. He went on to develop reflex sympathetic dystrophy, a complex regional pain syndrome. Mr. Morgan also claimed that he sustained an injury to his chest. Mr. Morgan sued the resident and attending and Mount Carmel Health Systems. He dismissed the physicians before trial but pursued his claims against Mount Carmel, as the entity responsible for the resident’s negligence. Plaintiff’s theory was that the nerve damage was caused by a hematoma that he developed post-operatively and that the resident failed to properly monitor him and diagnose the hematoma.

He also argued that he sustained the injury to his chest because the surgeon failed to properly pad him before surgery. Mount Carmel denied that Mr. Morgan had a hematoma and argued that his nerve damage was caused by stretching or manipulation of the nerve during surgery, which was a known risk of the procedure and did not indicate that the surgeon fell below the standard of care. They also argued that Mr. Morgan was comparatively negligent by failing to treat his reflex sympathetic disorder. Before trial, the parties stipulated whether Mount Carmel was responsible for the negligence, if any, of the resident surgeon and that, if there was negligence, it was only by the resident surgeon and occurred in the immediate post-op period. The jury concluded that Mr. Morgan did not have an expanding hematoma following surgery and that the resident surgeon appropriately padded Mr. Morgan. Last Settlement Demand: $175,000.00. Last Settlement Offer: None. Length of Trial: five days. Plaintiff’s Expert: Steven R. Graboff, M.D. (orthopedics). Defendant’s Expert: Thomas J. Ellis, M.D. (orthopedics). Counsel for Plaintiff: Curtis M. Fifner. Counsel for Defendants: Vincent J. Lodico. Judge Richard Sheward. Case Caption: Mark Morgan v. Mount Carmel Health System, et al., Case No. 13 CV 711 (2016)

Continued on page 54

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2016 Year in Review Based on data collected from the Franklin County Clerk of Courts Office, the following statistics have been compiled, which provide a snapshot of civil jury trials for 2016: Juries rendered verdicts on 37 civil actions in 2016. By comparison, there were 40 in 2015, 65 in 2014, 43 in 2013 and 59 in 2012. The highest verdict was $24,880,000.00 in a case of assault brought by a victim of domestic violence. The defendant was not represented and did not participate in the trial. The verdict was later reduced to $3,490,000.00 upon application of the statutory caps. The majority of the cases tried were either automobile accident (13) or medical malpractice cases (10). The remaining trials involved workers’ compensation claims, consumer or commercial disputes and one employment discrimination case.

Auto Accident Jury Trials, 2016 • Eight of the 13 auto accident trials ended in plaintiff’s verdicts. • The damages awarded to plaintiffs ranged from $3,087.05 to $10,988,793.11.1 In two cases, the damages were reduced based on findings of contributory negligence. In one case, the damages were stipulated. After removing the highest and lowest verdict, the mean verdict was $10,878.92. The median verdict was $17,826.83. • The non-economic damage awards ranged from $0 to $10 million and 0 to 91 percent of the total verdict. With the highest and lowest verdicts removed, the range of non-economic damages awards dropped from $500 to $7,610.84 and 16 to 44 percent of the total verdict.

By comparison: Auto Cases

2016

2015

2014

2013

2012

# of jury trials

% of all civil trials

35%

33%

37%

35%

39%

% Plaintiff’s verdicts

62%

78%

75%

60%

83%

Range

$3,087.05$10.9M

$1,655$85K

$1,100$140K

$4,500$230K

$3,700$140K

Mean

$1,383,118.19

$29,130

$26,146

$47,957

$36,353

Median

$17,826.83

$16,734

$12,415

$15,143

$12,000

The case that resulted in the $10.9M verdict is still in litigation on post-trial motions.

Medical Malpractice Jury Trials, 2016 • Ten medical and dental malpractice cases were tried to verdict in 2016. • In five of those cases, the plaintiff prevailed. None of the prevailing claims involved wrongful death. However, all of the prevailing plaintiffs alleged some degree of permanent injury. • In four of the five cases resulting in plaintiff verdicts, the jury award for non-economic damages exceeded the statutory cap. • Of the five cases that resulted in plaintiff’s verdicts, four are still being litigated on either post-trial motions or appeal.

By comparison: Monica L. Waller, Esq.

Lane Alton & Horst mwaller@lanealton.com

Med Mal Cases

2016

2015

2014

2013

2012

# of jury trials

% of all civil trials

27%

28%

25%

19%

% Plaintiff’s verdicts

50%

19%

62%

* The list of civil trials was derived from a list of cases for which jurors were requested from the Franklin County Clerk of Courts Office.

54 | Columbus Bar L aw yers Quarterly Fall 2017

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