Columbus Bar Lawyers Quarterly Winter 2015

Juries have many alternatives to choose from when they don’t get the facts.

When faced with a problem, the human imagination is a tool of almost limitless power. However, when a case comes to court, the less left to the imagination, the better.

At S-E-A, we’ve been investigating and revealing the cause of accidents and failures since 1970.

S-E-A has the capabilities and physical resources to recreate accidents, fires and many other occurrences under simulated conditions to arrive at replicable and accurate answers that will stand up to serious scrutiny, as well as any “courtroom creativity.” S-E-A’s investigative and scientific expertise has been an incredibly powerful tool in the field, the lab and in court for more than 40 years. Calling us in is a great choice for you as well as the 12 people trying to make the right decision.

Call Jason Baker at 800-782-6851 or visit www.SEAlimited.com for more details.

©2014

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Winter 2015 Columbus Bar Lawyers Quarterly

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Winter 2015 Columbus Bar Lawyers Quarterly

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President’s Page

Do Americans get their day in Court?

By Keith W. Schneider

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Every attorney knows the saying — in America, everyone is entitled to his or her day in court. But how literal must we take “day in court” to mean?

The Columbus Bar Association strives to follow and understand these trends. After all, understanding the changes to the legal system is the first step in continuing to help people in need. As prominently displayed on the Jefferson Memorial in Washington, D.C., Thomas Jefferson once said:

The Ohio Supreme Court recently issued its 2013 Statistical Report with a conclusion that, frankly, is not surprising: cases in Ohio just are not going to trial. Of course cases are going to trial, just not at the rates some of us may recall. According to the 2013 Statistical Report, only 2% of criminal cases and 1.2% of civil matters go to trial. This is nearly half of what it was just ten years ago. (In 2004, the rate of cases going to trial was nearly 4% for criminal cases and just more than 2% civil.) This is not new; however, the decline of cases going to trial has been at least a 5-year trend.

So what is the cause of this trend, and what does it mean for lawyers? More cases are settling out of court, in some respects, means that clients are enjoying a more economical and more effective result. Hopefully, this translates to a better client experience.

The rise of alternative dispute resolution also contributes to this trend. Last year, the Board of Governors adopted the report issued by our Task Force on ADR, identifying seven recommendations the CBA can undertake to help advance the use of ADR. The recommendations range from increasing awareness and education about the benefits of ADR, to providing more public access to information about ADR. The Task Force, through the ADR Committee of the Columbus Bar, has been hard at work delivering on these recommendations.

Finally, trials take time, and this time is dictated by the court, not the client. Out-of-court settlement, on the other hand, allows the attorneys and the clients to work together to set a different timeframe more conducive to the client’s needs. Of course not all cases settle out of court; indeed, some cases simply cannot settle just by the nature of the case.

By getting cases off of the docket in a timely fashion due to settling out of court, courts in Ohio are more able to clear dockets and move cases along in a timelier fashion.

This trend supports another trend identified in the Ohio Supreme Court’s 2013 Statistical Report: comparing all cases of all types, the time from the filing of an action to final disposition, on average, is becoming a more efficient process (2009 revealed a 131-day mean while 2013 featured a 124day mean).

These statistics are not without their downfalls and controversies, of course, but thanks to reports such as these, Ohio’s courts are able to allocate resources appropriately and effectively, which in turn creates a more efficient legal system overall.

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.”

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Trends follow human progress, and the legal system is no different. To help, to educate, and to expand, we must look forward and not waver in nostalgia of the days of trials gone by.

Going back to the opening question, then, do Americans still get their day in court? The important thing is that clients feel as though they are heard and that justice is served. Admittedly, some would argue that the absence of a jury or bench trial is in itself, an injustice. Fewer trials, however, does not necessarily equate to lesser justice; rather, that our profession has progressed in a manner that delivers a more efficient delivery of justice.

Keith W. Schneider Maguire & Schneider kwschneider@ms-lawfirm.com

CBA’s Health Insurance Exchange Are You Prepared for Open Enrollment?

By Char Bigelow

Open enrollment looms for many of us again, and if you’re like most, you are looking forward to it about as much as a trip to the dentist. Make no bones about it – choosing health insurance is no easy task!

Here’s a reminder of some key things consumers should consider on the way to making the best choice for them.

Consider Your Likely Costs – Most people should focus on their “Likely Cost” under each plan – in other words, what you would pay for your premium plus care you expect to receive throughout the year. On the CBA’s Smart Choices™ platform, we’ve done the math to provide an estimate (using what you’ve told us about your likely healthcare use) of how much each plan might cost you out-of-pocket for care, based on how it pays benefits.

In addition, if you think you will use particular services (e.g., chiropractic care), make sure you know how each plan covers these services.

Consider Your Unexpected Costs – You should also look at the “Maximum Potential Cost” for any plan(s)

Char Bigelow Char.bigelow@willis.com you are considering. This is basically the cost of premium plus the plan’s out-of-pocket maximum. Most people won’t hit this number unless something serious happens, but you should consider whether and how you would handle it if you did.

Is Your Doctor In-Network? – If keeping your current doctors is important to you, check the Provider Network for any plan(s) you are considering. Going out of network for care is usually more expensive than staying in-network.

If you aren’t wedded to your current doctors, however, you may be able to save money on your insurance by choosing a lower-cost plan with a different network.

And if you are still unsure of your decision, keep in mind that there are offline sources of help, too. We have a dedicated Call Center staff that is well qualified to help our members navigate the decision-making process and answer specific questions about plan options. Log on today at www.cbalaw.org.

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From Carrier Pigeons to Client Outreach: the Strategy Behind our Communications

By John J. Tufano Carrier pigeons dispatched messages across the battlefields for ancient Persians and Romans. To transmit news or warn of impending danger, Native Americans would relay smoke signals. The electrical telegraph allowed encrypted messages to jump across the Atlantic Ocean. And now, the Age of the Internet removes geography as a barrier to how far our social networks reach. These are distinct forms of communication, state-of-the-art for their times.

To the legal industry, though - how does a historical snapshot of modes of communication apply? The old-fashioned, even ancient forms, teach us a valuable lesson, one that today’s technology makes quite easy for us to forget. Pigeon post, smoke signals, and telegraphs (despite their electrical component) required a distinct strategy to their messaging.

They were not sent at the near effortless stroke of a key. Their senders and receivers could not slink into autopilot, parroting generic messages in rapid fire. They were purposed, targeted, and intended to generate actions. Lawyers and law firms can realize a distinct advantage in their practices by taking the same strategic approach to communications with clients, employees, and the community.

Build a Strategy Many lawyers and law firms operate from the foundation of a strategic plan. It might include financial models, business development goals, recruitment, even personal achievement ambitions. Some are governed annually, others by quarter.

Every day, though, lawyers and law firms communicate, and rarely does a strategy guide. Almost every interaction with clients, coworkers, and the legal market is an exchange of messages that, when drive by a plan, can help elevate one’s practice in a market saturated with XYZ firms.

Think for a moment about the following example: if a name or firm’s letterhead was removed from a piece of correspondence, would a receiver be able to distinguish its content from the same sent by another? Would the receiver even care to? A communications strategy strips away anonymity and builds an identity. It helps define how and why a lawyer communicates.

It stimulates receivers to latch on, to immediately recognize that their lawyer speaks distinctly to them.

The following highlights a selection of key elements that help steer a communications strategy for lawyers and law firms.

Communication is a Two-Way Road The great Margaret Miller once quipped, “Most conversations are simply monologues delivered in the presence of a witness.” Miller’s thought sounds with a special ring for litigators: we could look to the theater of a witness stand to discuss communications, although that is a conversation for a different day. Common to all forms of lawyer communication, there is a relationship between us and our audience, both engaged in sending, receiving, interpreting, and reacting.

Know Yourself Another core component to a communications strategy, we must first know who we are, our identity - or what we want it to be - among our peers, the community, and our clients. To 6

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say one is “an estate planning lawyer” is a good start, but it does not paint the whole picture.

When I think in terms of an incomplete identity, I envision a basement room of a retail store housing clothing mannequins, heaped in a pile. Eyes wide open, but stiff, bloodless, and indistinguishable. They all have the figure to show the cut of a cloth, the identical figure, and their identity stops then and there. The example is abstract, but it shows that to stand out and truly connect with our audiences, we need to define who we are.

Completing the example, more than just “an estate planning lawyer” his or her identity may be “an estate planning lawyer whose focus is to be a helpful resource to ensure a person’s accumulations in life are distributed exactly as they are intended, who also volunteers on a nonprofit’s finance committee.” Choosing and articulating an identity helps others recognize the personhood in each of us, avoiding the mannequin syndrome.

Know Your Audience Some practices focus on a niche area of law, others a full spectrum of legal services. Knowing who we are and what we provide is further defined by knowing our audience. Addressing client pools, do we try to reach anyone who will need a lawyer?

Do some of us practice in real estate, but target commercial developer clients? Whether new to the practice of law or standing on a 20-year career, a strategic communications plan can help us all learn by periodically asking ourselves about the identity of our audience. There are a number of ways to accomplish this, although arguably the simplest and most precise question to ask is “Whose problems do my skills best solve?” This framing helps us understand exactly what we can do and for whom we can do it.

Translate into Their Language Lawyers suffer from the chronic ailment of speaking in tongues. Medical malpractice case law reads different than the elements of protecting mineral rights, which reads different from the general powers an agreement details for a voting shareholder. These languages (mostly) make sense to those who practice in these areas. It is important to remember that our audiences, our clients, co-workers, judges, are not necessarily as gifted/cursed in these languages.

Translating these tongues into the language of our listeners can transform centuries-old precedent into a living and breathing solution. We obtain knowledge over hours, years, spent reading cases or reviewing corporate filings. And, we want to share that knowledge to show that we can maneuver the legal trappings of realworld problems. However, the legal documents we draft are often written in the legal version of these real-world problems, at least from the perspective of (potential) clients. It is important to tell the story of drafting a contract’s scope of work, for instance, with the awareness that the client might only really care about the contract’s impact on his budget for labor and materials, and how those costs impact his quarterly profit margin.

These core components can guide us to recognize the need for communicating with a strategy in place, the importance of knowing our identity and those of our audiences, and how and why to communicate in ways that resonate with them. There are other components to consider, given each unique circumstance, such as the medium that carries a message and the ability to adjust to the changing needs of others. If there is anything to remember, it is that a communications strategy has enormous value and can prevent our client updates, internal memos, and trade journal articles from the likes of smoke signals sent in the pitch of a windy night, altogether missing their mark.

John J. Tufano john.j.tufano@gmail.com

I Will Remember You

By Kathy Wiesman Twenty-three plus years ago my husband decided to take a new job offer, a great opportunity for him and our family. As a native Texan, I said (in my outside voice), “Really? Ohio?” (There may have been a few more colorful words, but my memory is fuzzy.) After considering some options (divorce, smothering him with a pillow, running away from home, witness protection program), I came to Columbus kicking, screaming and crying.

But now, it’s back to the Lone Star State we go (with some crying).

January is my last month at the CBA. Our decision to retire is bittersweet, as we are excited to start a new chapter in our lives but sad to end another one.

It’s hard to imagine that soon I won’t be coming here. Things will be different, life won’t be the same. In our new journey, I will be missing you more than you could ever know.

Who knew? I have spent some of the best days - and years - of my life here. I love this city and its people. Working at the Columbus Bar Association for the past 19 years has been an amazing experience. We have gone through many changes, but the fundamental principles have remained the same. Every change has been embraced by association members, and the philosophy of our association has been that change makes us stronger, better.

You have helped me grow as a person. Here, I have found not just co-workers but precious friends, and I will leave with some wonderful memories of the time we have spent together. Here, I have had the honor and privilege to work with so many remarkable board members, officers, presidents, committee chairs and members, and to witness the swearing in of both the first female and first African American CBA presidents. There are not enough words to express the thanks and appreciation of these great leaders. Without their passion and undying commitment to devote hundreds of hours of volunteer service, the Columbus Bar would not be the nationally-recognized and admired organization it is today. Without all of you, this Association would not exist. It has been my pleasure to serve it and you.

I’ve had the great fortune to help produce our Columbus Bar Friday newspaper and Columbus Bar Lawyers Quarterly magazine. And, of course, I have been so blessed to have worked beside two dedicated, innovative and simply remarkable executive directors, Jill Snitcher McQuain and Alex Lagusch - my bosses, but more importantly, my friends.

On a different note, anyone who knows me well knows that I am an avid college football fan, a girl who grew up and graduated from college in the Southwest Conference (yes, I am that old). I swore never to root for “those” Big Ten teams, but au contraire. I’ve acquired Ohio State necklaces, earrings, flags, banners, serving dishes, drinkware, tee shirts, sweatshirts, tennis shoes - you get the picture. Trust me, the Buckeyes will always have a presence wherever I am!

So, in the words of Dr. Suess, “Don’t cry because it’s over. Smile because it happened.” I’m trying desperately to embrace that. Thank you all. I feel blessed beyond measure that I got to be a part of such a great team at THE Columbus Bar Association.

Kathy Wiesman kathy@cbalaw.org Winter 2015 Columbus Bar Lawyers Quarterly

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Integrity

By Dianna M. Anelli Integrity. The word conjures up a host of thoughts and meaning. The Oxford English Dictionary defines it as “the condition of having no part or element taken away or wanting; undivided or unbroken state; material wholeness, completeness, entirety.”

The second definition is “the state of being whole, entire or undiminished.” Merriam-Webster defines it similarly as “the quality of being honest and fair” and “the state of being complete or whole.” “Whole” is defined as “having all necessary parts: not lacking anything; not limited in any way; having all necessary parts, elements, or steps.” For example, when a ship’s hull lacks integrity, it takes on water, because the whole is compromised. It is not seaworthy.

The same can be said for the human condition. As humans, our integrity goes in and out all of the time. Indeed, integrity is always on its way out. As humans, our integrity exists in our word. When we keep our word, we are in integrity. When we break our word, we are out of integrity. When using the word “integrity” with regard to the words we speak, the promises we make, the first definition -- that involving morality or ethics -- can be excised from the definition. As humans, once we break our word--which, if we are honest, happens every single day--it often is not a statement as to our honesty or ethics. It is a condition in which we said that we would perform, and we have experienced a breakdown in performance. This may come in the form of failing to do a task in a timely manner, failing to do it in the manner in which it was meant to be done, failure to do it completely, or that there was an expectation that was not met.

With every integrity breach, there is a consequence. That is to say, there is an impact. The impact occurs in at least two ways. There is an impact to the promise breaker, and there is an impact on the person to whom the promise was made.

The impact on the promise breaker often is the listening of her of those to whom the promise was made gets smaller.

The promise breaker is viewed as unreliable. The impact on the individual to whom the promise was made often is an extra burden, which can come in a number of forms. The end result is that there is a separation in relationship between the promise breaker and the one to whom the promise is made. Often this starts with very small, seemingly minor occurrences, such as a failure to be on time.

Given that this happens so often in the human experience, what is one to do? Well, all is not lost. There is a restoration process. It is crucial that, once it goes out, integrity is 8

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Without it, nothing works. restored. Without integrity, nothing works. So how does this restoration occur? The first step is to acknowledge the integrity breach. As humans, we are loathe to do this. We think it makes us look weak, or bad, or, at least, we fail to look good. We want to sweep it under the rug, ignore it, or forget about it. But there is a separation between the promise breaker and the one to whom the promise was given that will remain without a restoration of integrity. Like a breach in the integrity of the hull of a ship, it must be addressed for the relationship to be restored.

The mere acknowledgment that one has not kept one’s word goes a long way to bridge the gap that the lack of integrity creates. When one acknowledges the impact on self of the integrity breach and the impact on the other, the gap lessens further. Finally, when one puts structures into place and tells the other person that structure to ensure that word is kept, the division between the two evaporates and integrity is restored.

So practically speaking, what does such a restoration process look like? Let’s take a situation where one is late for a meeting. It may look something like this: “I said I would do be here at 9 a.m. I did not appear until 9:15 a.m. I am out of integrity in this area. The impact on me is that I am embarrassed and I must rely on another to catch me up. The impact on you is that time is taken to catch me up, I have interrupted a discussion and you are wondering where I am and when I will get here. I will put an alarm on my clock to ensure that I timely arrive for future meetings or will be in communication if I will be late.”

When this restoration is done without explanation, blame, defensiveness, making one’s self or another wrong, the gap that occurs due to the breach of integrity disappears. The other person’s listening of the promise breaker enlarges, sometimes to a greater extent that existed before the breach. The point is, though, that there is nothing in the way of effective communication. And that goes a long way in relationship building.

Dianna M. Anelli THE ANELLI LAW FIRM danelli@anelli-law.com

If You’re Hosting the “Party,” You’d Better Serve the Cake

By Adam R. Todd On my first week on the job as an associate attorney, the managing partner of my firm likened a civil lawsuit to a party. In response to my inquiry about certain interrogatories that I considered unnecessarily invasive of the plaintiff’s personal life, my boss replied, “Well, he [the plaintiff] started the party!” Because it made the aggressive defense more palatable and probably because it was just plain funny, the party analogy stuck with me. I often use it when discussing lawsuits. I have taken great liberties with the analogy and am always expounding upon it. For instance, the summons is the invitation. The answer is the defendant’s “R.S.V.P.” and so on.

The Ohio Rules of Civil Procedure contain several requirements for any good party. Just like social graces, some of the civil rules are well-known and never ignored. Other rules, however, are often forgotten despite their importance.

The purpose of this article is to discuss one of those less popular rules, the requirement that a plaintiff commence a civil action by obtaining proper service upon the defendant within one year of filing the complaint.

To really have a party, the civil action must be commenced, not just filed. Ohio Rev. Code § 2305. 17 and Rule 3(A) of the Ohio Rules of Civil Procedure govern the commencement of a civil action. Ohio Rev. Code § 2305. 17 states: “An action is commenced * * * by filing a petition in the office of the clerk of the proper court together with a praecipe demanding that summons issue or an affidavit for service by publication, if service is obtained within one year.” DiDomenico v.

Valentino, 7th Dist. No. 11 MA 175, 2012-Ohio-5992, at ¶ 9 (emphasis supplied). Similarly, Rule 3(A) provides, “A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant * * *.” An action is commenced only when effective service of process is obtained. Lash v.

Miller, 50 Ohio St. 2d 63, 65, 362 N. E. 2d 642 (1977). In other words, the party is not really a party until the plaintiff achieves service upon the defendant.

Even with all the makings of a proper party, if you forget to serve the cake, it is all for naught. You can hang the streamers, blow up the balloons, and even open presents.

That does not mean you had a party. The Ohio Supreme Court has held that, absent proper service of process upon a defendant, a trial court lacks jurisdiction to enter a judgment against that defendant, and if the court nevertheless renders a judgment, the judgment is a nullity and is void ab initio.

Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64, 133 N. E. 2d 606 (1956). See also Tuckosh v. Cummings, 7th Dist. No. 07HA9, 2008-Ohio-5819, ¶17. “Failure of proper service is not a minor, hypertechnical violation of the rules.

Such failure is in direct contravention of the Rules of Civil Procedure.” Cleveland v. Ohio Civil Rights Comm. , 43 Ohio App. 3d 153, 157, 540 N. E. 2d 278 (8th Dist. 1989) (emphasis supplied). A judgment rendered without proper jurisdiction over the action or the defendant is void. Patton

v. Diemer, 35 Ohio St. 3d 68, 70, 518 N. E. 2d 941 (1988); Rokakis v. Estate of Thomas, 8th Dist. No. 89944, 2008Ohio-5147, ¶7. The case may proceed all the way to trial and even judgment, but that judgment is nothing without service. It is wholly unenforceable.

What if the defendant attends your get together, wears a party hat, and even plays “pin the tail on the donkey?”

It most certainly seems like a party. Does his participation negate the requirement that he be served? No! The Ohio Supreme Court affirmed the foregoing authority regarding commencement of a civil lawsuit and gave additional clarity to the commencement requirement in Gliozzo v.

Univ. Urologists of Cleveland, Inc. , 114 Ohio St. 3d 141, 2007-Ohio-3762. In Gliozzo, the high court ruled that when the affirmative defense of insufficiency of service of process is properly raised and preserved, a party’s active participation in the litigation does not constitute a waiver of that defense. Id. at ¶ 11-12. The Gliozzo defendants asserted the affirmative defense of failure of service in their answer and then defended the lawsuit vigorously. Id. at ¶ 12. They conducted discovery and even served dispositive motions. Id. The court recognized, “Appellants [defendants] were then free to seek dismissal of the case for insufficiency of service, even though they had also mounted a vigorous defense upon the merits. Id. The Gliozzo decision highlights that the obligation of commencing the suit is on the party’s host. Gliozzo complained that the defendants waited until the time expired for perfecting service to move for a dismissal. While that seems like a sneaky move, the Court responded, “The rules clearly declare that an action is commenced when service is perfected. Civ. R. 3(A). * * * The obligation is upon plaintiffs to perfect service of process; defendants have no duty to assist them in fulfilling this obligation.” Id. at ¶16. Since the defense of improper service and/or service of process was asserted and preserved, the Gliozzo court affirmed the dismissal for lack of sufficient service. Id. at ¶ 18.

Therefore, when representing a plaintiff in a lawsuit, do not forget the requirements of Rule 3 and Ohio Rev. Code § 2305. 17. If you fail to obtain service upon the defendant within one year of filing the complaint, even if the defendant responds or actively participates in the lawsuit, the court lacks jurisdiction over the matter. Any judgment rendered is a nullity. It matters not that the defendant came to the party and danced the hokey pokey. Simply put, if you “start the party,” be a good host; serve the cake!

Adam R. Todd adam@atoddlaw.com Winter 2015 Columbus Bar Lawyers Quarterly

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Never Fear, DR1 is HERE!

Promoting Mediation in a Contentious World

By Colleen P. Rosshirt Contrary to popular belief, mediation is not actually about meeting in the middle. If every claim could be settled by a splitting the difference we (attorneys and mediators alike) would be out of business. Rather, mediation in its purest form is about communication, finding solutions that work, and, sometimes, quitting while you’re ahead.

From the mediator’s seat, the most challenging issues are often not the money that needs to exchange hands; the most challenging issues are ensuring that everyone feels heard, that all necessary concerns are discussed, and that when parties leave the mediation session, they understand what happens next.

As an attorney employed by the Franklin County Municipal Court (FCMC), I regularly answer questions from attorneys and pro-se litigants about the Court’s mediation programs. Most callers are seeking information about how they can avoid the courtroom. Most pro-se callers are nervous about the entire process. Many have never been to court and are fearful. They are intimidated by judges and attorneys alike. Others don’t like the downtown traffic and don’t know where to park, still others just want to talk until they feel comfortable that they understand what will happen inside the mediation room. The goal of each conversation is to encourage parties to come prepared and ready to work hard to reach an agreement. Most of the time this goal can be met with empathetic and honest answers to the caller’s concerns.

The information most often disseminated by the mediation department can be boiled down to a few very important selling points. Please use what I have learned to help your clients obtain the maximum benefit from the Court’s mediation programs.

FREE Franklin County Municipal Court mediation services are free!

There is no charge to parties who either request mediation on a filed case or have been referred to mediation by a judge or magistrate. Mediators are paid by the court or donate their time and expertise to the court.

Did you know the court has offered free, pre-suit mediation services since 1984? Pre-filing mediation appointments are held on Thursday evenings to meet the needs of the people who most often use the program. Any dispute, except those alleging criminal activity or that fall under the jurisdiction of the Domestic Relations Court, is eligible for mediation in this program. Forms to request mediations are available online and can be submitted via email, fax, or U.S. Mail. For more information, see: http:// smallclaims.fcmcclerk.com/home/mediation FLEXIBLE Our office works closely with firms and pro-se parties to schedule appointment times that are convenient for all parties.

We pride ourselves on providing excellent customer service; when you leave a message we will return your call! Although mediation works best when all parties are physically sitting in the same room, when parties are outside of the state of Ohio, our office has the flexibility to offer a telephonic appearance.

FOCUSED Our mediation services are tailored to the needs of particular case types. In the Municipal Court, civil cases are allotted two 10

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hours of time and our mediators have years of experience mediating in a variety of courts. Pre-filing mediations are scheduled on Thursday evenings. The evening schedule often helps parties avoid taking a day off from work.

EFFECTIVE When parties participate in mediation at the Municipal Court, more than 60% reach a settlement agreement before they leave the session. In the pre-filing mediation program, 61% of cases are settled without ever filing a suit. Although a mediation agreement is not the same as a judgment, it is rare for parties who have agreed to a resolution to later default on the agreement or create the need for future litigation.

The opportunity to craft an agreement that works for all parties who come to the table is considerably less stressful than waiting for a pre-trial date, then waiting for a court trial date, or preparing a summary judgment motion (or responding to one), then waiting on the ruling of the judge. By keeping control of the outcome through a mediated agreement, parties own the agreement and, in turn, are more motivated to reach an agreement that resolves the dispute.

The court’s mediation programs could not boast its tremendous success without support from Central Ohio attorneys. Attorneys who represent parties in mediation help set the tone for successful resolutions. Our office is grateful to the attorneys who refer clients to the pre-filing program and ask the Court for referrals to mediation in filed cases.

If you’re interested in learning more about the dispute resolution services offered by the FCMC, or if you’re looking for an opportunity to practice your mediation skills, please give me a call or send an email to: rosshirtc@fcmcclerk.com.

Topics for civil case mediation we see the most: debt collection personal injury eviction second cause of action cases and rent escrow cases.

In our pre-filing program we see: Pro-se clients seeking resolution of situations that are highly personal and often emotional.

The next time you have a person in your office who wants something you know the Court cannot provide, or the claim is much smaller than a Small Claim that you can’t in good conscience file a suit, or you’ve been asked to help a friend to deal with “un-neighborly” neighbors, or you anticipate more crying than you’d like to handle, please refer these types of disputes to mediation!

Colleen P. Rosshirt Franklin County Municipal Court Mediation Programs Supervisor • 614-645-8611 rosshirtc@fcmcclerk.com

Monkey Business

By Lloyd E. Fisher, Jr. Litigation concerning religious symbols on public property and teaching creationism in schools are only the latest cases in the history of government-church conflicts. The State of Tennessee vs. John Thomas Scopes is one of the most noted cases.

In 1925, Tennessee passed the Butler Act, which prohibited the teaching of evolution in public schools. The ACLU offered to defend anyone who was charged under the law.

John Thomas Scopes, a young teacher in Dayton, Tennessee, was charged and the resulting trial was a dramatic spectacle that drew national interest.

A local Baptist preacher contacted William Jennings Bryan to become part of the prosecution team. Bryan was a threetime Democratic presidential nominee and a former U. S. Secretary of State but had not tried a case in 36 years. Bryan declared that as a fundamentalist, he was more interested “in the Rock of Ages than age of rocks.” Clarence Darrow, a nationally known defense attorney, volunteered to represent Scopes.

The trial, one of the first to be broadcast on American radio, turned into a legal circus. The Dayton courthouse was jammed with spectators and representatives of the press from around the country and foreign lands. There were signs and banners reading; “Come to Jesus” and “Read your Bible daily.” Hot dog vendors and ice cream stands surrounded the court house. H. L. Mencken, the crusty correspondent from the Baltimore Sun, called the spectacle: “The Monkey Trial.” There was no air conditioning in the courthouse and the building fans gave little comfort to the crowds. Darrow later claimed that the fans were always turned away from the defense.

On the first day of the trial, the presiding judge, John T. Raulston, ordered the doors closed and, according to Darrow’s autobiography, “. . with great solemnity and all the dignity possible, announced that Brother Twitchell would invoke the Divine Blessing.” Darrow had practiced law for more than forty years and had never before “heard God called in to referee a trial.” After the first day’s adjournment, Darrow suggested to the judge that an opening prayer was unfair, especially considering the nature of the case. When Judge Raulston took the bench on the second day, Darrow moved to eliminate the opening prayer. His motion was overruled and Darrow later learned that the court had appointed a committee of church members to assure a supply of opening prayers.

According to Darrow: “The State brought in a number of bright little boys who were students of the school taught by Mr. John T. Scopes.” They said that Mr. Scopes had told them that life began in the sea from a single cell that gradually developed into different structures. During the lunch break, Darrow heard one of the boys say to another: “Don’t you think Mr. Bryan is a little narrow-minded?”

Darrow created an uproar by calling Bryan as an expert on the meaning of the word “religion.” When Bryan agreed to testify, Darrow presented questions that brought out the

fundamentalist’s ideas of religion and Bryan “twisted and floundered.” The next morning, because of the heat, Judge Raulston convened court outside on the lawn. He ruled that Bryan’s testimony was irrelevant and should be stricken, as should the proposed expert testimony of the defense.

Darrow waived closing argument. This precluded Bryan from delivering his planned oration and stopped distribution of the copies prepared for the press. After a nine-minute deliberation, the jury brought in a “guilty” verdict and Judge Raulston sentenced John Scopes to the maximum punishment--a $100 fine!

On appeal, the Tennessee Supreme Court found the statute to be constitutional but set aside the conviction on the grounds that existing Tennessee law authorized only juries to set fines above $50.

The Scopes trial is the inspiration for the play Inherit the Wind, written by two Ohioans, Jerome Lawrence and Robert Lee. It debuted on Broadway in 1955 and ran for 806 performances. The first film version came out in 1960 and there have been several revivals on both stage and screen. In 1995, attorneys and friends of the Columbus Bar Association performed a stage version of “Inherit the Wind” that was directed by Greg Patterson. The cast included: Doug Browell, Jeff Ayres, Bill Friedman, Kay Lias, Pete Mihaly, Jim Rook and others.

Lloyd E. Fisher, Jr. debrigh@columbus.rr.com Winter 2015 Columbus Bar Lawyers Quarterly

11

Honoring the Sacrifice of a Civil War Ancestor By the Hon. James L. Graham Foreword The sesquicentennial of the American Civil War has generated renewed interest in this decisive time in the nation’s history. When the war began, the population of the United States was 32 million.

When the war ended, the total dead on both sides was somewhere between 600,000 and 850,000.

This is about twice the total deaths in the next bloodiest conflict, World War II, when the nation’s total population was 132 million. Every American family suffered a personal loss during the Civil War. All present-day Americans whose family was here just four generations ago would have one or more ancestors who were somehow involved in the conflict. In many, like mine, regretfully, the recollection of their exploits and sacrifices have dimmed or disappeared.

Lewis Graham, Private, 91st Ohio Volunteer Infantry Several years ago my interest in the American Civil War led to the discovery that copies of the military records of nearly all Civil War soldiers, North and South, are available at modest cost from the Bureau of Archives in Washington. I knew that my great-great-grandfather Lewis Graham had been killed in action during the Civil War but that is about all anyone in the family knew. The nature of his service, circumstances of his death and disposition of his remains were unknown. So I sent for his records and that was the beginning of an adventure of discovery that has spanned a quarter of a century. The following narrative recounts much of what I have learned from the study of records, 19th-century articles and books, genealogical research and plain old on-the-scene detective work a century and a half after the fact.

Lewis was a tenant farmer. He and his wife Rebecca and their children Joseph and Amanda, lived near Lucasville in Scioto County, Ohio. He enlisted in the Ohio 91st volunteer infantry in August 1862, part of a new wave of recruits that responded to Lincoln’s desperate call for 300,000 more soldiers after Confederate General Robert E. Lee’s invasion of the North destroyed the hope that Union victories in the spring of 1862 would soon bring the war to an end. These new volunteers committed to serve for three years or the duration of the conflict, unlike the original 90 day enlistments. The nation faced nearly 2 more years of bloody warfare at a new and even higher level of ferocity.

The 91st was recruited in Scioto, Lawrence and Gallia counties. It was led by Colonel J. A. Turley, a prominent citizen of Portsmouth. Lewis was enrolled as a Private in Company C, which was captained by his neighbor Jacob Caldwell. The regiment spent its first year and a half occupying and defending the river valleys southeast of Charleston, West Virginia with a camp at Gauley Bridge and a fort at Fayetteville. In May 1864 the regiment marched into Virginia in order to link up with a larger Union Army which would move on Lynchburg, the main supply depot of Lee’s Army of Northern Virginia. They soon encountered Confederate resistance and fought a pitched battle at Cloyd Mountain near Dublin, Virginia, the site of a strategically important railroad bridge 12

Winter 2015 Columbus Bar Lawyers Quarterly

spanning the New River. The Confederates came within an inch of victory when the 91st turned the tide of battle in a daring maneuver orchestrated by Colonel Turley. The quartermaster of the 91st was given the honor of lighting the match to the New River Bridge and Colonel Turley received a brevet promotion to the rank of General.

The Ohio troops moved on to Lexington, Virginia where they were assailed by cadets of the Virginia Military Institute who fired on them from the roof of their dormitory. These same cadets had been instrumental in the defeat of a Union Army at the Battle of New Market just a few weeks before.

The soldiers of the 91st returned their fire and proceeded to burn their school to the ground. They also appropriated the school’s bronze statue of George Washington on the grounds that traitors had no right to display the image of the Father of the country.

The 91st proceeded on to Lynchburg, now part of an army under the command of General David Hunter. They arrived at Lynchburg on the afternoon of June 17 and the 91st was in the front lines. The Confederate defenders, under the command of General Jubal Early, were putting up a stiff resistance. The rebels had established a strong point at the ruin of a stone Quaker church on top of a ridge which bisected the main route into Lynchburg. The 91st was ordered to dislodge them and it succeeded, but at a terrible cost. Nine of its members, including Lewis, were killed outright and many were injured, including Colonel Turley and Captain Caldwell, who would later succumb to his wounds. After scattering the Confederate defenders, the 91st found itself alone on the battlefield and was forced to retire. Lewis and those who fell with him were buried by their comrades in arms at the wall of the Quaker cemetery behind the church ruins.

General Hunter, having failed to capitalize on the success of the 91st’s charge, decided to call a halt to the battle and finish the job in the morning. Unfortunately, however, Confederate reinforcements arrived in Lynchburg by train throughout the night and Hunter faced a much stronger force at daybreak. He chose to retreat instead of pressing the attack. The battle of Lynchburg was over and the war would last another year.

When the war ended in April 1865, many families retrieved the remains of their loved ones and returned them home for burial. This was not an option for Rebecca, who had two young children to raise with few resources other than her widow’s pension. Within a year of the war’s end, many

Northern communities began a tradition of decorating the graves of fallen Union soldiers annually. This gave birth to the national holiday called Memorial Day. Lewis’s family was unable to accord him this honor because the site of his burial was unknown.

Sometime in the second half of the 20th century, the site of the ruin of the old Quaker church in Lynchburg was acquired by a congregation of the Presbyterian Church.

They proceeded to build a beautiful new church which they named Quaker Memorial Presbyterian Church. They also reconstructed the old Quaker meeting house on its original site using the original stones that had remained undisturbed since the Civil War. In 2007 the Sons of Union Veterans of the Civil War placed a monument at the site honoring the men of the 91st who died there, referring to them as the “bloody Buckeye boys in blue.”

Last June 17, on the 150th anniversary of Lewis’ death, my son James, my oldest daughter Elizabeth and my brother David joined me in placing a wreath at the old Quaker cemetery in Lynchburg, thus bringing a measure of closure to an important part of our family’s history. The wreath was inscribed with Lewis’s name and regiment and the phrase “He died to set men free. ”

Afterword

Lewis’s son Joseph grew up and fathered a son who he named Leroy (my grandfather, pictured on the cover in his law office in 1913). Joseph left the boy to be raised by Rebecca when his wife died. Leroy attended school in Lucasville, became a schoolteacher himself and ultimately made his way to Columbus, where he enrolled in Ohio’s first night law school, which met in the YMCA. Leroy was admitted to the Ohio bar in 1907 and practiced law in Columbus for the next 35 years.

His law partner was William Schneider Sr., grandfather of Keith Schneider, current president of the Columbus Bar Hon. James L. Graham Association.

U.S. District Court graham_chambers@ohsd.uscourts.gov Winter 2015 Columbus Bar Lawyers Quarterly

13

LEGAL WRITING 101: PRIMER FOR NEW LAWYERS

By Trent P. Stechschulte Young lawyers entering the profession today are expected to have polished writing skills. One of the most important day-to-day exercises of practicing law is communicating and writing clearly. Whether you are writing a memorandum for your supervisor or emailing a prospective client, my hope is that this short article will refresh you on some writing principles you may have forgotten.

Consider your audience. Your writing should guide the reader – whomever that may be. Keep in mind, you are not writing for yourself, but for your audience. Make it easy for your reader to understand what you are saying.

If your audience is a court, know the local rules, the judge’s preferences and experience, and be exhaustive in your research. If you are drafting a memorandum for your supervisor, fully analyze the issues and provide an answer that is supported by your research.

Outline and organize your ideas before you begin. One way to clarify your message is to outline your ideas before you begin. That way you can avoid missing any key points.

If you are not ready to outline, “brain dump” by writing down every incomplete thought, note, or idea you have.

Doing this can help you generate ideas and envision how to organize the content. Once you have that structure, 14

Winter 2015 Columbus Bar Lawyers Quarterly

outline as completely as you can. And because most legal documents are broken into sections and subsections, outlining before you start writing can save you time.

Favor brevity. Refine your document and only include necessary points, and present them with short, crisp sentences. Concise writing exudes confidence. It makes your arguments more persuasive and ideas more convincing.

The average sentence should be under 20 words and your average paragraph should be 4-8 sentences long. Of course, “average” does not mean “every.” You may still write longer sentences and paragraphs when necessary.

Longer sentences are sometimes necessary to adequately explain an idea. But when you can, trim your sentences, only leaving the essential.

Prefer writing in the active voice. One way to increase brevity is to write in the active voice. This usually requires fewer words, and your writing is more lively and authoritative. The easiest way to distinguish between active and passive voice is: you are doing the action in active voice. In passive voice, the actions are done to you.

It is the difference between: “Testimony was heard from the plaintiff” and “The plaintiff testified.”

However, depending on the situation, it may be more advantageous to use passive voice. Regardless, find passive

voice constructions in your writing and decide whether converting to active voice can strengthen your message.

Do not forget to use topic sentences or transitions. Begin each paragraph with either a strong topic sentence stating the controlling idea of what is to come, or a connection that links paragraphs together or separates them into discrete parts. Readers assume that a new paragraph substantiates a separate, distinct idea or strengthens your previous paragraph. Give your readers that. Readers skimming your writing should be able to grasp the ideas you are promoting by simply reading your topic sentences and transitions.

Avoid legalese. In law school, we were asked to read cases from centuries ago, written by judges in a style that does not represent modern prose expectations. Unlike centuries ago, concise, clear writing is encouraged. Do not imitate the writing of judges from centuries ago. Avoid using phrases like herein, herewith, aforementioned, arguendo, the case at bar, or sua sponte. It is your goal to promote clarity. Using these abstract, dense legal terms makes your writing vague. Stick with plain, readable English. Doing so will help you better convey what you truly wish to say, and your readers will appreciate it.

Remove “of” and nominalizations when you can. Many times using “of” or a nominalization (words ending in tion, -ment, or -ence) indicates you are using several words when one will do. For instance, “the majority of” can be changed to “most” and “an adequate number of” can be changed to “enough.” Likewise, nominalizations like “in conformity with” can be changed to “conform” and “make reference to” can be changed to “refer.” These principles seem simple enough, but many writers fail to catch them. Circle every “of” and nominalization in your next memo and see whether your sentences can be re-styled and improved.

Name parties. Traditionally, we are taught to identify the parties as Defendant, Plaintiff, Appellant, or Appellee.

Feel free to identify the parties when doing so adds to your content. Referring to your client as Defendant throughout your brief can be dull. Depending on what the brief is about, bring your characters to life by referring to them by their names. Of course, if there are multiple parties in a case, this is not possible. Moreover, make sure that it is clear who the named party happens to be in the case, whether it be the “victim,” “store owner,” or other appropriate characterization.

Quote effectively. To write fluidly, do not overuse quotations. If you overuse quotations you risk that your readers will stop reading them. Also, your writing can become disjointed if you use quotations from different authors.

Nevertheless, you should use quotations, but when you do, try to use them as an integration into your own style and with context about the topic that you are writing about.

Many young lawyers do not synthesize or paraphrase the idea, rule, or fact before quoting a line. “The court stated: (quote)” and “Ohio Rules of Civil Procedure states that: (quote)” are some typical examples of quotations found

in writing. You can improve your use of quotations if you make a persuasive assertion before the quotation. For instance, “The Ohio Supreme Court has held numerous times that Tort Reform is constitutional: (quote)” or “In fact, the 6th Circuit noted such patient communication is not privileged: (quote)”. Paraphrasing an idea before your quote reinforces your message and makes your reader’s job easier.

Continue improving. Read great writing examples from exceptional authors. Purchase any book written by Bryan A. Garner or regularly read opinions written by Chief Justice John Roberts. Edit your writing and re-write sentences to improve clarity and style. Some people copy and paste each topic sentence in a separate document to determine whether the organization works.

Others use writing guide checklists.

Whatever works for you, stick with it and you will see improvements in your writing.

Trent P. Stechschulte stechschulte.64@gmail.com

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Winter 2015 Columbus Bar Lawyers Quarterly RGP_TDR_quarterpg_ads_3.38x4.63_FA.indd 1

15

8/6/13 10:44 AM

SIMPLE PRACTICES CAN RESULT IN GREAT VALUE TO YOUR CLIENT

By Emily M. Vincent Having recently transitioned from a role as a staff attorney with a court, I had daily opportunities to observe counsel at their best, or unfortunately, their worst.1 This article aims to provide a broad overview of best practices to use before a court, as observed from the perspective of a staff attorney.

When lawyers consistently keep these practices in mind, they help the court work efficiently, ultimately building a rapport with the court and its staff that results in value to your clients.

Know your judge.

Across all genres and practices, knowing your audience is always the first step to crafting any successful presentation or writing.

Similarly, the most successful practitioners are aware that each judge is an individual, with distinct judicial philosophy and procedural preferences, and they conform their behavior accordingly.

If a judge’s preference is to hold all conferences in-person, for example, a request to appear via telephone without a reason will not be well taken. Other procedural areas where judges might have differing preferences include: (1) the use of courtesy copies and proposed orders/entries; (2) whether the judge will consider motions to extend the page limitation; (3) time limits on oral arguments or opening/closing arguments at trial; and (4) courtroom decorum, such as standing when objecting.

Do your homework about the judge before your first filing or in-person appearance. This means researching online, and talking to other lawyers who have practiced before that particular judge. Not following the judge’s preferences—particularly when he or she has shared them publicly, online for example—evidences a lack of preparation to the court. On the other 16

Winter 2015 Columbus Bar Lawyers Quarterly

hand, when a practitioner has prepared in accordance to the court’s practices, judges notice and appreciate the ease of working with that attorney, and will likely give him or her the benefit of the doubt in their future interactions.

Be professional and respectful to judges and members of their staff alike.

Of course, the importance of courteous treatment towards a court and its staff should go without saying.

Your reputation with the court is one of the most valuable assets you have.

The Professional Rules of Conduct require lawyers to demonstrate respect for those who serve the legal system, including judges, other lawyers, and public officials.2 Practicing with civility enhances your credibility with the judge and engenders confidence in your representations to the court. All of this will ultimately translate into good will with the court, your client, and the opposition.3 Practitioners should endeavor to use the same level of decorum when speaking with the court’s staff attorney or bailiff, as they would when speaking to a judicial officer. Raised voices, interruptions, complaints, or negative comments about aspects of the case, including the judge, unfortunately, are not uncommon for some attorneys when not in the presence of the judge.

Such behavior reflects poorly upon the attorney, and vicariously their client, and will be reported by the staff member to their judge.

Be proactive.

The case schedule’s deadlines are there for a reason: to guide practitioner’s expectations and to enable the court to efficiently manage its docket.

Scheduling conflicts are bound to arise from time to time, but courteous and timely communication with the court

can go a long way to help the parties move forward.

Context is key.

One of the biggest mistakes attorneys make is failing to provide the court with enough context to decide the matter pending before it. The best rule of thumb is to approach your task as if this is the first time the court is learning of your matter. At a status conference, attorneys should first give the court a factual summary of the case or the issue leading up to the conference as opposed to jumping in to explain their respective positions. Similarly, unless there has been an active motion practice, include a fact section in a brief. Judges and their staff work hard to prepare for each meeting and to understand the backgrounds of cases. But, let’s face it, yours is just one of approximately 650 cases assigned to that judge (if in Franklin County). Providing context will help the court more quickly and correctly understand the implications of its decision on the particular issue before it.

Choose your battles and consider alternatives to filing a motion.

In today’s e-filing world, courts are faced with more filings than ever. It’s important to remember that flooding your opponent with motions or arguments also floods the court with additional work. Practitioners should avoid using motion practice as superficial attorney gamesmanship that has no bearing on your client’s substantive position with the court.4 On the other hand, there are times when filing a motion is appropriate, but doing so may not be the most efficient use of your client’s money and the court’s time. For example: during discovery disputes, one motion to compel typically invites an opposing motion to compel, each of which involves its own

briefing schedule. Before you know it, there are dual motions for sanctions and, of course, motions to continue the discovery deadline. Asking the court for an in-person conference instead of filing a motion relieves the strain on the court’s docket and will undoubtedly result in a faster resolution for you and your client.

When possible, provide alternative resolutions for the court’s consideration.

In circumstances where the court has discretion, the best practice is to provide the court with alternatives for its consideration. Providing alternative resolutions, for instance, in discovery or case scheduling related issues, helps the court discern its options efficiently and at the same time increases the likelihood of an end result to your, and your client’s, liking. For example, if you only argue for dismissal of or judgment on some or all claims as a discovery sanction, you may be left with a result that you were not hoping for, or worse, one that your client was not expecting.

Attach evidence and supporting materials to each motion, even if the materials are in the record elsewhere.

Even where attachment is not required under the local or civil rules, attorneys should include a copy of their supporting exhibits with their motion.

This includes cited material contained elsewhere within the record. Your ultimate goal should be in ensuring that the court can easily determine that your argument is properly supported. Also, the impact of your argument is reduced if the court has to take time out of its review to search elsewhere in the docket for a deposition or court order cited in your brief. Practically speaking, not attaching materials to the instant motion also invites the opportunity for human error and the potential that your supporting materials are missed.

Carefully plan any phone calls to the Court.

There are many circumstances where a phone call to the court is appropriate, particularly if an unreasonable amount of time has passed without a decision.

Calling multiple times in one week to ask

about the status of a motion, however, borders on harassment (and yes, this does happen). Similarly, calling the court to ask if there has been a ruling on a matter when there is a publicly viewable docket is an inefficient use of the court’s time. To determine whether it is appropriate to call on a motion, first look at the docket for a decision and then consider how long the matter has been ripe for a decision; if it has been less than ninety days and there are no upcoming dates, then you may want to hold off on calling.

Regardless of why you or your firm places a call to the court, the person calling should have enough knowledge of the matter to answer general questions. If it is a scheduling request, keep in mind that the first question asked by the court will likely be whether you have spoken to opposing counsel.

If the request is for a conference, the court will also need to know the reason behind the request, so that it can determine whether one is really needed and/or what the court needs to do to prepare.

Instilling intelligent and reasonable practices within your firm can provide its own benefits, as well as earning a positive reputation with the court. In markets like Columbus, where word of mouth gets around pretty fast, the goal of any practitioner should be to conduct themselves in such a way that garners trust and respect, which helps to win cases and in turn, develop business.

Emily worked as staff attorney to Judge Timothy S. Horton at the Franklin County Court of Common Pleas, General Division from May 2012 until September 2014.

2.

Preamble to the Ohio Rules of Professional Conduct, ¶5; see Rules 3.5(a)(5) and (6).

3.

See also, “Consider Courtly Manners … ‘please’ and ‘thank you’ go a long way.” Luke A. Gilchrist (Staff Attorney to Judge David Cain), Columbus Bar Lawyers Quarterly, Summer 2014.

4.

“The reference to acting ‘with zeal in advocacy’” was deleted from the Ohio Rules of Professional Conduct because “‘zeal’ is often invoked as an excuse for unprofessional behavior.”

1.

Emily M.Vincent Carpenter Lipps & Leland LLP vincent@carpenterlipps.com Winter 2015 Columbus Bar Lawyers Quarterly

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Information Security, Leaking Data and the Duty of Confidentiality

By David J. Fetters

All attorneys owe clients a duty to their client information confidential.

A colleague and close friend called me in a panic a few months ago. A confidential memo from one of his previous cases had shown up in a Google search. Not just the name of the file, a link to the actual file. It was a letter between a group of attorneys discussing settlement, and understandably my friend was concerned that the contents of his computer might be showing up publicly on the internet. Social security numbers, bank account numbers, and confidential business information potentially shared with the world.

All attorneys owe clients a duty to their client information confidential. The Ohio Rules of Professional Conduct, at Rule 1.6, prohibits lawyers from “reveal[ing] information relating to the representation of a client, including information protected by the attorneyclient privilege under applicable law,” without informed consent from the client or the occurrence one of several other specified circumstances. The usual remedy to a known or potential inadvertent disclosure is notifying any clients or former clients who may have been affected. I gasped over the phone thinking of the sheer number of clients and former clients he would need to notify if it was true.

After one or two quick jokes at my friend’s expense, I offered to help him figure out why we could both search for his confidential memo on Google.

We determined fairly quickly that the file was being shared from a computer with a different internet protocol (“IP”) address, a different service provider, and was located across town from his office.

Moreover, none of his other clients’ files turned up when he searched specifically for them. We had determined that it was not his computer that was sharing the file, but we still had no clue as to why it was showing up in Google.

I stumbled onto a website post with a list of thousands of IP addresses that were noted as having one of several ASUS brand routers with a massive security 18

Winter 2015 Columbus Bar Lawyers Quarterly

vulnerability. A quick search revealed that the other computer sharing the file was using one of the IP addresses listed as being vulnerable. CNET had picked up on the obscure post and published a more comprehensive explanation of the breach. The problem affected nearly a dozen models of ASUS brand routers sold for home or small office use.

The affected routers could accidentally be configured to share publicly the contents of any USB memory card or external storage plugged into it. Any owners who turned on one of ASUS’s AiCloud services on their router would inadvertently enable global access to the files. Originally discovered in June 2013 by security researcher named Kyle Lovett, ASUS did not resolve the problem until sometime in 2014 when it released a firmware patch for the affected routers. Owners of vulnerable routers need to go to ASUS’s website, and then download and install the patch to resolve the issue.

The incident served to remind my very relieved colleague and I that information security is at least as important as physical security. As the practice of law continues its inevitable march toward the paperless future, attorneys will need to remain vigilant of the ever changing nature of the threats to protected information. Major law firms have already been the targets of foreign hacker attacks. Small to medium sized firms, while arguably less likely to be the target of international espionage, can still improve their information security programs without investing much financially.

Developing a consistent password use policy is one of the easiest and most effective methods of improving security. Passwords do not need to be a mix of random letters and symbols to be secure. Long but ordinary sounding passwords, say your three favorite ADAs on Law and Order or a series of words that evoke a comically memorable visual, are ultimately more

secure than a short sequence of random symbols. Using different passwords for email services and support services like PACER or Franklin County’s eFiling program compartmentalizes the potential damage if one of those services suffers a data breach.

Another simple practice is remembering to use passwords on everything. Attorneys regularly deal with confidential client information whenever they pick up or interact with a digital device. Password protecting all manner of electronic devices, from personal cellphone and work computer to thumb drive or home computer, is an easy way to decrease the likelihood of revealing confidential information.

Consider the serious threat posed by the humble, omnipresent USB thumb drive. Commonly available USB storage devices can easily hold whole libraries of documents or years of confidential State Department cables. Get in the practice of using only one thumb drive for client materials, and regularly remove files that are not actively needed to limit the potential damage of loss or theft. The prices for thumb drives are so low that it is well worth it to invest in one with encryption capabilities. While losing one will still be a frustrating event, encryption can prevent it from being a costly and embarrassing event.

David J. Fetters Barney DeBrosse, LLC david.fetters@gmail.com

A Morality System - It Isn’t Just a Game

By Luke A. Gilchrist You are trapped in quarantined city.

A mysterious plague has broken out and the government has sealed the borders.

Medical supplies and food are scarce, but a supply drop from the government is imminent. You travel to the designated location and find it mobbed with people.

Some are just average people, scared and desperate for food. Others, however, are organized thugs who want to hog all of the lifesaving supplies for themselves.

Through a series of heroic maneuvers, you are able to secure the cache.

So what do you do here? Do you distribute the supplies or, knowing that the quarantine could last a long time, hoard the food for yourself?

Now, this is a scenario from a video game. You and all those around you are just bytes of information. Does your answer change based upon the fact that it’s fictional, with no real-life consequences?

The above scene happens in the popular game Infamous. It and some other modern video games employ what is known as a morality system. Throughout the plot, the game presents you with choices. Your decisions affect how the rest of the game plays out.

If you choose to be good to others, things will start to get better for you: You might notice posters of yourself showing up around town portraying you as a hero.

People will applaud as you walk by and try to take photos with you. The police begin to ask for your help in keeping order in the city and new opportunities will open up.

If you choose to be selfish and focus

on just yourself, things go a little bit differently. Posters of you still will be plastered around the city; however, instead of being portrayed as a hero, you are a tyrant. Instead of showering you in praise and cheers, the people throw rocks and cans at you. The police shoot at you on sight, and only the criminal element seeks your help.

I use games to blow off steam, but another side benefit is that I’ve found that, through games like Infamous, I have tested and reaffirmed my moral stance toward others. Even more than books and movies, today’s high-budget video games – with their breathtaking artistry and hours-long plots that rival Hollywood -- insert someone directly into the story.

You can feel kinship with characters you befriend, and loss when a comrade is harmed or killed. It feels as real as fake life can feel.

I know what you’re thinking: interesting, but does this have a point?

Just stick with me a while longer.

I believe that a strong moral foundation is the basis upon which a caring and empathetic life is built. It is through that lens that we view situations and make our decisions. And it is these decisions upon which we are judged as lawyers. A wellcalibrated moral compass pointed toward an immovable north of decency brings a strong sense of duty to others, leading to decisions that best serve others (read: clients) rather than yourself. A hazy or malleable morality system tends to lead to the opposite.

We are not often put in a position such

as that in Infamous. Lawyers are, however, constantly faced with decisions that have long-term and sometimes unforeseen ramifications for others. Therefore, a lawyer needs to have a strong moral foundation. Lawyers who don’t take the time for self-examination might one day find themselves staring down an ethics violation.

In case you’re curious, I chose to give away the food. My wife and I often joke that I am impeccably moral in video games.

Even when I swear I’m going to go back and play a game over again as the villain, I find myself feeling bad and returning to being Mr. Nice Guy. I’m certainly no saint and I’ve got my character flaws, but for the most part, I always try to care for and help others. I believe that we all should be charitable and seek to lift others up.

I encourage everyone to try out a game that employs a morality system and see where you end up. You’ll probably be reassured by what you find out, but if evil beckons and tempts you, maybe you should engage in some selfreflection. Until we know where we stand, we will never know where we are to go.

Luke A. Gilchrist gilchrist15@yahoo.com

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Winter 2015 Columbus Bar Lawyers Quarterly

19

WHAT YOU DON’T KNOW WILL HURT YOUR CLIENTS: QUICK TIPS ON THE NEW FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) AND ITS IMPACT ON YOUR CLIENTS

By Katherine Dodson

All businesses that have global business operations, maintain offshore accounts/assets, or who make payments to offshore individuals or entities should have a working knowledge of FATCA and its general requirements.

Is your client FATCA compliant? Since July 1, 2014, the IRS has been authorized to assess substantial penalties against U.S. businesses that are not in compliance with the new Foreign Account Tax Compliance Act. This Act, known as FATCA, was implemented to attempt to curb tax evasion by requiring and encouraging the voluntary reporting of foreign financial assets by U.S. taxpayers, foreign and domestic financial institutions, and foreign governments. The most startling aspect of this new tax law is its reach to virtually all U.S. businesses making payments overseas. The penalties for failing to comply with these new provisions under FATCA can be very punitive and substantial. Accordingly, with this law now in effect, all businesses that have global business operations, maintain offshore accounts/assets, or who make payments to offshore individuals or entities should have a working knowledge of FATCA and its general requirements.

In addition to the impact on U.S. businesses, FATCA also imposes additional disclosure/reporting obligations on individual U.S. taxpayers who maintain foreign bank accounts and other foreign assets (including ownership interests in foreign entities). Suffice it to say, the reach of the FATCA is vast.

There are three general areas of enforcement and regulation under FATCA. The first area of compliance imposes an additional filing requirement (i.e., the IRS Form 8938) on taxpayers with specified foreign assets over $50,000. This new form is in addition to the annual FBAR filing obligation for similar foreign accounts. Unlike the FBAR reports, this new form and filing obligation requires the disclosure of more than just financial bank accounts. Specifically, this new form, which is appended to the taxpayer’s annual income tax return, discloses all foreign financial accounts in addition to certain other foreign investment assets. Like the FBAR, there are substantial penalties that can be imposed against taxpayers who fail to include the Form 8938 with their income tax return. The failure to report could result in a minimum penalty of $10,000 and a maximum penalty of $50,000 for each reporting failure. There are also related criminal penalties that can be imposed for willful failures to file this disclosure form.

The second area of regulation and compliance under FATCA is designed to encourage worldwide financial transparency by encouraging foreign governments to 20

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enter into Intergovernmental Agreements (IGA) with the United States for purposes of sharing of information on U.S. taxpayers with offshore accounts and assets. In these agreements, foreign governments basically agree to assist the IRS in obtaining information regarding these types of U.S. taxpayers. Quite surprisingly, the United States’ foreign diplomacy efforts to obtain agreements from many foreign governments have been very fruitful. To date, the United States successfully obtained agreements from 34 countries under the Model 1 IGA and 5 countries under the Model 2 IGA. The final area of regulation requires certain foreign entities to register with the IRS and enter into agreements to provide information related to U.S. accountholders or foreign entities that are owned by U.S. taxpayers. FATCA forces this compliance on foreign entities by requiring this registration in order to avoid a 30% withholding on their U.S. sourced payments. Specifically, FATCA requires any U.S. business (i.e., withholding agent) making these types of payments to a foreign entity to first ensure that the foreign entity is FATCA compliant. If FATCA compliance cannot be confirmed, the U.S. withholding agent is required to withhold the 30% from the payment. If the U.S. withholding agent fails to withhold the required 30% from the payment, it will be responsible for this withholding amount plus potential penalties for failure to withhold. Accordingly, the burden for ensuring FATCA compliance lies with the payors of the U.S. sourced income.

A U.S. business making this type of payment overseas is required to engage in 30% withholding if the following apply: The payor is a withholding agent obligated to withhold under FATCA; The payment being made is a “withholdable payment”; The payment is being made to a payee who is a foreign financial institution (FFI) and the FFI is not FATCA compliant or compliance cannot be verified.

The payment is being made to a payee who is a nonaccepted non-financial foreign entity (NFFE) and the NFFE has not properly disclosed its substantial U.S. owners.

Most important of these factors is whether the entity receiving the payment is a FFI or NFFE. In general, a FFI includes (but is not limited to) depository institutions (i.e., banks), custodial institutions (i.e., mutual funds), investment entities (i.e., hedge funds, private equity funds), and certain types of insurance companies. In addition to determining whether the payee is a FFI, there are also potential withholding obligations on payments to non-foreign financial entities (NFFE). If the payment is being made to a FFI, or a non-exempt, 30% withholding will apply UNLESS FATCA compliance can be established.

FATCA compliance can be established through obtaining a withholding certificate from the payee.

This withholding certificate is generally provided on some variation of the IRS Form W-8 (foreign entities and individuals) or the W-9 (for US entities and individuals). There are complex record retention requirements with respect to these withholding certificates that must be implemented by U.S. businesses.

Many experts, in reviewing the requirements under FATCA, estimate that the overall compliance costs to U.S. businesses will be substantial.

These substantial costs arise due to the enormous reach of FATCA on virtually all U.S. sourced payments made overseas. In addition, FATCA compliance is even more complicated by the ever changing and evolving IRS notices, the voluminous Treasury Regulations, the dozens of Intergovernmental Agreements, and the newly released IRS forms. These substantial compliance costs, however, can quickly be out paced by the punitive monetary penalties that can be imposed against taxpayers who fail to properly withhold under FATCA. As such, most American businesses with global operations will be forced to stomach these compliance costs in order to avoid the IRS’s examination and penalties.

In order to ensure FATCA compliance, U.S. businesses should obtain a FATCA impact assessment that analyzes the regulatory impact of FATCA on business operations. A comprehensive compliance plan should also be put in place to ensure that the accounts payable departments are properly verifying FATCA compliance before making overseas payments.

Additionally, document collection and retention policies need to be established to ensure that the proper FATCA withholding certificates and verifications are properly maintained.

Katherine Dodson Terrence A. Grady & Associates Co., LPA kdodson@tgradylaw.com

BEING HEALTHY is not good for my health

By Michael A. Corey A standing desk seemed like a good idea at the time. I was a little over a year into my practice, and it had become clear that sitting for the majority of the day was not the most effective way to pursue a healthier me. Research had begun to bear this out, in the way that research often validates the obvious: Of course, it’s not good for you to sit on your derriere all day. So as part of my elusive goal of being healthier, I set out to find an elegant standing desk solution that would also not render me a laughingstock at the firm.

At this point I should have known that my effort was bound to be snakebitten, given my fledgling attempts elsewhere to avoid Work Life Imbalance (“WLI”). A new Downtown condo-dweller, I took a stab at combating WLI by pursuing urban gardening. Vertical hangers seemed an excellent choice for my concrete-walled patio, and the herbs I planted flourished. It wasn’t exactly the Babylonian Gardens, but I was proud of the success of this new hobby. A week later, improper care or improper sunlight or something else—I was never really not sure what the culprit was, which was surely part of the problem—led to the demise of my basil, rosemary and thyme.

I had also taken a stab at cooking, only to slice through my left ring finger rather than the vegetable I had been attempting to chop. Surgery, physical therapy, and post-traumatic-knife-syndrome resulted, along with a giant blue cast that earned me plenty of guffaws at work, along with the nickname Smurf, Esq. But despite these setbacks to my pride and my pocketbook, I was committed to finding a way to stand while I worked. After all, before the rise of the service economy, most Americans spent their workdays on their feet anyway. Just not in our office. So here was an opportunity to be a pioneer, and to be a little more health-conscious while conducting legal research.

My initial search led me to a pair of very different options: It seemed I could either purchase a brand-new desk, at a hefty price tag, that would require me to stand all day; or I could purchase what looked like TV dinner trays that were designed to be placed on top of your traditional desk. The former seemed excessively expensive, and the notion of standing all day was not inviting either.

So I purchased one of the desk trays in the hopes that my days of being an armchair lawyer were done for good.

And then it arrived. A single one of these was not only too small to hold more than a single item at a time—an elevated keyboard wouldn’t do much good— it was also too low, which for the first time in my life made me think being 5’10 qualified as tall. But I tried to make it work, and stacked a Black’s Legal Dictionary and a few old textbooks to hoist up the keyboard to a proper height, and reams of paper to raise my monitor. It looked absurd, and anyone and everyone that walked by my office assured me that my desk appeared to have been decorated by a child building a fort with paper products. Aesthetics aside, it was also impractical, for whenever I did want to sit, I would have to dismantle this makeshift apparatus. So after two weeks—at least I beat the longevity of my garden!—I gave up, and resumed my chair-bound legal practice.

A month ago, however, I saw yet another article about the hazards of a sedentary workday, and resolved to remedy this situation once and for all. This time, I found a perfect hybrid: a stand-up desk add on. Rather than a new desk altogether, and rather than the teeny risers, this was a two-level platform that could be raised and lowered with the press of a button, and more importantly, could simply be placed on top of my traditional desk. I was jubilant. It is, after all, the little things. So I stand before you now the proud owner of a “Varidesk,” which has made the hours of practicing law more of an enjoyable exercise than it was before.

Michael Corey, Bricker & Eckler mcorey@bricker.com Winter 2015 Columbus Bar Lawyers Quarterly

21

Sunny Ski Resort is Spectacular All Year By the Hon. David E. Cain A good time to visit a ski resort is before the snow flies and all the crazy skiers come to town.

Go before summer’s end. Avoid the frigid temperatures and broken bones, before anyone expects you to slide down a mountainside at 50 miles an hour on a couple skinny sticks attached to your feet. And don’t worry about finding enough to do.

We went to Sun Valley, Idaho, to visit friends with whom we traveled in Africa a couple years ago. The fact that it was the Wagon Days festival weekend added a few activities to the agenda. But there would have been plenty to do in any event. With Sun Valley being the first ski resort in the West and the site of the first chair lift in the whole world, its rich history of being a celebrity playground at the end of a railroad line gave a fascinating spin to what would otherwise still be a great place for simply looking at the beautiful natural surroundings. Mountains tower over rivers, lakes and golf courses. Large blooming flowers are everywhere – in landscaping, pots, crocks and boxes – flourishing in the mild summer temperatures.

The first day, we rode first a gondola and then a chair lift to the top of the 9200-foot Bald Mountain and enjoyed lunch at the Roundhouse Restaurant with breathtaking overlooks of ski trails winding through stands of Douglas Firs seemingly right up to the edge of the barely visible city.

Day two featured the Big Hitch Parade, the largest nonmotorized parade in the Northwest and a highlight of the Wagon Days Festival. The parade went up Sun Valley Rd. and down Main St. in Ketchum, the small city that sits about a mile west of the Sun Valley Resort. Many of the parade entrants were riding horses (some bareback). A couple political participants were on camels. A cowboy was riding a bull. Others were in museum quality carriages, carts, buggies and wagons being pulled by horses, ponies or mules. Young men on roller blades carried coal shovels and quickly scooped up any excrement dropped by the animals.

My favorite commercial was presented by Boot Hill Under Taking. The undertaker was riding a miniature paint horse and pulling a low-level wagon, more like a rectangular trunk about the size of a coffin, with glass sides and the corpse’s booted feet and lower legs hanging out the back.

The “hearse” was followed by the grieving widow, a young woman dressed in a black dress, hat and veil and riding a pinto. Another one of the some 70 entrants was the Spirit of Ketchum Iditarod (dog) Team that will for the second year in a row be the official Ketchum entry in the Alaskan Iditarod race.

Per tradition, the grand finale was the Big Hitch itself: Six tall, skinny, wood-covered wagons that were originally used to transport lead and silver ore from the mountains surrounding the valley during the mining boom in the late 1800s. A 20-draft-mule jerkline pulled the wagons.

That night were attended “Sun Valley on Ice,” a sensational skating show starring Evan Lysacek, Olympic Gold medalist, World Champion and two-time U.S. gold medalist. In true Western style, the event began with the playing of the Star 22

Winter 2015 Columbus Bar Lawyers Quarterly

Spangled Banner while a horse trotted out onto the ice with the rider waving a large American flag.

On day three, we did some pistol shooting at a private club before driving 13 miles south to Hailey where the Hailey Rodeo Arena was hosting the two-day Intermountain Pro Rodeo Association Championship Finals. Events included bareback bronc riding, saddle bronc, bull riding, steer wrestling, barrel racing, breakaway roping, tie-down roping and team roping. Most of the participants were semiprofessionals. They have day jobs, too. Children as young as 6 years old entertained between the competitive events.

Some had a hard time getting up after being thrown to the ground by a bucking pony, and I wondered if Idaho has a section in its criminal code prohibiting child endangerment.

During the rest of our stay, we took a road trip about 50 miles north to Redfish Lake on the edge of the Sawtooth Wilderness. The Sawtooth Mountain Range is so named because the pointed mountaintops look like the teeth on a saw. They make great views, whether overlooking the valley along the way or reflecting off the waters of Redfish.

We also went trap shooting at the Sun Valley Gun Club where my wife, Mary Ann, hit 18 out of 25. (I have treated her really nice since then).

On our last night, we went to the highly recommended Knob Hill Restaurant on the northwest edge of Ketchum.

We went early so we could visit a small cemetery nearby.

Within minutes, Mary Ann spotted the grave we wanted to find. No head stone. Just a granite slab on the ground that simply stated: “Ernest Miller Hemingway. July 21, 1899 -July 2, 1961.” Maybe it was the “Absente” wine bottle on the grave that caught her eye. Or the red onion. Or the fairly fresh long stemmed artificial roses. Or the mounds of small coins that had been tossed like into a wishing well. I didn’t understand the significance of any of this.

Hemingway had first visited Sun Valley in the summer of 1939. He came back to live after World War II with his fourth and final wife, Mary Welsh, who is buried beside him. A nearby elementary school is named after him and a Hemingway Memorial sits along Trail Creek a few miles south of town.

We went to Sun Valley with our frequent traveling companions, Dr. Jerry and Jay Gilroy of Lansing, who were longtime customers and later friends of Brenda and David Norton who own the Sheepskin Coat Shop on Sun Valley Rd. in Ketchum. The store originally featured sheepskins – David did his own tanning – but it now offers a wide variety of exotic furs. Brenda planned much of our African trip with contacts she developed at trade shows. Brenda’s sister and her husband, Kari and Jack Regan, recently moved from Connecticut to a house they built in the mountains near Hailey. Jack is a retired Marine aviator, but met Kari when they were heading computer research for the marketing operations of a large corporation, Jack on the East Coast

and Kari on the West. The four of them planned a full agenda for our visit.

The idea of a ski resort in the Western United States came to Averell Harriman, who was board chairman of the Union Pacific Railroad, while visiting ski resorts in Europe. He thought a ski resort at the end of a railroad line would turn snow from a headache to an asset. With the help of a European ski expert (an Austrian count) in 1935, he discovered the area around the small mining town of Ketchum to be perfect: Mountains the right height, open slopes, wide valley approaches, sunny blue skies, dry powder snow and mountain ranges that help break the cold winds.

Harriman quickly arrived in the area and purchased a 3400-acre ranch a mile east of Ketchum for $39,000. The railroad pitched in another $3 million for construction of a lodge, a heated outdoor pool, an ice skating rink and the world’s first chair lift (from the redesign by railroad engineers of a conveyor belt used to load bananas onto freighters).

The Sun Valley Lodge opened in December, 1936. The Challenger Inn, offering rooms at a more modest price, soon followed. By the late 1930s, the Sun Valley winter playground became the place to be and to be seen for movie stars and other celebrities such as Tyrone Power, Clark Gable, Gary Cooper, Claudette Colbert, June Allyson and John Wayne. Many of them are in the pictures that still line the hallways in the lodge. Glenn Miller’s theme song, “It Happened in Sun Valley,” added to the glamour.

Sun Valley also became the setting for numerous movies (that were supposedly shot in the Alps, Africa or elsewhere).

Sun Valley Resorts, which includes about 25 restaurants and stores, has 1835 employees in the winter and 1300 in the summer, according to a woman on our shuttle bus back to the airport who said she works in human resources for the company. Most of them are foreign students with working visas, she said. Sun Valley actually sends a recruiter to South America and Europe.

Other activities in the resort area include trout fishing, hiking, rafting, kayaking and parasailing.

If you are feeling adventurous, rent a bicycle and take it on a ski lift. Many of the ski trails are approved for mountain bikes.

Hon. David E. Cain David_Cain@fccourts.org

The Rape Case A Young Lawyer’s Struggle for Justice in the 1950s (By Irving Morris, University of Delaware Press, 2011) Reviewed By Janyce C. Katz, Esq. A short man, his head crowned with only a scattering of white hairs, sat across from me and seven other people at a table in the dining area of a Palm Beach synagogue on April 24, 2014. We were enjoying an early morning breakfast where fresh bagels, cream cheese and hot coffee were plentiful. The man across from me listened intently, saying nothing and seemingly focused on something elsewhere.

With the Atlantic Ocean only one block away from where we were sitting, I thought perhaps his mind had wandered away from bagels and light conversation to the powerful ocean, pounding gently on the beach that morning.

The conversation at the table turned to law, legal issues and Florida legal scandals, some of which were so absurd, I could only laugh. Then, the man sitting across from me, who turned out be named Irving Morris, began talking about a long-ago-ended rape case that he had argued up and down the court system in Delaware over a seven year period, finally winning the freedom of the three accused men. He quietly summed up the 1947 case, in which the police witnesses lied about destroying statements taken from the defendants; and, to get the death penalty for the men, the attorney general and his chief deputy coached the alleged rape victim on how to distort her testimony during the trial.

Needing a good book to review, I perked up when Mr. Morris said he had published a book on the case and it had been reviewed favorably by former Supreme Court Justice John Paul Stevens in the April 5, 2012 The New York Review of Books. I asked him if he knew where I could get a book, and he invited me to meet his daughter and son-in-law in his condo and to take a copy of the book.

In Mr. Morris’s art-filled condo overlooking the ocean, I sipped another cup of coffee, watching the ocean out of the corner of my eye, and listened to a little of the history of this remarkably modest gentleman. Quietly, without aggrandizing himself, he and his daughter described his life.

He had attended Yale Law School at a time when a quota against admissions limited the number of Jews accepted into Ivy League schools to the superior students. A founder of a Wilmington-Delaware-based law firm, Morris and Morris, with a national law practice representing plaintiffs in corporate litigation, he also had litigated many civil rights cases, expecting to improve society, but not making money in his efforts. He had been president of the Delaware State Bar Association and had held other state-wide offices in the association. He handed me a copy of his book, dedicated to his late wife. I took it home.

The well-written book first lays out the story of a trial that ruined the lives of three men by failing to provide them with the legal protections, due process and honesty, that should be the foundation of our justice system. Mr. Morris does 24

Winter 2015 Columbus Bar Lawyers Quarterly

not try to reargue the case, but it is clear from the manner in which he sets out the facts that he believes the men did not rape the woman. He sees blatant due process violations that destroyed any chance of a fair trial. The blatant destruction by the police of the first statements of the men, the lies on the stand under oath about those statements and rejection of the possibility of other witnesses destroyed the men’s chances to have a fair trial. The testimony of the allegedly raped woman and the men’s credibility was destroyed in the eyes of the jury members. Finally, the end goal of the attorney general and his chief deputy – to win big – made them overlook, not look hard, at the evidence presented by the police. All the evidence of the prosecution was not shared with the defense lawyers.

The jury returned with a verdict of “guilty.” Luckily, an attorney for one of the accused polled the jury, and it then came out that the jury’s verdict really was “guilty with mercy,” meaning life in prison instead of hanging under Delaware law as written in 1947. Without money to pay attorneys to appeal the verdict and without knowledge that evidence had been deliberately destroyed, the men did not appeal the verdict.

The three men would have died in prison, but for the efforts of their family members to find legal help. A Philadelphia lawyer, Herbert Maris, had left the practice of corporate law to help those already convicted of a crime. After reading the hearing transcript of the rape trial, Maris thought the men had not had a fair trial and decided to take the case and needed to find a Delaware licensed attorney who could file pleadings in the Delaware court system.

Several years after the verdict, a fluke, a stroke of luck led the three men to Irving Morris, then the law clerk for the chief judge of the United States District Court in Delaware. In 1952, the judge was a patient in a hospital where two sisters of one of the convicted men worked. Mr. Morris was first appointed as a local counsel and then became the attorney fighting to get the men a new trial.

The Rape Case details Morris’s legal battles and the obstacles he overcame to win the men’s right for another trial, one in which all evidence would be presented truthfully.

But, the prosecution decided it did not want another trial. As a result, the men were freed from jail, but never cleared their names or reputations. The detailed descriptions of the steps taken to achieve victory makes the book a useful learning tool for both the law student and the seasoned attorney.

Interesting to me was Mr. Morris’s ability to gain and to retain control of the case for seven years. When he started out, it was a time during which a young, extremely bright but unseasoned attorney could take a case, eventually becoming the main attorney, even though he suffered some defeats and admitted making mistakes a more experienced attorney might not have made. Eventually, Morris found evidence that the police had lied and had known about the lie and coverup. He persisted in the face of huge road blocks and clients with little to no money. Finally, he was able to persuade a very reluctant legal system that it needed to provide the three men an opportunity for a new trial. How many legal environments today give a new attorney the opportunity to grow professionally and tolerate losses similar to those Morris suffered before he finally won?

We who practice law hope that no one in 2014 practices law as did that Delaware attorney general and his chief deputy, whose desire to win the death penalty led them to overlook certain facts and procedural requirements that today’s ethics and criminal procedure laws make mandatory. We hope our police do not deliberately change witness statements, destroy evidence, or lie. We hope that judges, when presented with evidence of blatant destruction of evidence, have the courage to overturn decisions.

But, unfortunately, the biblical statement “justice, justice, justice shall you pursue” still is not always what occurs. A recent book, Matt Taibbi’s The Divide: American Injustice in the Age of the Wealth Gap (Spiegel & Grau, 2014) depicts some individuals of limited means whose access to justice is basically denied. Tabbi argues that the growing gap between the manner in which justice is administered to the poor and to the more powerful and wealthier individuals harms our society as well as our legal system. Obtaining effective legal counsel for many individuals in 2014 continues to be expensive and out of reach for many, just as it was for the three men about whom Mr. Morris wrote. But, unfortunately, it seems that some individuals may be given more opportunities to obtain justice than others. So, we still need to work towards the legal system we should have, one that offers each individual due process and an equal opportunity for justice.

As for me, I look forward to the next synagogue breakfast where I can share bagels and coffee with a man who dedicated much of his life to fighting for a just legal system.

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614-228-NEWS (6397) thedailyreporteronline.com

The Columbus Medical Association Foundation A unique 501(c)(3) partnership of physicians and the community that can assist your clients in fulfilling their charitable interest in the medical and health and wellness arena.

For more information on the Foundation, it’s charitable options and services, contact

Katz Rape Case review Janyce C. Katz janyce.c.katz@gmail.com

Weldon E. Milbourne 1390 Dublin Road, Columbus Ohio 43215

614.240.7420

wmilbourne@goodhealthcolumbus.org

Learn more at www.goodhealthcolumbus.org/cmaf Winter 2015 Columbus Bar Lawyers Quarterly

25

“Fringe” Benefits

By Jameson C. Rehm

I love “fringe” sports. Variety is the spice of life, or so they say, and with the warm weather finally upon us, allow me to encourage you to partake of a few of the “fringe” sports teams Columbus has to offer.

I’ll admit it. I’m that guy who shows off his sports knowledge not just by naming the Buckeyes starting offensive line, but by explaining the differences between Aussie Rules football and rugby at the same time. I love “fringe” sports. Variety is the spice of life, or so they say, and with the warm weather behind us, allow me to encourage you look forward to warmer days and partake of a few of the “fringe” sports teams Columbus has to offer.

The first team to check out is the baseball team, the Columbus Clippers.

Now I understand that baseball isn’t exactly a “fringe” sport. But, minor league baseball is absolutely “fringe.”

The Clippers are the AAA affiliate for the Cleveland Indians, which basically means their team is stocked with guys almost good enough to play in the major leagues. The ballpark, Huntington Park, is located right behind Nationwide Arena and is a

gorgeous place to catch a game. The ticket prices are more than fair ($4.75 for lawn seats to $15.50 for lower level sideline seats), and the level of baseball is actually pretty good for you snobs out there. If you need a bit more than the game to get you in the seats, they offer multiple Dime-a-Dog nights (the food, not the animal), fireworks and something only known as the break dancing bat boy. I don’t know either.

The season runs from April - September and is a cheap, great way to get outside to enjoy the weather, while enjoying America’s national pastime.

Before I mention this second team, allow me to be completely forthcoming.

I’m a soccer fanatic. I took days off to watch the World Cup. It’s an illness.

Therefore, I highly recommend driving to that stadium you pass all the time on Route 71, with the picture of some worker guy in yellow, and check out the Columbus Crew. The Crew is one of the original teams in Major League

Soccer’s now 18-team league. The league is growing by leaps and bounds, and with foreign soccer becoming more prevalent on American television, this is your chance to learn about the beautiful game while enjoying cool summer evenings in friendly surroundings. The season runs from March -October, with Dollar Dog and Beer Nights (again not the animal, and I agree, this joke is now lame), fireworks and, while not mentioned on the schedule, the Irish punk band Flogging Molly has been known to put on a concert after a game.

Prices are a bit more expensive, ranging from $29-$35.

The final team is the ultimate in “fringe” sports, but is worth a look.

The Ohio Roller Girls compete in the Ohio Expo Center’s Lausche Building in roller derby, that sport you’ve probably heard about, but didn’t know actually existed. Tickets are only $14, and the season runs from March - August.

That’s all I know about roller derby, but I’ll see you there.

If you’d rather partake in a fringe sporting event, as opposed to just watch, Columbus offers the number one sport of the Winter Olympics, curling. Think shuffleboard on ice.

Held in the numerous ice rinks around Columbus, the Columbus Curling Club offers lessons, leagues, and single event opportunities to become your favorite Olympians and curl with your friends. You can contact the Columbus Curling Club through their website (www.columbuscurling.com) for more information.

Jameson C. Rehm Jamie@cbalaw.org 26

Winter 2015 Columbus Bar Lawyers Quarterly

Lawyers With Artistic License

By Heather G. Sowald

“Their selections are often sung in other languages, including Latin, German, French, Hebrew, Italian and Russian.”

Gretchen Koehler Mote,

on a recent weekend night, was on the Ohio Theater stage, singing with the Columbus Symphony Orchestra Chorus. She has been a member of this choir as a mezzo soprano ever since her successful audition in 1978, when she was asked to sing scales and music patterns, followed by her prepared piece, and then a “sight-singing” piece.

Gretchen and the other 120 chorus members still have to periodically reaudition in order to retain their place in this elite performance group.

The chorus rehearses every Tuesday evening, September through May, and more frequently during performance weeks. They generally perform four times a year, including the annual Holiday Pops event. Their selections are often sung in other languages, including Latin, German, French, Hebrew, Italian, and Russian. The chorus has a diction coach and a taped version to assist the singers with the lyrics.

To Gretchen, concentrating on the tones, music, and lyrics during their

weekly three-hour rehearsals, is a welcome respite no matter what else is occurring in her life. She finds their stage performances, all the voices blending together in perfect pitch, to be personally uplifting and inspiring.

Gretchen is the daughter of a Lutheran minister and a school teacher.

During her formative years, she lived in Hamler, and later in Anna, Ohio. Both parents sang, and there was always music in their household. She recalls her first solo singing performance in the first grade Christmas program, uncomfortably costumed as Little Bo Peep. In high school, she began taking private lessons for proper singing and breathing techniques and continued studying through college. She was in high school and college choral groups, and she played the flute and piccolo in concert band.

Gretchen met her husband, Scott, who is now the Executive Director of the Ohio Lawyer’s Assistance Program, while they were both attending Capital U. Law School. Married since 1977,

they have one daughter, Elizabeth – “Liz,” who is an attorney with a local firm.

Gretchen began practicing law in 1978 at the Ohio Department of Insurance, followed by a stint in a civil litigation law firm. She has been a claims attorney, and now is the director of loss prevention for the Ohio Bar Liability Insurance Company.

To those who know Gretchen, she is one of the most organized people around, with a vast knowledge enhanced by a near-photographic memory and a thirst for reading everything and anything. In addition to choral singing, Gretchen’s hobbies include camping and hiking, and gardening. She has dabbled in artistic endeavors at a local mosaic studio, and hopes one day to take painting classes. For Gretchen, there is still so much more to learn, to enjoy, and to create!

Heather G. Sowald Sowald Sowald Anderson & Hawley Hsowald@ sowaldlaw.com Winter 2015 Columbus Bar Lawyers Quarterly

27

Civil Jury Trials FRANKLIN COUNTY COMMON PLEAS COURT

By Monica L. Waller

Verdict: $549,307.77. Employment Discrimination.

Plaintiff Don O. Smith was employed by Defendant Superior Production, LLC from the early 1980’s through 2008 when he was laid off and not called back. Superior Production is a manufacturing company that produces automotive parts. Mr. Smith worked as a production supervisor.

According to Mr. Smith, out of 30 production supervisors employed by Superior Production, he was one of only two African-American supervisors. Mr. Smith claimed that, from approximately 1997 through 2008, he endured an intimidating and racially divided work environment, racial slurs and disparate treatment. Mr. Smith worked under the direct supervision of Duane Holstein, the manufacturing manager and part owner. The Holstein family owned Superior Production. Duane Holstein’s father, Roger Holstein is a vice president of the company and his uncle, Richard Holstein was the company president. According to Mr. Smith, Duane Holstein made racial slurs directed at Mr. Smith, intimidated him by cocking a gun and laying it on his desk when Mr. Smith was called in to Mr. Holstein’s office and singled him and other African-American employees out for discipline. Mr. Smith reported the discrimination to the plant manager and stated that he could no longer work with Duane Holstein. In response, Superior transferred Mr. Smith, demoted him to assistant production supervisor and cut his pay. Mr. Smith was laid off a month later. Superior laid off employees in phases and tried to retain employees who could perform multiple jobs. During his long tenure at Superior, Mr. Smith had performed every job in the facility. However, Mr. Smith was the eighth employee laid off overall. None of the production supervisors were laid off. Mr. Smith was the only assistant production supervisor laid off. Mr. Smith believed that he was laid off before Caucasian employees with less seniority and lesser skill sets. Mr. Smith signed a statement indicating that he would be willing to accept any other position in the company to avoid the lay off. Superior later called back many of its laid off employees, but not Mr. Smith. Superior also re-hired some employees terminated for cause. Superior later hired from outside the company to fill Mr. Smith’s former production supervisor position. Mr. Smith sued Superior alleging that he was subjected to a hostile work environment, terminated based on race and retaliated against for reporting the hostile work environment. Superior argued that Mr. Smith’s termination was not motivated by race, but rather part of a downsizing that resulted from the poor economy. Superior explained that Mr. Smith was not rehired because rehiring decisions were dictated by the need for laborers with a certain skill set. Mr. Smith’s skill set was most in line with the press bay area which was under the supervision of Duane Holstein. Since Mr. Smith did not want to work for Duane Holstein, he was not rehired. The jury 28

Winter 2015 Columbus Bar Lawyers Quarterly

found in favor of Mr. Smith on all claims and awarded him $266,900.00 for back pay, $100,000.00 for compensatory damages, $41,870.40 for front pay, $0 for emotional distress and $200,000.00 for punitive damages. $49,972.63 was subtracted for mitigating wages and $9,490.00 was subtracted for unemployment benefits received. Neither side called any experts. Last Settlement Demand: $75,000.00.

Last Settlement Offer: $10,000.00. Length of Trial: 5 days.

Counsel for Plaintiff: Greg Mansell, Derek J. Walden and Danny Caudill. Counsel for Defendant: Jan E. Hensel and Anjali Chavan. Judge Richard Sheward. Case Caption: Don O. Smith v. Superior Production, LLC, Case No. 11 CV 15815 (2013). Note: Following the verdict, Superior moved for in the alternative for a judgment notwithstanding the verdict or a new trial. The trial court granted the motion and Plaintiff appealed. The Tenth District Court of Appeals reversed the trial court’s decision in part and remanded the case for reinstatement of the jury verdict on liability and a new trial on damages. The parties settled the case upon remand. See, Smith v. Superior, 10th Dist. Franklin No. 13AP-690, 2014-Ohio-1961.

Verdict: $198,105.60. ($48,105.60 for Economic Damages; $150,000.00 for Non-Economic Damages; $0 for Loss of Consortium) Medical Malpractice. On April 6, 2009, Defendant William P. Gianakopolous, M.D. performed a lithotripsy procedure on Plaintiff Richard Hunter (57-yearsold) to remove kidney stones. Mr. Hunter returned to the emergency room the following day with severe abdominal pain. He was diagnosed with a ruptured spleen which required an emergency splenectomy. Mr. Hunter asserted that the damage to his spleen was caused by Dr. Gianakopolous’s negligent performance of the lithotripsy procedure. Dr. Gianakopolous denied negligence and argued that spleen injury is a known risk of lithotripsy that can occur despite proper performance of the procedure and that the risk was disclosed to Mr. Hunter. Medical Specials: $48,105.60 reduced to $14,415.19 after write-offs. Lost Wages: None.

Plaintiff’s Expert: Louis Liou, M.D. (urology). Defendant’s Experts: David Neal, M.D. (radiology); Joseph Dankoff, M.D. (urology). Last Settlement Demand: $150,000.00. Last Settlement Offer: None. Length of Trial: 4 days. Counsel for Plaintiffs: Curtis M. Fifner. Counsel for Defendant: Thomas Dillon. Magistrate Ed Skeens. Case Caption: Richard Hunter, et al. v. William Gianakopolous, et al. Case No. 10 CV 14046 (2013).

Verdict: $80,000.00. (Breach of Contract) On January 22, 2011, Plaintiff Hassan Nour entered into a sublease agreement with Defendant Jamal Shiwar for a property located on Morse Road. The property was to be used as a

daycare facility by Kids Zone Day Care, Inc. Pursuant to the agreement, Mr. Shiwar was to make certain improvements to the property by May of 2011. The improvements included new parking spaces, a grass playground area, a fire wall and an HVAC system. According to Mr. Nour, Mr. Shiwar did not complete the improvements and, despite repeated requests, the improvements remained incomplete as of October of 2011. Mr. Nour discontinued rent payments after November 2011. He alleged that he spent in excess of $30,000 in construction costs and hired a daycare consultant to get the daycare facility up to code. Mr. Shiwar asserted that the improvements were made with the exception of the fire wall. The fire wall was not constructed because the parties discovered after the agreement was signed that a firewall was not necessary. Mr. Shiwar filed a counterclaim against Mr. Nour for unpaid rent. The jury found in favor of Mr. Nour on both his claim and the counterclaim. Neither side called any experts. No settlement negotiation information was provided. Length of Trial: 4 days. Counsel for Plaintiff: Troy J. Doucet. Counsel for Defendant: Joseph C. Lucas.

Magistrate Pamela Browning. Case Caption: Hassan Nour v.

Jamal Shiwar Case No. 12 CV 26 (2013). Note: Following the judgment, Plaintiff moved for an award of attorneys fees pursuant to an indemnity provision in the sublease agreement.

The Court denied the motion and Plaintiff appealed. The Tenth District affirmed the decision in Nour v. Shawar, 10th Dist. Franklin No. 13AP-1090, 2014-Ohio-3016.

Verdict: $5,670.53 ($3,970.53 for Economic Damages; $1,700.00 for Non-Economic Damages). Automobile Accident. On September 9, 2010, Plaintiff Ashley Adams was traveling eastbound on I-270 when her vehicle was rearended by a vehicle driven by Defendant Lowell Jolley. At the time of the collision, Mr. Jolley was in the course and scope of his employment for Defendant HD Supply Waterworks, Ltd and driving a vehicle owned by Defendant Penske Truck Leasing. Ms. Adams sued Mr. Jolley for negligence and asserted a claim against Penske for negligent entrustment and against HD Supply based on respondeat superior. Ms. Adams claimed that she injured her neck in the accident and developed bursitis in her shoulder. Mr. Jolley disputed the extent of the injury. Medical Specials: $3,970.53. Lost Wages: None. Plaintiff’s Expert: Gayan Poovendran, M.D. (family practice). Defendant’s Expert: None. Last Settlement Demand: $20,000.00. Last Settlement Offer: $5,000.00.

Length of Trial: 2 days. Counsel for Plaintiff: Walter

Messenger. Counsel for Defendant: Kevin Foley. Judge Patrick Sheeran. Case Caption: Ashley Adams v. HD Supply Management, Inc., et al. Case No. 12CV-10255 (2013).

Verdict: $4,570.53. Automobile Accident. On February 14, 2012 Plaintiff Stacey Carr was headed eastbound on Schrock Road approaching Cleveland Avenue when her vehicle was rearended by a vehicle driven by Joyce Jester.

Ms. Jester’s vehicle had been rearended by Defendant Kim Glaser and pushed into Ms. Carr. Ms. Carr claimed severe and debilitating injuries to her neck and back. She went to the emergency room on the day of the accident and began physical therapy the following week. After approximately 6 weeks of physical therapy, she began chiropractic therapy which continued for another 3 months. Ms. Glaser stipulated liability and the case proceeded to trial on damages only.

Ms. Glaser argued that Ms. Carr was not injured in the accident. She pointed out that the collision was low impact with minimal property damage and that Ms. Carr did not strike the interior of the vehicle and was not transported by ambulance from the scene. She also argued that Ms. Carr had a pre-existing permanent back injury. Medical Specials: $6,830.00 (reduced to $4,103.89). Lost Wages: None.

Plaintiff’s Expert: Jill Gardner, DC. Defendant’s Expert: None. Last Settlement Demand: $8,000.00. Last Settlement Offer: $1,498.00. Length of Trial: 2 days. Counsel for Plaintiff: Jay Hurlbert. Counsel for Defendant: Jonathan Preston. Magistrate Ed Skeens. Case Caption: Stacey Carr v.

Kimberly Glaser, Case No. 12CV-011883 (2013).

Defense Verdict. Breach of Contract. In 2008, Defendant Plaza Properties, Inc. announced plans for the development of real estate located in the Arena District in Columbus. At the time, Plaza Properties served as the asset manager for the real estate to be developed. From 2004 through 2008, Milligan Communications, lead by Ruth Milligan, worked as an independent consultant for Plaza Properties providing public relations, marketing and some “corporate matchmaking” services. In late 2008, Milligan Communications was approached by political consultants driving the ballot initiative for the development of a casino in Columbus.

The consultants inquired about Milligan’s contacts with management companies, developers or property owners who would be interested in the development of a casino.

On November 28, 2008, Ruth Milligan met with the chief development officer for Plaza and disclosed that she

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had contacts interested in casino development. Plaza expressed an interest and, on December 9, 2008, entered into a “Finder’s Fee Agreement” with Milligan Communications. According to the terms of the agreement, Plaza authorized Milligan to introduce Plaza to potential investors and/or developers for the Arena District property and, if an investor and/or developer that Milligan introduced Plaza to made an investment in that site or any related projects, Milligan was entitled to a finder’s fee. The same day that the agreement was signed, Milligan arranged a meeting between the political consultants and various Plaza executives. The political consultants thereafter put the Plaza executives in contact with Penn National Gaming, Inc. Milligan Communications was not involved in Plaza’s negotiations with Penn National. The negotiations were handled by the president of Plaza Properties, Laurence Ruben, who was also a real estate broker. In 2009, Plaza and Penn National entered into a Purchase Agreement for the Arena District property. The Purchase Agreement included a 4% commission to Plaza President, Laurence Ruben, as the seller’s agent. Milligan

Communications did not receive a finder’s fee. Milligan Communications sued Plaza for breach of contract and unjust enrichment. It also sued Laurence Ruben for tortious interference and unjust enrichment and Ruben’s realty company, LGR Realty, Inc., for civil theft. The Court granted summary judgment in favor of defendants on Milligan’s unjust enrichment claims and converted the civil theft claim into a claim for conversion, but the remaining claims survived summary judgment.

According to the jury interrogatories, the jury found that Plaza did not breach its agreement with Milligan and that the information Milligan provided to Plaza was not confidential information for which Milligan held an ownership or property interest. Plaintiff claimed $274,700.00 in damages.

No information regarding experts or settlement negotiations was provided.

Length of Trial: 7 days. Counsel for Plaintiff: Shawn J. Organ and Douglas R. Cole. Counsel for Defendants Plaza Properties, Inc. and Laurence Ruben: James C. Frooman and Katherine M. Klingelhafer. Counsel for Defendant LGR Realty, Inc.: Michael Carpenter, Katheryn M. Lloyd and Jeffrey R. Corcoran. Judge Kim Brown. Case

Caption: Milligan Communications, LLC v. Plaza Properties, Inc., et al. Case No. 10 CV 1471 (2013).

Defense Verdict. Premises Liability.

Plaintiff Victoria Sue Meadows (53years-old) sublet an apartment at 417 E. 15th Avenue owned by Defendant T&E Rentals I, LLC. The apartment had a front porch with poured concrete steps and a wrought iron handrail.

On March 10, 2009, Ms. Meadows left her apartment and placed her right hand on the handrail to steady herself as she descended the steps. The handrail collapsed and Ms. Meadows fell, landing on top of the handrail on the ground. She sustained fractures of her right pinky finger, vascular damage to her right tibia from a contusion, a broken upper denture and multiple other contusions and abrasions. Ms. Meadows sued T&E claiming that the wrought iron handrail was corroded, unstable, in disrepair and dangerous and that T&E failed to inspect and maintain the property. T&E argued that it had no notice that the handrail had deteriorated. Ms. Meadows was not working at the time of the accident, having been disabled by pre-existing unrelated conditions. She had some deformity in her little finger from the fracture that was permanent and interfered with her ability to play guitar, which she had previously enjoyed as a hobby. She also had skin discoloration and vascular complications from the tibia contusion that were still present at the time of trial. The parties stipulated on the medical bills and proceeded to trial on liability and non-economic damages. Plaintiff’s Expert: James Rutherford, M.D. Defendant’s Expert: None. Last Settlement Demand: $25,000.00. Last Settlement Offer: $20,000.00. Length of Trial: 2 days.

Counsel for Plaintiff: Ronald Plymale.

Counsel for Defendant: Benjamin Ritterspach. Magistrate Mark Petrucci.

Case Caption: Victoria Sue Meadows v. T&E Rentals Case No. 12 CV 9136 (2013).

Monica L. Waller, Lane Alton & Horst mwaller@lanealton.com 30

Winter 2015 Columbus Bar Lawyers Quarterly

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