Columbus Bar Lawyers Quarterly Winter 2016

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Winter 2016 Columbus Bar Lawyers Quarterly

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Winter 2016 Columbus Bar Lawyers Quarterly

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President’s Page

Who’s Got Your Back?

By Jay E. Michael Most of us do not plan to fail, but we do fail to plan appropriately. I am talking about planning for things most of us do not spend much time thinking about, the “Four D’s of the Law Practice Apocalypse:” disability, disbarment, death and deportation. These events wreak havoc upon our clients, employees, friends, our practices and even our adversaries in the profession. Most of us have backups for our computers and alarm systems, but we don’t have a backup plan for our practice.

Specializing in probate and estate planning, I often meet with new clients who say they need a will “in case they die.”

I often reply, with a wink and a smile, that there is no “in case” and we’re all eventually going to die. When – not if – one of the Four D’s happens, our practice may be in chaos and our clients faced with a crisis. The potential for disaster should spur us into taking action before it is too late.

With 40 percent of our members being small firm or solo practitioners, it is imperative that we plan ahead. During my term as president of the Columbus Bar, I want to help create an effective program that will help all of us plan ahead. You might ask how such a plan would work.

As of June 2015, only Florida and South Carolina have mandatory rules in place requiring attorneys to designate a surrogate in case of death or disability. Additionally, Maine tentatively has a mandated rule pending approval. Such plans include attorneys naming their proxy and keeping an inventory, with bar associations creating a registry to track surrogate attorneys. Even in states without mandated surrogacy programs, bar associations still offer resources, forms and checklists to those wishing to voluntarily implement an attorney proxy.1 Although some states, including Ohio, do not currently mandate attorneys to appoint a surrogate by providing specific requirements or outlining steps to take, it is still highly encouraged. From the guiding principles of attorney professionalism, we can infer that it is our ethical duty to ensure our clients’ interests and needs are still upheld in unforeseen circumstances.

In my vision for our own surrogacy program, participating attorneys would appoint a surrogate who would be a point of contact in the event of one of the Four D’s. The surrogate attorney would have limited authority to act and perform certain tasks on your behalf in the event you were no longer able to practice law. For instance, your surrogate could enter appearances in pending court proceedings, discuss issues with other attorneys and the courts and otherwise act to be sure your clients are not left without a lawyer’s protection and guidance.

I have had informal discussions about these issues with other lawyers over the past few years. Many work in large firms, so they have a built-in plan for the Four D’s. Small firm or solo attorneys all agree that it is important, even 4

Winter 2016 Columbus Bar Lawyers Quarterly

Small firm or solo attorneys all agree that it is important, even imperative, to have a plan in place. Unfortunately, too many of us think we’ll make plans someday, trusting or hoping that nothing catastrophic will occur until we get around to it.

imperative, to have a plan in place. Unfortunately, too many of us think we’ll make plans someday, trusting or hoping that nothing catastrophic will occur until we get around to it.

My goal is to work with the great team at the Columbus Bar Association to create a surrogacy program for our members. The idea of a surrogate may seem unnecessary, but none of us are immune to the Four D’s. It is our job to protect the interests of our clients, and this is an extremely important safeguard to have in place for them.

If any Columbus Bar member is interested in helping develop this program, I’d like to hear from you. Maybe you’ve been there and have some valuable suggestions to offer; maybe you’ve seen it happen to someone else; maybe you have a special area of expertise that can be helpful. Let’s work together; a diversity of thought and experience ensure that we have a viable program members can share.

1.

American Bar Association, “State Mandatory Succession Rule Chart.” http://www.americanbar.org/content/ dam/aba/administrative/professional_responsibility/ mandatory_successor_rule_chart.authcheckdam.pdf.

(2015).

Jay E. Michael, Esq. The Law Offices of Jay E. Michael jay@jaymichaellaw.com

Careful Who You Hitch Your Wagon To

By Rosa Winston A law firm just installed the latest case management program. When inputting data into the new system, one of the firm’s paralegals entered the wrong date for a court hearing on the opposing party’s motion for summary judgment. The opposing party won its motion by default because the law firm failed to appear on behalf of its client.

Although an honest mistake, this clerical error is an overt act of malpractice. Why? Because it worked to the detriment of the client, violating one of the industry’s principle edicts, competence. In the American Bar Association’s Model Rules of Professional Conduct, the preamble and preface address quality of representation with the latter clearly stating that its continued goal is to assure the “highest standards of professional competence and ethical conduct.”

Missing a filing deadline has serious consequences, some irreversible. For example, say in a personal injury claim, an individual or group of individuals might be forever barred from pursuing their legal matter, or in the case of a bankruptcy, it could be discharged if the attorney fails to file documents within the specified time. This was the case with Jennifer Hassall when her attorney Beauregard Maximillon Harvey failed to respond to the bankruptcy trustee’s motion to deny a discharge (Toledo Bar Assn. v.

Harvey, 141 Ohio St.3d 346, 2014-Ohio-3675). Harvey was charged with violating Rule 1:1 Competence of Ohio’s Rules of Professional Conduct. According to the Ohio Supreme Court’s Board of Professional Conduct, attorney malpractice

claims were up last year by 33 percent over the previous year.

While such misconduct often results in punishment for the attorney or firm, the outcome of such behavior can have dire consequences for the client. In one instance, a widow lost her home in a sheriff’s sale when the attorney representing her failed to file a timely answer in a foreclosure action (Komorowski v. John P. Hildebrand Co., L.P.A., 2015-Ohio1295). Initially, the trial court granted summary judgment for the defendant, but this decision was reversed by the Eighth District Court of Appeals in Cuyahoga County.

In essence, while I found no specific cases centering upon clerical or data entry errors as the impetus behind ethics charges, missing a deadline, regardless of reason, is grounds for accusations of malpractice, for it falls below the duty of care expected of legal practitioners in addition to its detrimental effects on clients and on the greater community served.

While researching this issue, it occurred to me that this is great information for the consumer and equally important information for the aspiring paralegal, as it offers a glimpse into the practices of potential employers. With an estimated 39,000 attorneys in Ohio, we must be careful, to borrow a pre-industrial phrase, about who we hitch our wagons to.

Rosa Winston Paralegal Studies, Columbus State Community College rwinston@student.cscc.edu

Winter 2016 Columbus Bar Lawyers Quarterly

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Collaborative Family Law 101: Introduction to a Different Way to Divorce

By Nancy L. Sponseller Substantive and procedural laws are not static; changes occur all the time. Some of the changes are radical and immediate, making headline news. However, many if not most changes are slow, evolve incrementally over time and may only be known to the attorneys who practice in the affected areas of the law. Collaborative family law is in the latter category. Twenty-five years ago, a divorce lawyer in Minnesota, with the blessing of the Minnesota Supreme Court, made the decision to abandon his divorce litigation practice and create “collaborative family law” which now has been embraced by lawyers in nearly every major city in the United States, including Columbus, and approximately 29 countries.

Collaborative family law now has become one of the most viable alternative processes to adversarial litigation, mediation, arbitration and negotiation without a collaborative participation agreement.

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Winter 2016 Columbus Bar Lawyers Quarterly

In the late 1990s, a number of family law attorneys in Columbus began to consider if the collaborative family law process could be used in central Ohio. Attorneys Heather G. Sowald and Linda J. Miller first obtained an ethics opinion that affirmed that attorneys could ethically practice collaborative family law in Ohio, in light of the then ethical requirement that a lawyer represent his or her client “zealously.” In 1998, the practice of collaborative family law commenced in central Ohio.

While collaborative family law developed and evolved over time, there were no legal requirements for and protections of collaborative practice that applied to anyone who wanted to practice collaborative family law and to all participants in a collaborative family law process. Hence, there was a need for basic requirements and protections that could only be achieved through the enactment of state law.

In 2012, with the support of the Ohio State Bar Association and the Ohio Judicial Conference, the Ohio legislature unanimously passed the Collaborative Family Law Act, effective March 20, 2013. This law is embodied in the Revised Code Sections 3105.41 to 3105.54 (referred to herein as “the law”). The following will highlight several key components of the law and collaborative practice.

The law’s definitions includes the definition of “collaborative family law process” to mean “a procedure intended to resolve a matter without intervention by a court in which parties sign a collaborative family law participation agreement and are represented by collaborative family lawyers.” Within the context of this definition, parties and their counsel commit, by contract, to resolve a domestic case in a reasonable and equitable manner by utilizing interest-based negotiations in an atmosphere of transparency, cooperation, integrity, respect and professionalism, and where the focus is on the present and future well-being of the parties and their children and where, depending on the needs of the parties in a particular case, there is appropriate involvement of neutral financial, mental health and child expert professionals as an interdisciplinary team.

This process is entirely voluntary, and no court may order a party to participate in this process. However, when the parties voluntarily agree to the process, if the provisions of the law and its benefits and protections are to apply – and whether you are a party, lawyer or non-party participant, yes, you will want these provisions to apply – the law mandates that there must be a collaborative family law participation agreement that includes a statement that the clients or parties intend to resolve the matter though the collaborative family law process, a description of the nature and scope of the matter, the identity of the collaborative family attorneys representing each party in the process and a statement by each collaborative family lawyer confirming the lawyer’s representation of his or her client as a party in the process.

From the beginning of the development of collaborative family law, a key requirement has been that an attorney who represents a party in a collaborative family law matter

may not represent the party in a subsequent adversarial proceeding involving the same collaborative family law matter, should any adversarial process be commenced. This requirement has been viewed as essential to parties and their collaborative lawyers who commit to continue to work diligently and in good faith to reach a final agreement on all issues even—and especially—when the going gets difficult.

This requirement is included in the law, subject to an exception where an emergency court order is either sought or defended to protect the health, safety, welfare or interests of a party or of a family or household member of a party.

Another core requirement of the collaborative process has been that there must be complete transparency of all information. This also is affirmed in the law which mandates that “at the request of another party, a party must make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery [as occurs in litigation] and shall update promptly information that has materially changed.”

A collaborative family law communication, as defined in the law, is essentially any statement that occurs in the process, from the time the participation agreement is signed until the process is concluded, that is made in connection with the process. Under the law, any of these communications are confidential to the extent agreed by the parties or as provided by the law of Ohio. The typical collaborative family law participation agreement includes a statement that all of these are confidential.

While there are exceptions in the law, as a general rule, all collaborative family law communications are privileged and

not subject to discovery and are not admissible in evidence.

However, evidence or information otherwise admissible or subject to discovery does not become inadmissible nor is such protected from discovery solely because it is disclosed or used in a collaborative family law process.

It is important to know that all of the professional responsibility obligations and standards still apply to the lawyer or other licensed professional who participate in this process. And, yes, all statutory obligations to report abuse or neglect of a child or adult also apply.

Collaborative family law now has become one of the most viable alternative processes to adversarial litigation, mediation, arbitration and negotiation without a collaborative participation agreement, which are the other process options available to the client who is seeking to end a marriage and restructure his or her family and the family finances.

Nancy L. Sponseller, Esq. Law Office of Nancy Sponseller nsponseller@rrohio.com

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Winter 2016 Columbus Bar Lawyers Quarterly

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What to Do When a Disgruntled Client Calls?

The First Steps of a Legal Malpractice Case

By Rick E. Marsh Attorney Jane Smith received a telephone call from a client, John Brown; she knew that Brown was disgruntled and unhappy with the result obtained in his legal matter.

Brown had paid a retainer, but the retainer had been long ago used up, and there was an outstanding bill of approximately $6,000 which remained unpaid for several months.

John Brown began the telephone conversation by telling Smith that he was not going to pay the current invoice of $6,000, that he was unhappy with the representation provided

by Smith and that he was going to obtain other counsel to investigate the matter and look into whether or not a legal malpractice action should be filed against her. Brown further requested that Smith send him a complete copy of his legal file, and that basically concluded the conversation.

This is not a happy moment in a lawyer’s professional life, but it is important to recognize the steps that must be taken at this point in time. The first thing that needs to be done is to make sure that the file of Brown, including all electronic transmissions, is kept intact and preserved. All electronic communications should be printed and placed in the file in a chronological fashion.

The second thing that needs to be done is to make a copy of the entire file and provide it to Brown. This should be done at the attorney’s expense. Do not refuse to provide a copy of the file because the client does not agree to pay for one. Make sure the attorney’s copy of the file is in the same order as the former client’s copy. Personally, I have had to submit a Request for Production of Documents to plaintiff’s counsel in multiple legal malpractice cases to get copies of client’s files.

Jane Smith might not think that she had a claim made against her as a result of the telephone conversation with Brown, but that probably is inaccurate. The next thing that needs to happen is for Smith to call her malpractice carrier and give notice of this potential claim. Smith is aware of the fact that she is insured by XYZ Insurance Company on a claims-made basis. When a claim is made, it must be reported to the carrier during the same time period or policy period so that there will be coverage. If a claim is made near the very end of a policy period, most policies contain a provision that claims with notice given in a reasonable period of time, even within a different policy period, will be covered.

While no lawsuit has yet been filed, the carrier will undoubtedly assign counsel to look into the matter or begin its own investigation with the thought that perhaps a pre-suit investigation and handling can stave off a future lawsuit.

One of the things that Smith needs to be cognizant of is the fact that she probably has a deductible and in some cases, her deductible may be high enough to warrant concern about paying any judgment or settlement. Furthermore, she needs to be aware of the fact that while her policy may have limits which comply with the Ohio Supreme Court’s insurance requirements, some insurance companies write legal malpractice coverage so that the expenses incurred reduce 8

Winter 2016 Columbus Bar Lawyers Quarterly

the amount of the coverage, such as an eroding, a burning or a wasting policy. This raises the ethical question of whether or not an eroding policy which has the Ohio Supreme Courtrequired limits of $100,000 actually meets the requirements of the Court. As soon as expense is incurred in defending or investigating the claim, the policy limits available are no longer $100,000.

Some companies will not write an eroding $100,000 policy because of this very reason, and whether or not writing it complies with the requirements of the Ohio Supreme Court is questionable. Depending upon the value of the potential claim, the same concerns are present even if the limits are higher. In other words, what is going to be left to pay the claim if the attorney’s policy limit is eroded by the defense costs incurred?

If Smith provides Brown with the entire file, then the letter or email transmitting the file should reflect the fact that the client called, was unhappy and requested his file. It should also indicate that Smith retained counsel to investigate a potential malpractice claim.

If the attorney-client relationship had not been severed prior to that date, that date needs to be “set in stone” so that there is no question that the attorney-client relationship ended on that date when Brown called Smith. If the attorneyclient relationship had been severed and ended well in advance of that telephone call, the letter transmitting the file should document the fact that the attorney-client relationship ended on a specific date, when Smith advised that there was nothing further that she could do on the matter.

For purposes of the one-year statute of limitations for legal malpractice, under the facts in this hypothetical situation, we now know that, as a certainty, the attorney-client relationship no longer existed on the date of the telephone call from the disgruntled client to the attorney. There may or may not be a question of fact as to whether the attorney-client relationship ended prior to that date.

Under those circumstances, it would be ill-advised for Smith to bring a collection action for her fee against Brown unless more than one year from the date of the telephone call had passed, including any time that Smith was out of the state of Ohio, which would have tolled the statute of limitations for bringing a potential malpractice claim as a counterclaim. If suit is filed by Smith, even after the statute of limitations has run on a legal malpractice claim, Brown could use the malpractice claim as a set off.

The important thing for Smith to recognize is that when she receives that telephone call, a claim is being made which requires her to report it to her insurance carrier and to make sure that the file is complete. Many attorneys, when a claim has been made, go into a state of denial and try to pretend that the claim does not exist. This does not help at all in the resolution of the matter. The attorney needs to participate, to assist counsel in understanding the issues and to get the matter resolved, if possible.

From personal experience, I recently received notice of a claim through an attorney’s malpractice carrier that the client, unrepresented, was making a legal malpractice claim for alleged damages incurred in a matter involving real estate taxes. The unhappy client asked not only for damages but for a return of attorneys’ fees, and there was no question about the fact that the statute of limitations had not run since the attorney was still representing the client.

The disgruntled client decided that mediation would be a good way to resolve the matter. I received an email from an attorney who does mediations, and he indicated the former client contacted him, asking him to serve as a mediator.

I obtained the file from my client; we made an investigation and determined that mediation would be an excellent way for a resolution of a potential claim. The insurance carrier agreed, the client agreed, we had a mediation with an unrepresented businessman and got the matter resolved very efficiently and inexpensively to, I believe, everyone’s satisfaction.

The attorney in the tax matter understood that any “disgorgement” of fees is not covered by the liability policy of insurance with XYZ Insurance Company. As the attorney handling the matter, I made it quite clear to my client and to the claim representative for XYZ Insurance Company that I was not going to get involved in the middle of that dispute, if there was one.

Fortunately, the insurance carrier paid the full amount of the settlement and there was no issue between the carrier and my client.

Overall, my advice to any attorney who receives a telephone call from a disgruntled client is to immediately report the matter to the insurance company, preserve the entire client file, provide it to the client upon request and actively participate in the defense of the claim.

Rick E. Marsh, Esq. Lane Alton & Horst rmarsh@lanealton.com

They Hung Mary Surratt: The History of the First Woman Executed for a Federal Crime

By Lloyd E. Fisher Jr. One of the fascinating sidelights of the 1865 assassination of President Abraham Lincoln is the story of Mary Surratt. Convicted of aiding and abetting the plotters and the killer, she became the first woman to be executed for committing a federal crime.

Growing up in the border state of Maryland, Mary felt the strong emotions of those who supported slavery and those who opposed it. Mary’s husband, John Surratt, was strongly pro-slavery and he used the family home as a haven for Confederate spies. John, burdened down with debt and drinking heavily, began to exhibit erratic behavior. John’s death in 1862 left Mary saddled with substantial liabilities, and the financial pressures eventually resulted in her moving to Washington D.C., where she opened a boarding house.

Mary’s son, John Jr., was a member of the Confederate Secret Service and an active supporter of the Southern cause. The Surratt tavern and boarding house became gathering places for Confederate agents and sympathizers, including John Wilkes Booth.

Early on April 15, 1865, District of Columbia police came to the Surratt boarding house looking for Booth and young John Surratt. Mary Surratt lied to the police about her activities on the fatal night but on April 17, federal agents visited the house and found damning evidentiary items. Mary was arrested and charged with conspiring in the assassination of the president.

Other charged conspirators included Booth, his brother, the owner of Ford’s theater and Dr. Samuel Mudd.

Confined in an old prison and under constant guard until the start of the trial, Mary’s health declined. She was permitted a rocking chair in her cell and received visits from her daughter. During the trial, she sat separate from the other defendants.

The simultaneous trial of all of the defendants began on May 9 and was before a military tribunal rather than a civil court. Some historians have suggested that officials thought that a military tribunal’s more lenient rules of evidence would help bring out all the facts of the conspiracy. Few attorneys were willing to represent the accused but eventually counsel took on the task.

Surratt claimed that she knew nothing of the plot to kill the president but her bartender testified that Mary told him to keep guns ready on the day of the killing. Among those guns were the weapons used to kill Lincoln.

On June 30, 1865, all of the accused conspirators, including Mary, were found guilty and sentenced to death. There were attempts to commute her sentence to life imprisonment but to no avail. Some legal scholars have said that the case against Mary was the most controversial of all the defendants.

On July 7, 1865, in 90 degree heat, Mary Surratt, dressed in a black dress, bonnet and veil, led the doomed defendants to the gallows erected in the arsenal courtyard. About 1,000 spectators heard the defendant Powell protest that Mary was innocent and should be spared.

Tradition says that as Mary approached the noose, her last words were “Please don’t let me fall.”

The Surratt boarding house still stands in Washington D.C. and is listed on the National Register of Historic Places. The courtyard that was the site of the hanging is now a tennis court.

An interesting sidelight to history.

Lloyd E. Fisher Jr., Esq. lloydfisher23@gmail.com Winter 2016 Columbus Bar Lawyers Quarterly

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The Race for Relevance: The Columbus Bar Board of Governors’ Retreat 2015

By Amy B. Koorn Does your association offer a member service that’s so valuable it ties your members to you? Does volume, such as programs, services and benefits, equal value? What is the Columbus Bar’s market? What are the needs of that market? Are we as a board positioned to meet those needs?

These are just some of the questions your board considered this past August at our annual retreat. While some of you may wonder just why the board members need a retreat to prepare for another season of dues collecting and programming, I can unequivocally represent to every member that the roughly 24 hours we spent away from our offices allowed us to focus fully on the advancement of our profession and your association. In this everevolving legal market where clients have increasingly unrealistic demands, law school debt rivals a home mortgage and technology changes more quickly than the Ohio weather, we took the time to consider what we do day-to-day and how it matters to you.

To facilitate the conversation, we read the “Race for Relevance” by Harrison Coerver and Mary Byers. In their publication, the authors presented five radical changes for associations based upon their experience consulting with organizations that ranged in size and type nationwide. In short, the authors concluded the traditional association member base is fading fast; in order to remain relevant in this culture, the successful organization must offer a cognizable return on the investment. Roughly translated, the authors suggest that before coughing up dues, members or potential members are now asking, “What’s in it for me?”

As a board, we are compelled to answer what is in it for you and what are we doing to make sure you know what the Columbus Bar Association offers. In a word: success. When we consider our function and our operations, we design the opportunities we offer with the purpose of enhancing your success.

The Columbus Bar offers you the tools to complement your practice. For some, those tools take the shape of a photo booth for a professional headshot to bolster your website or blog. For others, the tool is training and education in diversity or practice areas. And for others, it’s social activities that allow you to relate to your peers in a fun, local atmosphere. While this article is not meant to delineate every outreach opportunity we offer, it is meant to convey our commitment to our purpose. That purpose is to provide meaningful engagement to foster success as a lawyer or legal professional.

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Winter 2016 Columbus Bar Lawyers Quarterly

Very soon, if not already, you will notice increased communications from your bar association that informs you in a multi-media fashion what upcoming events and offerings are unfolding. To ensure we are hitting our target, the Columbus Bar has engaged Barb Burgie and Media Fusion to offer direction related to messaging in a cost-effective and attractive approach. In terms of the directory, that means more membership search options and a streamlined online appearance. It means more Facebook posts to promote upcoming events. And, it means the option to receive text reminders. All of these upcoming advancements are meant to make you more informed, better organized and slightly less stressed.

Rest assured. Your board recognizes that the “the fundamental changes that confront associations in the areas of time, value, market structure, generational differences, competition and technology” impact the composition of our membership and the expectations for meaningful membership. We hear what is asked of us and are prepared to please you, with the ultimate goal of enhancing success in your practice and professional career. As a board, we strive to foster professional business relationships with every one of our members, making the Columbus Bar an integral part of the secret to success. We look forward to serving you and remaining relevant to an enduring profession.

Amy B. Koorn, Esq. Franklin County Probate Court amy_koorn@franklincountyohio.gov

Whose Tax Attributes Are They Anyways?

By Theodore W. Johnson Internal Revenue Code Section 108 defines tax attributes to include an individual’s net operating loss carryovers and capital loss carryover. These items can have value for a taxpayer because of their ability to reduce future federal tax obligations and possibly create refunds. I will explore when these can lose value, be lost to the individual and lose value to the bankruptcy trustee.

When an individual suffers financial challenges, they may be able to negotiate a settlement with a creditor who is willing to take pennies on the dollar to settle a debt.

However, though they would hope that the aggravation is over, it has just begun. Under the IRS Code Section 108, cancellation of debt is considered income unless it meets one of the exclusions or exceptions. An exclusion is where just prior to the time the debt is cancelled, the individual is deemed insolvent. The amount of the cancelled debt that is not included in taxable income is less than or equal to the amount of the insolvency.

Let’s begin with recapping the financial status of a single individual we will call John Doe. Doe’s personal balance sheet on Jan. 14, 2014 looks like the following:

On Jan. 15, 2014, Doe is able to get Credit Card A to accept $10,000 and write off the rest. Doe has cancellation of debt of $90,000. Since the $90,000 is less than Doe’s $995,000 insolvency, none of the $90,000 is includable in federal adjusted gross income.

If the individual who has cancellation of debt that is not taxable happens to have attributes, like a net operating loss carryover, under IRS Code 108, that attribute is reduced to the extent that the cancelled debt is excluded from income.

That attribute reduction is made after the tax is determined or calculated for the year the debt is cancelled.

Using the previous example, let’s assume Doe has an $80,000 net operating loss carryover from 2013, and his only 2014 income was $50,000. Doe’s 2014 tax return would include the following:

The $30,000 represents the 2013 net operating loss carryover that was not used as part of the calculation of Continued on Page 14

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11

Litigation and Damages

The Duty of Competence and T

By Paige E. Kohn and Rodney A. Holaday The recent amendments to the Federal Rules of Civil Procedure1 and the ever-shrinking percentage of client records in paper format versus electronic data or records reminds us as lawyers that electronic discovery – like it or not – has and continues to grow exponentially. It is an unavoidable part of potential and actual litigation today.

As attorneys, we owe our clients the basic duty of competence in our representation.2 That includes “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” If a matter’s complexity and specialized nature is beyond our general experience or training, we need to acquire sufficient learning or skill in the area, “associate or consult” with others that have the requisite knowledge and skill or decline the representation.3 The duty of competence specifically includes understanding and being able to advise on “the benefits and risks associated with relevant technology,”4 and evolves as e-discovery technologies develop and become integrated into the practice of law.5 It is not just a “best practice” to understand trends in e-discovery. If your practice overlaps with or includes any litigation, it is your ethical duty to ensure that you are informed enough to advise your client of the benefits and risks in e-discovery, to associate with someone who is, such as other counsel or e-discovery vendors, or to decline the representation.

The Growing Amount of Data and E-Discovery Costs The staggering growth of data is undeniable and shows

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Winter 2016 Columbus Bar Lawyers Quarterly

no indication of slowing. Some estimates predict that data production from individuals and corporations will be 44 times greater in 2020 than 2009.6 The amount of data becomes particularly important in litigation because ediscovery is expensive. In federal litigation, some estimates indicate that e-discovery costs constitute 20 percent to 50 percent of the total costs of a case.7 Of that cost, the actual review of data and records is nearly always the majority of e-discovery costs, with some estimates at 70 percent.8 For many lawyers, any discussion that includes “bytes” quickly results in glazed-over eyes or disengagement to check their email on their smartphones. Stick with us here for a minute just to get a sense of volume and size. Where data was referred to by clients in megabytes and gigabytes (1,000 megabytes) as the norm in the past, some clients now speak in terabytes (1,000 gigabytes), with petabytes (1,000 terabytes) and exabytes (1,000 petabytes) on the way. As an example to showcase the size, one industry-standard reference equates one gigabyte of data with an estimated 75,000 pages or 25 banker boxes full of paper materials.

Are You Paying Attention?

Clients are doing their best to move toward a “paperless” workplace, be it e-mail, loose records on company servers, records stored on hard drives, the cloud, instant messaging, authorized use of social media or smartphones. The rise of “Bring-Your-Own-Device” policies has further co-mingled work and personal records thereby increasing the available data for potential discovery preservation and review.10

Trends in E-Discovery Out of all the paperless mediums, social media in particular appears to be a virtual goldmine for litigants due to unfiltered postings across social media applications and websites like Instagram, Facebook, LinkedIn and Twitter.

That, in turn, has spawned a patchwork of ethics opinions to provide guidance as attorneys grapple with how to ethically use social media technology in litigation.11 This also appears to be an area of e-discovery disproportionately concentrated with motions to compel or motions for sanctions over the last several years.12 So What’s New to Help Tackle the Volume and Ever-Increasing Sources of Electronic Data?

There is a small but steady drip of court decisions addressing technology as it evolves. Many courts actively encourage the use of technology to help tackle electronic data.13 Others overrule objections to the use of technology. 14 As one court stated, “[w]ith the advent of software, predictive coding, spreadsheets and similar advances, the time and cost to produce large reams of documents can be dramatically reduced” and the “effort expended to produce these records from the computer is significantly less than by hand.”15 The common name for these collective tools is technology assisted review or TAR. TAR can help attorneys make sense of and reduce the universe of data. For example, TAR can reduce duplicates of documents (“dupe or near dupe”), organize strings of e-mails (“threading”) to better understand the beginning, end and senders. TAR can also assist with consistency of coding by using algorithms to extract common concepts from documents (concept analyzer).

Predictive coding has been a particularly important TAR tool, which is a combined process of using people and computer technology to identify and reduce the amount of responsive documents through targeted tagging and analysis.

One judge described it this way: “[t]hrough iterative learning, these methods (known as ‘computer-assisted’ or ‘predictive’ coding) allow humans to teach computers what documents are and are not responsive to a particular FOIA or discovery request and they can significantly increase the effectiveness and efficiency of searches.”16 While predictive coding is still in its infancy, the case law generally supports its use for large document collections.17 Conclusion Big data is only getting bigger. Ethical rules, opinions and, in some instances, case law indicate that you cannot be an ostrich about e-discovery. You need to be competent enough to understand the benefits and risks associated with today’s relevant technology, which includes social media. If you’re not, you need to acquire the skills and knowledge to do so, associate yourself with others who already have the skills and knowledge or decline the representation. Within the world

of e-discovery, technology that helps handle the explosion in data and electronic records will continue to evolve.

See Revised F.R.C.P. 37(e) regarding express options for the court where a party fails to preserve electronically-stored information that should have been preserved; F.R.C.P. 16(b)(3)(iii) and (iv) regarding pretrial orders providing for the “disclosure, discovery or preservation of electronically stored information” and F.R.E. 502 agreements to control the effects of unintentional disclosure of protected or privileged information; and F.R.C.P. 26(b)(1) and its “proportional to the needs of the case” consideration when evaluating a request to limit discovery.

2.

Ohio Rules of Professional Conduct, Rule 1.1 Competence.

3.

Id. at Comment 1.

4.

Id. at Comment 8.

5.

See, e.g., California Professional Responsibility and Conduct Formal Opinion No. 2015-193 (6/30/2015) (“every litigation matter potentially” involves e-discovery; the ethical duty of competence requires an attorney to be able to assess e-discovery needs and issues, if any, and to implement appropriate electronically-stored information preservation procedures) and New York State Bar Association Committee on Professional Ethics Opinion No. 1020 (9/12/2014), FN3 (in evaluating whether a lawyer may post and share documents using “cloud” technology, noting that attorneys’ “duty of competence may require litigators, depending on circumstances, to possess a basic or even a more refined understanding of electronically stored information”) (internal citation omitted).

6.

Big Data Universe Beginning to Explode, Computer Sciences Corporation (2012) at http://www.csc.com/ insights/flxwd/78931-big_data_universe_beginning_to_ explode.

7.

Emery Lee and Thomas Willging, Defining the Problem of Cost in Federal Civil Litigation, 60 DUKE L. J. 765 (2010).

8.

Rand Institute for Civil Justice, “Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery.” (2012).

9.

See various Internet sources and the EDRM calculator at http://www.edrm.net/projects/metrics/budget-calculators.

10.

See, e.g., In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 BL 347278 (S.D. Ill. Dec. 9, 2013), rescinded on other grounds sub nom (holding that a litigation hold should extend to personal devices, some of which were company-issued, in order to preserve any text messages that might be relevant to the lawsuit).

11.

See, e.g., Ohio Judicial Ethics Advisory Opinion 20107 (Dec. 3, 2010), Supreme Court of Ohio, Board of Commissioners on Grievances and Discipline (“May a judge be a ‘friend’ on a social networking site with a lawyer who appears as counsel in a case before the judge?”); Arizona Supreme Court Judicial Ethics Advisory 1.

Continued on Page 14 Winter 2016 Columbus Bar Lawyers Quarterly

13

Continued from Page 13 Committee Opinion 14-01(August 2014) (use of social and electronic media by judges and judicial employees); and Philadelphia Bar Association Professional Guidance Committee Opinion 2014-5 (July 2014) (addressing privacy settings, instructions to clients concerning removal of posted information from Facebook, and discovery regarding Facebook content).

12.

See, e.g., Howell v. Buckeye Ranch, Inc. 2012 U.S. Dist. LEXIS 141368 (S.D. Ohio Oct. 1, 2012) (noting that plaintiff was on notice that the defendant sought information in the private sections of her social media accounts and that she remained under an obligation to preserve all information in those accounts); Painter v.

Atwood, 2014 U.S. Dist. LEXIS 35060 (D. Nev. Mar. 18, 2014) (sanctions motion against plaintiff regarding deleted Facebook posts); and Stewart v. CUS Nashville, LLC, No. 3:11-CV-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Aug. 8, 2013) (company blog postings on Facebook led to new lawsuit alleging retaliation).

13.

See, e.g., Good v. American Water Works Co., Inc., No. 2:14-CV-01374 (S.D.W. Va. Oct. 29, 2014) (encouraging the use of computer-assisted review in a published 502(d) order) and EORHB v. HOA Holdings, No. 7409-VCL (Del. Ch. Ct. Oct. 15, 2012) (stating “[t]his seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.”).

14.

See, e.g., Global Aerospace v. Landow Aviation, No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012) and Cambridge Place Inv. Mgmt, Inc. v. Morgan Stanley, No. SUCV20102741 (Mass. Super. Ct. Suffolk Mar. 21, 2013).

15.

Harris v. Subcontracting Concepts, LLC, CIV. 1:12MC-82 DNH (N.D.N.Y. Mar. 11, 2013).

16.

National Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency, 877 F. Supp. 2d 87, 109 (S.D.N.Y. 2012).

17.

See, e.g., Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) and Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, Nos. 2685-11, 8393-12 (T.C. Sept. 17, 2014).

Paige E. Kohn, Esq. Vorys, Sater, Seymour and Pease LLP pekohn@vorys.com Rodney A. Holaday, Esq. Vorys, Sater, Seymour and Pease LLP raholaday@vorys.com 14

Winter 2016 Columbus Bar Lawyers Quarterly

Continued from Page 11 Doe’s 2014 federal adjusted gross income. Since the $90,000 cancelled debt exceeds the $30,000 remaining net operating loss, all of the remaining net operating loss is wiped out leaving nothing to carry into 2015.

Now, what happens if Doe files bankruptcy? U.S. Bankruptcy Code 542 indicates that when an individual files a voluntary bankruptcy petition pursuant to Chapter 7 of the bankruptcy code, an estate in bankruptcy is created. IRS Code Section 1398 sets out income tax rules related to individual bankruptcy estates, including that a bankruptcy estate succeeds to the tax attributes of a debtor as of the beginning of the debtor’s taxable year when the voluntary petition is filed. IRS Sections 1398 and 108 indicate that any tax attributes of the debtor that the estate succeeds to are reduced after the tax is determined or calculated for the year the debtor receives their discharge in the bankruptcy filing.

Using the same facts related to John Doe, let’s assume that on Jan. 14, 2014, he files bankruptcy under Chapter 7 of the bankruptcy code with the same balance sheet as reflected in Exhibit I and the $80,000 net operating loss carry over from 2013. A bankruptcy estate for Doe’s case is created and succeeds to that $80,000 net operating loss as of Jan. 1, 2014. If Doe receives his discharge on Oct. 15, 2014 and the estate uses a calendar year for tax reporting purposes and has no income in 2014, the $80,000 net operating loss carryover that the estate received from Doe would be wiped out in 2014 because the $1,010,000 of debts discharged or cancelled is greater than the $80,000 net operating loss carryover.

Now, what does this mean for everyone involved? For the debtor, if he hits the lottery on Jan. 30, 2014 for $50,000, instead of thinking that the winnings will be offset by the $80,000 net operating loss carried over from 2013, no such loss carryover is available. This is the price paid for obtaining his fresh start as part of his filing bankruptcy.

For the trustee administering the bankruptcy estate, they have a net operating loss being carried into the estate that has a limited life. If the trustee is fortunate enough to have an asset of the debtor that once sold will produce a gain, whether the gain can be offset by this net operating loss or not depends upon the timing of the sale and/or the strategic selection of the year end of the estate.

Overall, the accountants for the debtor and the trustee need to know the tax law as it relates to these matters, aligning themselves as effective and valued advisors to these individuals to avoid return preparation and tax timing pitfalls.

Theodore W. Johnson, CPA, CFE, CFF Parms Company tjohnson@parms.com

COMBATING PIRACY IN THE GAMING INDUSTRY

By Luke A. Gilchrist Anyone who knows me well knows that I am a big fan of video games. I remember getting my first Nintendo Master System as a kid and cutting my teeth on Super Mario Brothers, P.O.W. and Legend of Zelda. My interest in gaming goes beyond just playing video games; I like to keep up with the industry’s news and trends. One industry constant is piracy.

Now, I am not taking about games starring dashing swashbucklers. I am talking about intellectual property theft.

Due to such things as illegal file-sharing online, this is a huge problem for the gaming industry.

In the home video game console market, the problem has been kept to a minimum, due to the need for specialized hardware and the use of tightly controlled distribution channels. In the personal computer market, however, the problem is much worse, because of the relative ease with which programs on a PC can be copied. In 2012, Ubisoft CEO Yves Guillemot estimated that 93 percent to 95 percent of all copies of the company’s video games on PCs are pirated. While that might be an overstatement, the problem is enormous.

Piracy can be fought in many ways. The two best-known ways are the use of the legal system and public awareness campaigns, such as those used in the movie and music industries, aimed at appealing to people’s sense of honor and fairness to dissuade them from stealing products.

But the gaming industry has been clever in recent years, exploiting the uniquely interactive nature of video games to combat piracy. Games are complex programs that can detect when a pirated copy is being played and can employ countermeasures to combat it. Furthermore, the requirement for an Internet connection to play and to download regular program updates provides a useful tool in combating piracy.

The gaming industry has invented some clever, humorous, creative and sometimes mean ways to combat piracy.

Ubisoft recently released the game “FarCry 4.” In the PC version, the player is given the option of adjusting his field of view. This option is fairly standard and allows the player to dictate how much of the game environment is displayed on the screen at any given time. But interestingly, in “FarCry 4,” this option is only available via a post-release software update. Only copies of the game that were legitimately purchased can receive it. Not long after the game’s release, players started to complain on FarCry 4’s online forum that the field-of-view option was missing. Ubisoft responded by outing the complainers as pirates. Ubisoft was not only able to identify the pirates but was also able to give them a good public shaming.

The makers of the “Talos Principle” also found shame to be useful. In the “Talos Principle,” players are tasked with solving increasingly difficult puzzles. Near the beginning of the game, the player enters an elevator. Some players started complaining on the game’s online forum that they could not exit the elevator. Further, they complained that not all of the game’s voiceovers were working. Once again, the players were busted. If the game detected that the player was using a pirated copy, the player couldn’t progress.

Here is a more subtle tactic. Remedy, the developer of the game “Alan Wake” set it up so that once a copy was detected

to be pirated, a part of the main character’s wardrobe would change. Specifically, a pirate eye patch would appear on Mr. Wake’s right eye as a constant reminder to the player that he stole the game. This subtle shaming may not have deterred many game pirates, but hopefully it panged the consciences of a few.

Some anti-piracy measures are not subtle, instead designed to ruin the game for the pirate. In “Serious Sam 3,” the game changes when piracy is detected. Right off the bat, the player is confronted by a humungous, all powerful, near immortal red scorpion. The player is given few options in combating the scorpion, making it almost impossible to defeat. If he somehow manages to defeat this mighty foe, the game camera eventually locks up, making it impossible to do anything other than run in a circle.

In terms of mean, the prize goes to “EarthBound,” a game originally published in 1994. When a pirated copy is detected, the difficulty level is ramped up, making playing an absolute grind. Then, right before the game’s ending, the game stops, resets itself back to the beginning and erases the player’s progress. All of those hours of grinding are for naught, and the player doesn’t even have the satisfaction of actually beating the game or seeing its conclusion.

Finally, a bit of the ironic. In the game “Game Dev Tycoon,” the player is tasked with building a successful fictional video game studio. If a pirated version is detected, the player gets a taste of his own medicine. The player will be notified that the fictional game his or her studio developed has been subject to massive pirating. The player’s fictional game studio cannot make a profit and therefore fails.

As world markets open up and more people start playing video games, the problem of piracy is only going to increase.

When the limits of the legal system are met and when public-awareness campaigns fail, perhaps these innovative approaches will slow down the thieves and make them think again.

Luke A. Gilchrist, Esq. Franklin County Court of Common Pleas gilchrist15@yahoo.com Winter 2016 Columbus Bar Lawyers Quarterly

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TRADITIONALLY NON-TRADITIONAL: BECOMING THE FIRST PUBLIC SMALL BUSINESS CONCIERGE IN THE COUNTRY

By Ryan P. Schick During the 2010 Capital University Law School Convocation, then Dean Richard Simpson addressed the realities of the job outlook within the legal profession at that time. With one question, he assuaged many in the crowd by asking, “Tell me this, in 10 years will the world be more or less complex?”

At that moment I knew I had taken the right step in leaving a career in journalism for one in the law. Now, I will not gloss over the facts; finding a job was very difficult, but little did I know that while I took a remarkable course my 3L year titled Law and New Governance, taught by professors Dennis Hirsch and Fenner Stewart, officials in Columbus City Hall were developing the very style of office this course argued in creating.

The Creation Law and New Governance examined a variety of theoretical and applicable methods to creating new 3P’s, publicprivate partnerships. Studies focused on micro and macro regulatory observation, collaborative governance and responsive law. Around this same time, Columbus City Council approached its Small Business Roundtable and challenged those business leaders to come up with a viable, unique solution to enable the city to act and react in a manner necessary for small business owners. More than 40 business members delivered a unanimous response: a singular point of contact within the city of Columbus who could bridge across agencies.

Additionally, this contact was to report to Mayor Michael Coleman and City Council in an ombudsman capacity to re-examine policies and develop new best practices, if necessary.

So here I am, distilling the oftencomplex array of city government.

Armed with my knowledge of the law, this position is not just a switchboard but a public navigator and lobbyist.

I should note, while I cannot directly refer constituents to attorneys, I do point a majority of my clients to the 16

Winter 2016 Columbus Bar Lawyers Quarterly

Columbus Bar Association’s directory resources.

A New Model: Customer Service Government What we’ve created is a “point of contact for fledgling capitalists, helping them navigate a maze of government regulations, licenses and permits and tap existing resources such as financial assistance and technical advice.”1 Every day, we work to assist businesses with help on permits and licenses, also identifying sources of financial capital and other development incentives.

Now carrying not one but two iPhones, I bring government to our constituents.

To date, I believe I have only had three formal meetings in my office yet well over a thousand coffees at Columbus’s amazing locally-owned coffee houses.

It is over these coffees that the future of the Columbus business scene is revealed.

Redefining Tradition?

Merriam-Webster defines tradition as “a way of thinking, behaving, or doing something that has been used by the people in a particular group, family, society, etc., for a long time.”2 I would like to emphasize the first part of that definition – a way of thinking.

What amazes me about Columbus, despite protestations from some, is that Columbus is in fact not risk adverse. To the contrary, when I first started this job, I came home from a very exciting event at Civichack.org’s Startup Storytellers, describing to my wife the “wave of existing and future entrepreneurship [in Columbus.]”

In over a year, I have been to countless events that I believe any solo attorney or associate with a foot in business should attend. Whether it is Wakeup Startup at COSI, participating in J.P Morgan Chase’s “StartUp Week” – returning in spring 2016 – or in the previously mentioned Civichack.org events, the opportunity to meet with brilliant entrepreneurs who are looking not just for legal assistance but for business guidance is right there at your

fingertips. For if there is one asset you should desire as a business attorney, it is your ability to give concise, objective advice to your clients. Because trust me, they need it – but can be too afraid to ask.

So let’s go back to 3P relationships – is it traditional for us attorneys to use the skills we have been fortunate to learn in furtherance of someone’s personal or professional dream? Of course.

Is it traditional for government to recognize its strength to take this major opportunity to enable small business by providing access to an attorney who does not provide legal advice but who acts as their public advocate? Sadly, the answer to that has been no – but not anymore. We are very proud to report that in recent months Seattle, Wash. and Asheville, N.C. have taken steps to implement their own model of the Small Business Concierge. And just last month, Inc.com recognized Columbus as the third-greatest “Startup Hotbed” world-wide.3 So what are you doing to make Columbus the most conducive environment to small business? I invite your help. Please feel free to reach me at rpschick@columbus.gov.

1.

2.

3.

http://www.dispatch.com/content/st orieseditorials/2014/08/03/smooththe-way-for-job-creators.html http://www.merriam-webster.com/ dictionary/tradition http://www.inc.com/marla-tabaka/4startup-friendly-cities-that-wantyour-business.html?cid=sf01001

Ryan P. Schick, Esq. Assistant Director of Building and Zoning Services, City of Columbus rpschick@columbus.gov

UNDERSTANDING THE ELEMENTS OF AN EFFECTIVE HEALTHCARE COMPLIANCE PROGRAM

By Trent P. Stechschulte There is no gold standard compliance program. The healthcare industry is heavily regulated, every organization is very different, and there are many identifiable risks of which organizations must be aware. The Elements of an Effective Compliance Program set forth in the Federal Sentencing Guidelines provides seven basic elements for structuring a compliance program. Here, I give a glimpse of what it entails for a healthcare organization to have an effective compliance program.

Element 1: Internal Monitoring, Auditing and Evaluating The exit interviews and final reports from external audits from payers, funders and accreditors assists organizations in understanding their risk areas. However, an organization’s internal audits should be used to expose its risk areas well before any external audit. Billing, coding and documentation audits should be a priority because of the potential for False Claims Act liability. Healthcare providers have a duty to ensure that claims are accurate, the services provided are medically necessary and arrangements do not violate the Anti-Kickback Statute or the Stark Law. Element 2: Policies, Procedures and a Code of Conduct An organization’s policies and procedures should be accessible, easy to understand and updated annually. During a new employee orientation, employees should be trained and attest to having read and understood the policies. A code of conduct should preferably be written by the chief executive officer and include a mission statement, a commitment to compliance and the ethical tenants of the organization. The compliance officer should keep up to date on all statutes and regulations applicable to the organization’s business and include compliance with those regulations in the policies and procedures.

Element 3: Designate Compliance Officer and Committee

The compliance officer is responsible for overseeing the compliance program.

This officer should create departmentspecific annual compliance plans, document all related events for the compliance committee and provide the board of directors with monthly reports.

Annual compliance plans should include descriptions of the high risk activities in each department and the internal monitoring to address those risks. The committee should review all compliancerelated events and provide feedback to the officer. Compliance-related events include internal and external audit findings, staff training tracking, incident reporting, accreditation reports, internal investigation updates and a review of hotline calls.

Element 4: Effective Training Employees should be trained on the compliance program at hire and annually thereafter. Training must include an overview of the program, reasons why the program is necessary, general organization-wide compliance requirements, an explanation of the department-specific policies and procedures and the organization’s training schedules. Most healthcare organizations train employees annually on confidentiality (HIPAA), general safety (OSHA), fraud waste and abuse and sexual harassment (EEOC).

Element 5: Responding to Offenses Before investigating potential issues, the compliance officer should exhaustively research relevant laws to better understand the organization’s risk. The officer, along with other highlevel staff, must determine who is best equipped to handle the investigation.

This could mean hiring a third party to investigate, involving the legal department or contacting external legal counsel. The investigator can determine the next best steps, such as interviews, data mining, audits, record review and email review. Whenever dealing with noncompliance issues, it may be wise to involve legal counsel to ensure privileged

communications. The findings of the investigation should be memorialized, and subsequent steps should be taken when required, like self-reporting.

Element 6: Effective Communication The compliance officer should be an approachable, professional outlet for every employee and the board of directors. An organization’s policies and procedures should require that employees report conduct that a reasonable person would, in good faith, believe to be unethical or noncompliant. It is important to adequately publicize and train employees on the internal reporting system, including that internal reporting will remain confidential and not subject to retaliation.

Element 7: Enforcing Policies and Procedures Noncompliant conduct should be dealt with swiftly and seriously.

Employees who, upon thorough investigation, are found to have violated an organization’s compliance program policies or any law, rule or regulation under which the entity operates should be subject to immediate discipline up to and including termination. However, the discipline should be commensurate with the transgression. The OIG Compliance Program Guidance states that organizations should have the same disciplinary actions for directors and managers as they do lower-level employees. Having unequal application of enforcement will not create positive organizational support.

Trent P. Stechschulte, Esq. Compliance Officer & Legal Counsel, AIDS Resource Center Ohio stechschulte.64@gmail.com Winter 2016 Columbus Bar Lawyers Quarterly

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Terrorism and Commercial Insurance Coverage

By Mark M. Kitrick and Elizabeth A. Mote It may surprise many to learn that it was big business, insurance companies and insurance commissioners that wanted the federal government’s financial support after a terrorist attack. Following Sept. 11, 2001, corporate interests extensively lobbied the federal government to reinsure or “backstop” commercial insurance policies to cover potential losses in the event of terrorist activities.1 In fact, President George W. Bush enacted such a law. How did this occur and what is the law now?

Why “terrorism insurance”?

Prior to Sept. 11, 2001, many commercial policies included terrorism coverage. Much like standard homeowners, renters or life insurance policies, commercial policies did not contain exclusions for damage caused by terrorist acts.

However, soon after the substantial losses experienced that day, estimated by The New York Times and other entities to be anywhere from $30 to $55 billion in toll and physical damage alone,2 many reinsurers announced they would not provide coverage for acts of terrorism in future reinsurance contracts.3 Such coverage became expensive if available and was largely unavailable in 2002.4 This happened because, state-by-state, many insurance companies requested exemptions from state insurance departments, the usual entities governing insurance matters.

The plethora of unanswered questions presented as justification for the requested exemptions included (1) whether various insurance companies had an ability to pay claims, (2) whether those corporations could sustain the level of exposure required to cover acts of terror, (3) whether businesses could afford not to have terrorist coverage, (4) how commercial developers in high-risk, large metropolitan areas could finance and develop projects if they did not have coverage and so on. In sum, insurance companies and other corporate interests were concerned about whether the private marketplace could handle the damages of a terrorist attack without government help and the confidence government sometimes provides.

What is “terrorism insurance”?

When contending with the possibility of large scale attacks, the corporate community intensely lobbied the federal government to share the risk with them, such as providing reinsurance or “backstop” coverage. The United States is not the first or only country to create a terrorism insurance program; Australia, Austria, Belgium, Denmark, France, Germany, Israel, the Netherlands, Spain, Switzerland and the United Kingdom all have their own versions of such government protection.5 Ultimately, President George W. Bush signed into law on Nov. 22, 2002 the Terrorism Risk Insurance Act of 2002 (Pub. L. 107-297, 116 Stat. 2322) (“TRIA”). At that time, TRIA created what was to be a temporary federal program that the Treasury Department administered, with the stated purpose to provide: 18

Winter 2016 Columbus Bar Lawyers Quarterly

“… a transparent system of shared public and private compensation for insured losses resulting from acts of terrorism, in order to (1) protect consumers by addressing market disruptions and ensure the continued widespread availability and affordability of property and casualty insurance for terrorism risk; and (2) allow for a transitional period for the private markets to stabilize, resume pricing of such insurance, and build capacity to absorb any future losses, while preserving State insurance regulation and consumer protections.”6 In plain terms, under TRIA insurance, the federal government reinsures or “backstops” private insurer losses attributable to severe terrorist acts.

TRIA first focused on foreign attacks and defined an “act of terrorism” as any act that the Secretary of the Treasury certifies, in concurrence with the Secretary of State and the Attorney General, (1) to be an act of terrorism, (2) to be a violent act or an act dangerous to human life, property or infrastructure, (3) to have resulted in damage within the U.S. or outside the U.S. to an air carrier or U.S. ship and (4) committed by an individual or individuals acting on behalf of any foreign person or interest, “as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion.”

In 2007, Congress added domestic acts of terrorism and these are now covered by the Act. After 2015, the Secretary of the Treasury must certify acts of terrorism in consultation with the Secretary of Homeland Security and the Attorney General.7 In addition to property damage to buildings, coverage may also include claims for business interruption, also known as business income coverage. Business interruption coverage covers losses that occur when business operations are suspended either due to direct damage or because authorities limit access to an area after an attack. Reductions in business income due to fear of traveling to a location and closure of areas by authorities because of a heightened state of alert would not be covered by business interruption policies.

Wasn’t the program supposed to be temporary?

TRIA was originally scheduled to terminate on Dec. 31, 2005. However, through ongoing corporate and business interest lobbying, the act has been extended three times.8 First, through Dec. 31, 2007, by the Terrorism Risk Insurance Extension Act of 2005 (Pub. L. 109-144, 119 Stat.

2660) (“TRIEA”) signed into law by President Bush. Second, through Dec. 31, 2014, by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (Pub. L. 110-160, 121 Stat. 1839) (“TRIPRA 2007”) again signed into law

by President Bush. Third, and most recently with bipartisan support, the act has been extended through Dec. 31, 2020, by the Terrorism Risk Insurance Program Reauthorization Act of 2015 (Pub. L. 114-1, 129 Stat. 3) (“TRIPRA 2015”)

signed into law by President Obama on Jan. 12, 2015.9 TRIPRA 2015 extends the act until Dec. 31, 2020.

How does it work?

The amount of government “loss sharing” with private insurers depends on the size of the insured loss. For a “small loss,” the private insurer covers the entire loss. For a “medium-sized loss,” the government assists with payments initially and then recoups the payments through a broad levy on insurance policies afterwards. For a “large loss,” the federal government covers most of the losses, although recoupment is possible. 10 The most recent version, TRIPRA 2015, raises the amount of insured loss needed to trigger the program from $100 million to $200 million over five years, beginning in 2016 (i.e. “a medium-sized loss”).11 Additionally, over five years starting Jan. 1, 2016, the mandatory recoupment rises from $27.5 billion to $37.5 billion, increasing by $2 billion each year through 2020. For all events, TRIPRA 2015 raises the private industry loss recoupment from the current 133 percent of covered losses to 140 percent of covered losses.12 Further, the current 85 percent federal share of losses decreases by one percentage point per calendar year until it is equal to 80 percent by 2020.

Who buys “terrorism insurance”?

The act requires commercial insurers to “make available” terrorism risk insurance for commercial property and casualty losses, including umbrella policies, but does not require policyholders to purchase the coverage.13 In addition, insurers eligible for coverage under the act include workers compensation pools, state-licensed captive insurers and risk retention groups. Personal lines insurance companies, reinsurers and group life losses are not covered.14 In 2014, the Congressional Research Service reported that “since TRIA’s passage, private industry’s willingness and ability to cover terrorism risk have increased. According to industry surveys, prices for terrorism coverage have generally trended downward, with approximately 60 percent of commercial policyholders purchasing coverage over the past few years.”15 The “take-up rate” of 60 percent has remained fairly consistent since 2005, with Marsh, Inc., a large insurance broker, reporting 64 percent in 2012.

How much does “terrorism insurance” cost?

The Congressional Research Service reported in 2014 that the price of terrorism insurance appeared to decline over the past decade. Specifically, “[t]he 2013 report by the President’s Working Group on Financial Markets shows a high of above seven percent for the median terrorism premium as a percentage of the total property premium in 2003, with a generally downward trend, and the latest values around three percent.”16 Rates, however, vary across industries. For example, rates have historically been higher for financial institutions and lower in the food and beverage industry.

According to the Rand Corporation’s Homeland Security and Defense Center, “[t]he only cost to the program has been administrative, about $1 million a year.” Rand also reports that the insurance industry has collected $4.6 billion dollars per year in terrorism insurance premiums.17 What isn’t covered?

Under TRIA, if war coverage and nuclear, biological, chemical and radiological (“NBCR”) restrictions are (1)

otherwise excluded and (2) permitted by a state, an insurer does not have to make available the excluded coverage. In other words, “[t]he Program covers ‘insured losses’ from a nuclear reaction, or radiological, biological or chemical release and/or contamination resulting from a certified act of terrorism, if the coverage for those perils is provided in the primary or excess property and casualty policy issued by an insurer.”18 Conclusion Since its inception in 2002, TRIA has never covered a company for terrorism-related losses. There are several explanations.

The Insurance Information Institute cites establishment of the Federal Victims Compensation Act minimizing, “the likelihood of a wave of liability claims.”19 The act created the Sept. 11th Victim Compensation Fund of 2001 that operated from 2001 to 2004.20 The fund, operated by a Special Master appointed by the Attorney General, provided nearly $7 billion in payments to individuals or personal representatives of deceased individuals who suffered physical harm or death as a result of the terrorist-related crashes or the debris removal efforts in the immediate aftermath. In return, victims and families were required to waive the right to sue.21 On Jan. 2, 2011, President Obama signed the James Zagroda 9/11 Health and Compensation Act of 2010 (P.L. 111-347) (the “Zagroda Act”), which reactivates the Sept.

11th Victim Compensation Fund.22 Following the Boston Marathon bombing, no money was paid under TRIPRA 2007 for losses because the Treasury Secretary did not certify “a terrorist act.”23 The Insurance Information Institute reports that the incident did not meet the $5 million minimum threshold under the act so all of the 207 property and casualty claims filed were handled by private insurers that made payments totaling at least $1.9 million.24 In addition, compensation would not have been paid under the act unless the aggregate losses totaled more than $100 million. According to Insurance Journal, citing the Massachusetts Division of Insurance, among some 160 commercial property and business interruptions claims made, less than 14 percent had separate terrorism coverage. As a result, if the event was certified as an act of terrorism under TRIPRA 2007, there probably would have been coverage gaps had the terrorism exclusions applied.25 Still, although no money was paid under the act, William Gallagher Associates, a Boston-based brokerage firm, reported a jump in midsized and smaller businesses purchasing terrorism insurance – with 80 percent having terrorism coverage after compared with 50 percent before.26 Ultimately, regardless of political persuasion or the position that the U.S. should not have such a “big” government, the reality is that sometimes even major corporate interests believe and know that federal assistance is necessary for economic continuity and stability, recovery and improved security.

1.

“Terrorism Risk Insurance (TRIA): Briefs, Letters, MOUs, Testimony & Speeches,” National Association of Insurance Commissioners & The Center for Insurance Policy and Research, available at http://www.naic.org/ cipr_topic_tria.htm (last accessed Aug. 18, 2015).

Continued on Page 20 Winter 2016 Columbus Bar Lawyers Quarterly

19

Continued from Page 19 “One 9/11 Tally: $3.3 Trillion,” The New York Times, Shan Carter and Amanda Cox, Sept. 2, 2011, available at http://www.nytimes.com/interactive/2011/09/08/us/sept11-reckoning/cost-graphic.html (last accessed Aug. 14, 2015).

3.

“Filing Procedures for Compliance with the Provisions of the Terrorism Risk Insurance Program Reauthorization Act of 2015,” NAIC Model Bulletin, available at http:// www.naic.org/documents/committees_c_tiiwg_2015_ model_bulletin.pdf (last accessed Aug. 14, 2015).

4.

“Terrorism Risk Insurance: Issue Analysis and Overview of Current Program,” Congressional Research Service, Brad Webel, July 23, 2014, available at https://www.fas. org/sgp/crs/terror/R42716.pdf (last accessed Aug. 14, 2015).

5.

“National Terrorism Risk Insurance Programmes of OECD Countries with Government Participation,” OECD International Platform on Terrorism Insurance Risk, available at http://www.oecd.org/daf/fin/insurance/ Terrorism-Risk-Insurance-Country-Comparison.pdf (last accessed Aug. 19, 2015). Although the systems function quite differently, Israel’s may be the oldest with a permanent system established in 1941 under the Property Tax Act. Initially, this was set up for acts of war, later extended to property damaged by hostile action (terrorism). Spain’s system is quite old too – established in 1954, with a substantial change in legal guidance in 1991.

A comprehensive international comparison is available at the OECD site above.

6.

“Terrorism Risk Insurance Program,” Treasury Department Resource Center, available at http://www. treasury.gov/resource-center/fin-mkts/Pages/program.aspx (last accessed Aug. 14, 2015).

7.

“Terrorism Risk and Insurance,” Insurance Information Institute, June 2015, available at http://www.iii.org/issueupdate/terrorism-risk-and-insurance (last accessed Aug. 24, 2015).

8.

Id. 9.

The New York Times reported “[t]he bill passed the Senate 93 to 4, a day after the House approved it 416 to 5.”

Jonathan Weisman, “Congress Passes Measure to Cover Terrorism Risk,” The New York Times, Jan. 8, 2015, available at http://www.nytimes.com/2015/01/09/business/ renewal-of-federal-terrorism-insurance-clears-congress. html?_r=0 (last accessed Aug. 24, 2015).

10.

See FN3.

11.

This increase occurs incrementally as follows: $100 million for calendar year 2015; $120 million for calendar year 2016; $140 million for calendar year 2017; $160 million for calendar year 2018; $180 million for calendar year 2019; and $200 million for calendar year 2020 and any calendar year thereafter.

12.

See FN3.

13.

See “’Make Available (Umbrella Coverage)/TRIA Section 103(c)/31 CFR § 50.23,” Treasury Department Resource Center, Sept. 21, 2004, available at http://www.treasury. gov/resource-center/fin-mkts/Documents/0921and.pdf (last accessed Aug. 14, 2015).

14.

See FN8.

15.

See FN3.

16.

Id. 2.

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Winter 2016 Columbus Bar Lawyers Quarterly

“New $40bn terrorism insurance law is full of gifts to corporations,” The Guardian, June 19, 2014, available at http://www.theguardian.com/business/2014/jun/19/ congress-renews-tria-terrorism-insurance-bill (last accessed Aug. 17, 2015).

18.

“Make Available; Property & Casualty Insurance (Nuclear, Biological & Chemical) / TRIA Sections 102(12) and 103(c) / 31 C.F.R. §§ 50.5.5(l), 50.23,” Treasury Department Resource Center, Interpretive Letters, Mar. 24, 2004, available at http://www.treasury.gov/resourcecenter/fin-mkts/Documents/redactedci.pdf (last accessed Aug. 17, 2015).

19.

See FN8.

20.

“About the Victim Compensation Fund,” Sept. 11 Victim Compensation Fund, available at http://www.vcf.gov/ genProgramInfo.html (last accessed Aug. 21, 2015).

21.

See FN8.

22.

See FN18.

23.

See FN12.

24.

Robert Hartwig, Ph.D., CPCU, “Terrorism Risk Insurance Program: Renewed and Restructured,” Insurance Information Institute, April 2015, available at http://www. iii.org/sites/default/files/docs/pdf/paper_triastructure_ 2015_final.pdf (last accessed Aug. 21, 2015).

25.

“Treasury Hasn’t Determined Boston Bombing Was ‘Act of Terrorism’ Under TRIA,” Insurance Journal, Sept.

19, 2014, available at http://www.insurancejournal.com/ news/east/2014/09/19/340994.htm (last accessed Aug. 21, 2015).

17.

26.

Phasant Gopal, Christopher Condon, Jack Fairweather, “Boston Marathon Attacks Convinced Smaller, Midsized Firms to Buy Terror Insurance,” Insurance Journal, Apr. 17, 2014, available at http://www. insurancejournal.com/news/national/2014/04/17/3266 86.htm (last accessed Aug. 24, 2015).

Mark M. Kitrick, Esq. Kitrick, Lewis, & Harris, Co., LPA mkitrick@kitricklaw.com Elizabeth A . Mote, Esq. Kitrick, Lewis, & Harris, Co., LPA liz@klhlaw.com

Innocent Until Proven Guilty …

Unless Poor, Uneducated or Minority

By Jocelyn M. Armstrong A basic tenet of criminal law is the presumption of innocence until proven guilty. It is the duty of the prosecutor to prove beyond a reasonable doubt that an accused is guilty of a crime. In many instances, the trial process is efficient.

The prosecution and defense attorneys present their cases and the jury decides the fate of an alleged criminal.

However, there are times when the information presented is skewed or incomplete. Some defendants are represented by ineffective counsel. At the end of some trials, innocent people find themselves sentenced to prison terms and even death. Hopefully through appeals, they gain their freedom and live the rest of their days outside of a prison cell.

How do teenagers cope with death sentences? Who is tasked with protecting the rights of the mentally incompetent? What happens when appeals are exhausted and innocent people are put to death? Bryan Stevenson and his team at the Equal Justice Initiative try to address these questions and more.

In his recent book “Just Mercy: A Story of Justice and Redemption,” Stevenson shares captivating stories of people who were fighting for their lives through appeals. Some of the clients represented by EJI were as young as 13 years old when sentenced. These young people were often from impoverished homes and victims of abuse. Some of them had mental and physical disabilities that were exacerbated by the conditions in prison. Prior to Roper v. Stevens in 2005, 19 states, about half of the states with the death penalty at the time, allowed execution for persons under 18 years old. In the 1980s and 1990s, Alabama and Florida had the worst statistic for juvenile offenders. Alabama had more juveniles sentenced to death per capita than any other state – or any other country in the world.1 Florida had the largest population in the world of children condemned to die in prison for non-homicides.2 Defendants deemed incompetent cannot be tried in adversarial criminal proceedings unless they become well enough to defend themselves. However, when defense counsel fails to file the proper motions or present evidence to substantiate incompetence, vulnerable people are sentenced and often unable to access the treatment they desperately need. The EJI has defended the mentally ill, who were overlooked by the court system and mistreated by prison personnel.

The work of Bryan Stevenson, the EJI and criminal defense attorneys across the nation is tedious and thankless.

Their courageous efforts should be a clarion call to all attorneys to support the notion of justice for all no matter

our location or practice area. While we may not join them in the trenches and do the daily work to represent marginalized persons, we can educate laypersons about their rights or donate to organizations established to help the indigent. We can support our colleagues by providing a listening ear or opening our offices as a place of respite.

1.

2.

Victor L. Streib, Death Penalty for Juveniles (Bloomington: Indiana University Press, 1987).

Annino, Rasmussen, and Rice, Juvenile Life without Parole for Non-Homicide Offenses (2009).

Jocelyn M. Armstrong, Esq. President, John Mercer Langston Bar Association jocelyn@cbalaw.org

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Learn more at www.goodhealthcolumbus.org/cmaf Winter 2016 Columbus Bar Lawyers Quarterly

21

A Bird’s Eye View From the London Eye

By Hon. David E. Cain A good way to start one’s first visit to London is by taking a ride on the London Eye. From 443 feet above the South Bank of the River Thames, you can get a good idea of the layout of the world’s most popular tourist destination.

The London Eye, also known as the Millennium Wheel because it opened in the spring of 2000, is the world’s tallest Ferris wheel with 32 passenger capsules capable of holding 20 persons each.

One can see 25 miles in any direction on a clear day.

In the foreground is an array of British icons, the closest being the Houses of Parliament and Big Ben just over the river a little to the southwest.

Look a couple miles east, and you can see an ultra-modern counterpart called the Shard, London’s newest skyscraper that arises 1,012 feet into the sky with an observatory on the 72nd floor. The building is also known as the Shard of Glass, as the tops come to points like pieces of broken glass.

From the top of the Eye – that now gets more visitors than the Eiffel Tower in Paris – you can visually trace the routes of tourist buses and start thinking about where to spend whatever time you have because it most probably won’t be enough.

My wife, Mary Ann, and I arrived in London from Barcelona after

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Winter 2016 Columbus Bar Lawyers Quarterly

traveling in Spain with my sister’s chancel choir from a United Methodist Church in Indianapolis. We had made arrangements to meet Tony and Penny Derrick who became good friends on a Danube riverboat cruise a couple years ago and who live in the suburban Farnham about 40 miles southwest of London. They stayed at their friend’s flat in the Theater District of the capital city, serving as our personal guides the next two days.

The Derricks met us at our hotel, about a mile south of the Waterloo Bridge – not far from the Eye – and suggested we make that our first stop.

Judge Charles Schneider and his wife, Judy, did the same on their recent visit to London while enjoying a two-week tour through five countries and five capital cities.

“There’s no better view of London,” Judge Schneider said of the Eye. Their tour started in London with a two-day stay and ended back in London for a three-day stay. In between, they took buses and a couple boats around the British Isles. The tour took them to Cardiff in Wales, Dublin in the Irish Republic and Belfast in Northern Ireland.

“Edinburgh exceeded my expectations, and the Scottish countryside is beautiful,” he declared.

London is in a tourism boom, hosting more than five million international visitors in the spring of 2015. Predictions were for the city to have a total of nearly 19 million visitors in 2015; that would put it ahead of Bangkok and Paris for the world leader in tourism.

On our first morning, we attended an event that draws thousands of tourists on a daily basis in the summer and every other day in the winter – the changing of the guard at Buckingham Palace. The precision marching of the bright red and black uniformed bands and drill teams that entered the area from different streets, concluding with a concert in front of the stately Buckingham walls, made the ceremony great entertainment, reeking with history and culture.

We then visited the Royal Mews on the other side of the palace where the royal coaches and carriages are kept.

The mews is responsible for all road travel arrangements for the queen and members of the royal family. The most spectacular is the Gold State Coach that weighs two tons and requires four horses for movement. The golden coach has been used at every coronation since George IV’s in 1821. A visit to the Queen’s Gallery is worthwhile for the great art – featuring 400 years of horticultural art and eye-popping ceramics.

That afternoon, we visited a former marketplace where phenomenal street musicians entertained huge crowds, strolled around the Covent Garden outside St. Paul’s Church and were fascinated inside the church by the plaques that memorialized the famous actors and actresses who worshiped there.

We started the evening with fish and chips in a pub near the Tower Bridge, the highly recognizable icon frequently misidentified as the London Bridge which is actually the next bridge to the west. We walked in that direction along the South Bank sidewalk where one thrill did tread upon another’s heel, so fast they followed. The first was the Southwark Church where former parishioners included Geoffrey Chaucer, William Shakespeare and Charles Dickens.

As we approached the London Bridge we had to leave the riverbank and walk about a block to the south to get around it. A short way up the back street, I stood in front of a small museum with bars in its windows. A sign informed me that I was at the location of a former jail whose name is used in reference to jails all over the world. I was standing on Clink Street in front of the notorious Clink Prison which dated back to 1144 but was burned down during riots in 1780 after giving us the slang phrase “in the clink.”

The next landmark we came to on the South Bank was Shakespeare’s Globe Theater which was originally designed in 1599. It reopened in 1997 after reconstruction.

We spent most of the next day on a tour bus, riding past many places where one could easily spend an afternoon.

The double-decker buses have a history of their own. The idea of two levels came up in 1851 when benches were put on the roofs of stage coaches to help carry the large number of people going to exhibitions in Hyde Park, a big concert venue starting in the 1960s. Ear phones are handed out on the buses so riders can listen to recorded commentaries available in 10 languages.

The first great facility we actually entered that day was Westminster Abbey, with a history going back more than a thousand years. The First Benedictine monks settled at the site in 960 A.D. William the Conqueror’s coronation took place in the abbey in 1066 and it has been the nation’s coronation church ever since. Many kings and queens are entombed here along with famous persons like Geoffrey Chaucer, George Frederick Handel, Dr. David Livingston and Charles Darwin. I was excited the night before when I saw Richard II was slated for performance the Globe Theater (I did take a course in the Shakespearean histories in college and that play was my favorite), but not nearly as excited as when I saw his crypt from the 13th Century in the abbey. Penny said the last time she was in Westminster Abbey, she was 17 years old and Winston Churchill was lying in state. She remembered thinking it was “weird.”

That evening, we traveled by car to the Derricks’ home where we spent the last two days of our time in the United Kingdom.

The following day, we took a relatively short trip to the 900-year-old Windsor Castle, the oldest and largest occupied castle in the world. The queen spends most of her private weekends at Windsor, which has been the home of 39 monarchs. Tours of Windsor usually include a visit to St. George’s Chapel – an ornate stand-alone building inside the walls that serves as a place of worship and the tomb of 10 monarchs, state rooms adorned with magnificent artworks, a museum commemorating the 200th anniversary of the Battle of Waterloo, Queen Mary’s Dolls’ House and other amenities fit for a king.

Judge Schneider had more days in London than us; to my envy, he was able to do more, such as a trip to Stonehenge, shopping at Herod’s where “one thing you will never see is a ‘sale’ sign” and squeezing up the narrow stairway to the Golden Gallery above the dome over St. Paul’s Cathedral.

London offers so many things that we’ve heard about all our lives with evidence of the “mother country” everywhere. We barely scratched the surface.

The Honorable David E. Cain Franklin County Court of Common Pleas david_cain@fccourts.org

Winter 2016 Columbus Bar Lawyers Quarterly

23

A Review Of “Fighting for The Press:

The Inside Story of the Pentagon Papers and Other Battles”

By Janyce C. Katz To some of us, the Vietnam War is a distant historical fact similar to World War II, because it happened before we were born or before we truly understood world events. Others vividly remember the anti-war marches, the pro-war speeches and the news coverage of the Vietnam War through the entire era up until President Nixon resigned on Aug. 9, 1974.

For almost all of us, the word Watergate now connotes the scandal surrounding the White Houseorchestrated break in of the National Democratic Party headquarters rather than an expensive condominium complex on the Potomac next to the Kennedy Center.1 And the words “Pentagon Papers” have come to mean either a fight for a free, responsible press able to publish important information without prior restraint or a wanton display of secrets endangering our security.

What has become known as the Pentagon Papers was a secret history of the Vietnam War commissioned by then Secretary of Defense Robert McNamara and officially titled “Report of the Office of the Secretary of Defense Vietnam Task Force.” The history, completed in 1969, consisted of 47 volumes – 3,000 pages of history and 4,000 pages of documents that had been classified in the archives of the Departments of Defense and State and in the Central Intelligence Agency.

Some of these documents and the history itself showed a path to war with Vietnam that differed radically from what had been publicly stated.

New York Times Co. v. United States, 403 U.S. 713 (1971) was one case that emerged during this tumultuous time, based upon Nixon’s use of the Espionage Act to enjoin first The New York Times’s and then The Washington Post’s publication of the Pentagon Papers. Perhaps because the argument of the government changed, as did the standard requested to prohibit publication, six justices in a per curiam opinion held that the government did not overcome the “heavy presumption 24

Winter 2016 Columbus Bar Lawyers Quarterly

against” prior restraint of the press.

This case was just one of the major cases that arose out of the Vietnam/ Watergate/Nixon era.2 In part, the Times case arose because of Nixon’s strong anti-press, especially anti-East Coast press, bias.

While a book containing the part of the Pentagon Papers printed in the newspapers was published in late 1971, the entire 7,000 pages was released to the public on the 40th anniversary of its publication. Now, it is possible to read on the Internet evaluations of some of the material then called classified. The U.S. government’s attorneys introduced some of these documents as new evidence at both the court of appeals and the Supreme Court as factual proof that the newspapers should be enjoined from publishing the Pentagon Papers.3 Even with the era being old history discussed in other books and with almost all the material in the Pentagon Papers being Internet accessible with the swish of a mouse, “Fighting for the Press” should be read. Not only does it give the inside “scoop” of the events leading to the Times case, it also raises issues that are important now.

One such issue is what exactly is considered “classified” by the Departments of State and Defense and at the CIA. Even today, when some in Congress argue certain emails should have been treated as classified but were not, the question “what is stamped classified as opposed to what should be stamped classified” is pertinent.

In the book, Goodale discusses a problem he encountered when researching whether the Espionage Act applied to publishing the part of the Pentagon Papers held by The New York Times. The documentation for the 3,000-page narrative included newspaper articles based upon stories leaked in an attempt to change policies grouped together and stamped “classified.” He also found a memo previously leaked and published several years earlier classified as one of the secret documents in the Pentagon Papers. Later, during the court cases, the government argued that the

publishing of this memo, already in the public arena, would be detrimental to U.S. security.

Goodale raises the issue of where the line should be between the need to protect important secrets to safeguard national security and the need to inform the general public about issues, to allow people to make wise decisions when voting and when supporting governmental policies. He believes not every document should be made public, a la WikiLeaks, but that the standard to bar publication should be extremely high.

James Goodale, formerly the vice chairman and general counsel of The New York Times, had a career many of us can only fantasize. As a young lawyer, he had “enormous responsibility” at Lord, Day & Lord, working on cases like Sullivan v. New York Times, 376 U.S. 254 (1964), which established the actual malice standard for liable cases involving a public figure. He was in the right place with an impressive resume when The New York Times wanted to hire a younger chief counsel. He was hired and went on to build up the paper’s legal department.

When The New York Times was given access to the Pentagon Papers, Goodale strategized how the paper could publish the documents by interpreting the wording of the Espionage Act against enjoining the printing of the papers.

Not only did he develop a winning strategy, but when Lord, Day & Lord’s most prominent lawyers advised The New York Times to avoid printing the Pentagon Papers, he prevailed over them. Imagine standing up to a firm’s most prestigious partner, who is also the president of the bar, and successfully implementing a strategy you believe in but that the partner argued was totally wrong. Imagine doing that and remaining employed.

After deciding the Times case, the Court’s membership changed. The Court decided another important free press case, Branzburg v. Hayes, 408 U.S. 665 (1972), in which the 5-4 majority invalidated the use of the First Amendment’s press clause as a defense

for reporters summoned to testify before a grand jury. In his opinion, Justice White recognized the importance of a free press and established a test outside of an absolute protection privilege for deciding whether a reporter can be compelled to testify before a grand jury. To subpoena a reporter’s notes or a reporter, the government had to “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” One of the three cases combined in this decision involved a reporter for The New York Times, whose early defense Goodale had strategized. After the case, Goodale organized a group of attorneys, publishers, editors and reporters to fight for press freedom.

Goodale’s book doesn’t stop at the day Nixon waved “bye” from the plane as he left the presidency and flew back to California. He talks about the post Sept. 11 world, a time when he describes a press that had come full circle and President George W. Bush, who began a new war against the press, reviving the use of the Espionage Act in the process. While he found Bush’s motives to be different from those of Nixon, he thought the impact on press freedom was the same. As for President Obama, who had argued in favor of shield laws for reporters in his 2008 campaign, Goodale believes once in office, Obama picked up where Bush left off.

Goodale, absolutely charming and highly articulate in person, comes across as extremely self-confident in the book and assumes that the reader not only knows the issues and the players he discusses but also cares about having a strong, free press. For that reason, before picking up “Fighting for the Press,” one should have a basic understanding of the history of the Vietnam War period. Then, Goodale’s descriptions of the actions of people, the history of the publication of the Pentagon Papers and the strategy to win the court cases read like a novel.

His arguments in support of free press are also quite understandable, whether or not the reader agrees with them. I found the book not only an important contribution to the literature of the era but also a fascinating, worth-while read.

1.

In fact, the word “gate” is perhaps too often tacked onto other descriptive

2.

nouns to symbolize a disgraceful event with political undertones.

Another critical case, United States v. Nixon, 418 U.S. 683 (1974), qualified executive privilege and allowed a subpoena of tapes for which Chief Justice Burger, writing for a unified Court, also held that there was sufficient likelihood that conversations on the tapes would be relevant to the charges against the Watergate Seven (several “burglars” and a few top White House staff members. But for the publishing of part of the Pentagon Papers first by The New York Times, then by The Washington Post and when they were enjoined, by other papers, in all probability, White House-connected burglars would not have broken into the office of military analyst Daniel Ellsberg’s psychiatrist. The burglars were looking for evidence to use in the trial against Ellsberg, who had worked on the study, for leaking allegedly classified documents.

Possibly, but for the publication of these papers, “ burglars” would not have been looking for whatever at the Democratic Party headquarters in the Watergate. Or, possibly in a preeverything available on-the computer

3.

era when campaign funding could arrive as cash stuffed into suitcases, some would have considered such a “burglary” to be part of a normal campaign strategy.

See, e.g. http://www.history.com/ topics/vietnam-war/pentagonpapers; http://nsarchive.gwu.edu/ NSAEBB/NSAEBB48/secretbrief. html. Last visited July 31, 2015.

Janyce C. Katz, Esq. Senior Vice President, General Innovations & Goods, Inc. janyce.c.katz@gmail.com

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Winter 2016 Columbus Bar Lawyers Quarterly

25

Lawyers With Artistic License Daniel E. Gerken

By Heather G. Sowald

Daniel Gerken, a litigation associate at Bricker & Eckler, is a budding renaissance man—philosopher, songwriter, piano and stringed-instrument player, marathon runner, cook, community volunteer, reader, lecturer and writer. On top of that, he adds additional passions: his wife, attorney Katie Ross-Kinzie, and their baby daughter, Audrey. It makes his day, he says, when his daughter’s face lights up as soon as he grabs a guitar off the wall to sing and play for her.

Born and raised in Norwalk, Ohio, Dan has followed in his father’s footsteps—professional by day, amateur musician on nights and weekends. Dan began piano lessons at age five and by age 12, he won a statewide piano competition. Having mastered his first instrument, he moved on to playing cello in the middle school orchestra and baritone horn in the middle school band.

Later, he began experimenting with electric guitar and other instruments in jam sessions with his older brother, Josh, and their friends. These sessions evolved into a band, which included his brother on drums, playing at high 26

Winter 2016 Columbus Bar Lawyers Quarterly

school dances and graduation parties.

At 17, Dan enrolled at the Interlochen Arts Academy in Michigan, studying piano performance and cello. Following high school, Dan received a Bachelor of Arts in philosophy and political science from Bowling Green State University and a Master of Arts in philosophy from The Ohio State University in 2003.

Subsequently, until his graduation from George Washington University Law School in 2011, he worked in the real estate industry, still wrote songs, toured the country with his band Miranda Sound and actively volunteered for community organizations. Dan met Katie at law school while they were organizing a fundraiser for the GW Law School Equal Justice Foundation.

Katie, an assistant public defender for the Office of the Ohio Public Defender, expresses her own creativity through quilting and collage.

While Miranda Sound still occasionally performs, Dan’s current creative outlet is writing songs and performing in another local band called FACE. Both bands play indie rock songs written by Dan and his

bandmates. FACE, in which Dan sings and plays guitar and keyboard, includes his younger sister, Dinah, who sings and plays keyboard and electric ukulele. Dan also sings and performs solo on the acoustic guitar at various venues around town, like Tree Bar and Little Rock Bar. Dan finds his musical background to be useful to him as an attorney. He observes that both music and the practice of law have rules, theory and structure but there is room for interpretation within those frameworks. He finds the creative side of both arenas to be where the most fun occurs. Further, as Dan points out, both music and litigating are about communicating with your audience, attempting to discover what will resonate with them the most.

Like his father, Dan works by day as a professional but maintains a strong interest in the joys of creating music in his downtime. For him, creating music is not a choice—it is, he says, like a faucet without a handle. Dan knows he is fortunate to be able to indulge all of his passions as he continues to build his family, practice his profession and expand his musical repertoire.

Heather G. Sowald, Esq. Sowald Sowald Anderson and Hawley hsowald@sowaldlaw.com

A Law Class’s Resolutions

By Jameson C. Rehm Probably the best part of entering a new year is the setting of resolutions.

This practice allows you to shake the dust off of the old year and enter the new with renewed hope and fresh goals to better yourself, your family or your work environment. Granted it’s rather rare that we keep these – seriously, I think I gave last years’ resolutions up in early February, setting a new record for the longest I’ve ever kept a resolution – but it’s still a great idea, being able to start with a clean slate each year.

The legal world is no different, with typical resolutions splitting between spending more time out of work on relationships to spending time at the gym. The idea of creating a sustainable work-life balance is at the core of these resolutions. But what about law students in the night program? Do we even have time? Well, I polled them to find out. Short Answer? Not really.

See, very few of the resolutions had to do with time outside of class. When one works 40 hours a week, goes to class another 15 and spends whatever time is left on homework and family, one doesn’t have time to “go to the gym” or “read a book for fun.” It’s just not possible. I think the biggest surprise for me was that only one resolution had to do with sleep. Apparently, the Capital University Law School Evening Program of May 2018 has just given up on sleep.

The responses fell into three main categories: relationships, school and food. Relationships won out, with class representative and Federal Police Officer Thomas Spyker’s resolution to “repair the emotional damage done to all my relationships with people outside of school” receiving the most votes while actually not being tongue in cheek – well, not firmly planted anyway.

Also receiving top votes was Legal Intern at the Ohio Department of Safety Sarah Ingles’s resolve to “stop being sassy and giving friends and family my graduation date from law school when they ask when I’m free next.”

Public Defender Paralegal Alicia Lash’s resolution is that she’d like to “watch a TV show without pointing out what they are doing wrong or

The idea of creating a sustainable work-life balance is at the core of these resolutions. But what about law students in the night program?

Do we even have time?

Well, I polled them to find out.

Short Answer?

Not really.

which rights they are violating.” While I appreciate Sarah and Alicia’s resolve to eliminate the sass, I have to question why they are in law school in the first place. If not to sass on a normal basis, then why?

The food resolutions had nothing to do with eating healthier, eating less or watching what we eat. Because who has time for that? Instead, they focused on the enjoyment of the food.

For instance, Net Jets Paralegal Brian Morgan noted he’d like to “go one week without eating a meal in my car,” a thought that numerous classmates agreed with. Classmate Adria Troyer followed Brian’s thread, resolving to “have at least three warm meals a week.” Sounds easy? It’s not. Actually, it sounds impossible.

School resolutions placed a lowly third in our poll, probably because we’re all amazing students – please detect the sarcasm, I’m pretty sure we just don’t like to think about school unless forced. Criminal Defense Paralegal Josh McNett resolved to “sit through one class per week and not online shop or check Facebook,” a resolution seconded by numerous classmates.

While I commend the thought, I tend

to see this as a resolution that may not survive mid-January.

General Practice Paralegal Chelsey Kovach resolved to prep for class a little more emphatically than 2015.

The final resolution that pertained to school work was submitted by Insurance Paralegal Ruth Miller, who is going to “collect my outlines from outside sources before the first day of class.” Commendable, though it breaks the capstone rule of law school: create your own outlines.

As mentioned, we shockingly had only one submission on sleep resolutions.

And it wasn’t even regarding getting more sleep. Insurance Paralegal Shaina Hombach resolved to “stop taking eight minute naps.” Again, while I appreciate the candor, I look to this one being broken come mid-January, probably while attempting to fulfill Chelsey’s resolution.

So there you have it, a law class’s New Year’s Resolutions. Why am I publicizing this? Two reasons. One, literally all I know is law school right now and while it would probably amuse you professionals as I attempt to explain how to use Ohio’s Long Arm Statute to obtain personal specific jurisdiction over a company in Mozambique with a distributor in Pennsylvania, it would not amuse me. Two, as a warning. We are a great class and working hard, but it appears, at least per our resolutions, we are going to be well fed, somewhat studious and exhausted. Engage at your own peril. Well, at least until many of these are broken by mid-February.

Jameson C. Rehm Capital University Law School, Class of 2018 jamie@cbalaw.org Winter 2016 Columbus Bar Lawyers Quarterly

27

Civil Jury Trials FRANKLIN COUNTY COMMON PLEAS COURT

By Monica L. Waller Verdict: $125,000.00. Securities. In 2006, 76-year-old Helen Sarsgard invested $125,000 of her husband’s retirement money in a promissory note issued by Your Financial Community of Ohio, Inc. (“YFC”). Defendant Michael Costanzo was president and a director of YFC, which owned a shopping center in Powell, Ohio and also sold insurance.

The note paid seven percent interest with the principal due at the end of five years. The interest rate was more than double what Sarsgard could earn in a bank CD. However, it was an unsecured obligation. For the next two years Plaintiff received monthly interest payments just as promised. In October 2008 following the Wall Street collapse, YFC sent a lengthy letter to Plaintiff and their other 17 or 18 promissory note investors. The letter pointed out the crisis in the American economy and advised that although the company had never missed one interest payment, “we are forced to make changes on the notes.” The letter also said “The Company’s assets have secured your money.” After negotiations over terms, Plaintiff accepted a new promissory note paying only 6 percent and delaying repayment of principal by an additional three years. Monthly interest continued to be paid as due, until the company abruptly filed a Chapter 7 Bankruptcy liquidation in April 2010. The interest payments ceased and Plaintiff learned that her investment was never secured by the assets of YFC. As an unsecured creditor, she received no recovery through the bankruptcy. Sarsgard brought a claim against Costanzo under the Ohio Securities Act alleging that Costanzo aided YFC in violating the act by knowingly making false representations in a written statement for the purpose of selling securities. She sought to void purchase of the security and recover the purchase price plus court costs. The jury found that the October 2008 letter contained false representations concerning material and relevant facts for the purpose of selling a security and that Defendant Costanza individually participated or aided YFC in making that sale. Last Settlement Demand: $125,000.00.

Last Settlement Offer: $1,000.00. Length of trial: 2.5 days.

Counsel for Plaintiff: John C. Camillus and Courtney M. (Yeager) Werning. Counsel for Defendant: Roger P. Sugarman and Katherine L. Ferguson. Judge Richard A. Frye. Case Caption: Helen M. Sarsgard v. Michael D. Costanzo. Case No. 13CV-01-287 (2014).

Verdict: $125,000.00 ($50,000.00 in economic damages; $75,000.00 in non-economic damages; reduced by 20 percent for plaintiff’s comparative negligence.) Automobile Accident.

On July 8, 2008, Defendants Scott Willig, Andrew Willig and Andrew’s wife, Kelly Willig, were attending a cookout when another guest, Third-Party Defendant Christopher Keller, made inappropriate comments and advances toward Kelly Willig. Shortly thereafter, Keller left the gathering and Scott 28

Winter 2016 Columbus Bar Lawyers Quarterly

and Andrew Willig got into Scott Willig’s truck and pursued Keller, intending to confront him. The Willigs lost track of Keller and so headed back home. The Willigs claimed that, as they drove down Sullivant Avenue, a group of individuals standing alongside the road began throwing rocks at the truck. They asserted that Keller was among the rock-throwers and that the group also included another guest, Third-Party Defendant Travis Seniuk, and Plaintiff Shane Smith. One of the rocks struck the driver, Scott Willig. Willig claimed that he lost control of his truck, which veered off the road and struck Shane Smith. Smith, who was a minor at the time of the incident, denied that he was throwing rocks. He also asserted that Willig was traveling at an excessive rate of speed and intentionally turned the truck into the driveway where the truck struck Smith and a nearby pole. Smith’s injuries included a collapsed lung, bilateral pulmonary contusions, multiple rib fractures and comminuted fractures to his right tibia and fibula. He was placed in the Intensive Care Unit at Children’s Hospital where he was given a chest tube. He also had surgery for his leg fractures that involved placement of plates and screws. Smith’s treatment concluded a few months after the accident and he did not make a claim for lost wages.

However, he claimed ongoing pain and discomfort and that he was dependent upon inhalers as a result of the damage to his lungs. Smith sued Scott and Andrew Willig. The Willigs filed a third-party complaint against Christopher Keller and Travis Seniuk. Keller and Seniuk did not answer the third-party complaint and a default judgment was entered against them ordering them to indemnify the Willigs for any judgment against them. The Willigs were not covered by an insurance policy and did not have the resources to make a significant settlement offer. Therefore, there were minimal settlement negotiations before trial. The jury found both of the Willigs negligent and attributed a 40 percent share of the responsibility for Smith’s damages to each of them. The jury found that Smith was also negligent and attributed 20 percent to Smith. Medical Specials: $124,095.95 (reduced to $49,991.03 after write-offs) Plaintiff’s Expert: Kevin E. Klingele, M.D. (pediatric orthopedic surgeon). Defendant’s Expert: None. Length of Trial: Three days. Counsel for Plaintiff: Tim Van Eman. Counsel for Defendant: Jonathan T. Tyack. Magistrate Pamela Browning. Case Caption: Shane Smith, et al. v. Scott M. Willig, et al. Case No. 12 CV 008034 (2014).

Verdict: $13,382.00 ($5,882.00 in economic damages; $7,500.00 in non-economic damages.) Automobile Accident.

On Sept. 1, 2010, Plaintiff Phillip Crowder was driving on Eakin Road when his vehicle was struck by a vehicle driven by Defendant Pedro Vasquez. Vasquez drove away and Crowder gave chase in his vehicle. Crowder caught

up Vasquez’s vehicle and blocked it in until police arrived.

Crowder claimed injury to his right arm, shoulder and elbow and aggravation of his pre-existing left knee arthritis. He did not seek medical attention on the day of the accident, but reported that he was in pain and had decreased grip strength in his hand. Two weeks after the accident, Crowder suffered severe burns when he spilled hot water on himself allegedly as a result of his decreased grip strength. Crowder sued Vasquez seeking compensatory and punitive damages.

Vasquez admitted liability for the accident, but argued that Crowder was not injured as evidenced by a lack of any medical treatment for the first two weeks after the accident.

The court bifurcated the punitive damage claim. After trial, the parties reached a settlement before proceeding with the punitive damages phase. Medical Specials: No information provided. Plaintiff’s Expert: Timothy Duffey, D.O. (orthopedic surgery). Defendant’s Expert: David Hanallah, M.D. (orthopedic surgery). Settlement Negotiations: No information provided. Length of Trial: Three days. Counsel for Plaintiff: Charles H. Bendig. Counsel for Defendant: Ed Hollern. Magistrate Elizabeth Watters. Case Caption: Phillip Crowder, et al. v. Pedro J. Vasquez, et al. Case No. 12 CV 10927 (2014).

Verdict: $12,610.92 ($9,610.92 in economic damages; $3,000.00 in non-economic damages.) Automobile Accident.

On Aug. 5, 2011, Plaintiff Kristen Mikita was driving west on Glenchester Drive in Franklin County. At the same time, Defendant Jackie Hyde was headed northbound on Galloway Road. Glenchester Avenue and Galloway Road both terminate at the point where they meet forming an approximately 90-degree curve. Northbound traffic from Galloway Road must make a right-hand turn and proceed onto Glenchester Drive eastbound. Westbound traffic from Glenchester Drive must make a left-hand turn and proceed onto Galloway Road southbound. Plaintiff Kristen Mikita alleged that Defendant Jackie Hyde failed to turn, resulting in a t-bone collision with Mikita’s vehicle. Hyde argued that Mikita came left of center as she made her left-hand turn and caused the accident. Mikita struck her head on the driver’s side window resulting in a head abrasion. She also suffered an abrasion to her left middle finger. She also claimed neck and back injuries. She went to the emergency room following the accident and then received chiropractic treatment. In addition to disputing liability, Hyde disputed the nature and extent

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of Mikita’s injuries, arguing that Mikita had been in four prior accidents and received extensive chiropractic care from the same chiropractor after each. The jury found that Hyde was the sole cause of the accident and awarded Mikita her medical bills, $620 in other economic damages and $3,000 in past pain and suffering. The jury declined to award Mikita anything for future pain and suffering. Medical Specials: $8,890.92. Lost Wages: $620.00. Plaintiff’s Expert: Gregory Richards, D.C. Defendant’s Expert: None. Last Settlement Demand: $34,000.00. Last Settlement Offer: $15,000.00.

Length of Trial: Three days. Counsel for Plaintiff: Anna C. Hines. Counsel for Defendant: Robert S. Roby. Judge David Cain. Case Caption: Kristen L. Mikita, et al. v. Jackie Hyde, et al. Case No. 2013 CV 08206 (2014).

Verdict: $3,059.84 ($2,309.84 in economic damages, $750 in non-economic damages.) Automobile Accident.

On Jan. 25, 2011 Plaintiff Susanne Triner was rear-ended at the intersection of Cleveland Avenue and Morse Road

by Defendant David Alexander. Triner was treated in the emergency room and followed up with her primary care physician and then began a course of chiropractic care at First Choice Chiropractic. She claimed that she sustained a headache and soft tissue neck and back injuries. Alexander argued that the treatment Triner received was excessive and not necessitated by the accident. The jury declined to award the full medical bills and compensated Triner for $430 of the chiropractor’s over $4,000 bill. Medical Specials: $10,954.02.

Lost Wages: $756.00. Plaintiff’s Expert: James Fonner, D.C. Defendant’s Expert: None. Last Settlement Demand: $9,000.00. Last Settlement Offer: $2,000.00. Length of Trial: Two days. Counsel for Plaintiff: Chanda L. Brown.

Counsel for Defendant: Mitchell M. Tallan. Magistrate Ed Skeens. Case Caption: Susanne Triner v. David C. Alexander, et al. Case No. 13CV-000856. (2014).

Defense Verdict. Medical Malpractice. Defendant Thomas Franklin, M.D. performed a left total knee replacement on Plaintiff Lyn Marker in January 2011. Two months later, she slipped and fell on ice. Three days after her fall, she presented at the emergency room at Mary Rutan Hospital with complaints of pain in her back, rib, chest and leg.

She was evaluated by Defendant James M. Lawlor, D.O. Continued on Page 30

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Continued from Page 29 who noticed redness around her left knee that continued to near her ankle. Dr. Lawler admitted her and ordered IV antibiotics as well as back x-rays and a lumbar CT. The imaging showed spinal stenosis. Marker was admitted to the hospital where Dr. Franklin evaluated her and diagnosed her with an infection in her left knee. He performed surgery to drain the infection. Following the surgery, Marker continued to complain of back pain as well as leg pain and numbness.

Dr. Lawlor attributed the back pain to her lumbar stenosis and attributed the leg pain and numbness to the infection and her pre-existing diabetic neuropathy. On April 1, 2011, Dr. Franklin performed another incision and drainage to the left knee and diagnosed Marker with a deep perioperative infection. Cultures revealed a staph infection. Marker was given antibiotics to stabilize her and prepare her for the removal of her knee implant. She continued to complain of leg and back pain. However, her symptoms were consistent with her existing diagnoses. On April 3, 2011, Marker complained for the first time that she could not move her legs. She was transferred to Riverside Methodist Hospital where she was diagnosed with a spinal epidural abscess. Decompression surgery was performed the following day. However, Marker suffered permanent paraplegia. Plaintiff’s Experts: Keith Beck, M.D. (infectious disease), Stephen Bloomfield, M.D. (neurology) and David Talan, M.D. (emergency medicine).

Defendants’ Experts: John Larkin, M.D. (orthopedic surgery), Patrick McCormick, M.D. (neurosurgery), Deanne Reising, Ph.D., R.N. (nursing), Stephan Renas, Ph.D. (economist), Harrison Weed, M.D. (infectious disease), Nathan O’Dorisio, M.D. (internal medicine), Lee Harrison, M.D. (infectious disease) and James Bradley Elder, M.D. (neurosurgery). Last Settlement Demand: No information available. Last Settlement Offer: None. Length of Trial: 10 days. Counsel for Plaintiffs: John P. O’Neil. Counsel for Defendants Mary Rutan Hospital, Orthopaedic Associates of Bellefontaine, Inc., Mad River Medical Specialists and Thomas C. Franklin, M.D.: Wayne E. Waite and Joseph Farchione. Counsel for Defendant James M. Lawlor, D.O.: Frederick A. Sewards. Judge Daniel Hogan. Case Caption: Lyn Marker, et al. v. Charles V. Kassicieh, D.O., et al. Case No. 12CV-06-7584 (2014).

Defense Verdict. Medical Malpractice. Anastasia Kise suffered from chronic neck pain. On Feb. 10, 2009, her

30

Winter 2016 Columbus Bar Lawyers Quarterly

primary care physician, Defendant Richard Neil, M.D., prescribed her methadone. The next day, Kise overdosed on her methadone and was transported by ambulance to St. Ann’s Hospital. The emergency room physician was Defendant Amy Cohagan, D.O. Dr. Cohagan treated Kise and discharged her with instructions to continue her methadone, morphine and naproxen. On Feb. 15, 2009, Kise was found dead. The cause of death was determined to be an overdose of methadone. The administrator of Kise’s estate sued Dr. Neil, Mt. Carmel/St. Ann’s and Dr. Cohagan. He alleged that it was a breach of the standard of care to prescribe methadone to Kise because she had a history of drug abuse.

Plaintiff also alleged that Dr. Cohagan and the St. Ann’s staff fell below the standard of care in their response to the overdose and in instructing Kise to resume taking methadone after she was discharged. Plaintiff settled with all of the defendants except Dr. Cohagan before trial. Dr. Cohagan argued that Kise refused admission to the hospital and that she met the standard of care by instructing Kise to continue the treatment already prescribed for her musculoskeletal complaints. Dr. Cohagan also pointed out that Kise denied any suicidal tendencies. Dr. Cohagan further argued that Kise likely supplemented her prescribed medications with illegally obtained Vicodin. Plaintiff’s Experts: Dean Dobkin, M.D. (emergency medicine), Scott Davis, M.D. (addiction medicine). Defendant’s Experts: Peter Geier, M.D. (psychiatry), Charles Emerman, M.D. (emergency medicine and toxicology). Last Settlement Demand: None. Last Settlement Offer: None. Length of Trial: Five days. Counsel for Plaintiff: Mark E. Defossez and Curtis M. Fifner. Counsel for Defendants: Mark L. Schumacher. Magistrate Ed Skeens.

Case Caption: Jay E. Michael, Administrator of the Estate of Anastasia Kise v. Mount Carmel Health System, et al. Case No. 11 CV 1967 (2014).

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

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