December 2016

The Magazine of the Dayton Bar Association | DECEMBER 2016 | Vol. 66, No. 4

Bar Briefs december 8th sinclair college, bldg 12

DHoliday Luncheon Special Guest Speaker

Justice Judith French

Dayton

Bar Briefs

CONTENTS

December 2016 | Vol. 66, No. 4

Dayton Bar Association Board of Trustees 2016 – 2017

Susan D. Solle President

Brian L. Wildermuth First Vice President

David P. Pierce

Second Vice President

Barbara J. Doseck Secretary

Jonathon L. Beck Treasurer

Lynnette Dinkler Member–at–Large

Angelina N. Jackson Member–at–Large

Hon. Timothy N. O’Connell

FEATURES

3 TRUSTEE’S MESSAGE

Reflections on a Presidential Election, or,

Why I am Glad For the Dayton Bar Association

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BARRISTER OF THE MONTH: THOMAS M. GREEN ESQ.

By Thomas J. Intili Esq.

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APPELLATE PRACTICE

Member–at–Large

Kermit F. Lowery

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

William B. Wheeler, ex officio Executive Director

DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July.

Paid subscription: $30 / year Library of Congress ISSN #0415–0945 William B. Wheeler, Executive Director Shayla M. Eggleton, Publications Manager Phone: 937.222.7902 Fax: 937.222.1308 The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.

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Dayton Bar Briefs December 2016

Behind the Scenes at the Second District Court of Appeals

By Anne P. Keeton Esq.

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CIVIL TRIAL PRACTICE

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FROM THE JUDGES DESK

Member–at–Large

Merle F. Wilberding

By Jonathan Beck Esq.

Common Pitfalls in Prosecuting Foreclosure Actions on Summary Judgment

DBA EVENT RECAP 50year Honoree Luncheon

By Christina M. Spencer Esq.

A Plea For Lawyers to Lead Us to Improved Political Disclosure

By Hon. Mary L. Wiseman

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DBA FOUNDATION

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ANNUAL HOLIDAY GIFT COLUMN

Your Generous Gift Will Make a Difference

By Alyssa Norman & Kylie Corbin, UDSL Research Assistants

DEPARTMENTS 19 CONTINUING LEGAL EDUCATION 31

CLASSIFIEDS & MARKETPLACE

UPCOMING EVENTS 5 HOLIDAY LUNCHEON Thurs. December 8, 2016 | Sinclair College, Bldg 12 | Social Time 11:30am; Lunch 12:00pm

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CHANCERY CLUB LUNCHEON

Fri. February 10, 2017 | The Old Courthouse | Doors open at 11:30am Seating is Limited YOU must RSVP: calbrektson@daybar.org

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ROBERT N. FARQUHAR MOCK TRIAL

Fri. January 20, 2017 | Montgomery County Courts

937.222.7902

TRUSTEE’S MESSAGE

Reflections on a Presidential Election, or, Why I am Glad For the Dayton Bar Association T T

here are lots of great reasons to join, participate and support the Dayton Bar Association. As I reflect on the 2016 Presidential election, particularly the debates, one stands out more than the others: professional collegiality. Regardless of political leaning, all observers spotted that collegiality was sorely missing in the Presidential political rhetoric this year. Watching the Presidential debates as lawyers many of us also observed the similarity to the techniques used this year, for the moderators, candidates, and journalists to prosecute their cases.

Obviously, the Fourth Estate has found Professor Irving Younger.

Younger of course wrote his classic 10 Commandments of CrossExamination in the late 1960’s, which became the modern distillation of centuries of cross-exam wisdom. They are brief, pithy, generally devastating if used correctly. Even if they have other thoughts (and they do), most modern authors on trial technique, like Thomas A. Mauet, will acknowledge Younger’s contribution and clarity of focus on the topic.

Here’s a refresher for all you tax and real estate lawyers: 1. Be brief 2. Use plain words 3. Ask only leading questions 4. Never ask a question you don’t already know the answer to 5. Listen 6. Do not quarrel (*Ok, admittedly they struggled with this one in 2016) 7. Avoid repetition (*this one too) 8. Disallow Witness Explanation 9. Stop when you’ve made your point (*many, myself included, feel this one is really just #1 stated differently, but hey it’s important so fine) 10. Save for summation.

Here are some actual, real, true examples of journalists using our trial cross-examination tactics on candidates during the 2016 U.S. Presidential Election: (*Disclaimer. Every example is actually either pure fiction which I have invented for this article, or from the distant historical past, because I am not a crazy person. But they all sound like things said during this election.)

Journalist: It’s a fact that presidential candidates make promises to farmers. Lots of people, I think, don’t understand why the government pays farmers for not producing certain crops or paying farmers if they overproduce for that matter. Now, let me ask you, why can’t the famer operate like the business man who operates a factory; if an auto company overproduces a certain model car Uncle Sam doesn’t step in and buy up the surplus; Why this constant courting of the farmer?

Candidate: [Answer doesn’t matter] This one was posed by debate moderator Charles Warren to JFK at the first televised Presidential debate in 1960. I use it as an example because it doesn’t involve a political issue du jour and was insidiously clever. Warren posed this question during the era kids were still conducting weekly air-raid drills at school and everyone was expecting imminent Soviet invasion. Communism was a curse word. While Vice President Richard Nixon sweated profusely and visibly in the corner, Warren was out to prosecute the much more TV-friendly Kennedy, www.daybar.org

By Jonathan L. Beck Esq. Treasurer Young & Alexander Co., LPA

court-room style. He hits most of Younger’s points. Except for failing to be short (#1) and technically leaving it open-ended (#3, but he only violated it technically), it is an effective cross-exam question. I say he only violated Younger’s Commandment #3 technically because as with any good cross-exam question, JFK’s answer didn’t substantively matter. Warren gives all the substantive testimony during the question, to the jury of TV viewers; Warren wanted to point out to the TV jury that the witness believed in something that seemed vaguely socialist or against free market principles. Kennedy, by answering at all to explain his position, was saying, “yes, I believe in this thing.” Through the jury’s perception filter, the real question was: you believe in all this communist stuff, don’t you?!

The candidates shook hands before and after the debate. At one point, after JFK landed a well-made point, the moderator asked him, “Mr. Nixon, would you like to comment on [Senator Kennedy’s] statement?”

The moderator, asking an open-ended direct exam style question meant to help “his” witness. Nixon’s reply? “I have no comment.” Seriously.

Let’s fast-forward to the 2016 Presidential Election debates.

Journalist: Please look at this evidence of yourself saying/doing/thinking something which is very embarrassing/illegal/strange and cannot possibly be justified according to many. Do you regret it?

Candidate: [Answer doesn’t matter] Repeat 500 times. You get the point! They know our tactics now, which we learned from Younger. So why is the result for them burnt bridges, bitter resentment, viciousness, and decreased public reputation of the institutions represented?

One reason is they know our tactics but not our Rules. They aren’t bound by the Oath of Attorney, the Lawyer’s Creed (issued by the Ohio Supreme Court February 13, 1997), or the Rules of Professional Conduct.

Another reason locally, and elsewhere, is because we have local bar associations, like the DBA whose sole mission is to further the administration of justice; enhance the public’s respect for the law; and promote excellence and collegiality in the legal profession. This is a huge benefit to individual members, the Dayton public, and the fair administration of justice in Dayton. The DBA sponsors, promotes, and hosts so many programming events annually toward this goal. Innovative CLE programming, public scholarship opportunities, The Dayton Bar Foundation, Wills for Heroes, local Ethics & Grievance Committees, Speaker’s Bureau, substantive law committees, support for the Greater Dayton Volunteer Lawyer’s Project, 5K for the Kids, Get Behind the Bar events, and many others. The cumulative effect of these programs within the Dayton Bar Association is, if I may say so, a collegial local bar where practitioners can ply their trade with dignity, the community can rely on us, and justice can be served occasionally.

The 2016 U.S. Presidential election cycle is thankfully in the rear-view mirror. But we members of the Dayton Bar Association will continue to remember that associations like ours are one of the few institutions that help to reliably and gratefully keep the worst results of adversarial rhetoric at bay, and promote the collegiality of professional adversaries in service to the community.

December 2016 Dayton Bar Briefs

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BARRISTER OF THE MONTH

Thomas M. Green Esq. “If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already” – Abraham Lincoln.

O O

ur Barrister of the Month, Thomas M. Green, determined resolutely to make himself a lawyer early in life. In fact, he recalls considering no other career path. The son of a lawyer, older members of our association remember Tom’s father, F. Thomas Green, a cofounder of Green & Green. Green & Green’s roots are planted firmly in the plains of insurance defense litigation. The elder Green was one of the oaks of that terrain. His methodology and temperament were driven unmistakably toward a singular objective, to make his opponent wish he had never filed his client’s case in the first instance.

To F. Thomas Green’s adversaries, Tom’s calmness is unexpected and equally distinctive to his father’s pugnacity. To be sure, Tom is no stranger to intense, and occasionally bitter, courtroom battles. Tom did not become a member of the American College of Trial Lawyers through pacifism. Indeed, Tom believes, as his father did, that the very best of what we do as lawyers is try cases. Even so, Tom understands, as did Lincoln, that “as a peacemaker the lawyer has a superior opportunity of being a good man.”

Tom’s journey in the profession began with his graduation from Fairmont West High School in 1969. From Kettering, Tom matriculated at Kenyon College, where he obtained a B.A. in history in 1973.

Eager to join our profession, Tom entered law school at The Ohio State University graduating early in December, 1975. He passed the bar examination in the spring of 1976, and promptly entered practice with his father who at the time was sharing office space in the Talbot Tower with Harrison Kern, a lawyer whose tax problems led to a six-year license suspension in June of that year. Out of necessity, Tom took over Kern’s practice and jumped headlong into his father’s.

For Tom, the transition from law student to practicing lawyer was nearly seamless. After all, Tom had been around lawyers his entire life. He had watched his father try cases and interact with clients, judges, colleagues and adversaries. From childhood, he knew and had observed the talents and skills of Hugh Altick, Francis McDaniel, H. Thomas Haacke, Jr., P. Eugene Smith, the Greers, Robert Alexander, Joe Miller, Ted Jenks and numerous other members of Dayton’s trial bar. His own talents, work ethic and pedigree would later assure him his place amongst those pillars of the courtroom. Though truculent with the plaintiff ’s bar, F. Thomas Green mentored his son graciously and patiently. Throughout the years, and until F. Thomas Green’s retirement in 1990, Tom merged steadily his father’s aggressive advocacy with his own masterfully sane approach to the practice, his clients, his opponents and the bench.

From those early days in the Talbot Tower, Green & Green grew steadily into the top notch eleven-lawyer firm it is today. Geographically, there was a ten-year hitch on Wayne Avenue in a structure built

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Dayton Bar Briefs December 2016

as a mortuary (a fitting destination for plaintiff ’s cases weak in advocacy or merit), followed by a similar tenure downtown in the former Citizens Federal, now Premier Health, building. For the past eleven years, Green & Green has been located fittingly just two floors from the Dayton Bar Association in Performance Place.

As the firm evolved and grew, so did its younger co-founder.

Thirty years ago, Tom was one of the asbestos defense fraternity, a member of the national trial team for several former manufacturers and extensive users of asbestos. In that role, Tom traveled from conference room to courtroom, often in damage-control mode, while the nation’s labor unions flooded plaintiff ’s law firms with plant workers struggling for breath. In those days, it was not unusual for Tom to fly into a city and be handed a Raybestos or Owens Corning case file on the commute from the airport to the courthouse. Much to Tom’s credit, not all of those cases resulted in massive plaintiff ’s verdicts.

One particular trial stands out, a three-week odyssey in Edwardsville, Illinois, resulting in a defense verdict despite the best efforts of the late Fred Baron, one of the pioneers and godfathers of plaintiff ’s asbestos litigation.

Now that asbestos case filings have dwindled, Tom’s practice is more diverse. He spends approximately half of his time on business litigation. The balance is largely a mix of employment litigation, insurance and medical malpractice defense, and probate matters with a helping of business transaction work on the side.

As accomplished in life as he is in practice, Tom has been married to his wife, Kristin, for 38 years. They have four children and six grandchildren. They live on a twenty-acre farm in Warren County along with three horses, four dogs and five cats. Kristin is an accomplished equestrienne. Tom is an avid golfer and loves to cook.

This year, the entire family (including son, Ben, who lives in Kailua, Hawaii) was treated to Tom’s traditional Thanksgiving menu.

Charles F. Kettering once wrote, “Every father should remember that one day his son will follow his example instead of his advice.”

Kettering can be forgiven for getting it wrong in the instance of Thomas M. Green. Tom took his father’s sound advice, but set his own splendid example, joining in stature his father and the trial lawyers he once observed and admired.

By Thomas J.Intili Esq. DBA Editorial Board Intili & Groves Co., LPA

937.222.7902

december 8th sinclair college, bldg 12

DHoliday Luncheon Special Guest Speaker

Justice Judith French

celebrating the works of Greater Dayton Volunteers Lawyers Project and the Pro Bono efforts in Ohio

Each year, the Greater Dayton Volunteer Lawyers Project uses the Dayton Bar Association’s Annual Holiday Luncheon as a way to thank the hundreds of attorneys, paralegals, law school students, and paralegal students in our community who have taken cases pro bono or otherwise volunteer. This year’s Luncheon is on Thursday, December 8, at noon at Sinclair’s Ponitz Center.

To date, the GDVLP has provided in excess of $15 million in legal services to the less fortunate members of our community who need legal assistance. Although promoting equal justice and access to the court system for all is vital to its mission, the primary goal of the GDVLP is to provide the local bar with innovative and fulfilling pro bono opportunities.

DBA Member Dale Creech Jr. will provide musical entertainment during the registration/social time.

GDVLP and the DBA Wish to Thank All the volunteers who have helped in 2016

dba holiday luncheon * social time 11:30am * Lunch 12:00pm Please make reservations for Reserve

@ $25.00........................................................ $________

tables of 8 @ $200.00....................................................................... $________ Please attach a list of attendees.

Name_________________________________________

Total.......................... $________

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To: DAYTON BAR ASSOCIATION • 109 N. Main St., Ste. 600 • Dayton, OH 45402-1129 • Phone: 937 / 222-7902 • Fax: 937 / 222-1308 www.daybar.org

December 2016 Dayton Bar Briefs

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APPELLATE PRACTICE

Behind the Scenes at the Second District Court of Appeals AA

s a child, my parents would take me to the ballet at our local Opera House downtown. The occasion required my Sunday dress, opaque white tights, and shiny patent-leather Mary Janes. It was always at night never the matinee, making the glow of the house lights and the red velvet of the seating so much, well, more. And lights would dim, and the curtain would rise, and the performance would begin. But as much as the shimmering swans and leaping lords captivated, I was always more interested in what happened behind that curtain, before the dancers stepped foot upon the stage, or in the moments in between.

What went on behind the scenes to make the performance possible?

Fast forward thirty-odd years, and I still have that same curiosity. And so, armed with little more than the DBA’s blessing, the Appellate and Civil Practice Committees approached the Second District Court of Appeals for a “behind the scenes” tour to learn more about the care that goes into each decision rendered. The Second District Court of Appeals, ever the model for what we want in an appellate court – intelligent, hard-working, judicious – graciously opened its doors for a tour and luncheon with Judge Mary Donovan, Judge Jeffrey Froelich, Judge Michael Hall, and Judge Jeffrey Welbaum.

No small thing! Judge Donovan, quoting Judge Fain, who will retire from the Bench this December, observed that, in contrast to a trial court setting, “the court of appeals of-

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Dayton Bar Briefs December 2016

fers the opportunity for quiet reflection.” But the silence in the Second District’s hallway speaks volumes to the sheer amount of work to be done. Even with a slower docket than usual, the Second District continues to be one of the most productive in the state. The Second District Court of Appeals serves as the appellate court for roughly thirty-one different courts in a six county area, including Montgomery, Greene, Clark, Champaign, Darke, and Miami Counties. In turn, the thirty-one courts use six different appellate clerk’s offices, all of which keep the record on appeal.

When a notice of appeal is filed with the Second District, the Court first evaluates the timeliness of the appeal and whether the appeal involves a final appealable order. Once these initial obstacles are overcome, the next step is to gather the record, which can be a feat in and of itself given the aforementioned thirty-one trial courts and six different appellate clerk’s offices. Many practitioners wonder why the court of appeals does not allow for electronic filing. Each clerk’s office has a different system for maintaining records. Given the number of clerk’s offices that feed into the court of appeals, these differing systems currently create a technological barrier

By Anne P. Keeton Esq. Chair: Appellate Practice Subashi & Wildermuth

to electronic filing for the court of appeals.

The judges offered practical advice to practitioners: When involved in an appeal, whether as the appellant or the appellee, physically go into the Clerk’s office to ensure that what you need in the record is, in fact, a part of the record on appeal. For example, PSIs and other continued on page 7

937.222.7902

APPELLATE PRACTICE continued from page 6

confidential documents should be included as part of the record on appeal and are kept separate and confidential once transferred to the court of appeals. Additionally, where the original record is kept electronically but then printed for transfer to the court of appeals, practitioners should confirm that the record was printed correctly.

Once appellate briefs are filed, the case is scheduled for either oral argument or submission and assigned at random to a three-judge panel. The court sets its panels at the beginning of each year and also has a random rotation for authors. The panel’s author receives the complete case file from the clerk’s office, as well as all briefs, and the two other panel members receive the briefs. The author may change if, after a decision is reached, the original author is not in the majority, in which case the majority authorship falls to the next judge on the rotation.

The judges of the Second District pride themselves in their preparation. Before oral argument, each judge reads all briefing, and the assigned author is familiar with the specifics of the record. The judges typically do not dis-

www.daybar.org

cuss the case much before oral argument, and certainly not without the full panel present, waiting instead until after oral argument so as to avoid prematurely persuading the other panel members. During oral argument, the judges ask questions specifically designed to focus attorneys on the issues and the Court’s concerns. After oral argument, the panel immediately meets to discuss the cases argued.

Surrounded by photos spanning the history of the Bench since 1945, the panel reaches its decision. The panel may already have a draft decision before argument, but not always.

Once written, the decision circulates among the panel members, and any dissents or concurrences are included. The decision is then reviewed for formatting and citations, as well as for consistency between cases, signed by the panel, and filed.

And behind the curtain of quiet reflection, the hushed hallways of the Second District house five appellate court judges, their staff attorneys, and court personnel who work tirelessly and studiously to the respect of their colleagues and the legal community. Our heartfelt thanks to the Second District Court of Appeals – its Judges and staff – for this glimpse behind the scenes.

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December 2016 Dayton Bar Briefs

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CIVIL TRIAL PRACTICE

Common Pitfalls in Prosecuting Foreclosure Actions on Summary Judgment

L L

ast year, Ohio common pleas courts saw the filing of 46,725 foreclosure cases. Ohio Supreme Court, 2015 Ohio Courts Statistical Summary 28 (2016). Prosecuting run-of-the-mill, residential foreclosure actions should often present little difficulty because, in essence, a plaintiff-mortgagee’s case consists of little more than establishing its standing and demonstrating the defendant’s default. See e.g. JPMorgan Chase Bank, N.A. v. Massey, 2d Dist. Montgomery No. 25459, 2013-Ohio-5620, ¶ 20 (citations omitted); Wells Fargo Bank, N.A. v.

Sessley, 188 Ohio App. 3d 213, 2010-Ohio-2902, 935 N.E.2d 70, ¶ 20 (citations omitted). These actions, moreover, are theoretically wellsuited for resolution by summary judgment inasmuch as plaintiffs need produce a relatively modest amount of evidence, and defendants have relatively few viable defenses available to them. Additionally, the right to a jury trial in a foreclosure case is limited because such a case comprises “a legal action against the maker of a note who has defaulted on payments” and “an equitable action on the mortgage to force a sale of the [encumbered] property.” Deutsche Bank Nat’l Trust Co. v. Holden, ___ Ohio St. 3d ___, 2016-Ohio-4603, ___ N.E.3d ___, ¶ 5; Wells Fargo Bank, N.A. v. Young, 2d Dist. Darke No. 2009 CA 12, 2011-Ohio-122, ¶ 40 (citations omitted). Though the former component of a foreclosure action implicates the right to a trial by jury, the latter does not, and given that the mortgagee “may waive its right to proceed to personal judgment [against the defendant on the note],” it may avoid a jury trial altogether. See e.g. City Loan & Sav. Co. v. Howard, 16 Ohio App. 3d 185, 186, 475 N.E.2d 154 (2d Dist.

1984).

To support “a motion for summary judgment in a foreclosure action, a plaintiff must present evidentiary-quality materials showing (1) [that it] is the holder of the note and mortgage, or is a party entitled to enforce [the same]; (2) if [it] is not the original mortgagee, the chain of assignments and transfers; (3) [that the defendant] is in default; (4) [that] all conditions precedent have been met; and (5) the amount of principal and interest due.” Massey, 2013-Ohio-5620, ¶ 20. The first two elements may easily be satisfied by the presentation of copies of the note, the mortgage and any assignments, and if these documents have been notarized, then they are self-authenticating under Evid.R. 902(1), potentially obviating the need for the plaintiff to offer affidavit testimony for authentication. Nevertheless, assuming that the mortgagor has appeared, the remaining three elements all but require that the plaintiff provide affidavit testimony.

Despite the lenient standard applicable to affidavits submitted in support of motions for summary judgment—even “‘a flat statement [that] the affiant [has] personal knowledge is adequate to satisfy Civ.R. 56(E)’”—plaintiffs all too frequently submit woefully inadequate affidavits. Fifth Third Mortgage Co. v. Campbell, 2d Dist.

Montgomery No. 25458, 2013-Ohio-3032, ¶ 6 (quoting Bank One, N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-Ohio-1986,

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Dayton Bar Briefs December 2016

¶ 14). Especially common mistakes in this respect include: • Use of obvious boilerplate language or other references suggesting that an affiant had little or no involvement in the preparation of an affidavit. For example, many an affidavit is submitted by an affiant who “states that he/she has personal knowledge” of the relevant background, though a court reading such an averment can hardly be blamed for wondering whether the affiant even read his/her own affidavit before signing; • Description of a note or a mortgage without reference to identifying information, such the principal amount being borrowed under a note, or the date on which a document was executed or recorded; • Description of a note or a mortgage with reference to incorrect identifying information, such as referring to the wrong borrower or the wrong property; • Failure to indicate the affiant’s job title and responsibilities, or simply failing to include a bare recital that the affiant “has personal knowledge”; • Omission of explanatory context. For example, failing to account for superficial gaps in the chain of custody of a note, when the note was indorsed in blank by the original lender, transferred once or more afterward, and then attached to a complaint in foreclosure by a subsequent holder, or failing to account for similarly superficial discrepancies in assignments of mortgages; • Haphazard scanning of documents. Irrespective of the quality of an affidavit authenticating exhibits, a court will likely not consider illegible documents; • Where applicable, failure to distinguish between exhibits created by the plaintiff, of which the affiant likely would have personal knowledge, and documents created by one or more of the plaintiff ’s predecessors in interest.

The last of the foregoing items presents a particular problem in the Second District Court of Appeals, which has not recognized the adoptive business record exception to the requirements of Evid.R. 803(6). Ohio Receivables, LLC v. Williams, 2d Dist. Montgomery No. 25427, 2013-Ohio-960, ¶ 20-23. Notwithstanding that the Court did not “disagree * * * that [a successor mortgagee’s] employees or agents” do not necessarily have “to have first-hand knowledge of the transaction at issue” to authenticate relevant documentary exhibits, it held that “in the absence of such knowledge, [the successor must] prove by some other means that the documents upon which it relie[s] continued on page 9

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Join the Conversation Share & Learn!

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contact Carol for details: cblevins@daybar.org

CIVIL TRIAL PRACTICE continued from page 8

were business records of [its predecessor or predecessors].” Id. at ¶ 24. The Court suggested that a successor mortgagee can accomplish “this very simply by attaching an appropriate affidavit [supplied by its predecessor or predecessors] containing the information required by Evid.R. 803(6),” but it did not have any advice for situations in which an affidavit from a predecessor in interest is unavailable. Id. Frequently, this problem presents itself with respect to account histories prepared by a plaintiff ’s predecessor in interest. Account histories, however, are not required submissions for purposes of Civ.R. 10(D), nor are they among those “evidentiary-quality materials” that are required to support a motion for summary judgment. Massey, 2013Ohio-5620, ¶ 20; Beneficial Mortgage of Ohio v. Jacobs, 2d Dist. Darke No. 01CA0080, 2002-Ohio-3162, ¶ 10.

Finally, two decisions of the Ohio Supreme Court bear mentioning in this context. First, in January of last year, the Court held that “although the plaintiff in a foreclosure action must have standing at the time suit is commenced, proof of standing may be submitted subsequent to the filing of the complaint.” Wells Fargo Bank, N.A. v. Horn, 142 Ohio St. 3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 1. Second, in Holden (decided in July of this year), the Court clarified its holding in Fed. Home Loan Mortgage Corp. v. Schwartzwald, 134 Ohio St. 3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, noting that “[p]arties and courts have seized upon” a passage in Schwartzwald as meaning “that a plaintiff in a foreclosure action must have an interest in either the note or the mortgage at the time of filing in order to establish [its] standing”; the Court indicated that a plaintiff seeking a personal judgment against a mortgagor and a foreclosure on the mortgaged property must have an interest in the note and the mortgage. Holden, 2016-Ohio4603, ¶ 35.

In conclusion, foreclosure actions can easily be resolved on summary judgment with proper support. Attention to detail—and careful preparation of affidavits and exhibits—can further expedite the process. www.daybar.org

December 2016 Dayton Bar Briefs

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DBA EVENTS Tim Young from the Ohio Public Defenders Office speaking at the November 3rd Chancery Club Luncheon.

Recap:

The November Chancery Club Luncheon

By Daniel J. Duroucher Esq. Assistant Public Defender DBA Editorial Board Montgomery Cty Public Defender's Ofc

T T

he Old Courthouse was full of familiar faces for November’s Chancery Club Luncheon.

Attorneys from a variety of practice areas enjoyed the creations of Franco’s Ristorante Italiano under the historic dome while they chatted amongst themselves and eagerly awaited the presentation from Mr. Tim Young. Mr. Young has served as the Ohio Public Defender since January of 2008, but before that, he was an attorney in our very own Montgomery County Public Defender’s Office. His roots as a trial lawyer were immediately apparent; as he began to speak, the room quieted and the crowd’s focus shifted to the distinguished guest.

Mr. Young gave a compelling presentation about Ohio’s indigent defense system. The heart of his talk was on the recent changes to the appointed counsel rules contained in the Ohio Administrative Code, but as any good trial lawyer would do, he told his audience an interesting story.

As one might expect, he began his story at the beginning. Mr. Young explained that he was speaking to the audience on the 40th anniversary of the codification of Ohio’s public defense statute. But he lamented the fact that the statute has done little to fulfill Gideon’s promise to the indigent accused.

When he began his work as the Ohio Public Defender more than eight years ago, there were county offices where the attorneys worked in loud cubicles without computers or files; there was seldom a quiet place to meet with a client. But he proudly explained that his office has taken steps to remediate those fundamental problems and has now turned its attention to other important issues. On such issue is the low quality of the lawyers that are too often appointed to represent poor defendants in many Ohio counties. The new appointed counsel rules are designed to raise the bar and ensure that the lawyers that are appointed have the requisite skill to handle their important jobs.

“We use the freedom of poor people to train brand new lawyers,” remarked Mr. Young. Under the new rules, that will change. The rules, which were created by the Ohio Public Defender Commission with input from judges and lawyers from across the state, set minimum standards for appointed lawyers. For example, in third degree felony cases the appointed attorney must have at least one year of criminal law experience and have prior experience as lead trial counsel in at least one jury trial, or as co-counsel in at least two jury trials. Ohio Admin. Code 1201-10(F). Further, the appointed lawyer in any felony case must have completed a minimum of twelve hours of continuing legal education in criminal practice and procedure within the

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Dayton Bar Briefs December 2016

Join us at our next Luncheon in the New Year!

The Old Courthouse Friday, February 10, 2017 Doors open at 11:30am Caterer: Franco’s Ristorante Italiano Speaker: Judge Dennis J. Langer

Topic: Abraham Lincoln, 16th President of the United States of Amerca

preceding two years. By design, the amount of experience and training required by the new rules varies with the severity of the offense charged.

The public defender commission adopted the new rules because it wanted to prevent those who merely “dabble” in criminal defense from being appointed, explained Mr. Young. But the commission has no authority to say who can and cannot practice in an Ohio court; that power is left to the Ohio Supreme Court. What the commission can do, however, is set standards on how money earmarked for indigent defense can be spent.

Currently, the Ohio Public Defender reimburses a county forty eight cents for every dollar it pays an appointed lawyer. If a county wants to receive that reimbursement, then it must comply with the new rules.

Hopefully, in another forty years, our State’s indigent defense system will be the ideal for which other states strive. With any luck, these new rules will set us off in that direction and improve the caliber of appointed counsel in every case. And while some may find fault in the new rules, at the very least, we can all agree that the quality of justice a person can attain should not be a function of a person’s financial status.

937.222.7902

LOCAL PROGRAMS

Law and Leadership Institute Summer Internship at Porter Wright

T T

he Law and Leadership Institute (LLI) is a statewide learning initiative that exposes the legal industry to high school students from underserved communities. Students begin the program during their the summer before their freshman year of high school, and over the next four years, they are taught leadership, analytical thinking, and problem solving skills. Along the way, the students are also afforded with opportunities for experiential learning, such as internships and field trips. Last summer, the Dayton office of Porter Wright Morris & Arthur LLP put on one of those internships.

For one week, a group of LLI students learned what it’s like to be a Porter Wright

www.daybar.org

attorney. Every day from 9:00 a.m. to 4:00 p.m., the students worked in Porter Wright’s office. They were assigned various tasks that helped them hone their legal skills, shadowed attorneys, and, with attorneys playing the roles of witnesses, the students tested their mettle at direct and cross-examination in mock trials and interviews. The students also visited local courthouses where they met judges, clerks and all of the other staff members that keep the courts churning like well-oiled machines.

The students saw firsthand that being a well-rounded lawyer means more than just simply preparing and presenting arguments in courtroom, it also means being an engaged

By Jamar T. King Esq. DBA Editorial Board Thompson Hine LLP member of the community. They had lunch with members of the Dayton chapter of Optimist International. They met members of the Dayton Dialogue on Race Relations. They also visited the offices of the Dayton Bar Association for an education on the services and support that the DBA provides to its members.

The experience was transformative not only for the students, but for the staff and attorneys at Porter Wright. If your firm or organization is interested in participating as an employer for the LLI summer internship next year, visit www.lawandleadership.org.

December 2016 Dayton Bar Briefs

11

DBA EVENTS

Recap:

The DBA Holds Its First Wills for Veterans

By Michelle T. Sundgaard Esq. DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA

The attorneys in the photograph from left to right are: Andrew Woodbury, JAG at WPAFB Tiffany Akers, Acquisition Fraud Attorney WPAFB Kristian Diggs, JAG WPAFB

to law school to advocate for veterans. Helping “I went veterans is my motivation.”

Tessa Ortiz-Marsh is a student at the University of Dayton School of Law and a proud veteran of the United States Army. On November 5, 2016, she and more than twenty other lawyers, law students, and paralegals joined together at the Dayton VA Medical Center to provide wills and other estate documents for veterans and their families. The Dayton legal community is composed of veterans and friends, family, and spouses of active and retired military personnel. With Veteran’s Day approaching and Wright Patterson Air Force Base in our back yard, the Greater Dayton Volunteer Lawyers Project and the Ohio Military/Veterans Legal Assistance Project made November 5th memorable for over twenty-five veterans and their families.

The morning began with training for all volunteers held by Erik R. Blaine, an attorney with Wright & Schulte LLC. Erik provides training for each Wills for Heroes event, and in this case, for the Dayton Bar Association’s first ever Wills for Veterans event. Along with a lecture on the mechanics of the program for the volunteers, Erik ensures that the licensed attorneys are giving competent counseling while drafting last wills and testaments, powers of attorney, and living wills for the clients taking part in this program. Erik’s passion is a large part of this successful program.

After Erik’s training, the licensed attorneys paired with one or two volunteers and began serving those that have proudly served our county.

Wills for Veterans attracted volunteers from many different fields of the law, including probate, litigation, and compliance lawyers, and even lawyers that work at Wright Patterson Air Force Base, who assist the men and women in the Armed Services every day. The volunteers worked diligently with each client until every veteran that registered or walked-in received the estate planning documents needed. Prior to leaving, the attorney reviews the draft estate planning documents with the veteran participant to ensure that each person understands and agrees to what they are executing. Once finalized, the documents are signed, witnessed, and notarized in a formal signing ceremony. The veteran participant then takes the estate planning documents.

The national Wills For Heroes program began shortly after the September 11, 2001 terrorist attacks. The founder of the program, Anthony Hayes, contacted his local fire department, realizing the glaring need for estate planning services. Since then, this program is active in ten states, providing first responders with free estate planning documents.

Wills for Heroes has been an active program of the Dayton

12

Dayton Bar Briefs December 2016

Bar Association since 2008, and it is the only active program in Ohio. Now, after the continuous success of this program, the Dayton Bar Association has opened its arms to the veterans in our community by having its own Wills for Veterans.

In the September issue of Bar Briefs, the Honorable Mary L. Wiseman discussed the importance of returning the honor. She noted the need to “embrace our common ground of lending a helping hand to those in need and honoring those that have given the greatest service to our nation.” Legal services are scarce for our veterans, and it is our duty as lawyers and community leaders to guarantee that our community of local veterans is protected. The men and women of the Armed Forces put their lives on the line for us, and the Dayton Bar Association and the Ohio Military/Veterans Legal Assistance Project guarantee that we are “serving those who have served.”

937.222.7902

www.daybar.org

December 2016 Dayton Bar Briefs

13

DBA EVENTS

Recap:

50

yr

Honoree Luncheon

D D

espite the Monkees’ “I’m a Believer” reigning at the top of the charts, the year 1966 was a cataclysmic year. “Dayton was literally on fire,” Dave Greer began, as he described the world in which the 2016 Honorees emerged in their practice of law. “It was the worst year in Dayton.” The city streets were occupied with mobs, riots, and military tanks.

The legal climate within which the Honorees began practicing law was undoubtedly turbulent, but it was nonetheless an interesting time for young practitioners to begin their careers. The year 1966 also fell right between the devastating assassinations of President John F. Kennedy and Martin Luther King, Jr. The iconic Walt Disney died in 1966.

Albert Speer was released from prison in 1966. The landmark Miranda decision was published in 1966.

Seven individuals who embarked on unforgettable career journeys during this year include Irvin G. Bieser Jr., Richard J. Chernesky, James B. Hochman, Richard M. Hunt, Leo F. Krebs, Charles W. Slicer Sr., and Paul J. Winterhalter. Their careers were celebrated on October 19, 20016 at the Dayton Bar Association’s 50 Year Honoree Luncheon. The Master of Ceremonies for the event was Dave Greer and welcoming remarks were made by Susan Solle.

Irvin G. Bieser Jr.

tinued, he would ask himself, “at the end of the day, what is the right thing to do?” “That’s his legacy – always do the right thing.”

James B. Hochman

James Hochman also was not present at the

luncheon. Gary Plunkett attended on his

behalf, and spoke of James’ early career

as being “in a smoke-filled room, full of

union people yelling at each other,” as James was involved in heated labor negotiations concerning the Teamsters.

“After Kennedy shut down the Teamsters, he started his own firm,” Gary stated. James is currently Partner with Hochman & Plunkett. He focuses his practice primarily on Workers Compensation and Personal Injury. James also remains the oldest living member of Local 957. It has also been stated by James’ mother that “nobody works harder at having a good time than Jim Hochman.”

Richard M. Hunt

Irvin Bieser Jr. was the first Honoree to Richard Hunt began his career as an

be introduced. Born in Dayton, Ohio,

insurance adjuster. When he was

Irv began his legal career as an instructor

admitted to the bar, he was an associate

of law in Liberia. He then joined Bieser,

for a few short years, and ultimately became

Greer & Landis, where he became Part a named Partner to several firms – one of ner in 1972. Irv remained with Bieser, Greer & Landis up until his

which, to this day, has the longest firm name retirement in 2010. Irv noted that some of the most unusual cases Irv in the Dayton Bar Association’s history: Hunt, Dodge, Little, Harron, experienced during his practice involved land and river conservation.

Kessler, Picker & Nolan. Currently, Richard is President of Richard M. He also recounted an extraordinarily tragic day in his career. While Irv Hunt Co., LPA. One of Richard’s favorite memories of his legal career was an instructor in Libera, he witnessed the horrific execution of some was his first criminal jury trial, where his opposing counsel was his law of his fellow faculty members by the insurgent government. school classmate. To set up the scene, Richard explained that “the judge told us ‘no laughing’ during the trial.” When the State called its first witness to the stand to identify the defendant, the witness pointed at Juror Number 7. After the judge’s “no laughing” rule was imposed, the judge himself had no choice but to call a ten-minute recess due to the ordeal.

Richard (“Dick”) Chernesky was not

present at the luncheon. Susan Solle spoke

of Dick as “the man who turned dog food

into gold.” Dick’s career began at Smith &

Schnacke, and he is currently Partner at continued on page15 Dinsmore & Shohl, LLP. “He always had a quiet sense of power about him,” Susan said. Whenever Dick was faced with a decision, she con-

Richard J. Chernesky

14

Dayton Bar Briefs December 2016

937.222.7902

Thank you to our Platinum Partner and Gold Sponsors for their continued support of the DBA.

Dayton Bar Association Platinum Partner

Faruki Ireland & Cox P.L.L. Gold Partner Thompson Hine LLP

Leo F. Krebs

Leo Krebs began his career as a Legal

Deputy with the Montgomery County

Probate Court. Thereafter, he went to

Bieser, Greer & Landis, and has remained

there since. Over the course of his career, Leo has dealt with a wide variety of issues. Notably, Leo was involved with the adoption of Evid. R. 803 concerning the use of authoritative text (Stinson v. England). Some of the most interesting cases Leo has had in his career have involved federal antitrust action (Berman v. Rikes); desegregation (Brinkman v. Dayton Board of Education); tampon toxic shock (representing Tampax in the Southwestern Ohio cases); and Fourth of July fireworks explosions. At the conclusion of his speech, Leo impressed upon all in attendance the importance of ensuring the practice of law remains a profession. He further recited a satirical jingle about “Leo, the King of the Jungle” advertising his own legal services.

Charles W. Slicer Sr.

Charles (“Chuck”) Slicer Sr. was not

present at the luncheon. However, his legal

career speaks for itself. Chuck’s specialty

practice began with his father, and

continued for 20 years. At the time, he practiced primarily Corporate and Tax law. Since, Chuck has been self-employed, associating with dozens of attorneys over the years. As of most recently, Chuck has been in practice with his son since 2001, in the general practice area.

Paul J. Winterhalter

Paul Winterhalter first began his

career with Pickrel, Schaeffer &

Ebeling, and he has been there ever

since. His areas of practice include

Insurance Defense and Family law. Before Paul was a legal superstar, however, he was a star on the basketball court, www.daybar.org

as he led the Dayton Flyers to victory in the 1962 NIT championship game. As Paul recounted the successes of his career and fondest memories, Paul’s respect for the Dayton legal community was palpable. “If I had to do it all over again,” he said, “I wouldn’t do anything different.”

Upon Paul’s acceptance of recognition at the luncheon, he expressed immeasurable gratitude to his family, including his wife, a cancer survivor and the toughest person he knows.

Congratulations to the 2016 Honorees, who have left, and continue to leave, incredible legacies. These individuals have blessed Dayton with their wealth of knowledge, experience, and stories, which will impact our legal profession for years to come.

By Christina M. Spencer Esq. DBA Editorial Board Hollingsworth & Washington

Cong

ratul Class

ation

s!

of

1966’

1966’

‘1966

1966 December 2016 Dayton Bar Briefs

15

Advisory Opinion:

Ohio Board of Professional Conduct

OHIO BOARD OF PROFESSIONAL CONDUCT OPINION 2016-8 Issued October 7, 2016 Withdraws Opinions 89-24, 2000-6 Client Testimonials in Lawyer Advertising and Online Services

Syllabus of Opinion: 1. A lawyer may include a client testimonial in advertising so long as it does not constitute a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services or create unjustified expectations for prospective clients.

Testimonials generally referring to favorable outcomes for clients must contain an appropriate disclaimer to avoid unjustified expectations.

2. Client testimonials in an advertisement that state the amount of a settlement or verdict are inherently misleading even if a disclaimer is used.

3. A lawyer is responsible for monitoring testimonials and reviews made by clients on websites if the lawyer controls the content of the website. Online testimonials or reviews from clients about the lawyer or the lawyer’s services that contain false, misleading, or nonverifiable communications must be removed by the lawyer when the lawyer has control over the online content.

View this opinion in it's entirety under the"DBA News" tab on the homepage of our website: www.daybar.org

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct.

16

Dayton Bar Briefs December 2016

937.222.7902

Comp a

ny Exc lu

sive O

Give a Gift That Keeps on giving! ffers

It’s getting to be that time of year…

Are you are looking for that perfect yet unique gift for someone on your shopping list? Let us help!

Tickets to a great show or a Victoria Theatre Association gift card make a perfect gift!

Visit the DBE C.E.O. Program Special Link: www.victoriatheatre.com/ceodba.html Mike Super - Magic & Illusion Part of the Projects Unlimited Star Attraction Series December 10 @ 8:00pm Victoria Theatre

25th Annual Putnam County Spelling Bee Presented by Dare to Defy Productions

Have ?s Contact: Betty Gould Group Sales Manager Victoria Theatre Association Betty.gould@victoriatheatre.com 937.461.8295

January 6-7 & 13-14, 2017 @ Various Times Mathile Theatre - Schuster PAC

42nd Street Part of the Premier Health Broadway Series

January 10-15, 2017 @ Various Times Mead Theatre - Schuster Center

A Year with Frog and Toad Part of the Morris Furniture Co. Family Series January 21, 2017 @ 1:00 & 4:00pm Victoria Theatre VTA Family Rolling Workshops Part of the Morris Furniture Co. Family Series

January 21, 2017; February 25, 2017; April 8, 2017; April 22, 2017 @ 2:15pm Victoria Theatre

John McEuen And Friends Present Will The Circle Be Unbroken Part of the Universal 1 Credit Union VIC150 Music Series

visit www.daybar.org for more shows

Thu. January 26, 2017 @ 7:30pm Victoria Theatre

www.daybar.org

December 2016 Dayton Bar Briefs

17

The DBA Salutes the

Young Lawyers Division

For raising and contributing more than $ 100,000 to CARE House

18

Dayton Bar Briefs December 2016

937.222.7902

Professional Conduct Requirements

New Lawyer Programs

We want to help you comply with your bi-annual requirements! A 3.0 hr Professional Conduct seminar is offered at least once a month!

The DBA offers programs designed to satisfy the Supreme Court of Ohio New Lawyer Training Requirements.

Those that have been practicing for less than two years can receive special rates on these and other CLE programs!

Look for the PC icon for programs.

Look for the NLT icon for pending programs.

PC Seminars listed below fulfill the biannual requirement for 2.5 hours of Professional Conduct: - Sean Carter: The Ethy Awards Fri. December 2 | 8:30-11:45am | Seminar #1617-053

- Professional Conduct: The Top 10 Ethics Mistakes (video) Mon. December 19 | 1:00-4:15pm | Seminar #1617-068 - Professional Conduct: The Top 10 Ethics Mistakes (video) Thurs. December 22 | 9:00-12:15pm | Seminar #1617-072 - Professional Conduct: The Top 10 Ethics Mistakes (video) Thurs. December 30 | 9:00-12:15pm | Seminar #1617-077

Meet Your Requirements

daybar.org/cle

New Lawyer Training (NLT) credit is pending for the following CLE programs:

- 24th Annual Intellectual Property for General and Corporate Practitioners Fri. December 9 | 9:00-12:15pm | Seminar #1617-058 - Judge Langer’s 2016 Criminal Law Update Seminar Fri. December 16 | 8:30-11:45am | Seminar #1617-067 - Domestic Relations 101 (video replay) Wed. December 21 | 9:00-12:15pm | Seminar #1617-070 - The Rules of Evidence (video replay) Wed. December 21 | 1:00-4:15pm | Seminar #1617-071 - YLD NLT Core Components: Professionalism, Law Office Management and Client Fund Management (video) Thurs. December 22 | 12:30-3:45pm | Seminar #1617-073

Earn CLE anytime, anywhere.

A great variety of programs to choose from.

Convenience | Selection | Affordability www.daybar.org

December 2016 Dayton Bar Briefs

19

daybar.org/cle December CLE Offerings

DON'T

run out of TIME!

Criminal Law Certification (video replay)

Estate Planning Trust & Probate Update

Thur. December 1, 2016 • 8:30am - 3:45pm 6.0 CLE Hours • Seminar #1617-038 M $215 | NM $300 | PP $0

CLE

! rite avo F r

ake Spe

Sean Carter: The 2016 ETHY Awards

Fri. December 2, 2016 • 8:30 - 11:45am 3.0 CLE Hours of Prof. Conduct • Seminar #1617-053

M $120 | NM $165 | PP $0

Sean Carter, Legal Humorist

Each year, Hollywood celebrates the best performances in motion pictures at the Oscars. Well, each year, here in Dayton, we celebrate the worst ethics violations in the legal profession at the Ethys. The festivities will be hosted by our favorite legal humorist Sean Carter, who will announce this year’s winners of the coveted Ethy for Best Supporting Accomplice in Illegal Activity, Most Creative Billing, Best Original Excuse, Best Courtroom Outburst, Worst Love Scene, Miss/Mister Uncongeniality, the Joan Rivers Awards, the Lifetime Achievement Award, and so much more. In doing so, Mr. Carter will review the particular ethics rules and professionalism creeds violated and provide tips on how to avoid being a “winner” of a future Ethy.

Juvenile Law Update

Tues. December 6, 2016 • 9:00 - 12:15pm 3.0 CLE Hours • Seminar #1617-055 M $105 | NM $150 | PP $0

Domestic Relations Update

Tues. December 6, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-056 M $105 | NM $150 | PP $0

DBA Labor and Employment Law Committee’s Annual (and Amazing) CLE Roundup

Wed. December 7, 2016 • 9:00-12:15pm 3.0 CLE Hours (incl. 1.0 Hour Prof. Conduct) • Seminar #1617-057 M $105 | NM $150 | PP $0 2016 brought significant changes to the practice of labor and employment law, including how and when lawyers may communicate with employee witnesses, new limitations on and increased emphasis of the salary basis test under the Fair Labor Standards Act that make more employees eligible for overtime pay, and the legalization of medical marijuana and its effects on the workplace. The speakers at this event will explain these new developments applicable to nearly every employment relationship and show you how to successfully navigate their fact-intensive processes.

20

Wed. December 7, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-058 M $105 | NM $150 | PP $0

CLE

s! rite avo F r

24th Annual Intellectual Property for General ake Spe

& Corporate Practitioners

Fri. December 9, 2016 • 9:00-12:15pm 3.0 CLE Hours (incl. 1.0 Hour Prof. Conduct) • Seminar #1617-059 M $105 | NM $150 | PP $0 Matt & Ted will present this important primer for General and Corporate Practitioners. Topics covered include: Trademarks and Domain Names; Trade Secrets; Patents; Copyrights; and IP from a Litigators Point of View.

Matthew R. Jenkins

Ted Lienesch

Federal Practice Update

Tues. December 13, 2016 • 9:00-12:15pm 3.0 CLE Hours • Seminar #1617-061 M $105 | NM $150 | PP $0 Welcome and Opening Remarks Victoria L. Nilles - Chair & Michael N. Rhinehart - Vice-Chair of Federal Practice Committee 9:00-9:45am Year in Review of the U.S. District Court (Dayton) Hon. Thomas M. Rose; Hon. Walter H. Rice; Moderator: Hon. Michael J. Newman This panel presentation will discuss recent issues concerning practice and procedures in the U.S. District Court in Dayton, and will address particular questions presented by attendees.

9:45-10:30am U.S. Supreme Court Review Hon. Sharon L. Ovington will review U.S. Supreme Court opinions issued since December 2015. This presentation will not only offer updates to federal practitioners on recent decisions, but will also identify developing trends.

10:30-10:45am BREAK 10:45-11:15am Federal Civil Procedure Update Hon. Michael J. Newman will present a detailed analysis of Civil Rules updates, the Local Rules, and how case law has developed over the past year.

11:15-12:15pm Lightning Round: Protective Orders & Filing Under Seal; Deposing Corporate Representatives; Pleading Standards Michael N. Rhinehart, Esq. of the United States District Court will discuss joint protective orders and filing documents under seal; Michael S. Mayer, Esq. of Faruki, Ireland & Cox, PLL will discuss depositions of corporate representatives under Fed. R. Civ. P. 30(b)(6); and Christopher C. Hollon, Esq. of Faruki, Ireland & Cox, PLL will discuss recent developments regarding pleading standards.

12:15pm ADJOURN

www.daybar.org/cle 937.222.7902 Civil Trial Update

Domestic Relations 101 (video replay)

Environmental Law Update

The Rules of Evidence (video replay)

Real Property Update

Professional Conduct: The Top 10 Ethics Mistakes (video replay)

Tues. December 13, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-062 M $105 | NM $150 | PP $0

Wed. December 14, 2016 • 9:00 - 12:15pm 3.0 CLE Hours • Seminar #1617-063 M $105 | NM $150 | PP $0

Wed. December 14, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-064 M $105 | NM $150 | PP $0

Appellate Practice CLE Roundup Thurs. December 15, 2016 • 8:30 - 11:45am 3.0 CLE Hours • Seminar #1617-065 M $105 | NM $150 | PP $0

Workers Compensation & Social Security Update Thurs. December 15, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-066 M $105 | NM $150 | PP $0 te!

ri

avo er F ak

Spe

CLE

Judge Langer's 2016 Criminal Law Update Seminar Fri. December 16, 2016 • 8:30 - 11:45am 3.0 CLE Hours • Seminar #1617-067 M $105 | NM $150 | PP $0

Hon. dennis J. Langer

Judge Langer will survey US and Ohio Supreme Court and appellate decisions, as well as recently enacted legislation. Topics include: search and seizure, confessions, pretrial identification, substantive criminal law, rules of evidence, trial procedure, sentencing, and revocation hearings.

Also, statutes regarding driver’s license suspension for drug offenses, judicial release, and juvenile adjudications not counting as “convictions.”

Professional Conduct: The Top 10 Ethics Mistakes (video replay) Mon. December 19, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-068 M $105 | NM $150 | PP $0

2016 Annual Elder Law Update (video replay)

Tues. December 20, 2016 • 8:30 - 4:00pm 6.0 CLE Hours (incl. 1.0 Hour Prof. Conduct) • Seminar #1617-069 M $215 | NM $300 | PP $0

December CLE Offerings

ways to register

Wed. December 21, 2016 • 9:00 - 12:15pm 3.0 CLE Hours, also approved 3.0 NLT Credit Hours • Seminar #1617-070 M $105 | NM $150 | PP $0

Wed. December 21, 2016 • 1:00 - 4:15pm 3.0 CLE Hours, also approved 3.0 NLT Credit Hours • Seminar #1617-071 M $105 | NM $150 | PP $0

Tues. December 22, 2016 • 9:00 - 12:15pm 3.0 CLE Hours • Seminar #1617-072 M $105 | NM $150 | PP $0

YLD NLT Core Components: Professionalism, Client Fund Management & Law Office Management (video replay)

Tues. December 22, 2016 • 12:30 - 3:45pm 3.0 CLE Hours, also approved 3.0 NLT Credit Hours • Seminar #1617-073 M $105 | NM $150 | PP $0

Best Practices for Handling Commercial Real Property Issues (video replay) Tues. December 27, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-074 M $105 | NM $150 | PP $0

2016 Annual Probate Institute (video replay)

Wed. December 28, 2016 • 9:00 - 4:45pm 6.0 CLE Hours (incl. 1.0 Hour Prof. Conduct) • Seminar #1617-075 M $215 | NM $300 | PP $0

2016 Annual Domestic Relations Seminar (video replay)

Thurs. December 29, 2016 • 9:00 - 4:45pm 6.0 CLE Hours (incl. 1.0 Hour Professional Conduct) • Seminar #1617-076 M $215 | NM $300 | PP $0

Professional Conduct: The Top 10 Ethics Mistakes (video replay) Fri. December 30, 2016 • 9:00 - 12:15pm 3.0 CLE Hours • Seminar #1617-077 M $105 | NM $150 | PP $0

December 2016 Dayton Bar Briefs

21

FROM THE JUDGES DESK

A Plea For Lawyers to Lead Us to Improved Political Disclosure

By Hon. Mary L. Wiseman Montgomery Cty Common Pleas Court

A A

s this article is being written, our national election looms ahead.

By the time this article is published, the votes will have been cast and counted. Traditionally, that tally triggers a peaceful and orderly transition of power and authority. That smooth transition of leadership has been the envy of the world from the founding of our great nation.

We live, however, in turbulent times. The harsh tone of an overly-long and bitterly fought presidential campaign, combined with the rising anger, distrust, and disillusionment of many citizens (on both the left and the right), makes the aftermath of this election season uncertain. The national electoral process may bring greater growth, stability and trust.

On the other hand, this volatile process may lead to a constitutional crisis, continued political gridlock, or even small-scale civil armed rebellion.

Without a crystal ball to predict the future, a winning bet nonetheless is that the political rhetoric surrounding the election’s outcome will likely be sharp and polarizing.

From this vitriolic vortex, lawyers have a tremendous opportunity and duty to raise the level of our national, state, and local political discourse. Indeed, the Ohio Rules of Professional Conduct include a preamble stating this important role for lawyers. As simply stated in the preamble: “Lawyers play a vital role in the preservation of society.”

That vital role includes furthering “the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” In addition to buttressing the public’s confidence in the justice system and the rule of law, lawyers can lead us into an improved era of public and electoral debate and conversation. The same steps that lawyers take to act courteously, civilly and professionally within a competitive, high-stakes, adversarial system, if incorporated into our nation’s political discourse, would vastly improve the political landscape.

22

Dayton Bar Briefs December 2016

For example, the Supreme Court of Ohio’s Commission on Professionalism has promulgated lists of “Do’s and Dont’s” that cover, among other topics, working with one’s opponent and others.

These practical tips include: 1. Maintain a courteous and cooperative working relationship with opposing counsel and others 2. Wait 24 hours before deciding to respond to intemperate, untrue, or exasperating communications from another.

3. Keep your word.

4. Do not respond in kind when confronted with unprofessional behavior.

5. Do not be insulting, belligerent, or demeaning in your communications, written or oral.

6. Be accurate in setting forth facts.

Lawyers should press for the adoption of these and similar standards by the national, state, and local political pundits, candidates, and campaign surrogates. The emphasis on civility and professionalism within the bar worked to enhance the profession. With lawyers taking their lessons learned regarding the benefits of courtesy and civility into the political sphere, perhaps the ad hominin attacks and other polarizing diversions within our present political system would diminish.

The legal system learned that a process steeped in incivility is inefficient and ineffective. The Supreme Court of Ohio has led the bench and bar to high standards of civility and professionalism, improving every facet of our justice system. With this experience and knowledge, lawyers can do the same for our general society by demonstrating and teaching that adherence to high ideals of professionalism and civility improves outcomes and builds respect. By encouraging others to show respect, decorum, and civility, the legal profession will fulfill its vital role in the preservation of society.

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Your generous gift will make a difference.

Your support of the Dayton Bar Association Foundation, allows the Foundation to fund innovative, law-related, local organizations to improve our community by promoting justice and respect for the law.

Thank You!

Your generosity does make a difference - as your contribution is leveraged, along with those of your fellow DBA members, to make an impact on behalf of our legal community and to improve the public perception of our profession.

The DBA Foundation will devote all proceeds from this solicitation to providing grants to organizations who directly serve those in greatest need in our community. ================================

DETACH AND RE TURN

================================

To: Dayton Bar Association Foundation, 600 Performance Place, 109 N. Main St., Dayton OH 45402-1129

*A formal acknowledgment of your gift will be sent to you.* I am pleased to support the Dayton Bar Association Foundation with a gift of:

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December 2016 Dayton Bar Briefs

23

LEGAL RESEARCH

Annual Holiday Gift Column

By Alyssa Norman & Kylie Corbin Research Assistants J.D. Expected May 2017 University of Dayton School of Law

I

t’s that time of year again! We have all waited too long to buy that special someone a special gift. We’ve done all the hard work for you; here’s a list of 12 gifts for the lawyer and soon-to-be lawyers in your life. This list suits any budget and ranges from entertainment to everyday necessities.

Happy Shopping!

Legal Amusement

For the Chef

Lawsuit: the Board Game $34.95

amazon.com/LAWSUIT--Family-Award-Winning-Board-Game/ To be played at your own risk. Both the lawyers and non-lawyers in your life can play this legally themed game. Can be played by 2-6 players.

Players face creative legal scenarios and the choices lawyers make every day.

Bose Noise Cancelling Headphones $249.00

shop.nordstrom.com/s/4160274 These Bluetooth headphones are perfect for the music or audiobook buff in your life. The best part of these fashionable headphones are that there are two settings – noise canceling and aware, which allow for either complete distraction from the outside world or sounds through the headset with the ability to multitask.

Himalayan Salt Serving Platter $49.95

williams-sonoma.com/ products/5626155/ This serving platter can be used as a plank for cooking or serving. The platter can be chilled for sushi or heated for a quick salmon dinner on the busy weeknight. The handles on the platter ensure the salt is transferred safely from cooking area to dinner table.

Electric Wine Aerator $99.95

amazon.com/Aervana-One-Touch-OriginalStandards-Electric/dp/B01DUSEK5O/ This FDA approved aerator is perfect for anyone who needs just one glass of wine to get through the rest of the week. One button keeps the wine sediment in the bottle rather than transferring to the wine glass; thus, keeping your wine drinker satisfied.

S’well Water Bottle $45.00

swellbottle.com/shop-swell-bottle/ This is perfect for the environmentally friendly person in your life. S’well’s founding mission is to reduce the amount of plastic in the world all while delivering fresh water to their customers. This fashionable bottle comes in a multitude of colors and finishes.

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Dayton Bar Briefs December 2016

937.222.7902

For the Home/Office

Last Minute Trinkets

“Justice is Blind” Digital Download Print $8.00

Salvatore Ferragamo Men’s Leather Shoe Cleaning Kit $250.00

etsy.com/listing/231955491/justice-is-blindlaw-school-graduation This digital download is essential to the law student or lawyer in your life. This is perfect for the last minute gift that you can add a personal touch to without breaking the bank.

Cardboard iPad Tv Stand $30.00

uncommongoods.com/product/cardboard-ipad-tv-stand Don’t touch that dial! This recycled cardboard stand gives your iPad the look of a retro television; a fun addition to any home or office.

Couples Doormat $24.95

etsy.com/listing/237941248/ scales-of-justice-personalizedmarble?ref=market We all know a couple who will get a kick out of this doormat. It’s made of a durable man-made fiber, so it will easily hold up in high traffic areas.

Personalization for the Law Firm $54.99

etsy.com/listing/385602764/ This personalized sign is a classic necessity for any lawyer. It’s printed directly on glass, so it will not chip, fade, or peel off.

www.daybar.org

neimanmarcus.com/Salvatore-Ferragamo-Men-s-Leather-Shoe-Cleaning-Kit/ prod189220102/p.prod High-quality shoe polish is a practical gift for anyone in the legal profession. This Salvatore Ferragamo shoe care cleaning set comes with various colored creams, brushes, a shoehorn, cloth, and stores nicely in a black bag.

Hi Resolution Wand Scanner $119.00

sharperimage.com/si/view/ product/hi-Resolution-WandScanner/200657?trail= Never worry about misplacing documents again! This portable and cordless scanner saves documents, pictures, and business cards to a memory card for later download.

Kurt Adler Scales of Justice Ornament $9.00

amazon.com/Kurt-Adler-Scales-JusticeOrnament/dp/B01GM4G920/ref=sr_1 _7?ie=UTF8&qid=1475858406&sr=87&keywords=lawyer+ornament This is the perfect holiday decoration for lawyers, judges, paralegals, and law students. Measuring only 4 inches, this is an easy last-minute buy.

December 2016 Dayton Bar Briefs

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member info updates

many thanks again to the 2016 bench bar sponsors!

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Dayton Bar Briefs December 2016

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now available!

Earn up to 12 hours of Ohio CLE credit online at Dayton.FastCLE.com

The DBA offers high-quality online CLE, a convenient way for you to earn up to 12 hours of Ohio CLE credit per reporting period.

Our online CLE programming allow you to take CLE courses on a wide variety of topics, any time of the day, and day of the week. And, at only $45 per hour for members and $60 per hour for non-members, our online CLE is also cost-effective.

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December 2016 Dayton Bar Briefs

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law-related organizations Dayton Bar Association Foundation

Your DBA Foundation

Established in 1984 as the Charitable Arm of the Greater Dayton Legal Community

DBA members supporting our community through DBA Foundation grants to worthy law-related organizations and projects.

Every dollar of your support is leveraged with those of fellow members to make a difference in our community and demonstrate the generosity of local legal professionals.

Thank You for Your Continued Support!

To obtain more information about the Dayton Bar Association Foundation

Write, Call or Email: William B. Wheeler, Executive Director Dayton Bar Association Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: bwheeler@daybar.org

Greater Dayton Volunteer Lawyers Project Countless Men, Women and Children are Denied Justice Every Day Simply Because They are Poor Please tell us what you are willing to accept as pro bono work. Personal Representation of an Indigent Client: Divorce/Family Law Bankruptcy Consumer Issues Contract/Warranty disputes SS, SSI, SSD Tort Defenses Predatory Lending Stalking Protection Orders Civil Protection Orders Wage Claims Employment Disputes Guardianships Probate Homeownership Disputes Landlord/Tenant Disputes Health Care (Insurance Claims, Nursing Home Issues Other Or, you can choose from the options below: Acceptance of 1-2 Clinics (Batched Cases) per year - GDVLP provides paralegal, secretarial and runner services for these cases.

Please specify Divorce, Chapter 7 Bankruptcy, or Expungement Assistance to 1-2 Non Profit Corporations in the Western Ohio Region Acceptance of 3-5 Guardianships with guardians provided through The Guardianship Program (person only) In addition: I will be available to provide pro bono civil legal assistance to victims if there is a community emergency (tornado, natural disaster)

Please return this form to VLP:

By Mail: 610 Performance Place, 109 N. Main St., Dayton OH 45402

By Fax: to (937) 461-4731

By Phone: (937) 461-3857

By E-mail: kelly@gdvlp.org Name:________________________________________________ Firm:_________________________________________________ Address:______________________________________________ Preferred County for Pro Bono Service:_____________________ Phone:_______________________ Fax:____________________ Email:________________________________________________ Attorney Registration #:__________________________________

As of January 1, 2014 every 6 hours of pro bono service through an approved pro bono provider will give you 1 hour of CLE credit to a maximum of 6 hours of CLE credit (36 hours of pro bono). The Greater Dayton Volunteer Lawyers Project will send your hours to the Ohio Supreme Court and notify you of the same.

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Dayton Bar Briefs December 2016

937.222.7902

Thurgood Marshall Law Society TMLS Summer Clerkship Program Student Profile:

Ebony Davenport Last summer, Ebony Davenport participated in the Thurgood Marshall Law Society Diversity Summer Clerkship Program as student clerk for the Honorable Magistrate Judge Michael L. Newman. She expects to earn her Juris Doctor in May 2018 from the University of Dayton School of Law (UDSL). Ebony is very active on campus. She is a Dean's Fellow, a peer mentor for incoming students, staff writer for law review, and she is on the executive board of two student organizations.

Prior to beginning her legal education Ebony attended Sinclair Community College where she received an Associate Degree and then transferred to Wright State University where she received her Bachelor Degree. As a Dayton native she was drawn to UDSL, as well as the summer clerkship program because she hopes to build her career here in the Miami Valley.

University of Dayton School of Law

www.daybar.org

December 2016 Dayton Bar Briefs

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members on the move

mark your calendar Criminal Law Certification DBA Office Thurs. December 1, 2016 Annual Holiday Luncheon Sinclair College, Bldg 12 Thurs. December 8, 2016

BIESER, GREER & LANDIS, LLP

GUDORF

BIESER, GREER & LANDIS, LLP announced that 10 of its 18 attorneys were listed in The Best Lawyers in America© 2017. Best Lawyers is the oldest and most respected peer-reviewed publication in the legal profession. The attorneys were recognized for excellence in various categories, including Commercial Litigation, Corporate Law, White Collar Criminal Defense, Real Estate Law, Trust and Estate Litigation, Patents, Medical Malpractice Defense, Personal Injury, Product Liability, Non-Profit / Charities Law, and more. Two of the firm’s partners received "Lawyer of the Year" awards: David P. Williamson (Business Litigation) was named the Best Lawyers® 2017 Real Estate Litigation "Lawyer of the Year" and James P. Fleisher (White Collar Crime Defense and Government Regulatory Enforcement) was named the Best Lawyers® 2017 White Collar Criminal Defense "Lawyer of the Year". Other Bieser Greer & Landis Attorneys included in Best Lawyers 2017 were Edward L. Shank, Howard P. Krisher II, Irvin G. Bieser Jr., David C. Greer, James H. Greer, John F. Haviland Jr., Joseph C. Oehlers and Leo F. Krebs.

GUDORF LAW GROUP, LLC has announced that Managing Attorney Ted Gudorf was recently elected President of the Life Essentials Board of Directors.

Life Essentials is a non-profit organization serving seniors struggling with mental illness in Montgomery and Greene counties.

Its core program is provide guardians to individuals who have no financial means and no family or friend willing or able to be the guardian. The Guardianship Angel Volunteers program trains adult volunteers to be friendly visitors who monitor the well-being, health and safety of adults under guardianship during monthly visits.

Gudorf is no stranger to helping the less fortunate. He is a Founding Trustee of the Greater Dayton Volunteer Lawyers Project, that has provided more than $15 million in donated legal services since its inception in 1988. Gudorf has the distinction of being the first attorney in Ohio to obtain a Master of Laws degree (LL.M.) in estate planning and elder law and is one of only 165 OSBA Board Certified Specialists in estate planning, trust and probate law.

105 Riverside Drive, Dayton, OH 45405 • Fax: (937) 278–1337 Tel: (937) 278–8201 • www.rogersmcnay.com

We offer Business Insurance including LAWYERS PROFESSIONAL LIABILITY exclusively through:

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Dayton Bar Briefs December 2016

2017 Robert Farquhar Mock Trial Montgomery County Courthouse Fri. January 20, 2017 Lunch/Training: 11:00am Trials: 12:00-4:00pm Chancery Club Luncheon The Old Courthouse Fri. February 10, 2017 Probate Law Institute DBA Office Fri. March 10, 2017

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Dayton Municipal Court has proposed changes to the Local Court Rules. Please visit the Dayton Municipal Court at http:// www.daytonmunicipalcourt.org/ for notice of and an opportunity to view and comment on proposed local court rules.

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Contact: Lori (lluebben@daybar.org) or Chris (calbrektson@daybar.org) at 937.222.7902 December 2016 Dayton Bar Briefs

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