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The Magazine of the Dayton Bar Association | JANUARY 2017 | Vol. 66, No. 5


Bar Briefs

2017 Happy New Year

dba offers strong value pg 3

Barrister of the Month Gary L. Froelich Esq. pg 4

YLD 5K Comes to a Close pg 21


Bar Briefs


January 2017 | Vol. 66, No. 5

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 Member–at–Large

Merle F. Wilberding 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

FEATURES 3 TRUSTEE’S MESSAGE DBA Offers Strong Value By David P. Pierce Esq. 4


By Nadia A. Klarr Esq.



Great Tickets to Great Shows! DBA C.E.O. Program

8 10


First Amendment is On the High Court’s Docket



24th Annual Bench Bar Conference: The Rule of Law in a Shrinking World

By Jennifer A. Kirby Esq.

Should a Trademark be “Free” to Disparage? The Next Case to Shape the

By Nadia A. Klarr Esq.


FROM THE JUDGES DESK Farewell and Thanks

By Hon. Michael L. Tucker


YOUNG LAWYERS DIVISION DBA Young Lawyers Division Volunteers Bring Smiles to CARE House Children & Families During Winter Festival 2016

By Cassandra Andres Rice Esq. & Michael D. Rice Esq.



The DBA’s Young Lawyers Division 5K For the Kids Run Comes to a Close

By Emily A. Feaver Esq. & Shelli R. Brock Esq.



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.


Dayton Bar Briefs January 2017


Fri. January 20, 2017 | Montgomery County Courts



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



DBA Offers T T


he times they are a-changing. When I passed the Ohio Bar Exam in the 1990's, one of the first things I did, after of course framing proof of my law license, was to join the Dayton Bar Association. I thought then, and continue to believe, that becoming active in a local bar association is something that members of a learned profession are expected to do, a civic obligation, and a way to give back to the community. I never questioned this decision or asked, "What's in it for me?" Perhaps that's why it is somewhat puzzling to most experienced lawyers and DBA Trustees when we hear lawyers -- and not all of them millennial lawyers -- ask precisely this question. I have learned to fight the temptation to express the above opinions to these lawyers and to just answer the question. Therefore, I'll tell you why you should join the DBA and why you should stay active in it. The DBA has been existence since 1883. For decades, it has been one of the best ways for newer lawyers to network with other local practitioners and judges. By way of example, the recent DBA-sponsored Bench Bar conference was attended by more than 150 lawyers and judges. During the so-called "speed dating" session, participants at each table discussed their practice areas and concerns with judges and magistrate judges. At my table, we had conversations with judges from the Montgomery County Common Pleas Court General Division, Domestic Relations and Probate Courts, United States District Court, and the Second District Court of Appeals. Similar opportunities to interact with the lawyers who may well be your adversary some day, and judges who may well preside over your next case, exist regularly at DBA meetings and at social settings such as the Chancery Club. My best advice to newer lawyers is to take full advantage of these opportunities. Suppose you don't intend to go to court or you deal with lawyers



By David P. Pierce Esq. Second Vice President Coolidge Wall Co., LPA

primarily from outside of Dayton? You will likely still benefit by joining and participating in a DBA committee. The DBA offers approximately 24 substantive committees and interest groups, most of which meet approximately once a month. At committee meetings, you can discuss issues affecting your practice area, learn from other practitioners, and even sometimes get continuing legal education credit (not to mention the holy grail of CLE …free food). A full list of committees can be found on the DBA's website at daybar.org. On the subject of CLE, the DBA has come up with many fresh programming ideas and offers them to its members at value prices through its CLE Passport program. As someone who has traveled to big cities to hear "experts" in my practice areas, I will tell you that I rarely learn more practical information than from the lawyers in my own backyard. In fact, a Washington, D.C. lawyer recently told a local corporate lawyer, “I would rather deal with attorneys in your area than my own because you are at least as knowledgeable as the hot shots in the big city, but much more collegial.” For those who don't favor human interaction, the DBA also offers on-line CLE programming to its members. The DBA offers a number of other member benefits, such as a free legal research tool, Fastcase, providing referrals through the Lawyer Referral Service, and making its ever popular legal directory available in print and in an on-line format. (A full list of member benefits can be found on the DBA's website.) As technology has evolved, so too has the willingness of the DBA to embrace it. The DBA is beginning to work on an initiative to improve its social media presence and its website to better serve its members. If you take the time to get involved in the DBA, you will likely be materially rewarded in addition to "doing the right thing."

January 2017 Dayton Bar Briefs



Gary L. Froelich Esq.


n his essay, “The Roots of Honor,” John Ruskin attempts to differentiate business and skilled trades from professions. Ruskin identifies five great intellectual professions that exist in every civilized nation. While finding the presence of personal gain and service to others in each, the difference between them, he posits, boils down to the ultimate objective of each occupation. Whereas wealth is the ultimate objective in business, a lawyer’s ultimate end is, through self-sacrifice, service to others. Thus, unlike the titans of industry, a lawyer’s primary function is not the attainment of wealth; rather, the lawyer’s foremost duty is to provide peace and order to society – to enforce justice. Fulfilling the lofty ideals described by Ruskin is, of course, no small task. It requires a uniquely disciplined individual, one with the temperament and intellect to know not only how, but when, to fight and what to sacrifice to attain the justice owed his clients. It requires a lawyer like Gary Froelich. As the son of a soldier, Gary understood early in life the meaning of self-sacrifice. Gary’s parents lived in Dayton, but his Michigan-raised mother often traveled home while Gary’s father was deployed to serve in the second Great War. Gary was born in Benton Harbor in 1943 during one of his mother’s trips to Michigan. Fortunately, the family returned to Dayton, where Gary has lived ever since. Although born in that “state up north,” Gary insists he is a Daytonian and Ohioan through and through. He began his education in the Dayton Public Schools and was the first of his family to attend college. At Miami University, Gary intended to study psychology, but that path was unexpectedly altered by Dr. Alan Engel. Sitting in a small classroom on the idyllic Oxford, Ohio campus, Gary and a group of mostly political science students listened intently to Dr. Engel’s dissertation on the basics of constitutional law. The hour-long lectures, based in logic and aimed at stimulating inquiring minds, inspired a young Gary Froelich to explore the rule of law. After graduating from Miami University, Gary proceeded to The Ohio State University College of Law where he would spend the next three years committed to joining the legal profession. Perhaps this endeavor encouraged his younger brother, now-Judge Jeffrey Froelich of the Second District Court of Appeals, to also consider law as a profession. During his summer breaks, Gary spent his days working as a law clerk for the Montgomery County Common Pleas Court. In the late 1960s, he was the only clerk for the court, giving him a unique opportunity to observe, talk with, and learn from some of Montgomery


Dayton Bar Briefs January 2017

County’s most revered judges, including Judge Dan Thomas, Judge Carl Kessler, Judge Bob Martin, Judge Charles Lee Mills, Judge Paul Brenton, Judge Robert McBride, Judge Rodney Love, and Judge Cecil Edwards. After spending hours during the day updating court copies of the Revised Code (which had not been updated since its adoption in the 1950s), the common pleas court adjourned and Gary would transition to his second job as a Yellow cab driver. Gary graduated from law school in 1968, a notable year for developments in the Vietnam War. Following in his father’s footsteps, Gary decided to enlist. He survived basic training and advanced infantry training before he was placed in an Army reserve unit in 1970. The war began scaling down and commencing its withdrawal phase when Gary embarked on a new chapter and ventured into private practice with a few other attorneys, including Herb Louis, Jack Meagher, John Kessler, and Bill Wolff, Jr. All of the lawyers in his small firm left to become judges except Gary and Herb. The two-man firm expanded with the addition of Jeff Froelich, Jeff Winwood, and Marybeth Rutledge. With the addition of other lawyers over the years, the firm moved from the American Building to the Kettering Tower in 1977. Gary remained on the eighteenth floor of Kettering Tower until 2005, when he became a solo practitioner. After practicing on Far Hills Avenue for nearly eleven years, Gary returned to Kettering Tower this past summer, where he joined the law firm of Sebaly, Shilito + Dyer as of counsel. Gary’s career took many forms over the years. In no particular order, he was an Assistant Montgomery County Prosecutor, Special Counsel for the Ohio Attorney General, a United States Army Reserve Judge Advocate General, and the first court-appointed “referee” (now magistrates) in Montgomery County. His practice evolved over the years to include real estate, international business, and general practice matters. His real estate practice was particularly expansive. Gary started teaching real estate law classes at Sinclair Community College in 1972, edited the Ohio Real Estate Law Instructor’s Manual, and was appointed in 2008 by the then-Governor to the Ohio Real Estate Commission, which he presided over as President from 2013 until 2014. Gary’s international business practice also took him around the world. He participated in an international arbitration in Brussels, where he advocated for his client in opposition to the Italian continued on page 5



government. Perhaps more memorable for some, Gary represented Congressman Tony Hall during his years of public service from 1972 to 2000. Tony’s brother, Sam Hall, notable in his own right as an Olympic diver and silver medalist, was arrested in the dark of night in December of 1986 inside a Nicaraguan air force base after he was found with a map of the base in his shoe. Accused of being part of the Contras, Sam was held by the Sandinistas. Serving as the family attorney, Gary negotiated Sam’s release after personally traveling to Nicaragua to secure Sam and arrange his return. Service to others was not a theme exclusive to Gary’s career. Proving his status as a true Daytonian, Gary has immersed himself in the community over the years. He has served on the Dayton Children’s Hospital Board for numerous years and was elected chair of the board. Gary was one of the original founders of the Dayton Area Alzheimer’s Association and served on the Board of the Dayton Philharmonic Orchestra and Temple Israel. He was also chair of the board for both United Health Solutions and the Dayton Board of Income Tax Appeals. In 1974, Gary was appointed by then-Governor Gilligan to the committee to nominate trustees for his alma mater, Miami University. He also served as chair of the Dayton Chamber of Commerce Breakfast Speaker program, on the Kettering Moraine Oakwood Chamber of Commerce Board of Directors, and the WDPR board of trustees. Gary is a graduate of Leadership of Dayton, and currently serves on the Board of Governors of Leadership Dayton, the Temple Israel Foundation, and the Board of Dayton Racquet Club and Lawyers’ Club. He has also been the chairperson of Justice Day for many years. Along with Dave Greer and Neal Zimmers, Jr., Gary is a trustee of the Eichelberger Foundation, which has supported many Dayton Bar Association programs, including Chancery luncheons and the First Day of October Celebration, among many other special programs. Gary’s intense dedication to the community did not get in the way of his love of and commitment to family, however. Gary and his wife, Deborah, recently celebrated forty-five years of marriage. They have two sons, a daughter-in-law, a granddaughter, and a second grandchild due to arrive soon. Both of their sons and their daughter-inlaw are lawyers. His wife recently retired www.daybar.org

from her career as a school psychologist, and they immensely enjoy traveling the world together. They have, in fact, visited much of the world, including Israel, Egypt, Jordan, Turkey, the Mediterranean, all of Europe, the Baltic states, Russia, Ukraine, China, Japan, Thailand, Galapagos, Machu Picchu, Tahiti, Central America, and most of the United States. They have no intentions of slowing down anytime soon. In getting to know Gary, he told me that he likes the close relationships he has been able to build with his clients. He recognizes that he cannot fix all problems or make all struggles disappear, but he earnestly strives to make the situation better and help that person through the process, whatever his client’s case might involve. Bolstering Ruskin’s view that the lawyer’s ultimate end is service to others, Gary’s satisfaction in his career stems from the personal interactions he has had with his clients over the years while helping them navigate their interaction with the law. Indeed, he has spent a lifetime achieving the ultimate objective.

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By Nadia A. Klarr Esq. DBA Editorial Board Bieser Greer & Landis, LLP

? w o n K u o ehalf b Y n o s Did Foundation workers.

b A The DB f all DBA mem o ed with e g a r e v e l port is ke a differenc p u s l a i anc o ma n t fi s r r e u b o Y m ow me mmunity and ion l l e f f o o t that in our c public percep . e the v o r sionals p s e f m i o r p l of lega port! p u s s enerou g r u o U for y O Y K N THA January 2017 Dayton Bar Briefs




Bench Bar Media Forum


Dayton Bar Briefs January 2017


n Wednesday, November 16th, DBA members gathered with representatives of local media and law enforcement agencies at the Kroc Center for the semiannual luncheon to discuss issues of common interest. The program discussions, moderated by Jeff Cox of Faruki, Ireland & Cox P.L.L. and Hon. Michael Newman, covered veritable cornucopia of timely issues including; Unmanned Aerial Systems, local media coverage of the 2016 elections, pros/cons(risks & benefits) of covering news events live with social media and law enforcement experiences with body cameras. The Bench-Bar-Media Forums serve to bring these entities together for the sharing of ideas and to gain a greater understanding of the issues from each other’s perspective. Sponsored by the Dayton Bar Association and Faruki, Ireland & Cox P.L.L. the next Forum will be held at a date to be announced in the spring of 2017.



Great Seats! Great Prices Great Shows!

Company Exclusive Offers

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

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

42nd Street

Part of the Premier Health Broadway Series

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

A Year with Frog and Toad

Part of the Morris Furniture Co. Family Series

January 21 @ 1:00 & 4:00pm Victoria Theatre

VTA Family Rolling Workshops Part of the Morris Furniture Co. Family Series

January 2; February 25; April 8 & 20 @ 2:15pm Victoria Theatre

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

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

January 26 @ 7:30pm Victoria Theatre

Hilaree O’Neill: Down to Nothing Part of the National Geographic Live Series

January 30 @ 7:00pm Victoria Theatre


visit www.daybar.org for more shows

January 2017 Dayton Bar Briefs




2016 Bench Bar Conference



in a Shrinking World

his year marked the 24th anniversary of the Dayton Bar Association’s Bench Bar Conference. As many of the attendees of this event know, the Bench Bar Conference presents some of the most interesting CLE topics of the year. This year’s event was no exception. The widespread use of social media, the internet and the accessibility of international travel have made the world seem like a much smaller place. However, as was evidenced by many of the speakers at the Conference this year, the legal systems across the globe are anything but standardized and homogenous. Kicking off this year’s Conference was Howard N. Fenton, the Director of Ohio Northern University’s Center for Democratic Governance and Rule of Law. Mr. Fenton After Mr. Fenton’s portion of the program, attendees had the opportunity to attend one of four breakout sessions of their choosing: an Update on Domestic Relations Court Cases and Procedures led by Magistrate Elaine Stoermer; the United States District Court Update with panelists Judge Rice, Judge Rose, Judge Black, Magistrate Ovington, Magistrate Newman and Magistrate Merz; a Probate Court Update with Judge McCollum; or Commanding Professional Respect as Women in Traditional Male Legal Systems: The View from Afghanistan, Kosovo, Georgia and Brazil. As a female practitioner, I was interested in hearing about the experiences of female attorneys from foreign countries. Many of the attorneys described the cultural hurdles to becoming a female practitioner in their home countries. The rural areas of Kosovo, Brazil, Georgia and Afghanistan generally do not put an emphasis on education, and if forced to make the choice, will decide to educate their male children over their female children. Most of the panelists discussed the disparity in the percentage of female practitioners compared to the overall female population in their countries. For example, in Kosovo, females make up more than half of the population. However, only 20% of the Judges and 34% of the prosecutors are female. In Afghanistan, none of the 119 Supreme Court judges are female. Culture and tradition are not the only obstacles to female education. Safety Dayton Bar Briefs January 2017

concerns prove to be a huge barrier for girls in war torn countries like Afghanistan. The potential for sexual violence in the workplace and in educational institutions also prevent women from entering into the practice of law. So many interesting stories were shared during this hour long session and the topic could have easily filled more time. Per the tradition of the Bench Bar Conference, attendees came back together from the breakout sessions for the interactive roundtable discussions with local judges. Often referred to as the “speed dating” portion of the day, the roundtable offers an opportunity to ask local judges questions you may have about the court, courtroom personnel, local rules and procedures, or how their football fantasy league is faring this year. After the roundtables, attendees enjoyed lunch and mingled with fellow Bar members. Dean Andrew L. Strauss of UD’s School of Law kicked off the afternoon sessions with Civilizing an Uncivil World: What is the Future Role of International Law? Dean Strauss took us through a brief history of international law and the sources of international law, i.e. treaties, customs, sanctions, etc. Dean Strauss also discussed the current state of international law. After describing the growth of international organizations in the 1990s, Dean Strauss described the new geopolitical threats and challenges to democracy in our current global environment. We are lucky to have a member of our legal community who is so well versed and nationally known for his expertise in the area of international law. The next breakout session of the day allowed attendees to once again choose from four options: the Second District Court of Appeals update; Municipal Courts: Court Rules – The Impact of Technology; a session discussing the Juvenile Court Diversion Unit; or A Cautionary Tale on Staying in Business: Why Data Governance is About More than Privacy. In the Second District Court of Appeals Update, I was surprised to learn that criminal cases take up 2/3 of the Court’s docket. Most of the appeals take about 9 to 14 months to complete and the bulk of that time is waiting for the record or transcript. Upon filing,

Thank You Co Chairs!

Left to right:

every appeal is Hon. Jeffrey Welbaum reviewed for Howard N. Fenton, timeliness and whether there (Ohio Northern Univ.) has been a final Martin A. Foos Esq. appealable order. The Court will also issue a show cause order if they believe one of these threshold requirements has not been met. The Judges also discussed cases that were on point with the Bench Bar Conference’s theme, including State v. Cardenas and State v. Hernandez-Medina. For the final breakout session of the day, attendees were given two excellent options: Cultural Defense or Cultural Evidence? led by Judge Huffman or Challenges to Professionalism: Litigating Before Unqualified and Corrupt Judges Abroad. After debating which session to attend, I ultimately decided on the Challenges to Professionalism session. Attendees of this session heard fascinating, and unsettling, stories about the judiciaries in Afghanistan, Bangladesh and Malawi. It is not uncommon in Afghanistan for bribery, threats, and even murder, to be used as means to sway a Judge’s opinion in a case. Despite the obstacles that face them, the panelists are determined to make the legal systems in their country fair and impartial. At the end of the day, I walked away from this year’s Bench Bar Conference with a better understanding of international law generally and the legal systems of the countries who were represented by panelists. More importantly, I walked away with a feeling of gratitude. By Jennifer A. Kirby Esq. Chair: DBA Editorial Board Surdyk Dowd & Turner Co., LPA

Andrew L. Strauss Dean and Professor of Law, Univ. of Dayton School of Law Howard N. Fenton (Ohio Northern Univ.) speaks on Investing in the Rule of Law Abroad

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Commanding Professional Respect as Women in Traditional Male Legal Systems: The View from Afghanistan, Botswana, Georgia & Brazil | Ohio Northern Univ. LL.M. Panel: Ms. Adrianna Braden, Ms. Fitore Sadiku, Ms. Luiza Bogado, Ms. Nana Ghongadze, Ms. Rohila Burhanzoi

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Challenges to Professionalism: Litigating Before Unqualified and Corrupt Judges Abroad – Ohio Northern Univ. LL.M. Panel: Howard N. Fenton, Mr. Ahmad Bilal Nasiry, Mr. Wisky Imran Saidi, Mr. Mohammad Kamran Khan

Great Hall During Speed Dating event with Judges www.daybar.org

January 2017 Dayton Bar Briefs


Should a Trademark be “Free” to Disparage? The Next Case to Shape the First Amendment is On the High Court’s Docket By Nadia A. Klarr Esq. DBA Editorial Board Bieser Greer & Landis, LLP

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”1 The First Amendment that Justice Douglas wrote about and wanted in 1949 looks far different from the one we have today. He embraced the command of the First Amendment that “no law” shall restrict the freedom of speech. But we know that speech is regulated under the Free Speech Clause and that laws do restrict speech under certain circumstances. The question before the Supreme Court this term is whether the Lanham Act’s restriction on disparaging trademarks is one such circumstance where the law may properly restrain speech. The question implicates Section 2(a) of the Lanham Act, which bars registration of a trademark that “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute[.]”2 The Supreme Court recently granted the United States Patent and Trademark Office’s petition for review of the Federal Circuit’s invalidation of the Lanham Act’s ban on disparaging trademarks.3 The case involves an Asian-American rock band named “The Slants” in an effort to “reclaim” the name and “‘take ownership’ of Asian stereotypes.” 4 Simon Tam, the band’s front man, sought 10

Dayton Bar Briefs January 2017

registration of the mark THE SLANTS based on his band’s use of the mark since 2006; however, the examiner refused registration on the basis that “the mark likely referred to people of Asian descent in a disparaging way . . . [a] nd even though Mr. Tam may have chosen the mark to ‘reappropriate the disparaging term,’ the examiner found that a substantial composite of persons of Asian descent would find the term offensive.”5 The Trademark Trial and Appeals Board affirmed the refusal to register the mark, writing that “it is abundantly clear from the record not only that THE SLANTS . . . would have the ‘likely meaning’ of people of Asian descent but also that such meaning has been so perceived and has prompted significant responses by prospective attendees or hosts of the band’s performances.”6 Mr. Tam appealed, arguing that section 2(a)’s ban on disparaging trademarks is unconstitutional.7 A panel of the Federal Circuit affirmed the Board’s refusal; however, after considering First Amendment evolutions as applied to commercial speech and recent decisions issued by sister circuits, the Federal Circuit sua sponte ordered an en banc rehearing of the case on the singular issue of whether the Lanham Act’s bar on registration of disparaging marks violates the First Amendment.8 The Federal Circuit held that the Lanham Act’s denial of registration based on a disapproval of the message conveyed is subject to strict scrutiny, which it cannot survive.9 The court found that the disparagement provision was neither content nor viewpoint neutral because the ban discriminates on the basis of topic and on the basis of the message conveyed.10 It pointed to the test for disparagement being “whether a substantial composite of the referenced group would find the mark disparaging,” as support for the conclusion that the ban regulates the nature of the message conveyed since the USPTO denies registration if the mark is deemed offensive to the referenced group.11 Thus, the court concluded, the refusal to register was based on a disapproval of the message conveyed, which

was underscored by the fact that the USPTO granted registrations to trademarks that referred positively to people of Asian descent, including the marks CELEBRASIANS and ASIAN EFFICIENCY.12 The court called this refusal policy “viewpoint discriminatory on its face.”13 The Federal Circuit further found that the disparagement provision regulated the expressive aspect of the mark rather than its function as commercial speech.14 The court also rejected the government’s argument that section 2(a) does not prohibit speech and therefore does not implicate the First Amendment.15 Because “federal trademark registration bestows truly significant and financial valuable benefits upon markholders,” the court found that the disparagement provision strongly disincentives marks that are vulnerable under section 2(a)’s “may disparage” ban and therefore creates a chilling effect on speech.16 continued on page 13 Endnotes: Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949) (internal citations omitted). 2 15 U.S.C. § 1052(a). 3 Lee v. Tam, 2016 U.S. LEXIS 4462 (U.S. Sept. 29, 2016). 4 In re Tam, 808 F.3d 1321, 1331 (Fed. Cir. 2015). 5 Id. at 1331–32. 6 Id. at 1332. 7 Id. 8 Id. at 1333–34. 9 Id. at 1334. 10 Id. 11 Id. at 1335. 12 Id. at 1336. 13 Id. 14 Id. at 1337–38. 15 Id. at 1339. 16 Id. at 1340–45. 1


*The following list is current as of December 1, 2016. ?s about Your DBA Membership - Contact Chris


Sustaining Members

he Dayton Bar Association would like to acknowledge the contributions made by the Sustaining Members for the 2016-2017 T fiscal year. With voluntary payments over and above normal dues, Sustaining Members are essential to the work of the Dayton Bar Association. The funds provided by their membership allow continued support of programs and services that benefit members, the Greater Dayton legal community, and the legal profession.

Honorary Sustaining Members

Once deemed an Honorary Member of the Association, the member is exempt from the payment of dues. However, there are those who take their honorary status in title only and continue to support the Association with contributions. We wish to thank and recognize the following exemplary members: Joseph P. Buchanan Esq. Hon. William A. Clark Robert J. Hadley Ralph E. Heyman Esq. Richard M. Hunt Esq. Thomas E. Jenks Esq. William H. Macbeth Esq. Hon. Walter Herbert Rice William A. Rogers Jr. Esq. Marshall D. Ruchman Esq. Jon M. Sebaly Esq. Charles W. Slicer Sr. Esq. Joseph V. Tassone Esq. Louis E. Tracy Esq.

Sustaining Members

Hon. Dennis J. Adkins Charles F. Allbery III Esq. James T. Ambrose Esq. Debra B. Armanini Esq. Kevin W. Attkisson Esq. Gary W. Auman Esq. Theresa A. Baker Esq. Rebecca A. Barthelemy-Smith Esq. Richard J. Beckmann Esq. Harry G. Beyoglides Jr., Esq. Amy R. Blair Esq. Susan Blasik-Miller Esq. Robert M. Blue Esq. Gary M. Blumenthal Esq. Randall N. Bothmann Esq. Richard A. Boucher Esq. Karen D. Bradley Esq. Dwight D. Brannon Esq. Joan B. Brenner Esq. Matthew D. Bruder Esq. Ronald L. Burdge Esq. Sam G. Caras Esq. Frederick J. Caspar Esq. Robert L. Caspar Jr. Esq. William O. Cass Jr. Esq. Mark R. Chilson Esq. Charles A. Claypool Esq.


John M. Cloud Esq. Brett L. Coakley Esq. Rebecca A. Cochran Esq. Brooks A. Compton Esq. W. Michael Conway Esq. Christopher F. Cowan Esq. Jeffrey T. Cox Esq. Dale E. Creech Jr. Esq. F. Ann Crossman Esq. Mag. John A. Cumming Robert M. Curry Esq. Wayne H. Dawson Esq. James D. Dennis Esq. Larry J Denny Esq. Richard G. Denny Esq. Karen R. Dillon Esq. Martina M. Dillon Esq. Stephanie D. Dobson Esq. Marilyn R. Donoff Esq. Daryl R. Douple Esq. Jenna M. Downey Esq. Hon. Frederick W. Dressel Trisha M. Duff Esq. Michael E. Dyer Esq. Joseph R. Ebenger Esq. William B. Elliott Esq. Douglas A. Fannin Esq. Charles J. Faruki Esq. Jonathan E. Faulkner Esq. Benjamin D. Felton Esq. Francesco A. Ferrante Esq. James L. Finefrock Esq. Patrick A. Flanagan Esq. Canice J. Fogarty Esq. Martin A. Foos Esq. Neil F. Freund Esq. Gary L. Froelich Esq. Carmine M. Garofalo Esq. Charles F. Geidner Esq. Caroline H. Gentry Esq. Daniel J. Gentry Esq. Mark E. Godbey Esq. Hon. Barbara P. Gorman Gary W. Gottschlich Esq. David B. Grieshop Esq. Ted Gudorf Esq. Dennis E. Gump Esq. Christine M. Haaker Esq. David A. Haffey Esq. Hon. Michael T. Hall Paul G. Hallinan Esq. Laura G. Harrelson Esq. Jennifer Hann Harrison Esq. Aaron P. Hartley Esq. James K. Hemenway Esq. Lawrence W. Henke lll Esq. R. Mark Henry Esq. Hon. James A. Hensley Jr. J. Michael Herr Esq. James P. Hickey Esq. Stanley A. Hirtle Esq. Jonathan Hollingsworth Esq.

Carol Jacobi Holm Esq. Steven B. Horenstein Esq. Hon. Mary Katherine Huffman Kenneth J. Ignozzi Esq. Thomas J. Intili Esq. D. Jeffrey Ireland Esq. David E. Izor Esq. Matthew R. Jenkins Esq. William A. Jividen Esq. Keith R. Kearney Esq. Thomas W. Kendo Jr. Esq. Richard A. Killworth Esq. Scott A. King Esq. Tami Hart Kirby Esq. James R. Kirkland Esq. Richard G. Knostman Esq. Thomas A. Knoth Esq. Julia C. Kolber Esq. Channing M. Kordik Esq. James G. Kordik Esq. Edward M. Kress Esq. Hon. Michael W. Krumholtz Konrad Kuczak Esq. Judith A. LaMusga Esq. Hon. Dennis J. Langer Laurence A. Lasky Esq. Erin M. Laurito Esq. Michael A. Ledbetter Esq. William J. Leibold Esq. Gary J. Leppla Esq. Dennis A. Lieberman Esq. Richard A. F. Lipowicz Esq. L. Anthony Lush Esq. Michelle M. Maciorowski Esq. Barry W. Mancz Esq. Douglas A. Mann Esq. Laura G. Mariani Esq. David W. Marquis Esq. M. Todd Marsh Esq. Laura J. Martin Esq. Dianne F. Marx Esq. Craig T. Matthews Esq. Ronald J. Maurer Esq. Hon. Frances E. McGee Hon. John M. Meagher Hon. Michael R. Merz Adam R. Mesaros Esq. David P. Mesaros Esq. Stephen D. Miles Esq. Michael Bramlett Miller Esq. John R. Mohr Esq. Brian A. Muenchenbach Esq. Hon. Michael J. Newman Bruce I. Nicholson Esq. Victoria L. Nilles Esq. Wayne P. Novick Esq. Hon. Timothy N. O'Connell Alvarene N. Owens Esq. Bryan K. Penick Esq. Timothy G. Pepper Esq. Maureen Pero Esq. Nathaniel S. Peterson Esq.

Hon. James D. Piergies John D. Poley Esq. Vincent P. Popp Esq. Robert E. Portune Esq. Cara W. Powers Esq. Thomas G. Rauch Esq. Sherri L. Richardson John Paul Rieser Esq. Hon. Adele M. Riley John H. Rion Esq. Jon Paul Rion Esq. Edward N. Rizer Esq. Paul B. Roderer Jr. Esq. John M. Ruffolo Esq. Marybeth W. Rutledge Esq. Jason J. Saldanha Esq. B. Joseph Schaeff Esq. Seth W. Schanher Esq. Steven P. Schmidt Esq. Alfred W. Schneble III Esq. Carl D. Sherrets Esq. Thomas W. Simms Esq. Hon. Gregory F. Singer Hon. Richard S. Skelton Ralph A. Skilken Jr. Esq. Charles W. Slicer lll. Esq. John A. Smalley Esq. Bradley C. Smith Esq. Edward M. Smith Esq. John D. Smith Esq. R. Todd Smith Esq. Brian A. Sommers Esq. Mary K.C. Soter Esq. Lu Ann Stanley Esq. Mark E. Stone Esq. Jeffrey A. Swillinger Esq. Joseph R. Tafelski Esq. Thomas B. Talbot Jr. Esq. Jennifer D. Theibert Esq. Maxine S. Thomas Esq. Ira H. Thomsen Esq. Merideth A. Trott Esq. Hon. Michael L. Tucker Mark A. Tuss Esq. Timothy N. Tye Esq. Paul M. Ulrich Esq. Michelle S. Vollmar Esq. H. Charles Wagner Esq. Geoffrey P. Walker Esq. Joseph W. Walker Esq. Robert C. Walter Esq. Brian D. Weaver Esq. George L. Wenz lll Esq. Ellen C. Weprin Esq. James I. Weprin Esq. Thomas P. Whelley ll Esq. Mathew E. Willenbrink Esq. Jeffrey A. Winwood Esq. Hon. Mary L. Wiseman Michael L. Wright Esq. Patricia A. Zimmer Esq.

January 2017 Dayton Bar Briefs



Rising above Starsthe Bar Shannon K. Bockelman Esq. W

hether it was winning titles at large swim meets in high school or leading her college field hockey team to the NCAA tournament, Shannon Bockelman has always thrived on competition. It’s no wonder that Shannon Bockelman, this month’s Rising Star of the Bar, has become one of the best litigators in town. Shannon was originally drawn to litigation while in law school at the University of Dayton. There, as the chief justice of her bankruptcy moot court team, she first learned how to formulate arguments and craft briefs. She found familiarity in the competitiveness of litigation, as it was easily relatable to her athletic career. That initial interest in litigation grew into a passion. Today, Shannon has a robust general commercial litigation practice with concentrations on medical malpractice and professional liability defense. She represents professionals of all types and companies of all sizes throughout Southwest Ohio. According to her, the variety of the practice makes it exciting. She enjoys that no two matters are ever the exact same. She takes great pleasure in building relationships with clients and helping them solve complex and challenging problems. And while the former athlete loves to win, she knows that avoiding litigation is sometimes the best type of “win” for her clients. As such, she often


Dayton Bar Briefs January 2017

counsels clients in pre-lawsuit matters to help them avoid having to go to court. In her free time, Shannon enjoys exploring all that Dayton has to offer with her husband, Andrew, and their two small children. In fact, Shannon loves Dayton so much that, instead of moving back to her native Louisville, Kentucky after graduating from law school, she convinced her parents and brother to move here. When she isn’t delivering excellent service to her clients or spending time with her family, Shannon is usually giving back to the community. She sits on the Boonshoft Children’s Museum Associate Board as well as the Dayton Art Institute Associate Board. She was one of the founding members of the Young Leaders Council. Additionally, she has volunteered with the Goodwill Easter Seals of Miami Valley, as a mentor for at-risk youth through the GoodGuides Youth Mentoring Program, and as a big sister for Big Brothers/ Big Sisters of the Greater Miami Valley. She donates considerable time to the Legal Aid Society of Western Ohio, and she is involved with the START Program, a program that counsels young female inmates at the Montgomery County Jail and assists them with adjusting to life on the outside. Professionally, Shannon has garnered numerous awards and accolades. Just this past May she was named to the Dayton Busi-

ness Journal’s Forty Under 40 List of young, talented, up and coming professionals in the Dayton area. She was a member of the 201516 class of the Ohio Women’s Bar Foundation Leadership Institute. She has also been recognized as a rising star by Ohio Super Lawyers since 2014. Shannon is a competitive, results-driven litigator and wonderful asset to the Dayton community. Her star shows no signs of dimming any time soon. The Dayton Bar is lucky to have her.

By Jamar T. King Esq. DBA Editorial Board Montgomery Cty Public Defender's Ofc


Should a Trademark Be Free to Disparage: continued from page 10

Finally, the Federal Circuit found that trademark registration is not a form of government speech; similarly, registration is not a government subsidy exempt from strict scrutiny because of the chilling effect on private speech.17 In holding the disparagement provision unconstitutional, the court vacated the Board’s refusal of THE SLANTS mark and remanded for further proceedings.18 With oral arguments scheduled for January 18, the Supreme Court will soon weigh in and address the issue, which will have long–lasting effects on more than just Simon Tam and his band. The Washington Redskins will also be watching closely as the team’s six federal trademark registrations were recently cancelled because the USPTO deemed its marks disparaging to Native Americans. The Eastern District of Virginia affirmed the cancellations and the case is currently on appeal and awaiting oral argument in the Fourth Circuit.19 Although the team sought the high Court’s review before judgment in the Fourth Circuit, to be considered in conjunction with Tam, the Court denied its petition. In its petition for certiorari, the government argues that section 2(a) is not unconstitutional because it does not restrict or restrain any form of expression because the trademark owner can continue to use the mark absent federal registration. However, a refusal to register a trademark denies its owner substantial benefits that cannot be overcome by continued use and common law protections. Could this kind of denial also implicate regulatory taking arguments? The Washington Redskins have asserted a takings argument before the Fourth Circuit. The government also argues that it has a substantial interest in prohibiting registration of disparaging trademarks because the registration of an offensive mark would convey to the public that the government condones racial slurs as appropriate source identifiers. However, trademarks are not “closely identified in the public mind with the government.”20 The ® symbol next to Nike or Coca-Cola may bear the imprimatur of the government’s registration program, but the registration of private speech does not communicate to a consumer that the government agrees or disagrees with the mark, let alone that it condones a racial slur. The swoosh logo in a Nike commercial hardly calls to mind the federal government. Similarly, “The Slants” and its mark do not conjure up images of the government. More importantly, do we want our government deciding for us what is offensive and consequently stifling www.daybar.org

expressions of speech that it deems “disparaging?” Such a subjective inquiry may be best left to the consumer rather than an agency of the federal government. Perhaps we need to revisit the starting place of trademark rights to reach the most appropriate resolution in this case. The dual purposes of trademark protection include consumer protection and protection of a trademark owner’s investments in goodwill. This consumer protection, however, is designed to prevent confusion among the public resulting from fraud and deception in the marketplace. Trademarks help consumers navigate the commercial marketplace by allowing them to identify a particular source as the manufacturer of a particular product. With consumer confusion in mind, what does the Lanham Act’s disparagement provision do to further protect consumers from confusion in the marketplace? Is section 2(a) an attempt to legislate morality or is it a judgment by Congress that disparaging and offensive trademarks should not occupy the time, services, and funds of the federal government? And if the latter reason is the justification for section 2(a)’s ban on disparaging trademarks, couldn’t our competitive free market economy provide the answer? If free markets and robust competition result in the greatest good for consumers by encouraging innovation and efficiency in production and marketing, consumers will have a wide variety of products and services at their fingertips and can be selective in the products and services they

accept, purchase, and support. The ultimate decision whether to use or refuse goods will be left to the consumer and the competitive market system will drown out those goods and services that consumers reject, whether on the basis of disparagement or for any other reason. These are only some of the considerations that may present in the Court’s upcoming review of section 2(a). The outcome will have a profound significance on Simon Tam, his band, the Washington Redskins, and every past and potential applicant for registration that was or could be denied registration on the basis of disparagement. At the forefront of free speech issues recently has been “political correctness,” and this case will dive head-first into the politically and emotionally charged mainstream issue. But, at the end of the day, does it simply go back to the words Justice Douglas wrote in 1949? Is speech supposed to invite dispute, induce unrest, stir people to anger, provoke, challenge, strike at prejudices, and have a profound effect on the people? Should the federal government restrict these functions in its federal trademark registration program? Endnotes: Id. at 1345–50. Id. at 1358. 19 See Pro-Football, Inc. v. Blackhorse, 112 F. Supp 3d 439 (E.D. Va. 2015); Pro-Football, Inc. v. Blackhorse, No. 15-1874. 20 Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009). 17 18

January 2017 Dayton Bar Briefs




DHoliday Luncheon Special Guest Speaker

Justice Judith French

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


he Annual Dayton Bar Association Holiday Luncheon was held at Sinclair College on Thursday, December 8, 2016. Dale E. Creech Jr., Esq. once again did a fantastic job of setting a festive mood and treated all of us with his musical talent, playing holiday music on the piano. Susan D. Solle Esq., DBA President, welcomed everyone to the event and acknowledged the event’s Platinum and Gold sponsors. Susan also gave recognition of the 2016 25-Year Honorees. Congratulations, 25-year Honorees, and thank you for your service to our legal community! Kelly Henrici, Executive Director of the Greater Dayton Volunteer Lawyers Project then took the stand and thanked all of the sponsors of the event and VLP volunteers. VLP closed 2100 cases in 2016 and for the very first time, the number of cases taken has exceeded 4,000! The value of the services provided by VLP will exceed $700,000 this year. Also in 2016 VLP had 42 first time volunteers. VLP has been focusing this year on more efficient and effective ways of handling cases, and Kelly announced that VLP now has 40-hour coverage through the internship program. Kelly also announced this year’s recipients of the "Unsung Heroes of the VLP" award, created to recognize attorneys who have selflessly given of their time and talent to those in our community who need legal assistance in civil matters. This year, Wayne Novick, Esq. and Elizabeth Chinnault, Esq. received the award. Congratulations to Wayne and Elizabeth! Jane Taylor, Esq. of the Ohio Legal Assistance Foundation provided the introduction to keynote speaker Supreme Court Justice Judith L. French. Justice French spoke about the Ohio Supreme Court Task Force on Access to Justice, a project begun in 2014 which finalized its report in 2015, with many of the report’s recommendations under way such as the program to allow retired attorneys to participate in a “emeritas pro bono” program to represent clients. Justice French announced the creation of a new rule which would give the attorney spouses of military service members licensed in other jurisdictions a fast-track to be able to practice law in Ohio. She also reminded everyone of the Amazon Smile program, which gives a percentage of purchases to the organization of the shopper’s choice. This can be a great way to give to the VLP! Thank you to everyone who attended this year’s event from the VLP and the Dayton Bar Association, and thank you to the caring staff at Sinclair who helped once again to make the event a success. We all look forward to another year of service with our friends and colleagues.

By Kristina E. Curry Esq. DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA 14

Dayton Bar Briefs January 2017


Keynote Speaker Justice Judith L. French 25 Year Honorees in attendance (left to right): Marc Fleischauer Esq. & Jeffrey Cox Esq.

Photos from left to right: DBA President Susan Solle Esq. VLP Vice President Lindsey Posey Esq. President VLP Susan Bridgman Esq. Ohio Supreme Court Justice Judith L. French Executive Director VLP Kelly Henrici DBA 2nd Vice President Brian Wildermuth Esq. E. Jane Taylor, OLAF



DBA Member Dale Creech Jr. provides musical accompaniment

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January 2017 Dayton Bar Briefs


daybar.org/cle Labor and Employment Committee Presents:

Ohio Civil Rights Case Processing

Tues. January 10, 2017 • Noon-1:00pm 1.0 CLE Hour • Seminar #1617-083 M $35 | NM $45 | PP $0 *Special Committee Member Price $25 Presented by: Anthony Corona, Esquire, Dayton Region Civil Rights Field Investigator. J.D. University of Dayton 2004. Ohio Civil Rights Commission 2003 to present. Ohio areas of enforcement and investigation; Fair Housing, Equal Employment Opportunity, Discrimination in Places of Public Accommodation, Provision of Credit, Disability Discrimination in Higher Education. Anthony instructs local employers on equal employment opportunity. He assists non-profit organizations/service providers in establishing working relationships with the Ohio Civil Rights Commission. Bradley Dunn, Esquire, Akron Region Regional Director Ohio Civil Rights Commission Case Processing Agenda: 1. Language Accessibility a. In house options for parties and constituents b. External options for parties and constituents c. Making a request for services as a Limited English Proficient person 2. 2015 Case Outcome a. Statistical Analysis 3. Timelines for Case Processing a. Notification of Respondents i. Electronic Charges ii. Notarized Charges b. Walk-in filing c. Filing by Appointment i. Attorneys at Intake 4. Regional Onsite Investigations a. Why is the Commission visiting my Client for an onsite? b. What to expect during an onsite visit c. Declining the Commission’s request for an onsite visit

Rules of Evidence: All You Ever Wanted to Know About Hearsay (video replay)

Wed. January 25, 2017 • 9:00-11:30am 2.5 CLE Hours • Seminar #1617-081 M $105 | NM $150 | PP $0 Presented by: Judge Mary Kate Huffman, Montgomery Cty Common Pleas Ct Join the DBA for a new seminar series for new attorneys who want an in-depth primer on the Rules of Evidence and experienced attorneys looking for a refresher on evidence. This will be part two of a series reviewing and analyzing each Rule of Evidence in detail.

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

Tues. January 31, 2017 • 1:00-4:15pm 3.0 CLE Hours Professional Conduct • Seminar#1617-082 M $105 | NM $150 | PP $0 Presented by: John Ruffolo Esq., DBA Bar Counsel Marc Tuss Esq. Denise Platfoot-Lacey, Assoc. Prof. of Externships, UDSL During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences. The Rules and Example cases will be provided to all attendees.

Earn CLE anytime, anywhere. Convenience | Selection | Affordability

Estate Planning Trust and Probate Committee presents:

Tax Law Update

Wed. January 11, 2017 • 4:00-5:00pm 1.0 CLE Hour • Seminar #1617-079 M $35 | NM $45 | PP $0 *Special Committee Member Price $25 Presented by: Sam Hemmeter, CPA Tax law update affecting trusts and estates, personal and business income tax issues. Despite the move away from “temporary” measures, the tax law is in a constant state of flux. Sam, will present important information on federal and state taxation that every attorney needs to know when representing estates, trusts and individuals.

Social Security and Federal Court Update

Thurs. January 19, 2017 • Noon-1:00pm 1.0 CLE Hour • Seminar #1617-080 M $35 | NM $45 | PP $0 *Special Committee Member Price $25 Presented by: Judge Sharon L. Ovington, Southern Dist. of Ohio, West. Div. Dayton Join the DBA Workers Compensation and Social Security Committee as they welcome Magistrate Judge Sharon L. Ovington for the Southern District of Ohio, Western Division at Dayton, Ohio. Judge Ovington will be discussing trends the court is seeing in cases, the court’s remand rate and hot topics in Federal Practice.


Dayton Bar Briefs January 2017

A great variety of programs to choose from.

*The following list is current as of December 1, 2016. ?s about Your Firms Status - Contact Chris


100% Club

Members Firms with 70+ Members WilmerHale

Firms with 30-39 Members

Coolidge Wall Co., LPA Freund, Freeze & Arnold, A Legal Professional Association Montgomery Cty Public Defender’s Ofc

Firms with 20-29 Members Montgomery Cty Common Pleas Ct Pickrel Schaeffer & Ebeling Co., LPA Sebaly Shillito + Dyer University of Dayton School of Law

Firms with 10–19 Members Bieser Greer & Landis, LLP Dunlevey Mahan & Furry, LPA Faruki Ireland & Cox P.L.L Flanagan Lieberman Hoffman & Swaim Horenstein Nicholson & Blumenthal, LPA Montgomery Cty Domestic Relations Ct Rogers & Greenberg, LLP Second District Court of Appeals Surdyk Dowd & Turner Co., LPA

Firms with 5–9 Members

Altick & Corwin Co., LPA Brannon & Associates CareSource City of Dayton Law Department City of Dayton Prosecutor’s Ofc Dayton Municipal Court Dayton Power & Light Company Douple Beyoglides Claypool Kovich Lipowicz & LaMusga Dysinger & Patry, LLC ES Gallon & Associates Gottschlich & Portune, LLP Green & Green, Lawyers Hochman & Plunkett Co., LPA Montgomery Cty Probate Ct Premier Health Partners Subashi & Wildermuth Thorson Switala Mondock & Snead, LLP

Firms with 2–4 Members

Albert & Krochmal Allbery Cross Fogarty Baldwin Valley Law, LLC Bogin Patterson Ellis Staton & Stump, LLP Boucher & Boucher Co., LPA Bricker & Eckler, LLP Bruns Connell Vollmar & Armstrong, LLC Burdge Law Office Co., LPA Cincinnati Insurance Company Cowan & Hilgeman Crossman & Maciorowski, LLC Robert L. Deddens Law Offices Dinkler Pregon, LLC Elliott & Faulkner, LPA Esler & VanderSchaaff Co., LPA Fox & Associates Co., LPA Gammell Ross & Hoshor, LLC Gregory M. Gantt Co., LPA Gudorf Law Group, LLC Hedrick & Jordan Co., LPA Hochwalt & Schiff, LLC Holzfaster Cecil McKnight & Mues, LPA Intili & Groves, LPA Jablinski Roberts & Gall, LPA Jackson Lewis, P.C. Jacox Meckstroth & Jenkins Kendo Dulaney Law Kettering Municipal Court Kirkland & Sommers, LPA Law Offices of Ira H. Thomsen Law Offices of John T. Nicholson, LLC Leppla Associates, Ltd. Liberty Savings Bank, FSB Martin Folino, A Legal Professional Association McNamee & McNamee, PLL Mesaros Law Office Miller Walker & Brush, LLP Montgomery Cty Municipal Ct, Eastern & Western Div(s) Nowicki & Vonderwell, LLC Pyper & Nordstrom, LLC Rieser & Associates, LLC Roberson Law Roderer Law Office, LLC Sherrets Law Offices, LLC John D. Smith Co., LPA Stamps and Stamps Statman Harris & Eyrich, LLC Stephan & Stephan Law Group, LLC Tracy & Tracy Co., LPA Treherne Law Office Helen Wallace, Attorney at Law LLC Winwood Rutledge Co., LLC Young & Alexander Co., LPA

Thank You For Your Commitment to Your Bar Association! www.daybar.org

January 2017 Dayton Bar Briefs







By Hon. Michael L. Tucker Montgomery Cty Common Pleas Court

s it is said, time flies when you are having fun, and my 16 year common pleas journey has sped by and been great fun. The approaching end of this journey (not to mention the need to submit this article) has prompted me to reflect on how the business of judging in the Montgomery County Common Pleas Court, General Division has changed since January 2001, when my first term commenced with a national backdrop consisting of a contested presidential election, hanging chads, and the Supreme Court’s Bush v. Gore decision. In 2001, we did not have smart phones or iPads (I don’t know how we survived), and the social media revolution brought about by Facebook was several years in the future. My courtroom was the second general division video courtroom with the official record consisting of a VCR recording of the proceeding. Today, the proceedings are digitally recorded with the digital images electronically transmitted for review or transcription. Quite the transformation in, relatively speaking, a few years, and it highlights the acceleration of the digital revolution over the past 16 years. It is also worthy to note that in 2001, e-filing in the general division remained several years down the road. It is hard to remember the accumulation of files and the occasional misplacement (never loss) of a file that prevailed before e-filing. These technological advances, though perhaps making the task of judging more efficient, have not changed the work that must be done, including the management of the case load, the resolution of motions, presiding over trials, and sundry administrative duties. One notable change that has occurred since 2001 is the reduction of both criminal and civil jury trials. In 2002, the first year we kept track of the number of jury trials, we – meaning my staff and me – conducted 34 jury trials, in 2003 the jury trial number was 19 and in 2004 the number of jury trials was 22. Though I don’t have a precise number, a good many of these trials involved civil cases. In 2014, we conducted 8 jury trials, in 2015 the number was 6, and this year the number is 10. Of this number, only 2 have been civil jury trials. The court’s criminal docket is to a significant extent driven by the


Dayton Bar Briefs January 2017

Dayton Police Department. Dayton has fewer citizens and, because of budget and other issues, significantly less police officers than in 2001. This, I think, has reduced the court’s criminal caseload, and, consequently, the number of criminal jury trials. The decline – almost disappearance – of civil jury trials is based, again I think, upon several factors. Civil litigation is, as we all know, an expensive endeavor, and in Montgomery County there are fewer individuals and businesses that can afford to pursue litigation. Personal injury litigation – always a primary contributor of jury trials – has been altered by legislative changes (sometimes called tort reform) and the Ohio Supreme Court’s decision in Robinson v. Bates which allows both the amount billed by a medical provider and the amount paid the provider to be considered by the jury when determining the reasonable value of the medical bills at issue. These changes make the prosecution of a personal injury case considerably more difficult with the result being that, by and large, personal injury cases are not resolved by a jury. Finally, increased mediation, whether by a private mediator or through the court’s mediation program, has led to settlement of some cases that previously would have been resolved by jury trial. This is more than enough rumination on the changes that have occurred since 2001. I want to conclude by thanking my colleagues, the Dayton area bar, the court’s staff and my staff. My fellow judges, past and present, have been and continue to be uniformly collegial, helpful and professional. The Dayton area bar has a well deserved reputation for its collegiality and professionalism. The attorneys appearing in my court, almost without exception, have lived up to this reputation. The court’s employees, which include the individuals in pre-trial services, probation officers, presentence report writers, case management specialists, the folks in the magistrate/mediation office, and the court’s administrative staff, are uniformly hard working, professional, and competent. Finally, a special and heartfelt thank you to Ann Scott, my bailiff, and Jennifer Hackney, my judicial assistant. Ann and Jennifer have put up with me all these years, and for this, not to mention their dedication and loyalty, I thank them.



The Chancery Club



Abraham Lincoln the Lawyer. Judge Langer will cover Lincoln’s 23-year law practice with a focus on several of his most interesting cases.

RSVP: Seating is LIMITED, please RSVP to Chris: calbrektson@daybar.org 937.222.7902


Join us at our first Luncheon of 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

The DBA wishes to thank the Eichelberger Foundation for their generosity in sponsoring these luncheons.

January 2017 Dayton Bar Briefs



DBA Young Lawyers Division Volunteers Bring Smiles to CARE House Children & Families During Winter Festival 2016


lthough there have been some changes with the Young Lawyers Division’s (“YLD”) fundraising efforts this year, our dedication to CARE House’s cause has not changed. This is especially true with CARE House’s Winter Festival. Each year, CARE House opens its doors to its own clients for a fun-filled Christmas event. Volunteers and CARE House staff spend the week preparing food and materials in order to pack its building with activity stations for the children and their families. This year, the families were able to participate in four primary stations: photobooth, crafts, story time, and cookie decorating. Thanks to Square One Salon and Spa, the children were able to pick out funny stick hats, mustaches, glasses, feather boas, and other festive props to wear during their “photo shoot” with family. Each family receives two Polaroid pictures to take home as a memory. But, as every participant will attest, cookie decorating is always the favorite station. Each family member is able to pick out pre-baked Christmas cookies and decorate to their heart’s content. From my own experience, it’s usually the most fun and creative station, even if it can be a little messy. While the children are running from station to station with volunteers, moms and dads are ushered into the “Santa Shop”, where they’re able to shop for small, donated toys and gifts for their children. This year’s selection included books, glow sticks, puzzles, board games, coloring books, and crayons, as well as other family-activity oriented gifts. In addition, the parents receive a “parents gift” of goodies, which includes a gasoline gift card. Over the years, YLD has had a history of supporting CARE House’s Winter Festival with donations of pizza, water, and gas cards for families to enjoy. This ensures that the families have a family meal for the day, and also that each can attend the event without worries of transportation. This year, YLD expanded its involvement by donating toys for the “Santa Shop” and Target gift cards for CARE House’s general use.


Dayton Bar Briefs January 2017

In fact, our Gift Card Drive will continue until December 25th! YLD has a goal of providing $200 in small-denomination gift cards for CARE House’s use over the next year. Gift cards are a great way for CARE House to ensure that families have the money they need to buy clothes, food, and toys for their children during a time in need. We have set up an online registry at Target (search registry: Care House or visit YLD’s Facebook page) where you can purchase a gift card of $10 or $20 and have it mailed to CARE House directly. No need to deal with checkout lines or drop off times – you can make a small donation from the comfort of your computer. It is a small way of giving back to a community agency that does so much for our community’s children. I hope that you will join us in this time of giving!

By Cassandra Andres Rice Esq. Co-Chair: YLD Gottschlich & Portune, LLP

By Michael D. Rice Esq. Co-Chair: YLD Dungan & LeFevre Co., LPA


The DBA’s Young Lawyers Division 5K For the Kids Run Comes to a Close Raising and Contributing More Than $ 100,000 Over the Past 10 Years! Dear Fellow DBA members, As you all are aware, for the past ten years, the Young Lawyer’s Division has worked with CARE House as partners and sponsors of its annual 5 for the Kids 5K Run and Fitness Walk. The event has been a great success, raising over $100,000 for CARE House. Like many fundraising events, there have been highs and lows in the administration of the race. But, unfortunately, over the course of the past three years there has been a notable decrease in interest. It has been difficult to schedule the events around the many competing interests of other CARE House fundraisers, the Dayton Dragons, and other summer events which have repeatedly decreased our attendance numbers at all of the fundraising events. We have also witnessed an ever-decreasing interest in volunteering as bartenders, race volunteers, and a decrease in sponsorships from local firms and businesses. As a result, the YLD came to the very difficult decision to terminate the 5 for the Kids 5K Run and Fitness Walk. The YLD would like to take this opportunity to thank all of our sponsors and partners who have been so dedicated, especially Brixx Ice House, Five Rivers Metro Parks, Dorothy Lane Market, Prime Time Party Rental and Mike-Sell’s. We would also like to thank all of our volunteers who were instrumental in helping the Get Behind the Bar events and race day run so smoothly for many years. The YLD will continue to provide volunteer services for CARE House, and would like to thank all those who donated to the Holiday Toy Drive in December. Additionally, the YLD hopes to continue its Get Behind the Bar events and will look to raise money for other equally deserving causes in the Miami Valley. Please watch for additional volunteer opportunities with CARE House and for this year’s Get Behind the Bar events. Thank you. On behalf of the YLD Leadership, Emily Feaver and Shelli Brock

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January 2017 Dayton Bar Briefs


january 17' committee meetings

Diversity Issues January 3 @ Noon CANCELLED Young Lawyers Division January 4 Federal Practice January 9 @ Noon Juvenile Law January 9 @ 4pm Small Firm/Solo Office January 9 @ Noon Labor & Employment Law w/ optional CLE January 10 @ Noon Civil Trial Practice & ADR January 10 @ Noon Appellate Court Practice January 11 @ Noon Environmental Law January 11 @ Noon Estate Planning, Trust & Probate Law w/ optional CLE January 11 @ 4pm Domestic Relations January 12 @ Noon @ DR Court Real Property January 12 @ Noon Criminal Law & Its Enforcement January 18 @ Noon Workers’ Compensation / Social Security w/ optional CLE January 19 Corporate Counsel (In-House Counsel) January 26 @ 4pm @ Bravos Italian Restaurant

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CLE Seminars • • • •

Reduced Rates for Members! (12 hrs/yr) Greater Savings with CLE Passports Member Savings for Online Programs Annual Savings Exceeds Dues

Annual Bench-Bar Conference



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125 $ 100 Value $

• Reduced Fees for Members!


Chancery Club Luncheons

• Held monthly at the Old Courthouse

Pictorial Legal Directory

• Printed and Online versions FREE to Members

Bar Briefs Magazine

• Printed & Online versions FREE to Members

65 $ 35 Value $




WAIT!There’s much more...


DaytonFindALawyer-Online Search Site_ _ Enables clients to f ind you! (Members Only)

member info updates

Lawyer Referral Service_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Grow Your Practice

ATTORNEY BEIL, Bruce T. University of Dayton Admitted to Ohio Bar: 11/15

Networking & Collegiality_ _ _ _ _ _ _ _ _ Professional & Social Events

BOONE, Nathan D. The Kollin Firm Admitted to Ohio Bar: 11/16 INGRAM, Matthew C. Dinsmore & Shohl LLP Admitted to Ohio Bar: 11/16 MOHR, Julianne C. Dysinger & Patry, LLC Admitted to Ohio Bar: 9/16 ROBINSON, Amanda M. LexisNexis Admitted to Ohio Bar: 4/16 SHIA, Johnna M. Admitted to Ohio Bar: 5/97 22

Dayton Bar Briefs January 2017

• Client Referrals

Public Speaking Opportunities_ _ _ _ _ _ _ _ _ _ Professional Visibility Personnel Placement Service_ _ _ _ _ _ _ _ _ _ _ Low Fees to Members Substantive & Service Committees_ _ _ _ _ _ _ _ _Professional Growth Developing Strategic Relationships_ _ _ _ _ _ _ _ _


Join the DBA Join the Conversation Get Involved with a Committee! Share & Learn! Share & Learn! contact Carol for details: cblevins@daybar.org 937.222.7902


2016 dba

Holiday Luncheon DBA


25 Year Honorees


Shawn M. Blatt Esq.

Ray C. Freudiger Esq.

Joseph P. McDonald Esq.

James D. Brookshire Esq.

Jeffrey W. Gammell Esq.

Cynthia P. McNamee Esq.

Tina L. Carper Esq.

Kurt F. Horner Esq.

David R. Salyer Esq.

Todd B. Carver Esq.

Brian D. Huelsman Esq.

Andrea M. Seielstad Esq.

Jeffrey T. Cox Esq.

Kathleen M. Hughes Esq.

Barbara L. Strady Esq.

Edie E. Crump Esq.

Kenneth J. Ignozzi Esq.

Mimi Flaherty Summers Esq.

Michael E. Deffet Esq.

Scott K. Kellogg D.O.

Gilbert B. Switala Jr. Esq.

Lori E. Denlinger Esq.

Michele L. King Esq.

Christopher W. Thompson Esq.

Karen R. Dillon Esq.

Hon. Deirdre E. Logan

Margaret A. Treese Esq.

Trisha M. Duff Esq.

Frank A. Malocu Esq.

John Barry Welch Esq.

Marc L. Fleischauer Esq.

David W. Marquis Esq.

January 2017 Dayton Bar Briefs


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 support our community through DBA Foundation grants to worthy 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 to the DBA Membership 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. 24

Dayton Bar Briefs January 2017


Thurgood Marshall Law Society TMLS Diversity Clerkship Program Student Profile:

Timothy Hill


imothy Hill is a second year student at the University of Dayton School of Law (“UDSL”). He was born and raised in Cincinnati, Ohio and graduated from Xavier University with a degree in Criminal Justice. His primary interests currently include criminal law, civil litigation, and international law. Timothy is involved in several extracurricular activities at UDSL. He serves as a Dean’s Fellow, the Treasurer of the UDSL Federal Bar Association, Student Division, and is a member of the UDSL Academic Appeals Committee. Additionally, he was a teaching assistant for Torts I during the fall 2016 academic term. After working as a Technologist in the medical field, Timothy served as an instructor for several years at Cincinnati State Technical and Community College where he helped develop a program for Orthopedic Technology. He also served as the program’s chair prior to pursuing his dream of attending law school. He expects to earn his Juris Doctor in May 2018. Last summer, Timothy participated in the Thurgood Marshall Law Society Diversity Summer Clerkship Program as a student clerk for both the Honorable Judges Walter H. Rice and the Honorable Magistrate Judge Sharon L. Ovington of the United States District Court for the Southern District of Ohio. The Judges, like his professors, quickly found that Timothy has a bright legal mind and strong work ethic.

University of Dayton School of Law


January 2017 Dayton Bar Briefs


members on the move



DUNGAN AND LEFEVRE is pleased to announce the following partners have been recognized by the 2017 Ohio Super Lawyers magazine. WILLIAM J. MCGRAW, III has been named a 2017 Ohio Super Lawyer. Only 5% of attorneys in Ohio are chosen to be listed in Ohio Super Lawyers. Mr. McGraw is a Board Certified Specialist in Estate Planning, Trust & Probate Law by the OSBA and a Fellow of the American College of Trust & Estate Counsel. He has been named an Ohio Super Lawyer every year since its inception in 2004 and was named one of the top 100 Super Lawyers in Ohio. Mr. McGraw also served as Chair of the Estate Planning, Trust & Probate Law Section of the OSBA from 2009-2011. He has published numerous articles and serves on the Editorial Board of the Ohio Probate Law Journal and is a frequent speaker on estate planning, trust and probate issues throughout Ohio. GLEN R. MCMURRY, MICHAEL J. JUREK and SARAH G. WORLEY have all been named a 2017 Ohio Super Lawyer Rising Stars. Ohio Rising Stars names outstanding young lawyers in the State of Ohio (those 40 years old or younger, or those who have been in practice for 10 years or less). No more than 2.5 percent of the lawyers in the state achieve this honor each year. Mr. McMurry has been named to the Ohio Rising Stars list for the past six years. He practices in the areas of business and commercial litigation and has represented clients in


Dayton Bar Briefs January 2017



a number of civil and defense matters, including derivative shareholder actions, products liability defense and construction litigation. Mr. McMurry is also experienced in federal litigation. He is a Past-President of the Dayton Chapter of the Federal Bar Association (FBA), is currently serving a 3 year term as a National Director of the FBA, and he also serves as the National Chair and of the FBA’s Younger Lawyers Division. SARAH G. WORLEY practices in the area of Estate Planning (Wills, Trusts, Powers of Attorney and Living Wills) and Estate Administration. Ms. Worley has also been named one of the Dayton Better Business Bureau’s 2015 Top 25 Women to Watch. She is a recipient of the Dayton Business Journal’s 40 Under 40 Award, and is a graduate of the DBA’s Leadership Academy. Ms. Worley is a graduate of the Leadership Troy program sponsored by the Troy Chamber of Commerce. She is a member of the Troy Rotary Club, the Junior League of Dayton, the Dayton Children’s Hospital Planned Giving Advisory Committee, and Give Where You Live Miami County. Before joining the firm, MICHAEL J. JUREK held a two-year term as a federal judicial law clerk to the Honorable Michael J. Newman in the U.S. District Court for the Southern District of Ohio in Dayton. Mr. Jurek is a 2004 cum laude graduate of Denison University. He received his JD from The Ohio State University Moritz College of Law in 2007 where he served as an associ-


ate editor for The Ohio State Law Journal. Mr. Jurek is also member of the Miami County and Kentucky Bar Associations. He practices in the area of Domestic Relations and Commercial Litigation throughout the Greater Miami Valley area. NADIA A. KLARR has joined the law firm of Bieser, Greer & Landis as an associate. Ms. Klarr is a recent graduate of UDSL, where she graduated near the top of her class with institutional academic honors. She participated successfully in moot court, wrote for and served as an executive editor of UD’s Law Review. While on the Honor Council she was selected to serve as a Dean’s Fellow to mentor and facilitate learning communities for incoming law students. Nadia has been a law clerk for two common pleas court judges and the Ohio Attorney General, as well as an externship with a Federal District Court Magistrate. She received the Pro Bono Commitment Award for completing 120 hours of pro bono work during law school. Ms. Klarr plans to practice in the areas of business litigation, labor and employment law, and intellectual property law. She is the founder of The DeNovo Review, a blog dedicated to leadership and development advice for young professionals. Sebaly Shillito + Dyer, A Legal Professional Association, are pleased to announce that ATTORNEY JOSEPH E. ZEIS has joined the firm as an associate.


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EXPERIENCED COMMERCIAL REAL ESTATE ATTORNEY Graydon Head & Ritchey, LLP, 80+ attorney firm located in downtown Cincinnati, seeks a highly motivated, experienced commercial real estate attorney for our busy commercial real estate practice group. The candidate’s experience must be in commercial real estate transactions. Candidates should be licensed in Ohio, or willing to obtain admission to the Ohio Bar. Candidates should have high intellectual capacity, excellent analytical and writing skills, and works with a sense of urgency. The successful candidate is dedicated to pursuing commercial real estate practice as a career, and exhibits a "client service" approach to the practice of law. We offer competitive compensation and an attractive benefits package. Please reply in confidence with your cover letter, resume and law school transcript to: Barbara Hopewell Chief Professional Development Officer and Director of Human Resources 312 Walnut Street, Suite 1800 Cincinnati, OH 45202 (Phone) 513.629.2858 (Fax) 513.651.3836 E-Mail: bhopewell@graydon.com

mark your calendar

LOCAL COURT RULES 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. MEDIATION/ARBITRATION William H. Wolff, Jr., LLC Retired Trial and Appellate Judge Phone: (937) 293-5295; (937) 5723185 judgewolff@woh.rr.com OFFICE AVAILABLE Downtown Dayton office with great view available. Reasonable overhead. If interested contact Daryl R. Douple or Harry G. Beyoglides, Jr. at (937) 224-1427.

OFFICE SPACE 101 Southmoor Circle, NW (Stroop and Far Hills). Two offices available at $550/month/office. Furnished or unfurnished. Take one or both offices. Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area, conference room, Dayton Racquet Club athletic membership. Email dave@ SchmidtDayton.com for info and pics.

advertiser index

2017 Robert Farquhar Mock Trial Montgomery County Courthouse Fri. January 20, 2017 Lunch/Training: 11:00am Trials: 12:00-4:00pm

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Chancery Club Luncheon The Old Courthouse Fri. February 10, 2017

LCNB Bank................................................23

Probate Law Institute DBA Office Fri. March 10, 2017

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Unlimited free legal research for DBA members. Log in: www.daybar.org Put that book down! Welcome to the 21st century with legal research powered by analytics. Courtesy of @Fastcase and the DBA.

Fastcase Tip:

You are already a member of Fastcase (via the DBA), so why not take a moment to learn how to use it? Learn about everything from getting started to the more advanced features, such as Forecite and multi-jurisdictional searches. Visit www.fastcase.com/support and click on “Documentation and Downloads”. The guides offer something for everyone, from beginners to Fastcase veterans. Don’t know your login? Contact: Lori (lluebben@daybar.org) or Chris (calbrektson@daybar.org) at 937.222.7902 January 2017 Dayton Bar Briefs


Dayton Bar Association 600 Performance Place 109 N. Main St. Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED


Profile for Dayton Bar Association

January 2017 small file  

January 2017 small file