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The Magazine of the Dayton Bar Association |MARCH 2016 | Vol. 65, No. 7


Bar Briefs

15 for 12

DBA Membership Renewal pg 12

dba logo use policy pg 14

2016 diversity day

“Working Together to Promote Access to Justice” pg 9


Bar Briefs


March 2016 | Vol. 65, No.7

Dayton Bar Association Board of Trustees

Features 4 trusteeS MESSAGE Nominate a Candidate for UDSL’s Leadership Honors Program! By Richard P. Perna Esq.

2015 – 2016

Kermit F. Lowery President


Susan D. Solle

First Vice President

Brian L. Wildermuth Second Vice President


Barbara J. Doseck


Christopher B. Epley Treasurer

Dale E. Creech Jr. Member–at–Large

Lynnette Dinkler Member–at–Large

Julia J. Martin


Merle F. Wilberding Member–at–Large

Richard P. Perna

Immediate Past President Bar Counsel

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.


2016 liberty bell


rising star of the bar: Glen R. mcMurry esq.

December 2015 Changes to the Federal Rules

By Victoria L. Nilles Esq. Time for Nominations!

By Hon. Mary Kate Huffman

By Matthew T. Crawford Esq.


young lawyers division 2015 Amendments to the Federal Rules of Civil Procedure: A Major Step Toward a Better Civil Justice System

By Sean P. McCormick Esq.

from the judges desk Free Speech or Disrespectful to the Court?

By Hon. Mary Kate Huffman

upcoming events 9 diversity day Working Together to Promote Access to Justice Friday, April 8th | 8:30-1:15pm | Sinclair College, Bldg 12

Library of Congress ISSN #0415–0945 William B. Wheeler, Executive Director Shayla M. Eggleton, Coordinator Publications & Design Phone: 937.222.7902 Fax: 937.222.1308

31 35

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 March 2016

By Kristina E. Curry Esq.

Departments 21 march 2016 Committee meetings 22 Continuing Legal education 35 Classifieds & Marketplace

Paid subscription: $30 / year


Barrister of the Month: MAG. michael j. howley federal practice


William B. Wheeler, ex officio

Elections Take Place at DBA Annual Meeting June 10th


John M. Ruffolo, ex officio

dba board of trustee nominations

celebration of life memorial luncheon Wednesday, May 25th | Doors open at 11:30am | Sinclair College, Bldg 12

mark your calendar 937.222.7902





DBA ANNuAL PARTNERS Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession

PLATiNuM PARTNERS Eichelberger Foundation Estabrook Charitable Trust Faruki Ireland & Cox P.L.L. jack w. and sally d. eichelberger Foundation

Eichelberger, longtime Oakwood residents to enhance the legal profession, the arts and the Greater Dayton community through the awarding of grants. Jack Eichelberger was a well-known Dayton attorney and real estate investor. Trustees: Dave Greer, Gary Froelich and Neal Zimmers.

Sponsor of: • Chancery Club Luncheons • New Admittee/Member Reception • First Monday in October Celebration • DBA and UD Law Student Events

• Women in Law Forum

estabrook charitable trust

Administered by Porter Wright Morris & Arthur LLP | Bruce Snyder - Trustee

Annual Grants to the DBA (This support makes these events affordable for all members): • Bench Bar Conference • Diversity Day • Annual Meeting

Faruki ireland & cox p.l.l. www.fi claw.com with offi ces in cincinnati & dayton

Faruki Ireland & Cox P.L.L. is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.

GOLD PARTNER Thompson Hine LLP thompson hine llp www.thompsonhine.com

Established in 1911, Thompson Hine is a business law firm dedicated to providing superior client service. The firm has been recognized for ten consecutive years as a top law firm in the country for client service excellence in The BTI Client Service A-Team: Survey of Law Firm Client Service Performance. With offices in Atlanta, Cincinnati, Cleveland, Columbus, Dayton, New York and Washington, D.C., Thompson Hine serves a premier business worldwide.

Contact Bill Wheeler at bwheeler@daybar.org or 937.222.7902 for information about becoming a Annual Partner.


March 2016 Dayton Bar Briefs


trustees message

Nominate a Candidate for UDSL’s Leadership Honors Program!

By Richard P. Perna Esq. University of Dayton School of Law DBA Immediate Past President


ikes, it seems impossible that four years have gone by so quickly! I feel that like it was just yesterday that I got a call from Jeff Ireland asking if I would accept a nomination to serve as the second vice president of the DBA. And now, as “immediate past president”, I’m serving out my final year on the DBA Board. I want you to know that I feel honored and fortunate to have served the Dayton Bar Association during the past four years. To all our members, thank you again for your trust, your support and your confidence ---- it’s really been a great and memorable four years! Since this is my last Board Corner column. I’d like to begin by thanking Bill for all his hard work and effort. We owe so much of the success of our Association to Bill’s steady, thoughtful leadership over the years. Thanks also to the staff of the DBA for their dedication and hard work. They’ve all made my participation over the past four years fun and so enjoyable. Also, I want to recognize and thank all of my fellow Board Members and Executive Committee colleagues. I look forward to continuing to work with many of you as I transition off the Board and over to the Foundation Board next year. Finally, I also want to extend a special Thank You to all the past President’s that I have had the privilege of working with over the years, Jeff Ireland, Paul Roderer Jr., Judge Mary Kate Huffman, and Kermit Lowery, our current DBA President. It’s a remarkable group of individuals and it’s been such a pleasure working with them as they have worked so effectively and tirelessly to lead our organization. If you have read my past columns, you know that I’ve consistently written about the ways that our profession is changing and how our bar associations and law schools should work together to address the new challenges. As some of you may know, UDSL has recently announced the start of an exciting new initiative to educate the next generation of lawyerleaders. I’m inviting our members to work with us by nominating a future lawyer-leader to receive a full-tuition scholarship to UDSL and become a member of the first cohort of the UDSL’s new Leadership Honors Program 4

Dayton Bar Briefs March 2016

(LHP), a program focused on developing leadership capabilities of the next generation of lawyers entering our profession. We are all aware of the important role that Lawyers play as leaders in our society. And that’s the case whether that community is inhouse at a large corporation, a town in Ohio, a school board, a corporate board, a religious community, or a city planning board. In our view, leadership is not an innate skill. Rather, leadership is largely a learnable skill that can be intentionally developed, nurtured and honed. Being part of a leadership community helps develop leadership abilities, in part by exposing members of the community to theory and techniques, colleagues, conversations, models, and leadership opportunities. Nurturing effective lawyer leaders in our next generation is essential. Our new Dean, Andy Straus describes the need for this type of program this way:

“Our impetus for creating this Program comes out of concern that something must be done to counteract the negative social dynamics engulfing the world today. Perhaps more than ever, we need leadership that promotes law over violence and legally principled decision-making over capricious rule. In the United States, lawyers have provided this kind of leadership for over two-hundred years. In these challenging times, the University of Dayton School of Law wants to do its part to carry forward our profession’s noble legacy by investing in tomorrow’s lawyer-leaders.” The LHP curriculum is distinctive. In addition to receiving a tuition-free legal education culminating in a Juris Doctorate, students will participate in a specially-designed Graduate Leadership Sequence. In the first year, students will engage with prominent leaders in law,

governance, and business as part of the Honors Roundtable Series to be chaired by Governor Robert Taft. In the second year, students will learn leadership skills in our exclusive LHP Leadership for Lawyers Program of Study at the University of Dayton’s prestigious Center for Leadership. Finally, in the next to last semester students will work together to create their Leadership Legacy by designing a project to help transform a community institution. Students who successfully complete the LHP will receive a Leadership Honors Program Certificate at Commencement. This is a remarkable opportunity for future lawyer-leaders. Tuition-free scholarships constitute a tremendous honor for recipients, and we are relying on our nominators for the success of the program. There are both quantitative and qualitative criteria for admission to the LHP. We are looking for students who show a special potential for leadership. While there is no one measure of this potential, we are particularly interested in students who have held leadership positions, or have shown unique creativity, perseverance or allegiance to principle. The minimum quantitative criteria are an undergraduate GPA of 3.15 and an LSAT score of 152. We expect that many students will have higher--even significantly higher--grades and scores. Because of the exclusive nature of the LHP, students may not apply directly to the Program. Rather, prospective LHP students apply for admission to the Law School, but they must then be nominated to the Program to participate. I want to invite our DBA members to consider nominating candidates for the program. Please join us in educating future lawyer-leaders by nominating a law school applicant to receive a full tuition scholarship to UDSL’s Leadership Honors Program. All nominations to the Program should be received by March 15th. You may complete your nomination at go.udayton.edu/lhp/nominate. You, or your potential nominee, may learn more about the program at go.udayton.edu/ lhp. If you have any questions, do not hesitate to contact me or our LHP Director, Susan Wawrose, at 937-229-2235 or swawrose1@ udayton.edu. 937.222.7902


DBA Board of Trustees Nominations M

embers nominated by the Nominating Committee and approved by the Board of Trustees for vacancies that will exist as of July 1, 2016 are: Second Vice President: David P. Pierce Esq. Coolidge Wall Co., LPA 33 W. First St., Ste. 600 Dayton, OH 45402-1289

Treasurer: Jonathon L. Beck Esq. Young & Alexander Co., LPA 130 W. Second St., Ste. 1500 Dayton, OH 45402-1502


In accordance with Section 2, Article III of the Dayton Bar Association Code of Regulations, Regular Members shall have the right to nominate another candidate or candidates for any elected office for which vacancies exist to be filled at the Annual Meeting not later than noon on the 15th day of the month following the publication of the nominee’s names by delivering to the Association office a nominating petition signed by at least twenty-five (25) regular (voting) members of the Association whose dues for the current fiscal year are paid.

Elections will take place at the DBA Annual Meeting on Friday, June 10, 2016.

March 2016 Dayton Bar Briefs


Barrister of the month

Magistrate Michael J. Howley M

agistrate Michael J. Howley, Col., USAF, Ret., retired as Legal Director of the Montgomery County Common Pleas Court, Domestic Relations, a position that he had held for 14 ½ years. Michael Howley began his legal career at the age of 54 when he was “literally the last person to be accepted to the University of Dayton Law School in 1994.” One day, on a Friday, Michael received the call letting him know that he had been accepted to law school and “by the way…classes start on Monday.” Michael credits his introduction to the legal profession, and his success in law school, in great measure, to Stan Greenberg who helped him get into the profession and was a great friend and mentor. He recalls sitting in his first class, on Monday, when “Ernie Tinkler” an attractive young lady, turned to him and said, “Thank you, I am now no longer the eldest person in this class!” Upon graduation, Michael was voted by his fellow classmates as “the person least likely to practice law.” Years later, Michael quips, “but I was the first from that class to put on the robe!” When Michael began attending law school, he had already helped others get, literally, to the moon and back. Michael began his first career, as a student of “the other U of D”, he says, in his hometown of Detroit, Michigan, where he studied Aeronautical Engineering. Earning his Bachelor of Science, he was also commissioned Second Lieutenant in the United States Air Force. He began that career as an Aerospace Engineer working on century series fighter aircraft. He was then chosen to complete a 1-year advanced degree program, reserved for a few individuals, by the Air Force Institute of Technology. He attended SMU where he received a Masters of Engineering Management. From there, he was assigned to the NASA Apollo Space Program in Houston. There, he worked as the crew station engineer for Apollo 8, and then the Flight Crew Support Team Leader for Apollo 13. Working daily with the likes of Frank Borman, Jim Lovell, Neil Armstrong and many other astronauts…did we say astronauts? Yes, we did. Michael was a Flight Crew Support Team Leader, with a staff of engineers for the Apollo 13 mission which, for those too young to remember, Michael says, “You’ve seen the movie, with Tom Hanks, right?” Apollo 13 was the seventh manned mission in the Apollo space program and the third intended to land on the Moon. The craft was launched on April 11, 1970, at 13:13 CST from the Kennedy Space Center, Florida, but the lunar landing was aborted after an oxygen tank 6

Dayton Bar Briefs March 2016

exploded two days later, crippling the Service Module (SM) upon which the Command Module (CM) depended. Despite great hardship caused by limited power, loss of cabin heat, shortage of potable water, and the critical need to jury-rig the carbon dioxide removal system, the crew returned safely to Earth on April 17, 1970. Michael was part of the team, helping to develop repairs to the crippled carbon dioxide removal system with “hoses and duct tape”, he chides. Michael was there, as the entire world watched, and he describes the events as “Very stressful, very exciting, and ultimately rewarding adventure, bringing everybody home safely.” The flight passed over the far side of the Moon at an altitude of 254 kilometers (137 nautical miles) from the lunar surface, 400,171 km (248,655 mi) from Earth, a spaceflight record marking the farthest humans have ever traveled from Earth. The mission was commanded by James A. Lovell with John L. “Jack” Swigert as Command Module Pilot and Fred W. Haise as Lunar Module Pilot. Swigert was a late replacement for the original CM pilot Ken Mattingly, who was grounded by the flight surgeon after exposure to German measles. Michael remembers, however, that he personally knows that Ken Mattingly was indeed exposed to measles: Ken was visiting Michael in his home when Ken was first exposed to measles. “Ken never actually got measles after that.” But were it not for that fateful decision, Mattingly, who was exceptionally instrumental in helping bring back the crew, would not have been the force behind the preservation of electrical power for the return journey. Michael also recalls that he was then promoted and served as Executive Officer to a 3-star general at the Pentagon and was at one point serving both Gens. Slay and Russell at the same time, and helped select Les Lyles, who later himself became a 4-Star General. Michael also served at the Pentagon in the Office of the Secretary of Air Force Legislative Affairs as a Legislative Liaison. There, Michael was involved in the politics of “The Hill”, learning first-hand how laws are created. That experience sparked his interest in a post Air Force law career. Michael retired from the Air Force after 26 years, met his wife Sharon who was a V.P. for Public Funds. She is now retired after 40 years in banking. They are a “blended family” and each have 2 children, and are blessed with 7 grandchildren. Once retired from the Air Force, Michael worked for a defense electronics firm. He left there and went back to retirement. However, Sharon was “working 50-60 hours per week” and “I was enjoying life, playing golf, and just relaxing.” One day Sharon “turned to me with that voice that only a wife has, and suggested I find something productive to do.” With Stan Greenberg’s help and influence, Michael was accepted to UDSL. After law school, Michael began private practice with classmate Joe Burneka, renting office space at the firm of Popp & Tuss. He then joined the civil litigation firm Jenks, Surdyk & Cowdrey. “Bob Cowdrey and I met while I was in preparation for the

continued on page 7 937.222.7902


continued from page 6

Bar Exam in law school” he says, “and we have remained friends to this day Bob was a guiding light.” Michael also served on the Kettering Schools Board of Education for 2 terms. He ran for Clerk of Courts in 1990 and lost to Dan Foley, who is now County Commissioner. Michael also worked at Hall, Tucker, Fullenkamp and Singer and warmly acknowledges his experiences with this firm, a number of whom, as we know, are now judges. Michael talked about his work at the Domestic Relations Court, which was very fulfilling as well as challenging. Michael is very proud to have been a part of the Court and it was “an exceptionally rewarding and gratifying career.” Michael unabashedly states that the highlights of his career have been the opportunities and challenges presented by the Apollo program and his rewarding experience with the Domestic Relations Court. He opines, “The leadership, professionalism and, if I may add, the friendship of Judge Denise Cross, Judge Judy King and Judge Tim Wood has made my career in law exceptionally rewarding. Without their guidance, I would not have realized whatever success I achieved.” Michael is now enjoying his retirement and he and his wife enjoy hosting gatherings, and he gives kudos to his wife Sharon who “is very good at organizing and hosting events.” Although Michael insists that he is now retired, one doubts seriously whether he will ever truly be “retired.” When once asked where he would like to travel, Michael responded, “Space travel is the one trip I would really like to make. When working Apollo 8 and 13, I was in the command module mere hours before launch and couldn’t find a place to stow away.” Having had the pleasure of sitting down with Mr. Howley, who has experienced 2 long and wonderful careers already, doing the kind of work that most would never dream of having in a single lifetime, one senses that, given the opportunity again, he would find someplace to “stow away”! Congratulations to Michael J. Howley, Dayton Bar Association Barrister of the Month for March 2016!

By Kristina E. Curry Esq. DBA Editorial Board Pickrel Schaeffer Ebeling, Co. LPA www.daybar.org

March 2016 Dayton Bar Briefs


do we have your most

Will YOU be Found in the 2016 DBA Pictorial Legal Directory

Form Submittal Deadline Extended to April 1st Contact Information:

Have you advised us of any changes?

The Directory includes: Name, Photo, Firm/Office, Address, Phone, Fax, Email Address and Supreme Court Number for all Judges, Magistrates and Attorneys, Paralegals and Legal Administrators in our database.

Firm Profiles:

A meaningful depiction of your law firm!

ENHANCING your firm listing by adding an optional profile of your firm, attorney/staff roster and website. The Directory includes a basic listing for all local firms in our database at no charge. Why not provide directory readers with specifics regarding your firm’s areas of expertise at a fraction of the cost of a mere telephone book listing!

Fields of Practice:

Identify your experience and areas of expertise!

You are the face of the DBA!

Showcase your specified legal skills. Designed to identify attorneys who practice in particular fields of law, who are admitted to other Bar(s), who are certified or who are fluent in foreign language(s). Select from 190 different options and/or create your own! - Available for only $10 per category.

Don’t let your face be missed in this year’s Legal Directory! Take advantage of the following opportunities to have your photo taken professionally and to make sure your DBA photo for the upcoming Legal Directory is current.

Don’t have a photo? We can help!

At the DBA Office - Contact Lori to make an appointment at 937.222.7902 or lluebben@daybar.org: • March 21 Monday 8:30-4:00pm • March 22 Tuesday 2:00-5:00pm • March 23 Wednesday 8:30-4:00pm

Does the DBA have your photo? Is it out of date?

Call the DBA to make arrangements to have your directory photo taken March 21-23 at no charge! or email your high-resolution photo (at least 300dpi) to publications@daybar.org.

Advertising Opportunities:

Spread the word about your business or service to the Dayton community? Don’t miss the chance to advertise in the “Go-To- Resource Guide” for the Dayton legal community. Including with Legal Directory advertising your ad would be listed on our website for FREE, for a year under the Attorney Resource Directory! Contact publications@daybar.org or 937.222.7902.


Dayton Bar Briefs March 2016



DBA Diversity Day 2016

Working Together to Promote Access to Justice Friday, April 8th | 3.0 CLE hrs 8:30-11:45am Seminar #103 12:00-1:15pm Lunch #104 Sinclair College, Bldg 12 Keynote Speaker: David Singleton Esq., Exec. Dir. Ohio Justice and Policy Center Cincinnati, OH

electronic handouts Handouts can be downloaded from the DBA website 3 days prior to seminar. If you have questions about downloading please contact us. If you would like to request printed materials, please add an additional $25 along with your registration below.

agenda 8:30-9:15am Opening Remarks The Supreme Court Task Force on Access to Civil Justice: A Statewide Report

registration www.daybar.org/cle

Justice Judith French, Ohio Supreme Ct 9:15-10:00am Access to Criminal Justice in Ohio: A Review of What We Do and What We Don't

937.222.7902 MEMBER: Seminar Only $105 | Lunch Only $25 | Both $115 NONMEMBER: Seminar Only $140 | Lunch Only $35 | Both $160 PASSPORT: $30 Advanced Attorney

Timothy Young Esq., Ohio Public Defender

Law Student

Other Professional

Print Hand-Outs $25 (Handouts in electronic format)

10:00-10:15am Break

Name(s) _____________________________________________________________

10:15-11:00am Access to Civil and Criminal Justice in Dayton: What Can We Do Locally (*Discussion to include the Law Clinic and potential projects)

Firm/Company ______________________________________________________

Dean Thaddeus Hoffmeister, UDSL Kelly Henrici, Executive Director of GDVLP

11:00-11:45am Break-out Brainstorming Sessions: Where We See Gaps and Where We See Solutions

Lead by Diversity Committee Members

11:45am Adjourn 12:00pm Lunch Collaboration Can Effectuate Change: Working Together to Promote Access


Lunch Keynote Speaker: David Singleton, Executive Director Ohio Justice and Policy Center, Cincinnati, OH

Address _____________________________________________________________ City, State + Zip______________________________________________________ Phone _______________________________________________________________ Supreme Court Registration#_____________________________________ E-mail ________________________________________________________________ Enclosed is my check in the amount of $_________________________

(made payable to the Dayton Bar Association)

Please charge my credit card the amount of $___________________ Visa



American Express

Card Number _______________________________________________________ Expiration Date__________/__________CVV Number_________________ Cardholder Signature_______________________________________________ March 2016 Dayton Bar Briefs



December 2015 Changes to the Federal Rules

By Victoria L. Nilles Esq. Vice Chair: Federal Practice Of Counsel, Taft Stettinius & Hollister LLP


n December 1, 2015, amendments to the Federal Rules of Civil Procedure1 went into effect and “govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”2 According to Chief Justice John G. Roberts Jr., the amendments are the “product of five years of intense study, debate, and drafting to address the most serious impediments to just, speedy, and efficient resolution of civil disputes” and “mark significant change, for both lawyers and judges, in the future conduct of civil trials.”3 The Advisory Committee on Civil Procedure started the five-year process at the 2010 Conference on Civil Litigation held at Duke University Law School. “The symposium specifically identified the need for procedural reforms that would (1) encourage greater cooperation among counsel; (2) focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case; (3) engage judges in early and active case management; and (4) address serious new problems associated with vast amounts of electronically stored information.”4 The end result was amendment of Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55, and abrogation of Rule 84 and the Appendix of Forms.

Cooperation (Rule 1)

The change to Rule 1 adds eight words to make clear that both the parties and the court are obliged to make litigation efficient: the Civil Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”5 The Advisory Committee Note emphasizes the obligation, but makes clear that the rule change is not intended to serve as a basis for sanctions for failure to cooperate: Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with -- and indeed depends upon -- cooperative and proportional use of procedure. This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.6

Though in the discovery realm, other rule changes also strive for cooperation: Rule 26’s proportionality considerations and Rule 34’s requirement to state specific objections.

Discovery (Rules 26, 30, 31, 33, 34)

The 2015 Amendments address several “big picture” discovery issues: reducing the scope of discovery, highlighting proportionality as a principle to be applied to all discovery, and reducing the potential for unreasonable burdens caused by boilerplate objections to requests for production.7 “Rule 26(b)(1) crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality” 8 and corrects the misinterpretation that the “reasonably calculated” language allows discovery of irrelevant information.9 Proportionality is not new, but was buried in former Rule 26(b)(2)(C) (iii). The amendment moves the proportionality factors to the forefront

10 Dayton Bar Briefs March 2016

of Rule 26(b)(1) and uses those factors to define the scope of permissible discovery, which must be: proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” 10

The Rule 26 Advisory Committee Note also provides a detailed summary of the proportionality factors and explains that the amendment does not change the existing collective responsibilities of courts and parties to consider proportionality of all discovery and to also consider proportionality in resolving discovery disputes.11 The discovery of inadmissible information dates back to 1946 when Rule 26 was changed to allow discovery of information not admissible at trial if it were “reasonably calculated to lead to the discovery of admissible evidence.”12 In 2000, the word “relevant” was added to narrow the scope to that matter relevant to any party’s claim or defense, but over time, that narrowing has been lost.13 With the recent amendment, it is now clear that the discovery of inadmissible information is bounded by relevance to the parties’ claims or defenses. Rules 30, 31, and 33 were also amended to add the limitations of proportionality and the narrowed scope of discovery by incorporating Rule 26(b)(1) into their texts.14

continued on pg 11 Endnotes (1-14) addt’l cont. on pg 13: Available at http://www.supremecourt.gov/orders/courtorders/frcv15_5h25. pdf; see also April 29, 2015 Transmittal to Congress (“Transmittal”), available at www.uscourts.gov/file/document/congress-materials. The Transmittal of the Civil Rules begins at page 13 of 2015-04-29 transmittal_to_congress_final_0.pdf. Subsequent Transmittal references are to the specific page in the pdf (not the page numbers identified on the various documents within the Transmittal). 2 Transmittal, supra note 1, at Order, April 29, 2015, p. 15. 3 John G. Roberts Jr., 2015 Year-End Report on the Federal Judiciary (Dec. 31, 2015), available at http://www.supremecourt.gov/publicinfo/yearend/2015year-endreport.pdf, at 4, 5. 4 Id. at 5. 5 Fed. R. Civ. P. 1 (amendment in underlined text). 6 Fed. R. Civ. P. 1 advisory committee’s note. 7 Transmittal, supra note 1, at pp. 114-16, 119; Fed. R. Civ. P. 34 advisory committee’s note. 8 Roberts, supra note 3, at 6. 9 Transmittal, supra note 1, at pp. 117-18; Fed. R. Civ. P. 26 advisory committee’s note (“The phrase has been used by some, incorrectly, to define the scope of discovery.”) 10 Fed. R. Civ. P. 26(b)(1). 11 Fed. R. Civ. P. 26 advisory committee’s note. 12 Transmittal, supra note 1, at p. 118. 13 Id.; Fed. R. Civ. P. 26 advisory committee’s note. 14 Fed. R. Civ. P. 30(a)(2)(A)(i) (additional depositions), 30(d)(1) (adding time to deposition duration), 31(a)(2)(A)(i) (additional depositions by written questions), 33(a)(1) (additional interrogatories); see also respective advisory committee’s notes. 937.222.7902 1

federal practice: Changes to the Federal Rules continued from page 10

ow? n K u o yer Did Y the Law

Rule 34 amendments were designed to eliminate (1) the use of broad, boilerplate objections, (2) responses that state objections, produce some documents, and do not indicate whether any documents were withheld based on the objections, and (3) responses that state documents will be produced without identifying when that production will occur.15 Rule 34 now requires the producing party to “state with specificity the grounds for objecting to the request,” 16 and further requires that any “objection must state whether any responsive materials are being withheld on the basis of that objection.” 17 Where production is not concurrent with the responses, “[t]he production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”18 Amendments to Rules 26 and 34 allow a requesting party to “deliver” a production request to another party before the parties’ first Rule 26(f ) conference, but the request is not considered “served” until that conference is held. 19

otes m o r p e A The DB ral Service in th ting Refer Resul s w e N ional Daily Dayton an 300,000 reg h th nt in more sions each mo impres nts? e i l C w e ce Need N r Referral Servi Lawye e h t n i o J

Case Management (Rules 4, 16, 26, 55)

Changes to Rules 4, 16, and 26(f ) shorten deadlines and “emphasize the crucial role of federal judges in engaging in early and effective case management.” 20 The changes to Rule 4 include a shortened time to serve a complaint to 90 days (down from 120 days) after the complaint is filed21 and a new waiver of summons form, which is clearly written and makes it easy to understand what is required to waive service of summons. Rule 16(b)(2) now requires the judge to issue a scheduling order 90 days (down from 120 days) after any defendant has been served with the complaint or 60 days (down from 90 days) after any defendant has appeared. To encourage “direct simultaneous communication” for a more effective scheduling conference, 22 Rule 16(b)(1)(B) no longer includes “by telephone, mail, or other means.” While Rule 16(b)(1) still allows the court to base a scheduling order on the parties’ Rule 26(f ) Report without an in-person attendance in the courtroom, the conference is to be “held in person, by telephone, or by more sophisticated electronic means.”23 Rule 16(b)(3) includes three substantive changes as to new permitted subjects for the scheduling order. The first two address preservation of ESI and agreements reached under Federal Rule of Evidence 502 for inadvertent disclosure.24 These changes are paralleled in Rule 26(f )(3), which requires the parties’ discovery plan to provide proposals regarding ESI preservation and inadvertent disclosure.25 The third change adds language that many judges already require—a conference with the court before filing discovery motions—because experience has shown such a conference to be “an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion.”26 An additional case management tool—one that encourages proportionality discussed above—is found in an amendment to Rule 26(c)(1)(B), which allows for the allocation of expenses in a protective order: The present amendment again reflects the need for continuing and close judicial involvement in the cases that do not yield readily to the ideal of effective party management. It is expected that discovery will be effectively managed by the parties in many cases. But there will be important occasions for judicial management, both when the parties are legitimately unable to resolve important differences and when the parties fall short of effective, cooperative management on their own.27

This rule previously protected against undue burden or expense, but the amendment “include[s] an express recognition" of the choice to allocate expenses as an alternative to denying requested discovery or ordering it despite www.daybar.org

the risk of imposing an undue burden and expense on the producing party.28 Although not truly a “case management” rule, Rule 55(c) was amended to “correct[] an ambiguity” when a “default judgment does not dispose of all claims among all parties.”29 By inserting the word “final” in front of “default judgment,” “Rule 55(c) is amended to make plain the interplay between Rules 54(b), 55(c), and 60(b),”30 and establishes “that relief from a default judgment is limited by the demanding standards of Rule 60(b) only if the default judgment is made final under Rule 54(b) or when there is a final judgment adjudicating all claims among all parties.”31

continued on pg 15

Endnotes (15-31) addt’l cont. on pg 13: Transmittal, supra note 1, at p. 118. Fed. R. Civ. P. 34(b)(2)(B). 17 Fed. R. Civ. P. 34(b)(2)(C). 18 Fed. R. Civ. P. 34(b)(2)(B). 19 Fed. R. Civ. P. 26(d)(2), 34(b)(2)(A). 20 Roberts, supra note 3, at 7. 21 Fed. R. Civ. P. 4(m). 22 Fed. R. Civ. P. 16 advisory committee’s note. 23 Id. 24 Fed. R. Civ. P. 16(b)(3)(B)(iii), (iv). 25 Fed. R. Civ. P. 26(f )(b)(3)(C), (D). 26 Id. 27 Fed. R. Civ. P. 26 advisory committee’s note. 28 Fed. R. Civ. P. 26 and advisory committee’s note 29 Transmittal, supra note 1, at p 107. 30 Fed. R. Civ. P. 55 advisory committee’s note. 31 Transmittal, supra note 1, at p 107; see also Fed. R. Civ. P. 55(c). 15 16

March 2016 Dayton Bar Briefs


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Paralegal Day Celebration Wednesday, April 13th 11:30-1:00pm Building 7 (Tartan Marketplace)

Paralegal Day Celebration Program

Please join your colleagues in the legal community, including judges, attorneys, paralegals, and support staff, as we recognize paralegal contributions to the legal profession.

Please join us to see the next Paralegal of the Year award be presented. The celebration will include a key note speech regarding the Paralegal profession as well as a silent auction with proceeds benefiting Sinclair Paralegal Scholarships.

Hosted by:

Sinclair Community College Paralegal Program with additional sponsorships from the legal community.

11:30–12:00pm Registration and Silent Auction 12:00–1:00pm Program

To nominate an outstanding Paralegal on your staff, please go to the below link to find the nomination form:


Individual tickets:

Deadline for nominations: Friday, March 25th

Return nominations and reservations:


$15.00 per person, incl. parking pass

Sinclair Community College Paralegal Program 444 West Third St., Rm 5141 Dayton, OH 45402

checks payable to:

Sinclair Foundation - Paralegal Day


(937) 512-2616 or paralegal@sinclair.edu

Thank you for your participation and we look forward to seeing you and your paralegal staff at this event!

We hope you will continue to be, or will become, a sponsor of this exciting event: Silver - $75 Your firm's name in the program as Silver Sponsor, (2) tickets and parking passes to the event ($45 tax deductible)

Gold - $150

Your firm’s name in the program, as Gold Sponsor, (5) tickets and parking passes to the event ($75 tax deductible)

Platinum - $250

Your firm’s name in the program as Platinum Sponsor, (10) tickets and parking passes to the event ($100 tax deductible)

NOMINATION, REGISTRATION & Sponsorship Form: http:s://goo.gl/GFEtNW


Please also bring a jar of peanut butter for the Peanut Butter and Justice Challenge!

March 2016 Dayton Bar Briefs


a reminder

The DBA’s Policy on the Use of the DBA Logo I

n 2008, the Dayton Bar Association Board of Trustees adopted a policy regarding the use of its logo by members. For numerous reasons, including the potential perception of DBA endorsement of a member or firm, the DBA does not permit use of its traditional logo (circle/seal version) on member or firm websites, promotional materials, letterheads and other similar media. The DBA recognizes the value of brand recognition and visibility to the Association and its members, through the use of a DBA logo. We are pleased that our members want to utilize the logo and identify themselves with their Association. Therefore to accomplish these goals, a new “Member Logo” was developed and is available for use on member websites (only) in accordance with the terms and restrictions of the following policy.


Member Logo: The DBA has created a special Member Logo for the use by its attorney members only. DBA attorney members may submit an application for authorization to use the DBA Member Logo to the attention of the Executive Director (Note 1.) for Board of Trustee review and approval. The DBA reserves the right to prohibit or withhold for any reason, approval of a request. In addition, the DBA reserves the right to withdraw approval previously granted. Authorization for use of the Member Logo is subject to the following terms and restrictions: 1. All requests for use of the DBA Member logo must be submitted in writing and state the intended use, including the duration of use. 2. Any licensed attorney in good standing, who is a current, voting member of the Association and meets all other qualifications enumerated herein, may use the Member Logo on websites related to that attorney’s practice of law (See Note2.), provided the established process has been followed. 3. The DBA prohibits the use by any member who is under suspension or stayed suspension (i.e. the attorney is suspended for six months stayed as long as the attorney does not commit another violation or other conditions). 4. Any use of the DBA Member Logo must cease immediately, in the event the attorney is no longer a DBA member. 5. All membership categories of the DBA are individual memberships; therefore, the Member Logo may not be used on a law firm’s website, unless all attorneys with the firm members are current DBA members(100% Club). 6. No person is authorized to use the Membership Logo at any time or in any manner which might reasonably be interpreted to imply that the user is a duly-licensed, active, currently-registered attorney in the State of Ohio when such is not the case. 7. The DBA Member Logo may not be used in political advertisements of any kind.

14 Dayton Bar Briefs March 2016

8. No person otherwise eligible to use the Member Logo shall do so in such a way that might reasonably be interpreted to constitute an endorsement, evaluation, certification, or recommendation by the DBA of that person.

9. By granting permission for the use of the member logo, the DBA: does not intend to authorize the use by any person or entity of any of its other logos, trademarks, trade names, copyrights or other identifying materials or to empower any person to act as an agent for the DBA or its affiliates. 10. The DBA will forward an electronic file of the official authorized Member Logo for use by the requesting member. Any change to the authorized Member Logo is strictly prohibited.

11. Any use of the DBA Member Logo on a member’s website must be linked to the DBA website www.daybar.org. (see Note 2.) 12. Use of the Dayton Bar Association’s traditional circle DBA logo is prohibited. Notes: 1. Applications are to be submitted to: Executive Director Dayton Bar Association 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 2. Any use of the Member Logo on a website must be linked to the DBA website, where a disclaimer will appear stating that any use of the Member Logo is not to be construed as endorsement/approval of the attorney or his/her firm. 937.222.7902

federal practice: Changes to the Federal Rules continued from page 11

Electronically Stored Information (Rules 16, 26, 37)

Previously discussed changes to “Rules 16 and 26(f ) now require the parties to reach agreement on the preservation and discovery of ESI in their case management plan and discovery conferences. Amendments to Rule 37(e) effect a further refinement by specifying the consequences if a party fails to observe the generally recognized obligation to preserve ESI in the face of foreseeable litigation.”32 Rule 37(e) applies only to ESI, focuses on curative measures, and authorizes a court to employ measures “no greater than necessary to cure the prejudice.”33 Where there is a failure to take reasonable steps to preserve, the court may levy sanctions34 for spoliation of ESI where there is (1) a duty to preserve,35 (2) a level of culpability—an intent to deprive another party of the information,36 and (3) actual prejudice to the requesting party that cannot be cured through restoration or additional discovery. 37 Practically, Rule 37(e)(2)(A) addresses summary judgment concerns, subsection (B) addresses jury instructions, and subsection (C) is available as the ultimate dismissal sanction. Finally, the amended rule expressly rejects the view of some circuits that negligent loss of ESI allows for adverse-inference instructions.38



“The amendments may not look like a big deal at first glance, but they are.”39 The success of these amendments “will require more than organized educational efforts. It will also require a genuine commitment, by judges and lawyers alike, to ensure that our legal culture reflects the values we all ultimately share.” 40 Chief Justice Roberts says it best: “We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result.”41 Rather, we should “step up to the challenge of making real change”42 to achieve the goal of Rule 1—“the just, speedy, and inexpensive determination of every action and proceeding.”43 By embracing and practicing within the letter and the spirit of the 2015 Amendments to the Civil Rules, we can do just that.

Endnotes (32-43): Roberts, supra note 3, at 8. Fed. R. Civ. P. 37(e)(1). 34 Fed. R. Civ. P. 37(e)(2)(A)-(C). 35 Fed. R. Civ. P. 37(e). 36 Fed. R. Civ. P. 37(e)(2). 32 33

Fed. R. Civ. P. 37(e), 37(e)(1). Fed. R. Civ. P. 37(e)(2) advisory committee’s note. Adverse-inference instructions were developed on the premise that a party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference. Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have. The better rule for the negligent or grossly negligent loss of electronically stored information is to preserve a broad range of measures to cure prejudice caused by its loss, but to limit the most severe measures to instances of intentional loss or destruction. 39 Roberts, supra note 3, at 5. 40 Id. at 10. 41 Id. at 12. 42 Id. at 9. 43 Fed. R. Civ. P. 1. 37 38

March 2016 Dayton Bar Briefs



February Chancery Club Luncheon Recap By Margaret A. Lennen Esq. DBA Editorial Board Freund, Freeze & Arnold, LPA


ean Andrew Strauss, who became Dean of the University of Dayton School of Law in July 2015, was the guest speaker at the Chancery Club Luncheon in February. Dean Strauss talked about the future of the law school and the four ways that UD is working to better prepare its students for life after law school. First, they are changing their approach to teaching law. Dean Strauss called this approach “ALLATT” – Active Legal Learning All the Time. Although the Socratic Method is a familiar and common approach to teaching law students, it only engages one student during each class period. UD is progressing past this approach and incorporating out-of-class and in-class solutions to this problem. The curriculum will include online lectures that students are required to watch outside of class. These lectures will be 5 to 7 minutes long and after the lecture the students will answer multiple choice questions as part of their grade. In class, UD is considering using technology where students can use their smartphones to answer multiple choice questions or participate in polls, which will allow students to stay actively engaged during class.

16 Dayton Bar Briefs March 2016

Second, the law school is focusing on what they teach. The law school will emphasize teaching legal technology and getting students involved in the development of that technology. Third, UD wants to make sure their students add value to the community after they graduate. For this reason there will be a focus on new types of training – access to justice, law enforcement, and compliance. Last, UD recently started a Leadership Honors Program which identifies future lawyer-leaders. Students in this program will participate in roundtables with judges and lawyers to enhance their leadership skills. The program is meant for high-performing students and intended to supplement their law degree with leadership skills. It is encouraging that the law school is progressing with the needs and trends of the current state of the legal profession and preparing their students to be even better lawyers. Contact Chris at calbrektson@daybar.org or www.daybar.org to RSVP for the March 4th, April 15th and/or May 13th Luncheons.


this is YOUR chance to nominate an outstanding member of the community!

Liberty Bell Award


ach May at the Chancery Club, the Dayton Bar Association honors a local citizen who has rendered outstanding service to the community with the Liberty Bell Award. Any individual, other than a lawyer or a judge may be considered for this distinguished award. Professionals working in education, business, the sciences, communications, labor, government, religious professions and youth organizations are eligible for nomination. Recent Liberty Bell Award recipients include Libbey Nicholson (2015), the Executive Director of CARE House, a collaborative effort of the Children’s Hospital, Montgomery County Prosecutor’s Office, Dayton Police Department, Montgomery County Sheriff ’s Office and Montgomery County Job and Family Services, providing multidisciplinary responses to child victims of abuse and neglect. Marsha Froelich received the Liberty Bell Award in 2011 for her lifetime of service to others, particularly through her work at the YWCA and Clothes That Work. In 2013 the DBA honored Chris Albrektson for her tireless and innovative leadership of the Wills for Heroes initiative. Do you know someone in the community who, in the tradition of Libbey Nicholson, Marsha Froelich, Chris Albrektson, and the many other recipients of the Liberty Bell Award, serve our community in a special way? Please consider submitting a nomination to the DBA for the 2016 Liberty Bell Award. Nominations should be submitted by Friday, April 15th. All nominations should include biographical information on the nominee and a statement from the nominator supporting the reasons for the nomination.

By Hon. Mary Kate Hufffman Montgomery Cty Common Pleas Court

liberty bell nomination form I wish to nominate _______________________________ to receive the 2016 Liberty Bell Award. I feel this nominee is deserving of the award for the following reason (Please print or type on a separate sheet; be specific). ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ ________________________________________________ Nominated by ___________________________________ The Liberty Bell Award will be presented during the May 13th Chancery Club Luncheon Please return by April 15th to the DBA offices by mail to the address above or by fax to (937) 222-1308. www.daybar.org

Past Winners Include: 1983 - Mrs. Edward Simmons 1984 - Mrs. LiVina M. Wilson 1985 - Clarence G. Stippy 1986 - Robert William Truxel & David Lants 1987 - George W. Wharton 1988 - Hazel Holmgren 1989 - Susanne Bassani 1990 - Bros. Timothy Sucher, OFM St. Vincent DePaul 1991 - Sally Keyes/Jean Ryan The Learning Tree Farm 1992 - Karen DeMasi, President Five Oaks Neighborhood Improvement Association (FONIA) 1993 - Linda Crabtree - House Maid 1994 - Rev. Philip Hoelle, SM Dakota Center 1995 - Helenka Marculewicz, Coordinator Greater Dayton Volunteer Lawyers Project 1996 - Connie Villelli - Courts 1997 - Montgomery County Courthouse Volunteers 1998 - Lynda Brown Walker, Teacher Ethics Committee 1999 - Judy Dodge - DR Court

2000 - Rev. Robert E. Jones College Hill Community Church 2001 - Carl Day - WDTN 2002 - Marvin Olinsky Five Rivers Metroparks/Riverscape Project 2003 - Tina Patterson - The Other Place 2004 - Linda Kramer - Daybreak 2005 - Barbara Buddendeck, CASA Dir.- Montgomery County CAS 2006- Eleanor Kent - Montgomery County Children Service 2007 – Dr. Robert Walker 2008 – James Stahler 2009 – Sister Maria Stacy 2010 – Ellen McCloskey – Montgomery County Adult Probation 2011 – Marsha Froelich – Clothes at Work 2012 – Deborah Lieberman and Dr. Sherry Gale 2013 – Chris Albrektson, Wills for Heroes Dayton Bar Association 2014 – No award given 2015 – Libby Nicholson – Care House

March 2016 Dayton Bar Briefs



Ohio Municipal County Judges Association Elects Officers M

unicipal and county court Judges took the oath of office on January 25, 2016 after being elected to leadership positions by the statewide membership of the Association of Municipal/County Judges of Ohio. Ohio Supreme Court Chief Justice Maureen O’Connor administered the oath during the group’s annual three-day winter meeting in Dublin, OH. Dayton Municipal Court Judge Carl Sims Henderson was sworn in as First Vice President. The educational portion of the meeting included sessions about judges’ ethical and legal obligations after the U.S. Supreme Court decision on same-sex marriage, helping self-represented litigants while maintaining neutrality, and updates about legislation affecting courts. Judge Henderson has since been sworn in as Presiding Judge of Dayton Municipal Court, replacing Judge John S. Pickrel.

18 Dayton Bar Briefs March 2016



March 2016 Dayton Bar Briefs


dba rising star

Rising above Starsthe Bar Glen R. McMurry Esq. I

had the good fortune of sitting down to lunch with local attorney and “Rising Star of the Bar” Glen McMurry recently. McMurry hails from Pretty Prairie, Kansas, a town of roughly 680, called home by the late Carl “Alfalfa” Switzer of “Little Rascals” fame as well as the state’s 27th Governor and Tenth Circuit Judge Walter Huxman. Before college at Kansas State University, Glen worked for his family business in Wichita, which manufactures agricultural and industrial products. The company also runs an industrial roller facility, which, not surprisingly in Kansas, finds its business mainly in agricultural implements. However, the Midwest eventually came calling. McMurry’s wife, Angela, works for a local Educational Service Center, coordinating science curriculum for area schools throughout Southwest Ohio. The Miami Valley is home for her, Tipp City specifically, which was a major factor for McMurry in deciding to start a career here after law school at the University of Dayton. McMurry began at Bieser, Greer & Landis after graduation and worked for several years there as an associate prior to his current position as a partner at the Troy-based firm of Dungan & LeFevre. His initial years provided a strong foundation for his current practice in business litigation. McMurry speaks highly of the Miami Valley, his practice, and the unique nature of the Dayton legal community. He recalled an encounter during his first jury trial in the common pleas court where, far from the acrimony one might expect from two opposing attorneys in the heat of battle, he was able to have lunch each day of the trial with opposing counsel. The good-natured encouragement and collegiality in those lunches has stuck with McMurry as indicative of the supportive nature of our local bar. When McMurry finds time away from work, he enjoys being a husband, a father to two boys, Jack and Layton, and working out, particularly running. As with many successful runners, while in law school McMurry got active with a running group. In addition to participating in marathons and half marathons, McMurry also reports enjoying participating in Tough Mudder competitions. He also finds time for vintage baseball league complete with funny hats and no gloves (which, perhaps surprisingly, has led to more injuries than the 20 Dayton Bar Briefs March 2016

crawling-through-dirt-while-getting-electrocuted aforementioned Tough Mudders.) McMurry, as his resume might suggest, counts himself among those of us who “have a hard time saying no.” A past member of the Dayton Bar Association Board of Trustees, past Chair of the YLD, as well as a current member of the Certified Grievance Committee, McMurry emphasized the importance of community involvement as a way for younger attorneys to build connections to the areas in which they serve. In addition to being selected as an Ohio Super Lawyers Rising Star since 2012, as well as a Dayton Business Journal 40 under 40 honoree, McMurry serves as a past president of the Dayton chapter of the Federal Bar Association. He’s currently a National Director of the organization and an editor for the group’s publication, The Federal Lawyer. While always gracious in his comments, the keen listener may discern that the Association’s local chapter was at one time slightly more modest. Today the local membership stands at nearly 120 attorneys, an achievement of which McMurry is rightfully proud. He offered several additional pieces of advice for younger attorneys (which may also apply to not-so-young attorneys): Keep writing. As a write-on to the University of Dayton Law Review, McMurry discussed the

importance of consistent writing as a preventive measure for complacency and losing good habits. Along similar lines, he advised not to be too afraid or proud to utter the three words it seems attorneys are taught to shy from: “I don’t know.” Many of the instances he has encountered where attorneys find themselves in trouble could have likely been prevented had they reached out to their peers in the legal community earlier for advice or assistance. Another element of professional development McMurry strongly encouraged was finding mentors whenever and wherever able, through the Dayton Bar Association or other community groups. But a point that McMurry made sure to emphasize when rendering advice for younger attorneys is a simple one: Be confident. The first couple of years out of law school can seem daunting to those new to the practice, but remember that you know more than you think you know.

By Matthew T. Crawford Esq. DBA Editorial Board Doll, Jansen & Ford


dba committees

Grow personally and professionally through committee participation! Log on to view “Interest Groups”


MARCH 2016 COMMITTEE MEETINGS Young Lawyers Division

Wed. March 2 @ Noon

CANCELED - Estate Planning Trust & Probate Law

member info updates ATTORNEYS BERRY, LaToya M. Admitted to Ohio: 6/14, IL 11/06, MO 4/08


Public & Member Services @ The Old Courthouse Fri. March 4 @ 11:00am Small Firm/Solo Office Mon. March 7 @ Noon Juvenile Law @ Juvenile Court

Mon. March 7 @ 4:00pm

Civil Trial Practice & ADR

Tues. March 8 @ Noon

Labor & Employment

Tues. March 8 @ Noon

Diversity Issues

Tues. March 8 @ Noon

Wed. March 9 @ Noon

BROWN, Oliver B. Premier Health Admitted to Ohio: 5/08, NC 5/06

LEE, Jeremy M. SCHMIDT, Katarina

Appellate Court Practice

STRAIN, Steven D. Admitted to Ohio: 11/15

WINKLE, Gabriel M.

Environmental Law

WILMERHALE COLEMAN, Alicia B. Admitted to Ohio: 11/13

Real Property Federal Practice

SEGER, Nicholas D. Admitted to Ohio: 11/13, MI 1/12


Judge Mary Kate Huffman speaks to the Young Lawyers Division about service projects.


Wed. March 9 @ Noon

Domestic Relations Law @ DR Ct. Judge Woods Ct. Rm. Thurs. March 10 @ Noon

MILLER, William F. Admitted to Ohio: 11/14

SOVE, ALMA l. Admitted to Ohio: 5/11

Wed. March 2 @ 4:00pm

Thurs. March 10 @ Noon

Mon. March 14 @ Noon

Tues. March 15 @ Noon

Criminal Law & Its Enforcement Workers Comp’ and Social Security

Wed. March 16 @ Noon

Thurs. March 17 @ Noon

Corporate Counsel @ Bravo Italian Restaurant

Thurs. March 24 @ 4:30pm

March 2016 Dayton Bar Briefs


daybar.org/cle Judge Langer’s 2015 Criminal Law Update (video) #098 March 3 | 9:00-12:15pm | 3.0 hrs M $105 | NM $150 | PP $0 Printed Materials $25 Speaker: Hon. Dennis J. Langer, Montgomery County Common Pleas Ct *Seminar handouts will be provided in electronic format.

DBA Civil Trial Practice Committee presents:

Out of State Subpoenas #101

March 8 | 12:00-1:00pm | 1.0 hr Committee M $25 | M $35 | NM $45 | PP $0 Speaker(s): Lauren Epperley Esq. and Ryan O’Donnell Esq. Join the Civil Trial Committee for an overview as to what states around the U.S. require as to issuing a subpoena. Sample subpoenas and sample motions will be provided, as well as tips for ensuring that the subpoena process proceeds without delay.

2016 DBA Annual Domestic Relations Seminar #105

April 22 | 8:55-4:15pm | 6.0 hrs, incl. 1.0 Prof. Conduct M $215 | NM $300 | PP $30 Printed Materials $25 Sinclair College, Bldg 12 Lunch and Parking included! *Seminar handouts will be provided in electronic format. agenda 8:30am Registration 8:55am Welcome 9:00-10:00am Case Law Update – Gary Gottfried Esq. 10:00-10:45am GAL Prep – Mag. Elaine Stoermer 10:45am BREAK 11:00-12:00pm Vocational Assessments – Ken Manges Esq. 12:00-1:00pm LUNCH 1:00-2:00pm DR Mediation Techniques and Tips – Sasha Blaine Esq. 2:00-3:00pm Professionalism and Ethics – Diane DePascale Esq. 3:00-3:15pm BREAK 3:15-4:15pm Dividing Military Retirement and FERS/CSRS – David Kelley

DBA Estate Planning Trust and Probate presents:

Annual Probate Law Institute #094

March 11 | 8:30-4:30pm | 6.0 hrs incl. 1.0 Prof Conduct M by March 6 $215 | M after March 6 $240 NM by March 6 $300 | NM after March 6 $325 Printed Materials $25 Sinclair College, Bldg. 12 Organizers: Edward M. Smith Esq., Nolan Sprowl & Smith and David D. Brannon Esq., Brannon & Associates *Seminar handouts will be provided in electronic format. *See details on following page!

Professional Conduct: The Top 10 Ethics Mistakes (video) #106

March 30 | 8:00-12:15pm | 3.0 hrs of Prof. Conduct M $105 | NM $150 | PP $0 Speaker(s): John Ruffolo Esq, Mark Tuss Esq. and Denise Platfoot Lacey Esq.

DBA Diversity Committee presents:

2016 Diversity Day Working Together to Promote Access to Justice

April 8 | 8:30-11:45am Seminar | 12:00-1:15pm Lunch | 3.0 hrs *PLEASE NOTE: Separate Registration Codes for Seminar #103; Lunch #104 M Seminar Only $105 | Lunch Only $25 | Both $115 NM Seminar Only $140 | Lunch Only $35 | Both $160 PP $30 Printed Materials $25 Sinclair College, Bldg. 12 Keynote Speaker: David Singleton Esq., Executive Director, Ohio Justice and Policy Center, Cincinnati, OH *Seminar handouts will be provided in electronic format. *See details on page 9!

22 Dayton Bar Briefs March 2016


DBA Estate Planning Trust and Probate Committee presents :

Annual Probate Law Institute #094 Friday, March 11, 2016 8:30-4:30pm 6.0 hrs, incl. 1.0 Prof. Conduct Sinclair Community College, Bldg 12 444 W 3rd St., Dayton, OH 45402 Parking and Lunch included!


8:30-9:30am Ethics on the Edge: Hot Topics; Diminished Capacity – What You Should Know Karen Rubin Esq., Thompson Hine, Cleveland 1.0 hr 9:30-10:30am Elder Financial Abuse Amy L. Kurlansky, Esq., Cincinnati 1.0 hr

registration www.daybar.org/cle 937.222.7902

10:30-10:45am Break 10:45-11:45am Probate Case Law Update Mag. Nancy Miller, Lucas County Probate Court 1.0 hr

Member by March 6: $215 | After March 6: $240 Nonmember by March 6: $300 | After March 6: $325 Passport: $30

11:45-12:45pm Lunch 1:00-2:00pm Montgomery County Probate Court “Hour of Power” Hon. Alice McCollum, Mag. David Farmer and Mag. Joseph Gallagher 1.0 hr 2:00-2:15pm Break 2:15-3:15pm Password Estate Planning and Administration Robert Ellis Esq., 1.0 hr 3:30-4:30pm Pot-Shots at Gun Trusts and Firearms Law Update Sean Culley, Esq., Green & Green, Dayton 1.0 hr

electronic handouts

Seminar handouts will be provided in electronic format. The e-handout will be available on the DBA website three days prior to the seminar for download to your laptop, tablet or other device. Registered attendees will receive an email with instructions to assist in downloading the handout. Please confirm your current email address on the registration form to assure you receive this communication. Also, please bring your fully-charged device to the seminar with the downloaded materials. Free WiFi will be available. A binder with a full set of printed materials may be ordered for an additional $25.


Special Thank you to organizers Edward M. Smith Esq., Nolan Sprowl & Smith and David D. Brannon Esq., Brannon & Associates.


Advanced Estate Planning Attorney

Law Student

Other Legal Professional Print Hand-Outs $25 (Handouts in electronic format.) Name(s) _____________________________________________ Firm/Company ________________________________________ Address ______________________________________________ City, State + Zip________________________________________ Phone _______________________________________________ Supreme Court Registration#_____________________________ E-mail _______________________________________________ (made payable to the Dayton Bar Association) Enclosed is my check in the amount of $____________________ Please charge my credit card the amount of $_______________ Visa



American Express

Card Number _________________________________________ Expiration Date________/________CVV Number____________ Cardholder Signature:___________________________________

March 2016 Dayton Bar Briefs



2015 Amendments to the Federal Rules of Civil Procedure:

A Major Step Toward a Better Civil Justice System


he amendments to the Federal Rules of Civil Procedure (“the rules”) became effective on December 1, 2015. The amendments were the result of years of work by the Advisory Committee on Civil Rules (“Civil Rules Committee”) and the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (“Standing Committee”). The objective of the amendments is to make discovery more efficient and less expensive. One of those actively involved in these rules changes is District Court Judge Jack Zouhary (N.D. Ohio). Judge Zouhary currently serves on the Standing Committee. I discussed the amendments with Judge Zouhary. The thoughts and opinions expressed by Judge Zouhary in this article are his alone and do not represent the thoughts or views of the Standing Committee. Judge Zouhary explained that federal practitioners have become increasingly frustrated and dissatisfied with discovery abuses leading to costly and lengthy dispositions. “There was a feeling that the system wasn’t performing well, and that, therefore, some rules may need to be changed.” This concern resulted in the Committees hosting a conference in 2010 at Duke University. A cross section of lawyers from around the country were invited to participate. According to Judge Zouhary, “a consensus emerged that there were problems, especially with electronic discovery, which was eating-up time and money and making cases impossible.” After several more years of extensive work by the Civil Rules Committee, including research, surveys, and comments from the public, a package of rules was finalized. Judge Zouhary pointed out that the purpose of the changes is not only to make civil litigation more efficient, but also to “increase access.” There is a growing concern

By Sean P. McCormick Esq. YLD Green & Green, Lawyers

with the increase in pro se cases and that some “are not pursuing their cases because they can’t afford the cost to litigate.” At the forefront of the changes is Federal Civil Rule 1 which requires both “the court and parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” However, Judge Zouhary warns that the rule amendments alone will not change federal practice. Meaningful change will require “A change in culture -- in thinking for some folks -- and that includes judges. Part of the change is to ensure that a judge remains active in a case, both early on and throughout, to help make sure discovery stays within the proportionality standard of the new rules, to make sure a firm trial date is set and kept, and to make sure each case proceeds efficiently through the system.” Federal Civil Rule 16(b)(1) was modified to encourage direct discussions between parties, counsel, and the court regarding scheduling. Conferences are encouraged in person, or by phone, or video. Judge Zouhary solicits from counsel and parties their advice on the case schedule, not one arbitrarily imposed. Judge Zouhary prefers in-person scheduling conferences but recognizes “one size does not fit all,” noting that conferences by phone may be perfectly appropriate given the location of the lawyers or the parties, and the nature of the dispute. The timeline for a judge to issue a scheduling order was also shortened. The judge must issue the scheduling order “within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.” Federal Civil Rule 16(b)(2). This change, in conjunction with the change to Rule 4(m) -- reducing time for service of process from 120 days to 90 days -- should reduce delays at the beginning of a lawsuit.

upcoming yld events:

The scope of Rule 26(b)(1) was modified to include information that is “relevant to any party’s claim or defense and proportional to the needs of the case.” The “reasonably calculated to lead” language was eliminated. Judge Zouhary explained that the proportionality language was in the rules before, but is now being emphasized. This change was, in part, a response to the advent of “ESI and that enormous cost which can occur in cases where you have large volumes of electronic discovery.” The change in the rule encourages “everyone to weigh the value of the information sought, how easy is it to get, and how much is it going to cost. Proportionality means, in my view, that judges and lawyers ought to be looking at discovery in a tiered approach.” At every stage of discovery, lawyers should be narrowing and refining their discovery requests, thereby avoiding unnecessary delay and expense. Rule 34(b)(2)(B) now requires that written objections be stated with “specificity . . . including the reasons.” No more blanket objections. In addition, an objection must state whether responsive materials are being withheld on the basis of that objection. Judge Zouhary instructed that there should be “specificity and openness” to document production, and “that was not always being achieved under the old system.” Rule 16(b)(3)(B), 26(d)(2), 26(f ), and 55 were revised too. Significant changes were also made to Rule 37(e), addressing sanctions for failing to preserve ESI. For a more detailed discussion on changes to these and other rules, see Andrew J. Kennedy, “Amended Federal Rules: Streamlining Litigation,” Litigation News, Vol. 41, No. 2, at 11–13.

Thurs. April 7, 2016 @ Brixx Ice Co. | Get Behind the Bar YLD v. Generation Dayton Fri. May 6, 2016 @ Brixx Ice Co. | Get Behind the Bar YLD v. Mature Lawyers Fri. May 27, 2016 @ Brixx Ice Co. | 5k for the Kids Race

24 Dayton Bar Briefs March 2016



Peanut Butter and JUSTICE

By Bonnie Beaman Rice Bar Hunger Initiative

Coolidge Wall Rises to the Challenge If you attended the Bar Association’s annual Holiday Luncheon, you will most certainly recall the inspirational message from Ambassador Tony Hall about addressing poverty in our community. The essence of his remarks stressed the importance of creating change by ‘simply acting upon the problem which is in front of you.’ The problem of poverty in our community cannot be overstated. According to Ambassador Hall, the city of Dayton ranks 4th in the country in terms of the number of “food insecure” households. With so many children experiencing hunger, the collection of peanut butter, a nutrition-rich food fed to starving children around the globe, makes perfect sense. Spoken from the heart and backed by his lifetime devotion to helping the hungry, Ambassador Hall’s passion greatly impacted four of our colleagues from Coolidge Wall. Deciding that it was not enough to be moved by his message, but it was time to act, David Pierce, Jennifer Roberts, Bud Seall and Patricia Friesinger returned to their law firm that very day and initiated an in-house competition.


Over a thirteen day period their staff and lawyers collected

800 pounds of peanut butter!

And now they are issuing a challenge to the other law firms in the community: “We challenge the other law firms to reach or exceed our results!”

Please, act today on accepting their challenge!


March 2016 Dayton Bar Briefs



Free Speech

or Disrespectful to the Court? By Hon. Mary Kate Hufffman Montgomery Cty Common Pleas Court


ave you ever arrived in court, at an administrative hearing, or a mediation, only to find that your client appears to have taken a lesson in appropriate attire from an episode of “The Jersey Shore” or a bad “How People Dress at Walmart” video? Most lawyers and judges have experienced a client or litigant whose choices in personal appearance have compromised the client’s initial impression on the court, jury or other decision-maker. While we all want to believe that others will look beyond personal appearance to see us for who we really are, the fact that we are often judged by our personal appearance is undeniable. As human beings we make snap judgments based upon visual stimuli. As attorneys, we are well-aware of the importance of appropriate dress and decorum in the courtroom. I did a bit of anecdotal research around the courthouse recently to discover some of the courtroom fashion faux pas experienced locally. Judge Tucker once had a defendant in court on a felony charge of non-support of dependents. Perhaps in an effort to exhibit his love for his children that was not evidenced in his financial support, the defendant sported a T-shirt labeling him the “World’s Greatest Dad.” A local public defender once represented a young woman who appeared in court wearing what the attorney described as “booty shorts” and a tank top where any form of undergarment was noticeably absent. A judge recalled a defendant on trial for arson wearing a “flame red” suit. Judges and lawyers recounted for me observing in the courtroom witnesses or parties wearing a white tuxedo (complete with tails), pajamas and fuzzy slippers, skirts the length of a handkerchief, and pants low enough to leave nothing to the imagination. Parties, witnesses and spectators have appeared in court sporting piercings in the lip, nose, eyebrow, and cheek, visible tattoos ranging from gang symbols to cartoon characters, hats advertising beer, whiskey and favorite sports teams, t-shirts emblazoned with vulgarity and threatening language as various drugs and paraphernalia, and wigs ranging from a hot pink spiked look to a black beehive with blue polka dots (yes, polka dots). Body parts left appropriately bare in public only on a beach are frequently seen. The personal appearance choices of those with business in the court perhaps should not be described as faux pas, but instead, decisions that disrespect or detract from the dignity of the court. Contempt findings and other sanctions imposed for offensive attire have been upheld where the court determines that the offender has engaged in “insolent behavior that, if unaddressed, diminished” 1 the court’s authority. Courts are authorized to removing litigants or spectators until inappropriate garments are removed or properly covered. 2 Some judges ignore the inappropriate style choices in an effort to avoid conflict. Other judges address courtroom attire only when it rises to the level of extreme outrageousness. Still others find 26 Dayton Bar Briefs March 2016

little tolerance for indignant dress. One judge in Pennsylvania has posted a sign outside his courtroom warning that “Pajamas are not appropriate attire for District Court.” Judges may require a party to return on another date (thereby incurring more attorney fees) appropriately dressed or may simply ask the offender to remove an inappropriate accoutrement, to step into the hall and hike up their pants or turn their vulgar t-shirt inside out. Contemnors have challenged the authority of the court to impose sanctions for clothing and appearance choices, particularly on First Amendment grounds. For instance, a civil litigant in the Civil Court of the City of New York was found in contempt by the trial judge when he refused to remove a baseball hat displaying the phrase, “Operation Desert Storm.” In a federal suit challenging the contempt finding, the litigant claimed he had a First Amendment right to wear attire of his choice, even in a courtroom. The federal district judge disagreed, explaining, “a courtroom is not a public forum for the expression of ideas.”3 First Amendment arguments, though, have proven successful against a court’s policies on courtroom dress when the party or witness is attired in a manner consistent with his or her religious practices.4 The appearance of trial participants or spectators does not only risk a contempt finding, but may result in a mistrial or reversal of judgment. Criminal convictions have been reversed as a result of prejudicial slogans and language emblazoned on t-shirts and other garments. Family members and friends donned in memorial t-shirts are frequent distractions during murder trials. A Florida court recently reversed the conviction of a defendant charged with sexual offenses against a child, when spectators wore jackets embroidered with “Bikers Against Child Abuse” throughout the trial. The court determined that the message displayed by the bikers demonstrated inherent prejudice resulting from an unacceptable risk of outside influence on the jurors.5 Jurors are not above judicial scrutiny of courtroom dress. A judge in North Carolina recently admonished several jurors and then

continued on page 27 937.222.7902

from the judges desk: Free Speech or Disrespectful to the Court?


continued from page 26

deferred their jury service for wearing shorts or tank tops to court. The judge required the jurors to appear for future jury service in appropriate courtroom attire.6 What then, should a lawyer suggest to a client about appropriate courtroom attire? Anecdotal research, again, reveals the following suggested appearance standards for litigants, witnesses, spectators and jurors: Know the court’s dress code – if there is a hot-button clothing or appearance issue for the judge, respect it. Wear comfortable, fitted and clean clothing (just not too tight!). Cover offensive tattoos and remove visible piercings other than a reasonable number of earrings. Do not underdress. No beach clothes – this is not South Beach! No flip flops, short shorts, tank tops or clothing that reveals the midriff or too much cleavage. Do not overdress. “My Cousin Vinny” wore a red valor tuxedo. It didn’t work in Mississippi and it won’t work here. No hats – it is not cold in the courtroom, you don’t need a hat. If the hat is worn to cover a bad hair day, opt for the bad hairdo, and avoid the contempt citation. Take off the shades – there are no blinding flash bulbs in the courtroom and unless you have a medical condition requiring you were sunglasses, take them off. Avoid any attire identifying a personal association or belief – no gang attire, clothing supporting alcohol or illicit drug use, political buttons or offensive slogans. Jerseys and other sports apparel are not appropriate courtroom attire. Ever. The judge might be an Ohio State fan but the jersey is never appropriate.


2. 3. 4. 5.

9. Never, ever, ever appear in court clothed Endnotes:

State v. Pelletier, 786 A.2d 609 (2001). The defendant entered the courtroom wearing a T-shirt bragging of his sexual prowess in terms too graphic and vulgar for this publication. 2 People v. Watts, 66 Ill. App. 3d 971 (1978). 3 Bank v. Katz, United States District Court, Eastern District of New York, 08-CV-1033 (Sept. 24, 2009), 2009 U.S. Dist. LEXIS 87929. 4 See State v. Allen, 113 Ore. App. 306 (1992). 5 Long v. State, 151 So. 3d 498 (2014). 6 State v. Brooks, 2010 N.C. App. Lexis 1118 (2010).



FREE! Lunch & Learn Session Tuesday, March 22, 2016 | 11:30-1:00pm Sinclair Community College Bldg #12



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March 2016 Dayton Bar Briefs



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Sign up for DaytonLawyerFinder.org today

-5 page online profile -2 areas of law -only $99/month -worldwide online presence -for<1billable hr/month

Find Out What Fastcase is All About!

For more information contact:

Bill Wheeler, bwheeler@daybar.org Chris Albrektson, calbrektson@daybar.org

Fastcase research and free online webinars:


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

28 Dayton Bar Briefs March 2016

more details on next page


FREE Help for Your Practice Thru the DBA & Fastcase Unlimited FREE legal research for DBA members.Log in at www.daybar.org

Fastcase reasearch and free online webinars available: www.daybar.org

Fastcase Tips:

Boycott endless scrolling! Make legal research faster + smarter with Fastcase’s analytics and Interactive Timeline. The legal corpus is so large that is inconceivable to search it with anything less than the most advanced tools. The Dayton Bar provides you with state-of-theart tools for free via Fastcase. With Fastcase’s “Interactive Timeline” feature, you can see - at a glance- how relevant each case is to you search, how many times it was cited by other cases in your search, and even which cases outside of your search were cited. With this member benefit, there is no more need for endless scrolling - important cases are obvious right away.

Don’t pay for all that printing. With your Fastcase membership through the Dayton Bar you can print for free! Dramatically cut down your printing time (and cost) with batch printing: -Just move the documents you want to the que, review them, and press print. -No charge. No URL. No ads. Other services charge upwards of $20 to print cases. -These fees come straight out of your bottom line, your client’s wallet, or both. Make the smart (and affordable) choice: free printing is just a click away.

GET STARTED at www.daybar.org | Use your DBA login and password to access Fastcase Don’t know your login? Contact Lori (lluebben@daybar.org) or Chris (calbrektson@daybar.org) at 937.222.7902 www.daybar.org

March 2016 Dayton Bar Briefs



The next Wills for Heroes event will be held: Saturday, April 2, 2016 | DBA Offices Training: 8:30am Appointments: 10:00-3:00pm The DBA is pleased to announce that area emergency personnel can obtain free wills and other estate planning documents at the next Wills for Heroes event on Saturday, April 2, 2016. For more information or to sign up please contact: Chris Albrektson at 222.7902 or calbrektson@daybar.org

OUR R O F R NTEE EVENTS! U L O . V MING or details O C P U hris f C t c a Cont

This event is sponsored by the DBA, DBA Foundation and LexisNexis.

DBA Public & Member Services presents:

HAPPY HOUR Thursday, April 14h The Wine Gallery 5 W. Monument Ave., Dayton, OH 45409 5:00-7:00pm Appetizers will be provided. No Need to RSVP Hope to See YOU There!

30 Dayton Bar Briefs March 2016


The Dayton Bar Association

Celebration of Life Memorial Luncheon

Wednesday, May 25, 2016 Sinclair Community College, Bldg 12 11:30am–Doors Open | Noon–Lunch | 12:30pm–Program Cost: $30.00

To celebrate the lives of our fellow members who have passed on since Spring 2015.

Spero Alex Esq.**

Winnfield E. Kinney III Esq.

Gwendolyn D. Coles Esq.

Hon. Robert L. Nolan

William E. Cromer Esq.

Hon. Walter A. Porter

Hon. Jack Duncan**

Sandra Rakestraw-Hobson Esq.**

Prof. Dennis Greene

William I. Shaman Esq.**

Ret. Colonel Carroll E. Hunt

Ruth A. Slone Esq.**

Lillian M. Kern Esq.**

Howard N. Thiele Jr. Esq.**

William A. Krebs Esq.

Dennis M. Whalen Esq.** Steven E. Yuhas Esq. **Non DBA Member

Celebration of Life Memorial Luncheon • Wednesday, May 25, 2016 To:

DAYTON BAR ASSOCIATION 600 Performance Place 109 N. Main St. Dayton OH 45402-1129

Please reserve _____ place(s) at $30.00 each.............. Total $______ Table (8)______at $240.00............................................ Total $______ -Please enclose a list of those attending-

Phone: 937.222.7902 Fax: 937.222.1308 NAME

Check # Enclosed: Charge my: VISA MC AmEx Discover

(circle one)





Signature PHONE www.daybar.org

(as shown on credit card) March 2016 Dayton Bar Briefs


law-related organizations Dayton Bar Association Foundation

The DBA Foundation Board of Trustees


The 1,700 members of the Dayton Bar Association for their support of the Foundation Which provides grant funding to worthy law-related organizations and projects in our community. As the philanthropic arm of the local legal community, the Foundation is dedicated to supporting those organizations who directly assist the disadvantaged gain access to our justice system. In so doing, the community is served and the public perception of the legal profession is improved. 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. 32 Dayton Bar Briefs March 2016


Thurgood Marshall Law Society How to Contact TMLS: President-Elect Robert Gresham 937-222-7477 rgresham@ yourohiolegalhelp.com

Vice-President Gerald Parker 937-223-8888 gparker@dgmslaw.com

Secretary Natasha Newberry 937-225-4253 newberryn@mcohio.org

Treasurer Ciara Parks 937-225-5768 parksc@mcohio.org

Send any email questions or concerns regarding TMLS to: thurgoodmarshalllawsocietydayton@yahoo.com

JOIN US Groups: Thurgood Marshall Law SocietyDayton


LIKE US Thurgood Marshall Law SocietyDayton

University of Dayton School of Law


March 2016 Dayton Bar Briefs


members on the move





WEPRIN Congratulations to Judge Anthony Capizzi who now serves as Secretary of the Board of Trustees at Ohio Judicial College. Gottschlich & Portune, LLP has promoted Martina Dillon to partner. Martina has been with the firm since 2005. Joe Gibson, Chairman of the DBA Workers’ Compensation/Social Security Committee was recently re-elected as President of Tipp City Council to a second 2-year term. In the biennial organizational meeting of Tipp City Council in early January, he was unanimously re-elected to Council President by his fellow members of City Council. Under the City’s Charter, the Council President sets the agenda, presides over meetings, and serves as the City’s Vice Mayor. He has been on Council for 6 years. Pickrel, Schaeffer and Ebeling Co., is pleased to announce that Matthew C. Sorg has become a Shareholder with the Firm and James I. Weprin has joined the firm. Matt has been with the firm for

34 Dayton Bar Briefs March 2016

8 years and he has practiced law over 20 years. He spends the majority of his time offering legal services in all types of domestic relations matters and provides other business services including helping small businesses with formation, growth strategies, and purchasing and selling agreements. In a commercial foreclosure situation, Matt is a court appointed Receiver throughout Southern Ohio. James brings nearly 50 years of experience representing business owners, buyers and sellers, investors, and entrepreneurs in a wide variety of Business and Real Estate matters. He also works with business owners and individuals regarding business succession planning including personal Estate plans and probate matters. The Law Firm of Gounaris Abboud Co. LPA are proud to announce that Nick Gounaris and Tony Abboud have been selected for the inclusion in the 2016 Ohio Super Lawyers Listing under the Criminal Defense practice area. The primary focus of the law firm is concentrated in Criminal Defense in both State and Federal Courts as well as OVI defense. Nine partners from Bieser, Greer & Landis, LLP were included in the 2016 Ohio Super Lawyers list, having been nominated by their peers in the following categories: Business Litigation, General Litigation, Family Law, Medical Malpractice and Personal Injury Defense, and White Collar Criminal Defense. The nine attorneys named to the Ohio Super Lawyers list include: James P. Fleisher, David C. Greer, James H. Greer, John F. Haviland, Howard P. Krisher, II, Joseph C. Oehlers, Charles F. Shane, and David P. Williamson. Firm partner Jennifer L. Brogan was named as a 2016 Ohio Rising Star. David Greer, whose primary focus is Business Litigation, was listed as one of the top 10 lawyers in Ohio, as well as a top 50 lawyer in Cincinnati. Greer, Williamson and Krisher have each been named to the Super Lawyers list for more than ten years. The firm has previously been recognized by Ohio Super Lawyers Business Edition as the Top Medium Size Litigation Law Firm in Ohio.

Annual Winter Conference of the Ohio Township Association (OTA) in Columbus. Christopher Conard and Amy Blankenship, discussed “The Top 10 Things a Board/ Commission Should Never Do.” Conard and Blankenship provided tips and suggestions to help township officials avoid common pitfalls. Conard serves as Chair of the firm’s Municipal Law Dept. He and Blankenship provide general counsel to local governments on a variety of topics, such as employment matters, annexation, land use and zoning. The Ohio Township Association (OTA) is a statewide organization dedicated to promoting and preserving township government. Dinsmore & Shohl top the Bond Buyer Bond and Underwriter’s Counsel rankings - number one in Kentucky and Pennsylvania. The firm also has been honored for its participation in the Leadership Council on Legal Diversity for our involvement with the organization. Faruki Ireland & Cox P.L.L. has again been named one of the few “Highly Recommended Litigation Firms in Ohio” by Benchmark Litigation. “Benchmark Litigation recognizes that there is an elite group of individuals who have been nominated specifically for their acumen with bench and jury trials,” Says Michael Rafalowich, Editor for Benchmark Litigation.

advertiser index Adam Krumholz Esq............................28 ComDoc Inc............................................18 Dayton Commercial Reality................28 Eikenbary Trust.......................................7 Ferneding Insurance............................18 J. Steve Justice - Mediations...............25 Johnson Investment Council..............19 Law Enforcement Experts...................27 LCNB Bank.............................................25 National Processing Solutions............16 OBLIC.......................................back cover R.L. Emmons & Associates..................27

Two attorneys with Coolidge Wall Co., L.P.A. were presenters at the 2016

Rogers McNay Insurance.....................27 Trisha M. Duff - Mediations.................15 937.222.7902



Coolidge Wall Co., LPA, a full service Dayton firm since 1853, seeks applicants with 4-10 years of legal experience for an associate position in our corporate law department. The ideal candidate will demonstrate high academic achievement, excellent writing and speaking skills, and a strong work ethic. The candidate should demonstrate appropriate substantive knowledge of and interest in general corporate law, mergers and acquisitions, and real estate transactions. Please send resume (with GPA and class rank), law school transcript, references and writing sample to: Daniel J. Gentry Esq., Professional Development Committee Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to gentry@coollaw.com, with “Associate Application” in the subject line.


Coolidge Wall Co., L.P.A., a full service Dayton firm since 1853, seeks a highly motivated and qualified paralegal to work within our corporate and real estate departments. The ideal candidate will have excellent academic credentials, 4+ years of experience, and be knowledgeable regarding all aspects of corporate and real estate practice, including purchase and sale transactions. Please send resume, school transcript, references and any letters of recommendation to: Michelle D. Bach Esq., Professional Development Chair, Coolidge Wall Co., LPA, 33 W. First Street, Suite 200, Dayton, OH 45402-1289 or by email to bach@coollaw.com. DUBLIN, OHIO Dublin firm seeks attorney with 2–5 years’ experience in tax (LLM preferred), estate planning, and business. Litigation and accounting experience a plus. Attorney must be serious about client service, hardworking, and attentive to detail. Submit resume, salary, and benefit requirements to: Zaino Law Group, 5775 Perimeter Drive, Ste. 275, Dublin, OH 43017 or zlg@zainolawgroup.com www.daybar.org

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) 572-3185 judgewolff@woh.rr.com MEDIATION Helping Attorneys & their clients settle disputes since 1995 JOHN M. MEAGHER, Judge (Retired) 2305 Far Hills Ave., Suite 203 Dayton, OH 45419 (937) 604-4840 jmeagher2@gmail.com MEDIATIONS Thomas E. “Ted” Jenks, Esq. (937) 294-0213 (937) 760-8819

Medical Review

Nearly 20 years Insurance Experience Sandy Lacey, RN 937.503.3973 medrevw@hotmail.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) 2241427.


Office space available with two other attorneys in the nice office building on Far Hills Ave. business area in OakwoodKettering. Space can be leased for full use or occasional use. Rent adjusted for occasional use. Call Mike Eckhart at (937) 298-6628.

OFFICE SPACE 101Southmoor Circle, NW (Stroop and Far Hills). Three offices available at $700/ month/office. Furnished or unfurnished. Take one two or three offices. Rent includes all utilities, remodeled full size kitchen, two completely remodeled baths, secretarial area, reception area, conference room, dry basement file storage and Dayton Racquet Club athletic membership. Email dave@ SchmidtDayton.com for info and pics.

mark your


Upcoming Chancery Club Luncheon(s): Fri.(s) March 4, April 15, May 13 Doors will open at 11:30am SEATING IS LIMITED! RSVP: calbrektson@daybar.org Wills for Heroes Sat. April 2 | DBA Offices Training: 8:30am ; Appts. 10:00-3:00pm

YLD Events: Get Behind the Bar YLD v. Generation Dayton Thurs. April 7 | Brixx Ice Co. | 5:30pm Public & Member Services Happy Hour Thurs. April 14 | Wine Gallery, 5 W. Monument Ave. | 5:00pm Law Day Fri. May 6 | Location & Time TBA

YLD Events: Get Behind the Bar YLD v. Mature Lawyers Fri. May 6 | Brixx Ice Co. | 5:30pm Celebration of Life Memorial Luncheon Wed. May 25 | Sinclair College | Doors open at 11:30am 5K for the Kids Race Fri. May 27 | Brixx Ice Co. | 7:00pm Annual Meeting Fri. June 10 | Sinclair College | Doors open at 6:00pm Dayton Dragons Game Wed. July 27 | Fifth Third Field | 6:00pm *Tickets distributed July 20 at 8:00am

March 2016 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

Dayton Bar Briefs March 2016  

Dayton Bar Briefs March 2016