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The Magazine of the Dayton Bar Association | NOVEMBER 2016 | Vol. 66, No. 3


Bar Briefs The Dayton Bar Association 24th Annual Bench Bar Conference presents:

in a Shrinking World Friday, November 18, 2016 Sinclair Community College, Bldg. 12 8:25-3:45pm



Bar Briefs

November 2016 | Vol. 66, No. 3

Dayton Bar Association Board of Trustees 2016 – 2017

Susan D. Solle President

Brian L. Wildermuth First Vice President

David P. Pierce

Second Vice President

FEATURES 3 TRUSTEE’S MESSAGE Mindfulness as Self-Care for Lawyers By Angelina N. Jackson Esq. 4


By Mary KC Soter Esq.



Barbara J. Doseck Jonathon L. Beck







"The Rule of Law in a Shrinking World" | Fri. November 18th | Sinclair College



Lynnette Dinkler Member–at–Large

Angelina N. Jackson Member–at–Large

Hon. Timothy N. O’Connell Member–at–Large

Merle F. Wilberding Member–at–Large

Kermit F. Lowery

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

William B. Wheeler, ex officio Executive Director

DAYTON BAR BRIEFS is published by the Dayton Bar Association, 600 Performance Place, 109 N. Main St., Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the fifth day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through July. Paid subscription: $30 / year


By David D. Brannon Esq.

By Bill Wheeler, DBA Executive Dir.

Justice on Trial: Stories of Race and Law

By Susan Newhart Elliott, Assoc. Prof. UDSL Dir. of Zimmerman Law Library


By Hon. Richard S. Skelton


Fri. January 20, 2017 | Montgomery County Courts



Seating is Limited YOU must RSVP: calbrektson@daybar.org

Thurs. November 3, 2016 | The Old Courthouse | Doors open at 11:30am


Library of Congress ISSN #0415–0945


William B. Wheeler, Executive Director Shayla M. Eggleton, Publications Manager Phone: 937.222.7902 Fax: 937.222.1308

Wed. November 16, 2016 | DBA Offices | 5:00-7:00pm | TOPIC: Femme Fatale – War Stories from the Bar



The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the Dayton Bar Association.


Wrongful Death and Survival Actions in Probate Court: Don't Get Caught in a Spider Web

Dayton Bar Briefs November 2016

Wills for Vets-----> Sat. November 5, 2016 | Dayton VA Medical Center

Wills for Heroes--->Sat. November 12, 2016 | Dayton Firefighters Activity Center



Mindfulness as Self-Care for Lawyers

By Angelina N. Jackson Esq. Member-at-Large Montgomery County Public Defenders Office

Check out some of the following resources & apps to look to for help in incorporating mindfulness into your life. My personal favorite for daily inspiration is http://www.tinybuddha.com. Apps: Calm Insight Buddhify Smiling Mind (designed for kids!)


he Trustees’ message from Susan Solle in February of 2016 included this passage: “Life can be difficult. Things don’t always go our way, people in our life don’t always act the way we believe they should. As we all know, lawyers’ lives in particular can be brutal. The stress created by unreasonable clients, difficult opposing counsel, and judges who may not decide cases the way we believe they should…can be overwhelming. It would be easy to decide to be unhappy, bitter, angry.” Susan went on to encourage all of us to “choose to be happy.” It is a piece of advice that I believe in wholeheartedly. Thinking about Susan’s words inspired me to write about the concept of self-care for lawyers. I agree that happiness is indeed a choice, but I believe that it cannot come without taking affirmative steps to address the factors that prevent us from truly enjoying our practice and our lives. Because our professional lives can be so demanding, so overwhelming, and so consuming, it is too easy to place self-care at the bottom of the list. It is a well-known fact that the rates of depression, anxiety, and substance abuse in our profession are higher than those of almost any other profession. Most of us do not get the things we need to keep us calm, balanced, and healthy amidst the storm that is the practice of lawi.e., adequate sleep, healthy eating, exercise, quality time with family and friends, and nurturing the spirit through alone time and self-reflection. I am a single mother of two children under the age of ten. I have held that status for the last seven years while maintaining a full-time litigation practice. It can be exhausting and overwhelming in a way that I do not often share in private conversations, let alone in public forums. I once saw it as a sign of weakness to admit that there are times when I feel crushed under the pressure, that I sometimes feel hopeless, that I wonder whether I am doing a good enough job for my children and my clients. I was reluctant to discuss these feelings because I felt I would be judged, with every lackluster professional moment somehow attributed to my personal circumstances. On top of this, in my position I am inundated with poverty, despair, racism, and injustice on a daily basis. The perfect storm began to take a serious toll on my emotional well-being, to say the least. After losing a case that deeply affected me, I started to think about how to deal with the pressures of my life in a holistic way. During the www.daybar.org

Websites: www.mindful.org www.mindfulnessforlawyers.com www.themindfullawyer.com

past several months, I have spent considerable time reading and educating myself about the concept of self-care. I now understand that self-care is not a luxury or an indulgence, but rather an absolute necessity if I am to continue being the kind of lawyer I want to be. For me, that means practicing law with passion, creativity, fearlessness, a clear head, a sense of calm, and a feeling of satisfaction that is not outcome-dependent. So what does it all mean? For me, it began by getting comfortable with saying “no.” No to commitments that would result in me being regularly unable to get enough rest, unable to prepare and consume healthy meals, unable to engage in regular physical activity, and unable to spend time away from work, with friends and family or simply recharging in solitude. And I had to stop worrying about what anyone would think when I told them, no, I just cannot do it. But saying no to certain commitments alone was not enough to address the stressors of my personal and professional lives. In my quest for peace, happiness, and stress relief, I recently began to explore the practice of mindfulness. Mindfulness “is a state of active, open attention on the present. When you’re mindful, you observe your thoughts and feelings from a distance, without judging them good or bad. Instead of letting your life pass you by, mindfulness means living in the moment and awakening to experience.”1 Mindfulness is, “at its essence, the basic human ability to be fully present, aware of what we are doing, and not overly reactive or overwhelmed by what is going on around us.”2 Practicing mindfulness has been shown to bring about long-term changes in mood and levels of happiness and well-being. Scientific studies have shown that mindfulness not only prevents depression, but that it also positively affects the brain patterns underlying anxiety, stress, depression, and irritability.3

Endnotes: http://www.psychologytoday.com http://www.mindful.com. 3 “What is mindfulness?” http://www.franticworld.com. 1 2

November 2016 Dayton Bar Briefs



Carol J. Holm Esq.


eminars on how to deal with stress when practicing law recommend physical activity like yoga. Carol J. Holm found her own way many years ago when she began ballroom dancing. She has competed in many places, including New York and Chicago. Carol was born in Clinton, Iowa. During her collegiate studies, Carol decided to pursue a double major in Political Science and Elementary Education. She taught sixth and seventh grades after earning her B. A. degree from the University of Iowa. From there she planned to become a Social Studies teacher. At that time the Social Studies teacher was also the coach for football, or basketball and the time eventually came around when Carol was asked what she was going to coach. Carol did graduate work at California State University at Los Angeles, and received her J. D. degree from the University of Dayton. One of the stories from her early days in law comes from a time when she ran into Lloyd O’Hara at the court, and he said, “What are you doing here?” She told him that she took the money she received when Lloyd represented her in her divorce and invested it wisely by going to law school. (Some of us might question whether that was using it wisely.) Carol has been practicing law in the Dayton area since 1982. She was an Assistant Prosecutor for Montgomery County for 10 years. She was Special Counsel for the Ohio Attorney General. She has been practicing in the same office as Konrad Kuczak


Dayton Bar Briefs November 2016

for many years. Some of us might believe that she should receive the “Red Badge of Courage.” Her practice has focused on Family and Juvenile Law, Education Law, Administrative Law, Probate and Criminal Law. She has served on three different school boards. She has always been active in the community. She was on the governmental boards in Washington Township, West Carrollton and now in Oakwood. She is active in her church and serves on Vestry. She is a strong supporter of the Dayton Opera. Her hobbies include reading about 200 books a year, generally in the areas of public policy, economics, history, psychology, medicine, and education. She was crippled as a child and from there her love with reading grew. Carol was reading on a high school and collegiate level all while in junior high. Her role model was her Father, who was a dentist. He had her serve as his receptionist on Saturdays. Carol learned how to be a professional, by hands on experience helping her father with his clients and gave pro bono to the community. Unfortunately, he died when she had just graduated from his alma

mater, the University of Iowa. She has his photos in her office to inspire her. She worked her way through law school while raising two children, Chris, who would help reshelve books for her in the law school library, and Elizabeth, who would help quiz her on probate and family law. When she graduated, she gave a party to honor her two kids who had helped her get through law school. Carol spends a lot of time advocating for children, especially handicapped. When people ask her why she went to law school, she frequently says, “I went to learn how to protect my son.” He is handicapped but is now much better and is carrying on the tradition of advocating for the less fortunate. Carol loves the practice of law – the challenges and intellectual stimulation, the interaction with her clients and their messy problems that she tries to extricate them from. She tries to educate them regarding what is happening to them and to empower them to do better next time. continued on page 5


BARRISTER OF THE MONTH: Carol J. Holm Esq. continued from page 4

She has a passion for everything French and travels to the continent frequently. When asked if she had any advice for new members of the Bar, she said, “Be honest, be diligent, don’t play games, be respectful to everybody, other attorneys, clients, people you deal with at the courthouse, secretaries. She said that when she started practice and was one of the few female attorneys, “you had to be above reproach”. She passed along the following quotation: “Each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest wall of oppression and resistance.” Robert Kennedy in South Africa, quoted by Martin Sheen.

By Mary K.C. Soter Esq. DBA Editorial Board Soter Law Office


November 2016 Dayton Bar Briefs



Wrongful Death and Survival Actions in Probate Court: Don’t Get Caught in a Spider Web

By David D. Brannon Esq. Vice-Chair: Estate Planning Trust & Probate Brannon & Associates


aws are spider webs through which the big flies pass “L “Land the little ones get caught.” 1

Personal injury lawyers have a difficult job. Attempting to obtain a recovery on behalf of an injured or deceased client is hard enough. But a PI attorney must be aware of additional spider webs when jurisdiction of the probate court is triggered, regarding wrongful death and survival actions. When dealing with minors, incompetents, or the deceased, personal injury lawyers must open an estate or guardianship to lawfully pursue a recovery related to a personal injury, survival and/or wrongful death matter. This article identifies only a few of the many cobwebs that may ensnare a PI attorney simply trying to complete a wrongful death or survival matter.

The Claims are Different

Distinguishing between a wrongful death and survival claim is significant. At its core, a wrongful death claim belongs exclusively to a decedent’s beneficiaries under R.C. 2125.02 to recover for pecuniary and emotional loss suffered by the spouse, children, parents and other next of kin.2 A survival claim is merely a civil action the decedent could have brought for personal injuries suffered prior to death and is primarily for the benefit of the estate.3 From my experience, a defendant typically does not specifically designate what portion of any recovery is for the wrongful death cause of action as opposed to the survival cause of action, so long as all claims are dismissed upon settlement, with prejudice. Also, the PI attorney typically is indifferent whether counsel fees are paid from the survival “pot” or wrongful death “pot,” so long as attorney fees remain unaffected and approved by the probate court. Indifference by the PI attorney here is a trap because the allocation may have extensive implications to family and next of kin.

Real Party in Interest and Opening the Estate

Although there are nuances between the types of matters opened in probate court, in general, notice to interested parties and authority to pursue the PI claim is unavoidable. It is astonishing how quickly a potentially lucrative PI case may be lost even before a demand is sent to an insurance carrier’s insured. Ask: who is the client, and do I have authority? Regarding who may participate in receiving proceeds from wrongful death actions, R.C. 2125.02(A)(1) states “[A] civil action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of the decedent.” As for survival matters, surviving spouses, children, next of kin, legatees and devisees on the Standard Probate Form 1.0 may also be interested in proceeds collected therefrom. The point is that a client’s recovery is vastly impacted whether the proceeds are deemed a survival or wrongful death recovery. The immediate concern for any PI attorney should be to identify the aggrieved party and ensure there is proper legal authority for 6

Dayton Bar Briefs November 2016

pursuing the underlying PI claim. Special care should be taken if a minor or adult incompetent is involved. A personal representative in the context of a wrongful death matter is an administrator or executor.4 If there is a last will and testament naming an executor, the inquiry may be over regarding authority so long as the executor is actually appointed by the probate court over the estate. If the estate is intestate or it is unclear who would actually recover under a wrongful death matter, then there may be a race to be appointed fiduciary. After all, it is the fiduciary that chooses the attorney and directs the course of litigation in wrongful death and survival matters.5 Moreover, the fiduciary also enters into a contingent fee contract which is of the utmost concern to the PI attorney.6 Although it is hard to image, it is possible that PI lawyers compete for the probate case (and the contingent fee) by filing competing applications for their client to be appointed fiduciary over an estate. Especially likely in an intestate case, these competitions often place clients in the crosshairs of competing attorneys. If one applicant is deemed unsuitable, ineligible or otherwise “untimely,” the other applicant may be selected by the probate court. Although another lengthy topic, R.C. 2113.06 essentially mandates priority in administration of an estate to the [resident] surviving spouse or to one of the [resident] next of kin of the deceased. So PI lawyers should, if possible, ensure that their client has priority as a matter of law regarding appointment. Even with statutory preference, an applicant must be one who “is reasonably disinterested and in a position to reasonably fulfill the obligations of a fiduciary.7 If the applicant is hostile and distrusting among parties, has a conflict of interest, or the underlying conflict is complex, then the probate court may select another fiduciary.8 If an unqualified applicant retains the PI attorney, the attorney may quickly find he or she lacks both control of the estate and a case.

Next of Kin

While the wrongful death statute presumes parents, spouses and children are damaged, it also allows for other “next of kin” to participate in recovering proceeds from wrongful death actions. This practitioner believes other “next of kin”, who are not rebuttably presumed to have suffered damages, may include the decedent’s siblings, continued on page 11 Endnotes: Honoré de Balzac. Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio4747, 873 N.E.2d 1258, ¶ 17. 3 Id.at ¶¶ 10, 17; Estate of Craig, 89 Ohio App.3d 80, 84, 623 N.E.2d 620 (12th Dist. 1993). 4 Ramsey v. Neiman, 69 Ohio St.3d 508, 634 N.E.2d 211 (1994). 5 In re Estate of Ross, 65 Ohio App.3d 395, 583 N.E.2d 1379 (11th Dist. 1989). 6 Sup.R. 71(I). 7 In re Estate of Henne, 66 Ohio St.2d 232, 421 N.E.2d 506 (1981). 8 Id. at paragraph 3 of the syllabus. 1 2


Hon. Michael J. Newman Takes the Helm as National President of the Federal Bar Association Hon. Michael J. Newman was sworn in as national President of the Federal Bar Association on September 17th at its Presidential Installation Gala, the culmination of the association’s Annual Meeting and Convention in Cleveland, Ohio.

Judge Newman’s longstanding commitment to the FBA includes service as President of both the Cincinnati/Northern Kentucky and Dayton chapters, two terms as a Vice-President for the Sixth Circuit, and national elections to the FBA Board of Directors, as Treasurer, and as President-Elect. During his tenure as chapter President, Dayton was named Chapter of the Year and received the Shaw Public Service Award for its outreach to younger lawyers.

To Our Members!

Each and every DBA member helps keep YOUR association strong so we can continue to server our local legal profession and the community in which we live and work. If you have already renewed your membership, we THANK YOU! If you still need to renew for the 2016-2017 DBA year-which is shaping up to be another great one, your membership will lapse at the end of October. We don’t want to lose you, and hope you will stay connected to the wide variety of resources programs and services which provide Professional, Economic and Personal Value to DBA members. You can renew online at www.daybar.org or call the DBA Office at (937)-222-7902


TRUSTEE'S MESSAGE: Mindfulness As Self-Care continued from page 3

The toolbox for self-care must include adequate rest, healthy eating, physical activity, time with family and friends, relaxation, and fun. It should also include proper medical care, including therapy and/or medication for stress, depression, anxiety and substance abuse when warranted. But I submit that it should also include incorporating a daily mindfulness practice. Mindfulness seems contrary to the practice of law, which is often about control, agonizing over the unknown, and attempting to manipulate outcomes. This is what I feel makes mindfulness challenging, but absolutely necessary, for the well-being of lawyers. You don’t have to be Buddhist to practice mindfulness and meditation. Mindfulness is not religion. It also doesn’t have to take place sitting crossed-legged on the floor in a quiet room. You can practice mindfulness in the shower or laying in bed, or just about anywhere! It is also okay if mindfulness doesn’t come naturally (there are apps and websites that can help you figure it all out, and it takes practice). I will readily admit that it felt strange at first and that sometimes it is a struggle to slow down and do it, even for three minutes. But I keep trying, and I truly believe it has made a difference in how I feel, how I think, and how I approach my life. I believe that it has also impacted how I see myself as a lawyer and that it has allowed me to appreciate the value of my work in a way I previously did not. I encourage each of you to explore how the practice of mindfulness can improve your quality of life, and consequently, the way that you practice law. Invest in yourself and take the time to make your journey of life the most rewarding that it can be – you are worth it! November 2016 Dayton Bar Briefs



By Nadia Klarr, Law Clerk DBA Editorial Board Bieser Greer & Landis, LLP

The First Monday in October Celebration

First Monday in October Event


harlie Faruki preceded his First Monday commentary with a moment of practical guidance offered to the law students in attendance. He echoed Winston Churchill, saying that “when you look at the facts, the facts look back at you.” He warned students that lawyers are often called to discuss topics that are sensitive, controversial, or perhaps even offensive in nature. He cautioned – Sometimes, you will talk with someone who does not have the same knowledge, comprehension, or analytical skills that you have. And sometimes people will not want to hear what you have to say. But he advised: “You have to tell them anyway.” Charlie’s advice was appropriate for the occasion. His topic for this year’s celebratory commencement was “Justice Kennedy’s Affirmative Action to Save Affirmative Action: The Latest Use of Race as a Factor in University Admissions.” The numerous “fractured decisions” on affirmative action since the 1970s illustrate both the perplexity and the consequence of the subject at issue. Charlie linearly distilled the prominent cases that shaped the current rule of law to show how affirmative action has evolved over the preceding four decades. He began with Bakke v. Regents of Univ. of Cal., in which the Supreme Court of California validated the concept of reverse discrimination. The court struck down the University’s special admissions program, which reserved sixteen out of one-hundred seats in its medical school class to designated minorities, because its racial preference for less qualified minorities in its medical school violated the equal protection rights of non-minority applicants who were denied admission. Charlie noted the court’s continuing concern that race in admissions-based decision-making should not be forever, but should only last until minorities are able to compete on equal footing with their non-minority counterparts. Justice Powell, writing for a plurality, rejected the Supreme Court of California’s holding that the policy was unlawful. Instead, the Court decided that “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file,” but said that it could “not insulate the individual from comparison with all other candidates for the available seats.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978). The Court explained that “[t]he applicant who loses out on the last available seat

Monday, October 3 | UD Law School | 11:15am

to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant.” Id. at 318. The sixteen seats were problematic, however, because the policy preferred minorities over others who became foreclosed from consideration by totally excluding non-minorities from a certain percentage of seats regardless of the strength of their qualifications, while preferring minority applicants for those seats who have an opportunity to compete for every seat in the entering class. Id. at 319–20. Charlie explained that these cases, although splintered, established that because Equal Protection rights are individual rights, they are not limited to minorities. As such, race may be a factor in admissions decisions as long as it does not insulate the individual from competition and comparison with other candidates. The next major case Charlie distilled was Grutter v. Bollinger. In that case, the University of Michigan Law School sought to attain a “critical mass” of minority students in its class of 350 students, which it described as meaningful representation and participation without feelings of isolation. 539 U.S. 306, 312–17 (2003). The Court sought

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Dayton Bar Briefs November 2016

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to resolve “a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities.” Id. at 322. The Court answered affirmatively by endorsing a portion of Justice Powell’s decision. The Court held that “a university may consider race or ethnicity only as a ‘“plus” in a particular applicant’s file,’ without ‘insulating the individual from comparison with all other candidates for the available seats.’” Id. at 334 (quoting Bakke, 438 U.S. at 317). Charlie explained that the Court differed in its view of “narrowly tailored” race-conscious admissions programs by invalidating quotas, requiring individualized consideration, and embracing a holistic approach to considering applicants. Justice O’Connor concluded her opinion with this sentiment: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Id. at 343. Justice Ginsberg, however, called this an expression of “hope.” Id. at 346 (Ginsberg, J., concurring). Justice Kennedy became known as an advocate of strict scrutiny after his dissent argued that the University’s policy treated race as a predominant factor rather than one non-predominant factor of many, which he believed was the University’s attempt to engage in racial balancing. Id. at 390 (Kennedy, J., dissenting). On the same day that Grutter was decided, the Court decided Gatz v. Bollinger. Here, however, the Court overturned the university’s undergraduate admissions policy that favored minorities by automatically allocating twenty points to underrepresented minority applicants. 539 U.S. 244, 255–56 (2003). Justice Rehnquist wrote for the majority, finding that automatic allocation of twenty bonus points based on race was not individualized consideration. Id. at 271. The next two cases Charlie analyzed involved the University of Texas’s goal of achieving a “critical mass” of racial minority enrollment. As part of its admissions considerations, the University of Texas undertook a “personal achievement analysis,” which measured a candidate’s potential contribution to the University. Fisher v. Univ. of Tex., 133 S. Ct. 2411, 2415 (2013). Race was one factor in this personal achievement analysis. Id. The Court found error in the Fifth Circuit’s deference to the University and found that the Court of Appeals did not hold the University’s policy to a strict scrutiny analysis by ensuring that the program was “specifically and narrowly framed to accomplish that purpose.” Id. at 2420–22. The case came back to the high Court in 2016. In Fisher II, the program was approved in a 4–3 decision. In acknowledging the University’s unique position given the state’s mandatory ten percent plan, Justice Kennedy wrote that the University can serve as a “laborator[y] for experimentation.” Id. at 2214. The decision was not without instruction from the Court: “The University must continue to use this data


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to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.” Id. at 2214–15. Justice Kennedy’s decision concluded as follows: “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” Id. at 2215. Justice Alito’s fifty-one page dissent, which he read aloud, began with the following sentiment: “Something strange has happened since our prior decision in this case.” Id. at 2215 (Alito, J., dissenting). Justice Alito took issue with the fact that “critical mass” has remained undefined by the University, which insists it will tell the Courts when its desired end has been achieved. Id. at 2216. Justice Alito called this plea “blind deference,” which was precisely the type of deference the Court rejected in Fisher I. Id. Justice Alito deemed the Fisher II holding as placing the Court on the “tortuous path of deciding which races to favor.” Id. at 2228 (internal citations and quotations omitted). The Court did not espouse when affirmative action will no longer be necessary. Perhaps twenty-five years will be enough time to achieve a “critical mass.” Or maybe twenty-five years is a lofty expression of hope. The Court certainly left the door open with its imposition of a future ongoing duty to deliberate and reflect in Fisher II. Because the Fisher cases provide little value for prospective guidance due to the unique top ten percent law in Texas, Charlie predicted that we will see more litigation in this area in the coming years.

November 2016 Dayton Bar Briefs



Dayton Bar Briefs November 2016


ESTATE PLANNING TRUST & PROBATE: Wrongful Death and Survival Actions continued from page 6

grandparents, and grandchildren.9 Admittedly, this is a contested area of law and most courts would like an agreement in the equitable allocation of wrongful death proceeds. The Second District Court of Appeals was directly asked to reject an award to a decedent’s “next of kin” for loss of society and mental anguish where there was a spouse, children, and/or parents of the deceased surviving. Judge Grady cited the Ohio Supreme Court’s holding in Ramage v. Central Ohio Emergency Sev. Inc., 64 Ohio St.3d 97, 1992 Ohio 109, 592 N.E.2d 828 (1992), and stated the Supreme Court’s decision may not be overruled by an inferior court and that Court was “above our pay grade,” thus maintaining the holding in Ramage.10 In Ramage, the Ohio Supreme Court held a decedent’s grandparents were entitled to recover wrongful death compensatory damages for mental anguish and loss of society, even though a class member including surviving spouse, parent, or child may have also survived the decedent. An agreement to share proceeds is ideal despite consanguinity or affinity.

Allocation and Distribution of Proceeds

If a settlement has been reached between the personal representative plaintiff and defendant(s), the personal representative must apply to the probate court for approval of the settlement and distribution.11 Typically, application is accomplished by the personal representative filing a Standard Probate Form 14.0 with the probate court, making a proposed allocation of proceeds, as well as a proposed distribution of the net proceeds of the underlying civil claims. Keep in mind a survival action is brought to compensate for a decedent’s own injuries prior to his or her death, which is wholly independent from a wrongful death action seeking damages for injuries suffered by the decedent’s beneficiaries as a result of the wrongful death, even though the both causes of action are brought exclusively by the personal representative of the estate.12 The general guideline of allocation and distribution is that a probate court should distribute wrongful death settlement proceeds “in such a manner as is equitable, having due regard for the injury and loss to each beneficiary resulting from the death and for the age and condition of the beneficiaries.”13 Alternatively, proceeds of a survival action flow through the estate and are disbursed pursuant to ordinary probate administration. If appropriate allocation is not made upon application, the case may spiral out of control along with the reward. Take an extreme case to illustrate the point. If 100% of the proceeds are attributed to the survival claim, then all interested parties and the court lose some discretion in the distribution of proceeds, which may be unintended given the strict statutory nature of probate administration. However, if 100% of the proceeds are attributed to the wrongful death claim, the probate court should distribute monies in an equitable manner “without regard to the statue of descent and distribution, and without regard to any precise mathematical formula.” 14 In short, settlement funds under a wrongful death matter are not estate assets. One can see how placing proceeds in one “pot” verses another, or a combination thereof, may drastically alter which party walks away with proceeds. Although it would take a full-blown law review comment to discuss the allocation of proceeds recovered in a survival action versus a wrongful death action, the following are possible scenarios which are often overlooked by PI attorneys. If there is a surviving spouse, it is very possible that the surviving spouse would receive all proceeds in a survival allocation, despite children, parents, or others that may otherwise recover under their presumed damages if some proceeds went to the wrongful death www.daybar.org

pot. This is particularly disconcerting if say the spouse was estranged during a decedent’s life, yet never divorced. It seems inequitable that a spouse that does not suffer the loss of a decedent to the extent of a parent or child would receive all net proceeds of any recovery. At least with a wrongful death “equitable” distribution, these equitable arguments can be made reducing an estranged spouse’s share.15 Another example of a lopsided or incorrect allocation between “pots” may benefit certain creditors of the estate or the wrongful death case. One can imagine plenty of scenarios where creditors of the decedent’s estate are waiting in the wings for any proceeds allocated through survival claims to flow into the estate for payment. Even those creditors who provide medical care are not always treated as subrogated parties in the PI matter. In In re Estate of Shackelford, the Twelfth District Court of Appeals rejected an allocation to the survival “pot” despite creditor claims for medical expenses owed by the estate for the treatment of the deceased’s personal injuries when all proceeds should have been allocated to the wrongful death beneficiaries.16 Another difference in wrongful death and survival claims is remedies. Punitive damages are available in a survival action for pain and suffering under R.C. 2305.21, whereas punitives are likely unavailable under a wrongful death claim.17 Depending on how the PI attorney formulates the underlying civil claims may increase or decrease the recovery. In sum, whether claims are truly survival or wrongful death, or a combination of the two, is a trap for the unwary.


Knowing the difference between survival and wrongful death claims, the real party in interest, and proper allocation may allow a PI attorney to address issues or avoid cobwebs altogether. Don’t get caught in a tangled web.

Upcoming Meetings

The Estate Planning, Trust & Probate Law Committee usually meets the first Wednesday of every month at 4:00 PM, at the Dayton Bar Association seminar room. Like prior years, the meetings highlight topics of interest to practicing attorneys, and offer one hour of CLE credit pre-approved by the Ohio Supreme Court at the DBA’s nominal price. Also like prior years, please contact myself or Edward M. Smith, Chair of the DBA’s EPTP Law Committee, if you would like to present or have a topic of interest to Committee members. Endnotes: See In re Estate of Werts, 2nd Dist. Montgomery No. 22824, 2009-Ohio3120, ¶ 12 citing Buchert v. Newman, 90 Ohio App.3d 382, 629 N.E.2d 489 (1st Dist. 1993). 10 Werts at ¶¶ 22-23. 11 Sup.R. 70. 12 Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio4747, 873 N.E.2d 1258. 13 R.C. 2125.03(A). 14 In re Molitor , 12th Dist. Brown No. CA 2012-06-013, 2013-Ohio-525, ¶ 17. 15 In re Estate of Dye, 12 Dist. Fayette Nos. CA2011-04-004, 05, 06, 2012Ohio-2570 16 12th Dist. Clermont No. CA2015-06-044, 2012-Ohio-1431. 17 See Roginski v. Shelly Co., 2014 Ohio Misc. Cuyahoga C.P. No. CV-11760490, 31 N.E.2d 724 (Aug. 21, 2014). 9

November 2016 Dayton Bar Briefs



October Chancery Recap:

The Chancery Club Luncheon Takes Us Back to School with the Electoral College


ctober’s Chancery Club Luncheon featured the familiar gathering together of various members of the Dayton Bar for lunch, courtesy of both the Chancery Club and the delectable creations of Boosalis Baking and Café. Attorneys from all areas of practice sat together and chatted, sharing stories of interesting cases, advising on the trickier aspects of statutes, and catching others up on the newest developments of the week. And if conversation around a table was briefly awkward due to the current political climate surrounding the 2016 presidential election, it was quickly shifted to the more stable agreement that, at the very least, these were interesting times to live in and experience. Of course, such subject matter was topical for the day’s talk. Dr. Lee Hannah gave a presentation on the Electoral College and its impact. Dr. Hannah is a Ph.D. and a professor of Political Science at Wright State University. He teaches many different courses, with several focusing on the American government, legislatures, elections, and the effect of politics on American culture. Dr. Hannah also oversees the internship program for the Political Science department. Many of Dr. Hannah’s students are interested in law, legal studies, and the potential of attending law school, which often results in internships with legal organizations in the Dayton area. If any attorneys or law firms are interested in potential internship opportunities with the Wright State University Political Science Department, they are encouraged to reach out to Dr. Hannah. Dr. Hannah’s email is lee.hannah@wright.edu. Dr. Hannah’s presentation focused on two questions regarding the Electoral College: why it was created and how it impacts presidential elections. Dr. Hannah explained that the founding fathers ultimately chose the Electoral College as a compromise. In the effort to create a new system of governance, there was much discussion and disagreement on how to select whomever would hold the office of President. Some advocated for allowing Congress to choose the President. This was rejected due to the argument that it would violate the principles of checks and balances. If Congress was able to select the President, than the President would ultimately be a creature of the Congress, and could not adequately serve as a check on the legislature. Others advocated for a simple popular vote, with the nominee who received the majority of votes


Dayton Bar Briefs November 2016

By Nathaniel Peterson Esq. DBA Editorial Board Brannon & Associates

being elected as President. However this was rejected for fear that most voters would not be able to make an informed decision due to lack of knowledge on both policy and the character of the presidential nominees. The founding fathers compromised with the Electoral College. Instead of voting directly for a presidential nominee, voters instead vote for “electors”, who are generally bound to vote for a certain presidential nominee. Each state is apportioned a set number of electors equal to the number of congressmen from that state. (Ohio, for example, has eighteen electors; sixteen for Representatives and two for Senators). Whichever presidential nominee receives the majority of electoral votes (currently 270) is elected President of the United States. According to founding father Alexander Hamilton, this would give the people a chance to vote but also ensure that not just anyone could become president. (It should be noted that Mr. Hamilton, contrary his current popularity, did not appear to give this viewpoint in the form of a rap.) As for how the Electoral College has affected presidential election, Dr. Hannah stated the biggest impact is on campaigning, especially where the presidential nominees focus their attention. Dr. Hannah pointed to the phenomena of ‘battleground states’ as an example; a concept Ohioans are all too intimately aware of. Interestingly, however, was Dr. Hannah’s continued on page 13

Join us at our next Luncheon:

The Old Courthouse Thursday, November 3, 2016 Doors open at 11:30am Speaker: Tim Young, Ohio Public Defenders Office Topic: New Appointed Counsel Rules Caterer: Franco's Ristorante Italiano


CHANCERY RECAP: Back to School with the Electoral College continued from page 12

statement that battleground states are a relatively recent development. In the 1960 presidential campaign between Vice President Richard Nixon and Senator John F. Kennedy, Kennedy visited forty three states while on the campaign trail. Meanwhile, Nixon fulfilled a campaign promise by visiting all fifty states. By comparison, as pointed out by Dr. Hannah, the vast majority of campaign visits in the 2012 presidential campaign happened in just the half-dozen or so battleground states. The difference, according to Dr. Hannah, was a matter of priority. In the 1960 election, around twenty different states were decided by a margin of less than five points, essentially putting all of those states up for grabs. In the 2000 election, twelves states were in that five point margin. In the 2012 election, only four states were decided by less than five points. Dr. Hannah used this fact to show that presidential nominees are facing a shrinking map. In this 2016 presidential campaign, forty out of the fifty states have voted the same way in the last four elections. This, arguably, makes the decision of those states, come Election Day, effectively already decided. It is the remaining ten states that may still be persuaded to one nominee over the other, and it is thus those ten

states which are more likely to receive attention from the campaigns. Dr. Hannah explained that the Electoral College helps inform the decision of the campaigns on which states to focus on, as they seek to capture the most electoral votes in the most efficient manner. According to Dr. Hannah, there are both positives and negatives to the Electoral College system. One positive is that it creates a more lively and personal campaign. Elections in the past, where candidates campaigned in as many states as possible, were often criticized as dispassionate and impersonal. However, an obvious negative is the disproportionate attention given to battleground states. Often, campaign promises and stated policies focus on the issues of those battleground states, leading some voters in other states to feel disenfranchised. For the moment, the Electoral College is here to stay. Dr. Hannah stated that he will continue to study it, and that he looks forward to seeing how it shapes both this presidential election and those of the future. The Chancery Club Luncheon will return on Thursday, November 3, 2016. Be sure to check Bar Briefs, the Dayton Bar Association Website, and your email for details on future Chancery Club programs, as well as programs and events from your Dayton Bar Association. The Chancery Club is grateful for the generous support and sponsorship of the Eichelberger Foundations.

now available!

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

The DBA offers high-quality online CLE, a convenient way for you to earn up to 12 hours of Ohio CLE credit per reporting period. Our online CLE programming allow you to take CLE courses on a wide variety of topics, any time of the day, and day of the week. And, at only $45 per hour for members and $60 per hour for non-members, our online CLE is also cost-effective.


November 2016 Dayton Bar Briefs



Justice on Trial: Stories of Race and Law


n November 18th, the University of Dayton School of Law, in cooperation with the Dayton Literary Peace Prize Foundation, will hold the 2016 Gilvary Symposium – Justice on Trial: Stories of Race and Law. The Gilvary symposium series honors the legacy of Montgomery County Common Pleas Court Judge James J. Gilvary. The symposia are intended to address legal issues that have moral and social consequences, to look at areas of the law that should be changed, and to consider what steps are necessary to effect that change. This year, the Law School joins with the Dayton Literary Peace Prize Foundation to explore stories of race, law, and justice. We devise meaning from what we see, hear, and feel by weaving our perceptions into stories. Awakening to the sound of an alarm clock creates a narrative of what will happen as we begin the day. Seeing an adult rush to a crying child who is sprawled on the sidewalk next to a prone bicycle creates another narrative. Stories are the way we understand how the world works. The stories we construct are defined by our own experience. It has become only too apparent that, in the United States, personal stories of law and justice are profoundly affected by race. Race too often produces different experiences, different narratives, and very different understandings of how the world works. In Sanford, Florida, the flawed narrative produced by seeing an African American male in a hooded sweatshirt walking at night in a gated community resulted in the shooting death of an unarmed, seventeen-year-old community resident named Trayvon Martin. By listening to the stories of others, by reading books, we can expand our experience and our understanding of the world. But if stories of race and law demonstrate isolation and marginalization, so do stories of race and books. This year, the theme of the American Library Association's Banned Books Week was Celebrating Diversity. The ALA has “estimated that over half of all banned books are by authors of color or contain events and issues concerning diverse communities”1 – despite the fact that these books make up only a very small percentage of total publications. Recent events underscore the importance of finding ways to encourage and share stories of race, law, and justice.


Dayton Bar Briefs November 2016

By Susan Newhart Elliott, Associate Professor UDSL Director of Zimmerman Law Library

Many such stories have found their way to consideration for the Dayton Literary Peace Prize. The Peace Prize, which recently celebrated its tenth anniversary, is dedicated to promoting peace by encouraging people to read, share, and appreciate literary works about peace, and to promoting the recognition of literature as a force in achieving peace. Sharon Rab, founder and co-chair of the Dayton Literary Peace Prize Foundation notes that the stories "show us people navigating their way through a complex range of differences.... Through these narratives, we discover either valuable tools for reconciling differences – or

the dire consequences for all involved of choosing to remain in conflict.”2 It is the intent of the Gilvary Symposium to share significant stories of race, law, and justice. The symposium will include talks by continued on page 15

Endnotes: The Office for Intellectual Freedom of the American Library Association, Banned Books Week Spotlights Diversity in 2016, Intellectual Freedom Blog (March 1, 2016), http://www.oif.ala.org/oif/?p=6176. 2 Dayton Literary Peace Prize, Awards Homepage (2016), http://daytonliterarypeaceprize.org. 1


Justice on Trial continued from page 14 three prize-winning authors – Wil Haygood, Gilbert King, and Jeff Hobbs3 whose works expand our understanding of the effect of race in stories of law and justice. Wil Haygood is a 2016 Dayton Literary Peace Prize finalist for nonfiction for Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed the World (Alfred A Knopf 2015). Showdown traces the long road that took Thurgood Marshall to the United States Supreme Court, as its first AfricanAmerican justice. Marshall was the founder of the NAACP Legal Defense and Educational Fund and spent much of his life as one of its principal litigators. During the 1940s and 1950s Marshall represented indigent African American criminal defendants caught in a racist justice system and labored to produce, often at great personal risk, a string of civil rights victories that helped to dismantle racial discrimination and segregation in the United States. His impressive record persuaded President Lyndon Johnson to select him for appointment to the Supreme Court in 1967. That record was not enough to ensure his confirmation. Segregationist senators on the Judiciary Committee avoided direct attack on his civil rights work. Instead they manufactured concerns about crime and violence, suggesting that Marshall was more concerned about the rights of criminal defendants than the safety of law abiding citizens. Marshall’s expert handling of the interrogations and Johnson’s determined exercise of every power at his disposal (a fascinating story in itself ) won the day. Marshall’s work defending indigent African-American criminal defendants is a focus of Gilbert King’s Devil in the Grove: Thurgood Marshall, The Groveland Boys, and the Dawn of


a New America (Harper Collins 2012). Devil in the Grove was the 2013 Nonfiction Dayton Literary Peace Prize Runner-Up. It also garnered a 2013 Pulitzer Prize. Thurgood Marshall’s civil rights cases, particularly the landmark Supreme Court case, Brown vs. Board of Education of Topeka Kansas (1954), are well known and much discussed; his criminal cases less so. King was able to obtain FBI files and some NAACP files to reconstruct a case involving the 1949 claim of a young white woman in Groveland, Florida that she had been raped by four African American men. Despite the lack of any real evidence, the case went forward. One of the men was hunted down, shot, and killed by an armed posse before the accused were charged. Two of the defendants were shot, while handcuffed and unarmed, by the sheriff who was transporting them from death row after a retrial was ordered. One of the two defendants miraculously survived, but again ended up on death row. Marshall was himself subject to death threats. Although he lost the case, Marshall had the satisfaction, years later, of seeing that final death sentence commuted by the governor of Florida, based in part of the recommendation of the elderly former prosecutor who had overseen the capital cases. Stories of race, justice, and law often have unhappy endings. The Short and Tragic Life of Robert Peace: A Brilliant Young Man Who Left Newark for the Ivy League (Scribner 2014) by Jeff Hobbs was the 2015 Nonfiction Dayton Literary Peace Prize Runner-Up. The story of how Peace died – murdered in a basement near Newark, New Jersey, with cash and marijuana at the scene – suggests one narrative. Hobbs, who was Peace’s roommate while they were both at Yale, provides a much more complex story. Peace grew up in the slums around Newark. His charismatic father was a small-time drug

dealer who ended up in prison, on a murder charge, when Peace was seven years old. His mother worked in a hospital cafeteria. She read to him, encouraged him, and scrimped to provide him with a good education. His intellectual abilities eventually took him to Yale, where he majored in biophysics and biochemistry while working in a cancer laboratory – and smoking and dealing immense amounts of marijuana. Peace’s attitude towards the boundaries of law, derived from his childhood, was part of his eventual undoing. Thurgood Marshall and Robert Peace were extraordinary men with extraordinary gifts. Their stories have certainly commonalities and very different endings. It is important to listen to the stories of both, to understand the experiences with race, law, and justice that were a foundation of their different understandings of how the world works. The Gilvary Symposium provides an opportunity to explore those stories. The Gilvary Symposium will take place on November 18 at the University of Dayton School of Law. There is a $15 charge for lunch and CLE credit, but no charge for attendance at the sessions. For further information, please see the University of Dayton School of Law website, or contact Nan Holler-Potter at 229 4676. Endnotes: 3

These authors will also speak later on November 18 at the Victoria Theatre as part of An Evening for Justice & Peace, also in cooperation with the Dayton Literary Peace Prize Foundation.

November 2016 Dayton Bar Briefs


CLE Speaker Favorites


CLE Speaker Favorites! Sean Carter, Legal Humorist

The 2016 ETHY Awards

Fri. December 2, 2016 | 8:30-11:45am 3.0 CLE Hours Professional Conduct Seminar #1617-053 M $120 | NM $165 | PP $0

running out of time? Go Online!


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

Matthew R. Jenkins Esq., Jacox Meckstroth & Jenkins & Ted Lienesch Esq., Thompson Hine

24th Annual Intellectual Property for General & Corporate Practitioners



Fri. December 9, 2016 | 9:00-12:15pm 3.0 CLE Hours (2.0 General; 1.0 Professional Conduct) Seminar #1617-059 M $105 | NM $150 | PP $0 Matt & Ted will present this important primer for General and Corporate Practitioners. Topics covered include: Trademarks and Domain Names; Trade Secrets; Patents; Copyrights; and IP from a Litigators Point of View. 9:00am Patents, Copyrights and Trademarks for the General Practitioner 11:00am Break 11:15am Ethics Issues Involving Intellectual Property 12:15pm Adjourn

Judge Dennis J. Langer

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


Judge Langer will survey US and Ohio Supreme Court and appellate decisions, as well as recently enacted legislation. Topics include: search and seizure, confessions, pretrial identification, substantive criminal law, rules of evidence, trial procedure, sentencing, and revocation hearings. Also, statutes regarding driver’s license suspension for drug offenses, judicial release, and juvenile adjudications not counting as “convictions.”


Dayton Bar Briefs November 2016


Ammual Bench Bar Conference

Annual Bench Bar Conference

The Dayton Bar Association 24th Annual Bench Bar Conference presents:

in a Shrinking World

Judge Welbaum Agenda: 8:25am 8:30-9:30am

Marty Foos

Friday, November 18, 2016 Sinclair Community College, Bldg. 12 | 8:25-3:45pm Seminar#1617-009 | 5.5 CLE Hours M $200| NM $300 | PP $30 Co-Chairs: Hon. Jeffrey M. Welbaum & Martin A. Foos Esq.

Introduction: Martin A. Foos & Hon. Jeffrey M. Welbaum, Bench Bar Co-Chairs Plenary Session 1: Investing in the Rule of Law Abroad

Howard N. Fenton, Director, Center for Democratic Governance and Rule of the Law, Ohio Northern Univ.

9:30-9:45am Break 9:45-10:30am Morning Breakout Session:

10:30-10:45am 10:45-12:00pm 12:00-12:50pm 12:50-1:50pm

Break Plenary Session 2: Building Bridges Between the Bench and Bar: An Interactive Roundtable Discussion LUNCH Plenary Session 3: Internationalism

1:50-2:00pm 2:00-2:45pm

Break Breakout Session 2:

2:45-3:00pm 3:00-3:45pm

Break Breakout Session 3:



Domestic Relations Court United States District Court Probate Court General Interest: Commanding Professional Respect as Women in Traditional Male Legal Systems: The View from Afghanistan, Botswana, Georgia & Brazil: Ohio Northern University LL.M. Panel

Dean Andrew L. Strauss, University of Dayton School of Law

Second District Court of Appeals Municipal Courts Juvenile Court General Interest: Security Data

Bankruptcy Court: Recent Developments in Bankruptcy Law and Practice Common Pleas Court General Interest: Immigration Law/International Issues/Syrian Refugees: Local Impact General Interest: Challenges to Professionalism: Litigating Before Unqualified and Corrupt Judges Abroad Ohio Northern University LL.M. Panel Adjourn

November 2016 Dayton Bar Briefs


November & December CLE Offerings

daybar.org/cle Annual Elder Law Update

Thurs. November 3, 2016 • 8:45-4:30pm 6.0 CLE Hours (incl. 1.0 Hour Professional Conduct) • Seminar #1617-050 Sinclair Community College, Building 12 M $215 | NM $300 | PP $30

Wed. December 7, 2016 • 9:00-12:15pm 3.0 CLE Hours (incl. 1.0 Hour Professional Conduct) • Seminar #1617-057 M $105 | NM $150 | PP $0

Juvenile Defense Certification Training

Estate Planning Trust & Probate Update

DBA Appellate Practice and Civil Trial Committees present:

Election Law

24th Annual Intellectual Property for General & Corporate Practitioners

Professional Conduct: The Top 10 Ethics Mistakes (video)

Federal Practice Update

Fri. November 4, 2016 • 8:30-4:00pm 7.0 CLE Hours (incl.1.0 Hour Professional Conduct) • Seminar #1617-034 M $215 | NM $300 | PP $30

Wed. November 9, 2016 • Noon-1:00pm 1.0 CLE Hour (optional) • Seminar #1617-078 Committee M $25 | M $35 | NM $45 | PP $0

Thurs. November 10, 2016 • 9:00-12:15pm 3.0 CLE Hours Professional Conduct • Seminar #1617-035 M $105 | NM $150 | PP $0

24th Annual Bench Bar Conference see page 17 for details! The Rule of Law in a Shrinking World Fri. November 18, 2016 • 8:25-3:45pm 5.5 CLE Hours • Seminar #1617-009 M $200 | NM $300 | PP $30 Sinclair Community College, Building 12

Professional Conduct: The Top 10 Ethics Mistakes (video)

Thurs. November 22, 2016 • 9:00-12:15pm 3.0 CLE Hours Professional Conduct • Seminar #1617-039 M $105 | NM $150 | PP $0

YLD NLT: Core Components: Professionalism, Law Office Management and Client Fund Management Wed. November 30, 2016 • 9:00-12:15pm 3.0 CLE Hours NLT • Seminar #1617-052 M $105 | NM $150 | PP $0

Most Common Ethics Mistakes Lawyers Make When Marketing Their Practice Wed. November 30, 2016 • 1:00-4:15pm 3.0 CLE Hours • Seminar #1617-051 M $105 | NM $150 | PP $0

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

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

Fri. December 9, 2016 • 9:00-12:15pm 3.0 CLE Hours (incl. 1.0 Hour Professional Conduct) • Seminar #1617-059 M $105 | NM $150 | PP $0 Tues. December 13, 2016 • 9:00-12:15pm 3.0 CLE Hours • Seminar #1617-061 M $105 | NM $150 | PP $0

Civil Trial Update

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

Environmental Law Update

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

Real Property Update

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

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

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

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

Sean Carter: The 2016 ETHY Awards

Professional Conduct: The Top 10 Ethics Mistakes (video)

Solo/Small Firm Roundup

2016 Annual Elder Law Update (video replay)

Juvenile Law Update

Domestic Relations 101 (video replay)

Domestic Relations Update

The Rules of Evidence (video replay)

Fri. December 2, 2016 • 8:30 - 11:45am 3.0 CLE Hours of Professional Conduct • Seminar #1617-053 M $120 | NM $165 | PP $0 Mon. December 5, 2016 • 1:00-4:15pm 3.0 CLE Hours • Seminar #1617-054 M $105 | NM $150 | PP $0 Tues. December 6, 2016 • 9:00 - 12:15pm 3.0 CLE Hours • Seminar #1617-055 M $105 | NM $150 | PP $0


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

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

Mon. December 19, 2016 • 1:00 - 4:15pm 3.0 CLE Hours • Seminar #1617-068 M $105 | NM $150 | PP $0

Tues. December 20, 2016 • 8:30 - 4:00pm 6.0 CLE Hours (incl. 1.0 Hour Professional Conduct) • Seminar #1617-069 M $215 | NM $300 | PP $0 Wed. December 21, 2016 • 9:00 - 12:15pm 3.0 CLE Hours, also approved 3.0 NLT Credit Hours • Seminar #1617-070 M $105 | NM $150 | PP $0 Wed. December 21, 2016 • 1:00 - 4:15pm 3.0 CLE Hours, also approved 3.0 NLT Credit Hours • Seminar #1617-071 M $105 | NM $150 | PP $0

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

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

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

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

2016 Annual Probate Institute (video replay)

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

2016 Annual Domestic Relations Seminar (video replay)

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

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

Meet Your Requirements

Professional Conduct: The Top 10 Ethics Mistakes (video)

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


Look for the PC icon for programs. Seminars listed below fulfill the biannual requirement for 2.5 hours of Professional Conduct: -Thurs. November 10

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

| 9:00-12:15pm | Seminar #1617-035

-Thurs. November 22

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

| 9:00-12:15pm | Seminar #1617-039

-Wed. November 30

| 1:00-4:15pm

-Fri. December 2

| Most Common Ethics Mistakes Lawyers Make When Marketing Their Practice | Sean Carter: The Ethy Awards

| 8:30-11:45am | Seminar #1617-053

-Mon. December 19

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

| 1:00-4:15pm

-Thurs. December 22

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

| 9:00-12:15 pm | Seminar #1617-072

-Thurs. December 30

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

| 9:00-12:15 pm | Seminar #1617-077

| Seminar #1617-051

| Seminar #1617-068

New Lawyer Programs

The DBA offers programs designed to satisfy the Supreme Court of Ohio New Lawyer Training Requirements. Those that have been practicing for less than two years can receive special rates on these and other CLE programs!

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

ll-Wed. November 30 | YLD NLT: Core Components: Professionalism, | 9:00-12:15pm | Seminar #1617-052 Law Office Management and Client Fund Management (video) -Thurs. December 1 | Criminal Law Certification (video replay)

| 8:30-3:45pm

| Seminar #1617-038

-Fri. December 9

| 24th Annual Intellectual Property for General and Corporate Practitioners

| 9:00-12:15pm | Seminar #1617-058

-Fri. December 16

| Judge Langer’s 2016 Criminal Law Update Seminar

| 8:30-11:45am | Seminar #1617-067

-Wed. December 21 | Domestic Relations 101 (video replay)

| 9:00-12:15pm | Seminar #1617-070

-Wed. December 21 | The Rules of Evidence (video replay)

| 1:00-4:15pm

| Seminar #1617-071

-Thurs. December 22 | YLD NLT Core Components: Professionalism, | 12:30-3:45pm | Seminar #1617-073 Law Office Management and Client Fund Management (video) www.daybar.org

November 2016 Dayton Bar Briefs



Make The Record By Hon. Richard S. Skelton Montgomery Cty Common Pleas Court


ounsel approach! For the third time the lawyer had been summoned to side bar in front of a jury during voir dire in an aggravated murder case: “Counsel, I have warned you twice to limit your voir dire examination…….” and so on and so forth. The Judge, Robert Brown, was not known for his patience and arguably ran the tightest Courtroom in Montgomery County history. He expected everyone to be at his Court early and everything to run on time. It was not uncommon for him to hold attorneys in contempt for their failure to abide by his rules, particularly his preprinted dictates that limited scope and time for voir dire examination. At the aforementioned sidebar, the Judge not so calmly described the dark depths of the abyss upon which the attorney now stood. The attorney remained calm (at least outwardly) and simply requested the Court Reporter come to side bar so that a record could be made. “With all due respect, Your Honor, case law holds that counsel are permitted to inquire of jurors in such a manner to gain sufficient knowledge for ‘peremptory challenges’ that have nothing to do with cause.” The lawyer then cited the cases and MADE THE RECORD as to how his questions of the jury were calculated to achieve effective preemptory challenges. Although much bluster ensued, permission was granted. I know of very few Judges who will not respond well to an attorney who requests a side bar to make a record. First, most Judges prefer argument over legal points take place at side bar. If the attorney is prepared, he/she will have a case to cite or better yet a printed copy for the Judge to review. The attorney has anticipated the evidence issue, researched and now is making a record. Believe me, when the attorney asks for the record to be made with a cite or two in tow, the Judge’s ears become more receptive. There is no need to be vociferous or agitated, simply MAKE THE RECORD. If you don’t prevail, the record is preserved and more likely than not respect is gained for the next issue in the case. Having been on the Bench for going on two years, this Judge is convinced that making a record – particularly in criminal motions to suppress – will yield better or at least clearer results for both the defense and the prosecution. Everyone now knows that video recorded courtrooms have afforded the Judges of the Montgomery County Common


Dayton Bar Briefs November 2016

Pleas Court the opportunity to “review the record” at will when deciding a motion to suppress or court trial or any other matter requiring a Decision. Take advantage of the opportunity to be heard twice, once in court and last upon the judge’s review. Some years ago the undersigned was assigned the task of handling, with co-counsel Nick Gounaris, a Federal Habeas Corpus death penalty case. My good friend Attorney Jeff McQuiston gave me the book “Gideon’s Trumpet” and suggested I read it in preparation for the Habeas case. The Gideon in the book was the Florida prisoner that engendered Gideon v. Wainwright, the United States Supreme Court case that afforded Defendants the right to counsel. The message of the book was clear: Make your RECORD in the lower Court knowing the higher/reviewing Court would be relying on that record when deciding certiorari or when making their decision on the merits. Accordingly, everything we did at the Federal District Court level was geared toward making the record with United States Supreme Court precedent in mind. Of course making the record doesn’t ensure that your side of the case will prevail – it does, however, reflect professionalism and the satisfaction of knowing that you have thoroughly represented your client. How to Make the Record? First, second and last: PREPARATION. Crim. R. 16 and the Case Management Plan afford full discovery. The facts of the case, for the most part, are known before the hearing. Research the law, particularly Second District, and examine the witness with the understanding/knowledge of the language necessary to achieve the goal for your respective client. Be prepared to engage the witness in conversation that will address the issue at hand while marshalling the language in an artful manner advocating for your respective position. Despite the public’s perception to the contrary, Judges do not know all the evidence rules and precedent attendant to the myriad of issues that come before the Court. While I cannot say that the person who prepares the best will always win the legal argument, it certainly will help the litigator learn about the issue on which he/she SHOULD prevail. Preparation is the key. If your effort fails at the trial court level, the Court of Appeals awaits with a solid record.


A gathering for DBA Members BOTH Women & Men

Join us at the next series:

Women in LAw Forum Reception Wednesday, November 16, 2016 | 5:00-7:00pm Dayton Bar Association; 109 N. Main St., Ste. 600 TOPIC: Femme Fatale – War Stories from the Bar An informal panel of distinguished members of the Dayton Bar Association sharing war stories from their various practices and inviting stories from the audience as well. Space is limited! Please RSVP to: Lori Luebben lluebben@daybar.org 937.222.7902

Dayton Bar Association Wills for Heroes The Dayton Bar Association is pleased to announce that area emergency personnel and their spouses or domestic partners can obtain free wills and other estate planning documents! Qualified first responders include firefighters, police officers, paramedics, corrections and probation officers from federal, state, county, city and town departments and agencies. Fore information or to sign up please contact: Chris Albrektson| 937. 222.7902 | calbrektson@daybar.org



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The Wills for Heroes events are sponsored by the generosity of the DBA, DBA Foundation and LexisNexis. www.daybar.org

SPECIAL EVENT! Wills for VETS DBA + GDVLP join forces to bring you this special program!

Saturday, November 5, 2016 Dayton VA Medical Center 4100 W. Third St. Building 305 Training: 8:00-10:00am Appointments: 10:00-2:00pm

The next Wills for Heroes event will be held: Saturday, November 12, 2016 Dayton Firefighter’s Activity Center 3616 Needmore Rd., Dayton, OH 45424 Training: 8:00-10:00am Appointments: 10:00-2:00pm November 2016 Dayton Bar Briefs


member info updates

ATTORNEYS BERNAL-OLSON, Patricia University of Dayton Admitted to Ohio Bar: 11/98

CONNELLY, Mary Ellen

Dyer Garofalo Mann & Schultz Admitted to Ohio Bar: 11/11

HARTMAN, Christopher J.

Coolidge Wall Co., LPA Admitted to Ohio Bar: 5/14, Other Bars FL 7/10,MN 6/11, WI 7/10

HURST, Tricia L.

Diversity Issues

Young Lawyers Division

Tues. November 1st @ Noon

Wed. November 2nd @ Noon

Estate Planning Trust & Probate Law

Wed. November 2nd @ 4:00pm

Public and Member Services @ The Old Courthouse

Thurs. November 3rd @ 11:00am

Juvenile Law

Mon. November 7th @ 4:00pm

Small Firm/Solo Office Mon. November 7th @ Noon Labor & Employment

Tues. November 8th @ Noon

Dyer Garofalo Mann & Schultz Admitted to Ohio Bar: 11/8/2004PA 2011

Civil Trial Practice & ADR & Appellate Court Practice

Wed. November 9th @ Noon

LEWIS-WHITE, Stephane M.

Environmental Law

Wed. November 9th @ Noon

Lewis White Firm Limited Admitted to Ohio Bar: 5/2/2016

RIEMAH, Michael A.

Bieser Greer & Landis LLP Admitted to Ohio Bar: 11/7/2011

WRIGHT, Michael B.

Montgomery County Prosecutor's Office Admitted to Ohio Bar: 5/2/2016




Dayton Bar Briefs November 2016

Domestic Relations Law @ DR Ct Judge Woods CrtRm. Thurs. November 10th @ Noon Real Property

Thurs. November 10th @ Noon

Federal Practice Mon. November 14th @ Noon Criminal Law and It’s Enforcement

Wed. November 16th @ Noon

Corporate Counsel @ Bravo Italian Resturant

Thurs. November 17th @ 4:30pm

Workers Comp and Social Security

Thurs. November 17th @ Noon





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.ficlaw.com With offices 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. www.daybar.org

November 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. 24

Dayton Bar Briefs November 2016


Thurgood Marshall Law Society TMLS Summer Clerkship Program Student Profile— Bridget Jackson Bridget Jackson is a native of Cincinnati, Ohio. She attended the University of Cincinnati where she studied communications and journalism. While at UC, she was a very active member of the university’s chapter of the National Association of Black Journalists. After graduating from college, Bridget spent two years as a volunteer for the United States Americorps. While in Americorps, she dedicated her services to low income families in the Lower Price Hill area in Cincinnati. Bridget expects to earn her Juris Doctor in May 2017 from the University of Dayton School of Law. She is involved in several school activities and organizations. She serves the law school community as Vice President of Law School Democrats, Vice President of Lambda Legal, Sergeant at Arms for the Black Law Student Association, and Chief Justice of Honor Council. She is also a proud member of the Student Federal Bar Association, Women’s Caucus, and the Human Rights Awareness Association. Her interests in the legal field include criminal law, family law, and public policy. Last summer, she participated in the Thurgood Marshall Law Society Summer Clerkship Program as student clerk for the Honorable. Judge Walter H. Rice. She hopes to become a judge herself one day.

University of Dayton School of Law


November 2016 Dayton Bar Briefs


members on the move THOMAS M. BAGGOTT office will maintain the same street address (130 W. Second St., Dayton, OH 45402-1517), but move from Suite 800 to Suite 950 effective Monday, October 3, 2016. JOHN H. RION has been recently elected President of The American Board of Criminal Lawyers at their annual meeting in Austin, Texas. The American Board of Criminal Lawyers is a select, invitation only, group of lawyers whose membership is highly scrutinized. Mr. Rion, after years of practice in the field of criminal law, was made a Fellow in the American Board of Criminal Lawyers. The American Board of Criminal Lawyers was founded in San RION Francisco, California by the leading criminal defense lawyer in that city. In the past quarter of a century the American Board of Criminal Lawyers has Fellows from all over the country and internationally

mark your calendar Chancery Club Luncheon The Old Courthouse Thurs. November 3, 2016 Juvenile Defense Certification DBA Office Fri. November 4, 2016 DBA + GDVLP present...Wills for Vets Dayton VA Medical Center 4100 W. Third St. Building 305 Sat. November 5, 2016 Wills for Heroes Dayton Firefighters Activity Center 3616 Needmore Rd. Sat. November 12, 2016 Annual Bench Bar Conference Sinclair College, Bldg 12 Fri. November 18, 2016 Criminal Law Certification DBA Office Thurs. December 1, 2016 Annual Holiday Luncheon Sinclair College, Bldg 12 Thurs. December 8, 2016 2017 Robert Farquhar Mock Trial Fri. January 20, 2017 Lunch/Training: 11:00am Trials: 12:00-4:00pm Probate Law Institute Fri. March 10, 2017


Dayton Bar Briefs November 2016



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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 November 2016 Dayton Bar Briefs


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


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