November 2019 Dayton Bar Briefs

The Magazine of the Dayton Bar Association | November 2019 | Vol. 69, No. 3

Dayton

Bar Briefs

Thankful Barrister of the Month Bryan K. Penick pg 8

Civil Trial Practice & ADR Proposed Amendments to the Ohio Rules of Civil Procedure pg 10

FOR THE GOOD

The Honorable Gerald Parker pg 12

CONTENTS

Dayton

Bar Briefs

November 2019 | Vol. 69, No. 3

Features

Dayton Bar Association Board of Trustees

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TRUSTEES MESSAGE

By David P. Pierce Esq., Coolidge Wall Co., LPA

Hon. Mary L. Wiseman

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A MESSAGE FROM THE EXECUTIVE DIRECTOR

By Jennifer Otchy, Executive Director DBA

8

BARRISTER OF THE MONTH: BRYAN K. PENICK

By Alexandra Laine Esq., Taft Stettinius & Hollister LLP

2019 – 2020 President

Fredric L. Young First Vice President

Merle F. Wilberding Second Vice President

Caroline H. Gentry Secretary

Brandon C. McClain Treasurer

Rebecca M. Gentry Member–at–Large

Anne P. Keeton Member–at–Large

Denise L. Platfoot Lacey Member–at–Large

Adam R. Webber Member–at–Large

David P. Pierce

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Executive Director

Impeachment and the DBA's Political Issues Policy

Getting Back to Basics

10 CIVIL TRIAL PRACTICE & ADR

Proposed Amendments to the Ohio Rules of Civil Procedure

By Sean P. McCormick Esq., Thompson Hine LLP

11 INTRODUCING ONS!

Ohio Notary Services (ONS) 12 FOR THE GOOD:

THE HONORABLE GERALD PARKER

By Ebony D. Davenport Esq., Pickrel Schaeffer & Ebeling Co., LPA

14 DBA RISING STAR:

EMILY E. SLUK

By Thomas J. Intili Esq., Intili Group, a Legal Professional Associaiton 24 OLAP The Importance of Gratitude

By Scott R. Mote Esq., Executive Director OLAP

26 FROM THE JUDGES DESK A View from the Bench

By The Honorable Steven K. Dankof, Montgomery Cty Common Pleas Court

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

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

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Dayton Bar Briefs November 2019

9 NOVEMBER 2019 SECTION MEETING DATES 15 FINANCIAL ASSISTANCE: THE EIKENBARY TRUST 16 CONTINUING LEGAL EDUCATION 29 CLASSIFIEDS Upcoming Events 13 DBA BOOK CLUB

Wed. November 20th | 4pm | DBA Offices, Drinks + Eats Provided! | "To Kill a Mockingbird" by Harper Lee 22 2020 ROBERT FARQUHAR DISTRICT MOCK TRIAL COMPETITION

Volunteers Needed! Fri. January 17th | Montgomery County Courts

29 CHANCERY CLUB MEETING DATES

New date change! Thursdays | The Old Courthouse | Doors open 11:30am 937.222.7902

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If you are interested in becoming a DBA Annual Partner, contact: Jennifer Otchy DBA Executive Director jotchy@daybar.org 937.222.7902 www.daybar.org

November 2019 Dayton Bar Briefs

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Trustee's Message

Impeachment and the DBA's Political Issues Policy

By David P. Pierce DBA Immediate Past President Coolidge Wall Co., LPA

A

s the House of Representatives ramps up its Impeachment Inquiry, I thought it might be helpful to put those proceedings into historical and legal context and to explain to our members how, if at all, the Dayton Bar Association might come down on these issues.

Before I go any further, I need to make two disclaimers. While I consider myself certainly “better than the average bear” on the topic of constitutional law, I know there are far more qualified legal scholars and historians than me who could tackle this topic.1 Second, if you are looking for either the DBA or me to take a political position on the underlying the impeachment issues, you will be disappointed.

We will not.

As President of the DBA, I gave numerous speeches to organizations and groups. Perhaps the theme that I most often touched upon was the Rule of Law. A simple definition for the rule of law is: “the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.”2 As Aristotle said, “it is more proper that the law should govern than any of its citizens.”3 House Speaker Nancy Pelosi invoked the Rule of Law when she announced the

HAPPY THANKSGIVING

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Dayton Bar Briefs November 2019

Impeachment Inquiry, stating that “no one is above the law.”4 So, how rare would it be if President Trump were impeached by the House of Representatives? Actually, over nearly 250 years of our democracy, only two presidents have ever been impeached by the House: Andrew Johnson and Bill Clinton.

(Richard Nixon resigned before he was impeached.) And, in the judiciary only 15 federal Judges have been impeached.5 So impeachment proceedings are very rare.

Some commentators have suggested that presidential impeachment proceedings are more apt to occur at times when our country is greatly divided.6 Certainly, that was true for the impeachment of Andrew Johnson at the time of Reconstruction following the Civil War and for the impeachment attempt of Richard Nixon following the Vietnam War. Of course, there are many who would argue we are again at a time of great political division.

While the number of impeachment trials in American history is certainly small, the concept was well-known to the framers of our constitution. Impeachment had indeed been used in England for “high crimes and misdemeanors” for over 400 years at the time of our constitutional convention.7 While “high crimes and misdemeanors” is certainly a subjective term, most would agree the term is broader than our criminal statutes.

As Alexander Hamilton wrote in Federalist 65, impeachment could be based on “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”8 Former President Gerald Ford defined an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history,”9 which might be a corollary to Justice Potter Stewart’s definition of obscenity, “I know it

when I see it.”10 The founders did make impeachment a part of our constitution by providing in it that “The President, Vice President and all civil officers shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” 11 If the impeachment process against President Trump does move forward, it will involve both houses of the legislative branch plus the judicial branch. First, as has already occurred, the House of Representatives has the sole power to begin impeachment proceedings. If the House votes to impeach, the Senate must conduct the impeachment trial, which, would require a 2/3 vote for conviction. Additionally, the judiciary would have a role in any such impeachment trial because the constitution also provides that the Chief Justice of the Supreme Court shall preside over the trial.12 While terms like “indictment” and “trial” are bandied about in the press, we as lawyers must understand that impeachment is not a criminal proceeding and conviction does not result in incarceration. The Constitution provides that if a person is convicted by the Senate, the only remedy is removal from office and disqualification from serving in the future.

continued on page 5 ENDNOTES: See e.g., Politico Magazine, September 25, 2019 (listing views of eight legal scholars as to the transcript of President Trump’s call with Ukraine’s President).

2 Dictionary.com 3 Aristotle, Politics, 3.16.

4 Statement announcing formal impeachment, inquiry, September 24, 2019.

5 A complete list of all individuals impeached by the U.S. House of Representatives can be found at https://history.house.gov/Institution/ Impeachment/Impeachment-List/ 6 MSNBC Interview with Jon Meacham, September 26, 2019.

7 See Washington Post, Constitutional Grounds For Presidential Impeachment (1998) and sources cited therein.

8 THE FEDERALIST No. 65 (Alexander Hamilton).

9 House Floor Speech Impeach Justice Douglas, April 15, 1970.

10 Jacobellis v. Ohio, 378 U.S. 184 (1964).

11 U.S. Constitution, Article II, Section 4.

12 U.S. Constitution, Article I, Section 2 and 3.

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937.222.7902

TRUSTEES MESSAGE: Impeachment and the DBA's Political Issues Policy continued from page 4 The Constitution also provides that the President cannot issue a pardon in cases of impeachment unlike cases involving a criminal proceeding.13 So does the DBA play any role in the impeachment debate? First, we will not advance any particular political position or argue for any result. As our internal Political Issues Policy recognizes, the DBA “serves the interests of the entire membership; therefore, it does not engage in political activities and does not take a position on partisan political issues.”14 Separately, the DBA takes this position because any partisan political involvement by the DBA could “jeopardize the Association’s Not for Profit tax status.”15 However, the DBA can and should provide education and information about legal processes and precedents in a neutral manner, as I have tried to do in this article. This approach is similar to the strategy the DBA employed when we sponsored a recent CLE seminar on the topic of the Second Amendment following the Oregon District mass shootings. (Thanks again to U. D. School of Law Professor Jeffrey Schmitt for his presentation at that seminar.)

Finally, be assured that we at the DBA will continue to monitor developments in Washington and react if appropriate to anything that we believe is relevant and consistent with our policies and the interests of our members.

ENDNOTES: U.S. Constitution, Article II, Section 2.

Dayton Bar Association Political Issues Policy, adopted February 12, 2013.

15 Dayton Bar Association Political Issues Policy, adopted February 12, 2013.

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November 2019 Dayton Bar Briefs

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A Message From The Executive Director

Getting Back to Basics

By Jennifer Otchy DBA Executive Director jotchy@daybar.org

L

ast month, DBA First Vice President, Fred Young and I attended the Conference of Metropolitan Bar Associations (COMBA).

During the sessions, bar leaders were asked, “how do members measure the value of membership?”; “and, “how do we help members adapt to the challenges and changes of the profession?” We came back with fresh ideas and initiatives for the Dayton Bar Association and lent some design thinking for the challenges local bar associations face.

Design thinking is a process of creative problem solving that immerses one into a human experience and outlines empathy to gain deeper insight to what people (i.e. our members) really need. This “human centered” approach is designed to help understand people’s needs and look at ways to move forward with innovation for your organization. Fred and I had fun developing personas and immersing ourselves into their stories, challenges, values and goals.

In doing these design thinking exercises, I kept going back to the basics. Why do we exist as a bar association? What is our purpose?

How can we better help our members?

Countless times I have heard from attorneys that the most valuable benefit of the DBA is the relationships. Whether it be working together collegially at a section meeting, reaching out to local judges to help plan the next CLE program, or volunteering together at a Wills for Heroes event – These are all the beginning of stories told by members as the start of something that led to something that brought them to this client or led them to their new position.

There is immeasurable value in building relationships and making connections through your local bar association. By consistently engaging with the bench and bar, our members are building authentic relationships and strengthening the professionalism and congeniality that exists in the Dayton legal community. It is uniquely ours and makes Dayton a terrific place to live and practice.

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Dayton Bar Briefs November 2019

In short: The Dayton Bar Association exists to help lawyers be successful – both professionally and personally. Whether that be to create opportunities to establish relationships with other lawyers, offer educational programs to stay abreast of current developments in the law, or provide opportunities to serve the local community; DBA leadership and our team are committed to helping make our members’ lives a little better.

Speaking of collegiality between the bench and bar, I hope you’ll join us for the 27th Annual DBA Bench Bar Conference: Fair Elections vs. Social Media on Friday, November 8, 2019, at Sinclair Community College.

Our special guest speaker is The Honorable Judge Jeffrey S. Sutton of the Court of Appeals for the Sixth Circuit who will be speaking on topics from his book: 51 Imperfect Solutions: States and the Making of American Constitutional Law.

Later this month on Wednesday, November 20th, the DBA will be hosting our first book club event. Join us for enlightening discussion, comradery, drinks and eats as Merle F. Wilberding Esq., leads us in discussion of To Kill a Mockingbird by Harper Lee. Just bring your copy of the book, your opinions, thoughts, and perspectives. We want to make this is the experience you’ve been hoping for and we look forward to what is sure to be an illuminating evening.

There is much happening at the DBA this November. I hope you’ll read your Dayton Bar Briefs and check our website to find something that interests you. As always, feel free to reach out to me. I’d be happy to talk with you and help get you involved at the Dayton Bar Association in a meaningful way. Hope to see you around the DBA this month!

937.222.7902

O

n Thursday, September 26, 2019, the Women in Law Section hosted a “Mean Lawyers” panel to generate discussion and develop solutions around dealing with difficult people—and recognizing when you’re one of them—in the workplace. The panel was moderated by Lynn Reynolds and Erin Rhinehart, the co-chairs of the Women in Law Section, and featured Wanda Coats, Jeff Silverstein, and the Hon. Judge Wiseman. The panel drew a diverse crowd of women and men who participated in an interactive discussion with the panel, using polling software to submit responses to prompt further discussion.

Judge Wiseman devised three archetypes of “mean lawyers” we may encounter: (1) the “rage machine,” (2) the “interrupter,” and (3) the “belittler.” The first archetype is easy to spot—they are typically angry or hostile. The second archetype is less abrasive, but tends to always

www.daybar.org

want to be right and resists input from others. The last archetype is dismissive and values themselves over others. The purpose of the panel was not to gossip about colleagues; rather, it was designed to help members of our profession navigate difficult moments, advocate for themselves and others, and develop best practices for self-care and selfpreservation in stressful moments.

In discussing the importance of building these practices, Judge Wiseman noted that there is a “Deny, deflect, and delay” model that persists in our profession. Bullies don’t just exist on the schoolyard, we may encounter them in mediation, during deposition, amidst contract negotiation, or any other facet of our professional lives. Judge Wiseman opined that bullies trigger a trauma within us, and trauma has a very distinct pathway in our brain, affecting our nervous system. This response is often referred to “fight-of-flight” where our physiological response to stress is either to meet it with equal force or retreat.

Wanda Coats prefers to meet difficult people where they are, refusing to be a shrinking violet. Her approach to these people is to effectively hold up a mirror allowing them to see exactly how they’re behaving. Allowing people to identify their problematic behavior gives them opportunity to self-correct. Wanda also prefers this approach as a way to protect herself from absorbing the other person’ toxic energy.

When you take another person’s conduct or words personally, it affects you long after the encounter is over. Jeff Silverstein prefers to ignore difficult people, refusing to give them more energy than necessary. He also uses humor to diffuse difficult or even awkward moments. Jeff shared a story where he witnessed a colleague experience a difficult moment and rather than do nothing, Jeff, without hesitation, intervened and redirected the encounter. It prompted a nice discussion on being an active bystander; when you work in such a small community, it is good to know that your peers will support you when you need it most. Those moments stick with us and encourage us to do the same for someone else down the line. This ripple effect has the potential to shift the culture and change our collective attitude about what acceptable behavior looks like. We all know and

By Ebony D. Davenport appreciate the congenial DBA Editorial Board nature of our local Bar, Pickrel Schaeffer & but there is still room Ebeling Co., LPA for us to grow and do better.

November 2019 Dayton Bar Briefs

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Barrister of the Month

Bryan K. Penick Sebaly Shillito + Dyer

K

ettering-native Bryan Penick knew at a young age that he would someday become an attorney. He wasn’t inspired by a book or crime series, but rather by the sense of joy and pride that came with helping someone in need. For Bryan, that’s what being an attorney means: ensuring that those with small voices will still be heard.

Near the beginning of his undergraduate studies at Wright State University, Bryan joined the Armed Forces Reserve Ohio Army National Guard, where he served in the 2/107th Cavalry Division through the year 2000. What began as a means of funding his education quickly became the foundation on which he built the values he would carry throughout his career. The Reserves emphasized the importance of respect and teamwork in Bryan’s life. “When you’re young, you have a tendency to focus on yourself ” he reminisces, “but the Reserves taught me many things, one very important lesson was that my fellow soldiers were more important than the individual. As any soldier will tell you, you fight for the guy next to you.” It also showed me that there’s a much bigger world out there than the town I grew up in.” He likens the experience to a team sport, where each member needs to strive to become the best version of themselves in order to better the team as a whole.

When he was twenty-two years old, the Reserves sent him to Panama, Central America.

The lease on the Panama Canal had expired, and there was much work to be done. The U.S. had scaled down our presence and transitioned control of the Panama Canal to the Panamanian government. At the time, Bryan was part of the Army’s Corp of Engineers and his unit was tasked with both demolition tasks and constructing buildings in order to house sensitive materials and equipment. Bryan had 8

Dayton Bar Briefs November 2019

a bit of a background in construction matters, but he was still surprised when it was requested that he manage the project, which was a major responsibility for anyone, let alone someone his age. This required him to manage both his peers and people with significantly higher rank. “It was a stressful but rewarding experience” he says, “I was given the opportunity to participate in meetings with high-ranking officers and to have my opinions heard.” Bryan recalls interjecting some of his thoughts with the Unit Commander at a meeting of all of the project managers. Being that Bryan had little rank, it was pretty “nerve racking” to speak to this group. Bryan can recall being confident in speaking, but very nervous given the age and rank of the audience. But he shared his ideas on a better way to accomplish a task and was able to bolster his idea with practical arguments.

Much to his surprise, Bryan was granted a field-grade promotion during his time in Panama by his commanding Officer who was apparently impressed with what he was able to bring to the table during his short time there.

Bryan, although very appreciative of the promotion, didn’t feel that he did anything special to deserve it. This helped to solidify Bryan’s stance on the importance of having everyone’s voice not only heard, but respected.

During his time with the Reserves, Bryan continued to work toward his Bachelor of Arts degree in Political Science. He spent his free time playing sports. His friend encouraged him to join the Dayton Steelers and also the Dayton Cowboys, which were local semi-pro football teams. Never one to shy away from an opportunity, Bryan attended the tryouts, and made the team. Bryan remembers playing with long time Juvenile Court Magistrate Will Cox and the two always reminisce about

their “glory days” and old teammates whenever he gets a chance to see him. He played from 1990 to 1996, when he started law school at the University of Dayton School of Law. At the School of Law, Bryan served as the President of the Criminal Law Association where he continued to hone his passion for criminal defense. Following his graduation in 1999, Bryan joined an association of independent attorneys known as Little, Duncan & Depoorter. This allowed him to experience the freedom of a solo practitioner, but also the comradery of a firm. During this time, he refined his practice to that of Criminal Defense, Family and Juvenile Law, and DUI/ OVI Defense: the three areas of law which he still practices today.

Following his time at Little, Duncan & Depoorter, Bryan became an Associate Attorney with Boucher & Boucher Co. LPA, where he expanded his practice to include Racketeering Influenced Corrupt Organizations (“RICO”), Money Laundering, Trafficking, and Conspiracy. Bryan also involved himself with Federal Civil litigation regarding Civil Rights and U.S.C. § 1983 violations. His work with Boucher & Boucher earned him the recognition of being one of Ohio’s Super Lawyers, Rising Stars, in 2006.

Bryan decided to try his hand at being a solo practitioner again in 2007. He was successful, and even litigated an administrative action with the Securities and Exchange Commission in New York. During that time, he brought in multiple well-known names as clients and developed a strong book of business. Sebaly Shillito + Dyer took notice of Bryan’s many successes, and in 2014 they decided to bring in Bryan as a shareholder.

continued on page 9

937.222.7902

November 2019

BARRISTER OF THE MONTH: Bryan K. Penick continued from page 8 “I’m grateful for the opportunities I have with Sebaly Shillito + Dyer,” Bryan says, “and I’m thankful to work with this group of people. From the senior level partners, to junior associates, to the support staff, the firm provides a culture rooted in teamwork that focuses on each client’s needs.” He not only feels a sense of pride in his firm, but in the Dayton region itself. Bryan feels that the attorneys and judges in this area are collegial and respectful, and that we in the Dayton area are lucky to practice in this community.

No matter where he travels for work, Dayton’s Bar Association always feels like home.

In order to give back to the community that built him, Bryan teaches a Criminal Law Capstone at the University of Dayton School of Law. The students who complete Bryan’s Capstone learn practical matters that every Criminal Law practitioner will need to understand. Bryan feels it is important that the next generation of attorneys understand not only what it means to argue a case or file a motion, but to truly advocate for your client in order to ensure a client’s voice is heard. “For me,” Bryan states, “the most rewarding experience is exonerating a client who was wrongfully accused of a crime, and to give them their life back.” Talking to Bryan, it is clear that the values he held as a young child have only strengthened with time.

When asked what career he would have if he was not an attorney, he laughs and says he would be a high school or college football coach. When he is not in the office or the courtroom, Bryan can be found coaching his youngest son’s PeeWee Football, Baseball, and Basketball teams. Not only does he enjoy the sports, but he is able to pass on the importance of teamwork and respect to his son.

Before our conversation concluded, Bryan offered a few words of advice to any new attorneys reading: dedicate yourself to your profession, be passionate about your work and your work product, be respectful when presenting arguments and, perhaps the most important, do not be afraid to ask questions. “You should learn from the people who came before you, but you can also learn from your peers, so never be afraid to ask a question. You can always improve in your practice.” Bryan’s emphasis on improving himself and his practice benefits both his clients and the Dayton legal community as a whole. The Dayton Bar Association is thankful to have an attorney as passionate and helpful as Bryan in our midst.

By Alexandra Laine DBA Editorial Board Taft Law

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@Noon Juvenile Law CASA Room Montgomery County Juvenile Court @Noon Young Lawyers Division @11:30am Public Service & Congeniality The Old Courthouse @Noon Federal Practice @Noon Labor & Employment @Noon Appellate Court Practice Lunch will be provided!

Appellate Procedure: Back to Basics with the Second District Court of Appeals Administrative Staff. How to recognize issues that impact an appeal at initiation, during briefing, and beyond. @4pm Estate Planning Trust & Probate @Noon Domestic Relations @Noon Real Property @Noon Diversity Issues @Noon Criminal Law @Noon Workers Comp & Social Security @4:30pm Corporate Counsel Bravo Italian Restaurant Dayton Mall @5:00pm Civil Practice & ADR November 2019 Dayton Bar Briefs

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Civil Trial Practice & ADR

Proposed Amendments to the Ohio Rules of Civil Procedure T

he Supreme Court of Ohio recently published proposed amendments to the Ohio Rules of Civil Procedure. A cursory review of the proposed amendments uncovers that the Commission on the Rules of Practice and Procedure’s (“Commission”) overarching purpose with the proposed amendments is to bring certain Ohio rules more in line with the corresponding Federal Rules of Civil Procedure.

Some of the highlights of the proposed amendments are as follows:

1.) Civ. R. 4, 4.1 and 4.7

The Commission is recommending a series of revisions to Civ. R. 4 designed to implement waiver of service provisions similar to those used in the Federal Rules of Civil Procedure. These waiver of service provisions would be limited to the Courts of Common Pleas. Under the proposed amendments, (1) a defendant’s failure to waive service could result in its having to pay plaintiff ’s expenses incurred in making service, including attorneys’ fees, (2) a defendant who timely returns a service waiver would have sixty days—from the time the request was sent—to answer the complaint, and (3) a defendant would not waive any objection to jurisdiction or venue by waiving service of a summons. Proposed Rule 4.7 (a new rule) would impose a duty on any “individual, corporation, partnership, or association that is subject to service under Civ.R. 4 through 4.6” to “avoid unnecessary expenses of serving the summons.”

2.) Civ. R. 16 and 26 Civ. R. 16 is completely changed in the proposed amendments. The proposed revisions track the corresponding Federal Rule and require a trial court to issue a scheduling order (A) after receiving the parties’ Civ. R. 26(F) report, (B) after consulting with the parties’ attorneys at a scheduling conference, or (C) sua sponte. Among other things, the proposed Rule lays out a specific timeframe within which a court should issue a scheduling order and identifies what a scheduling order may include.

The proposed revisions to Civ. R. 26 also track with the corresponding federal rule, most notably in changes to the “Scope of Discovery” provision, which implements a “proportionality” requirement and deletes the “reasonably calculated” language. Parties would also be required to exchange initial disclosures without awaiting

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Dayton Bar Briefs November 2019

By Sean P. McCormick Co Chair Civil Trial Practice Thompson Hine LLP

a written discovery request. Parties would conduct a “Rule 26(F)” conference and submit a written discovery plan to the court, as is required under the corresponding Federal Rule. The proposal would also require the disclosure of documents obtained via a public records request.

Notably, the proposed revisions to Civ. R. 26 do not alter the provision addressing the sequencing and timing of discovery, which places no restrictions on the commencement of discovery absent an order from the court. Civ. R. 26(D). Conversely, the corresponding Federal Rule provides that discovery may not be sought until the parties have held a Fed. R. Civ. P. 26(f ) conference, which is only required once the district court sets a Fed. R. Civ. P. 16(b) conference or a scheduling order is due. See Fed. R. Civ. P. 26(d)(1). Also notable is the proposed “Disclosure of Expert Testimony” section, which, among other things, would require parties to submit expert reports in accordance with a schedule established by the Court.

3.) Civ. R. 53 When the parties unanimously consent to a jury trial before a magistrate, the Commission’s proposed revisions clarify that a trial judge must enter judgment consistent with a magistrate’s journalized entry. The magistrate would decide all motions following such consent, and the trial judge would be prohibited from reviewing the magistrate’s legal rulings or the jury’s factual findings.

4.) Civil Indigency Form The proposed form is in response to the General Assembly’s recent passage of R.C. 2323.31, which permits indigent civil litigants to petition a court to waive fee deposits.

The proposed form contains the financial benchmarks laid out in the statute.

The Commission also proposed amendments to the Ohio Rules of Criminal Procedure (19 and 46), the Ohio Rules of Evidence (601, 810, and 902), the Ohio Rules of Appellate Procedure (3, 19, and 21), and the Ohio Rules of Juvenile Procedure (3, 4, and 42). The Supreme Court is accepting public comments on the proposed amendments through November 6, 2019.

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November 2019 Dayton Bar Briefs

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For the

T

Good

his month, we are pleased to spotlight the Honorable Gerald Parker, who is rounding out his first year as a newlyelected judge for the Montgomery County Court of Common Pleas. Judge Parker serves in the General Division, presiding over a wide-ranging docket. He also serves on the Offender Supervision and Security Committee. Judge Parker made history in November 2018, becoming the first African American man to be elected to the Montgomery County Court of Common Pleas (General Division). While it may be easy to celebrate the outcome, Judge Parker emphasizes the help he’s received along the way that has propelled him to where he is today. His involvement in the community at large is due in large part to his gratitude to those who came before him. Judge Parker unequivocally believes it is his duty to do the same for others; to lift as you climb is simply part of the job.

Judge Parker graduated from Georgetown College, where he served as captain of a national championship football team.

Despite his love for athletics, Judge Parker knew that he needed a plan b, competing just as zealously in the classroom as he did on the field. His competitive nature led him to Salmon P. Chase College of Law at Northern Kentucky where he earned his Juris Doctor. He began his career in 2007 serving as an assistant prosecuting attorney in the Montgomery County Prosecutor’s Office. Judge Parker later joined Dyer, Garofalo, Mann & Schultz before ultimately serving as a magistrate judge in the Montgomery County Juvenile Court. Throughout his career, Judge Parker has consistently and intentionally made community engagement a priority, with the ultimate goal of making 12

Dayton Bar Briefs November 2019

Spotlighting The Honorable Gerald Parker Montgomery County Common Pleas Court

the legal profession accessible to all.

While his drive to succeed is due in part to his love of healthy competition, Judge Parker’s approach to community engagement is also shaped by his experiences growing up. It did not take long to notice the lack of representation in the legal community, which motivated him to become a prosecutor. Once he began working as a magistrate judge in the juvenile court, he noticed the influx of young African American boys and young adults. Judge Parker saw a need and filled it; he began taking any opportunity he could to expose those same individuals to a different perspective. He knew how important representation is and the impact seeing someone like yourself can have on the decisions you make for your own life. Judge Parker’s black robe has never been a barrier; instead, he considers it a bridge to endless possibilities.

Throughout his career, Judge Parker has participated in Big Brothers Big Sisters.

During his time in private practice, Judge Parker worked with ex-offenders, helping them with job readiness skills including completing Certificates of Qualified Employment (CQE) so that they could secure employment and fully reintegrate into society. While serving as a magistrate judge, Judge Parker began working with Building Bridges, a local non-profit organization providing area youth with an opportunity to

make better choices and change the trajectory of their lives. Judge Parker currently serves on the Board of Building Bridges and actively engages the youth in the program.

In January of 2017, Judge Parker partnered with his home gym, Centerville CrossFit, to offer the participants a new experience.

CrossFit allows them to relieve stress in a healthy, supportive environment; build a sense of community around shared experiences; and challenge their mental and physical endurance. Judge Parker believes that active involvement and access to positive outlets can make a world of difference in many of these kids’ lives. He speaks regularly at area schools, focusing on the importance of career, community, and how students can use their competitive edge in athletics to drive their professional and personal goals.

Judge Parker does not just talk the talk, he walks the walk. He believes that because “everyone had help to get where they are,” it is his duty to help others along the way.

Judge Parker is always willing to educate students of all ages and to make his chambers accessible.

continued on page 13

937.222.7902

FOR THE GOOD: THE HONORABLE GERALD PARKER continued from page 12

In fact, Judge Parker graciously, and without hesitation, invited me to observe a hearing in his courtroom while he was a magistrate judge during my 2L year at University of Dayton School of Law. Judge Parker expresses that same enthusiasm with every student he encounters. It is rare that a week goes by that there isn’t at least one student visiting his chambers or observing a proceeding in his court. Judge Parker does not treat these visits lightly; indeed, Judge Parker requires students to actively participate in the process. Students have the opportunity to review the docket, engage with court staff, and on occasion—and with permission observe discussions between the prosecution and the defense.

Judge Parker also finds ways to get involved in his personal life. On Tuesday nights, Judge Parker attends an open forum at his church, Southbrook Christian Church, where he and other members share their experiences with students on the pressures of performance—athletic, academic, artistic, etc.—and how to balance sometimes conflicting needs while still living a healthy, successful life. As a member of Alpha Phi Alpha, Fraternity Incorporated, Judge Parker is able to expand his reach in the community.

Its motto, “First of All, Servants of All, We Shall Transcend All” rings especially true with Judge Parker.

“Every person you meet is important, and you need to treat them as such.” Judge Parker has continued to remain grounded despite his many accomplishments, and never turns down a chance to give back in some capacity.

Service to the larger community is central to this profession. Judge Parker recognizes that many people respect the robe and the bench, but knows that is not enough. Actively engaging the community beyond the bench is how you truly make an impact. He has demonstrated his commitment not only to the legal community, but the community at large, and above all else, his willingness to serve others.

By Ebony D. Davenport DBA Editorial Board Pickrel Schaeffer & Ebeling Co., LPA

Readers, this is your spot!

The DBA launches our first ever book club this fall.

Join us as we meet quarterly for enlightening discussion, comradery and snacks. Participants can come and go as they please – no requirement to read every book or attend every discussion.

This year, the DBA will be engaging members with a cross section of literary classics, law-related themes and societal issues. The November DBA Book Club selection: To Kill a Mockingbird by Harper Lee Bring your copy of the book, your opinions, thoughts, and perspectives to the DBA Offices on November 20th. The DBA wants to make this the experience you’ve been hoping for. Drinks and eats provided. You get to decide how you want to enjoy the book club experience!

To Kill a Mockingbird by Harper Lee November 20, 2019 | 4:00pm | DBA Offices 2019-20 DBA Book Club Meetings: January: Devil in the Grove

by Gilbert King

March: Hillbilly Elegy: A Memoir of a Family and Culture in Crisis

by J.D. Vance

May: Book Club Selection

www.daybar.org

November 2019 Dayton Bar Briefs

13

DBA Rising Star

Emily E. Sluk.

O

ur Dayton Bar Association Rising Star this month is, Emily Sluk. Emily was born in Virginia, spent the first ten years of her life in Pittsburgh (Go Steelers!), then moved with her family to Oberlin. Raised amidst academia, her father was an archivist and librarian at the University of Pittsburgh before taking a similar position at Oberlin College.

Emily attended Elyria Catholic High School where she was involved in cheerleading and drama, including a part in the stage version of Twelve Angry Men, the exploration of a jury’s deliberations following the trial of an 18 year-old slum dweller charged with murdering his father.

If drama, as is often said, mirrors real life, then Emily’s enrollment at Mercyhurst to pursue a degree in criminal justice was perhaps predictable. After acceptance into the National Honor Society and college graduation in 2004, Emily entered law school at the University of Dayton. In law school, she distinguished herself as a moot court advocate thus preparing herself for a litigation practice to come.

Many of us know Emily as an able assistant to County Prosecutor Mathias Heck who employed her twice, the first time

from April, 2008, to April, 2013, and the second from the fall of 2014 to the spring of 2017. In between, she was an assistant prosecutor to Miami County Prosecutor Anthony Kendall. Over that period, Emily advocated in nearly every aspect of criminal prosecution, including major felonies, juvenile delinquency, grand jury presentments and appeals. As importantly, she taught law and procedure at Edison Community College’s policy academy.

After nine years as a public servant, Emily branched out into private practice, initially as an associate of Nicholas Gounaris and Antony Abboud, but more recently as a self-employed lawyer in an office sharing arrangement with the esteemed and collegial group of Steven Pierson, Mark Henry, Karen Bradley, Jeffrey McQuiston, Karl Kordalis and James Hemenway. In this setting, Emily’s family law and criminal defense practice is a solid fit. Her pri vate practice notwithstanding, Emily has not abandoned the realm of criminal prosecuting inasmuch as she pinch hits for Nolan Thomas and John Everett in the City of Kettering.

Emily attributes her interest in the law, and much of her success in it, to her late father who encouraged her to pursue law as a profes-

sion. Her college studies and exposure to law enforcement have also inspired and grounded her advocacy.

Over her relatively brief career, Emily has heeded the admonition of comedian and activist, Jon Stewart:

Love what you do. Get good at it.

Competence is a rare commodity in this day and age. And let the chips fall where they may.

So far, the chips for Emily are falling nicely into place.

By Thomas J. Intili DBA Editorial Board Intili Group, LPA

Earn Up to 12-Hours of CLE Online!

Anytime. Anywhere.

Take a look at our new online CLE programs at:

daybar.ce21.com

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Dayton Bar Briefs November 2019

937.222.7902

Eikenbary Trust

All of the Money for Young Lawyers H

erbert M. Eikenbary, known as the Owl and the Claw, gave his estate for the benefit of young lawyers working to get started in the practice.

What sort of person does that? The same man who wrote, “I have lived in a legalistic demimonde representing bank robbers, safe crackers, women of easy and uneasy virtue, petty gamblers, panderers, procurers, clothesline thieves, pickpockets and miscreants large and small, of every vintage and degree, including the halt, the lame and blind, all who are at outs with themselves, their God, their country and their fellow men.”

While lawyers may or may not have been in those named groups, during his life, Herb gave generously to help individuals. He encouraged an office cleaner who worked in his building to seek education. He supported her with a gift to finance her studies and she became a professional nurse. He also gave counsel and advice to a newspaper boy who eventually became an attorney. The Claw gave free space to new attorneys in the Lawyers Building as they started their practice.

The Eikenbary Trust, administered through the Dayton Bar Association, holds nearly a million dollars which it is seeking to give away or loan.

Please visit the DBA page for the trust at: https:www.daybar.org/financialassistance and read David Greer’s article about Eikenbary at that same location.

Photo credit Getty Images ©

DAYTON Bar Association

Grants of up to $4,000 and loans of up to $6,000 are available now. If you are interested, please contact Jennifer Otchy, DBA Executive Director | jotchy@daybar.org.

HERBERT M. EIKENBARY

Trust

What is The Eikenbary Trust?

The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance.

Individual loans, are available up to $6,000 at 4% interest, while grants up to $4000 are also available.

DBA Annual

Probate Law Institute 3.6.2020

To Apply: Jennifer Otchy,DBA Executive Director Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org www.daybar.org

November 2019 Dayton Bar Briefs

15

N ovember C ontinuing L egal E ducation November

Friday, November15th | 12:00 - 3:45pm

Tuesday, November 5th | 12:00 - 3:45pm

Well-Being Skills for the Effective Lawyer (video)

Writing for Advocates (video) 3.0 General Hrs M $105 | NM $150 | P $0

2.5 Prof Conduct Hrs + 0.5 General Hrs M $25 | NM $45 | P$0 PC hrs

Friday, November 8 | 8:30 - 4:00pm th

27th Annual DBA Bench Bar Conference Fair Elections vs. Social Media @ Sinclair Community College Building 12 5.75 General Hrs, PC 1.0 Prof Conduct Hr M $215 | NM $300 | PP $30

Tuesday, November 19th | 9:00 - 10:00am

Mandatory Certification!

Criminal Law Certification

The Second Amendment: It’s History and Modern Judicial Analysis (video) 1.0 General Hr M $25 | NM $45 | P $0

hrs

Friday, November 22nd | 9:00 - 3:45pm

Wednesday, November 13th | 4:00 - 5:00pm

2 Part Series: The Ohio Trust Code, Part 2 Estate Planning, Trust & Probate 1.0 General Hr M $25 | NM $45 | P $0 Speakers: James Jacobson Esq.; Pickrel Schaeffer & Ebeling Co., LPA Kristina Rainer Esq., Roberson Law Ed Smith Esq., Nolan Sprowl Smith Removal & Replacement of Trustee: Trust litigation

Criminal Law Certification

6.0 General Hrs M $215 | NM $300 | P $0 If you are not on the Montgomery County Court appointment you must attend this seminar for certification.

Monday, November 25th | 1:00 - 4:15pm

Appointed Appellate Counsel Seminar (video) 3.0 NLT or General Hrs M $105 | NM $150 | P $0

Thursday, November 14th | 9:00 - 12:15pm

Ethics Case Law Review and New Advisory Opinions

3.0 Professional Conduct Hrs M $105 | NM $150 | P $0 Speakers: John M. Ruffolo, DBA Bar Counsel, Ruffolo Stone & Stone Tabitha Justice, Subashi Wildermuth and Justice Mark A. Tuss, Law Offices of Mark A. Tuss Jeff Hazlett, DBA Ethics and Grievance Section, Mediator/Arbitrator PC hrs

Tuesday, November 26th | 8:45 - 4:30pm

Annual Elder Law Update (video) 5.0 General Hrs + PC 1.0 Prof Conduct Hr M $215 | NM $300 | P$30 | Print Materials $30

Friday, November 22, 2019 9:00 - 3:45pm | 6.0 General Hrs M $215 | NM $300 | P $0 If you are not on the Montgomery County Court appointment you must attend this seminar for certification.

AGENDA: 8:00 - 8:15am Intro Judge Richard Skelton, Montgomery County Common Pleas Court

hrs

Wednesday, November 27th | 9:00 - 12:15pm

2019 Ethics Case Law Review and New Advisory Opinions (video) PC 3.0 Prof Conduct Hrs M $105 | NM $150 | P$0

8:15 - 8:30am Montgomery County Lingo 101 Alysia Goss Esq., Montgomery County Public Defender’s Office 8:30 - 9:30am Prelims, Pre-indictment, Arraignment, Bond Review, Grand Jury Charles Grove Esq., Montgomery County Public Defender’s Office

hrs

9:30 - 9:45am BREAK

About the Ethics Seminar:

Ethics Case Law Review and New Advisory Opinions

9:45 - 10:30am Client Control Kristine Comunale Esq. , Montgomery County Public Defender’s Office 10:30 - 11:15am Discovery, Pleas, Pre-Trial Conference Carl Goraleski Esq.

Thursday, November 14, 2019 9:00 - 12:15pm | PC 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0 *Annual DBA Speaker Favorite: John M. Ruffolo, DBA Bar Counsel Tabitha Justice, Subashi Wildermuth and Justice Mark A. Tuss, Law Offices of Mark A. Tuss Jeff Hazlett, DBA Ethics and Grievance Committee hrs

During this seminar, presenters will discuss common ethics violations, professionalism in the practice and the routine procedures for prosecuting ethics violations. This is a great opportunity to learn something new about the Ohio Rules of Professional Conduct and professional experiences. The Rules and Example cases will be provided to all attendees.

AGENDA: Legal Basis: Under Article IV, Section 2(B) of the Ohio Constitution, the Supreme Court of Ohio has original jurisdiction regarding the admission to the practice of law, the discipline of persons so admitted, and all other matters relating to the practice of law. [Article IV, Section 2(B)(1)(g)]

11:15 - 11:45am Pre-Trial Motions Susan Souther Esq., Montgomery County Public Defender’s Office 11:45 - 12:30pm LUNCH (on your own) 12:30 - 1:00 pm Investigation Trial Prep Tamara Sacks Esq. 1:00 - 2:15 pm Dispositions, ILC, Diversion, CCS Carla Maragano Esq., Montgomery County Public Defender's Office 2:15 - 2:30pm BREAK

continued on page 19

Common Ethics Violations: Consistent with its constitutional powers, the Supreme Court of Ohio adopted the Ohio Rules of Professional Conduct, effective February 1, 2007, superseding and replacing the Ohio Code of Professional Responsibility.

2:30 - 3:15pm Appeals, Fees John Pinard Carl Bryan Esq., Bryan Law, LLC 3:15 - 3:45 pm Probation Connie Houston

9:00-10:00am Yearly summary of Ohio Disciplinary Cases 10:00-10:15am Break 10:15-12:15pm New Advisory Opinions Review

to register: daybar.org/cle

16

Dayton Bar Briefs November 2019

937.222.7902

Friday, November 8, 2019

5.75 CLE Hrs

Sinclair Community College

27th Annual DBA Bench Bar Conference Special Guest Speaker:

The Honorable Judge Jeffrey Sutton US Court of Appeals for the 6th Circuit Jeffrey S. Sutton has served on the United States Court of Appeals for the Sixth Circuit since 2003.

Before that, he was the State Solicitor of Ohio and a partner at Jones Day in Columbus. He has argued twelve cases in the United States Supreme Court and numerous cases in the state supreme courts and federal courts of appeal.

Judge Sutton served as a law clerk to Justices Lewis F. Powell, Jr. (Ret.) and Antonin Scalia of the United States Supreme Court, as well as Judge Thomas J. Meskill of the United States Court of Appeals for the Second Circuit. Judge Sutton received his B.A. from Williams College and his J.D. from The Ohio State University College of Law.

2019 Bench Bar C0-chairs: The Honorable Anthony Capizzi Montgomery County Juvenile Court

Cori R. Haper

Thompson Hine LLP

Agenda:

8:15-8:30am

Welcome and Introductions

8:30-10:00am PLENARY 1:

The Honorable Judge Jeffrey Sutton,

US Court of Appeals for the 6th Circuit

"51 Imperfect Solutions: States and the

Making of American Constitutional Law" 10:00-10:15am Break 10:15-11:15am Breakout Session I:

Appellate Court; Dayton Municipal

Court; Probate Court; US District Court 11:15-11:30am Break www.daybar.org

Fair Elections vs.

Social Media Friday, November 8th @ Sinclair Community College Bldg 12

5.75 General Hrs + 1.0 Professional Conduct Hr M $215 | NM $300 | P $30

11:30-12:30pm PLENARY 2: Building Bridges Between the Bench and Bar:

Round Table Discussion with the Judges 12:35-1:30pm

Lunch

1:30-2:30pm PLENARY 3: Professor Thaddeus A. Hoffmeister,

University of Dayton School of Law

Elections Use of Social Media 2:30-2:45pm

Break

2:45-3:45pm

Breakout Session 2: Domestic Relations Court; Juvenile Court; Common Pleas Court November 2019 Dayton Bar Briefs

17

D ecember C ontinuing L egal E ducation December

Wednesday, December 18th | 9:00 - 12:15pm

Wednesday, December 4th | 9:00 - 12:15pm

A Visit to the Second District Court of Appeals Lessons in Appellate Advocacy from Within the Courtroom

Young Lawyers Division Roundup 3.0 NLT or General Hrs M $105 | NM $150 | P $0 Speakers: John M. Ruffolo Esq., DBA Bar Counsel, Ruffolo Stone & Stone Anthony S. VanNoy Esq, Anthony S. VanNoy, Inc. Stephanie M. Allen Esq. Wright State University Legal Services

@ Second District Court of Appeals 3.0 General Hrs M $105 | NM $150 | P $0 Wednesday, December 18th | 1:00 - 4:15pm

Workers Comp for the General Practitioner

Thursday, December 5 | 9:00 - 12:15pm th

3.0 General Hrs M $105 | NM $150 | P $0 Speaker: Joe Gibson, Gibson Law

Domestic Relations Potpourri 3.0 General Hrs M $105 | NM $150 | P $0

Thursday, December 19th | 9:00 - 12:15pm

Friday, December 6th | 12:00 - 3:45pm

Civil Trial Insights

Well-Being Skills for the Effective Lawyer (video)

3.0 General Hrs M $105 | NM $150 | P $0 Speakers: Honorable Thomas Rose, U.S. District Court for the Southern District of Ohio Honorable Michael Newman, U.S. District Court for the Southern District of Ohio Honorable Gerald Parker Jr., Montgomery County Common Pleas Court Honorable Mary E. Montgomery, Montgomery County Common Pleas Court

PC hrs

2.5 Professional Conduct Hr + 0.5 General Hrs M $25 | NM $45 | P$0 Tuesday, December 10th | 9:00 - 12:15pm

Federal Practice Update...The Sequel 3.0 General Hrs M $105 | NM $150 | P $0

Friday, December 20th | 9:00 - 12:15pm

Tuesday, December 10th | 1:00 - 4:15pm

27th Annual Intellectual Property for General and Corporate Practitioners

Real Property Roundup 3.0 General Hrs M $105 | NM $150 | P $0

2.0 General Hrs, PC 1.0 Professional Conduct Hr M $105 | NM $150 | P $0 hrs

Wednesday, December 11th | 1:00 - 4:15pm

Friday, December 20th | 1:00 - 4:15pm

Judge Langer's Criminal Law Update @ Sinclair Community College Building 12 3.0 General Hrs M $105 | NM $150 | P $0 Speaker: Honorable Dennis J. Langer, Montgomery County Common Pleas Court

Overview and Update on Juvenile Court

Labor & Employment Roundup 3.0 General Hrs M $105 | NM $150 | P $0 Discussion regarding the differences and similarities between Title VII and the Ohio Civil Rights Act; the causation standards under various employment statutes; the latest 2019 updates; EEOC Civility Training and the #MeToo Movement.

18

Dayton Bar Briefs November 2019

Monday, December 23rd | 9:00 - 12:15pm PC 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

Thursday, December 26th | 12:00 - 3:15pm

Business Law Basics (video) 3.0 NLT or General Hrs M $105 | NM $150 | P $0

Friday, December 27th | 9:00 - 12:15pm

Young Lawyers Division Roundup (video) 3.0 NLT or General Hrs M $105 | NM $150 | P $0

Tuesday, December 17th | 9:00 - 12:15pm

3.0 General Hrs M $105 | NM $150 | P $0

hrs

hrs

3.0 General Hrs M $105 | NM $150 | P $0 Speakers: Magistrate Julie A. Bruns, Montgomery Cty Juvenile Court Magistrate Gina A. Feller, Montgomery Cty Juvenile Court Magistrate Kathleen Lenski, Montgomery Cty Juvenile Court Topics to be covered: Delinquency; Private Custody Cases; Dependency; Abuse and Neglect Cases with a caselaw update.

Estate Planning Roundup: Drafting Estate Planning Documents

PC 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0

Ethics Case Law Review and New Advisory Opinions (video)

Friday, December 13 | 9:00 - 12:15pm th

Tuesday, December 17th | 1:00 - 4:15pm

Ethics Case Law Review and New Advisory Opinions (video)

Friday, December 27th | 1:00 - 4:15pm

Ethics Case Law Review and New Advisory Opinions (video)

PC 3.0 Professional Conduct Hrs M $105 | NM $150 | P $0 hrs

ns LE Additio !

C e t a d o For up-t egister in one easy click +R /cle Go Online ybar.org www.da

937.222.7902

Informative for New Lawyers!

Young Lawyers Division Roundup Wednesday, December 4, 2019 | 9:00am - 12:15pm 3.0 NLT or General Hrs M $105 | NM $150 | PP $0 Speakers: John M. Ruffolo Esq., Ruffolo Stone & Stone Anthony S. VanNoy Esq., Anthony S. VanNoy, Inc. Stephanie Allen Esq., Wright State University Student Legal Service Agenda: This three part day will begin with DBA Bar Counsel, John M. Ruffolo speaking on Ethics and IOLTA. Anthony S. VanNoy will follow with Professionalism in the practice of law. Finally, Stephanie Allen will speak on Law Practice Management.

Stephanie M. Allen Esq.

John M. Ruffolo Esq.

Anthony S. VanNoy Esq.

A Follow-up to a Phenomenal Program!

Federal Practice Update...

The Sequel

Tuesday, December 10, 2019 | 9:00am - 12:15pm 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: Welcome and Opening Remarks Michael N. Rhinehart Esq. - Co-Chair of the Federal Practice Section Glen R. McMurry Esq. - Co-Chair of the Federal Practice Section

continued on page 19

9:00-10:00 am Year in Review of the U.S. District Court (Dayton) Panel: Honorable Walter H. Rice & Honorable Thomas M. Rose Moderator: Honorable Michael J. Newman This panel presentation will discuss recent issues concerning practice and procedures in the U.S. District Court in Dayton, and will address particular questions presented by attendees.

10:00-10:45am U.S. Supreme Court Review Honorable Sharon L. Ovington will review U.S. Supreme Court opinions issued since December 2017. This presentation will not only offer updates to federal practitioners on recent decisions, but will also identify developing trends.

10:45-11:00am BREAK 11:00-11:45 am Federal Civil Procedure Update Honorable Michael J. Newman and Michael N. Rhinehart Esq. will present an analysis of Civil Rules updates, the Local Rules, and how case law has developed over the past year.

Glen R. McMurry Esq. Michael N. Rhinehart Esq.

Honorable Michael J. Newman

Honorable Sharon L. Ovington

Honorable Walter H. Rice

Honorable Thomas M. Rose

11:45-12:15pm The Basics of Multidistrict Litigation (“MDL�)

Glen R. McMurry Esq. of Dinsmore & Shohl LLP will discuss the rules, procedures and other basics of multidistrict litigation in the federal courts.

12:15pm ADJOURN www.daybar.org

November 2019 Dayton Bar Briefs

19

M ore D ecember CLE F eatures 2019 Estate Planning Trust & Probate Law Roundup

Annual DBA CLE Speaker Favorite!

Estate Planning Roundup: Drafting Estate Planning Documents

Judge Langer's Criminal Law Update

Wednesday, December 11, 2019 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | PP $0 Speaker: The Honorable Dennis J. Langer Montgomery County Common Pleas Court

Honorable Dennis J. Langer

Agenda: Judge Langer will survey US and Ohio Supreme Court and appellate decisions. Topics may include: search and seizure, confessions, pretrial identifications criminal offenses, pretrial procedure, rules of evidence, trial procedure, sentencing, and CCS revocation.

2019 Appellate Court Practice Roundup

A Visit to the Second District Court of Appeals – Lessons in Appellate Advocacy from Within the Court Room Wednesday, December 18, 2019 9:00am - 12:15pm | 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: In this three-hour CLE, we will be in the actual Second District Court of Appeals courtroom for this exciting and educational tour of an appeal from start to finish. We will present on most aspects of the entire appellate process, from the notice of appeal, ensuring the record is complete, and issue spotting and brief writing. We will also feature a live oral argument and critique and address relevant motions practice. Of interest to both novel and experienced appellate practitioners, this program will be both educational and thought provoking.

Tuesday, December 17, 2019 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: Drafting estate planning documents 1) Wills 2) Powers of Attorney 3) Heath care documents 4) Assignments & TOD Affidavits

2019 Workers Comp Roundup

Workers Comp for the General Practitioner Wednesday, December 18, 2019 1:00pm - 4:15pm | 3.0 General Hrs M $105 | NM $150 | PP $0 Joseph E. Gibson Esq.

Speaker: Joseph E. Gibson, Gibson Law

Agenda: In addition to being versed in Ohio Workers’ Compensation Law, the Workers’ Comp practitioner, by nature, must deal with many other areas of substantive law, more than (dare we say) the average practitioner in tax, corporate, or other areas. As a result the workers’ comp practitioner really ends up having to know many areas of the law.

Looking for an Advantage in Civil Litigation?

Civil Trial Insights

Thursday, December 19, 2019 | 9:00am - 12:15pm 3.0 General Hrs M $105 | NM $150 | PP $0 Agenda: Speaker Insights From The Bench: Judge Thomas Rose, U.S. District Court for the Southern District of Ohio; Judge Michael Newman, U.S. District Court for the Southern District of Ohio; Judge Gerald Parker Jr. and Judge Mary Montgomery for the Montgomery County Common Pleas Court.

Jeffrey T. Cox Esq.

Honorable Mary E. Montgomery Honorable Gerald Parker Jr.

Honorable Michael J. Newman

Honorable Thomas M. Rose

Pursuing Your Best Forum - Venue & Removal: Jeff Cox, Faruki PLL. 20

Dayton Bar Briefs November 2019

937.222.7902

Having an Offsite Meeting?

Consider Renting the DBA Facilities!

Additional Member Benefit Low Rates Beverage service available Call to reserve space today!

937.222.7902 The DBA offices are equipped with a variety of meeting and conference rooms for use by our members, law firms, businesses and organizations. Our facilities will accommodate groups as large as 75 people, depending upon set up requirements, and can be reserved with just a phone call.

Consider the DBA for all your meeting needs: Depositions, Mediations & Arbitrations, Training, Client Meetings, Firm Events, Retreats and more. Located adjacent to the Schuster Performing Arts Center, the DBA is a convenient walk from the business district and a short drive from anywhere in the Miami Valley. www.daybar.org

November 2019 Dayton Bar Briefs

21

We Need Your Help in Making this Year's Mock Trial Competition a Success!

22

Dayton Bar Briefs November 2019

937.222.7902

The Importance of Gratitude

OLAP

By Scott R. Mote Executive Director of the Ohio Lawyers Assistance Program

If you are unhappy, depressed, suffering from substance abuse, burnout, or stress, and you believe it is affecting your life, the Ohio Lawyers Assistance Program can provide CONFIDENTIAL help.

For more info: ohiolap.org | (800) 348-4343 | (614) 586-0621

A

s we approach the holiday season and are reminded of all of the joys and stressful times in our lives, it is helpful for our mental health to show gratitude. Instead of focusing on the things we don’t have or the challenges in our lives, it is important to make gratitude a part of our regular health routine. Many studies have shown that displaying gratitude helps us become healthier, happier and more successful.

What is Gratitude?

It’s simple. Gratitude means being thankful. It means showing appreciation for and returning kindness. It’s a personality trait, a mood, and an emotion. When we are grateful, we are more likely to feel good about ourselves. It’s a way to remind ourselves of the things that make us happy.

Psychologists Dr. Robert A. Emmons and Dr. Michael E. McCullough did a study on gratitude, in which they asked participants in three groups to write a few sentences each week, focusing on particular topics. The first group wrote about things they were grateful for; the second group wrote about things that irritated them; the third wrote about events that had affected them, either in a positive or a negative way. The group that wrote about gratitude was more optimistic, exercised more, and visited their doctor less than those who focused on sources of aggravation.1 So, how do we practice gratitude?

Write a Thank You note

Some people might think that a simple hand-written thank-you note might not be that effective, but a study published in Psychological Science reveals otherwise. One hundred participants wrote letters of gratitude to someone whom they were thankful for, such as a friend or loved one. The letters took less than five minutes to write, and participants were then asked to rate how 24

Dayton Bar Briefs November 2019

surprised, happy, and awkward they predicted the participant would feel.

The participants who wrote the notes overestimated how awkward recipients would feel and how insincere the notes would seem, and they greatly underestimated the positive effects they would have, typically guessing the notes would evoke a 3 out of 5.

The recipients were asked to assess how the letter actually made them feel. After receiving the notes, many rated their happiness at 4 out of 5.2 Remember that time your co-worker helped you finish that brief when you had a family emergency, or when your cousin found an old photo of the two of you and took the time to mail it to you? Write them a thankyou note. You both will benefit!

Say Thank You

When you say thank you, you instantly feel better about yourself because you are showing good manners and respect, something your parents probably taught you when you were a toddler. When you feel good about yourself, you are more positive, and the person you thanked feels higher levels of self-worth and is more likely to help others in the future. It’s a win-win!

Research shows that managers who thank their employees find that those employees feel motivated to work harder. One study randomly divided university fund-raisers into two groups, where one group made phone calls to raise money in the same way they always had. The second group received a talk from the supervisor, who told them she was grateful for their efforts. The employees who heard the supervisor’s message of gratitude made 50% more fund-raising calls than those who did not.3 Don’t forget to thank your partner. Couples who express gratitude toward one another are

more intimate and trustworthy and are more likely to feel as if their needs are being met.

Saying a mental thank you works as well.

Maybe a person did something nice for you, but you don’t know his or her name. A person who let you over in a traffic jam, a person who let you skip ahead in line, a person who helped you soothe your crying child at the grocery store, a person who noticed you dropped a $20 bill and gave it back to you. Thinking and being grateful for the kind gestures that strangers have done for you can make you feel happier.

Write it Down

Keep a gratitude journal. This helps you focus on what you already have, not what you lack. Make a goal to write in your journal daily, weekly, or whatever works for you.

Think about your day, your past, your future and what you are thankful for, and write it down. It doesn’t have to be grandiose. It can be as simple as “I am thankful that I have a job that I love” or “I’m thankful that I have a roof over my head.” When you are feeling stressed or upset, take a look at your journal and remember all of the amazing things in your life.

Thank Yourself

Having trouble thinking of something to be grateful for? We tend to focus on the negative aspects in the world but try to start thinking of the positive. One way is to be thankful for yourself. Think about your job as a lawyer.

Your job is to solve other people’s problems.

You help people get their homes back, you help them resolve disputes, get child support, find justice, among many other things. That in itself is something to be thankful for.

ENDNOTES:

“Giving thanks can make you happier,” Harvard Health Publishing, https://www.health.harvard.edu/healthbeat/giving-thanks-can-makeyou-happier 2 Id 3 Id 1

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November 2019 Dayton Bar Briefs

25

From the Judges Desk

A View from the Bench

By The Honorable Steven K. Dankof Montgomery County Common Pleas Court

G

reetings Brothers and Sisters of the Bar. I hope this missive finds you well.

Today’s topic – the Lawyer’s sacred duty to zealously represent one’s client – or, you’re a Lawyer, act like it!

As many of you know, my criminal docket proceeds every Wednesday morning. Two weeks ago, an incarcerated defendant was brought over from the Montgomery County Jail for a scheduling conference at which the client and their lawyer appear for typically accomplishing the mundane1 - except that the court appointed lawyer failed to appear. This past Wednesday, albeit with a different incarcerated client and a different lawyer, the process repeated.

My decision each time was the same: I summarily fired the lawyer in question, appointed new counsel from the Court’s approved list and assured the frightened, incarcerated client that their new lawyer would actually come to the jail to meet them, consult and protect their interests.

I cannot emphasize too strongly that failing to visit one’s client regularly, especially an incarcerated defendant, terribly undercuts the sanctity of the lawyer/client relationship and the community’s confidence in the criminal justice system.

It seems quite clear that none of us, if we spent even a moment contemplating the nature of the lawyer/client relationship would

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Dayton Bar Briefs November 2019

permit this sort of thing to “go down”.

Perhaps this is a good time to reflect on what it is that lawyers actually do for their clients and embrace that, while a regular visit to the Montgomery County Jail is hardly the stuff of dreams, failing to ensure your client actually knows that you give a damn about them is the stuff of nightmares, including getting fired by a cranky judge, disciplinary complaints and opportunities to place your malpractice carrier on notice of a possible claim.

Interestingly, neither lawyer that I fired has seen fit to drop by or call to explain their absence, apologize or even tell me what a jerk I am. And that, I suppose, says it all.

Staying in regular communication with a client isn’t some quaint notion from a gentler time gone by. It is our ethical and moral responsibility.

Because we’re lawyers and we damn well need to start acting like it.

Until we meet again on these pages...

ENDNOTES:

Perhaps setting a motion to suppress hearing or a trial date; maybe executing a time waiver, modifying bond, etc., etc., etc.

1

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Have you given us your info?

2020 Dayton

LEGAL

Directory Content Deadline

November 18th

Production of the 2020 DBA Legal Directory is underway!

Don’t miss this chance to make sure your profile photo, office address and contact info are correct.

Advertising Opportunities: Enhance your firm listing | Showcase your areas of expertise | Promote your business via:

ENHANCED FIRM LISTING FIELDS OF PRACTICE LEGAL DIRECTORY ADVERTISING

*PRICING AND INFO CAN BE FOUND WWW.DAYBAR.ORG/LEGALDIRECTORY

Want to keep your listing just as it was last year?

Just give us a call or drop us a email www.daybar.org

publications@daybar.org | 937.222.7902

November 2019 Dayton Bar Briefs

27

M embers O n T he M ove Dinsmore & Shohl LLP is proud to announce that Forbes has named Dinsmore & Shohl LLP among the nation’s best law firms for labor and employment practice in its inaugural America’s Top Corporate Law Firms list. Of the more than 400,000 law firms across the country, 243 made the list, and a mere 29 were recognized for their labor and employment work. The list was compiled by Forbes in partnership with market research company Statista, based on the opinions of 2,500 American lawyers, all of whom were asked to recommend firms in different areas of law. Those lawyers were not permitted to recommend their own firms. Those that received more recommendations than the average made the final list of America’s Top Corporate Law Firms. “We are thrilled our work is being recognized favorably by Forbes and our peers across the country,” said Dinsmore Labor & Employment Department Chair Chuck Roesch. “I’m proud of the work our Labor & Employment group has done and honored to be named with the other 28 firms on the list. Of the 29 firms on the Labor & Employment list, Dinsmore, founded in 1908, is the fifth-oldest. It is also one of just eight Midwesternheadquartered firms to receive the honor.

Dungan & LeFevre Co., L.P.A. is pleased to announce attorney William J. McGraw III has been selected for inclusion in the 2020 edition of The Best Lawyers in America for his work in Trusts and Estates. Bill is the president of Dungan & LeFevre and handles estate planning, trust, probate and business planning matters, is a Fellow of the American College of Trust and Estate Counsel, and is an OSBA Certified Specialist in Estate Planning, Trust and Probate Law. He is past chair of the OSBA Estate Planning, Trust and Probate Section Council. He has served as an expert witness in trust and estate litigation, is rated AV by Martindale Hubbell and is considered one of Ohio’s preeminent experts in Trust, Estate Planning, and Probate law. Bill MCGRAW III has presented at many Ohio CLE conferences and serves on the Editorial Board of the Probate Law Journal of Ohio authoring numerous articles.

COX

IRELAND

RHINEHART

FARUKI+ is pleased to announce the following: For more info contact John Kendall, Company Contact | 937.227.3723 | jkendall@ficlaw.com

The Benchmark Litigation 2020 Guide once again ranked FARUKI PLL (http://www.ficlaw.com) as one of Ohio's preeminent litigation firms, naming it one of only 12 firms statewide to receive Benchmark's highly recommended classification. The 2020 edition of Benchmark Litigation includes partners Jeff Ireland, Jeff Cox, and Erin Rhinehart on its list of Ohio "state litigation stars." Benchmark Litigation (http://www. benchmarklitigation.com) is the only publication in the United States that focuses solely on litigation. The selection process involves an eightmonth research period, in which the publisher's researchers conduct extensive interviews with litigators and their clients, and an examination of recent casework handled by the firms, with the goal of identifying "the firms and attorneys who have displayed the ability to consistently handle complex, high-stakes cases in multiple jurisdictions."

SCHAEFFER

CLOUGH

SCHWELLER

Pickrel, Schaeffer, and Ebeling is pleased to announce the following:

For more info contact Jan Burden, Marketing Director | jburden@pselaw.com | website: www.pselaw.com | (937) 641-2229

We are pleased to announce that attorneys Alan B. Schaeffer, John E. Clough and Donald G. Schweller have been selected by their peers for inclusion into the 2020 edition of The Best Lawyers in America. Alan B. Schaeffer, is included in The Best Lawyers in America in the Real Estate Law section. Alan a is a shareholder with the firm, and concentrates his practice in the areas of construction law, environmental law, land use planning, zoning, real estate law and municipal law. Both John E. Clough and Donald G. Schweller are in the Trusts and Estates section of Best Lawyers in America. John is a Fellow with the American College of Trust and Estate Counsel (ACTEC), a shareholder with the firm and department chair of the Probate and Estate Planning Department of PS&E. Don, has been with Pickrel, Schaeffer and Ebeling for 59 years. He is a Fellow of the American College of Trust and Estate Counsel, and member of the Probate Department practicing in the areas of estate planning, trust and probate. First published in 1983, Best Lawyers is based on an exhaustive annual peer-review survey comprising of more than 6.7 million evaluations by top attorneys.

Pickrel, Schaeffer & Ebeling Co., LPA, serving clients for over 100 years would like to congratulate Alan, John, and Don on this outstanding achievement.

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Dayton Bar Briefs November 2019

937.222.7902

MEMBERS ON THE MOVE: If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you! News of CLE presentations and political announcements are not accepted. Members on the Move announcements are printed at no cost, and must be submitted via email and are subject to editing. These accouncements are printed as space is available.

Questions? Contact: DBA Communications Manager | Shayla M. Eggleton: publications@daybar.org

DBA Classifiedss Classified ads are accepted each month, September through Summer.

Copy and payment must be received by the first day of the month preceding the month of publication. BAR BRIEFS EDITORIAL BOARD reserves the right to refuse any ad. Classified ads of greater length are allowed.

Members: $20 per 25 words | NonMembers: $30 per 25 words Additional $5 for DBA reply box

OFFICE SPACE AVAILABLE: DOWNTOWN OFFICE SPACE FOR LEASE

Downtown office and parking space for lease, utilities included.

Supplies, furnishings, conference room and staff negotiable.

Boucher & Boucher Co., L.P.A. 937-223-0122 or richard@boucherandboucher.com

OTHER:

ATTORNEY Rogers & Greenberg, LLP, a well-established, medium-sized downtown Dayton law firm is seeking an Ohio licensed attorney with some experience in the business, estate planning and real estate practices of law.

Please send a resume including references to: Michelle S. Vollmar, Rogers & Greenberg LLP 40 N. Main St., Suite 2160, Dayton, OH 45423 Email: mvollmar@rogersgreenberg.com

ATTORNEY Seeking a Part-Time Domestic Relations Attorney for a general practice law firm.

Applicants should have at least 1 year of legal experience. Applicants MUST be able to handle contested domestic relations cases. Our current caseload includes divorce, dissolution, child custody, and post decree modification cases. Please do not apply if you are a new attorney or an attorney that has not regularly handled domestic relations cases. The right candidate must be able to immediately take on a full case load of pending family law cases. Our attorneys will maintain a caseload of between 25-35 open/active family law cases. Other duties include handling estate planning and probate cases.

Please forward resume to P.O. Box 292232, Dayton, Ohio, 45429

upcoming Chancery Club Luncheons Join us monthly on our new date - Thursdays!

These luncheons will be held at The Old Courthouse.

Great speakers & topics, delicious catered lunch, networking & discussions!

The DBA would like to thank the Eichelberger Foundation for its generosity with sponsoring these luncheons.

Remaining Chancery Club Luncheon Dates:

November 7th January 2nd February 6th March 5th April 2nd May TBA

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

NEED A MEDIATOR/ARBITRATOR?

JOHN M. MEAGHER, Judge (Retired) Adjustable fees 25 Years Resulting in 2,100+ Mediations 50+ Arbitrations Call 937.604.4840 Jmeagher2@gmail.com

NUMISMATIC CONSULTATION AND APPRAISAL SERVICES

Does your client have a collection of coins, currency, exonumia, precious metals or other money related items? Numismatic appraisals our specialty.

Consultation on the orderly disposition and liquidation of numismatic assets. coinbuyers@pm.me www.coinologist.com www.daybar.org

Advertiser Index

Support those who support the worrks of the DBA! Check out these advertisers.

For reasonably priced DBA Ad Rates view the DBA Media Kit Online: https://bit.ly/2mguP8m

Daily Court Reporter........................................................9 Hon. Dennis Langer - Mediations....................................26 Eikenbary Trust..............................................................15 Ferneding Insurance......................................................10 LCNB Bank....................................................................22 MicroSun "Barrister" Lamps............................................23 National Processing Solutions..........................................5 OBLIC................................................................back cover R.L. Emmons & Associates.................................................5 Rogers McNay Insurance.................................................31 Trisha M. Duff - Mediations...............................................7 November 2019 Dayton Bar Briefs

29

L aw -R elate Dayton Bar Foundation

Help Build Our Foundation.

T T

he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community. Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law.

In the past few years your contributions helped to fund grants to:

- Greater Dayton Volunteer Lawyers Project (GDVLP)

- Advocates for Basic Legal Equality (ABLE)

- Legal Aid of Western Ohio (LAWO)

- Life Essentials Guardianship Program

- Law & Leadership Institute

- Wills for Heroes

Write, Call or Email: Jennifer Otchy, Executive Director Dayton Bar Foundation 600 Performance Place 109 N. Main Street Dayton, Ohio 45402 Phone: (937) 222-7902 Email: jotchy@daybar.org

University of Dayton School of Law

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Dayton Bar Briefs November 2019

937.222.7902

ated

O rganizations Greater Dayton Volunteer Lawyer Project

Pro Bono …

In Your Slippers??!!

M

any of us want to help our community but because of work, family and other commitments, it’s hard to find the time. The Greater Dayton Volunteer Lawyers Project (GDVLP) has an option that gives you the satisfaction of helping low income individuals with their legal needs in short, easy to schedule time commitments so you can provide service from wherever you need to be at the time your consultation with the client is scheduled – even if you’re at home in fuzzy slippers!

Many of our clients are unable to come to the GDVLP offices or your office for a consultation. Sometimes it’s because of physical challenges or transportation issues.

Sometimes it’s because they live in one of the outlying counties we serve, as we cover not just Montgomery County, but also Champaign, Clark, Darke, Greene, Miami and Preble counties. In those cases, we use our staff resources and technology to bridge the gap.

www.daybar.org

While nothing compares to sitting down at a table to build and attorney-client relationship and gather all the information needed to provide legal advice, when that is not possible videoconferencing is a solution that bridges the gap. Skype, Zoom and other options keep us connected with family and friends, and can serve the same purpose with clients.

How does it work? Please let us know that you are interested in remote service delivery and the areas of law in which you are comfortable providing counsel and advice. The areas of expertise where this service works best generally involve breach of contract claims, employment matters, probate matters, and debt collection defense. We also provide wills and advance directives with this delivery model, with staff drafting from our templates as a starting point for your review.

When we have a client in need of the services you are willing to deliver remotely, we will contact you to determine your availability and

schedule a time for you and the client to connect. Our staff will participate in the service delivery and if documents need to be shared and the client is unable to do so, retrieve them from the client and deliver them to you.

Our goal with these assignments is to make them convenient for you, taking one hour or less of your time. If you believe that additional, ongoing services will best serve the client’s needs, it is up to you if you want to continue the relationship or ask us to assign a different volunteer attorney for the additional efforts required. As always, our staff is here to help make the relationship run smoothly, even if you and the client never meet in person.

If you are interested in volunteering for remote service delivery, or exploring other opportunities to provide pro bono legal services to low-income individuals in our community, please contact us at : (937) 461-3857 or gdvlp@gdvlp.org

November 2019 Dayton Bar Briefs

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109 N. Main St., Suite 600 Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED

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