Dayton Bar Briefs Magazine Sept/Oct 2023: Vol. 73 No. 1

DBA Board of Trustees

2023-2024

Anne P. Keeton President

Hon. Michael J. Newman

First Vice President

James H. Greer Second Vice President

Erin E. Rhinehart Secretary

Jamar T. King Treasurer

Jennifer Brogan Member–at–Large

Lauren K. Epperley

Member–at–Large

Erin Moore Member–at–Large

Brian L. Wright

Member–at–Large

Hon. Caroline H. Gentry

Immediate Past President

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio

Chief Executive Officer

BAR BRIEFS is published by the Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publication for all members. Comments about this publication and editorial material can be directed to the DBA office. The DAYTON BAR BRIEFS is published September/October through May/June.

Paid subscription: $30 / year

Library of Congress ISSN #0415–0945

Jennifer Otchy

Chief Executive Officer

Shayla M. Eggleton

Director, Communications & Membership Phone: 937.222.7902 www.daybar.org

The contents expressed in the publication of DAYTON BAR BRIEFS do not reflect the official position of the DBA.

By Anne P. Keeton | Bruns, Connell, Vollmar & Armstrong, LLC

Features:

By The Honorable Gerald Parker Montgomery County Common Pleas Court General Division

Mark R. Chilson

By Tom Intili | Intili Law Group

By Tricia Griffieth |

Volunteer Lawyers Project

By Nathaniel Fouch | Supreme Court of Ohio

By Joanna Gisel | Sebaly Shillito + Dyer

By Kristina Curry | Pickrel Schaeffer & Ebeling Co., LPA

Provide 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.

• SIMPLE EVENT REGISTRATIONS & SIGN UP You’re already on the list!

• CLE REGISTRATIONS Prompt reporting to Supreme Court of Ohio.

By Anne P. Keeton DBA President Bruns, Connell, Vollmar & Armstrong, LLC akeeton@bcvalaw.com

Welcome to a New Year at the DBA!

The Dayton Bar is special. In my time serving on the Board of Trustees, I’ve had the chance to meet with other Bar Associations across the state, as well as nationally. And they all know the DBA. Other Bar Associations look to Dayton as what a Bar Association should be and could be. They look to us as a beacon – a city on a hill.

What makes the Bar in Dayton, Ohio so special? One might point to its perfect amalgam of size, skill, character, and professionalism. But I think it’s more than that. I think it’s the lasting connections we build with one another. Like many of you, I’ve been watching the ReTrial podcast with Dave Greer & Judge Parker on youtube. Listening to all the stories, the nostalgia (the characters!), made me think of my own stories from my practice. Stories we all have to tell – of kindness and talent, of diligence and loyalty, of honor and integrity, with a good dose of humor too. What all these stories really boil down to are stories of connection.

The practice of law is a story of connection. Connection to our

clients and connection to each other. It’s about the relationships that we form and we foster over the years, and our commitment to one another. That feeling of connection is so important.

Because when we have a chance to come together, to be together, to form those connections, we’re stronger and do great things for our clients, our community, and each other. So this year, marking the 220th year since Joseph H. Crane hung his shingle and became Dayton’s first lawyer, will be a year of Celebrating our DBA Community. Our focus in programming will be on offering opportunities to come together – social opportunities to reconnect; volunteer opportunities to serve together; and CLE programming to learn together. We will also look to capitalize on those connections to move forward into the future with intentional, strategic planning.

So I’d ask that you make this year the year you get involved. Sign up to volunteer. Attend a section meeting. Stop by a social gathering. Let’s all of us commit to one another this year – to connecting, serving, and learning together. It’s going to be a great year at the DBA.

~ Since 1883, the Dayton Bar Association has offered its members the opportunity to form lasting connections – connections that do great things for our clients, our community, and the law.

2023-24 DBA Board of Trustees

Anne P. Keeton President

Phone: (937) 999-6261 akeeton@bcvalaw.com

Jamar T. King Treasurer

We aspire to have all citizens of our community respect and understand the role of lawyers, the legal system, and the administration of justice.

Our Vision Our Mission

The DBA furthers the administration of justice; enhances the public’s respect for the law; and promotes excellence and collegiality in the legal profession.

Diversity Statement

The DBA supports the full and equal access to and participation by individuals in the Association, the legal profession and in the justice system regardless of race,gender, ethnicity, national origin, religion, age, sexual orientation, gender identity, or disability. We are committed to the implementation of the terms and spirit of this Statement on Diversity and Inclusion.

Phone: (937) 443-6500 jamar.king@thompsonhine.com

Brian L. Wright

Member-at-Large

Phone: (937) 227-9910 bwright@ficlaw.com

Hon. Michael J. Newman

First Vice President

Phone: (937) 512-1640 Michael_Newman@ ohsd.uscourts.gov

James H. Greer

Second Vice President

Phone: (937) 250-7779 jhg@biesergreer.com

Erin E. Rhinehart Secretary

Phone: (937) 227-3700 erhinehart@ficlaw.com

Jennifer Brogan

Member-at-Large

Phone: (937) 250-7784 jlb@biesergreer.com

Hon. Caroline H. Gentry

Immediate Past President

Phone: (937) 512-1590

Caroline_Gentry@ ohssd.uscourts.gov

Lauren K. Epperley

Member-at-Large

Phone: (937) 427-8800 lepperley@swohiolaw.com

John M. Ruffolo ex officio

Bar Counsel

Phone: (937) 434-3556 ruffololawdayton@aol.com

Erin B. Moore

Member-at-Large

Phone: (937) 224-3333 ebmoore@green-law.com

Jennifer Otchy ex officio Chief Executive Officer

Phone: (937) 222-1364 jotchy@daybar.org

Barrister of the Month: Mark R. Chilson Esq.

Itwas French poet Alain de Lille who observed in 1175 “mille viae ducunt homines per saecula Romam” (“a thousand roads lead a man forever toward Rome”). In more modern times, many a road have led prominent lawyers like Mark Chilson forever to Dayton, Ohio.

Mark’s journey originated in Milwaukee. Born to Robert and Beverly Chilson on April 11, 1956, the Chilson family soon relocated to Beloit, Wisconsin, where Robert, a mortician, established a funeral home. Beverly found a job as a secretary at Beloit-based Fairbanks Morse, a defense contractor and manufacturer of naval power and propulsion systems. Back in the days when school children went home for lunch, Beverly consumed her half hour lunch break by walking home from the Fairbanks Morse plant to make lunch for Mark and his older brother, Kevin, before walking back to complete the remainder of her workday.

After graduating from Beloit Turner High School in 1974, Mark matriculated at the University of Wisconsin Whitewater where he graduated in 1978 magna cum laude with a bachelor’s degree in business administration. BBA candidates at UWW were required to take a full year of business law courses taught by retired JAG officers. That instruction inspired Mark to become the president of UWW’s Law Society during his senior year.

One benefit of Law Society membership was an annual trip to Madison to hear oral arguments before the Wisconsin Supreme Court. After oral arguments, Society members were privileged to have lunch with the justices. Among those jurists was Shirley Abrahamson who Governor Patrick Lucey appointed in 1976 as the court’s first female justice. Twenty years later, Justice Abrahamson became the court’s first female chief justice serving in that capacity until her retirement in 2015. Justice Abrahamson was notorious for shattering glass ceilings throughout her legal career. Though graduating first in her class at Indiana University Law School (she was the only woman in her class), she could not find employment as a lawyer, except as a law librarian, until six years later when former Wisconsin governor, Philip La Follette, hired her as the first female attorney at La Follette, Sinykin, Doyle & Anderson. Within a year, Ms. Abrahamson rose to partnership in that firm where she practiced for an additional thirteen years. In 1993, Justice Abrahamson was on President Clinton’s short list for the U.S. Supreme Court seat vacated by Justice Byron White, the seat ultimately filled by Justice Abrahamson’s long-time friend, Ruth Bader Ginsburg.

By the fall of 1978, Mark’s parents had relocated to the Dayton area. Robert sold his funeral home in Beloit after which he assumed control of a funeral home in Fairborn owned by a friend and fellow funeral director who was battling cancer. After the friend died, and the funeral home was sold, Mark’s parents relocated to Minneapolis where Mark’s brother, Kevin, also a mortician, was managing five funeral homes with some welcome assistance from Dad. Unlike his parents, Mark chose not to return to the great white north choosing instead to enter law school at the University of Dayton.

Mark made the most of his law school experience. Before graduating summa cum laude in 1981, Mark had notable summer internships with the United States Department of Justice. During the summer of 1979, Mark interned with the United States Attorney’s Office for the Southern District of Ohio working primarily on the injunction case

over the closing of the Defense Electronics Supply Center in Kettering. The following summer, Mark interned with the DoJ in Washington on a variety of civil and criminal matters. Mark was particularly enthused about entering the practice of law after completing UDSL’s trial practice course in his third year taught by Pat Allen and Judge Walter Rice.

After law school graduation in 1981, Mark joined Young & Alexander, the professional home of such notable and accomplished lawyers as Bob Alexander, Fred Young, Bob Spayd, Joe Miller, Tony Kidd, Neil Freund, Steve Freeze, Gordon Arnold, Max Stamper, Jim Brennan and Irv Harlamert. Mark remained at Young & Alexander for twenty-four years representing the interests of Dayton Children’s Medical Center, CareSource, and numerous insureds of State Farm Insurance Company.

In 2005, Mark joined Columbus-based Brickler & Eckler primarily to serve CareSource whose expansive growth required the resources of a large, full-service, law firm. Mark remained with Bricker until 2010 when CareSource hired him full-time as its general counsel. On Mark’s watch, CareSource grew yet further, propelled by the multitude of opportunities arising from passage of the Affordable Care Act in 2009, including but not limited to Medicaid expansion. During that period, CareSource entered new markets in Indiana, Michigan, Kentucky, West Virginia and Florida.

When CareSource’s CEO, Pamela Morris, announced her retirement in 2018, Mark decided it was time for a career change. He was offered positions with law firms in and out of Dayton, but leaving Dayton was not a serious option. Mark’s wife, Claire, was teaching gifted students in the Kettering School District, and by now Dayton was home. Under the circumstances, Mark concluded that his best option was to open a private law office focusing on his particular areas of expertise, health care regulation and health care-related litigation.

Mark’s considerable legal talents have not been limited to the practice of law. Over a 25-year period, he has served the Dayton Bar Association as both a member and chairman of one of the DBA’s two Certified Grievance Committees. He is currently the chairman of the Ohio State Bar Association’s Committee on the Unauthorized Practice of Law. He is a member of Dayton Children’s Hospital’s Board of Trustees. He also sits on the Board of Trustees of Graceworks Lutheran Services. Mark has been recognized for his service to the legal profession by Litigation Counsel of America. He is also an inductee of First Chair, a renowned organization that recognizes innovative and accomplished in-house counsel for their achievements and significant contributions to the legal community. Mark has written and lectured on a variety of legal topics concerning ethics and health care compliance for such organizations as the Health Care Compliance Association Institute and the ChicagoKent College of Law.

Outside the office, Mark enjoys spending time with family and friends, vacationing in Arizona, and exercising at Club 51 in Centerville.

Over his career, Mark has tried over 200 cases to verdict. He once tried twenty-six cases in a single year. Rated “AV” Preeminent by Martindale-Hubbell, Mark has been, and is, a true leader in our profession. It was his good fortune, and ours, that Mark’s road to a successful legal career led him, not to Rome, but to Dayton, Ohio..

By Tom Intili Esq. Intili Group,

A legal professional association tom@igattorneys.com

By The Honorable

Dayton State and Federal Judges Celebrate Law Day

In 1958, President Eisenhower decreed that May 1 will be hereafter known as “Law Day” – a day for all to “remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law” underlying our nation’s constitutional and legal framework.

On May 1st this year, Dayton’s state and federal judges, acting together and in conjunction with the Dayton Bar Association, celebrated Law Day in a unique way: they gave courthouse tours to the public - both students and adults alike - and explained how the state and federal courts function.

The Law Day afternoon events began with a luncheon held at Sinclair Community College. DBA President, Judge Caroline Gentry, explained the historical legal underpinnings of the special day, and then presented the Liberty Bell Award to Jacqueline Gazda, a local librarian. The Liberty Bell Award is presented each year to one citizen who has rendered outstanding service to the community. Ms. Gazda was honored because of her work helping identifying a community-wide need for legal assistance for Driver's License Reinstatement and Record-Sealing Clinics. In thanking the awards committee members and the DBA, Ms. Gazda advised that, she coordinated with several agencies, including the Public Defender, Greater Dayton Volunteer Lawyer Project, and Community Action Partnership, to provide these services monthly at library branches across the county to improve access for individuals seeking these services. She advises that “These clinics have helped to improve the lives of hundreds of patrons so far and are planned to continue through the year.”

Following the luncheon, attendees walked to the Walter Rice Federal Courthouse where they met with Judges Michael Newman and Peter Silvain. After introductions by Judge Newman in his courtroom, Judge Silvain explained basic federal court civics concepts such

as checks and balances, the three branches of government, and the jurisdictional differences between the state trial courts (i.e., the Montgomery County Municipal Court and Common Pleas Court) and the federal trial court (i.e., the U.S. District Court).

The group then walked across the street to the Common Pleas Court, where Judge Kim Melnick gave a tour of her courtroom and talked about the civil and criminal cases she hears every day. She also talked about her transition - from the role of county prosecutor to trial judge - and discussed how she efficiently manages her docket of several hundred cases.

The group then went to the fifth floor of the Montgomery County Courthouse to meet with Judges Chris Epley and Mary Kate Huffman of the Second District Court of Appeals. Judge Epley and Judge Huffman explained why their appellate courtroom looks substantially different from a trial courtroom - with three chairs for judges, not one; and no jury box - giving a detailed explanation of how the appellate process differs, as a practical matter, from the trial process.

After the state and federal judges answered questions by the attendees, everyone agreed it was a great day and a novel way to celebrate Law Day in Dayton. Members of the state and federal bench and bar hope this is the beginning of a new, local tradition that should be repeated every May 1 for years to come.

Michael Newman, Active U.S. District Judge in the Dayton Seat of Court

Judge Newman, Jennifer Otchy, Judge Montgomery and Judge Silvain

From DBA Member Services

This committee’s mission statement is to encourage and increase collegiality among the Dayton Bar members by hosting social events and programs. With that in mind please schedule these activities for the next nine months. We look forward to seeing every member at these lively events.

Chancery Club Luncheon 11:30am-1pm

September 14, February 8, May 1 – Sinclair CC, Room 172

October 5, November 2, March 7, April 4– Engineer’s Club

First Monday Luncheon at the University of Dayton School of Law.

October 2. 11:00am-1pm

New Admittee Reception at Cocos Bistro

December 7 4:30-6pm

Breakfast with the Bench

April 11 7:45am-9:15am

By The Honorable Chris Epley. Co-Chair, Member Services Second District Court of Appeals epleyc@mcohio.org

DOCKET RETRIEVAL

A Day in the Life of a Paralegal

By Tricia Griffieth, Chair Paralegal Section Greater Dayton Volunteer Lawyers Project tricia@gdvlp.org

AHHHHH, COFFEE, the lifeblood of the legal world. First, let’s open the calendar and see what was put on the schedule after I left last night. Email is equally important to check, so one on each monitor. I see three things added to the calendar since last night and OH there are four emails sent to me from Attorney Brandy between 1:30 and 2:30 a.m. So glad I was in dream land!

This is usually how a paralegal’s day begins. One of the first in the office to make sure everything is ready before the workday begins for the attorneys. A good paralegal is the backbone and right hand of the attorney, and knows what the attorney needs before the attorney does. Paralegals are normally the ones to screen all calls prior to reaching the attorney. Not every phone call has to go to the attorney, the majority are hand holding of the client, running interference, and scheduling on an attorneys calendar. Please understand that while we are holding the hand of a client, we are also efiling a Complaint, scheduling appointments, and reading 2-3 emails, all concurrently. A paralegal must be organized, a multi-tasker, empathetic, and hard skinned. Tough combination, right?

Emails read, calendar checked, what is this

mess on my desk????? - Oh that is the file Attorney Brandy was talking about in her email. She wants it organized and sectioned before 10:00 a.m. – no problem. What is this mess under that mess???? - That is the new file that needs to have initial pleadings for a divorce done. That can wait until Attorney Brandy’s file is organized. Best go claim a conference room so that I can spread things out. Conference rooms are all full so I will claim the back hallway that hardly anyone uses. Seriously, the day I need space this is the hallway everyone wants to use. Mission accomplished, file organized and sectioned for Attorney Brandy – run to her office and put on her desk at 9:49 a.m.!!!

Back at my desk, I am listening to voice mails as I begin to open a new computer file for divorce client – Jim Johns for Attorney Sam. Oh no, client Sarah is crying on voice mail, better call her right away. Call to client Sarah – husband beat her up and she had to go to the emergency room last night. She doesn’t know why she tried to reconcile her marriage. Can I start her divorce again? My first concern is to make sure she and the children are in a safe place. Remember, I am still opening Client Jim Johns file while I am listening to, empathizing with, and consoling client Sarah. I let Sarah know that I will talk with attorney Jay as soon as I get a chance and will get back to her. Attention returns to Jim Johns divorce and preparing the initial pleadings and forms for the signing appointment Wednesday. Glance at the clock and it is already 12:30, no wonder I am getting hungry – so much for lunch out to much to do and the phone will not stop ringing.

Quick dash to the kitchen grab a bag of chips and refill on the coffee. Lunch of cham-

pions but it almost is better than my breakfast of AHHHH COFFEE!

Back at my desk to see that in the 60 seconds I was gone two more voice mails and three more emails. OH this one is from Attorney Brandy, she needs me to bring that file I organized down to the court house, so off I go without a chip in my mouth. Back from court and see three more voice mails and YAY no more emails added to the original group. Listen to voice mails while finally placing a chip in my mouth and gulping cold coffee, oh well, think of it as an iced coffee, mind you it is now 1:35 p.m. Call from client Sarah wanting to know if I had a chance to speak with the attorney yet. I talked with Attorney Brandy while I was dropping off the file so return phone call to Sarah letting her know that we would withdraw the Petition for Conciliation and request the Court to schedule a final hearing date. Finish listening to the various voice mails as I read my emails that are actually piling up as it gets closer to 5:00p.m. I look at my desk and it is still a mess. What have I missed? Put phone on do not disturb and try to make some sense of what is on my desk and because it did not look like this when I left for the Court house. About 20 minutes later, I have sense made of my desk a new starting place. Begin working and here comes Faith with a stern look on her face wanting me to take my phone off do not disturb. Sorry Faith!! While I am doing and organizing, I am remembering to put time in to the case log for billing. Another look at the clock and see that it is 5:30 and realize that the office is extremely quiet. Grab my purse and briefcase, make a dash for the car, refocusing my attention to my family trying to remember which child I have to pick up where.

Tomorrow will be about the same in general, but it is always a different ride with each client – I will have to remember to call client Sarah and check on her and her children.

Substantive Sections Special Interest Groups

Appellate Court Practice

Terry Posey Jr. & John Lintz

Federal Practice

Honorable Peter Silvain, Jr.,

Dan Gentry & Christopher Wolcott

Bar Exam & Qualifications

Jack Hilgeman & Harry Beyoglides Jr.

Health & Wellness

Lindsey Deck & Brooke Horan

Civil Trial Practice & ADR

Jeff Cox & Kelsey Mincheff

Juvenile Law

Honorable Julie Bruns & Magistrate Gina Feller

Bar Briefs Editorial Board

Nathaniel Fouch & Morgan Napier

Leadership Development

Sabra Tomb

Corporate Counsel

Anna Self & Lindsey Posey

Bench Bar

Honorable Mary Montgomery & Lauren Epperley

Member Services

Honorable Christopher Epley & Honorable Mary Katherine Huffman

Criminal Law

Kyle Lennen & Keara Dever

New Lawyers Division Chairs - Kaylee Price & Jordan Jennings, Vice Chairs - Melissa Berry & Deztany Johnson

Diversity, Equity & Inclusion

Ashton Hood & Magistrate Joe Gallagher

Social Justice

Magistrate (Ret.) Bonnie Rice

Domestic Relations

Magistrate Patricia Campbell & Magistrate Kathryn Shields

Paralegal

Tricia Griffieth

Eikenbary Advisory

Frank Williams III

Women in the Law

Joanna Gisel & Magistrate

Lisa Wiseman

2023-2024 Meetings:

Employment Law

Tod Mollaun & Marc Fleischauer

Estate Planning Trust & Probate

Kristina Rainer & Eli Sperry

Real Property/Environmental Law

Tom Kendo & Christopher Walker

Ethics & Certified Grievance

Karen Bradley & Joseph Oehlers

Adam Webber & Julius Carter

Workers’ Comp & Social Security

Michael Rake & Kristina Curry

Fee Dispute Arbitration

John M. Ruffolo

A Courthouse for the Community: Celebrating the Opening of the New Montgomery County Municipal Courthouse in Trotwood

On May 1, 2023, after years of planning and delays, the new Montgomery County Municipal Court Western Division courthouse finally opened its doors to the public. Located on East Main Street in Trotwood, it is an impressively modern structure. Yet its most striking feature is not its state-of-the-art technology, enhanced security features, or grand, high-arched ceilings; rather, its location. Since the establishment of the Montgomery County Municipal Court by statute in 2010, the courthouse has been located in New Lebanon. Now, with its relocation to Trotwood, the court sits in both the largest community it serves, and the community responsible for the majority of its caseload. The decision to make this change, and to go where the people are, makes this truly a courthouse for the community.

The Montgomery County Municipal Court Western Division serves the communities of Brookville, Clay Twp. Farmersville, Jackson Twp., Jefferson Twp., New Lebanon, Perry Twp., Phillipsburg, Trotwood and Verona. It was preceded by the Montgomery County Area One Court, and before that, the County Court of Montgomery County. For the past almost quarter century, through these changes, the court sat in New Lebanon. Yet, lack of adequate public transit to New Lebanon proved a considerable barrier to accessing the facility. As county officials contemplated the possibility of consolidating the Western and Eastern (Huber Heights) Divisions, or moving both to Downtown Dayton, court officials and police chiefs made it known that such solutions would not solve the underlying accessibility issue and would prove a further strain on their resources as well as residents’ ability to get to court.

When a 2017 study by the National Center for State Courts revealed that Trotwood—the most populous municipality served by the court—was also responsible for the majority of cases in the court’s civil and criminal dockets, the move suddenly made sense. In fall 2018, officials confirmed the court would relocate to Trotwood and eyed mid-2020 as an opening date. However, delays in site selection were followed by COVID-19-related delays. In December 2020, the 3.3 acre lot was procured. Ground was broken in August 2021, and construction on the 18,000-square-foot, $7.8 million courthouse was completed for the court to open on May 1, 2023.

This marks something of a return, with the Area One Court having previously been on Olive Road in Trotwood prior to its move to New Lebanon. But with a lease fully controlled by Montgomery County, and after so many years in development, the court’s new home in Trotwood is all but permanent this time around. Its two large courtrooms are equipped with the latest technology and are spacious enough to accommodate many people or facilitate video court or social distancing. The court building also has space for the Montgomery County Workforce Development and Montgomery County Job and Family Services. In timely fashion, it joins a variety of other new developments and civic structures in the area, including the Dayton Metro Library Trotwood Branch (2020), Goodwill Easter Seals Miami Valley’s West Campus Community Services Center (2023), and Trotwood Senior Lofts (2023) all within blocks.

Ask Director of Community Control Dean Johnson, and he will tell you that location is important. It is at the core of this project. Even in the short time since the courthouse opened, longtime municipal court judge and current Presiding and Administrative Judge, James Piergies has seen a clear increase in people showing up for court. This situation is helped by the RTA stop right outside the courthouse with regular service. With greater access to court, and higher participation, and decreased transportation costs for law enforcement agencies, the courthouse’s new home in the Trotwood community is already proving to make sense.

To celebrate the opening of the new courthouse, for the first two weeks of May, the municipal court held a Spring Amnesty, providing an opportunity for those with unpaid fines and court costs to pay a portion and have the remainder waived. While similar events have been held in the past, this marked the first time that amnesty was available not only for those in arrears but also for those current on their payments. In all, a record $20,994.65 was collected, representing the conclusion of 194 cases for 166 people. An auspicious beginning for a true courthouse for the community.

By Nathaniel M. Fouch Esq. Chair Bar Briefs Editorial Board Supreme Court of Ohio nathaniel.fouch@sc.ohio.gov

Western Div. & Elected official

Western Div. & Staff

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Continuing Legal Education

DBA FALL & WINTER LIVE CLE OFFERINGS:

September//

Estate Planning Trust & Probate Law Section presents: Irrevocable Trusts

1.0 Gen Hr | Wed 9/06/2023 | 4-5pm | Seminar Room

MIKE MENNINGER, Partner, Houck Menninger Law, LLC

Retirement Planning for Solo & Small Firm Attorneys

1.0 Gen Hr | Mon 9/25/2023 | Noon-1pm | Zoom

DARREN WURZ will share the 3 Essential Steps to Retirement Planning for Attorneys.

Domestic Relations Section presents: Divorce Analysis - Financials & Tax Returns

1.0 Gen Hr | Wed 9/27/2023 | Noon-1pm | | MC DR Court

ALAN DUVALL, Principal, Duvall & Associates, Inc. Certified Public will discuss financials and tax returns as it relates to divorce attorneys.

Employment Law Section presents: Ohio Civil Rights Commission

1.0 Gen Hr | Thurs 9/28/2023 | Noon-1pm | Zoom

ANTHONY CORONA, Investigator, Ohio Civil Rights Commission Trends in discrimination charges and tips/best practices for attorneys.

Corporate Counsel Section presents: Open AI, Open Book

1.0 Gen Hr | Thurs 9/28/2023 | 4-5:30pm | Seminar Room

ZACH HECK, Partner, Taft Stettinius & Hollister

Attendees can expect to learn about privacy and information security risks associated with AI software like ChatGPT.

Judge Brogan’s U.S. Supreme Court Update

3.0 Gen Hrs | Fri 9/29/2023 | 9-12:15pm | Seminar Room

The opinions rendered by the U.S. Supreme Court during the October 2022 Term, plus those cases accepted for review for the October 2023 Term.

October//

Lawyer Well-Being and Effective Client Representation

1.5 PC Hrs | Mon 10/16/2023 | Noon-1:30pm | Zoom

NITA SWEENEY, Mental Health Advocate

Doing Good, Doing Right: Ethical Considerations in Pro Bono Practice

1.5 PC Hrs | Mon 10/23/203 | Noon-1:30pm | Seminar Room

SUMMER HAWKS, GDVLP & SUZANNE BECK, PBPO

2023 Annual Elder Law Institute

4.5 Gen + 1.0 PC Hrs | Tues 10/24/2023 | 8:30-4:30pm

Sinclair Conference Center

See DBA website for full agenda.

Appointed Appellate Counsel Seminar

3.0 Gen or 3.0 NLT Gen Hrs | Fri 10/27/2023 | 9-12:15pm | Seminar Room

Want to get on the appellate appointed list or need appellate focused CLE? Topics discussed will include tools counsel can use to best represent their indigent clients, the appellate process from a prosecutor's perspective, and an overview of Appellate practice in Ohio.

November//

NLD presents: Chat GBT, AI and The Rules of Professional Conduct

1.0 PC or 1.0 NLT Gen Hr | Wed 11/1/2023 | Noon-1pm | Zoom

BILL PRICE, Elk & Elk

Bench Bar Conference: Tales of the PastPrevailing by Preparation and Preservation

Fri 11/3/2023 | Sinclair Conference Center

The Ethical Lawyer - 2023 Ethics Update

3.0 PC Hrs | Fri 11/17/2023 | 9-12:15pm | Seminar Room

Panel includes John Ruffolo, Paul Roderer Jr. Mark Tuss & Jeffrey Hazlett This seminar is the DBA's 2023 annual update of Ohio Supreme Court Cases regarding Violations of the Code of Professional Conduct presented by a panel of speakers involved in the disciplinary process.

Core Components for New Lawyers

3.0 NLT Specialty Credits | Wed 11/29/2023 | 9-12:15pm | Seminar Room

JOHN RUFFOLO, DENISE PLATFOOT-LACEY & JENNIFER BRUMBY

December//

Criminal Law Section presents: Criminal Law Certification

5.5 Gen Hrs | Fri 12/01/2023 | 9-12:15pm | Seminar Room

Want to get on the criminal appointed list for Montgomery County Court? This course is for you.

The Ethical Blunder in the Sandy Hook Defamation Case

2.5 PC Hrs | Tues 12/05/2023 | 9-11:30am | Zoom

BILL PRICE, Elk & Elk will analyze the ethical blunder by Alex Jones’ defense counsel in the Sandy Hook defamation case and what ethical and professional lessons we can learn from his mistake.

Judge Dankof's Criminal Law Update

3.0 Gen Hrs | Thurs 12/14/2023 | 9-12:15pm | Seminar Room

2023 Federal Court Update with the Judges

3.0 Gen Hrs | Wed 12/13/2023 | 1-4:15pm | Federal Courthouse

Annual IP for General & Corporate Practitioners

3.0 Gen Hrs | Fri 12/15/2023 | 9-12:15PM | Seminar Room

SAVE THESE 2024 DATES!

• 2nd Annual Real Property Institute

Thurs 2/1/2024 | Engineer's Club of Dayton

• New Lawyer Bootcamp

Wed 2/28/2024 | Location TBA

• Women in the Law Symposium

Thurs 3/7/2024 | Engineer's Club of Dayton

• Annual Probate Law Institute

Fri 3/15/2024 | Sinclair Conference Center

• Annual Domestic Relations Institute

Fri 4/26/2024 | Sinclair Conference Center

• Annual Diversity Day

Thurs 5/9/2024 | Sinclair Conference Center

2023-2024 DBA CLE & Events

Sponsorship & Promotional Opportunities

350 hours of education programming by more than 2,000 Topics include updates in probate, property, family law, technology, ethics.

2023-2024 DBA CLE & Events

You could sponsor the following!

Sponsorship & Promotional Opportunities

Annual Bench Bar Conference - November 3 *Most attended seminar!

2nd Annual Real Property Institute - February 1

Annual Probate Law Institute - March 15

The DBA offers over 350 hours of continuing legal education programming per year attended by more than 2,000 legal professionals. Topics include substantive legal updates in probate, estate planning, real property, family law, as well as marketing, technology, professionalism and ethics.

The DBA offers over 350 hours of continuing legal education programming per year attended by more than 2,000 legal professionals. Topics include substantive legal updates in probate, estate planning, real property, family law, as well as marketing, technology, professionalism and ethics.

You could sponsor the following!

Annual Domestic Relations Institute - March 26

Annual Bench Bar Conference - November 3 *Most attended seminar!

Annual Diversity Day - May 9

2nd Annual Real Property Institute - February 1

Annual Probate Law Institute - March 15

Annual Meeting - June 6 *Premier event of the year!

The DBA also hosts two-amazing annual events, that engage over 200 members of the local legal and business communities: DBA Bench Bar Conference and our annual business meeting and swearing in of incoming Board of Trustees, the DBA Annual Meeting.

two-amazing annual over 200 members of business communities: Conference and our annual and swearing in of Trustees, the Meeting.

The DBA also hosts two-amazing annual events, that engage over the local legal and business communities: DBA Bench Bar Conference business meeting and swearing in of incoming Board of Trustees, the DBA Annual Meeting

SPONSORSHIP PACKAGES:

Individual CLE $150

• Name and logo on seminar brochure, email, calendar listings and all other seminar marketing materials.

$800 $800 0 00 0

Name and Logo on the DBA website with website/url. materials , programs & Bar Briefs. materials.

Annual Domestic

Annual Meeting - June

Annual CLE & Special Events $500-1,200

$800 $800 $ $11,,00000 0

• Recognition by the DBA at the start of the seminar or someone from sponsoring organization makes the introductions and provides a 30 second commercial for their product/service.

Recognition by Name and Logo on the following:

Recognition by Name and Logo on

• Ability to provide marketing materials to all attendees either via electronic materials or paper format at the seminar.

the following:

1.

$500 $500

Event page of the DBA website with lin k to your website/url. Marketing materials , programs & signage.

Bench Bar Conference, Probate Law Institute, Domestic Relations Institute, Real Property Institute, Diversity Day & DBA Annual Meeting

Recognition by Name and Logo on

the following:

$500 $500

•Recognition by Name and Logo on the following:

• Post seminar follow-up email sent by the DBA on your behalf to all attendees.

Event page of the DBA website with link to your website/url.

Quarterly CLE $1,500-3,000

1. 2.

Q1-3:$1,500, Q4: $3,000

(1) issue of Dayton Bar Briefs. Full-page ad within materials.

• Sponsor designation at all CLE seminars hosted by the DBA in a given quarter of the year.

3.

$500 Title Sponsorship

• Name and logo included on the on-site agenda & signage

Event page of the DBA website with link to your website/url.

Marketing materials , programs & signage.

Peek of the Week (circulation 1,600) with link to firm website.

(circulation 1,600) with company information, via gifts at event.

(1)issue of Dayton Bar Briefs.

• Name and logo on all seminar brochures, emails, calendar listings and all other marketing materials for seminars in that quarter.

Exhibit your company information, via promotional flyers or gifts at event.

4. Half-page ad within materials.

Lunch and registration for (2) at the program.

• Name and logo included on event listing on website, e-blasts, and other marketing materials

• ¼ Page Ad in Attendee Materials if applicable

Marketing materials , programs & signage.

2. 3. 4. Half-page ad within materials. Lunch and registration for (2) at the program.

$800 Sterling Sponsorship

Event page of the DBA website with link to your website/url.

• Name and logo included on the on-site agenda & signage

(1)issue of Dayton Bar Briefs.

• Recognition by the DBA at the start of the seminars or someone from sponsoring organization makes the introductions and provides a 30 second commercial for their product/service.

Lunch and registration for (2) at the program.

• Post seminar follow-up email sent by the DBA on your behalf to all attendees.

Event page of the DBA website with link to your website/url. Marketing materials , programs & signage.

• 1/2 Page Ad Space in Attendee Materials if applicable

Marketing materials , programs & signage.

(1)issue of Dayton Bar Briefs. 1/4-page ad within materials.

• Name and logo included on event listing on website, e-blasts, and other marketing materials

• Registration for (1) at the event

(1)issue of Dayton Bar Briefs.

$1,200 Barrister Sponsorship

•Recognition by Name and Logo on the following: 1. 2. 3. 4.

1/4-page ad within materials.

• Name and logo included on the on-site agenda & signage

• Name and logo included on event listing on website, e-blasts, and other marketing materials

• Full Page Page Ad Space in Attendee Materials if applicable

• Leave behind brochure/flyer or promotional items at each attendees seat

• Follow up email sent by the DB A to all attendees on behalf of the sponsor

• Lunch & Registration for (2) at the event

1.

2. 3. 4. 5.

2022 DBA Annual Meeting Bench Bar Conference

DBA Annual Elder Law Institute

Wednesday, October 24

8:30am-4:30pm | 4.5 Gen + 1.0 PC Hrs

Sinclair Conference Center

Presenters Include:

Michael J. Millonig Esq. Best Lawyers in America- Elder Law, Certified as an Elder Law Attorney by the National Elder Law Foundation since 1998, OSBA Board Certified Estate Planning Trust and Probate Specialist; C.P.A. Inactive.

Ed Smith Esq.

OSBA Board Certified Estate Planning Trust and Probate Specialist, Ohio Super Lawyers for 2012 through 2022, Captain in the United States Air Force, Judge Advocate General (JAG) Corps from 1974-78

Theresa Busher

Social Security Administration, Dayton

Kelly Draggoo

Social Security Administration, Cincinnati

Melanie Hankinson, LPTA, CSA, BCPS Owner/Managing Director of IKOR

Tracy Goodpaster Medicare Connection

AGENDA:

8:30am Defining Elder Law and Medicaid for Nursing Home

Michael Milonig

9:30am Ethical Considerations in Elder Law, Estate Planning, Trust & Probate Practice

Ed Smith

10:30am Break

10:45am Social Security 101 - Essentials and Updates for Elder Law Professions

Theresa Busher & Kelly Draggo

12:15pm Lunch

1:15pm Working with an Aging Life Care Professional

Melanie Hankinson

2:15pm Medicare Tips & Updates for 2024

Tracy Goodpaster

3:15pm Break

3:30pm Planning Strategies for Asset Protection for Our Clients, Avoiding Estate Recovery and Q&A

Michael Milonig

4:30pm Adjourn

From the Judge's Desk: Kushinda Court

No, I did not sneeze and accidentally hit my keyboard. It is pronounced “KOOSH-IN-DA.” The word Kushinda means “to conquer, to overcome, or to defeat” in Swahili. Kushinda Court is a specialty court that aids 18-29-year-old African-American men sanctioned to Intensive Supervision Probation (ISP) overcome their past and reclaim their future. ISP is the highest level of supervision.

Since the Fall of 2021 our court recognized a particularized need to aid a demographic that is largely forgotten in terms of probation assistance, yet often remains the constant focus of criminal justice initiatives and reform. The historical complexities between African-American men, the justice system and law enforcement have been well documented. With these complexities in mind, we created Kushinda Court.

Every other Thursday, we hold Kushinda Court at 1:00 p.m. in my courtroom for these young men. Admittedly, these sessions are nothing like you have ever seen or experienced in a courtroom. And that’s the point. Kushinda Court’s purpose is to be unconventional and meet these men where they are. We do so with poignant speakers and presenters, from the formerly incarcerated turned businessperson, to members in the community involved in public service initiatives.1 Just think of it as, a

By The Honorable Gerald Parker Montgomery County Common Pleas Court gerald.parker@montcourt.oh.gov

CLE in Sinclair Building 12 meets the local barbershop.

However, Kushinda Court does not simply end with speakers and presentations because there is still work to be done by the participants. On opposite Thursdays, a trained H.E.A.T. facilitator2 guides the young men through the community-building H.E.A.T. curriculum.3

H.E.A.T. stands for Habilitation Empowerment Accountability Therapy. This H.E.A.T. curriculum is used by numerous probation departments across the country. These classlike sessions are held in the lower level of the courthouse and that is where we hope the real transformation occurs.

Kushinda Court intervenes through an evidence-based therapeutic model to reroute these men into healthy pathways and relationships that focus on higher self-efficacy, self-esteem, and self-monitoring. In 2018, the United States Department of Justice recognized the importance of developing a culturally proficient intervention for young African-American men in drug courts.4 Thanks to the passion and ingenuity of our Director of Probation, Carlos Walker, and Supervisor of Specialized Dockets, Karla Arnold, we created Kushinda Court. Kushinda Court is only the second of its kind in the United States and first in the state of Ohio.

Some may be wondering, why is there a specialized court just for black men? Why can’t we simply lump them with the others on their respective, specialized dockets? Well, it is quite simple. Research shows that people of color are rarely given the benefit of participating in specialized dockets. Our probation department checked the receipts in 2021 and at one point there were only 21 people of color participating in our courts’ four specialized dockets out of approximately 150 total participants. Of the 21 people of color, 13 of those individuals were veterans engaged in Veteran’s Treatment Court. This has been a consistent trend over the years. The reason Kushinda Court was developed was to target these men who come from marginalized communities that are undereducated, underserved, under-resourced and plagued with gun violence. No other docket addresses those issues.

The Montgomery County Probation Department has roughly 3,000 individuals on probation. Each of the them is only one violation away from being sentenced to prison. African-American males make up over 40% of our probationers. For those truly interested in criminal justice reform, being intentional about providing the necessary support to improve success rates in young African-American men while on ISP is vital. Kushinda Court offers a

Have you heard about our upgrade?

culturally proficient curriculum geared towards these young African-American men on probation. This court receives support from many social service entities, employers, and the community at large which is a major step towards such reform.

I’m honored to work with colleagues who support this effort.5 Not surprisingly, I serve on a court willing to try new things because the alternative would be to continue to do nothing. Kushinda Court works towards reducing our jail and prison populations. But for the probationers that fail to comply, we have plenty of sentencing alternatives, including prison. Kushinda Court is unafraid to address uncomfortable topics such as their distrust in police while surviving in violent neighborhoods. Almost half of the participants have been shot or shot at. Sadly, as I write this DBA article, two Kushinda Court participants have been senselessly murdered within the past year. Neither of whom made it to see their 24th birthday. Like any other specialized docket, there will be failures, struggles and disappointment in doing such difficult work, but our team is up to the task. At some point, the panel discussions, forums, and zooms on criminal justice reform must cease and must make way for actual work to be done.

If you’re wondering if this can be done, check out the mission of the Global Homeboy

Network (GHN) whose conference we attended this summer in Los Angeles. Since 1988, GHN began as a way of improving the lives of former gang members in East Los Angeles and has evolved into the largest gang intervention, rehab and re-entry program in the world. Its mission is to provide hope, training, and support to formerly gang-involved and previously incarcerated people, allowing them to redirect their lives and become contributing members of our community. If it can be done with former gang members in East Los Angeles, then it can be done in Dayton, Ohio.

ENDNOTES:

1We’ve even have had two popular, local, hip-hop artists (Tripp Fontaine and Jay Martinez) speak and perform for these men. If you don’t know, you better ask somebody.

2Shout out to our facilitators: Mike Newsome (Fatherhood Initiative), Quinn Howard (Re-Entry), Bill Roberts (Addiction Services), Tony Cochran (local businessowner), and probation Officers, LA Christian, Alvin Stokes, Serida Lowery, James Maupins and Lewis Harris.

3See https://www.supremecourt.ohio.gov/sites/specDockets/ EducationSeries/2021/November/110121.pdf

4 See https://www.ojp.gov/ncjrs/virtual-library/abstracts/ developing-culturally-proficient-intervention-young-african 5Even Judge Skelton has attended Kushinda Court and gave it a big thumbs up, which is hard to get!

By Joanna Gisel,

The Dakota Center: Serving the “Human Being” over the “Human Doing”

Located in the heart of West Dayton, The Dakota Center is a nonprofit organization dedicated to empowering the local community to nourish their “whole person” – mind, body, and spirit. To that end, The Dakota Center creates an atmosphere to “develop character values for life to benefit all ages by awakening human creative potential in a climate of tolerance and understanding.” This atmosphere is cultivated by the organization’s driven staff, and even just a brief dive into the Center’s culture leaves the impression that the Center is more than just a nonprofit – it is a second home and sanctuary for West Dayton residents.

I was fortunate to be introduced to The Dakota Center through the DBA Leadership Development Class, and the Class this year chose The Dakota Center as the charity organization to sponsor during our annual charity event – a DBA Trivia Night – which took place on June 29, 2023. This article serves to spotlight the valuable work of Center and to encourage Dayton legal professionals to consider volunteering with the Center’s many programs.

DAKOTA CENTER PROGRAMMING

The Dakota Center serves the community through four primary programs, special events throughout the year, and countless community partnerships. Three of The Dakota Center’s primary programs focus on providing the youth of West Dayton a safe place to gather, learn, and simply be children. The Center’s Homework Club is an after-school program for K-8th graders which runs Monday through Friday during the school year. Each child has the opportunity to spend time with their friends, receive assistance on schoolwork, and eat a nutritious dinner before they go home. The Center recently installed a new playground on its property, along with four picnic tables, to encourage children to remain active and develop social relationships with their peers, even after school hours. The Center also offers its “Vipers

Basketball” program Monday through Friday after the Homework Club for K-12th graders.

When school is not in session for the summer, the Center offers a summer enrichment camp for K-8th graders, which runs from mid-June through midJuly. During summer camp, kids receive lessons in reading, STEM, and life skills, and go on field trips. These experiences are invaluable for children in West Dayton, who may not normally have access to opportunities to travel beyond their immediate surroundings.

The Dakota Center is also a valuable resource for seniors in West Dayton. The “Golden Age Senior Program” runs weekly Monday through Thursday and provides seniors aged 55 and older with means to maintain quality living in a safe space. Programming focuses on health, nutrition, educational opportunities, and leisure activities. Seniors who participate in this program cherish the chance to socialize with their peers and often become involved as volunteers for other aspects of the Center, including the Homework Club, thereby connecting the generations within West Dayton.

Last but certainly not least, The Dakota Center hosts several annual events to serve specific needs of the community. This past April, in partnership with Dayton Children’s, Premier Health, Help Me Grow, and Wesley Dayton, the Center hosted their Community Baby Shower (pictured above). The Baby Shower provided new and expecting families with exposure to over 30 local pre- and post-natal service providers during the Resource Fair. And raffle items such as pack-n-plays, toys, cribs, mattresses, and clothes were distributed to over 60 families. Each family also received diapers, wipes, and a free car seat. The value of such an event to West Dayton is enormous and illustrates how the Center aims to support every person in the community. The Dakota Center also has an annual wellness clinic for West Dayton pets, a community Grill Out to mark the end of summer, a Trunk or Treat celebration around

Sebaly Shillito + Dyer, LPA, Member of the Non-profit Clearinghouse Subcommittee

This article is one of a series from the DBA’s Social Justice Initiative to inform our membership about, and enhance their participation in, many of the non-profits in our community that address issues of “social justice.”

Halloween, and a community Christmas Party, which last year served a meal, including a whole chicken, to over 113 families representing over 400 people. Each family also received presents and filled stockings for children.

The above only scratches the surface of The Dakota Center’s impact on the community, and this impact is constantly expanding, through initiatives such as a new monthly emergency food pantry along with The Dayton Foodbank, and its community garden, which hosts healthy fruits and vegetables for several different community groups.

THE DAKOTA CENTER’S IMPACT AND FUTURE

By providing a wide range of services that address the needs of every part of the community, the Center promotes self-sufficiency and the betterment of the entire person. Its commitment to social justice and advocacy has also helped to raise awareness about the systemic issues that continue to affect the marginalized communities in the area – and this extends beyond just the necessities of life. Those who are struggling to make ends meet or live in an unsafe community often do not have the time, energy, or money to focus on their own physical, mental, and spiritual well-being. For residents of West Dayton, The Dakota Center helps supply the building blocks for life – education, social support, nutrition, and so on – so residents can, in the words of Executive Director Mike Miller, become a human “being” for a time, living in the joys of the moment, rather than just a human “doing.”

Thanks to the successes the Center has experienced so far, and the help of its partners including the Montgomery County Health and Human Services Levy and United Way of Greater Dayton, the Center is looking to develop a new strategic plan in 2025 to mark its 60th Anniversary. The details are yet to be worked out, however, every improvement to The Dakota Center correlatively improves the well-being of those living in West Dayton.

HOW LEGAL PROFESSIONALS CAN HELP

The Dakota Center is always looking for volunteers for the aforementioned programs and events. In addition, the Center could use pro bono legal assistance in various areas, including real estate law, employment law, and risk mitigation. Please contact Mike Miller – mmiller@dakotacenter.org – if you are interested in volunteering. Be sure to check out www.dakotacenter.org and subscribe to the Center’s newsletter for updates.

By Kristina Curry, Co-Chair, Workers Comp & Social Security | Pickrel Schaeffer & Ebeling Co., LPA | kcurry@pselaw.com

Intentional Tort Litigation

Workers’ Compensation practitioners have considered the issue of employer intentional torts all but dead1, relegated to rare circumstances where an employer intended the employee to be harmed. One recent case, eventually decided in the employer’s favor following more than seven years of litigation, a jury verdict awarding over $450,000 to the Plaintiff, several appeals, and no doubt countless hours of work on both sides of the dispute, demonstrates that intentional torts are (or were) still a thing.

In Bliss v. Johns Manville2 , Plaintiff alleged that some time prior to his injury, employer Johns Manville had removed the bolts to an access window, or had never installed the bolts to an access window, on the machine that ultimately led to the plaintiff’s injury. In the trial court, the employer filed a motion for summary judgment on grounds that the plaintiff had presented insufficient evidence to establish that the employer had acted with intent to injure under O.R.C. 2745.01(A). Plaintiff responded in opposition, arguing that he was entitled to a rebuttable presumption of intent to injure under O.R.C. 2745.01(C).

Whether Plaintiff was entitled to the presumption of intent to injure hinged on two key issues: whether the bolts on the access window met the definition of an equipment safety guard, and whether said guard had been “deliberately removed” by the employer. The trial court denied the employer’s motion and found that there was a genuine issue of fact based on the plaintiff’s expert affidavit. The affidavit opined that the employer deliberately removed an equipment safety guard when the employer failed to bolt the machine access window. The employer had moved for directed verdict at the close of plaintiff’s case, which was denied, and again at the close of

employer’s case, which was also denied. The issues were submitted to a jury that returned a verdict in favor of the plaintiff with damages set at $451,000.

On appeal, the Sixth District reversed and entered judgment in the employer’s favor based on the trial court’s failure to strike the plaintiff’s expert affidavit, and its failure to conclude that the bolts to the access window constituted an equipment safety guard that had been deliberately removed under O.R.C. 2745.01(C). The Sixth District concluded that summary judgment should have been granted in the employer’s favor and that the case should not have been given to a jury.

Bliss appealed, and the Supreme Court accepted jurisdiction over the question of whether the trial court’s decision to deny summary judgment could be reviewed by the Sixth District, given that plaintiff had received a favorable verdict based on a “full record.” Interestingly, the Court explained that while normally the denial of a motion for summary judgment is often rendered moot by subsequent proceedings, a denial of a motion for summary judgment is not harmless when the denial was predicated on a pure question of law.

The Court went on to affirm the decision of the appellate court to overturn the trial court’s decision and to grant summary judgment to the employer. The Sixth District had found that the trial court’s admission of plaintiff’s expert affidavit was error, because the question of whether the plaintiff was entitled to a rebuttable presumption under 2745.01(C) was predicated on a pure question of law. Finally, since there was no evidence at trial that the employer had intended that the plaintiff suffer any injury or that the employer acted with the belief that the injury was “substantially certain”

to occur, plaintiff’s claim also failed under 2745.01(B).

Under 2745.01(B), employers cannot be liable for an intentional tort unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur. As the Court previously had held, “absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort.”3 More recently, in March of 2023, the Sixth District once again considered 2745.01(B) in regards to whether the language, “substantially certain” would admit of some conduct by the employer that falls short of deliberate intent. The Court explained:

Although the statute appears to present two avenues for an employee to prove an intentional tort, the definition of “substantially certain” in R.C. 2745.01(B) “equates ‘substantially certain’ with ‘deliberate intent’ to injure. Thus, the two options of proof [under R.C. 2745.01(A)] become: (1) the employer acted with intent to injure or (2) the employer acted with deliberate intent to injure. [W]hat appears at first glance as two distinct bases for liability is revealed on closer examination to be one and the same.”4

King v. Buildtech Ltd. Construction Development, 2023 -Ohio- 1092, ¶ 1, 2023 WL 2728792, at *1 (Ohio App. 6 Dist., 2023). The statute itself states that “substantially certain” means that an employer acts with deliberate intent to cause an employer to suffer an injury.” R.C. 2745.01(B).

A few thoughts to ponder over: the Ohio intentional tort statute, as nearly every practitioner is aware, has undergone more than 30 years of revisions, and was declared unconstitutional prior to a third version

upheld by the Court in Kaminski. Not to mention that prior to its first codification in 1988, the intentional tort outside of the Workers’ Compensation system was judicially created, and used the “substantially certain” language to describe intent as something “broader than a desire to bring about physical harm” under Jones v. VIP Development Co., 472 N.E. 2d 1046 (Ohio 1984). From there, the General Assembly embarked upon a decades-long battle to enact an intentional tort statute that would limit the application of the “substantially certain” terminology. Finally, in 2010, the 2005 version of the statute was upheld in Kaminski, but the “substantially certain” language remained, being defined as the operational equivalent of “intent” by the statute itself. Whether this tension is finally laid to rest under Bliss and its progeny remains to be seen.

ENDNOTES:

1Brice Smallwood, R.I.P. Employer Intentional Torts: The Debilitating Application of Ohio Revised Code Section 2745.01, 85 UCINLR 251 (2017).

22021-Ohio-1673, 172 N.E.3d 1146, ¶ 29 (6th Dist.), aff'd., Slip Opinion No. 2022-Ohio-4366, --- N.E.3d ––––.

3 Houdek v. ThyssenKrup Materials N.A., Inc., 134 Ohio St. 3d 491, 2012-Ohio-5685, 983 N.E. 2d 1253, ¶ 25.

4(Brackets sic and internal quotations omitted.) Hoyle v. DTJ Ents., Inc., 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶ 10, citing Kaminski, 125 Ohio St.3d 250, 2010-Ohio1027, 927 N.E.2d 1066, at ¶ 55; and Rudisill v. Ford Motor Co., 709 F.3d 595, 602-603 (6th Cir. 2013).

HERBERT M. EIKENBARY Trust

The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers underthe 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 $4,000 are also available

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

WHAT Is THE EIKENBARY TRusT?

Dayton Bar Foundation

Your Gift Will Help STRENGTHEN Our Foundation.

The Dayton Bar Foundation (DBF) is a 501 (c)(3) charitable organization and serves as the 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:

• AdvocAtes for BAsic LegAL equALity (ABLe)

• greAter dAyton voLunteer LAwyers Project (gdvLP)

• LAw & LeAdershiP institute

• LegAL Aid of western ohio (LAwo)

• MiAMi university Pre-LAw center

• wiLLs for heroes

All gifts are eligible for charitable deductions on your federal income tax return if you itemize deductions.

Dayton Bar Foundation, 109 N. Main St., Ste. 600, Dayton OH 45402-1129

Contributions may also be submitted online: daybar.org/?pg=Foundation

Make a donation now and help us make a difference through our programs. Gifts may also be made in honor or in memory of family, friends or colleagues.

I am pleased to support the Dayton Bar Foundation with a gift of:

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Volunteer! Greater Dayton Volunteer Lawyers Project (GDVLP)

If you read the article “The Justice Gap” in the May/June issue of the Dayton Bar Briefs, you may have been shocked at, and perhaps a little uncomfortable with, the statistics published in the Legal Services Corporation’s (LSC) Justice Gap Study (the “Justice Gap” is the difference between the civil legal needs of low-income Americans and the resources available to meet those needs).

If you thought “wow, I would like to help,” but paused because you’re tight on time with work, family, and other commitments, we can help! Our organizations make it easy to use your skills to close the Justice Gap.

Why Should Attorneys Volunteer?

First, some background on what makes you special: according to the American Bar Association’s (ABA) 2022 4th Annual Profile of the Legal Profession (“ABA Annual Profile”), as of January 2022 there were 1.3 million lawyers in the United States. This sounds like a lot, but translates into just 4 lawyers for every 1,000 residents. And, while the number of lawyers nationwide has grown in the past 10 years, unfortunately Ohio lost lawyers over the past decade, experiencing an 8% decline in lawyers. The result? Ohio has only 2.9 lawyers per 1,000 population!

The ABA recognizes that lawyers’ skills are in high demand and recommends that all lawyers perform at least 50 hours a year of pro bono services to those unable to pay. However, per the ABA Annual Profile, approximately 20% of all lawyers meet this aspirational goal (a drop from previous surveys). Further, 48% of lawyers did no pro bono work in the previous year (a big jump from the previously reported 20%), and 19% said they have never done pro bono work.

Easy Ways to Volunteer

The good news is, overall, about 50% of all American lawyers perform pro bono services for clients who cannot afford to hire an attorney. We invite you to continue your pro bono work if you do so, and join in to increase that number if you do not. Ohio residents clearly need you! Our organizations strive to make it easy for attorneys to jump in and use their skill sets to lift up and support our communities. Read on to learn more about how we do this. Hint: looping in summer associates for hands-on experience is a win-win for everyone!

Pro Bono Partnership of Ohio

In the Dayton area there are countless registered 501(c)(3) public charities working tirelessly to make a difference in the community. They bring meals to the elderly. They house families who have been displaced. They make sure children are ready, able, and excited to learn. They help our region thrive. Just like well-resourced for-profits, nonprofits need legal advice. Yet most nonprofits, particularly the smaller ones with limited resources, lack regular access to such advice. Pro Bono Partnership of Ohio (“PBPO”) engages attorneys to meet that need.

Since PBPO’s founding, 925+ attorney volunteers throughout Southwest Ohio have efficiently and meaningfully shared their expertise with 325+ local nonprofits on over 2,400 legal matters. But we need more of you to empower nonprofits so they can make more effective decisions, improve governance, and comply with laws and regulations while preserving their limited resources for their program implementation.

Hallmarks of working with PBPO:

• Broad range of projects in transactional practice areas such as contracts, employment, general corporate issues, IP, real estate, mergers, and dissolutions

• PBPO staff attorneys pre-screen and identify discrete matters, providing ongoing support throughout the project

• The average project takes around 5 hours to complete and is not subject to time deadlines

• Liability insurance and CLE credit are available

• Each nonprofit may serve dozens, hundreds, or even thousands of individuals. Helping even one organization creates a positive ripple effect in our community.

Greater Dayton Volunteer Lawyer’s Project

The GDVLP’s mission is focused on YOU, the lawyers in our area. For the last 34 years, our entire mission has been to provide opportunities for the community of dedicated lawyers around Dayton and the Miami Valley to fulfill their desires and professional obligations to provide pro bono assistance to those most in need in our community. From full placements to brief counsel and advice clinics, we are here to channel the efforts of our volunteers to efficiently and consistently help individuals needing legal resources to prevent homelessness, protect children, prevent abuse, provide stability to families, ensure employment opportunities, and restore people’s dignity. We assist more than 700 clients annually and the need is always increasing. We can find opportunities that fit your needs and interests:

• Looking to try a new area of law? Take on a case placement in conjunction with a more experienced attorney to learn new skills.

• Have limited time but still want to help? Volunteer at a public event clinic for things like criminal record sealing, name changes, or wills & advanced directives.

• Schedule is crazy, never know when you’ll have free time? Consider offering to review documents drafted by law students and paralegals for wills, deed transfers, and simple estates as your schedule permits.

• Have an area of law or demographic that needs assistance that you are passionate about? We can find you cases that meet your needs or develop clinics that match your interests.

• Have summer or first year associates who need experience in front of judges? Consider taking on uncontested divorces, CPOs, or small contracts/warranties cases.

• Have an idea we’ve not yet thought of? Email me and let’s create the next great idea together!

Conclusion

Sometimes, it can feel like the burden is too great and the ask too large to make any significant difference. But that is not true! Together, we can do tremendous things - one individual, one non-profit, one day, one case, one client at a time!

By Summer Hawks Esq. GDVLP, Executive Director summer@gdvlp.org | (937) 461-3857

Ohio Lawyers Assistance Programs (OLAP)

Be Aware of These 9 Cognitive Distortions

Every person has internal thoughts that cause anxiety, misery or just an overall bad feeling—they are called cognitive distortions, and they infiltrate our brains in many different ways. Cognitive distortions come in many different forms. The best way to cope with these thoughts is to be aware of these 9 distortions and learn how to prove them wrong.

“Should” or “must” statements

A lawyer arrived to work and reminisced about her morning. She thought to herself, “I should have been more empathetic to my spouse this morning when I was in a rush. I must be a terrible husband/wife.” This is called a “should” statement, where you feel guilty or lacking and you are not living up to your beliefs or expectations, which makes you believe that there must be something wrong with you.

Black and white thinking, also known as all-or-nothing thinking

Terry has received myriad compliments and accolades during his legal career. He made one small mistake—he called a colleague by the wrong name—and he immediately believed he was not fit for his position as a lawyer. He thought to himself, “I am a terrible lawyer. I cannot do anything right.” Obviously, this is not true. He needs to recognize this thought, challenge it, and figure out why this is not true. Terry has done almost everything the right way, and he needs to focus on those accomplishments. Just because he made one mistake does not mean he is lacking. Everyone makes mistakes.

Jumping to conclusions

Melissa arrived at the office, and her coworker Diane did not say hello to her. Melissa immediately believed that she must have done something to offend Diane and that Diane is angry with her. Melissa does not have enough information to know this is the truth, yet she believes it anyway. If you find yourself jumping to conclusions, try to rationalize why your thought is distorted. In this example, Diane might not have seen Melissa walk in, which is why Diane did not say hello, not because she is angry with her.

Filtering

Mental filtering is when you come up with a negative of something positive. Instead of thinking about his major accomplishments as a judge, Sam only focused on another six years of public scrutiny. Yes, scrutiny might be a small part of the job, but there is so much more!

Overgeneralization

Overgeneralization is when a person applies something from one event to all other events. For example, Stacy has been a mentor to Michael for two years. The last time Michael went to court, he was late and unprepared. Now Stacy believes she has failed Michael just because he had one bad day.

Personalization

Personalization occurs when a person thinks he/she is responsible for negative events that are not in their control. Judge Wyatt believes that the never-ending court docket is his fault because he took a week vacation with his family. There will still be a long docket whether Judge Wyatt took a vacation or he did not. Being out of the courtroom for one week is not going to cause a greater number of cases.

Comparison

You have probably heard the expression that comparison is the thief of joy. With social media and our constant exposure to other people’s lives and achievements, it is easy for us to fall into the trap of comparing ourselves to others. For example, Emily compares herself to another lawyer in her office and says, “I am not as wellliked as her.” This is an unfair comparison, since Emily cannot read the minds of others. She does not in fact know that others like her colleague better. Instead of comparing herself, Emily can focus on all of the people who support her and that she also is well-liked.

Magnification or minimalization

Magnification is when you exaggerate the importance of an event. For example, Cindy missed a meeting because she forgot to put it in her calendar. She immediately thinks that she is the worst lawyer just because of that one time. One mistake does not make you terrible at something. Instead, she could think of all of the meetings she attended where she was on time! Minimalization happens when you inappropriately shrink things until they appear tiny. When Nancy won an award that her colleague nominated her for, she did not believe she actually deserved it. She believed her colleague was just being nice.

By Scott R. Mote, Executive Director OLAP

Labeling

“I’m a bad lawyer,” Harry said, after he became overwhelmed one day. Harry is labeling himself. Being a lawyer is complex, and many ups and downs come along with the job. Instead of thinking about all of his achievements, he is labeling himself as bad just because he is overwhelmed. We all get overwhelmed at times. We just need to learn how to cope and think about the positives of being a lawyer.

Do you feel like you can identify with any of these cognitive distortions? It is important to be aware of these thoughts and learn how to change your thinking. If you find yourself comparing, labeling or any other type of distorted thinking, figure out why that is not true. If your all-ornothing mindset makes you think that you are a bad lawyer, challenge your thinking. Remind yourself of all of your professional accomplishments, how you help people daily, and how committed you are to the legal profession. This should help you to start thinking more positively, which will make you less stressed and anxious. If you or another legal professional you know needs help, contact the Ohio Lawyers Assistance Program. OLAP is a confidential program that helps legal professionals cope with the stresses of the profession. OLAP has saved lives, careers, marriages and families. All inquiries are confidential. (800) 348-4343 / ohiolap.org

University of Dayton School of Law

Scholars Selected for Full Law School Tuition, $15,000 Yearly Stipend and Post-Grad Job

Two students entering the University of Dayton School of Law this fall have earned full tuition, an annual $15,000 living expense stipend and a job following graduation through the University of Dayton School of Law's Flyer Legal Pathways Program.

Faruki PLL and CareSource selected University of Dayton student Arabella Loera and Advocates for Basic Legal Equality, Inc. (ABLE), with support from the Dayton Legal Heritage Foundation, selected Washington University student Taylor Demus as the newest scholars for the program that recruits underrepresented and underserved students to law school.

Both received their bachelor's degrees this May and will start law school in the fall.

Loera, graduated with a criminal justice studies degree, has interned with the Ohio Innocence Project. She topped more than 7,300 mock trial students with the only perfect 40 score at the 2023 American Mock Trial Association’s regional and national qualifying tournaments.

"We are thrilled to welcome Arabella to the Dayton legal community and have her join us. She exemplifies what we all hope to be as lawyers – professional, thoughtful, articulate and hard working," said Erin Rhinehart, co-managing partner of Faruki PLL.

Demus, graduated with a bachelor's degree in psychological and brain sciences, is an intern at the St. Louis Public Defender’s Office and has served as a volunteer advocate in the St. Louis Domestic Violence Court.

“Taylor has a strong commitment to social justice advocacy and great experience working on issues we care about,” said Heather Hall, interim executive director of ABLE.

The UD School of Law announced the Flyer Legal Pathways Program, believed to be the first of its kind among U.S. law schools, in October 2021 with inaugural partners Thompson Hine and Taft Law, and selected the first two students — Jessica Gassett and Lizzy Dobbins — in June 2022.

Any firms interested in being a partner of the Flyer Legal Pathways Program can contact Katie Wright, visiting assistant professor of lawyering skills, at wrightk7@udayton.edu.

The School of Law was named one of the best law schools for African Americans in the winter 2020 issue of National Jurist’s preLaw magazine. A third of the school's 2022 entering class were students from underrepresented and underserved populations.

The school has been riding a recent wave of success, posting improvements in selectivity, median Law School Admission Test scores, GPAs of incoming students and job placement. The School of Law attracted more applicants and more academically accomplished students by offering flexibility with options like an online hybrid J.D. program and a Leadership Honors Program featuring full tuition scholarships, custom-designed leadership training, and mentoring by prominent judges and lawyers.

To apply to the University of Dayton School of Law, visit https://udayton.edu/law/admissions/apply.php.

For more information on the program, email Katie Wright, visiting assistant professor of lawyering skills, at wrightk7@udayton.edu.

For interviews, contact Shawn Robinson, associate director of news and communications, at srobinson1@udayton.edu

In celebration of Attorney Merle Wilberding's 50th year practicing law at Coolidge Wall, Congressman Mike Turner, serving Ohio's 10th District, recently presented Merle with a flag flown over the U.S. Capitol in his honor, and also, had his many achievements put into the Congressional Record.

Andrew Strauss, dean of the University of Dayton's School of Law since 2015, has announced he will conclude his appointment Dec. 31st and return to the faculty after an administrative sabbatical. Notable progress by the School of Law during Strauss’ tenure includes partnerships with the University of Dayton’s Human Rights Center and Hanley Sustainability Institute, an overhaul of the traditional law school curriculum, an undergraduate-like majors system of J.D. concentrations, the hiring of more than half the law school's faculty, technology partnerships with LexisNexis and Emerson, and a network of 12 partnerships with law schools around the world.

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Green & Green, Lawyers is proud to announce that Thomas M. Green, Jane M. Lynch and Jared A. Wagner have been selected by their peers to be included in the 2024 Edition of The Best Lawyers in America©. Tom was recognized for his work in Commercial Litigation. Jane was recognized for her work in Civil Rights Law and Litigation - Insurance and Jared was recognized for his work in Litigation - Construction. Their inclusion in Best Lawyers in America© is considered an honor since it is based upon earning a high level of respect among their peers for their abilities, professionalism, and integrity. Mr. Green and Ms. Lynch hold the coveted AV Preeminent Rating for lawyers by Martindale-Hubbell® and have been selected as an Ohio Super Lawyer® for multiple years.

DBA Classified Ads:

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MEDIATIONS

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Congressman Mike Turner awards, Merle

Become an Ohio Notary!

Through a joint venture with the Akron, Cincinnati, Cleveland, Toledo and Ohio State Bar Associations, the DBA is helping new and renewing notaries across all of Ohio with all of their education and testing needs. Ohio Notary Services (ONS) is truly the one-stop-shop for all things notary in Ohio, including required courses, tests, and notary supplies.

Notary Law Checklist:

Step 1

Obtain a formal Bureau of Criminal Investigation (BCI) background check

Step 2

Visit www.becomeanohionotary.com, attend class virtually and pass the test (if required.) ONS will provide you with a certificate for submission to the Secretary of State.

Step 3

Visit the Ohio Secretary of State's website and select File Online to submit your application.

Step 4

Return to www.becomeanohionotary.com to purchase your notary supplies. Free standard shipping on all notary bundles! (Use the code “FREE”)