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

Sept/oct 2023

BarBriefs

The Off icial Magazine of the DBA

2023-2024 DBA President

Anne P. Keeton

president'S MESSAGE Welcome to a New Year at the DBA! pg 4

50 year honoree

barrister OF THE MONTH

Celebrate those in practice since 1973

Mark Chilson Esq.

pg 5

pg 8

BarBriefs 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

vol.

73

sept/oct 2023

Contents Columns:

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Welcome to a New Year at the DBA!

PRESIDENT'S MESSAGE

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

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Kushinda Court

JUDGE'S DESK

Montgomery County Common Pleas Court General Division

By The Honorable Gerald Parker

Features:

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Mark R. Chilson

12

A Day in the Life of a Paralegal

PARALEGAL

By Tricia Griffieth | Greater Dayton Volunteer Lawyers Project

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A Courthouse for the Community

BARRISTER OF THE MONTH

By Tom Intili | Intili Law Group

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.

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SOCIAL JUSTICE

24

WORKERS COMP

By Nathaniel Fouch | Supreme Court of Ohio

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

By Joanna Gisel | Sebaly Shillito + Dyer

Intentional Tort Litigation

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

Also In This Issue: 3

ANNUAL PARTNERSHIP Sponsor the DBA in the new bar year!

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50 YEAR HONOREE LUNCHEON October 18th

6

2023-2024 BOARD OF TRUSTEES

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FALL/WINTER EVENTS Register online today!

9

31ST ANNUAL BENCH BAR CONFERENCE Save the Date: November 3rd

13 SECTION & SPECIAL INTEREST GROUP LEADERSHIP & MEETING DATES 16 FALL/WINTER CLE OFFERINGS 17 CLE & EVENT SPONSORSHIP 21 DBA MAX+ MEMBERSHIP Access all of your CLE for one annual low rate!

25 LAWYER REFERRAL SERVICE PANEL Join today - new clients tomorrow!

26 LAW RELATED ORGANIZATIONS 30 CLASSIFIEDS , MEMBERS ON THE MOVE, ADVERTISER INDEX

no.

1

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.

Advertising & Marketing Exposure// Partnership Recognition via: • EVENT MARKETING

• PEEK @ THE WEEK

• SIGNAGE DBA OFFICES

• ZOOM Intro DBA Programs

• DAYTON BAR BRIEFS MAGAZINE

• SOCIAL MEDIA FIRM HIGHLIGHT

• WEBSITE: www.daybar.org

• DAYTON LEGAL DIRECTORY

Event Sponsorships & Registrations// Entry to the Following DBA Events: • ANNUAL MEETING

• BENCH BAR CONFERENCE

• DIVERSITY LUNCHEON

• HOLIDAY LUNCHEON

CLE Discounts// Discounts on all DBA CLE Courses.

• INCLUDING ON-DEMAND & SELF STUDY PROGRAMS • FREE! CREDIT HOURS Bench Bar Conference *Up to 8-attendees • FREE! CREDIT HOURS Diversity Day *Up to 8-attendees

Concierge Service// Priceless!

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

• CLE REGISTRATIONS Prompt reporting to Supreme Court of Ohio.

For More Details on Becoming a DBA Annual Partner Contact: JENNIFER OTCHY, DBA CEO | jotchy@daybar.org | (937) 222.1364 sept/oct 2023 | DAYTON Bar Briefs

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President's Message

~ 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.

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

Welcome to a New Year at the DBA! T

he 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

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DAYTON Bar Briefs | sept/oct 2023

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.

Register online: www.daybar.org

sept/oct 2023 | DAYTON Bar Briefs

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2023-24 DBA Board of Trustees Our Vision 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 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.

Anne P. Keeton

Hon. Michael J. Newman First Vice President

Second Vice President

James H. Greer

Erin E. Rhinehart

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

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

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

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

Jamar T. King

Jennifer Brogan

Lauren K. Epperley Member-at-Large

Member-at-Large

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

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

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

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

Brian L. Wright

Hon. Caroline H. Gentry

John M. Ruffolo

Jennifer Otchy

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

Phone: (937) 512-1590 Caroline_Gentry@ ohssd.uscourts.gov

ex officio Bar Counsel

ex officio Chief Executive Officer

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

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

President

Treasurer

Member-at-Large

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DAYTON Bar Briefs | sept/oct 2023

Member-at-Large

Immediate Past President

Secretary

Erin B. Moore

sept/oct 2023 | DAYTON Bar Briefs

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Feature

Barrister of the Month:

Mark R. Chilson Esq.

It

was 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 8

DAYTON Bar Briefs | sept/oct 2023

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

31st Annual

DBA Bench Bar Conference Tales of the Past Prevailing by Preparation and Preservation Friday, November 3, 2023 Sinclair Conference Center

2023 Co-Chairs:

The Honorable Mary Montgomery Montgomery County Common Pleas Court

Lauren K. Epperley Esq.

Partner, Subashi Wildermuth & Justice

You can sponsor this event!

Contact Kate at kbertke@daybar.org by October 23rd!

register: daybar.org/benchbar

sept/oct 2023 | DAYTON Bar Briefs

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

Dayton State and Federal Judges Celebrate Law Day

I

n 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 10

DAYTON Bar Briefs | sept/oct 2023

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.

Judge Newman, Jen

nifer 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

By The Honorable Chris Epley.

Co-Chair, Member Services Second District Court of Appeals epleyc@mcohio.org

Breakfast with the Bench April 11 7:45am-9:15am

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sept/oct 2023 | DAYTON Bar Briefs

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Paralegal

A Day in the Life of a Paralegal

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

A

HHHHH, 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

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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.

2023-24 DBA Section Leadership Groups generally meet bi-monthly. Visit daybar.org for exact meeting dates & times!

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

Bench Bar Honorable Mary Montgomery & Lauren Epperley

Member Services Honorable Christopher Epley & Honorable Mary Katherine Huffman

Diversity, Equity & Inclusion Ashton Hood & Magistrate Joe Gallagher

Social Justice Magistrate (Ret.) Bonnie Rice

Corporate Counsel Anna Self & Lindsey Posey

Criminal Law Kyle Lennen & Keara Dever

Domestic Relations Magistrate Patricia Campbell & Magistrate Kathryn Shields

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

Paralegal Tricia Griffieth

Eikenbary Advisory Frank Williams III

Women in the Law Joanna Gisel &

Magistrate Lisa Wiseman

2023-2024 Meetings: • Appellate Practice: Bi-monthly 2nd Tuesday @ 12pm • Civil Trial & ADR: Bi-monthly 4th Tuesday @ 12pm

Employment Law Tod Mollaun & Marc Fleischauer

Real Property/Environmental Law Tom Kendo & Christopher Walker

• Corporate Counsel: Bi-monthly 4th Thursday @ 4:30pm • Criminal Law: Bi-monthly 3rd Wednesday @ 12pm • Domestic Relations: Bi-monthly 4th Wednesday @ 12pm

Ethics & Certified Grievance Karen Bradley & Joseph Oehlers Adam Webber & Julius Carter

• Employment Law: Bi-monthly 3rd Thursday @ 12pm • Estate Planning Trust & Probate: Monthly 1st Wednesday @ 4pm • Federal Practice: Bi-monthly 3rd Tuesday @ 12pm • Juvenile Law: Bi-monthly 1st Tuesday @ 12pm • New Lawyers Division: Monthly 1st Wednesday @ 12pm • Paralegal: Bi-monthly 4th Thursday @ 12pm

Estate Planning Trust & Probate Kristina Rainer & Eli Sperry

Workers’ Comp & Social Security Michael Rake & Kristina Curry

• Real Property/Environmental: 9/7, 11/9, and 4/11 • Workers' Comp/Social Security: Bi-monthly 2nd Tuesday @ 12pm

Fee Dispute Arbitration John M. Ruffolo

sept/oct 2023 | DAYTON Bar Briefs

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A Courthouse for the Community:

Celebrating the Opening of the New Montgomery County Municipal Courthouse in Trotwood

O

n 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.

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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

Western Div. & Help Center

Don’t Hire Just Any Mediator.

Hire an Experienced Litigator, Former Judge, Vorys Attorney. “[Former] Judge Callan mediated a personal injury case for me. She was obviously prepared. Throughout the mediation, she demonstrated her knowledge of facts, the law, and the issues. She was able to draw on her experience to bring about a resolution of our case. It was very helpful to have an experienced jurist preside over our mediation.”

Vorys’ mediation team includes a number of former judges who are uniquely qualified to serve as mediators for your disputes.

These former judges and other Vorys mediators’ sole goal is to guide parties to a fair and equitable resolution, defraying the costs of a potential trial.

– A.V.

Elizabeth “Libby” Callan, former Hamilton County Court of Common Pleas Judge and Of Counsel at Vorys

Vorys, Sater, Seymour and Pease LLP 301 East Fourth Street, Suite 3500 Great American Tower Cincinnati, Ohio 45202 vorys.com

sept/oct 2023 | DAYTON Bar Briefs

15

Continuing Legal Education

DBA FALL & WINTER LIVE CLE OFFERINGS: September//

November//

Irrevocable Trusts

Chat GBT, AI and The Rules of Professional Conduct

Estate Planning Trust & Probate Law Section presents: 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.

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 Past Prevailing 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.

Judge Brogan’s U.S. Supreme Court Update

The Ethical Blunder in the Sandy Hook Defamation Case

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.

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.

October//

Judge Dankof's Criminal Law Update

1.5 PC Hrs | Mon 10/16/2023 | Noon-1:30pm | Zoom NITA SWEENEY, Mental Health Advocate

2023 Federal Court Update with the Judges

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

Annual IP for General & Corporate Practitioners

Lawyer Well-Being and Effective Client Representation

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.

On-Demand DBA CLE

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DAYTON Bar Briefs | sept/oct 2023

3.0 Gen Hrs | Thurs 12/14/2023 | 9-12:15pm | Seminar Room 3.0 Gen Hrs | Wed 12/13/2023 | 1-4:15pm | Federal Courthouse

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

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Thurs 5/9/2024 | Sinclair Conference Center

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Continuing Legal Education

18

DAYTON Bar Briefs | sept/oct 2023

Continuing Legal Education

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

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

Kelly Draggoo

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

Melanie Hankinson, LPTA, CSA, BCPS

4:30pm Adjourn

Social Security Administration, Dayton Social Security Administration, Cincinnati Owner/Managing Director of IKOR

Tracy Goodpaster Medicare Connection

sept/oct 2023 | DAYTON Bar Briefs

19

Column

From the Judge's Desk:

Kushinda Court N

o, 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 20

DAYTON Bar Briefs | sept/oct 2023

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?

R.L. EMMONS AND ASSOCIATES, INC. 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.

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We’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.

3 See 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 5 Even Judge Skelton has attended Kushinda Court and gave it a big thumbs up, which is hard to get!

 Surveillance  Civil Case Prep  General Investigation DAYTON: 937 / 438–0500 Fax: 937 / 438–0577

sept/oct 2023 | DAYTON Bar Briefs

21

Social Justice

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

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

L

ocated 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 22

DAYTON Bar Briefs | sept/oct 2023

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.”

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

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.

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.

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.

sept/oct 2023 | DAYTON Bar Briefs

23

Workers' Comp & Social Security

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

Intentional Tort Litigation

W

orkers’ 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 24

DAYTON Bar Briefs | sept/oct 2023

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

2 2021-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

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 $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 sept/oct 2023 | DAYTON Bar Briefs

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Law Related Organizations 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 eligible for onRE­ your income tax= =return deductions. = = gifts = = = =are = = == = = == = = = =charitable = = = = = = = =deductions = DETACH AND T URN federal OR SCAN TO DONATE= = = = = if = =you = = =itemize ====== ====== 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: $50

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Other $______________________________________

Check Enclosed : Check # _____________________________________________________________

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(AS YOU WISH IT TO APPEAR ON OUR RECORDS)

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DAYTON Bar Briefs | sept/oct 2023

Law Related Organizations

Volunteer!

Greater Dayton Volunteer Lawyers Project (GDVLP)

I

f 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

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Law Related Organizations Ohio Lawyers Assistance Programs (OLAP)

Be Aware of These 9 Cognitive Distortions

E

very 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!

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DAYTON Bar Briefs | sept/oct 2023

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

Law Related Organizations University of Dayton School of Law

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

T

wo 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

sept/oct 2023 | DAYTON Bar Briefs

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Members on the Move

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.

Congressman Mike Tu

rner awards, Mer

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.

Members on the Move Guidelines:

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 & political announcements not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available Contact Shayla to submit your announcement or ad:

seggleton@daybar.org | 937.222.7902

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DAYTON Bar Briefs | sept/oct 2023

le

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: MEDIATION/ARBITRATION Dennis J. Langer Retired Common Pleas Judge (937) 367-4776 LangerMediation.com

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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.)

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