Ohio Lawyer

THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

January/February 2017

VOL. 31, NO. 1 www.ohiobar.org

Tech Yourself Before You Wreck Yourself Staying on the Cutting Edge of Legal Tech

How the OSBA intends to keep up with change What's new with the economic loss rule How to tell stories when trying cases

Protecting your reputation before, during and after the storm.

OBLIC is there to protect your reputation when you need it most.

Reputation Matters. Let OBLIC Protect Yours.

Owned and Proudly Endorsed by the OSBA, OBLIC is the only carrier exclusively devoted to protecting Ohio attorneys. #REPUTATIONMATTERS Visit www.oblic.com to Apply Now or call (800) 227-4111 for more information.

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OhioLawyer

Vol. 31 No. 1 Departments 3 | President's Perspective The Opioid Epidemic and the Legal System: Incarceration or Treatment?

Features impact of Ohio’s 10 | The economic loss rule on commercial and professional liability litigation

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by David J. Oberly In recent years, the economic loss rule has expanded rapidly throughout Ohio in the areas of commercial and professional liability litigation. Attorneys should familiarize themselves with the doctrine to successfully navigate the contours of the rule in the context of commercial and professional liability claims.

Modern Law Practice Trends

by Chad E. Burton To stay in line with current trends and remain relevant, lawyers need to learn about virtual law models, cloud computing, cloud-based practice management solutions, mobile lawyering and outsourcing.

24 | The Times They are a Changin’

5 | Inside OSBA Dayton attorney announces candidacy for OSBA president-elect; Mock Trial Judges needed; Become a certified specialist in your area of practice 6 | Foundation News Moving FWD@18 7 | Member News Awards and community involvement of OSBA members 8 | Books & Bytes A Biographical Look at LGBT Civil Rights Book Review: Love Wins: The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality 28 | Practice Tips When You Try a Case, Tell a Story 30 | Practice Tips Walking Away From Your House May Cost You 32 | CLE Calendar January and February programs

by Mary Amos Augsburger and Colleen Evans Discover how the OSBA intends to keep up with change.

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OhioLawyer Ohio Lawyer is published bimonthly by the Ohio State Bar Association.

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OSBA Officers

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Ohio Lawyer (issn 1097-6493) is published bimonthly by the Ohio State Bar Association, P.O. Box 16562, Columbus, Ohio 43216-6562. Phone: (800) 282-6556 or (614) 4872050. Periodicals postage paid at Columbus, Ohio and additional offices. Ten dollars of dues pays your required subscription to Ohio Lawyer.

Ohio Lawyer is published as a service to members of the Ohio State Bar Association through their dues and is not available to nonmember attorneys. Governmental agencies and educational and legal research organizations may subscribe annually for $35. Single copies to members and qualified subscribers are $7. ©Copyright 2017 by the Ohio State Bar Association. All rights reserved. Any copying of materials herein, in whole or in part, and by any means, without written permission, is prohibited. Requests for reprint permission should be sent to the Ohio Lawyer editorial offices.

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The Opioid Epidemic and the Legal System: Incarceration or Treatment?

As I’m sure you know, Ohio is at the epicenter of the opioid crisis in this country. (Opioids include both illegal drugs such as heroin, and usually legal drugs such as prescription pain killers.) In 2014, there were 47,055 lethal drug overdoses in the U.S. Of those, just under 30,000 related to opioids—including over 18,000 caused by prescription pain killers.

In Ohio, there were more than 3,000 opioid deaths in 2015. And in 2016, those numbers are sky-rocketing.

Working with courts and with the legislature to address this crisis has been a priority of the OSBA over this past year. The legal system is the first line of defense, but it is no more than that. Rather, if the epidemic is to be stemmed, it will be through policy initiatives that drive offenders toward treatment and rehabilitation, and away from prison.

It is toward that end that we have advocated on behalf of our members in Columbus and Washington.

As Chief Justice Maureen O’Connor reported in her opening remarks at the August 2016 Regional Opiate Summit she hosted in Cincinnati, 4.3 million adolescents and adults reported nonmedical use of prescription opioids in 2014, and four out of five heroin users started their addiction by way of prescription opioids. Remarkably, more than 259 million opioid prescriptions are written annually—enough for every adult in the country to have a bottle of prescription pain medication.

We have been very pleased to see passage at the federal level of the Comprehensive Addiction and Recovery Act. That legislation increases the availability of naloxone to first responders, improves prescription drug monitoring programs, and focuses federal penal resources on identifying and treating jailed addicts rather than just punishment.

Some have called for solving this problem by imposing stiffer penalties and longer terms of incarceration on users and traffickers. I agree with Ohio Attorney General Mike DeWine, however, who has said about the opioid epidemic, “We cannot arrest our way out of this problem.” Indeed, there is at least some evidence that incarceration worsens the problem.

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At the state level, Governor Kasich has established an opiate task force comprised of relevant cabinet directors.

The task force has focused on law enforcement efforts (including drug courts), youth drug prevention talks discouraging opiate use, and treatment and recovery (Project DAWN— Deaths Avoided Without Naloxone).

More can be found concerning the Governor’s task force at www. fightingopiateabuse.ohio.gov.

Attorney General Mike DeWine has conducted a series of conferences to address the problem. The Attorney General has been talking with the Legislature about making youth opioid education available in K through 12. Further, DeWine established the Attorney General’s Heroin Unit, which assists local law enforcement in investigating and prosecuting upper level drug traffickers. He also launched a training program for heroin recognition and investigation for law enforcement.

The Ohio Legislature joined 37 states and the District of Columbia with a 911 Good Samaritan Law when it passed House Bill 110, which was effective in September 2016. The legislation grants immunity to callers and to the person overdosing on opioids or other drugs from arrest for a minor drug possession offense. To be eligible for immunity, the person who overdoses must be referred for treatment within 30 days of receiving medical assistance.

The Ohio Criminal Law Recodification Committee has been tasked with simplifying the criminal code. It is poised to submit a proposal to the Ohio General Assembly to rewrite Ohio’s drug sentencing laws to address the epidemic. It would, for example, require drug treatment plans for F4 and F5 drug

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"Working with courts and with the legislature to address this crisis has been a priority of the OSBA over this past year. The legal system is the first line of defense, but it is no more than that. Rather, if the epidemic is to be stemmed, it will be through policy initiatives that drive offenders toward treatment and rehabilitation, and away from prison." possession and trafficking offenders, as well as when a judicial discretion to incarcerate first time F5 drug possession offenders. OSBA legislative affairs staff will lobby in favor of suitable legislation that emphasizes treatment over incarceration.

As I mentioned at the beginning, Chief Justice O’Connor hosted a regional opiate summit in Cincinnati in late August. The summit focused on the epidemiology of opioids, how opioid addiction changes the addict’s brain, opioid prescribing trends, the need for medication to fight addiction, and drug court best practices. Takeaways from the summit included improving drug prescription databases that would allow sharing across state lines, building a central information sharing system that would show overdoses, drug poisonings and outcomes, improvement in prescription drug monitoring programs, assessment of the impact of the opioid crisis on child welfare, and

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educating health care professionals on opioid use and treatment.

Coming soon will be a conference hosted by OSBA and the Ohio Judicial Conference addressing how this crisis is being addressed in courtrooms throughout Ohio. The conference will be a forum for sharing best practices not just in drug courts, but in all courtrooms in our state.

Watch for further information.

On another front, there is significant ongoing discussion concerning the use of Suboxone, which is one of the primary medicines used for detoxification and treating heroin addiction. (It contains small amounts of opioid.) The maker of that drug, allegedly to maintain its monopoly and thwart generic competitors, recently modified the way the drug is taken, switching from tablets to a dissolvable strip inserted under the tongue. Unfortunately, the strips can easily be cut apart and hidden

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(in envelopes, for example) so the manufacturer unwittingly has made it easier to abuse. Ohio is one of 22 states pursuing an antitrust lawsuit against the manufacturer of Suboxone.

Finally, the Legislature in its 2016 Lame Duck session passed several important measures related to the epidemic. For example, naloxone is now to be permitted for administration at locations serving individuals who may be at risk of experiencing an opioidrelated overdose. Also passed was a measure specifying that peace officers are entitled to qualified immunity for any act or omission associated with using naloxone. For more information on Lame Duck measures passed in this regard, see S.B. 319.

Representatives of your OSBA will continue to meet with judges, legislators and representatives of the Governor’s office to assure that this debacle is met with all the resources that can be brought to bear.

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Inside OSBA Dayton attorney announces candidacy for OSBA president-elect

Fighting for lawyers: Advancing the OSBA’s core purpose I am Ed Smith, a candidate for President-Elect of the OSBA. I want to take this opportunity to tell you briefly why I am asking you to support my candidacy. The election is May 1-5 and will be conducted by electronic ballot or mail only.

Since taking the oath in 1973, and starting my career as an Air Force JAG, I have liked being a lawyer, being with lawyers, and lawyering. An invitation from a great OSBA lawyer from Dayton led to my 25 years of service on the Grievance Committee, which I chaired in 2014. I am currently on the Ethics Committee. Since 2004, I have been an OSBA certified specialist in Estate Planning, Trust and Probate Law and a member of that Section.

I’m also Chair of the DBA Probate Law Committee, a member of the Ohio Bar College, and I have been an OBLIC policyholder for years.

In short, I have contributed to the OSBA and experienced the value of it.

I have been involved in the community and chair a social services agency with a budget comparable to the Association.

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As your representative, I will endeavor to preserve the character and passion that I observe in my colleagues so many times while serving the bar; to retain the nobility of the profession in changing times while providing value, competence and professionalism to the public; and to work to make the practice of law more enjoyable and rewarding for all lawyers, regardless of their area of practice.

Each time we elect a new PresidentElect, we rededicate our Association to its Core Purpose, which is engraved on a plaque in the lobby of our professional home: “To advance the professional interests of members of the Ohio State Bar Association.” Everything we do as an organized bar association should benefit our members and advance our profession, while honoring our responsibilities to the citizens of Ohio.

We are under attack by those who want to do what we do, but without the knowledge, the responsibilities and the standards of accountability to which we adhere. We must protect the public from the harm inherently created by those who sell the short-cuts of drivethrough law. More importantly, we must be pro-active in promoting the benefits of our profession and educating those who need our services—the citizens we serve as clients.

As lawyers, we must not forget that we have some very important services to offer—our time, our advice, our expertise, our duty of loyalty to our clients, and our critically important attorney-client privilege. These services are crucial to the preservation of a free society, its commerce and the “pursuit of happiness” envisioned by our founders.

If you entrust me to be your representative, I will fight for our profession with the goal that the practice of law in Ohio will continue to be the noble profession we all envision.

Mock Trial judges needed

Attorneys are needed to judge the Ohio Mock Trial State Competition on Thursday, March 9, 2017. Volunteer attorneys provide an authentic educational experience for high school students who argue an original case at the Franklin County Courthouse.

Volunteers are needed from 1 p.m. to 4 p.m. and/or from 5 p.m. to 8 p.m. If interested, please complete the volunteer application at oclre.org/ volunteer or contact Caitlyn Smith at (614) 485-3507, or csmith@oclre.org.

Other OCLRE volunteer opportunities: Interested in…

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The Constitution? Try We the People (January 27; May 17)

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Appellate advocacy? Try Moot Court (May 5)

•

Social justice? Try Youth for Justice / Project Citizen (May 10)

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Litigation? Try Middle School Mock Trial (March 24, 30-31)

Visit oclre.org/volunteer to register. Contact oclre@oclre. org for more information.

Know any students in grades 9-12 who excel at civic education and are deserving of recognition? Nominate them to be on the Civics and Law Honor Roll. For more information visit http://oclre.org/honor_roll.

Become a certified specialist in your area of practice The Ohio State Bar Association is now accepting applications for attorney and paralegal certification.

For more information, go to ohiobar.org/specialization.

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Foundation News Moving FWD@18 Remember when you turned 18? You could vote, serve your country, marry and some of you could even buy alcohol. With your newfound rights came increased responsibility. While you might have had a role model to show you the ropes of your civil liberties, you learned a lot on your own by going through new experiences.

Young adults today face many of the same challenges you did when you became a legal adult. As they take steps toward independence— moving out, going to college or new jobs— they need to understand the legal details and consequences of their actions. That’s why the Ohio State Bar Foundation created FWD@18, an easy-to-use survival kit that describes the laws shaping the transition to adulthood.

Topics include: • Living digitally

IN HONOR OF Gifts made between Sept. 28, 2016 and Nov. 18, 2016

Alison M. Belfrage Jennifer M. Nelson Carney

Denny L. Ramey Ray A. Didonato

Kathy and George Brinkmann Michael A. Marrero

Mike and Paula Robinson Alison M. Belfrage Maria P. Wolff Ret. Hon. William H. Wolff, Jr.

Jerry Peterson C. Lynne Day

• Encountering police • Handling money matters

IN MEMORY OF

• Moving out

Gifts made between Sept. 28, 2016 and Nov. 18, 2016

• Managing medical issues • Considering sex • Getting married and having kids Want to share FWD@18 with someone you know? Download the FWD@18 survival kit at www.osbf.net/FWD@18. Fellows of the Ohio State Bar Foundation are available to present this program to high school students in your area. Contact Kate Clements at kclements@osbf. net or (614) 487-4474 for more information.

CONNECT WITH OSBF Ohio Lawyer

Honor the exceptional, celebrate an occasion and recognize the significant people in your life with a charitable gift to OSBF. Tribute gifts are an easy way for you to support OSBF grantmaking initiatives and to ensure special colleagues, friends and family receive the statewide recognition they deserve. To dedicate your gift, call (614) 487-4477 or visit www.osbf.net and click “Donate Now.”

Kate Clements Stephen F. Tilson

• Having fun

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HONOR. REMEMBER. CELEBRATE.

Carole Dougherty Ronald W. Dougherty

Rick Vance Carmen Roberto

Judge David Katz Craig J. Van Horsten

Judge Ed Wade Ret. Hon. Colleen Conway Cooney

Melanie Maloney Dennis G. Terez Margaret M. Stolar Toba J. Feldman

John A. Wynn, Esq. Robert S. Wynn

Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation

January/February 2017

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Member News Brooklyn Heights Charles G. Pona, Weltman, Weinberg & Reis Co., LPA, is the new Secretary of the Board of Directors for the Schnurmann House.

Cleveland Christina D’Eramo Evans, Hahn Loeser & Parks LLP, was elected Fellow of the American College of Trust and Estate Counsel.

Stephen S. Zashin, Zashin and Rich, was elected as a Fellow of The College of Labor and Employment Lawyers​.

Mansfield J. Jeffrey Heck, Heck Law Offices, Ltd., has joined The Expert Network.

Toledo Jenifer A. Belt, Shumaker, Loop & Kendrick, LLP, received the Ohio LGBT Ally Award presented by the Ohio Diversity Council.

In Memoriam 2016 George Glavinos, Jr. 72 Westlake May 30, 2016 Ralph W. “Bill” Eisnaugle 81 Columbus September 30, 2016 Bridget L. Tatman 29 Columbus October 5, 2016

OSBA Member News in Ohio Lawyer magazine is limited to awards and civic duties. The news listed above is edited from press releases that are sent to the OSBA. Other submitted member news, such as promotions and new positions, is featured on the OSBA website.

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To keep up to date with the most recent member news, visit ohiobar.org/membernews.

To submit an announcement for consideration in Member News, please email it to the editor at membernews@ohiobar.org.

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Books and Bytes

A Biographical Look at LGBT Civil Rights Love Wins: The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality Stu Harris

Book Review of Love Wins

O

n June 26, 2015, Justice Kennedy read his majority opinion in Obergefell v. Hodges in open court. He began this historic opinion with: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”

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Many of the historic Supreme Court decisions are about the human condition, and in Debbie Cenziper and Jim Obergefell’s book, Love Wins: The Lovers and Lawyers Who Fought the Landmark Case for Marriage Equality, Jim Obergefell provides the reader with riveting details around a historic case.

This biographical look at LGBT civil rights is the story of Obergefell and his now-deceased partner John Arthur.

Obergefell arranged for a special medically-equipped plane to fly to Maryland from Cincinnati so that John, courageously in the last stages of ALS, could make the flight to Maryland to be wed on the airport tarmac. Ohio, however, refused to recognize their marriage, or even list Jim’s name on John’s death certificate.

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Their meeting with Al Gerhardstein, a Cincinnati attorney who advocates for civil rights, was monumental.

Gerhardstein observed sadness and grief as John’s ALS had taken its full measure and their pain was compounded by the state’s refusal to recognize the most important relationship in their life. Gerhardstein’s empathy and legal acumen would lead to one of the most important civil rights achievements of our time.

Interview with Al Gerhardstein Please tell us about the first time you met Jim Obergefell and John Arthur.

We have a mutual friend who shared Jim and John’s compelling story with me about their trip to Maryland to exchange marriage vows. The U.S. Supreme Court had recently issued the U.S. v. Windsor decision on June 26, 2013. I met Jim and John several days later. During the visit, we discussed life events including John’s eventual death and Ohio’s death

of Appeals for the Sixth Circuit.

Please describe the oral argument at the U.S. Court of Appeals for the Sixth Circuit, your panel, and how this ultimately may have sped up the trip to the U.S. Supreme Court.

This case became about both death and birth certificates. The consolidated cases with several plaintiffs from Ohio, Michigan, Tennessee and Kentucky included several same-sex couples pregnant via in vitro with surrogate mothers. Ohio law prohibited the placement of both parents on the child’s birth certificate. First, I recall the clerk’s office did a great job of handling the consolidation structure for all of the participants. I remember how great it felt to have the babies (with legal “standing” even though they could not even crawl) in the courtroom.

This was rather unprecedented.

However, we asserted that this was crucial to have the babies there with their parents in the courtroom. It was wonderful to have everyone there and have Judge Martha Craig Daughtrey go our way. We would have liked to have all three judges but the decision was 2-1 against us.

"When Justice Kennedy started to read our opinion we were elated; and by the time he was halfway through the opinion, I could hear weeping in the courtroom from seasoned and stalwart lawyers who had fought for civil rights in different venues and different cases over the years."

certificate laws. I explained to them that Ohio law precluded John’s death certificate from listing his married status. They asked me to help them, and our firm filed a challenge to Ohio law in U.S. District Court.

After winning in the Cincinnatibased U.S. District Court with Judge Timothy Black presiding, the case moved to the U.S. Court

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What was it like to be at the U.S. Supreme Court? And could you tell me what the day was like when the Court issued this historic opinion?

Toward the end of the term in June of every year, the Court has decision days where decisions are announced and read out loud to those present in the U.S. Supreme Court. Jim had been going on every decision day and then there was a scheduling order issued adding June

26 as a decision day. We knew that was the day…. That day was very emotional and will always be etched in my memory. When Justice Kennedy started to read our opinion we were elated; and by the time he was halfway through the opinion, I could hear weeping in the courtroom from seasoned and stalwart lawyers who had fought for civil rights in different venues and different cases over the years.

How did you feel when you walked out of the U.S. Supreme Court to a celebration and watched as Mr. Obergefell received a call from President Obama to congratulate him?

It was overwhelming. There were thousands of people gathered outside the U.S. Supreme Court that day waiving rainbow flags, singing, celebrating, protesting, shouting, you name it, it was going on…. It was really cool when Jim (Obergefell) received a congratulatory call from President Obama and at the same time Vice President Biden called and went into Jim’s voicemail. The White House was lit up that night in rainbow colors, and social media was going crazy. I remember everyone had the rainbow highlights in their facebook pages. Jim and I returned to Cincinnati to attend Gay Pride day, and the celebration continued. It was excellent! I also know that there is a movie script currently in the works and we are looking forward to it.

For a panel discussion posted video from the Mercantile Library in Cincinnati, see http://new. mercantilelibrary.com/literaryprograms/love-wins/.

Author bio

Stu Harris is an attorney at Nationwide Insurance and serves on the Board of Education for Dublin City Schools.

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The impact of Ohio’s economic loss rule on commercial and professional liability litigation David J. Oberly In recent years, the economic loss rule has expanded rapidly throughout Ohio in the areas of commercial and professional liability litigation. Attorneys should familiarize themselves with the doctrine to successfully navigate the contours of the rule in the context of commercial and professional liability claims.

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TITLE

T

he economic loss rule prevents the assertion of a tort claim for pure economic loss in the absence of any physical injury or property damage to the claimant.

The rule operates to avoid a party’s liability for tort damages arising from negligence-based claims for purely financial losses, where there is no privity of contract. In recent years, the economic loss rule has expanded rapidly throughout Ohio in the areas of commercial and professional liability litigation. When applicable, the economic loss rule represents an almost insurmountable obstacle to overcome, completely shielding professionals and companies of all types from liability for economic losses under tort law. As a result of the strength of the defense and the increasing frequency in which the doctrine is being used throughout Ohio courts, it is imperative that both plaintiff’s attorneys and defense practitioners maintain an intricate understanding

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of the doctrine to successfully use or sidestep application of the rule in the litigation of claims involving commercial and professional liability.

Overview of the economic loss rule

The economic loss rule operates as a limitation on recovery. In Ohio, the economic loss rule generally prevents recovery in tort damages for purely economic loss. The economic loss rule works to bar the use of negligence or strict liability theories of recovery of economic losses arising out of commercial transactions where the loss is not a consequence of an event causing personal injury or damage to another’s property.

This rule preserves the distinction between contract and tort law by preventing parties to a contract from avoiding agreed-upon contract remedies and seeking broader remedies under tort theory than the contract

would have permitted. Tort law is not designed to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement.

That type of compensation necessitates an analysis of the damages that were within the contemplation of the parties when framing their agreement, but rather remains the particular province of the law of contracts.

Economic losses are intangible losses that do not arise from tangible harm to persons or property. They are typically defined as wages, salaries, or other compensation lost as a result of an injury or loss to person or property or any other expenses as a result of an injury or loss (other than attorney’s fees). Thus, where only economic losses are asserted, damages may be recovered only in contract; there can be no recovery in negligence due to the lack of physical harm to persons and tangible things.

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"Economic losses are intangible losses that do not arise from tangible harm to persons or property. They are typically defined as wages, salaries, or other compensation lost as a result of an injury or loss to person or property or any other expenses as a result of an injury or loss (other than attorney’s fees)."

The economic loss rule applies primarily in the absence of contractual privity when a plaintiff seeks to recover in tort for purely economic loss. The rule is based on the principle that, in the absence of privity of contract between two disputing parties, there is no duty to exercise reasonable care to avoid intangible economic loss or losses to others that do not arise from tangible physical harm to persons and tangible things. Absent some agreement between the parties, no duty exists with respect to purely economic harm, and no cause of action exists in tort to recover economic damages. As a result of the economic loss rule, most building project owners are barred from recovering purely economic damages against a subcontractor based on a breach of contractually created duties.

Exceptions to the economic loss rule

As always, however, rules come with exceptions. Although the economic loss rule sweeps widely, it does not preclude all tort claims for economic damages.

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One major exception pertains to claims based on a pre-existing independent tort duty. In this respect, a plaintiff may pursue such a tort claim if it is based exclusively on a discrete pre-existing duty in tort and not on any terms of a contract or rights accompanying privity.

Here, the economic loss rule does not apply, and a party who suffered only economic damages can proceed in tort where the defendant breaches a duty that does not arise solely from contract.

rule does not preclude professional negligence claims resulting only in economic loss when a professional such as an accountant provides advice to a foreseeable plaintiff. Similarly, one who holds himself out to be an investment advisor and for a fee gives investment advice to another is liable to such other person if he negligently gives inaccurate advice causing damage to the other person as a result of relying on such investment advice.

The types of exempt claims for which the economic loss rule is inapplicable also includes claims for negligent misrepresentation. A person is liable for negligent misrepresentation if he or she, in the course of business, negligently supplies false information, knowing that the recipient intends to rely on it in business. The courts have found that negligent misrepresentation based on a claim for professional negligence is based on a separate duty owed in tort, and therefore the economic loss rule does not apply to claims for negligent misrepresentation. For example, the

In addition, purely economic losses may be recovered in a negligence action where privity or a sufficient nexus to substitute for privity is established.

Privity serves to identify an interest or establish a relationship necessary to allow for the bringing of a tort action for purely economic damages.

With that said, a lack of privity is not an absolute bar to a claim against a professional when there is a sufficient nexus that can serve as a substitute for privity. Such a nexus exists when the party asserting the claim is a member of a limited class whose

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reliance is specifically foreseen. For example, a sufficient nexus exists to impose a duty of care on surveyors and civil engineers owed toward subsequent purchasers of property when the surveyors and engineers could foresee that the later purchasers would rely on their representations.

Application of the economic loss rule

The economic loss rule’s application has widened broadly in recent years.

During this time, Ohio courts having extended the rule’s reach to many new areas of professional liability litigation.

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For example, several courts have expanded the scope of the economic loss rule to include insurance agents, holding that negligence claims by insureds against their insurance agents for failing to procure coverage are specifically barred by the economic loss doctrine. The application of the economic loss doctrine was analyzed in the context of insurance agent liability in Mafcote, Inc. v. Genatt Associates.1 In that case, a paper manufacturer sued its insurance agent alleging that it negligently failed to procure an insurance policy covering business interruption losses. A boiler

accident at the policyholder’s plant disrupted its supply chain and caused the policyholder to purchase more expensive substitute product, which was not covered under the insurance contract. The insured claimed that the insurance agent’s failure to obtain proper coverage caused the insured to be uninsured for the loss. The court disagreed, and rejected the claim.

In doing so, the court applied the economic loss rule, finding that an insurance agent cannot be sued by a policyholder for negligence unless the insurance agent committed an act or error that caused physical injury

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or property damage. The alleged failure to procure proper insurance coverage does not give rise to such a claim. Accordingly, the court held that the economic loss rule applied to bar the cause of action for negligent procurement, thus entitling the agent to summary judgment on the negligence claim asserted against it.

A similar outcome was seen recently in Federal Insurance Company v.

Fredericks, Inc.2 In that case, the court applied the economic loss doctrine in the context of a construction defect claim. The Fredericks litigation arose out of the collapse of a commercial facility that was under construction in Vandalia, Ohio.

The landowner, Pasco, Inc., intended to build a cross-dock facility that was to be used by two other companies, Carter Express and Carter Logistics.

All three sister entities were owned by the same parent company, J.P. Holding Co. Pasco hired Fredericks, Inc. to construct the facility pursuant to a handshake agreement and without a written contract.

Fredericks, in turn, subcontracted construction of the pre-engineered steel framework to Skiles Construction.

The contract between Fredericks and Skiles identified Pasco as the property owner. However, while the subcontractor knew that Carter Express would be a tenant in the facility, none of the other three affiliates were incorporated into the agreement.

Skiles was negligent and failed to perform in a workmanlike manner by failing to adequately brace the steel framework, causing a substantial portion of the structure to collapse during a strong windstorm that blew through the area during construction. The property owner and its three affiliates all filed suit against the subcontractor to recover damages related to Skiles’ negligent construction.

On appeal, the Second Appellate District held that damages for

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economic losses were available only to Pasco as an intended beneficiary of the contract. However, the three other companies could not recover against the subcontractor in the absence of a contractual relationship pursuant to the economic loss rule. The court concluded the affiliates could not sue the subcontractor directly in contract to recover for economic losses because, while liability in contract may be available where the facts establish privity or a substitute for privity, in that particular instance there was no substitute for privity because the subcontractor did not exercise “excessive control” over the project.

The court noted that under the general rule in Ohio that “mere knowledge by the subcontractor of the identity of the project owner, without more, does not create a nexus sufficient to establish privity or its substitute,” the subcontractor was not liable to the three affiliates simply because it was aware of their relationship to the facility’s owner.

Furthermore, the court found that the affiliates could not maintain their damages claim as third-party beneficiaries to the subcontract in the absence of any evidence of an intent to benefit any of the three, as none of the affiliates were even referenced in the subcontract.

Finally, the court rejected the affiliates’ argument that they were entitled to recover for indirect economic loss that was caused by tangible property damage when the construction collapsed, as the separate identities of each corporate affiliate barred recovery of any of the entities other than Pasco. Consequently, the economic loss rule precluded J.P. Holding Co., Carter Express, and Carter Logistics from maintaining their tort claims against the subcontractor.

entities and professionals that packs the potential to completely preclude liability for economic losses under tort law whenever a pure negligence claim is brought against an individual or company in the commercial or professional liability context. If a plaintiff sues for purely economic damages, and there is no loss to the plaintiff’s person (bodily injury) or to his property (property damage), then that plaintiff has no cause of action against the allegedly negligent party.

Increasingly, where the parties have no contract, courts are finding that plaintiffs have no commercial or professional negligence claim. The implications of this trend toward restricting remedies against companies and professionals for breach of contract damages cannot be understated. As a result, attorneys on both sides of the table are well advised to familiarize themselves with the doctrine and develop a strong understanding of the rule’s scope and limitations to successfully navigate the contours of the rule in the context of commercial and professional liability claims.

Author bio

David J. Oberly is an associate in the Cincinnati office of Marshall Dennehey Warner Coleman & Goggin. He focuses his practice on a wide variety of casualty and professional liability matters. He may be reached at djoberly@mdwcg.com.

Endnotes 1 2

2007 U.S. Dist. Lexis 10117 (S.D. Ohio 2007).

2015 Ohio 694 (2d Dist.).

The potential of Ohio’s economic loss doctrine

The significant expansion of Ohio’s economic loss doctrine in recent years has provided a robust defense to tort claims brought against business

January/February 2017

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Modern Law Practice Trends

By Chad E. Burton

To stay in line with current trends and remain relevant, lawyers need to learn about virtual law models, cloud computing, cloud-based practice management solutions, mobile lawyering and outsourcing.

T

he legal landscape is changing at a rapid pace, and lawyers need help starting new firms and revamping existing models.

Molding a law practice is a challenge regardless of practice area, experience or resources. It is like starting any type of business, and being a good lawyer is not enough. To stay in line with current trends, lawyers need to learn about virtual law models (i.e. modern firm models), cloud computing, cloudbased practice management solutions, mobile lawyering and outsourcing.

What is a virtual law practice?

The concept of a virtual law practice (VLP) ranges from solo practitioners to large firms – and everything in between. On one hand, you can be a solo practitioner who delivers services online. On the other, firms provide full-service work outside a traditional brick and mortar presence.

The common denominator with each model is that technology is used to enhance client service.

There is an element of freedom for lawyers inherent in VLP models.

Lawyers are free from a restrictive office environment, oppressive overhead, old technology, too many staff members and more. Modern law firm models are lean and look at better ways to deliver legal services.

Consumer expectations are part of the driving force with these models.

Clients have become more adept at interacting with professionals online and expect to do so in a costeffective manner. Legal Zoom, Avvo and Rocket Lawyer (among other companies) have moved this notion into the legal market. Lawyers can also get client referrals from these companies to help grow their law practice.

Some virtual law firms are full-service for clients. Lawyers work in one firm, but are geographically distributed.

Existing virtual law firms have different cultures and methods of operation.

The advancement of legal practice management technology has allowed these firms to be creative in day-to-day operations and with client interaction.

Other firms add elements of unbundling or online service delivery to a traditional brick and mortar presence.

Lawyers find that adding even one or two new technology concepts to their operations have improved practice management and client service.

Don’t get hung up on the “virtual” label. Instead, focus on the innovative ways you can run your practice.

What is the cloud?

Most know that cloud (or webbased) computing is at the core of

any emerging law practice business model. Cloud computing is not new to the business world; however, it has finally grabbed the attention of the legal profession over the past several years. Products and platforms that store data on a third-party server are available to help lawyers efficiently and effectively manage their law practices, especially VLPs. Cloud-based solutions range from full practice management platforms to simple note taking applications. These products are typically sold on a perlicense basis so that users can pay on a monthly or yearly basis at a much lower cost than traditional PC hardware.

The solutions have helped level the playing field for solo practitioners and small firms, helping them afford robust practice management solutions.

Initially, web-based products were viewed as problematic by some lawyers.

As security is enhanced, lawyers have become more comfortable storing their data on third-party servers. It has become apparent through new state ethics opinions and existing ethics rules that lawyers must take reasonable precautions to protect data being stored on third-party servers. This is the same protection afforded to hard-copy documents that are in a traditional office and handled by third parties.

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Practice Management Solutions At the center of any virtual law model is a practice management solution. With cloud computing products constantly developing, firms can research and implement solutions tailored to their particular practice. There are a ton of options out there, and they change all the time. This competition is good because it drives continued development and innovation.

Cloud-Based Legal Platforms

Document Storage: Most lawyers would argue that documents rank in their top three most important assets, along with their brilliant critical thinking skills and eloquent oratory abilities. With the legal profession becoming more mobile, the need to access documents on the go is necessary. Whether lawyers need to review files in court or during client meetings, the ability to pull up a client file on a laptop, tablet or smartphone is not just convenient, but critical to one’s practice.

Cloud-based technologies make this happen. Once the lawyer is comfortable with the service provider, there are endless options for storing documents on the cloud.

www.goclio.com Clio provides the ability to maintain contacts, matters, calendars, assignments, time and billing and unlimited online storage using Clio’s integrated service and document sharing system, Clio Connect.

www.rocketmatter.com Rocket Matter maintains contacts, matters, calendars, to-do items and time and billing.

www.directlaw.com DirectLaw provides the online delivery of services with client portals. It provides the ability for new and existing clients to log into the system, execute engagement letters through click-wrap agreements, and interact with counsel.

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Here are several reliable options for cloud-based document storage:

www.box.com

Box While most of Box’s features are available through lower cost licenses, more robust security and functionality is available for a monthly license fee. Documents can be synced locally, or the user can upload and download information through the web-based platform.

Dropbox Dropbox is one of the more popular ways that lawyers save their documents online.

It can be used on a PC or Mac. www.dropbox.com SpiderOak SpiderOak is a simple online storage system that markets itself as the sole “zero-knowledge” data privacy product, meaning that data is encrypted on its server and cannot be viewed by any of its employees.

NetDocuments One of the more comprehensive ways to store and work with documents online. NetDocs allows for profiling of files, much like a traditional Document Management System. www.netdocuments.com

www.spideroak.com

How To Collaborate Online Most cloud-based legal practice management platforms include online client portals. These allow lawyers to interact with their clients in a secure environment to share documents, communications and payments for legal services.

www.slack.com

Document management systems, such as Dropbox and Box, include online sharing capabilities. Instead of sending large attachments via email, a link can be sent to the recipient, who can access the document in a secure portal.

www.yammer.com

Some products designed for pure collaboration that reduce email clutter and encourage the free flow of information among team members include the services on the right.

From a lawyer’s perspective, the key is to look for secure products. Many of the systems integrate with each other, allowing information to seamlessly shift in the background, so data does not have to be input more than once.

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www.basecamp.com

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TITLE Outsourcing Support

Lawyers have outsourced bookkeeping for years, and now more administrative work can be outsourced using virtual assistant services.

Virtual Receptionists Ruby Receptionists answer phone calls and cost much less than hiring an employee receptionist.

ing t i l r a Virtu arch & W Rese

s t ask h er t o ke ar e es li i t in g o m p a ni r w c k. nd wor with ch a Ne t l s ea r t s o ur ce e e r s l a un ou Leg w Co c an r No er s o y e w s la al E a Leg

www.callruby.com

Virtual Assistants Virtual assistants are typically independent contractors who are paid on an as-needed basis.

A couple examples include:

PLANNER

www.fancyhands.com

om ns.c lutio o s e leas .lega www

om sel.c coun m o t .cus www

www.getmagicnow.com

Change is here Listen. Client expectations are evolving, causing law firm business models to follow along. The above information can seem intense to some, and the concepts and solutions are by no means exhaustive. The market evolves almost on a daily basis, and the profession needs to make sure it is keeping up.

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use n g e r r ac t o l o ex t to n . e c ide r n ho w t o s y s t em s d u o I f y i c e , l e a o o t h e r d in g v t a s e r o u p l o a d e s f o r a d l o a d in g o t p a e t d a e s am g e r s an d u v i c e s .

T h al u s e r s e r th ion a d di t t a f r o m o da

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TITLE it y. You t scalabil but what u o b a k Thin day, a solo to r s to might be d staff or law ye e d a r e u s vic if yo Does the e well to ? m ir f r y ou slat ns? sing tran you are u sized organizatio different

tips l a c i t c uting Pra d comp u o l c is. ew

b as eds? N weekly a our ne y n o e right e r p a find th ing u p W ha t n p e o h t p t s ar e sis and p r o du c s analy d e e n actice. ct a our pr y C o n du t s o t to bo p r o du c

Pay attention. While your provider may seem secure or functionally appropriate, things change. Be aware of the latest developments.

, r o du c t p a g n i t al o n g in t e g r a B e f o r e e s ur e i t g e t s t s y o u m ak e r p r o d u c i o n t th w i t h o o p e r in t e g r a e s s . r use. P es effec tiven s in c r e a

One of the ke cloud-base y advantages to new feature d services is that s integrated and upgrades are automatica lly. You seldom ha upgrading ve to worr y about hard lates t vers ware to have the ion on your device.

ds w or e s s a ng gp t r on uc t . C ha r s o . s n i to ta r od y s o M ain e a c h p y 9 0 d a s s w o r d t s . r r a fo eve or 1P ccoun t h e m s t p a s s f y o ur a o La U s e p t r ac k e e k

b e en ere have vider. h t if h c r R e s e a he s b y t he pr o ac da t a br e

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Collabora employe te with your clien e through s, co-counsel an ts, firm cloud-ba d o t her s sed provides secure w produc ts. This ay data with out email s to transmit a t t a c hm an d p o t e en n which ve tial confusion on ts rsion is u p t o da t e .

o w d. ur c r l o u d o y K n o w e n t in g c m a y s m s in Im p l e d s o l u t i o n o m e f o l k o t h e r s . b a s e a s i e r f o r s i o n t h an n d t a l k b e e r g an i z a t u t p l an a e f o r e o o y o u r l o p a r o ll i v i d u a l s b o m b . e D e v t h k e y in d p in g t h e b wi dr o p

Trust m ab o u a t t e r s . H r e v ie t t h e p r o w d o y w o o a s p a s o f t h e o v ider ? S e u f e e l w n e r ar c h r t of y o ur / du e d d e v e l o p e il i g e n r ce.

Back it up. If you are sto data on the cloud, you waring to be able to sync and ex nt the data locally. Set a sc tract he to back up the data off of dule service. For good measurthe back up the local data, to e, o.

en t ag e m r g n e y ou en t u r c li c a t e t h a t t h e o y d i A m e n t e r t o in d s d a t a o n i e n t s l e t s t o r e y o ur c l e . firm Talk to operat . u c loud t ho w y o u o b a

If yo c l o u d u ar e g o in c or e - b a s e d g t o ad t h a t y f un c t i o n p r o du c t s o p t ali ou fo conn have stro t y, confirm r s p e n e c t i o n s w n g In t e r d mo n s t o f her e y ou e t y o ur t im e .

Will the clo provider as ud-based sis implementa t during the with rollou tion process t and trainin g?

Don’t use public Wi-Fi, or at least use a VPN. It is tempting, but using free public Wi-Fi increases your chances of someone improperly accessing your data.

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Practice Management Tips Cloud-based law practice management services tend to purposely lack the bells and whistles of traditional local systems. Check to see if the features that are necessary for your practice are included in the system.

Most services provide free trials. Use the trial to test the different features and feel. Each service is different.

It should be simple to conduct conflict checks in the cloud service.

Your system should permit easy upload of emails and documents.

Dates matter to lawyers. The system should have a way to sync deadlines with other calendars to prevent losing dates.

ethical tips You are a lawyer. Read the Terms of Service (TOS) to understand the security and privacy issues. You have a duty to take reasonable steps to ensure the confidentiality of your client’s data.

•

Encryption. The TOS should explain when your data is encrypted. You want it to be encrypted during transit and at rest.

•

The cloud is not a magical, non-physical place. Your data is being stored on servers at remote, secure locations.

•

Location is key. Your data should be stored in the United States. Other countries’ laws may be more relaxed when it comes to the government gaining access to data.

•

Who can see your information? Your TOS should address which employees of the third-party providers can access your data.

Read your rules and related opinions. Review the ethics rules as a refresher to see how cloud products are treated. In particular, check out Ohio Informal Advisory Opinion 2013-03:

https://www.ohiobar.org/ForPublic/LegalTools/Documents/OSBAInfAdvOp2013-03.pdf

Author Bio

Chad Burton, CEO at CuroLegal, is a former litigator and developed one of the nation’s first “new model” law firms, leveraging cloud-based technology and modern business practices to develop a lean virtual law firm. He serves on ABA Law Practice Division’s Council and as Chair of the Division’s Futures Initiative, and is on the governing board for the new ABA Center for Innovation.

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www.ohiobar.org

OhioDocs works harder so you can work smarter Reintroducing OhioDocs, powered by HotDocs, now compatible with Mac, Windows and any internet-connected device. OhioDocs is the fast and aordable way to increase your productivity with easy-to-use automated legal documents. Available anytime, anywhere, the new cloud-based library gives you access to the most up-to-date templates in a variety of practice areas. The automated templates allow you to

Exclusive OSBA Member Benefit

populate commonly used documents in a fraction of the time.

Subscriptions are available exclusively to OSBA members starting at $199/year or $20/month (discounts available for multiple users).

For more information visit www.ohiobar.org/ohiodocs today.

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January/February 2017

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The Times They are a Changin’

By Mary Amos Augsburger and Colleen Evans

B

ob Dylan’s The Times They Are a Changin’ set the beat as the OSBA Board of Governors adopted our new strategic plan for bar years 2016-2019.

Our focus: to better assist you to connect, advance and succeed as you navigate these “growing waters.”

legal advice (think LegalZoom, AVVO, RocketLawyer).

According to former ABA President William Hubbard, more than $1B was invested in legal technology companies in 2014. This is similar to the phenomenon faced by the medical profession with the invention of WebMD.

There can be no question that the world is changing, and has changed, in the manner in which legal services are delivered. For good and for bad, the Internet has changed the way members of the public seek and receive information about legal services.

Meanwhile, many of you are telling us:

•

Did you know that more than 76% of consumers consult on-line resources before engaging an attorney?1

•

Do your clients often bring forms they’ve found on the Internet, or come prepared to consult with you armed with knowledge from Wikipedia?

•

Are your clients now demanding that you be available 24/7, and that you deliver faster and cost-effective services for a fixed fee?

The public has a fascination and interest in the legal system as can be evidenced by the success of authors like Grisham and Turow, as well as countless TV dramas and movies. This is not a state or national phenomenon, but international in scope.

But studies also show that the public does not understand the legal system and is intimidated to be part of it. For example, a recent national survey by the National Center of State Courts found that 56% of people would prefer to represent themselves rather than hire a lawyer.2 Pro se litigants are increasing, and consumers are turning to unlicensed Internet legal service providers to find lawyers and/or seek

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•

Business development is a challenge. You are now having to expand your practices beyond your hometowns and use remote technology. You would like us to help you establish more of an on-line presence and connect you to possible clients. Did you know that OSBA’s website has more than 3.2 million visits a year from members of the public? We can help!

•

You’d like more information on innovative ways to manage your practices that will save time and money.

Experienced lawyers and new lawyers tell us that work-life balance is important to them, and practice management resources will help. We will deliver.

•

You receive too many e-mails. We hope to help manage your in-box by only providing information that is relevant to you and your practices.

•

For your continuing legal education, you’d like more learning opportunities and lots of options to choose from. Stay tuned. We have some entertainment in mind, as well as skills-based training for new lawyers.

Highlights of the Strategic Plan:

While the newly adopted strategic plan spans three bar years, there is much that your OSBA staff and leadership hope to accomplish in year one.

Here is an overview of our key strategic objectives, with some initiatives to watch for this year:

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TITLE Focus: providing the most relevant and valuable services and benefits to our members so they continue to engage with us. For instance, we recently launched an updated member directory to give our members, at no cost, an enhanced online presence. Members of the public often use OSBA’s website to find a lawyer.

Watch for: •

A redesigned, user-friendly website—easily find information and connect to the resources you need; it will also be easier for clients to connect with you.

•

More practice management resources and educational programs. We will make sure you are comfortable with your technology.

•

An updated way we communicate with you. We hope our communications will only include relevant information relevant to you and your practice.

•

More local programs offered by OSBA in collaboration with your local and county bar associations.

•

Possibly a new dues membership model so you are able to purchase the benefits and services that best suit your needs.

Focus: Enhance Ohioans’ access to justice by connecting them with lawyers. We continue to collaborate with the Ohio Supreme Court, the Ohio Legal Assistance Foundation and others to expand our advocacy for more public resources to support civil legal aid and indigent defense. We also want to build more on-line resources to connect you with clients using the Internet to find a lawyer.

Watch for: •

Continued advocacy at the state and national level;

•

The development of more educational resources for the public so they understand the importance of connecting with a lawyer; and

•

Enhanced on-line resources to connect Ohioans with you.

Focus: Increasing non-dues revenue for the Association so we can keep your dues at lower rates and continue to offer many great benefits and services.

Watch for:

Focus: Collaborate with specialty bars to advance diversity in the profession and address implicit biases.

Watch for: •

Increased collaboration with specialty bars;

•

Additional programming and diversity training and resources; and

•

Continued public policy advocacy to advance equality.

•

We also commit to continue to reviewing our internal operations for efficiencies and exploring ways to simplify our business practices to provide better services and make it easier to engage with us.

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•

We are exploring offering new conference and office space for you to use at OSBA. This may be newly designed space in our lower level for members to use to meet with clients, or for mediations. We’ll also be hosting other associations’ conferences, too.

•

Expanded use of our in-house video production studio by OSBA and other businesses.

•

An OSBA Shark Tank for investments in innovative ventures to help lawyers succeed in their practices? Don’t rule it out!

www.ohiobar.org

NEW MEMBER BENEFITS 2015/2016

TITLE

Change = Opportunities

As the legal profession continues to experience change and conflicting forces, it’s important for the OSBA to:

1.

Enhanced member profiles on OSBA’s website so you may get found by members of the public. Don’t have your own website, or looking for ways to drive traffic to your site? We can help!

•

Be aware of these changes and your needs;

•

Serve as a resource to help you be successful in a new way of doing business; and

2. Student Debt Consultations for new lawyers, as well as resources for managing debt.

•

Be willing to change ourselves to remain relevant to you in today’s information-driven world.

3. 30-minute free technology consultations offered through CuroLegal, as well as a member discount on any other services you may receive through CuroLegal.

With change comes challenges, but also opportunities.

The OSBA staff and leadership are poised to take advantage of those opportunities to build an even stronger bar over the next three years. The initiatives contained in our new strategic plan will: •

Help expand our relevancy to our younger lawyer members while continuing to serve the needs of our experienced members;

•

Further engage the legal community in issues that are important to the profession and improve the administration of justice; and

•

Help us become more efficient in our operations so that we can provide even better service to members.

We welcome your thoughts and feedback!

Send to maugsburger@ohiobar.org.

Author Bio

Mary Amos Augsburger is executive director of the Ohio State Bar Association.

Colleen Evans is senior director of strategic operations at the Ohio State Bar Association.

Endnotes

Based on a survey of 4,000 adult Internet users (Internet users comprise 78% of the U.S. adult population* and the U.S. adult population comprises 235 million according to the U.S. Census 2010) conducted

by The Research Intelligence Group (TRiG), March 2012. *According to the Pew Research Center’s Internet & American Life Project’s Spring Tracking Survey conducted April 26-May 22, 2011.

2 The State of Courts: A 2015 NCSC Public Opinion Survey, www.ncsc.org/2015survey.

1

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4. New career-related resources and in-person workshops for job seekers and employers provided by Robert Half Legal.

5. An enhanced OhioDocs automated forms library. Available by subscription to OSBA members, OhioDocs’ new cloud-based delivery channel means that it is accessible anytime, anywhere and on any web-enabled device, and with instant, real-time updates.

CHALLENGES OUR MEMBERS ARE FACING (experienced v. new lawyer findings from market research):

Top Three Challenges Faced by Experienced Members:

35% 29% Work-life Balance

Business Development

17% Increased competition in the market

Top Three Challenges Faced by New Lawyers:

57% 35% Student loan debt

Work-life balance

26% Finding additional opportunities in the law

OUR NEW MISSION STATEMENT:

To promote justice and advance the legal profession.

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Practice Tips

When You Try a Case, Tell a Story JUDGE JAMES L. KIMBLER (RETIRED)

H

umans are storytellers. We have been telling stories for almost as long as we have been a species. We tell stories for a multitude of reasons: to entertain, to make a point, to illustrate religious beliefs, to reinforce cultural and social ideals and to encourage certain political beliefs.

A trial tells a story, and like any story it needs a narrative or a theme.

The jury has three possible narrative sources: It can adopt your narrative, adopt your opponent’s narrative, or, in an attempt to make sense of the facts, it can develop its own narrative.

During a trial, a jury receives information through the presented evidence. This information is all new to them. During the jury selection process, we ensure that all the selected jurors who hear the case have little or no information about the case prior to their selection. When we provide

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humans with new information they tend to impose a structure on the information to make sense of it. This structure is often a narrative that binds the facts together. Not only does this narrative help them make sense of the information, but it also helps them remember the pertinent facts.

The challenge for a trial attorney is to organize facts into a narrative that the jury can relate to and understand.

When attorneys deliver their opening statements, I try to scrutinize their narrative. I firmly believe that the best narrative is going to win. The best narratives are those that are simple to understand, make sense, comport with human experience and are compatible with the prevailing cultural beliefs among the jurors.

Some cases lend themselves to narratives more than others. Even so, trial attorneys need to look

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for a narrative even in cases that initially appear uninteresting to anyone but the parties and their attorneys. It is important to realize that a strong narrative will make the case much easier for the jury or a judge to understand.

Establishing the narrative doesn’t only apply to opening statements or closing arguments, but should apply to all aspects of the trial.

Establishing a narrative doesn’t mean falsifying facts or making up evidence.

I am not saying that one’s narrative should be fiction. Establishing a narrative should enable you to cogently and accurately present the case’s facts and evidence in an easy to understand manner for the jury.

resulting trial. There are thousands of examples regarding criminal cases but relatively few of television shows, books and films built around civil cases.

interesting as possible so that the jury, or the judge in a non-jury trial, will understand and relate to the story that you are telling with your evidence.

Author Bio

Establishing the narrative doesn’t only apply to opening statements or closing arguments, but should apply to all aspects of the trial. It starts during jury selection and continues until the jury deliberates following the judge’s instructions. You don’t want to wait until your opening statement to start laying out the theme of the narrative that you will establish during the trial. As soon as possible, you should be talking about the elements of your narrative with potential jurors.

Because it may be hard to establish a narrative for a civil case doesn’t mean that it is impossible. What it takes, however, is a commitment to find and develop the storyline for your case.

It is important to understand that a jury trial is not just fact presentation but also story telling. When you are presenting evidence in a trial, you are telling a story. You need to make the story as

Keep in mind that merely establishing the elements of a cause of action or disproving those same elements is not the same as establishing a narrative or a storyline. While the elements of the cause of action may comprise part of the story, they aren’t the story, or at least not the whole story. The elements are the “what” of the story; the narrative is the “why” of the story.

The need to develop a story line or narrative is probably more important in a civil case than a criminal case. In a criminal case, because it is a crime and could involve the defendant going to prison, the trial is already interesting to the jury. The commission of the crime is the story that the prosecution is attempting to prove, and most jurors have had exposure to such stories in the popular media. Think of all the television shows, books and films built around the story of a commission of a crime, the consequences and a

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Retired Judge James L. Kimbler has been a trial judge for over 30 years. During that time he has conducted over 550 jury trials. He is the author of Practical Tips for Trial Attorneys published by Sigel Press in 2015, available online at www.sigelpress.com or on Amazon.

Landex Research, Inc. PROBATE RESEARCH

Missing and Unknown Heirs Located No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 Telephone: 847-519-3600 Fax: 800-946-6990 Toll-free: 800-844-6778 www.landexresearch.com

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Practice Tips

Walking Away From Your House May Cost You Thomas A. Marino II

T

he problem

You lost your job or missed work due to an extended illness, and the options to modify your mortgage have failed. You are so far in arrears on your mortgage that you owe more for the property than its value. Property values have decreased, and it no longer makes sense to make mortgage payments. You walk away.

What happens? The lender or note holder forecloses on your property.

You’re no longer financially responsible for the property, right? Wrong.

A lender with a foreclosure judgment can simply “sit” on the property, and years may pass before the property is sold at a foreclosure or sheriff’s sale, if ever. If it never sells, it is still yours. Title to the property does not transfer upon foreclosure of the mortgage. Even if the bank sends a letter saying to leave, until that property is sold, title ownership of the property will remain in your name.

In the universe of property law, you are still the title owner of record.

As time progresses, the property’s grass continues to grow and needs cut, windows are broken and need to be boarded up, a looter breaks in and steals copper plumbing, and the condition deteriorates to the point of becoming a

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health and safety hazard in violation of municipal building and housing code.

The law

Any municipality in Ohio, after providing notice to the owner, possesses authority to board up or demolish an unsafe structure that has been declared a public nuisance where the owner fails to provide an intent to repair, rehabilitate or demolish the structure.1 So who bears these costs? You—the owner of record (and possibly any prior property managers or prior owners)— bear the costs.2 Ohio’s municipalities may have their own specific statutes that permit nuisance abatement.3 Ohio courts construing these statutes make abundantly clear that owners of record of properties with condemned structures, whose nuisances are not abated, are responsible for those costs.4 Federal courts construing Ohio laws are in harmony with this state law principle.5 Property owners in the City of Cleveland are treated no differently.6 In W.E. Davis, the defendant property owner appealed the trial court’s award of summary judgment to the plaintiff, City of Cleveland, for recovery of demolition costs. The Eighth District Court of Appeals upheld the trial court’s award of summary judgment finding that the City of Cleveland

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was authorized to recover demolition costs from the defendant property owner since it was undisputed that the defendant property owner was the owner of record at the time of the demolition work. For demolitions on or after Nov. 16, 2011, any and all owners of a building or structure, who appear in the chain of title from notice of the housing code violation(s) to demolition, are jointly and severally liable for nuisance abatement costs.7 Owners of record have filed counterclaim actions against municipalities in state and federal courts for wrongful demolition and constitutional violations, but have not succeeded so long as notice of the condemnation was issued to the then owner.8 In fact, the property owner responsible for the costs need not own the property when the original condemnation notice is issued. Courts have routinely held subsequent purchasers of condemned properties liable despite the violation notice being issued to a prior owner.9 Owners of residential buildings or structures in some cities are required to provide notice to subsequent purchasers of the condition of such properties, which include housing code violations.10 Property owners have a twoyear statute of limitations that applies to any wrongful demolition claim they attempt to bring against a municipality.11 A municipality, pursuant to R.C. 2305.07, has a six-year statute of limitations to initiate suits to recover any nuisance abatement costs.12 The Ohio Supreme Court has held that the phrase “a liability created by statute,” found in R.C. 2305.07, means “a liability which would not exist but for the statute.”13 Federal case law holds that a municipality cannot maintain its nuisance abatement claims in tort theories such as nuisance, which are subject to a two-year statute of limitations.14 Even where the property owner is within the two-year statute of

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limitations, courts have also held municipalities to have governmental immunity from such claims, unless one of the statutory exceptions applies.15 Finally, the fact that a lender prosecuted a foreclosure action, and/ or obtained a deficiency judgment, against the property owner pursuant to the mortgage, does not preclude a municipality from filing a civil action for the collection of nuisance abatement costs.16

What should a property owner do?

Ideally, the property owner should discuss this matter with a licensed attorney if one is named in the foreclosure action. Addressing title ownership matters during the litigation, while overseen by a court, may resolve more easily. The sooner the issue is addressed, the less likely a municipality incurs costs during the property owner’s ownership period.

There may also be options to contract for the repairs or demolition directly, or even negotiate to transfer the title out of the property owner’s name and into the name of the lender, such as a deed in lieu of foreclosure.

A simple check with the Auditor or Recorder in the county in which the property sits will inform you whether you are still the property owner of record. Contacting an attorney about the issue is always advisable.

Author Bio

Thomas A. Marino II, an associate attorney at Douglass & Associates Co., L.P.A., in Cleveland. His practice areas include government collections, property, estate planning and probate, subrogation, civil litigation, and appeals. Visit his firm’s website at www.douglasslaw.com or email him at t.marino@douglasslaw.com.

Endnotes

See R.C. § 715.26(B).

See R.C. § 715.261(B).

1

See C.C.O. 3103.09.

See Sherrard v. Oberlin, 9th Dist. Lorain No. 10CA009817, 2011-Ohio-2325; Dayton v. Leigh (Aug. 23, 1995), 2d Dist. No. CA14888; Springfield v. O’Sesco, Inc. (Dec. 28, 1994), 2d Dist. No. 94-CA-45.

5 See, e.g., Davet v. City of Cleveland, 2005 U.S. Dist. LEXIS 9866 (N.D. Ohio 2005), affirmed by 452 F.3d 507, 2006 U.S. App. LEXIS 15496 (6th Cir. Ohio 2006).

6 See City of Cleveland v. W.E. Davis Company, 8th Dist. Cuyahoga No. 69915, 1996 Ohio App. LEXIS 3103 (July 18, 1996).

7 See C.C.O. 3103.09(k)(2).

8 See Leath v. Cleveland, 8th Dist. No. 102715, 2016-Ohio-105; see also Embassy Realty Invs., Inc. v. City of Cleveland, 976 F. Supp.2d 931, 2013 U.S. Dist. LEXIS 143828 (N.D. Ohio 2013), affirmed in Embassy Realty Invs., Inc. v. City of Cleveland, 572 Fed. Appx. 339, 2014 U.S. App. LEXIS 13256 (6th Cir. Ohio 2014).

3 4

See, e.g., City of Cleveland v. Oliver, 8th Dist. Cuyahoga No. 65862, 1994 WL 393704 (July 28, 1994); Sherrard, supra; and Orrenmaa v. CTI Audio, Inc., 11th Dist. Ashtabula No. 2007A0088, 2008-Ohio-4299.

10 In Cleveland, see C.C.O. 367.12; in Dayton, see RCGO 93.54.

11 See R.C. § 2744.04(A); Koncsol v. Niles, 105 Ohio App.3d 535, 538 (1995); see also Read v. Fairview Park, 146 Ohio App.3d 15, 19 (2001); and Bojac Corp. v. Kutevac, 64 Ohio App.3d 368, 371 (1990).

12 See City of Cleveland v. Alexander Bumpers, et al., 2014CVH010024; City of Cleveland v.

Blaine Murphy, et al., 2015CVH002078.

13 McAuliffe v. W. States Import Co., Inc., 651 N.E.2d 957, 72 Ohio St.3d 534, para. 1 of the syllabus (1995).

14 See City of Cleveland v. Ameriquest Mortgage Sec., Inc., 621 F. Supp.2d 513 (N.D. Ohio 2009), aff’d, 615 F.3d 496 (6th Cir. 2010) (holding that the Economic Loss Doctrine bars the City of Cleveland from maintaining its action for recovery of demolition costs under nuisance).

15 See R.C. § 2744.02(B); Leath, supra; Bram v. City of Cleveland (1993), 97 Ohio App.3d 719; City of Cleveland v. Wescon Construction Corp., 1990 WL 121301 (Ohio App. 8 Dist.); Browning v. City of Chillicothe 1995 WL 767916 (Ohio App. 4 Dist.); and Campbell v. City of Youngstown, 2007 WL 4696963 (Ohio App. 7 Dist.), 2007-Ohio-7219.

16 See City of Dayton v. Caslin, 68 Ohio App.3d 312, 588 N.E.2d 250 (2d Dist., Jun. 28, 1990).

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