LAWYERS
Columbus Bar Summer 2019
QUARTERLY
Lawyer Mental & Physical Well-Being In this issue, Columbus Bar Lawyers Quarterly is focusing on attorney mental health and well-being. We’ve compiled some great articles on self-care, yoga and meditation, mental illnesses and more. Plus, peek inside for pieces on medical marijuana laws in Ohio, how young lawyers are the future of the profession, bankruptcy law and more.
A publication of the Columbus Bar Association • www.cbalaw.org
Table of
LAWYERS
Contents
QUARTERLY
Summer 2019 President’s Page
4
Taking Our Traditions into Tomorrow: 150 Years of the CBA Magistrate Amy Koorn
Introductions
6
Kari Murphy: CBA Assistant Executive Director & Director of Diversity Brianna Antinoro
Bar Insider
10
Should You Argue or Tell a Story? Law & Lit Series, Part 5 Mark Kitrick and Mark Lewis
IOLTA/IOTA Can Improve 14 Your Access to Justice Emily White
Rural Law Practice: Is It 16 The For You? Judith McInturff
Bar Happenings
32
Photo Gallery and Calendar of Events
Summer ‘19: Lawyer Mental & Physical Well-Being
We Are Not Alone Bobbie O’Keefe
40
Self-Compassion Wins the Race Pat Snyder
44
My Sister’s Keeper Hannah Botkin-Doty
Brianna Antinoro
48
Horses: Exercising Them and Us at the Same Time Janyce C. Katz
Sarah Curran
54
Are You a Lawyer Who Helps Other Lawyers? Scott R. Mote
Life Outside the Law
58
22
The Future of the Profession Rests on Our Shoulders Hon. Jaiza Page
Lawyers with Artistic License: Douglas S. Morgan Heather G. Sowald
60
The Best of Africa: Wild Game & Waterfalls (Part 1) Hon. David E. Cain, Ret.
Points of Practice
28
Board Members
38
Breaking Out of Your Comfort Zone: Lessons for New Attorneys Sara Katz
Go Green: Senate Bill 57 and Redefining Hemp Bryan M. Pritikin
Janyce Katz
34
18
Protecting Your Client’s Judgment from Discharge in Bankruptcy: What Every State Court Litigator Should Know Jonathan D’Andrea and Hon. C. Kathryn Preston
Chair
Practice: Yoga and the Law Ashley L. Johns
Better Lawyer
24
Columbus Bar Association Editorial Board
Jury Verdicts
66
Melanie Tobias Amy Koorn Ashley Johns Garth Rowbotham
Editor
Design/Production
Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org
Advertising Burgie MediaFusion (614) 554-6294 leslie@burgiemediafusion.com
Civil Jury Trials, Franklin County Common Pleas Court Monica L. Waller NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.
President’s Page
Taking Our Traditions
into Tomorrow: 150 Years of the CBA by magistrate amy koorn April 20, 2019 marked 150 years of the Columbus Bar Association, and we continue to celebrate the landmark occasion for the balance of 2019 with events and memories. And for good reason: the Columbus Bar Association is the oldest continuously operating bar association in the state. For 150 consecutive years the lawyers in Columbus have realized the value in the common bond, and this year we commemorate the founding by reflecting on the richness the CBA offers. It is an incredible honor to serve as President in this monumental anniversary year and I am humbled by the leadership demonstrated by Past Presidents and Boards and grateful for their guidance and support,
ors, 2019-20
CBA Board of Govern
and from the staff at the CBA as well. Great thanks goes first to our members though, because you make the Columbus Bar Association the energetic, enthusiastic, innovative and dynamic association that I have the great privilege of leading for the next year. In the coming months, I will be headed to conferences in Scottsdale and San Francisco to better educate myself on the trends, challenges, opportunities and solutions presented by organizations supporting local bars like ours. Hearing from thought leaders from across the county who are looking at the same issues we are— everything from membership dues structures to case management computer software technology tools— in an effort to bring ideas and answers to Columbus attorneys. I am looking forward to these adventures and aim to elevate our association and our members from the information offered. Over the past year I have had the good fortune of attending similar conferences in Chicago and have quickly realized we are not alone in our constant quest to increase membership and offer member benefits. Likewise, we as practitioners are not alone in managing our offices, finding staffing solutions, bettering our brief writing and building our book of business. The Columbus Bar Association exists to help our lawyers succeed. Our mission states that the CBA “strives to be the leader in providing excellent, innovative and cost effective services to members of the legal profession and the general public in central Ohio. Through the active involvement of a broad and diverse membership, we will focus on professionalism, education, advocacy and community service in order to advance the justice system for all.”
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Great thanks goes first to our members though, because you make the Columbus Bar Association the energetic, enthusiastic, innovative and dynamic association that I have the great privilege of leading for the next year. As we reflect on 150 years of associated membership, I ask each of you to also consider, even briefly, what it means to be a member of the Columbus Bar. Where does building relationships fit into your membership purpose? And how will those relationships better your practice and the profession? Hopefully, you have an opportunity to honor that reflection by participating in some of the programming at the CBA as we continue to celebrate. While the CLE programming is second to none, and the access to resources, like probate bonds and insurance, compliment the legal services we offer, at its core our association is relationship driven, and it is my hope to bolster our members’ engagement. I want
NEW
Welcome MEMBERS Lukman I. Ahmed Sarah Davis Arnold Michael E. Benson Anthony T. Betta Jared Thomas Brankamp Jedidiah Irving Bressman Kathleen Cassier Chasteen Peter A. Contreras Patrick D. Cornelius Danielle E. DavisRoe Brian K. Duncan Kevin Dunn Eliana Elizalde Colleen Erdman Claire Fried Elliot B. Garvey Annemarie C. Gill
Joyce E. Gray Brittany Gregorchik Daniel Gurtner John Hance IV Nita L. Hanson Halle Hara Sheena L. Helm Keisha Y. Hudson Daniel T. Huna Bradley N. Jeckering Stephen H. Johnson Andrew D. Jones Linda S Jones John K. Keller Chynna L. Kelley Jeffrey T. Kenney Elizabeth P. Kessler
to show how much is to be gained by bringing your practice experience to the bar to build upon it with the relationships and resources we offer. For 150 years, lawyers have found the advantages to working with one another to improve their individual and collective experience. Thank you for being part of this rich history and growing your profession through your active contributions.
Magistrate Amy Koorn
Franklin County Probate Court Amy_Koorn@franklincountyohio.gov
Joseph R. Landusky, II Kristen N. Lawrence Elizabeth C. Leffel Melanie Lennon Angelyne Lisinski Todd A. Long Kelley A. Louis Chelsea Joy Lund Nicole M. Makeda Kent R. Markus D. Luke Meenach Lisa K. Meier Stephanie Mingo Miles Mark Samuel Miller Brock Allen Miskimen Frederick D. Nelson J. Michael Nicks Kelsey A. Ostrander Tina L. Owens-Ruff Joshua W. Pammer Thomas P. Pannett Ray S. Pantle Geoffrey Craig Parker Andrew Pfeifer Alexandra N. Pickerill
Stephen D. Plymale Gregory S. Pope Joe R. Popp Mary Lou Ranney Meghna M. Rao Kristine M. Rice John C. Rosenberger India K. Scarver Meredith W. Shell Benjamin Sigall Sarah E. Spencer Cassandra A. Struble Robert J. Tannous Ken Thien Payton E. Thompson Catherine Vance Kate Venable Ashley Bartman Watson Marissa L. Weldon Mindi Wells Andrea Caron Wiltrout Akmal Yacoub Andrea L. Zeidler Mark C. Zronek Nathan Zukowitz
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Introductions
Kari Murphy Assistant Executive Director & Director of Diversity by brianna antinoro
In January, the CBA hired Kari Murphy as our new Assistant Executive Director and Director of Diversity. Her job includes supporting our Executive Director, Jill Snitcher McQuain, by supervising a number of departments here at the CBA, and managing all of the diversity-related programming that we put together, as well as any initiatives stemming from diversity and inclusion. In the short span of time that Kari has been here, she’s been working hard on developing new programs that help push the CBA forward and ensure that we are continuing to have the conversation about diversity in the legal profession.
1
What made you want to become a lawyer?
2
What brought you to the Columbus Bar Association?
I wanted to become a lawyer because I saw a need for change agents in rooms where I lacked both access and influence. I felt that by pursuing this career, I could earn that access and help build the necessary influence to eventually drive change for my community.
But that’s not all; like everyone at the CBA, Kari wears a number of hats. Ever since she began working here, Kari has tirelessly helped out other staff, always offering her assistance with a smile. Whether it be checking people in for a committee event or a CLE program, answering the phones for our Lawyer Referral Service, staffing one of our Committees & Cocktails events, helping to schedule our court interpreters, or any number of other tasks, she is always the first one to volunteer to help.
My journey to the CBA started back in my first year of law school with a positive experience that quickly became one of many in my interactions with the Bar. As a 1L, I participated in the CBA Minority Clerkship Program which was instrumental in preparing me for all my professional roles in the legal industry. As a student member of the CBA, I was able to expand my network and reinforce budding relationships that opened a variety of doors for me in my early career.
So, to help everyone else get introduced to Kari and learn more about what she brings to the organization, we asked her a couple questions about her background and how she got involved with the CBA.
After graduating, I returned to the CBA Minority Clerkship Program as an attorney to present Legal Writing 101 at the MCP Orientation. It was a full circle moment as I spoke to students sitting in the seats I had occupied just
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a few years before. I felt a deepened connection with the organization that was so crucial to my professional development. I continued to engage with CBA as a legal professional regularly, encouraging students to participate in the MCP and/or Incubator programs when I worked in law school administration; partnering with the CBA for events during my tenure on the John Mercer Langston Bar Association Executive Board; and attending high quality programming through the CBA for my continuing legal education. Every time I engaged with the CBA, I left feeling positive. The impact it had on its members, both students and professionals, was traceable. When I became aware of the open position and considered the CBA’s impact on my career, I wanted to be a part of that impact for others.
3
What is your role at the Columbus Bar Association?
HR functions, help to facilitate our Incubator program, and work closely with our Lawyer Referral Service. Under the Director of Diversity function, I handle the diversity & inclusion related programming for the organization. This includes the Managing Partners’ Diversity Initiative, the CBA Minority Clerkship Program, the Diversity in Leadership Advisory Council, as well as organization-wide events like the annual MLK Symposium. It also includes the creation of new programming around legal D&I issues like our upcoming series: Bias Interrupters at Key Moments of Choice. This series will examine the unique ways that bias creeps into the systems used at key moments of choice throughout an attorney’s career (Think: hiring, compensation, performance evaluations, etc.) and will explore a menu of options for interrupting that bias. This is done in a thinktank-style format focused on practical application on an individual basis, recognizing that each organization is unique and thus requires a unique approach to improving in these areas.
My role at the CBA is Assistant Executive Director and Director of Diversity. This breaks down to two relatively discreet roles. Under the Assistant Executive Director function, I oversee our Notary department, our Interpreter Services department, our Committees and Special Events departments, and our reception staff. I also have some
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4
What’s the best thing about your job?
The best thing about my job is that no two days are ever alike. Because of the broad nature of the role, accurately planning my day is near impossible – in a good way! I love the variety!
5
What would people never guess you do in your role?
Web design. I have been fortunate that all my previous roles have required wearing any hat necessary to accomplish a given goal. Because of that, I have learned to design apps, build websites, systematize online booking, design flyers, invitations, and other marketing material, as well as create curriculum. My role at the CBA lets me continue to build upon those skills and has included creating new websites for MPDI and for our conference center, as well as an online booking system for our respite room.
6
What challenges do you see in the legal profession regarding diversity
While the legal profession faces many of the same challenges other professions do when it comes to diversity, there are some that are more pervasive in our industry. Of note for me, and thus the subject of our upcoming programming, is that the legal field continues to employ systems for its key moments of choice that research repeatedly has shown results in biased-decision making. The onus then is placed on legal professionals to learn to work around those bias-ridden systems to excel, instead of on those in power to tweak the systems to eliminate bias to the extent it is possible.
Thankfully, there are firms, organizations and individuals who have taken a proactive approach to changing their systems to be more in line with their peers in other industries. Still, taken as a whole, the profession is out of step with other industries in responding to the research in these areas. Another ancillary issue that exacerbates the first is that those most negatively impacted by the systems in place are reticent about sharing their experiences with those with the power to make a difference. There is a palpable fear that being honest about the ways in which these systems impact the daily lives of attorneys will result in: loss of respect, loss of opportunity, being branded as one who just can’t cut it in this industry, or one who otherwise doesn’t have what it takes to be successful. These two challenges give a snapshot of where we are as a profession, but also a roadmap for where to begin to implement change. The good news is that there is an undercurrent of receptivity to change in our current legal climate the likes of which we have not seen before; my hope is that it will serve as the backdrop for the needlemoving change that we need.
7
What successes do you see on the horizon?
While the legal field has plenty of room for large-scale progress, there is success to build upon. The most recent statistics show that the number of women associates have passed pre-recession highs, minority partner representation has reached new heights and LGBT lawyer representation is at an all-time high as well. There is work being done to increase diversity at all levels, and it is bearing some fruit. More encouraging to me, however, is the somewhat radical paradigm shift in our ancillary industries that has forced a re-examination of our own. Business has always moved faster than law—of this we can be sure— and corporation’s insistence on diverse representation
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has undeniably changed the way our profession looks at diversity. While far from a silver bullet, it is creating more opportunities for diverse attorneys to demonstrate skill and ability in ways that previously were less available. I see these requirements continuing to evolve, along with law firms’ responses to them, and look forward to the successes that come as a result.
8
I’m proud I always...
Am willing to start again. It’s never too late to take everything apart and start over. I can admit when I have made a mistake and am always willing to go back to the point of error to make it right. Something requires a complete overhaul? Will have to build from the ground up? Great. To me, the foundation is key, and no amount of patch-working will fix a faulty one. This trait has led me to change life-courses, pursue new professions, and overhaul programs. But, it has also led me to remain open, stay flexible, and be humble enough to seek what is right, even if that means that I am wrong.
People would be surprised to learn… I grew up in Mount Vernon, OH and spent most of my childhood weekends on my grandparent’s farm in Martinsburg, OH. While fully accustomed to city life now, my heart is in the country.
A fun fact about me is… I taught driver’s education for 2 years. Oh, the stories—it’s exactly as terrifying as you’d think.
I never leave home without…
My watch. I feel incomplete without it! Apple products will do that to you.
The one thing I can’t resist is… Chocolate. Period.
Please join everyone at the CBA in wishing a very warm welcome to Kari, and next time you stop by the CBA make sure to say hello! We can’t wait to see how she brings the CBA to new heights, and what she’ll be working on next.
Brianna Antinoro
Columbus Bar Association brianna@cbalaw.org 9 | Columbus Bar L aw yers Quarterly Summer 2019
Bar Insider
Should You Argue
or Tell a Story? How We Find Meaning in the Law: Law & Literature Series, Part 5 bY Mark Kitrick and Mark Lewis In our last Law-Lit article, we warned against the dangers of storytelling in the law. We reminded ourselves that, for all its efficacy and rhetorical benefits, storytelling is so cognitively facile and automatic that it often leads us away from truth. We can become easily bewitched by our narratives. We uncritically accept the truth or reality of well-told stories. This can spur distrust and uncertainty in our legal system if we don’t stay ethically attuned to our storytelling natures. We are, after all, storytelling animals who create narratives in our minds and for each other as automatically as we breathe air. Being aware of our storytelling nature allows us to make important choices about how we use language. For example, we are many times torn between making an argument and telling a story. Which path should we choose? If we argue, we focus on logic, truth and coherence. We seek factual and rational precision above all else. We believe in the persuasive force of evidencebased reasoning. Objectivity and consistency are hallmarks of this lawyerly mindset. If we tell a story, on the other hand, we aim at emotional connection, imagination and verisimilitude. The emotional valence of story engenders empathy and understanding. In story, we feel the conflict facing the characters and, in
turn, we recognize their pain, joy and ambitions. We want the character to overcome their conflict, to change in a fundamental way that will improve them and the story world they inhabit. Recall that last good movie you viewed or story you read. Did you think through the rational implications of the character’s actions and various plot points, or did your heart jump, your stomach churn, your eyes well up as you vicariously experienced the main character’s passage through the story’s arc? Great stories inevitably create powerful cognitive effects. But we resist them as lawyers. We just want the facts and arguments, so we can examine them against the rules of reason and empiricism. Arguments are right or wrong, logical or illogical. But stories don’t work that way. We don’t test them in the same way. Instead, we connect emotionally to narrative, to the unfolding feelings of the characters, conflicts and themes. This is not to say that stories can’t convey potent, revelatory truths. The best ones do reveal emotional truths. Yet that’s not the only reason stories appeal to us. Stories, unlike arguments, also appeal to us because they create meaning. And meaning renders us human. So, how do stories create this meaning? Where does meaning come from? In very large part, through language. We use words to tell a story. But this only pushes the question further back: how then do words make meaning? Here, again, we must further refine our question, the end of the regress: how do our minds make meaning? Recent cognitive and linguistic research suggests that our minds make meaning through embodied simulations.
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When we hear or read the words, those words trigger the part of our brains usually reserved for action and perception. Words create simulations in our minds using the same parts of the brain employed for directly interacting with the world, such as eating, grabbing, running, hugging and a multitude of other daily activities.
“Every thought we have or can have, every goal we set, every decision or judgment we make, every idea we communicate makes use of the same embodied system we use to perceive, act, and feel. None of it is abstract in any way. Not moral systems. Not political ideologies. Not mathematics or scientific theories. And not language.”i
Meaning, then, is not simply a matter of definitions, as many of us word-loving lawyers want to believe. Rather, according to the embodiment theory, our brains construct meanings through the same mental networks that allow us to see, hear, feel and act in the world. We come to understand language by automatically and subconsciously simulating in our minds what it would be like to experience the things described.
In other words, meaning is not about abstract definitions. It is about our real-world experience. And because meaning is about our experience – our specific actions and perceptions – it is intrinsically personal to each of us. Moreover, those personal meanings are changeable and constructed, and not stable and fixed.
This insight may not seem all that revelatory until we consider the implications. George Lakoff says it best in his introduction to Louder Than Words—The New Science of How The Mind Makes Meaning:
Which brings us full circle: should we argue or tell a story? What previously seemed a difficult choice between two alternatives has become less so. We should do both. We argue and tell stories, as we must, all the time. They
Great stories inevitably create powerful cognitive effects. But we resist them as lawyers. We just want the facts and arguments, so we can examine them against the rules of reason and empiricism. 11 | Columbus Bar L aw yers Quarterly Summer 2019
are two sides to the same coin of making meaning. Even when we devote our language to definitions, logicchopping and rationality, our brains will necessarily seek meaning by recreating mental simulations of lived experience in the world. We don’t have to jettison the truth-value of logic and the persuasive force of evidencebased reasoning in favor of storytelling, or vice versa. Our minds will convert language into meaning the same way whether we tell a story or make an argument.
Empowering Growth
Helping clients overcome challenging situations and getting back to what matters.
But the distinction between story and logic remains important for choosing how best to persuade our readers. If our brains convert language into simulated experience, as cognitive science now teaches, then storytelling seems more in tune with how we experience and understand life. In short, stories are more likely to capture the experience of living. Stories depend on characters acting in a story world to achieve their goals, overcome their obstacles and resolve their conflicts. Legal logic, on the other hand, more often depends on our attempt to apply abstract definitions to facts chosen for that purpose. Legal reason is about consistency and coherence, not experience. This brings to mind Justice Holmes’ famous dictum about law’s dependence on experience, not logic. Holmes was making a different point, that law serves pragmatically useful ends as much, if not more, than logical ones. We can extend Holmes’ point in light of modern cognitive and linguistic science. We now see how legal reasoning suffers from an inherent limitation tied to the very way in which our brains attempt to understand and make meaning in the world. This is not to decry legal reason, which remains necessary for
Rebekah Smith CPA, CFF, CVA, MAFF Director of Forensic & Dispute Advisory Services rsmith@gbq.com
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consistency and clarity in the law. But we should take note of its limitations for both persuasion and meaning. When combined with storytelling, legal reasoning becomes not only a vehicle for formal consistency but also a more recognizable source of meaning in law. And it is meaning we seek, perhaps above all else, as we try to understand the law and our place in the legal system. i
Louder Than Words: The New Science of How The Mind Makes Meaning, Benjamin K. Bergen (2012 Basic Books)
Mark M. Kitrick, Esq.
Mark D. Lewis, Esq.
Kitrick, Lewis, & Harris, Co., LPA Kitrick, Lewis, & Harris, Co., LPA mlewis@klhlaw.com mkitrick@klhlaw.com
12 | Columbus Bar L aw yers Quarterly Summer 2019
®
Bar Insider
Your IOLTA/IOTA Can Improve Access to Justice by EMILY WHITE If you’re like me, you face many demands on your time. From work commitments, to family and life at home, sometimes it feels like there simply aren’t enough hours in the day to give back. If you consider improving access to justice both a professional and moral imperative, you’re in luck.
Bank on Justice for a stronger Ohio
Simply by choosing a Prime Partner financial institution to hold your interest on lawyer trust account (IOLTA), you can increase funding for civil legal aid and improve access to justice for Ohioans struggling to make ends meet.
Earlier in my career, I witnessed this firsthand while an attorney with the Legal Aid Society of Cleveland. I helped low-income residents save their homes from foreclosure during the depths of the Great Recession. These efforts not only helped the individual homeowner; they also stabilized neighborhoods by protecting the property values of the surrounding homes.
Interest on IOLTA and title agent trust accounts (IOTA) remains one of the largest and most crucial sources for funding for Ohio’s legal aids. Although interest rates have steadily increased since the financial crisis, rates are nowhere near 2007 levels. The Ohio Legal Assistance Foundation began recognizing Prime Partner financial institutions in 2012 as those who agree to offer premium interest rates on IOLTA/ IOTA, to generate additional dollars to fund civil legal aid. When my firm, DannLaw, selected a financial institution for our IOLTA, we specifically chose KeyBank because they are a Prime Partner. Not only does Key offer exceptional service, but they are also committed to access to justice. This easy decision – to “bank on justice” – means that more Ohioans will receive much needed legal help.
In 2018, Prime Partners helped fund close to 185,000 hours of civil legal assistance. When Ohio’s seniors, veterans, children and families receive access to legal help, it translates to stable employees, stronger communities and a more vibrant economy.
Critical housing work continues at legal aids around the state today. Take Martin,* a Vietnam veteran who served in the U.S. Marines. Martin suffers from mental health issues and struggles to remain stable and housed. When his mobile home park served him with an eviction notice for non-payment of rent, Martin went to legal aid for help. Legal aid determined that Martin had paid his rent, however he did owe a small fee for a shed under a different lease. The confusion resulted in Martin’s threatened eviction, but because of legal aid, the eviction was dismissed and Martin remains in his home.
Bank on Justice to give back
Ohioans dealing with housing issues, dependable transportation, family matters or addiction often struggle to contribute to their communities. Ohio’s
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legal aids are helping Ohioans address the civil legal issues surrounding these challenges, to improve stability for thousands of people. When you Bank on Justice you help Ohioans like Lynette,* a United States military veteran and mother of three children. Lynette moved to Ohio to escape her husband, who abused their son and threatened her with a knife in front of their daughter. Legal aid helped Lynette obtain a Civil Protection Order and a divorce, freeing her and her children from abuse. You can help more Ohioans such as Martin and Lynette when you choose a Prime Partner financial institution for your IOLTA/IOTA. Current Prime Partners include Congressional Bank, General Electric Credit Union, Heartland Bank, KeyBank, Peoples Bank, Metamora State Bank and TriState Capital. When selecting one of these Prime Partners, you can feel good knowing that the interest on your IOLTA/IOTA is being amplified to help more Ohioans in need. If you are happy with your current banking relationship, talk to your financial institution about becoming a Prime Partner. You can always ask your bank for a better rate, or refer them to the Ohio Legal Assistance Foundation for more information about the Prime Partner program. For attorneys and firms who bank at a Prime Partner, think about becoming a Bank on Justice champion. Champions are featured prominently on the Foundation’s website, on social media and at trade shows for attorneys and bankers. Bank on Justice champions share a simple testimonial to illustrate their commitment to access to justice. Here are a few powerful examples from current Bank on Justice champions:
No one should be denied access to equal justice because of poverty. Mina Nami Khorrami, Mina Nami Khorrami, LLC
We deliberately chose to switch our IOLTA to KeyBank, a Prime Partner financial institution. Our firm values the benefit to the community and the need for legal services, which KeyBank’s superior IOLTA interest rate provides. Sowald Sowald Anderson Hawley & Johnson
I Bank on Justice because of my hope of making legal assistance to all a reality. David Bloomfield, Bloomfield & Kempf, LLC
I am proud to represent DannLaw as a Bank on Justice champion. The attorney and banking communities are coming together to support legal aid, a truly special partnership. Please join me in Banking on Justice, to ensure our nation’s promise of justice for all. Attorneys interested in Banking on Justice can contact the Foundation at bankonjustice@olaf.org or 800.877.9772. *Names have been changed.
Emily White, Esq.
DannLaw ewhite@dannlaw.com
15 | Columbus Bar L aw yers Quarterly Summer 2019
Bar Insider
THE RURAL Law Practice: Is It For You? by JUDITH MCINTURFF
Susan Peyton is the mayor of Cardington, an incorporated Morrow County village of about 2,000 residents. The village website is simple, touting the charms of small town life while advertising the sale of a 2002 Honda CRV, a used Ford Truck and a New Holland tractor. When I visited Cardington at the request of the Mayor and their economic development council, I was told that Cardington’s growth potential was unlimited.
But Cardington needs a lawyer. There is a bank, an insurance broker, a CPA, and a library, all run by educated people. There is not a single lawyer in town to address the needs of these businesses, much less the personal needs of the remaining village and rural periphery. Morrow County has a total of 30 attorneys, in contrast to Franklin County with 7,854. Many of the attorneys in Morrow County are nearing retirement age, creating a critical shortage of attorneys in this rural county. These statistics are not rare, with 31% of Ohio’s 88 counties having less than 40 practicing lawyers. Rural location impedes access to justice.
Rural practices have unlimited potential for financial and social growth. A whole new world of service and satisfaction can be discovered. 16 | Columbus Bar L aw yers Quarterly Summer 2019
Why are new lawyers not attracted to rural practice? Why are existing law firms not opening up second offices? Located directly in the I-71 corridor, Morrow County houses a brand new 1.2 million-square-feet Dollar Tree distribution facility which will provide 400 jobs. The employees need lawyers that are readily accessible. The cost of living is low, the quality of life high, and a great living can
ney Attor at Law
be made writing wills, selling farms, and forging genuine relationships with generations of rural families. Lawyering in rural counties matters and makes a real and lasting impact on communities. While the traditional thinking remains that lawyers need big cities to make big money, according to the 2019 Robert Half attorney salary guide, the average income for an attorney in Columbus, Ohio is $84,000.00. New lawyers are tens of thousands of dollars less. Rural practices have unlimited potential for financial and social growth. A whole new world of service and satisfaction can be discovered. In the words of Atticus Finch: “You never really understand a person until you consider things from his point of view - until you climb into his skin and walk around in it.� So try on a rural practice. I think you’ll be tempted to stay.
Judith McInturff, Esq.
Columbus Bar Association judy@cbalaw.org
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Breaking Out of Your
COMFORT ZONE: LESSONS FOR NEW ATTORNEYS BY Sara katz If I had to pick a theme for the last two years since taking the leap of faith to move to Columbus, it would be learning to live outside my comfort zone – on a daily and often hourly basis. That’s more of a testament to the character of the people I’ve met in Columbus than it is to my propensity for risk taking.
and Pittsburgh. I walked 38,000 steps my first day in Columbus and simply fell in love with how vibrant and welcoming the city was. As I stood in front of the giant gavel outside the Supreme Court building researching what it would take to get licensed in Ohio, I texted my mom that I could see myself living here to which she just laughed. Exactly one year later, she was in the audience at the Palace Theater as I walked across the stage and got sworn in to the Ohio bar.
The first question I’m always asked when people find out that I moved to the Midwest from the New York/New Jersey area is: “Ooo, who is the lucky guy?” The second question, when they find out that there is no lucky guy, is simply: “why?” The answer to that second question is a bit random. I had taken myself on a spontaneous road trip in May 2016 to see the Rock and Roll Hall of Fame in Cleveland. After visiting Cleveland, I decided to loop back around to New Jersey through Columbus
Once I returned to New Jersey after that first trip, the idea of moving to Columbus only snowballed. Out of curiosity, I began reaching out to some organizations and the few people I knew that were living in Columbus. Soon, people that I had only met via email were inviting me to their homes for dinner the next time I was in town and connecting me with others in Columbus. By the time I moved out here, I had a group of “pen pals” that I had been communicating with via phone and email.
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In December 2016, I flew out to Columbus for an interview with a law firm. I had five+ years of experience under my belt, beginning in New York City government and transitioning to the private general practice I had built up within my mother’s real estate law firm in New Jersey. The interview that December didn’t turn into anything, but while I was here for those few days, I met one of my “pen pals” who was an immigration lawyer in Columbus. She put the idea in my head that I should move to Columbus and work on my private practice remotely until I found a position. She told me amazing things about the Columbus Bar Association and other groups throughout Columbus that had frequent networking events where I could build up connections. I decided to put this to the test and took the leap to move in February 2017. Immediately, I began meeting what felt like everyone in town. One of the first places I contacted was the Columbus Bar Association. I immediately got involved with both the Young Lawyers and Government Agencies committees, which proved to be invaluable. In fact, I got my current job through meeting my former boss, the Chief Legal Counsel at the Ohio Department of Education, at a meeting of the Government Agencies committee. I had subsequently asked her to get coffee as I had done with so many others in the eight months leading up to this and it was when we met at Einstein’s that day that she asked if I was interested in working for the Ohio Department of Education. Of course, I said yes. I was itching at the chance to get back into the public sector and make a real impact. It’s the perfect Columbus networking story and shows how you never know who you’re going to meet. I had spent a good eight months networking prior to finding my current job. I consider myself an extrovert, but it was a process learning how to put fears and nerves aside while networking. I learned how to make
“cold” calls and emails to the people I wanted to meet. Through my calls, emails and attending networking events, I was able to sit for coffee with everyone from directors of government agencies, to partners at big law firms and everyone in between. Each of these people would then, in turn, introduce me to about five others. I never approached these coffee meetings as a means to ask for a job, but simply to get to know people and hear their tips and suggestions. I learned many lessons during my period spent networking in a city where I barely knew anyone. Here is what I would like to impart:
Sometimes you have to take a leap of faith. Pros and cons lists are very helpful— but always follow your gut instinct. 19 | Columbus Bar L aw yers Quarterly Summer 2019
•
• • • • •
People can’t say no or reject you if you never ask them for anything (and nine times out of 10, they’ll say yes). Be shameless when you ask - don’t be a total weirdo, but put aside your anxieties and inhibitions. Be comfortable in your own skin and don’t be afraid to be yourself even if people disagree with you. Don’t be afraid to take risks. Things are only impossible if you’re afraid to take the risk. Sometimes you have to take a leap of faith. Pros and cons lists are very helpful - but always follow your gut instinct. Listen to people. Everyone you meet can teach you something. Always stay in touch with your contacts; it’s a small world.
Lastly, never give up. Sometimes things aren’t meant to happen when you want them to, but they happen exactly when they’re supposed to. I am so grateful for all the wonderful connections I’ve made and for the help I was given. I’m always happy to pay it forward, so please feel free to reach out to me anytime, whether for professional advice or to find out where to get the best martinis in the city!
A Culture of Accountability.
WE OWN IT.
250 W. Old Wilson Bridge Road Suite 250 • Worthington, OH 43085 614.540.6633 • www.cecinc.com
Sara Katz, Esq.
Ohio Department of Education Office of Legal Counsel Sara.Katz@education.ohio.gov
20 | Columbus Bar L aw yers Quarterly Summer 2019
Let us
host your next
MEETING Conference Center on the Commons 175 S. Third St., Suite 1100 Columbus, OH 43215
It can be hard to find the perfect spot to host a meeting. Our Conference Center offers full audiovisual set-ups, Wi-Fi and power available at every seat, and catering. Availability days and evenings with conference rooms for 4 to 110.
Space for up to 110 people Food and beverage services Audiovisual equipment Variety of room sizes and configurations The Conference Center on the Commons at the CBA offers an “all-inclusive approach” to planning and executing your event. Contact us for more information or to schedule a room or videoconference.
175 S. Third St., Suite 1100 Columbus, OH 43215 www.cbalaw.org Contact: Anne Schmitz (614) 340-2066 • anne@cbalaw.org
THE FUTURE of the Profession Rests on our Shoulders BY hon. Jaiza page
Twenty-seven years ago, at the age of eight, I decided that I wanted to be an attorney. My understanding of the law and attorneys at that time was pretty simple: attorneys use the law to help people and I wanted to help people. As I matured, I now view attorneys as people of integrity, independently charged with administering justice and ensuring that the rule of law prevails in our community.
As a young attorney and, having been sworn in to the Franklin County Court of Common Pleas on Jan. 3 of this year, a young judge, I understand that young attorneys and young judges are the future of our profession. We have a responsibility to administer justice, practice with integrity, maintain the independence of the judiciary and ensure that the rule of law prevails. This responsibility began the day that we were sworn in as attorneys, and we join a host of experienced legal professionals in our community who understand the grave responsibility we carry.
22 | Columbus Bar L aw yers Quarterly Summer 2019
Young lawyers, as we stand on the shoulders of those gone before us, we must keep our responsibilities at the forefront of our minds. I began my career in the Columbus City Attorney’s office under Richard C. Pfeiffer, Jr., where I quickly learned the importance of community, justice and to uphold our Professional Rules of Conduct. I gained more experience and knowledge of our duties in private practice at Eastman & Smith, LTD. I am now taking my childhood passion to help others and what I learned in the practice of law to the bench, where I pledge to serve this community to the best of my ability as a member of the judiciary. The preamble to the Ohio Rules of Professional Conduct provides: “As an officer of the court, a lawyer not only represents clients but has a special responsibility for the quality of justice.” Young lawyers, as we stand on the shoulders of those gone before us, we must keep our responsibilities at the forefront of our minds. Much credit is due to attorneys in the local community and across the
nation who understood our duty to advance the administration of justice. They helped shape the ideals of justice we hold so dearly. Attorneys with integrity embodied the spirit of the halls of justice we have the privilege to walk into each day. Our community has progressed because of those who heeded to our duty. To the young lawyers entering the legal profession with many different experiences, perspectives and upbringings, while many things change around you, please remember this constant; that lawyers have a special responsibility for the quality of justice. Whether you are like me and you decided at a young age that you wanted to help people or if it was during your college years that you learned of an injustice that you wanted to eradicate, we all took the same oath and have equal shares in our obligations. This is not only a personal responsibility but one that we must hold each of our colleagues to. The future of justice, the rule of law and our profession lies with us. Hon. Jaiza Page
Franklin County Court of Common Pleas jaiza_page@fccourts.org
23 | Columbus Bar L aw yers Quarterly Summer 2019
Points of Practice Protecting Your Client’s Judgment from Discharge in
BANKRUPTCY: What Every State Court Litigator Should Know
by Jonathan D’Andrea and Hon. C. Kathryn Prestoni Suppose that you represent plaintiffs in state court litigation. And suppose further that, after months (or years) of litigation, you finally obtain a substantial money judgment for one of your clients. But before your client can collect, the judgment debtor files a petition for relief under Chapter 7 of the Bankruptcy Code. What does this mean for your client? A couple things. First, the filing of the bankruptcy petition triggers the automatic stay under 11 U.S.C. § 362, which halts collection efforts by most creditors. This means your client can’t collect the judgment while the automatic stay is in effect. Second, your client’s judgment is at risk of being effectively wiped out in the debtor’s bankruptcy case, as a Chapter 7 discharge generally effectuates a legal release of all debts that arose before the date the bankruptcy petition was filed.ii But there are exceptions. For example, debts that arise from certain fraudulent conduct of the debtor, or debts that arise from a “willful and malicious injury” caused by the debtor, are nondischargeable in bankruptcy.iii These exceptions require the creditor to file an adversary
proceeding, asking the court to except the debt from discharge.iv Absent such a request, the debt will be discharged.v Once the debt is discharged, a permanent injunction, i.e. the “discharge injunction”, prevents attempts to collect the debt.vi The bottom line is that if your client’s judgment arises from conduct of the debtor that falls within the confines of one of the exceptions to discharge, your client can go into bankruptcy court and ask the court not to discharge the debt. But does this mean your client will have to relitigate issues that were already litigated in state court? Not necessarily. Offensive collateral estoppel, aka “issue preclusion”, is not just a phrase you hoped to never see again after the bar exam; the doctrine is frequently invoked by creditors in bankruptcy court to prevent having to relitigate issues already decided in a previous forum.vii For example, let’s say your client obtained a judgment on a personal injury claim against the debtor. You may argue that the debt arose from the “willful and malicious injury” attributable to the debtor and ask the bankruptcy court to except the debt from discharge under 11 U.S.C. § 523(a)(6). In that instance, you may also ask the bankruptcy court to give preclusive effect to the state court judgment to prevent having to re-litigate any issues that the state court decided. Federal courts apply the law of the state in which the prior judgment was rendered in determining whether, and to what extent, preclusive effect should be given to the judgment in the federal action.viii So, if the prior judgment was obtained in
24 | Columbus Bar L aw yers Quarterly Summer 2019
...debts that arise from certain fraudulent conduct of the debtor, or debts that arise from a “willful and malicious injury” caused by the debtor, are nondischargeable in bankruptcy. Ohio, the bankruptcy court will apply Ohio law regarding issue preclusion. In Ohio, four elements must be present for issue preclusion to apply: 1) A final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; 2) The issue must have been actually and directly litigated in the prior suit and must have been necessary to the final judgment; 3) The issue in the present suit must have been identical to the issue in the prior suit; 4) The party against whom estoppel is sought was a party or in privity with the party to the prior action.ix Furthermore, in order to clothe a state court judgment with preclusive effect for purposes of a bankruptcy court proceeding—usually presented to the court by motion for summary judgment—the judgment creditor must illustrate to the bankruptcy court what was actually decided in the state court case. The bankruptcy court cannot speculate what the state court’s decision was based on. Ideally, the state court judgment will contain
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findings of fact and conclusions of law, detailing the conduct giving rise to the liability and the applicable legal bases. If the judgment awards damages for multiple state law claims, the judgment ideally will allocate the amount of damages to each particular claim. This is important, because the only findings given preclusive effect are those necessary to the state court’s decision, and the only damages given preclusive effect are those proximately caused by conduct that falls within the contours of the exceptions to discharge.x Long story short, if your client’s judgment is encompassed by one of the exceptions to discharge, you may be able to protect your client’s judgment from discharge by filing an adversary proceeding in bankruptcy court. And offensive collateral estoppel may be a useful tool for your client to avoid having to relitigate issues that the state court already decided.
i
Disclaimer: None of the statements contained in this article constitute the official view or policy of any judge, court, or government employee. ii 11 U.S.C. § 727(a), (b). iii 11 U.S.C. § 523(a)(2), (4), (6). iv 11 U.S.C. § 523(c)(1). And the adversary complaint generally must be filed no later than 60 days after the first date set for the § 341 Meeting of Creditors. Fed. R. Bankr. P. 4007(c). v 11 U.S.C. § 523(c)(1). vi 11 U.S.C. § 524(a)(2). vii See, e.g., Grogan v. Garner, 498 U.S. 279, 285 (1991). viii Rally Hill Prods. v. Bursack (In re Bursack), 65 F.3d 51, 53 (6th Cir. 1995). ix Sill v. Sweeney (In re Sweeney), 276 B.R. 186, 189 (B.A.P. 6th Cir. 2002) (citations omitted). x See, e.g., Yust v. Henkel (In re Henkel), 490 B.R. 759 (Bankr. S.D. Ohio 2013); Custom Kilns, Inc. v. Pierron (In re Pierron), 448 B.R. 228 (Bankr. S.D. Ohio 2011); Schmidt v. Panos (In re Panos), 573 B.R. 723 (Bankr. S.D. Ohio 2017).
Jonathan D’Andrea, Esq.
U.S. Bankruptcy Court Southern District of Ohio
26 | Columbus Bar L aw yers Quarterly Summer 2019
Hon. C. Kathryn Preston
U.S. Bankruptcy Court Southern District of Ohio
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Points of Practice
GO GREEN:
Senate Bill 57 and Redefining Hemp BY Bryan M. Pritikin
Until a few years ago, the phrase “going green” referred to engaging in a more ecologically responsible lifestyle for the sake of the environment. The last 10 years, however, have seen businesses and states “going green” as waves of regulations legalizing marijuana and hemp are passed across the nation. To date, 33 states and the District of Columbia have legalized marijuana for medicinal use with various forms of similar legislation pending in multiple other states. Ten states and the District of Columbia have legalized recreational marijuana use. Eventual nationwide legalization within the states seems inevitable.
of the genus cannabis.”i Under Ohio law, then, both marijuana and hemp are controlled substances. Only those so licensed can cultivate marijuana, and because hemp falls under Ohio’s definition of marijuana, the same holds true for cultivating hemp.
Both hemp and marijuana come from the cannabis plant and both are currently illegal to possess or use under Ohio law, unless otherwise licensed through Ohio’s Medical Marijuana Control Program, or OMMCP. Ohio’s law defines marijuana as “all parts of a plant
28 | Columbus Bar L aw yers Quarterly Summer 2019
CBD’s use is becoming increasingly popular, but it cannot be consumed in Ohio without a prescription. House Bill 523 created the OMMCP, but it did not carve out an exception for the possession or use of CBD, which means CBD oil falls under Ohio’s definition of marijuana. For that reason, the Ohio Board of Pharmacy stated late last year that CBD-consumable products would only be available through statelicensed dispensaries. So, to legally possess CBD oil in Ohio, genuine plant extract or synthetic, with little
SB 57 would legalize industrial hemp and sales of CBD products. Should SB 57 pass in its current form, it would decriminalize hemp cultivation and production. Ohio’s Department of Agriculture would be charged with licensing and regulating the growers and processors. to no THC content, one must: find a doctor licensed to prescribe marijuana, get a prescription for CBD oil, and then find a dispensary. Of the 56 dispensaries that have received licenses to operate, only 15 had opened at the time of the drafting of this article. Those dispensaries that have not yet been granted certificates of operation cite issues with such things as city ordinances preventing their operation. This broad definition exists despite the fact that hemp contains almost no Tetrahydrocannabinol, or THC (generally less than one percent), the component of the cannabis plant that can cause psychoactive reactions. Hemp contains higher levels of Cannabidiol, or CBD, which is popularly used to treat humans and animals suffering from a host of ailments, with results that have been described, in some circumstances, as life-changing. The remaining fibers in the hemp plant are used in the production of clothing, construction materials, rope, biofuel, plastic composites, health food, nutraceuticals, and hundreds of other products. Hemp has many applications, but it does not get people “high.”
SENATE BILL 57 Last December, Congress passed the Agriculture Improvement Act of 2018, more popularly known as the Farm Bill, which the President subsequently signed into
law. The Farm Bill removed hemp from the federal list of controlled substances by changing its definition so that it is no longer defined as marijuana, which remains illegal under federal law. Hemp is now defined at the federal level as: “…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”i The Farm Bill does not preempt any state law regulating hemp’s production or any state law that is “more stringent” than federal law in regulating hemp production. Consequently, any state can limit or outlaw the production of hemp within that state or instill additional restrictions upon its production, as long as any such restrictions comply with all federal requirements. Currently pending before the Ohio House is Senate Bill 57, which unanimously passed the Ohio Senate. If passed the by the House, SB 57 would legalize industrial hemp and sales of CBD products. Should SB 57 pass in its current form, it would decriminalize hemp cultivation and production. Ohio’s Department of Agriculture would
29 | Columbus Bar L aw yers Quarterly Summer 2019
be charged with licensing and regulating the growers and processors. But, there would be no requirement for stores to hold licensure to sell hemp products, as plants will be tested to ensure they do not contain more than 0.03 percent of THC. The large amount of regulatory and private business support that SB 57 has received is impressive and serves as an indicator of its potential economic impact. SB 57 took a page from the Farm Bill in that it seeks to remove hemp as a controlled substance though “redefinition.” In SB 57’s current form, hemp is defined as: “…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a dry weight basis.”iii
federal restrictions on the production of hemp opened the doors to an almost unlimited amount of new economic opportunities. Passing SB 57 will undoubtedly bring similar opportunities to Ohio. Should SB 57 pass in its current form, it will create a host of new regulatory, business and employment issues to navigate. Persons or businesses with questions about medical marijuana and/or hemp in Ohio should contact competent counsel for assistance interpreting the new rules and regulations that will follow SB 57’s eventual passage. i
R.C. 3719.01
ii
Farm Bill, Section 10113.
iii
SB 57, §928.01(B).
Passing SB 57 with this definition included would remove hemp from Ohio’s Controlled Substances Act and it would no longer be considered an illicit drug. Removing the
30 | Columbus Bar L aw yers Quarterly Summer 2019
Bryan M. Pritikin, Esq.
Carlile Patchen & Murphy LLP BPritikin@cpmlaw.com
Sav e th
e da
2019
te!
G LF outing Join us on Sept. 16 at Golf Club of Dublin for the 3rd Annual Jay Yano Memorial Golf Outing! Details and registration info at www.cbalaw.org. Spots are limited—sign up soon!
September Entertainment by the Klatt Brothers Band Happy Hour sponsored by Buckeye Vodka Free Uber ride home All proceeds benefit the Jay Yano Memorial Fund of the Columbus Bar Foundation
16
Golf Club of Dublin 5808 Eiterman Rd. Dublin, OH 10:00am shotgun start 4-person scramble
Bar Happenings
Pro Bono Breakfast 2019
Cameron Mitchell presentation at the April 2019 Managing Partners Meeting
Annual Meeting 2019
April 2019 Committees and Cocktails
Reception for newly-admitted lawyers
Presidents Reception and 150th Anniversary Party May 2019 Committees and Cocktails
Young Lawyers / Judges Lun cheon
32 | Columbus Bar L aw yers Quarterly Summer 2019
Bar Happenings
What’s Next @ the Bar? For a complete list of events, CLE programs and meetings, visit www.cbalaw.org.
SUMMER 2019
july
Committees & Cocktails (3rd Wednesday of the month) • 5-7pm @ the CBA
july
Navigating the New Individual Tax Forms • 12:00-1:30pm @ the CBA
17 23 july
29
All CBA members are invited to this free monthly networking event held on the 3rd Wednesday of each month, offering members from all practice areas a chance to meet, network and make valuable business contacts in a casual, relaxed atmosphere. The CBA provides beer, wine, soft drinks and light hors d’oeuvres. RSVP online at www.cbalaw.org. More Committees & Cocktails: August 21 (5-7pm), September 18 (5-7pm).
What’s new on the 2018 tax forms and schedules and what do they look like? Presented by Susan Moussi, CPA, CFP®, CDFA, this class will give you an overview of changes to the individual tax forms and how to use them. Register at www.cbalaw.org. 1.5 CLE Hours. July 29, 2019
Not Far From Me: Stories of Opioids and Ohio • 7-8pm @ Gramercy Books
1.0 CLE Hour (Professional Conduct)
Location: Gramercy Books Bexley (2424 E. Main St., Bexley, OH 43209) More and more Americans find themselves touched by the opioid epidemic. Not Far From Me is the first book on this public health emergency composed entirely of first-person accounts. Join us for a discussion with the books’ editors. Co-sponsored by Gramercy Books. Register at www.cbalaw.org. 1.0 Prof. Conduct CLE Hour.
NOT FAR FROM ME: Stories of Opioids and Ohio
august
2
www
Update: The New Child Support Law and You • 12:00-1:30pm @ the CBA On June 29, 2018, Governor Kasich signed into law House Bill 366, the first substantial modification of Ohio’s child support laws in over 25 years. How does the new law affect your cases? Find out from the experts. Register at www.cbalaw.org. 1.5 CLE Hours.
More and more Americans find themselves in some way touched by the opioid epidemic. But while many have observed the effects of the crisis, Not Far From Me is the first book on this public health emergency composed entirely of first-person accounts. The collection unfolds across more than fifty gripping accounts by Ohioans at the center of the national epidemic. Shared through personal stories, poetry, interviews, and photos, these perspectives transcend typical one-dimensional portrayals of the crisis to offer a mosaic of how politics, religion, sports, economics, culture, race, and sexual orientation intersect in and around the epidemic. Join us on July 29 for a conversation led by the editors of Not Far From Me.
The Opioid Crisis in Ohio • • • • • •
Why Is Opioid Use a Public Health Emergency? The Science of Addiction Empathy and Insight: First Hand Stories of Addiction How Do Politics, Economics, Culture, Race and Sexual Orientation Intersect? The Law and Policies that Criminalize Addiction A Community Call to Action
Community Partner:
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2019 Columbus Bar Association Golf Outing • 10am @ Golf Club of Dublin This year, golf will be followed by a happy hour sponsored by Buckeye Vodka, complete with entertainment by The Klatt Brothers Band. Look forward to new contests, prizes and fun - it’s certain to be an exciting and entertaining day filled with laughs! And, if you have a little too much fun, we’ll even provide a free Uber ride home. Tickets available at www.cbalaw.org or contact Donna Sweet at donna@cbalaw.org or (614) 340-2062.
Telecommunications 101 • 3-5pm @ the CBA From the railroad to the switchboard to today’s wireless devices, communications technology has an impact on law and public policy. Learn about the history of these inventions, plus current issues including state regulation, net neutrality, and privacy and security considerations. Register at www.cbalaw.org. 2.0 CLE Hours.
33 | Columbus Bar L aw yers Quarterly Summer 2019
Summer ‘19: Lawyer Mental & Physical Well-Being
PRACTICE: Yoga and the Law BY ASHLEY L. JOHNS
Practice “builds on itself, just as a ball rolling downhill picks up momentum; the more we practice, the more we want to practice, and the faster we will reach our destination.”i This idiom holds true for both the practice of yoga and the practice of law, which have, in recent years, begun to collide. In response to the ever-growing number of law students and lawyers who suffer from chronic stress, depression and substance abuse, the American Bar Association conceptualized and initiated the National Task Force on Lawyer Well-Being. The research conducted by this task
force suggest “that the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on public trust.”ii Among the solutions proposed was a practice of mindfulness, meditation and physical activity to support well-being.iii The practice of yoga offers each of these proposed solutions to its practitioners, providing a valuable resource to assist attorneys in their practice of law. On the opposite side of the spectrum, yoga has seen a great increase in the number of practitioners, teachers and studios throughout the nation. With this growth has come numerous legal complexities. In the past decade, there has been a marked uptick in the number of lawsuits related to the practice of yoga, including negligence, copyright infringement,
34 | Columbus Bar L aw yers Quarterly Summer 2019
sexual harassment, violation of religious freedom and contract violations related to the intricacies of being an Instagram yoga personality (yes, to every lawyer who just scoffed, that is a profession for which people are paid). In these circumstances, the practice of law has provided valuable resources to the practice of yoga. As a lawyer and certified yoga instructor, I have been able to observe firsthand, the benefits a yoga practice can have in the practice of law. Imagine for a moment, how your day-to-day experience would change if every attorney and judge thought before reacting and had enhanced decision-making ability. While yoga isn’t offering such a utopia, what it does offer is a practice that will remind you to breathe in times of stress, to think before you react, to consider alternative perspectives and to disengage from your rigorous legal practice so that you can reengage refreshed. Yoga takes the pressure away from being the “best” and instead has you focus on the best version of yourself.
What happens when we work together?
Central Ohio is healthier.
To assist your clients in fulfilling their charitable interest in health and wellness through the CMA Foundation, please contact: Weldon E. Milbourne 614.240.7420 wmilbourne@cmafohio.org
Benefits of Yoga Practice Yoga at its core can be broken down into four distinct features: sustained physical postures, meditation, breath control and ethics. Yoga itself claims to be a science, using proven methodology to obtain a predictable result. Unlike most physical disciplines however, yoga focuses on practice rather than perfection.iv The ongoing self-improvement of establishing a breath to movement connection and therefore cultivating mindfulness in movement distinguishes yoga from other forms of physical
exercise. The simple act of learning something new engages the brain in ways that are absent from a wellestablished legal practice and promises mindfulness. “Mindfulness” is not only this decade’s trendy term, but also a concept that can enhance your ability to more effectively manage your legal practice. Mindfulness is “paying attention in a particular way: on purpose, in the present moment, and nonjudgmentally. This kind of attention nurtures greater awareness, clarity, and acceptance of present-moment reality.”v
The idea of adding yet another task to a lawyer’s already overloaded “to do” list can initially seem daunting; however, the benefits can lead to a more efficient legal practice. 35 | Columbus Bar L aw yers Quarterly Summer 2019
Numerous studies have been conducted assessing the neurobiological impacts of yoga and mindfulness on mental health. These studies have concluded that the practice of yoga and, more specifically, the mindfulness component of yoga have a positive impact on both the high- and low-level brain networks— improving symptoms of depression, anxiety and post-traumatic stress disorder while increasing response inhibition, attention control, and decision making.vi The idea of adding yet another task to a lawyer’s already overloaded “to do” list can initially seem daunting; however, the benefits can lead to a more efficient legal practice. Mindfulness techniques practiced during yoga engages the mind in a unique way creating synapses between focus, release and results. This alteration in the mindset of a lawyer promotes a more efficient workstyle and a more regulated temperament. The overall reduction of stress also leads to an improved ability to focus. Perhaps yoga does offer utopia after all - at least in the office.
The Intersection of Yoga and Law The practice of yoga is used by many as a technique to reduce the stress of demanding jobs, but sometimes yoga becomes the stressful job requiring escape, or at least, legal assistance. Lawsuits surrounding the practice of yoga are on the incline and range from the copyright of yoga sequences to the implications of social media posts on contractually acquired media content. In 2015, the United States Court of Appeals for the Ninth Circuit was faced with the question of whether a specific sequence of yoga poses known as “Bikram Yoga” was subject to copyright.vii After delving into the background of this particular sequence, the court determined that the sequence could not be copyrighted anymore than the motions required to churn butter or drill oil could be copyrighted. Rather than classifying yoga as a “choreographic work” the Court found that the sequence of postures and accompanying
36 | Columbus Bar L aw yers Quarterly Summer 2019
breath work was merely an idea or system of bodily movement that serves a basic functional purpose to improve health. The expression of that idea in words and pictures was copyrighted, but that copyright did not extend to the movements themselves.viii That was not Bikram Yoga’s last foray into the legal system. In 2017, an arrest warrant was issued for the founder of Bikram Yoga, Bikram Choudhury, after numerous allegations of sexual harassment. From approximately 2015 to 2017 there were numerous sexual harassment lawsuits filed against the Bikram Yoga founder, including a claim from Choudhury’s former lawyer, who was sexually harassed by Choudhury and fired after investigating claims by a student that he had raped her. His former attorney was awarded a judgment of $6.8 million.ix Choudhury currently has judgments of approximately $17 million against him, an arrest warrant issued for his failure to pay judgments, his corporation has filed for bankruptcy and he continues to teach yoga abroad.x Social media influencers and yoga personalities, Dana Falsetti and Kino MacGregor, found themselves squarely in the middle of a legal battle with Cody, an online yoga class platform, and Alo, a yoga brand that acquired Cody. Upon its acquisition of Cody in 2017, Alo now owned online videos of Falsetti and MacGregor, who requested their videos be removed from the site due to an inability to align their beliefs with the brand which would in turn harm their brands and reputations. This tale took a sharp turn when Falsetti took to social media, prematurely publicly acknowledging the relationship between Cody and Alo in violation of a confidentiality clause.xi While this lawsuit was settled out of Court, it is an acute demonstration of the numerous legal implications in the yoga community. The yoga community has also seen lawsuits filed alleging negligence, personal injury, violation of religious freedoms and even Dennis Rodman’s alleged theft of a 500-pound crystal from a yoga studio. It appears that the intersection of the practice of yoga and the practice of law has just begun. And as the scientific
research continues to reveal benefits to yoga and mindfulness, particularly for high-stress professions, consider integrating yoga and mindfulness practices into your daily routine. Perhaps one day the legal profession will see every lawyer and judge mindfully pausing before reacting. “[T]he more we practice, the more we want to practice, and the faster we will reach our destination.”xii i
Ronsen, Richard.
ii
Report from the National Task Force on Lawyer Well-Being, ABA Commission on Lawyer Assistance Programs. November 9, 2018. iii
Id.
iv
Saraswati, Swami Nirmalandana. Yoga, Sweat, and Mysticism. Yoga Alliance.
v
Kabat-Zinn, Dr. Jon. Wherever You Go, There You Are: Mindfulness Meditation in Everyday Life. Hyperion. 2005. vi
Potential self-regulatory mechanisms of yoga for psychological health. Tim Gard, Jessica J. Noggle, Crystal L. Park, David R. Vago and Angela Wilson. Front. Hum. Neuroscience. September 30, 2014. vii
Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1034.
viii
Id.
ix
Schmidt, Samantha. Arrest warrant issued for Bikram Choudhury, the hot-yoga guru accused of sexual harassment. Washington Post. May 26, 2017. x
Fagan, Katie. Bikram yoga’s moral dilemma. ESPN. November 9, 2018. espnW.com.
xi
Magner, Erin. Inside the Intense Legal Battle That’s Dividing the Yoga World. Well Good. April 13, 2018. xii
Ronsen, Richard.
Ashley L. Johns, Esq.
Ashley L. Johns Law ashley@ajohnslaw.com
37 | Columbus Bar L aw yers Quarterly Summer 2019
Summer ‘19: Lawyer Mental & Physical Well-Being
We Are Not
ALONE by BOBBIE O’KEEFE
Those of us in the legal profession who have been diagnosed with mental health and/or substance abuse problems may feel like we are very alone, but the reality is that we are not. I invite you to do an online search for the American Bar Association’s “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.” In 2016, the ABA and Hazelden Betty Ford Foundation published a study of approximately 13,000 lawyers and found that “between 21 and 36 percent qualify as problem drinkers, and that approximately 28 percent, 19 percent, and 23 percent are struggling with some level of depression, anxiety, and stress, respectively.” Most certainly, if you’ve been practicing for any length of time at all you have heard of or maybe even know lawyers who have committed suicide, received ethics complaints and even been disbarred as a result of conduct stemming from untreated mental health or substance abuse problems.
We are not alone, yet we often struggle alone. The internal and external stigma faced by lawyers who are affected by these problems is fierce. In 2018, I had the good fortune of being involved with Sam Peppers (immediate past president of the CBA) and the CBA in starting the Task Force on Lawyer Mental & Physical Well-Being. This has been a rewarding and important project for me, as mental health and substance abuse issues have intimately touched my life and the lives of my family and many friends. I firmly believe that the only way to heal, and overcome the stigma we all face and the rejection we fear, is to make ourselves known to each other. This is not a comfortable thing for us to do, especially for those like me whose comfort zone is under the radar. We all have our stories, but the details of our stories are not as important as the fact that, despite any diagnoses we may have now or have had in the past, many of us are fully functioning members of our practice and
Lawyering is not an easy job, and whether you brought your problems with you into the profession, or your problems surfaced after you joined the profession, you are definitely not alone. 38 | Columbus Bar L aw yers Quarterly Summer 2019
communities. We are not alone. There are thousands more of us who practice law, in Columbus, in Ohio, in the country and in the world. Hiding ourselves is not helpful – to ourselves or our colleagues. Yet it’s what we do, because the attitude toward those who grapple with substance abuse, addiction and mental illness has historically been so negative that some of us would rather kill ourselves than let others know we suffer. The time is ripe for us to take center stage and proclaim that we have diseases that do not originate in weak personalities or bad behaviors. Certainly, I’m not suggesting that people with addiction and/or mental health problems wear their diseases on their shirtsleeves, any more than people with diabetes, heart disease, cancer or any other disease would do the same. What I AM suggesting, however, is that we shouldn’t have to turn our lives upside down to keep our diseases a secret, thereby making them far worse than they already are.
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In the end, here’s my point: Lawyering is not an easy job, and whether you brought your problems with you into the profession, or your problems surfaced after you joined the profession, you are definitely not alone. At its very core, that is what the Task Force on Lawyer Mental and Physical Well Being is all about. We hope you will join us. Let’s reach out and help our colleagues feel supported to share and get help.
Bobbie Corley O’Keefe, Esq.
O’Keefe Family Law
I truly believe that lawyering is one of the most valuable of the helping professions. What an honor to be able to serve our clients through so many of life’s problems. Let’s make an effort to do the same for each other.
39 | Columbus Bar L aw yers Quarterly Summer 2019
Summer ‘19: Lawyer Mental & Physical Well-Being
Self-Compassion
Wins the Race by PAT SNYDER
I’ve often heard long-time practitioners comment that the practice of law is not a sprint but a marathon. And the American Bar Association has singled out two factors also critical to marathon running – grit and growth mindseti – as key to reaching long-term success in this profession.
Turns out the answer is no. Although self-criticism and perfectionism may look like the road to selfimprovement, they can actually have the opposite effect.
So, it should have come as no surprise that the marathon runners in a group of lawyers I recently addressed immediately “got” the idea that selfcompassion could make them better lawyers. It’s an important resiliency tool in running.
In law, self-compassion can build the grit and growth mindset because it is easier to persevere when every misstep does not entail a painful self-beating, and easier to grow when we stay in the game and keep learning.
At first blush, the notion of self-compassion seems counter-intuitive in both endeavors. Don’t runners “just do it” till their feet have blisters? Don’t lawyers get better by beating themselves up?
In running, where a top-performing body and long-term future performance are key, short-term temptations such as unhealthy food, alcohol and knee-jerk negative self-talk get in the way. Instead, the runner benefits from behaving consistent with the long-term vision.
Lawyers, already pros at finding out what went wrong and what could go wrong, can be easily derailed by a misstep. It’s no surprise that of all the positive psychology exercises I’ve prescribed for lawyers, the most popular has been the “letter to yourself,” adapted from an exercise
40 | Columbus Bar L aw yers Quarterly Summer 2019
developed by leading self-compassion researcher Kristin Neff, Ph.D., from the University of Texas. In it, lawyers write to themselves as a friend, mentor or loved one would write to them about some error or omission. Sometimes, I suggest they write as though they were writing to a good friend who had made a mistake. What’s produced is inevitably a gentler letter, sans name-calling, than all the self-talk they’ve been dishing out. Generally, they notice immediately that they treat themselves worse than their worst enemies. In a workshop setting, there’s often a collective sigh of I thought it was just me relief as those who normally beat themselves up in silence share their stories. The hope of this exercise is that with practice, selfcompassion will eventually become a more natural response. So, what does the concept entail? In Neff’s world, self-compassion has three elements: self-kindness, a feeling of connection with others, and what she calls mindfulness or “balanced awareness” of the degree of pain we’re experiencing. In other words, to experience real self-compassion, we must not only be kind to
ourselves but must also realize that all of us are in this together, all sharing triumphs and missteps, and adopt a reasonable view of our own performance. She believes that self-compassion, which is rooted in internal acceptance, escapes the stress-producing downside of self-esteem, which is routed in external approval and competition. As she wrote in a 2011 article for Greater Good Magazine, self-compassion “offers the same protection against harsh self-criticism as self-esteem, but without the need to see ourselves as perfect or as better than others.” Other researchers and commentators have suggested ways in which self-compassion can specifically benefit women lawyers. In a lead article in Women Lawyers Journal in 2016, attorney Kate Mayer Mangan opined that selfcompassion and reduced fear of failure might increase risktaking that women lawyers often find difficult, make them generally more resilient in a gender-challenging work environment and provide a buffer against stress and depression. So important might be the effects, she said, that self-compassion could be a key to “stopping the leaky pipeline” of women out of the legal profession.
In law, self-compassion can build the grit and growth mindset because it is easier to persevere when every misstep does not entail a painful self-beating, and easier to grow when we stay in the game and keep learning. 41 | Columbus Bar L aw yers Quarterly Summer 2019
Neff’s research seems to bear out the salutary effects of self-compassion in a law practice environment. For example, she reported a study in which participants were asked to imagine their feelings in a potentially embarrassing situation, in which they had performed poorly as part of a team – the sort of scenario that might come up in working on a case. Those scoring high in self-compassion were able to take it in stride and not too personally, looking instead at the big picture. Those who depended more on external approval for their esteem, however, were devastated, feeling like losers. Similarly, in a different study, half the participants received neutral feedback about a video performance and the rest received positive feedback. The selfcompassion participants were unperturbed by the feedback, no matter which kind they received, while the participants with high levels of self-esteem were disturbed by receiving only neutral feedback. In a law office environment, where feedback can be sporadic or non-existent, those who depend on positive external feedback to feel good about themselves can feel lost. The most common objection I’ve encountered in crusading for more self-compassion is that lawyers who accept their fallibilities will turn soft and stop striving to become better and better. One senior partner rebuffed the idea of having a self-compassion workshop at his firm on the grounds that the millennials there were already “too entitled” and he didn’t want to give them a pass on working hard. Again, though, the research shows that a bigger dose of self-compassion is likely to produce more – not less – of what he wants. A 2011 study by UC Berkley researchers Juliana G. Breines and Serena Chen suggests that selfcompassion after personal failure may make people more motivated to improve themselves. Another of Neff’s studies probed what motivates selfcompassionate individuals and found that it was not a desire to bolster one’s self-image but simply to maximize one’s potential and well-being. The development of selfcompassion in a law firm culture might go a long way
to foster better lawyering as well as better relationships among colleagues less desperate for self-promotion. For the curious, Neff has developed both a scale and an online test to measure self-compassion levels, along with a toolkitii for developing a greater capacity for selfcompassion. After the starting pistol fires and you hit the wall, a kind letter to yourself might be just the thing to keep you in the race. Pat Snyder, JD, MAPP, ACC coaches attorneys toward self-compassion and other aspects of flourishing through her coaching firm I Can Fly, LLC. You can find her online at https://lawyercoachpatsnyder.com. i
Grit is a research-based concept developed and popularized by University of Pennsylvania psychology professor Angela Duckworth, PhD. Growth mindset is the notion developed by Stanford researcher Carol S. Dweck, PhD, that brains and talent are just the starting point and that real growth and improvement come from dedication and hard work. ii
https://self-compassion.org
Pat Snyder, ACC
I Can Fly, LLC pat@lawyercoachpatsnyder.com
42 | Columbus Bar L aw yers Quarterly Summer 2019
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43 | Columbus Bar L aw yers Quarterly Summer 2019
Summer ‘19: Lawyer Mental & Physical Well-Being
My Sister’s
Keeper
by HANNAH BOTKIN-DOTY
I have been a law student and an attorney for close to a decade. During my life in the legal profession, I have experienced and been witness to many of our fellow legal minds stumbling and shorting out because of the relentless pressure, stress and crumbling social connections.
This is not to say
So many of us are struggling to find peace and confidence in a world that seems almost designed to make us feel unworthy, unqualified and unprepared. This is true especially for young women.
or our emotions in check. Men can yell and rail and point
Our clients question our abilities based on our age, opposing counsel make snide comments about our appearance or lack of belonging in the upper echelons of the legal profession, and even the bench both literally and figuratively looks down on us and makes us jump through hoops to meet their expectations.
that young men in the profession have it easier, but they do not need to overcome the innate patriarchal bent that the legal system has. Whether it be the clothes on your back or the expectations for your appearance, the female attorney carries the weight of more than just her legal arguments. Too often, we are asked to keep our insecurities silent, fingers across the courtroom, but if a woman were to do the same, she would be playing into the stereotypes that are inflicted upon us. A woman should not disclose that she is perpetually afraid of malpractice, or the quiet belief that she is unworthy (look up imposter syndrome); instead, she must take all barbs and backhanded compliments with grace and sincere appreciation or be labeled a pariah or worse.
I believe that through mentorship, vulnerability and a willingness to share shortcomings we as women attorneys can elevate and edify the other women in our profession who are just coming into their own. 44 | Columbus Bar L aw yers Quarterly Summer 2019
As an almost 30-year-old who has overcome some of these struggles and still contends with many more, I have seen and experienced firsthand the obstacles that are put in a young female attorney’s path. I have suffered from crippling anxiety, exhaustion, burn out and depression, all while trying to put on a face of total calm and confidence for the benefit of my client or the court. It is only recently that I have begun to give myself permission to stand my ground, to react in tone and in kind to a barb from opposing counsel. I have begun to stand up for myself and value my voice for the simple reason that it is my own. I believe that through mentorship, vulnerability and a willingness to share shortcomings we as women attorneys can elevate and edify the other women in our profession who are just coming into their own. It is our responsibility to give them hope and guidance, to show them that if they work hard and keep their integrity, no weapon formed against them shall prosper. It is imperative that experienced and empowered attorneys reach out to the younger generation. I have done this through the Women Lawyers of Franklin County Dining Circles,
and through the Women Law Association Mentorship Program at Capital University Law School. These organizations make it easy for me to take a lunch or a happy hour to connect with my own mentors and peers, as well as meet law students and young attorneys that I can build relationships with. Often, when I meet a young lawyer or law student, I spend our conversation talking about them and their hopes and dreams, all the while thinking about how I can help her achieve them. Often, if they harbor an interest in the types of law that I practice, I will invite her to shadow me either at my office or, more often, at Court. This gives me an opportunity not only to introduce them to the reality of the practice of law (continuance, anyone?) but also to magistrates, bailiffs, judges and others who they may be working with. Finally, it also gives me confidence and a boost of energy, because not only am I gaining valuable perspective through fresh eyes, I am also being put in the role of an educator, which allows me to confirm for myself the simple truth that I actually do know what I am talking about.
45 | Columbus Bar L aw yers Quarterly Summer 2019
If you are a seasoned attorney who is looking to reconnect and doesn’t know how, start where you are. The Supreme Court of Ohio’s Mentorship program gives you 12 hours of CLE credit for your participation. Any of the Bar associations have committees you can join, or happy hours you can attend to network with the younger generation. Or, easiest of all, start within your own firm or organization and foster relationships with the young men and women in your everyday life. You will gain so much, trust me. If you are a young attorney still looking for your way, don’t lose hope. When I opened my own practice the day after I was sworn in, I would often ask myself “What would a lawyer do/ say/look like, etc.” I did this for a while until I finally said: “No, I am a lawyer. What am I going to do?” Your confidence will come, the seemingly intentionally confusing and unspoken rules of the legal profession will become second nature, and even that patronizing opposing counsel will come to respect you if you just keep showing up. That’s essentially the key. You will make mistakes. You will lose a case. You will fail. But failure and struggle are just success in progress. Your tenacity
and perseverance and, most importantly, kindness to the bailiffs, clerks, paralegals, security guards, peers and clients will get you through the tough patches. Finally, you are not just a lawyer. You are much more than that. You are a complex and complicated human being who needs to be kind to yourself. Lawyers and law students have a very unhealthy relationship with stress and obstacles. We tend to think of ourselves as conquerors who shouldn’t let anything stand in our way. And why not? We have always been talented, the top of our classes and mature beyond our years. But the realities and responsibilities of other people’s problems will weigh on you and will bleed into the other parts of your personality if you do not create healthy boundaries and coping mechanisms now. There is a reason that attorneys are twice as likely as the general public to develop a drug or alcohol dependency problem.i People depend on us for answers and action and advocacy, and with attorney-client confidentiality, it’s not as if we can go home and tell our spouse or
46 | Columbus Bar L aw yers Quarterly Summer 2019
partner how our day was! We bury emotions, we build walls, we lose empathy and sometimes stiff drinks or recreational drugs can become a reliable way to turn off our brains and shut out the world. Of course, being the intelligent and perceptive beings that we are, we know it is not a solution. But being as stressed out and exhausted as we are, we also don’t necessarily care in that moment of desperation. You must find a positive outlet. You must consider talking to your doctor or therapist about the issues that you are facing. Because here is the truth: you are not alone. Your reaction to the daily emotional assault that your profession puts on you is not a failing. The best way to start is to look back at who you were and how you created joy in your life before you went to college or law school. What were your interests and hobbies? Who were your closest friends? Seeking out and pouring energy into those aspects of yourself will only make you a happier person and, in turn, a better lawyer. Think of it this way: if you needed surgery would you rather have the surgeon who has been pulling double shifts and working tirelessly, or would you rather have the one that went home the night before and got a good night’s sleep? We are not surgeons; we are not saving lives. Most of the work that we do, although essential, is often not an emergency. Doesn’t it follow that you too deserve peace, rest and
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https://www.seakexperts.com/members/11680-luis-l-perez recoupment? You cannot drink from an empty cup, and you will not bring your best to your clients or their case if you are burnt out from a lack of self-care. I say all of this because I have walked these paths and had these struggles. Most of this advice I could have used myself long ago. But the point is that I still turned out OK, and I have more to give and more to share as a result of my journey
to self-acceptance and strength. We as women and attorneys have the ability to support and love one another through struggle and into success. Surround yourself with positive and empowered women and you too will learn from their example, and, once you have, turn around and do the same for another. We are all in this together. i
The Current Rates of Substance Use, Depression and Anxiety within the Legal Profession: A Review of the Results of the ABA/Hazelden-Betty Ford Foundation Collaborative Research Project Linda Albert, LCSW, CSAC Patrick R. Krill, JD, LLM, MA, LADC
Hannah Botkin-Doty, Esq.
Artz, Dewhirst and Wheeler, LLP. hlbotkindoty@adwllp.com
47 | Columbus Bar L aw yers Quarterly Summer 2019
Summer ‘19: Lawyer Mental & Physical Well-Being
HORSES:
Exercising Them and Us at the Same Time by JANYCE C. KATZ
It is said that the outside of a horse is good for the inside of a person. But, is the person good for the horse? Finally, people have begun to realize that the legal profession can cause high stress levels for many of us. We spend multiple hours each day trying to not only make our work product result in a win for our clients but also please our bosses and supervisors in the process. The Columbus Bar Association,i the American Bar Association and other organizations are looking into ways to improve the substance use and mental health landscape of the legal profession. Firms like Kirkland & Ellis have hired directors of well-being to try to help their attorneys better control stress and reduce their chances of becoming addicted to any substance.
This stress on lawyers comes in part from the tightening job market, in part from the big business aspects of practice that have permeated into even governmental agencies, the debt incurred by so many students wanting a legal or just a college education, the increasing cost of living a middle class or upper middleclass life with high paying salaries making some afraid of losing jobs, or other legal positions with salaries not sufficient to pay off debt and cover living expenses. The quality of the work product, of course, must be superior, especially in a very tight job market, and attempts to please bosses as well as pull together a winning case can be very stressful.
Contributing to stress, most of us have had encounters with rear ends of horses at one point or another in our life and/or in our careers. While dealing with the rear end of a horse can be quite difficult, especially in the work environment, I would suggest that there is something extremely healthy and relaxing about being around the entire horse. I speak out of personal knowledge, because for years riding them as they jumped fences was my preferred spare time activity. I found every aspect of the sport highly relaxing, from grooming the horse to feeling part of the wind and the horse as the horse took off the ground, its hooves
For anyone considering riding as exercise and a positive distraction from work, just a few lessons can help you better understand safety issues and basic control of a very large and very powerful animal. 48 | Columbus Bar L aw yers Quarterly Summer 2019
tucked neatly under its belly, flying over a three-and-a-half-foot log. And, I found that my intense hours of riding horses not only improved my mood, but also strengthened my leg muscles, improved my posture and took weight off of select areas used for sitting. Unfortunately, at some point, the increased cost of horse care, training, riding and the decreased time to spend not only on the riding and the grooming but also the transportation to and from stables ended the majority of my dealings with the entire horse. Except for, of course, watching them occasionally at places like Wellington, Florida where for multiple glorious weeks, horses and riders from all over the world compete in hunting, jumping and
dressage classes, with nearby polo to add to the mix. But, I still love the animal and hope to one day have time to take up riding again. Maybe, it will be a gentle, almost retired horse instead of a jumper this next time, but I will be involved with the whole horse again. Seriously, let’s not horse around and underestimate the very important role the horse played in society for many years. However, given the limited space for this article, we do need to reign in the discussion a bit. Let’s just take the bit and run with it. See, horse language pervades daily life. Our familiarity with horses may be minimum. Perhaps a ride in a carriage in New York’s Central Park or
fond memories of the pony ride at an amusement park during childhood or just watching an old cowboy movie or the Kentucky Derby constitute the entire experience some of us have had with horses. But, before automobiles, horses played a major role in our economy. They were transporters of people and cargo. They pulled farm plows as did the slower but sturdier, less expensive and easier to care for ox. Horses were used in battles and many died along with their rider soldiers. Then and now horses were raced and, while some of the best runners lived out their lives in pastures producing other horses, many ended up as animal food or even people food. And, from the time horses were domesticated, people have been riding them to transport themselves someplace or just for fun.
49 | Columbus Bar L aw yers Quarterly Summer 2019
Because our goal in this issue is to encourage exercise and other healthy activity, not sitting and watching a bunch of horses run around a track while we cheer our favorite and bet on one or more of the horses, we will not discuss horse racing (Chapter 3769 of the Revised Code). But, Ohio Administrative Code 3769-1-14, which amplifies the racing statute, does give us a useful definition of “horse” as including “stallion, colt, gelding, ridglingii, filly or mare.” A much broader definition of “equine” can be found in Ohio Revised Code 2305.231(A)(1). Under this Ohio law that denies liability for certain equine-related activities, the definition of “equine” includes “horse” along with a pony, mule, donkey, hinny, zebra, zebra hybrid or alpaca. Under this statute, if you are controlling or recreationally riding your alpaca or your horse, stabling it or transporting it, and the alpaca or horse goes wild, kicking a nearby spectator, you may not have liability.iii You improve your chances of avoiding liability if you are an equine activity sponsor, equine activity participant, equine professional, veterinarian, farrier or other person with a written waver describing the activity in which you are participating.iv It is worth noting that for purposes of the equine liability law, horse or mule racing is excluded from the definition of “equine activity.”v As a child, I thought I could ride any horse without lessons. As a six year old, I, along with our neighborhood gang, went to a horse show where we met Zorro and his horse. I will admit to walking around the stalls, hoping that someone would let me ride their horse in the show. It didn’t happen, luckily for me, although I will admit that even the hug from Zorro and the chance to pet the black
horse he rode didn’t override my disappointmentvi. Only years later did I learn how many hours of riding and how much instruction is necessary to become a decent rider. For anyone considering riding as exercise and a positive distraction from work, just a few lessons can help you better understand safety issues and basic control of a very large and very powerful animal. Usually, stables use very well-schooled horses to help beginning students learn riding. As there is always a chance of falling off the horse or being in the wrong place when a horse kicks, most stables will have you sign a liability waver before letting you get near a horse. Do make sure that you have someone who is training you. Some people confuse a horse trainer with a teacher of riding. The trainer of horses may not be a good teacher for beginning riders. When you are a decent rider and understand how to read horses’ minds, have a strong seat and good hand-feel of the horse’s mouth, riding a horse that is being trained and working with the trainer to improve the horse’s performance can be fun and very interesting at the same time. Some of us have not only the time but the financial resources to own and care for our own personal horse, either to ride ourselves, to race or to use to work in some capacity or another. Obtaining a horse should involve a purchase or a lease, not just a handshake agreement. Kentucky, Florida and California have enacted laws that apply to sales of horses over $10,000 and require a “Bill of Sale” signed by both buyer and seller that states the purchase price of the horse; strictly prohibit “dual agency” (unless written consent is obtained from the principal) and other undisclosed conflicts of interest; and include certain other requirements relating to documentation and disclosures.
50 | Columbus Bar L aw yers Quarterly Summer 2019
It is common sense for any horse purchase or lease to be documented in written form even if there is no law requiring it. There are issues like the identity of the horse, the purchase price, its health, its method of delivery, who bears the loss if the horse has a heart attack while being delivered, etc. And, not every horse trader is honest, so that written document could provide protection against fraud. Plus, if the cost of the horse (or of anything else) is over $500, it falls under the UCC, which has codified the common law rule, the “Statute of Frauds,” and requires a signed, written contract that includes certain minimum information, including the purchase price, to be enforceable. The seller of the horse would be a “merchant” so the horse has certain “implied warranties” (§2-314) such as “fitness for an intended use” and “merchantability” unless they are expressly excluded or modified. An implied warranty for “fitness for an intended use” might be that the horse sold to jump fences is trained to do just that. Express warranties such as whether and where the horse showed, its pedigree, its health, etc. should be described in the contract. Again, handshake agreements, although common, are not a good idea.
After being purchased, the horse has to have a place to live, a stall, a barn and has to be fed and cared for. Most neighborhoods will not allow horses in the backyard, except perhaps a miniature horse used as a service animal under American with Disabilities Act (ADA).vii Some of us have the acreage to keep a horse on our property, but we need to also remember that horse care takes time, as they need to eat and have their stalls and the horse itself be cleaned every day if you want to keep them healthy. Some of us can afford staff to take care of the horse on our property (and also to take care of our house and our meals). Most of us don’t have that luxury. So, we need to board our horse someplace where the horse will get either full or partial care. Some facilities do everything: groom the horse, feed the horse and, when you call up and say that you are coming, have the horse saddled and ready to go. Other facilities only do part of that and leave the rest to you. Some facilities come with indoor and outdoor riding rings, others do not. But, again, having a written agreement clearly stating what care your horse is to get and what you are to pay is a very wise protection for both horse owner and stable owner.
51 | Columbus Bar L aw yers Quarterly Summer 2019
Ohio law clearly states that there is a lien on the horse (or any other animal being boarded).viii Should you fail to pay, the barn owner could possibly sell your animal to recoup costs.ix Insuring the horse is also a good idea and helps to protect your investment. An owner or a non-owner user of horses should consider insurance for mortality and theft, for equine medical and equine surgical care and for loss of use. These kinds of insurance policies assume that your horse is property with a certain value that should be protected. Also useful is liability insurance, just in case something happens that is not covered under R.C. 2305.231. As to the horse, treatment of horses currently and historically has ranged from good to abysmal. Annie Sewell in her classic book, Black Beauty, first published five months before her death in 1877, had a horse
describe its life as an attempt to create more interest in horse welfare and to stop some of the most abusive practices of the time. One cruelty Sewell tried to stop, cutting horse’s tails, is addressed in R.C. 959.14, which attempts to prevent cruelty to all domestic animals. But, unfortunately, neglect and abuse are rampant in the horse world even with some laws like R.C. 959.14. For example, in the Cincinnati area in 2014, horse owner Larry Browning was cited for 49 counts of not disposing of an animal carcass, plus 15 counts of animal cruelty.x The horses found on his property had almost nothing to eat and some skeletons of horses were found with halters on them. Then, there are drugs and chemicals inserted into horses’ legs, like the practice called “soring,” to make them show
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or run better; the pain inflicted on them by the insertions makes them lift their legs higher.xi Also wellknown are steroid shots in knees to cover pain and to allow the horse to perform. Too often, when a slight fracture has been causing pain to the horse, the steroid covers the pain so the horse runs and its leg breaks off, throwing the rider and, essentially, ending the life of the horse, a problem unfortunately common on the race track.xii I should also add that these magnificent creatures can end their lives crammed into a vehicle taking them to a slaughterhouse in Mexico or elsewhere for a very uncomfortable death. So, while the outside of the horse may be good for the inside of a person, the horse may be getting a raw deal out of the relationship. Happy trails to you, horse lovers, and we will meet again.
Janyce C. Katz, Esq.
General Innovations and Goods, Inc. janyce.c.katz@gmail.com
i
Because most of us have spent countless hours sitting at our desks, researching issues on our computers and trying to build winning cases sometimes out of losing facts, we, the editorial board, decided that in this issue we would feature articles that would put a legal twist on ways to improve health. We wanted to expose attorneys and others to something more than the typical exercise of lifting of food to mouth while reading important case law that is the only daily exercise of too many of us these days. We hope that our magazine and other CBA efforts will encourage all to embrace a healthier life-style. ii The male horse’s testicle fails to descend at puberty and different standards for purposes of racing may or may not apply. iii See e.g. Smith v. Landfair, 135 Ohio St.3d 89 (2012). “[A}n equine activity participant or the personal representative of an equine activity participant does not have a claim or cause of action upon which a recovery of damages may be based against, and may not recover damages in a tort or other civil action against, an equine activity sponsor, another equine activity participant, an equine professional, a veterinarian, a farrier, or another person for harm that the equine activity participant allegedly sustained during an equine activity and that resulted from an inherent risk of an equine activity.” R.C. 2305.231(B) (1).
iv
R.C. 2305.231(C) R.C. 2305.231(A)(2)(b) vi One “older” friend aged seven, Charley Fisher, was so excited to have shaken the hand of Zorro that he refused to wash the hand or himself for a week. His father finally dragged him into the shower. My sister was also hugged and she forgot the whole incident shortly thereafter. vii The ADA rule ca be found in 28 CFR 136 and the definition of service animal that includes miniature horse is found in 28 CFR See e.g. Anderson v. City of Blue Ash District Court Case No. Case No. 1:14-cv-151 settled that disabled girl kept horse and family had to have service cleaning up after horse. https://www.casemine.com/judgement/ us/5914faeeadd7b049349aac7 viii R.C. 1311.48 ix R.C. 1311.49 x https://www.cincinnati.com/story/ news/2014/04/07/horses-found-dead-on-pendletoncounty-property/7441131/ v
xi
https://www.thedodo.com/horse-soring-abuseundercover-tennessee-1316484085.html
xii
Andrew Cohen, “The Ugly Truth about Horse Racing” Atlantic Magazine, March 24, 2014 https://www. theatlantic.com/entertainment/archive/2014/03/theugly-truth-about-horse-racing/284594/
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Summer ‘19: Lawyer Mental & Physical Well-Being
Are You a Lawyer Who Helps
Other Lawyers? BY scott r. mote, Esq.
When asked why you became a lawyer, a common response is “I want to help people.” And we do just that. We help people get their homes back, we help them resolve disputes, get child support and find justice, among many other things. But, what about helping people in our own profession? To be a good lawyer, one has to be a healthy lawyer. A recent study of more than 13,000 lawyers—The Path to Lawyer Well-Being: Practical Recommendations For Positive Change—found that 17 percent of practicing lawyers experienced some level of depression, 14 percent experienced severe anxiety, 23 percent had mild or moderate anxiety, and six percent reported serious suicidal thoughts in the past year. The same study concluded that “40% to 70% of disciplinary proceedings and malpractice claims against lawyers involve substance use or depression, and often both.”
them. Helping our colleagues in distress will help maintain public confidence in the profession and reduce stigma attached to mental health and substance use disorders.
cocaine, opiates, nicotine, prescription medications, etc.) to cope with life stresses. An SUD can lead to problems at work and at home and eventually result in addiction.
Common mental disorders
Depression
Substance use disorder A substance use disorder, or SUD, occurs when a person abuses alcohol and/or drugs (marijuana,
We hear these words, such as depression, substance use disorder, anxiety, PTSD and OCD, but do we understand their meanings? If more lawyers become familiar with some of the common ailments that plague some of those in the legal profession, we can do a better job of helping 54 | Columbus Bar L aw yers Quarterly Summer 2019
Depression is different than sadness or grief. It is not something that you can just “snap out of.” It is an illness, lasting more than two weeks, that negatively affects the way you feel and the way you function.
A major symptom of depression is a loss of interest in the things you enjoy. Other symptoms include:
can be easily startled, have difficulty sleeping, have angry outbursts and/or negative and distortive thoughts.
• • • • •
Bipolar disorder
Frequent absences Inappropriate behavior, moods Decreasing quality of performance Inappropriate pleadings, decisions Co-workers and staff “gossip” about changes in behavior • Malpractice and disciplinary claims • Missed hearings, appointments, depositions • Loss of clients, practice, respect
Anxiety Anxiety disorder, the most common mental illness, affects 37 percent of lawyers. Anxiety is when you become tense in anticipation of a future event. Anxiety also makes a person avoid certain events because of fear. You have probably heard of anxiety attacks, where a person is so worried about an event that it causes the person to sweat, shake uncontrollably and fear losing control. Other common symptoms of anxiety include excessive worrying, agitation, restlessness, trouble falling or staying asleep and avoiding social situations.
Post-traumatic stress disorder Post-traumatic stress disorder occurs in some people who have witnessed a terrifying or shocking event. The person may have flashbacks, bad dreams or terrible thoughts, which prevent the person from doing their normal activities. Some people who suffer from PTSD
There are three types of bipolar disorder, also known as manic depression, a mental health condition that causes extreme mood swings that include emotional highs (mania or hypomania) and lows (depression). Symptoms include: • Abnormally upbeat • Decreased need for sleep • Poor decision-making—for example, going on buying sprees, taking sexual risks or making foolish investments • Depressed mood • No interest in activities • Sleeping too much • Feelings of worthlessness or excessive or inappropriate guilt
Dementia Dementia is the development of multiple cognitive deficits manifested by both memory impairment (impaired ability to learn new information or to recall previously learned information) and one (or more) of the following cognitive disturbances: • Aphasia (language disturbance); • Apaxia (impaired ability to carry out motor activities despite intact motor function); • Agnosia (failure to recognize or identify objects despite intact sensory function);
If more lawyers become familiar with some of the common ailments that plague some of those in the legal profession, we can do a better job of helping them. Helping our colleagues in distress will help maintain public confidence in the profession and reduce stigma attached to mental health and substance use disorders. 55 | Columbus Bar L aw yers Quarterly Summer 2019
• Disturbance in executive functioning (i.e., planning, organizing, sequencing, abstracting). These cognitive deficits cause significant impairment in social or occupational functioning and represent a significant decline from a previous level of functioning.
Attention-deficit/hyperactivity disorder (ADHD) Attention-deficit/hyperactivity disorder is a brain disorder that interferes with normal functioning. Major symptoms include inattention, hyperactivity and impulsivity. Some signs include: • • • • •
Missing details Making careless mistakes Not following through on duties Easily sidetracked Excessive energy
Schizophrenia Schizophrenia is a mental disorder that affects how a person thinks, feels, and behaves. Many people with schizophrenia may seem like they have lost touch with reality. Symptoms include: • • • • • • •
Hallucinations Delusions Thought disorders Movement disorders Reduced feelings of pleasure in everyday life Difficulty beginning and sustaining activities Trouble focusing or paying attention
Obsessive-compulsive disorder (OCD) Obsessive-compulsive disorder is a disorder in which a person has uncontrollable, reoccurring thoughts (obsessions) and behaviors (compulsions). Common symptoms include:
The first step is to have a conversation with the person. Let the person know that you noticed a change in behavior and that you want to help.
56 | Columbus Bar L aw yers Quarterly Summer 2019
• Fear of germs or contamination • Unwanted forbidden or taboo thoughts • Aggressive thoughts toward others or self • Having things symmetrical or in a perfect order • Excessive cleaning and/or handwashing • Ordering and arranging things in a particular, precise way • Repeatedly checking on things, such as repeatedly checking to see if the door is locked or that the oven is off • Compulsive counting
Expect the Unexpected Legal issues often arise when you least expect them, and when they do, it is important to contact a law firm you can trust.
PERSONAL INJURY CRIMINAL DEFENSE CIVIL LITIGATION 536 S. High Street Columbus, OH 43215 614-221-1342 tyacklaw.com
Dual diagnosis A dual diagnosis is when a person suffers from a mental health issue and a substance use disorder. For example, when a person who is depressed turns to alcohol or drugs to suppress his or her depression. All of these mental disorders have one thing in common: They interfere with a lawyer’s duty to be competent.
The good news Even though some lawyers suffer from these ailments, the good news is all of these are treatable with talk therapy and/or medication.
You can also help! Some people believe, when they notice a colleague is having issues, that they should stay out of it or that it is none of their business. But, helping someone with a mental difficulty is your business, especially when it affects our profession.
The first step is to have a conversation with the person. Let the person know that you noticed a change in behavior and that you want to help. Listen with an open mind, ask questions and encourage the person to get help. Refer the person to the Ohio Lawyers Assistance Program. We help Ohio lawyers, judges and law students cope with life’s stresses. No ailment is too small or too large. We are your confidential place to go when life becomes overwhelming. We help an average of 62 lawyers, judges and law students per quarter. Overall, we have helped thousands of lawyers recover from stress, depression, anxiety and other mental health disorders.
stresses of being a lawyer. Helping people with mental illnesses can only help our profession become stronger and remain competent for our clients. We owe that to them.
Contact the Ohio Lawyers Assistance Program confidentially at www.ohiolap.org, bendslow@ ohiolap.org or (800) 348-4343.
Scott R. Mote, Esq.
Executive Director Ohio Lawyers Assistance Program smote@ohiolap.org
As lawyers, we help people. Let’s start the conversation about helping our own profession recover from the
57 | Columbus Bar L aw yers Quarterly Summer 2019
Life Outside the Law
Lawyers with Artistic License:
Douglas S. Morgan BY HEATHER G. SOWALD
No matter what new passions, workplaces or community tasks Doug Morgan enthusiastically throws himself into, his love of his wife, family and music remain constant. Doug’s tenor voice can currently be heard in his church’s choir and as part of the harmonizing and instrumentplaying trio, Morgan, MacDonnel & Maneri, at monthly performances at The Refectory Bistro. His band has a large repertoire of 60’s and 70’s music, and on special performance nights, they put on an all-Beatles
tribute. (https://refectory.com/ event/a-hard-days-night-beatlestribute/?instance_id=2970) Doug is the eldest of six children, and the son of musical parents. He began singing in church choir at an early age, which inspired his continued love of sacred music. As a teenager, he was in Whetstone High School’s choir and ensemble, while taking private voice lessons at Capital University. He also excelled at baseball and academics, the latter of which led to his attending Harvard University, majoring in history. While at Harvard, he played on the varsity baseball team, was part of
Doug has lived his life packing in as many events and opportunities as possible, and excelling at all of them. He doesn’t know what the future holds for him, but he knows that no matter what, he will continue to have his wife, family and music. 58 | Columbus Bar L aw yers Quarterly Summer 2019
the competitive Krokodiloes acapella men’s group, sang in the Harvard Memorial Church Choir and had leads in the Gilbert & Sullivan Society productions. Doug scheduled every minute of every day, because he also was on work/study as part of the dorm cleaning crew, about which he says, “It was not glorious, but it was lucrative!” Doug returned to Columbus for law school at OSU (J.D. 1982), and to marry his childhood sweetheart, Beth, whom he met in first grade. He balanced his studying, working, new marriage and the first of three children along with performing in OSU’s Gilbert & Sullivan operetta productions. He and his wife played opposing parties in the operetta “Trial by Jury.” Following law school, he began his career at a Wall Street law firm, and then later transferred, along with his family, back to Columbus and the firm’s local office here. About every 10 years, Doug would move on to
another firm, which ranged from small to large, always concentrating on corporate transactional law. About 10 years ago, Doug radically changed his work focus by starting and running, along with his wife, the Mount Vernon Barn Company, Ltd. www.mtvernonbarn.com. He still practices law, albeit, he says, “out of his truck.” Along the way, Doug has remained focused on his family, his church, his music (he was previously a member of the Klatt Brothers’ Band) and community. He chaired the Franklin Park Conservatory Board and the Columbus Chamber of Commerce’s Green Council and has served on Nationwide Children’s Hospital Foundation and Consider Biking boards. Doug’s concern for the environment and the campaign to reduce childhood obesity led him to bike every day to and from Clintonville to his office while working in the downtown law firms. He said it was normal for him to appear at work, client and board meetings in his bicycle shorts and tops. His love of history, and desire for a weekend place, led his wife and him to search for a log cabin to restore for family getaways. Their initial cabin, now greatly expanded, is outside Gambier. Their search for and reclamation of it led to them creating their company, which buys old barns for their first-growth timber frames for re-use in new builds. A documentary about their barn reclamation business was recently featured on WOSU: https://video.wosu.org/video/drivingdarbee-mount-vernon-barn-co-jvlava/ Doug has lived his life packing in as many events and opportunities as possible, and excelling at all of them. He doesn’t know what the future holds for him, but he knows that no matter what, he will continue to have his wife, family and music.
Heather G. Sowald, Esq.
Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com
Life Outside the Law
The Best of Africa:
Wild Game & Waterfalls (Part 1) BY Hon. David E. Cain, Ret. The tent featured a steel frame and concrete floor with the dimensions of a small efficiency apartment. Still, only a thin sheet of canvas separated our soft warm beds from the trumpeting of elephants, the barking of baboons and the grunting, groaning and growling of whatever. Those pitch-black nights in the bush were part of a “Best of Africa” tour. A better part was hiking the Viewpoints Trail in the rain forest at Victoria Falls, a near lifelong dream, and then returning to the five-star, 114-year-old Victoria Falls Inn for dinner. Entertaining, educational and relaxing. Soaking up beautiful scenery. What more could you ask?
Our itinerary kicked off in Johannesburg after a grueling 16-hour flight from Atlanta. The city is at the center of a 14 to 16 million person metropolitan area that keeps growing because of the constant immigration to South Africa from poorer countries to the north. That’s why unemployment also hovers around 25 to 30 percent. That, in turn, helps account for a high crime rate. Inept police can also share some blame, with a five to 10 percent conviction rate. Upscale neighborhoods (including the highest priced real estate on the continent) are protected by electric fences and high walls topped with barbed or razor wire. On our one full day in the area, we took a 30-minute bus ride to Soweto, suburb with a population of four million. Another study in contrasts. On the street called Orlando East, “matchbox houses” smother the landscape almost as far as the eye can see. Hundreds, maybe thousands, of mismatched and misaligned boxes (so-called because of their size) are nearly stacked on top of each other. Cement blocks and corrugated metal are the most common building materials, but almost any kind of hard scrap will do. Once in a while, a satellite dish can be seen on a roof. Another unlikely status symbol is litter piled in front of the house as it demonstrates a wealth that allows the family to eat fast food a couple times a week.
60 | Columbus Bar L aw yers Quarterly Summer 2019
After only a short drive along one of the sandy red primitive roadways, a male lion was spotted eating a mid-sized elephant on the riverbank somewhat hidden by a bank of trees. Soon thereafter, we watched three female lions devouring an impala (a breed of antelope that was plentiful in all the areas we visited) under a cluster of trees.
After driving through a small valley, the street becomes Orlando West where two Nobel Prize winners have lived on the same block. Archbishop Desmond Tutu’s home is now the residence of one of his sons and is pretty much concealed by a large wrap-around hedge. He won the peace prize in 1984. Just across the street and up a few doors is the house Nelson Mandela purchased in 1946. It is now a museum in his honor. Mandela won the Nobel in 1993. One of the things we learned was that Nelson was not his given name. “Nelson” was assigned to him by his first-grade teacher because she couldn’t pronounce his African name. He and Tutu were not acquainted. A short walk from the Mandela house is the Hector Pieterson Museum, named after a 12-year-old who was shot and killed by police on June 16, 1976, while protesting that “Afrikaans” was the language being taught in African schools. A picture of the lifeless boy being carried through the streets by a teenager with the boy’s sister at his side went
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around the globe and Pieterson became a worldwide symbol of South African youth suffering under Apartheid. The next day, we flew to Kasane, on the northeastern tip of Botswana, and checked into the nearby Chobe Safari Lodge on the Chobe River close to the Chobe National Park. It’s also near the point where four countries meet: Manibia, Botswana, Zambia and Zimbabwe.
Our travelling group of 20 included several with Central Ohio roots: my wife, Mary Ann; Kathy Broom, formerly of Worthington, now Phoenix; Keith and Nan Wampler, formerly of Granville, now Cincinnati; Sue Ryan of Granville; and Becky Venezia of Pittsburg. The rest were new acquaintances and came from Houston, Boston, the Atlanta area, San Francisco, Calgary and Montreal. All of them seemed like old friends by the time we parted.
61 | Columbus Bar L aw yers Quarterly Summer 2019
Our guide was Leon Potgieter, a resident of Capetown, who contracts with Vantage Adventures. Leon’s grandfather was a Lutherine missionary from Berlin and he grew up on a sustenance farm at a mission station, then moved to Durbin to start school. The omnipresent “guide” served as lecturer and entertainer as well as a constant source of directions. On our first evening in Chobe, we enjoyed a two-hour boat ride along the Chobe River and discovered a ton of elephants, hippos and crocodiles living along the shores and on the island that divided the river as it flowed along the border of Botswana and Namibia. The next morning, we took a short ride on a paved highway in open safari vehicles and checked into the Chobe National Park before sunrise. After only a short drive along one of the sandy red primitive roadways, a male lion was spotted eating a mid-sized elephant on the riverbank somewhat hidden by a bank of trees. Soon thereafter, we watched three female lions devouring an impala (a breed of antelope that was plentiful in all the areas we visited) under a cluster of trees. Later, a group of eight giraffes of all sizes were a big hit. Our bed at the lodge was tented with white netting for mosquito protection. The rainy season was well over and had been moderate. Still, we used the net, regularly covered our exposed skin with repellant and stuck to our regimen of malaria pills. A chance was not worth taking. An elevated wooden walkway took us from our room over a winding stream to the dining area and other lodge facilities about a hundred yards away. Warthogs, monkeys and baboons were usually hanging around the streambed. Several more rides in the safari vehicles and boats always produced a plethora of elephants, sometimes crossing a highway, as Chobe is home to Africa’s largest elephant population at an estimated 140,000. Indeed, a political controversy is currently steaming in Botswana over proposals to reduce the elephant population by such things as lifting a hunting ban (neighboring countries sell hunting rights). Elephants destroy crops and trees and bushes and sometimes people. Others say Botswana is their last haven. 62 | Columbus Bar L aw yers Quarterly Summer 2019
A favorite was the Photo Safari on the river in flatbottom six-passenger boats with swivel chairs located behind mounted high-quality cameras with lens that zoom to 600 mm. A professional photographer gave tips all along the way – from our first close-ups of a fisher eagle to a variety of colorful smaller birds to the crocodiles now feeding on the elephant carcass the lion had to himself the day before. Eight or 10 crocs were taking turns entering the elephants partially submerged belly and coming out with strands of red meat. At another point, we moved in on elephants bathing in the water, a couple of them protecting a two-week old baby and other spraying mud on their backs for sunscreen. When we left Chobe, we headed by bus in a southeast direction in Zimbabwe, formerly known as Southern Rhodesia for a couple hundred miles to the Hwaga National Park and, deeply buried therein, the Iganyana Tented Bush Camp. On the way, we stopped for a rest at the Baobob Hotel, named after the 600-year-old Baobob tree overlooking a beautiful valley out front. Such trees grow massive trunks (the diameters can get to 20 or 63 | Columbus Bar L aw yers Quarterly Summer 2019
30 feet) and are considered sacred. Rain dances are performed under their hallowed canopies. Their roots can cure malaria, the fruit is edible and produces cream of tartar, doormats are made from the bark and soap and lotions come from the leaves. Once reaching Iganyana, one quickly takes notice of the dining and lounge area on a deck mostly covered by a canvas roof and the red stone pathways leading to the tents hidden in the trees. Ours was about 300 yards from the deck, the farthest of all of the tents. Each had a bathroom with a shower and about a dozen four by five-foot zippered flaps. We asked the staff member (we weren’t supposed to walk to our tents without one) why a trench – about three feet wide and four feet deep – had been dug outside our bathroom window flap. He said it protects from elephants. Minutes later, I saw a zebra walking past our neighbor’s tent.
We had dinner on the deck and it didn’t seem far off from American cuisine. But I hate to eat meat when I can’t pronounce the name of the animal from which it came. I hate hunger even more. So, I gave them the benefit of the doubt when they said the meat was beef one night and a pork chop the next. As I finished my dessert, I heard some screeching and saw a half dozen elephants strolling up to a watering hole about 50 yards away on the other side of a campfire circle. Turns out they are regular nightly visitors. The first full day at Iganyana, I joined four others for an early morning walking safari led by a guide, Rafeal, who carried a high-powered rifle that fortunately was not needed. Seeing no big animals, we spent some time studying different kinds of animal dung and the insects fighting in it. Elephants have poor digestive systems, so camel thorn (tree) seeds are often intact. Baboons eat
64 | Columbus Bar L aw yers Quarterly Summer 2019
some of them and then poke holes in the grounds so that other seeds can, perhaps, germinate. Thorns don’t digest, either. So, running over a pile of elephant dung can actually flatten a tire. Soon, we came to the skeletal remains of a fairly large elephant spread over a small clearing. Other elephants had come to that spot to grieve for long periods, Rafael said. He pointed out a bullet hole in the upper area of a femur (with no visible exit wound) and speculated that the injury ultimately caused the elephant’s death. Elephants go through six sets of molars over a lifetime. This one had one set of molars unused, indicating that he died around 45 years of age. Healthy elephants can live more than 60 years. We did three game drives in the safari vehicles – counting that evening and the next day – and saw more elephants, giraffes and impalas, but also kudu, steembrook, wildebeests and zebras. The latter two often hang out together because the zebras make up for the wildebeests’ poor eyesight and the wildebeests make up for the zebras’ poor hearing. Both senses are needed for lion alerts. After the last dinner on the deck, we were entertained around the campfire by traditional African singers and dancers. The next morning, we headed back north. Safari vehicles got us out of the woods to a bus waiting at the nearest highway to take us to Victoria Falls, the main reason I came on this trip in the first place. (Part Two will appear in the next edition of Lawyers Quarterly)
Hon. David Cain, Ret. 65 | Columbus Bar L aw yers Quarterly Summer 2019
Jury Verdicts
Civil Jury Trials
Franklin County Common Pleas Court by MONICA L. WALLER Verdict: $19,509. Automobile Accident. Plaintiff Travis Guseman, a 42-yearold corrections officer, was driving westbound on I-270 on May 11, 2015 when a vehicle driven by Dorothy Wolford turned left into his lane of travel. Wolford died from her injuries. Guseman’s vehicle was totaled. He claimed injury to his neck, back, hip and hand. Guseman had a prior surgery of his cervical spine at the level of the fourth-sixth vertebrae. He claimed that he aggravated his condition at that level and suffered new injuries in his cervical spine at the level of the seventheighth vertebrae. He received radiofrequency ablation treatment. He also claimed that the trauma to his hand caused carpal tunnel which would require surgery. Wolford’s estate did not dispute liability, but challenged Guseman’s claimed damages. The defense argued that Guseman’s neck injury was pre-existing and not significantly aggravated by the accident. The jury awarded a total of $19,509 in damages, which included $3,000 for pain and suffering and $500 for loss
of consortium. Claimed Economic Damages: $28,294.89 in medical specials reduced to $16,828.17 after write offs and $1,008.96 in lost wages. Last Settlement Demand: $46,500. Last Settlement Offer: $28,000. Plaintiff’s Expert: Dwight Mosley, M.D. (pain management). Defendant’s Expert: None. Length of Trial: Two days. Plaintiff’s Counsel: Steven Babin and Brandi Staley; Defendant’s Counsel: Mitch Tallan. Judge Kim Brown. Case Caption: Travis Guseman, et al. v. Loreen Johnston, as Administrator of the Estate of Dorothy Wolford, deceased. Case No. 17 CV 1230 (2018).
Verdict: $7,325. Consumer Claim. In August of 2016, Plaintiffs Ron and Jennifer Hart brought their motorhome to Defendant Foster’s Truck and Trailer, Inc. for repairs. According to the Harts, they asked Foster’s to provide an oral estimate of the cost of repairs before proceeding. Without providing an estimate, Foster’s repaired the vehicle and presented the Harts with a bill for $15,984.22 for the repairs.
66 | Columbus Bar L aw yers Quarterly Summer 2019
The Harts objected to the bill on the basis that they had not authorized the work and that the charges were excessive. Foster’s demanded full payment and threatened to sell the vehicle to pay the bill if the Harts refused to pay. The Harts attempted to negotiate to reduce the bill, but were unsuccessful. The Harts filed suit alleging that Foster’s conduct violated the Ohio Consumer Sales Practices Act and constituted conversion. Foster’s filed a counterclaim against the Harts for declaratory judgment, breach of contract and unjust enrichment. Foster’s claimed that the motorhome was used as a mobile office and therefore, the transaction was not a consumer transaction under the CSPA. Foster’s also argued that it did provide the Harts an oral estimate and Ron Hart authorized the work. The jury concluded that the Harts’ use of the motorhome was primarily for personal purposes and, therefore, the transaction was subject to the CSPA. The jury also found that Foster’s supplied the motorhome in accordance with its previous representations, did so in a workmanlike manner and did not
charge excessive fees for the repairs. However, the jury found that Foster’s stalled in an attempt to avoid a legal obligation, failed to obtain authorization for the repairs, failed to provide an estimate of all repairs and then materially underestimated or misstated the cost of repairs for which it had provided an estimate. The jury also found that Foster’s charged the Harts multiple times for the same service, and charged for services it was not authorized to make. The jury awarded the Harts $7,325 for violation of the CSPA. The Court tripled $6,852 of the damages under the CSPA, resulting in a total award of $21,056 in actual and treble damages. Both sides filed motions for judgment notwithstanding the verdict which the Court denied. No settlement negotiation information was provided. Plaintiff’s Expert: Philip Grismer. Defendant’s Experts: Dave Foster and Tom Blackburn. Length of Trial: Eight days. Counsel for Plaintiff: Elizabeth A. Wells, Scarlett M. Steuart. Counsel for Defendant: Leon Friedberg. Visiting Judge Daniel Hogan. Case Caption:
Jennifer Hart, et al. v. Foster’s Truck and Trailer, Inc. Case No. 16 CV 12271 (2018).
Verdict: $3,683.20. Automobile Accident. On June 27, 2016, Plaintiff Shannon Rene was stopped at the light at Dempsey Road and Sunbury Road when her vehicle was rear-ended by a vehicle driven by Defendant Aareana Paugh-Brown. Rene sought treatment that day for headache, neck pain and back pain. She later began treating with a chiropractor who ordered MRIs. The MRIs revealed disc protrusions in Rene’s cervical spine, a tear in a ligament in her shoulder and bulging disks in her lumbar spine. Ms. Rene then underwent treatment with a pain management specialist. PaughBrown did not dispute liability, but argued that the accident did not cause Ms. Rene the injuries she claimed and that her treatment was not reasonable and necessitated by the accident. Medical Specials: $27,181.85 reduced to $24,323 after write-offs. Last Settlement Demand:
$19,000. Last Settlement Offer: $11,630.20. Plaintiff’s Expert: Bruce Kay, M.D. (orthopedist). Defendant’s Expert: David Hannallah, M.D. (orthopedist). Length of Trial: Two days. Counsel for Plaintiff: Ashley Rutherford Starling and Walter Messenger. Counsel for Defendant: Kesha D. Kinsey. Magistrate Christine Lippe. Case Caption: Shannon Rene v. Aareana D. Paugh-Brown, et al., Case No. 17 CV 5957 (2018).
Defense Verdict. Legal Malpractice. Plaintiffs National Reconstruction Group and William King were sued for violations of the Consumer Sales Practices Act for work performed on a private home. The homeowners alleged that NRG and King violated the CSPA by failing to include a provision in their contract for the refund of their deposit and by misleading them about whether a permit was necessary for the work. The homeowners sued King personally in addition to NRG because the homeowners discovered that NRG’s corporate
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registration had been cancelled by the Secretary of State by the time it entered into the contract with the homeowners. King and NRG hired Defendant Dorman Law to defend them in the lawsuit brought by the homeowners. When the attorney originally assigned to the case left the firm, Defendant Derek J. Walden then took over as their attorney. According to Walden, when he took over the case, he and the former attorney met with King and discussed the fact that the homeowners were likely to prevail on their CSPA claims. However, settlement negotiations failed and the case proceeded to trial. King and NRG were found liable to the homeowners for actual damages of $7,000 which, after adding treble damages and attorney’s fees, resulted in a $70,000 judgment. King and NRG sued Walden and the law firm Dorman Law for legal malpractice. King and NRG argued that Walden failed to properly advise them on the risks of an adverse judgment and the reasonable settlement value of the claim in light of the potential for treble damages and attorney’s fees. King and NRG also argued that Walden failed to advise King on strategies to reinstate NRG and help King avoid personal liability. Walden argued that the scope of his representation did not include advising King and NRG on issues pertaining to NRG’s status with the Secretary of State and that King had another attorney who represented him on corporate matters. He also argued that King had been put on notice multiple times of the potential for incurring treble damages and attorney’s fees. King
also knew of the risk of liability on the CSPA claims from the outset of his representation. According to Walden, King believed that the homeowners would have settled for between $25,000 and $30,000 before trial but would not offer more than $10,000. Last Settlement Demand: $185,000. Last Settlement Offer: Unknown. Plaintiff’s Expert: David Lyons. Defendant’s Expert: John Ridge. Length of Trial: Five days. Counsel for Plaintiff: W. Evan Price. Counsel for Defendant: David Herd. Magistrate Jennifer Hunt. Case Caption: William B. King, III, et al. v. Derek J. Walden, et al. Case No. 15 CV 11127 (2018).
Defense Verdict. Premises Liability. On June 24, 2016, Plaintiff Brenda Killian and a friend were patrons at Defendant Short North Tavern. Killian walked down a dark hallway intending to go to the women’s restroom, but inadvertently passed the door to the restroom and opened a door marked “Do Not Lean on Door.” She turned to her left to look for a light and fell down a flight of stairs breaking her heel. Staff of the tavern came to Killian’s aid. The staff admitted that the door Killian opened was to remain locked during business hours and was inadvertently left unlocked. Killian argued that Short North Tavern was negligent in exposing her to the danger presented by the stairway. The Short North Tavern argued that it had no such duty because Killian lost her status as a business invitee and became a trespasser when
68 | Columbus Bar L aw yers Quarterly Summer 2019
she opened the door. In addition to the sign warning not to lean on the door were signs marked “Employees Only” and “No Exit.” Killian claimed that she did not see these two signs because the hallway was too dark. The Short North Tavern also argued that the stairs were open and obvious. Killian claimed that she was looking for a light when she fell and the conditions were too dark to appreciate the fact that the door opened directly into a stairwell. The jury concluded that Killian was not a trespasser, but found that both Killian and Short North Tavern were negligent. The jury found Killian 80 percent responsible for her own injuries. Medical Specials: $55,585.75 reduced to $2,825 after write-offs. Last Settlement Demand: $63,000. Last Settlement Offer: $4,500. Plaintiff’s Expert: Joaquin Castaneda, M.D. (orthopedist). Defendant’s Expert: None. Length of Trial: Four days. Counsel for Plaintiff: Ashley Rutherford Starling and Jason Starling. Counsel for Defendant: Jason Walker. Judge Kimberly Cocroft. Case Caption: Brenda Killian v. Short North Development Group, Inc. d/b/a Short North Tavern, Case No. 17 CV 3898 (2018).
Monica L. Waller, Esq.
Lane Alton & Horst mwaller@lanealton.com
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