Columbus Bar Lawyers Quarterly Fall 2015

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Fall 2015 Columbus Bar Lawyers Quarterly

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Fall 2015 Columbus Bar Lawyers Quarterly

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President’s Page

It’s a Noble Career:

Bringing Professionalism Back to the Lawyer’s Image

By Jay E. Michael Since being elected president of the Columbus Bar Association, I have been asked, “Are you crazy?,” “Why are you doing this?” and “Do you really have time for this?” My reply to these questions is that I want to make a difference.

When people in my office get discouraged, and that does include me, I go back to my favorite movie, “It’s a Wonderful Life,” and the scene in which George Bailey’s father is talking to him about the Building and Loan Association. The senior Bailey explains to his son that in a small way they are doing something important with the association, providing a path to homeownership for people who might not be able to afford it otherwise.

Why do I bring this up? Because of the stereotypes that lawyers are not to be trusted and that we create more problems than solutions. I often tell my clients that usually, if lawyers are involved, good things are not happening.

During my tenure as president, my goal is to project a positive outlook on what we lawyers do. If you look at the stories in the news every day, everything is bad.

We sensationalize everything from snowstorms to war.

Negativity breeds negativity. I encourage all members of the bar to diligently work against the negative stereotypes. How do we do that? I think the best method is through goodwill and professionalism in all of our dealings.

We, as lawyers, have the ability to bring hope to our clients. Most of our clients come to us at their darkest times.

They are concerned about a horrible event that has happened or that will occur, and we need to counsel them on the law and also reassure them that the justice system works and can be trusted. Sincere compassion and attention to the client’s concerns will pay huge dividends, not only in the trust of our clients but in our own success as lawyers. Goodwill is something we must have as the cornerstone of a thriving practice.

Professionalism and civility can help us overcome the negative image some people have that lawyers can be pompous, that we don’t really care about our clients, that we play dirty. As professionals, we owe it to each other and to the people in our communities to work against this image.

I am a firm believer that this is a noble profession, one that is worthy of respect from the public and our peers, and I want to spread that message through my interactions with my clients and other lawyers.

In addition to the many programs offered by the Columbus Bar, there is an intangible, intrinsic value to being a part of the bar association. It’s not just about committees and discounts and social events; it’s about advancing the profession in a 4

Fall 2015 Columbus Bar Lawyers Quarterly

meaningful and positive way. It’s about telling our stories in a positive light. It’s about being a part of something bigger than ourselves. The Columbus Bar is the sum of its members, and we need you to help us continue doing all we can to provide a voice for those who need lawyers to help them through challenging circumstances and to ensure access to justice. You help the association and yourself by becoming active and taking advantage of all the Columbus Bar has to offer.

To circle back to “It’s a Wonderful Life,” some people unfortunately view lawyers as more akin to Mr. Potter, filled with greed and not to be trusted. We need to change that image to George Bailey. While he may not be perfect, no one can deny he puts his Building and Loan clients before all else and tries to make decisions with a sound moral compass. I am confident that all of us, as Columbus Bar members, can revive that image for our profession.

Jay E. Michael, Esq. The Law Offices of Jay E. Michael jay@jaymichaellaw.com

Swan Song

By Bruce A. Campbell Unadulterated hokum. The mystical belief that, at the final moment, swans hold forth with a beautiful lyric to mark the occasion is pure myth. What comes out of the front of a swan – from birth to demise – is as un-ethereal as the stuff emitted from its hind part. Don’t take my word. The poohbah of the birder set, Roger Tory Peterson, in his “Field Guide to Birds” describes the “song of a swan [aka ‘Cygnus Olor’]” as “honking, grunting and hissing on occasion.” That’s a pretty low standard of melodiousness to follow as I issue my “sort of” parting paean to the CBA. I’ll try to meet it.

After 50 years (28 at the CBA) of bouncing around what Tennyson called “the brawling courts and dusty purlieus [haunts] of the law,” I am, on Halloween (appropriately) going to repurpose myself. Without a smidgen of a hint of an idea of what the bloody hell I will morph into, I will walk the plank into the Sea of Nebulousness, honking, grunting but, I hope, not hissing.

During those five decades, my esteem for the local legal community has risen on a steep incline with no downturns.

The collegiality, the resolute support of a spritely and engaged bar association and the exemplary level of intelligent discourse on the whole between counsels, I think, make practicing law in central Ohio exceptionally agreeable.

Ethics work necessarily involves looking into claims of misconduct that, if substantiated, may be an embarrassment

to the profession and/or hurtful to clients; however, the small proportion of lawyers who slip out of compliance with the precepts of the profession are few and deliberate miscreants are rare. The overwhelming plurality of practitioners scrupulously hue to the ideals of the profession, naysayers to the contrary.

My great and dumb luck to have been able to nag Alex Lagusch and his then-board into hiring me as Bar Counsel still astonishes me. The job came to fit me better than a cork in a bottle of vintage unblended scotch (me being the cork, the CBA the scotch). It gave me a vantage point to see the fascinating ways and categories of law practice going on simultaneously to unkink and sort out the affairs of the commonweal.

The job, which never was a “job” in the tedious sense, gave me the chance to mingle with the crème de la crème of lawyerdom. The board and the committees with which I had liaison – especially the Ethics Committee – always were peopled by those steady types who see the higher ground and nudge us all in that direction. I was also able to engage with an assortment of magnanimous, engaged people who, although not burdened by a J.D., served on the Ethics Committee as the conscience of the community.

Continued on Page 9

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PRACTICALLY SPEAKING: COMMON SENSE TIPS FOR CLIENT COMMUNICATION

By Anna M. Wachtell The practice of law is often client-focused. Our services are sought because someone has been sued, wants to form a corporation or a landlord is slow to address leaky plumbing.

In the early years of practice, a fortunate young lawyer has mentors to help her learn good client communication skills.

The necessity of good communication skills is reinforced by reading disciplinary reports or hearing through the grapevine about a disgruntled client leaving a lawyer or law firm because the client felt ignored.

Good communication with your client doesn’t have to be time consuming in order to be effective. Here are a few suggestions to incorporate into the handling of every client’s matter: Initial Conference When a new file hits your desk, schedule an initial telephone or in-person conference with your client. During that conference, discuss the client’s legal matter, but also take time to listen to your client’s questions and concerns.

Is this his first time named in a lawsuit? Is she a busy small business owner who prefers email communication? Is he a college student who is worried about how a settlement or verdict will be paid? These questions extend beyond the legal analysis we are trained to do and require us to be sensitive to the day-to-day personal concerns our clients have. Consider creating a checklist of items to cover during each initial conference, containing reminders to ask whether the client uses email, whether the client has ever been involved in a lawsuit before and to give the client and overview of what to expect during litigation. An initial telephone or in-person conference establishes the relationship and goes a long way toward making sure you and your client are on the same page from the outset.

Regular Updates Frequently, a disciplinary report describes a client who hired an attorney to complete a task, only to have the attorney accept a retainer fee and disappear in silence for six months or a year. Putting together a regular update to a client about his case doesn’t have to be something that’s difficult to fit into your busy day and can instead serve as a helpful refresher for both attorney and client regarding what’s been completed on the case and what is left to do. Begin by establishing how frequently you will send an update, such as every six or eight weeks. Set a repeating reminder in Outlook or in your case management software to automatically remind you to create an update. When drafting an update, don’t force yourself to reinvent the wheel every time – it is helpful to develop a case update template containing information categories that are revised as the case proceeds. For example, each time you look at the “Liability Analysis” or “Additional Discovery Required” sections you begin by re-reading what was current six weeks ago and can easily add information you’ve learned since then and state what is left to do. Your client will appreciate your regular attention and you will 6

Fall 2015 Columbus Bar Lawyers Quarterly

never be caught realizing you’re missing information needed to support a motion due next week.

Client Preparation Whether it’s an upcoming deposition, a hearing, mediation or a trial, client preparation is key to the success of the event and client satisfaction. When an event is scheduled, consider enclosing a list of guidelines with the letter to your client containing the event date and location. These guidelines can be a list of common reminders such as “Listen carefully to the question asked and answer only that question,” or “If you do not know the answer to a question, it is acceptable to answer that you do not know.” This written list will give your client a chance to visually review the information you will go over with him or her in person or on the telephone a week prior to the event. It is common knowledge that some people learn better by sight or by hearing, so cover your bases and provide your client with both. When the client is less nervous while giving testimony and hears a question you’ve anticipated and covered with him during in-person preparation, the time you’ve invested will benefit your client’s case and the relationship.

Expectation Management Nothing can sour a relationship faster than a client anticipating X while you’re working on Y. During the initial conference, be sure to walk the client through the process you expect her matter will require, and give some time estimates for each stage. In your regular updates, consider including a section labeled “Next Scheduled Event or Action” and provide a list of dates, including the court’s case schedule and other dates, such as depositions or mediation. During your initial conference, in written updates and during any client preparation meetings, discuss the information you have learned and the possible outcome. If there is information that must still be gathered and could alter that assessment, note that. Your client will appreciate the knowledge, and you’ll never be left explaining an outcome that a client feels has appeared out of the blue.

Just as doctors are sometimes chided for poor “bedside manners,” lawyers are sometimes guilty of an over-confident “just leave it to me” attitude. Client relationships can be solidified by building a few basic steps into your practice. A happy client results in a repeating client, a good referral or simply gives you the confidence that you’ve helped someone through what may have been a difficult or confusing time.

Anna M. Wachtell, Esq. State Auto Insurance Companies anna.wachtell@sa-trial.com

Legal Web Design and SEO: Questions to Ask

By Jim Christy “I need a new website. What do you guys charge?” I field this question a couple times of week, but I still cringe every time I hear it. I understand that price is a major factor in a decision making process, but starting a conversation with price based questions is a lot like going to a restaurant and asking for the check before you order. You may feel good (temporarily) knowing your meal is $2.99 but disappointed when the waiter brings out a glass of water and some toast.

To avoid this situation and to make the most of your requests for information, consider these questions before picking up the phone: 1. What are you looking to get out of your site? This can be as basic as “I just want my site to look more modern,” to “I want my site to be a leading driver of new business,” and everything in between.

This keeps you from getting distracted by what “packages” the service provider may have to offer. I’m not saying that bundled services are inherently bad, but they generally do not offer a lot of customization based on practice area and geographic market. What I really mean by this is to avoid simply buying a product or service and start thinking about the end results that you are really purchasing. For example, a new template-based website design, 10 pages of content and very basic SEO services may actually drive some business to your firm if you practice in a small town, but that package probably isn’t going to work if you have even a modest amount of competition. In most cases, the package described above is essentially an online brochure that people will find if they search for your exact name. There isn’t anything wrong with this option – just make sure you understand what you’re getting.

If your answer to this question is that you want to drive more business, then good follow up questions may be “How many more cases per month do I want?” or “How much growth do I want for my firm?” These questions will begin to shape the overall value of the site to both you and the service provider.

you had started a web project 10 years ago and developed 100 pages of content per year? Sure, you have the obvious answer of a site with 1000 pages, but the more meaningful answer is that you’d have built an online presence that is likely viewed as a trusted source for information for potential clients and industry professionals alike.

As a rule of thumb, just keep your questions focused around goals and measurable results and you’ll be much more likely to get what you’re looking for. Also, keep in mind that the burden of meaningful questions shouldn’t come exclusively from you.

If the person on the other end of the phone isn’t trying to understand what you’re really trying to achieve, chances are that they don’t have your best interest in mind.

Jim Christy Vice President of Business Development, Postali jchristy@postali.com

2. Who are your ideal clients?

You don’t need to have this concept entirely fleshed out, but at least consider it in the early stages of planning a new website. Marketing companies build buyer personas for their products and brands as a starting point for discovering what type of information motivates those individuals to action.

Don’t make the mistake of thinking that this type of exercise is only helpful for large, direct to consumer companies – it should apply to all businesses, regardless of size and scope.

3. Where do you want to be in three years?

A new website should not be considered a short term project that comes up, gets completed and then forgotten about until it needs a facelift in three years. Think of your website as something that is always being built and improved. What if Fall 2015 Columbus Bar Lawyers Quarterly

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An Overview of Trusts for the Uninitiated

By Matthew W. Gibson Attorneys and non-attorneys alike seem to mistakenly believe that trusts are only for individuals who are rich or who are on their second or third marriage or who, thanks to the good work of their domestic relations attorney, happen to be rich and on their second or third marriage. Trusts are also generally acknowledged as beneficial to parents of special needs children, parents of minor children or clients who have children outside of their current marriage, to name a few.

The main purpose of this article is not to laud the usefulness of trusts in these instances, but rather to address some of the common, yet underappreciated, reasons why a trust can be desirable and ought not be dismissed as an appropriate solution for a client.

Basic Overview of Trusts A trust is essentially an arrangement among three parties: the grantor, or settlor, who creates the trust; the trustee, who oversees the trust’s administration and the beneficiaries, who obviously benefit from the trust. A trust agreement establishes the rights and responsibilities of each party, and the manner in which the parties interact with one another.

For instance, the agreement specifies when the beneficiaries are entitled to a distribution and whether the grantor can amend the trust. The agreement should also establish a chain of succession for the roles of trustee and beneficiaries. In a typical revocable living trust arrangement, the same person may start out as the grantor, trustee and beneficiary. If that person becomes incapacitated, someone will replace him or her as the trustee but not necessarily as the beneficiary. If that person dies, someone will replace him or her as the trustee and as the beneficiary.

Underappreciated, Yet Common Usages Multiple Beneficiaries Upon an owner’s death, most assets in Ohio can now pass outside of probate through beneficiary designations.

These assets include checking accounts, retirement accounts, automobiles, real estate and interests in closely held businesses. While this is all well and good, there are many instances where naming multiple beneficiaries on an asset can cause problems. As an example, consider a house that is transferrable on death to an owner’s four children. Yes, probate is avoided. But now, all four children—and their spouses because of dower rights—must agree to the sale and sign the deed. Even in the best case scenario, it can be a mess.

A trust offers a better solution. The house can be transferrable on death to the trust, which can have one of the children as the successor trustee and all of the children as equal beneficiaries. As a result, only one child needs to agree to the sale and sign the deed, and none of the children’s spouses need to be involved. And frankly, a natural consequence of any good estate plan is avoiding the unwanted involvement of in-laws.

Flexibility to Change During Lifetime Just as creating an account on Farmers Only does not enable one to immediately find a soulmate, creating a trust 8

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does not allow one to immediately avoid probate. They are each steps in a process. A person can create the Farmers Only account, put in some effort and eventually be able to converse with more than just livestock. Likewise, a person can create a trust, put in some effort and eventually have his or her assets avoid probate.

With respect to the effort required to avoid probate, after a trust is created, the ownership of assets and beneficiary designations need to be addressed and updated so that assets pass directly to the trust outside of probate. This step of the process can be tedious. But the good news is that, once the step is completed, an individual can easily make changes to the trust to alter the flow of all of his or her assets. So if an individual decides that he or she wants to make distributions to grandchildren or charities, or if one child has been receiving a little bit more help than the other children and adjustments are warranted, a simple trust amendment is all it takes to make the desired change.

Without a trust, individuals need to be named in the beneficiary designations to make sure the assets avoid probate. If changes become desirable, it can become difficult to identify what assets, or what portion of what assets, should be redirected. When faced with the choice of whether to make the adjustments through a simple one-page trust amendment, or by reviewing and updating beneficiary designations, most people will opt for the trust amendment.

Flexibility to Adapt if Beneficiaries Die The trust agreement should provide a plan as to what happens to assets if a beneficiary dies, either before the trust share is set aside for the beneficiary or while a trust share is still being administered for the beneficiary. If individuals are named as beneficiaries of assets, the beneficiary designations might need to be updated to avoid undesirable outcomes.

Asset Protection When a child receives assets in trust, many people assume that the trust was funded in order to protect the child from his or her own immaturity and imprudence, perhaps until the child reaches a certain age. However, even the most mature and prudent children can benefit greatly from a trust.

To understand how this works, take the case of the beacon of childhood wisdom and maturity: Doogie Howser. Most everybody remembers Doogie, the fictional character who graduated from Princeton at age 10, finished medical school at age 14 and had his show canceled somewhere around age 19. Well let’s suppose that Doogie’s parents, Dr. David Howser and Katherine Howser, need an estate plan and come to you now that Doogie is 42-years-old.1 If David and Katherine were to suddenly pass away, they stand to leave Doogie around $2,000,000.2 They are extremely confident that Doogie would have no problem managing this amount of money. In fact, Doogie is fast accumulating his own fortune.

Conventional wisdom might say that assets can be left outright to Doogie, either through a will or beneficiary designations. However, a trust is likely the better option. If David and Katherine leave their assets in a trust for Doogie,

then Doogie can serve as the trustee of that trust, receive income generated by the trust, access principal as he sees fit for health, education, maintenance and support and redirect the trust assets to whomever he likes upon his death. Even with this extensive control, the trust assets cannot be reached

by Doogie’s creditors and will not be subject to estate tax at his death.

These asset protection and tax planning features could be of considerable value. With respect to the asset protection, Doogie has been performing surgeries since his teenage years, and his risk of being targeted in litigation is acutely high. If a creditor obtains a judgment against Doogie, the trust assets are protected. Doogie can even use them to pay his own bills.3 With respect to the tax planning, nobody can reasonably predict what might happen to the estate tax exemption in 20, 30, even 40 or more years. But if we assume Doogie’s own assets will cause him to reach the estate tax exemption, and the estate tax rate is 40 percent, then the $2,000,000, if received outright, would have been subject to an $800,000 tax. By placing it into the trust, his inheritance, along with its appreciation, will avoid tax altogether.

Fees The greatly exaggerated and tremendously pejorative misconception about trusts is that they are expensive. For the vast majority of my clients, a trust adds $300 to $400 to the overall cost of the estate plan, which almost always falls below $1,200, and generally falls below $1,000. In instances where the trust is more complicated, either due to financial factors or family factors, the cost can be higher. But in those instances, the trust planning is particularly important and the added fee is easily justified.

Continued from Page 5 And when the CBA got into its own legal jams (stuff occureth), up would step the Grand Knights of the legal community and General Counsel to tilt against and smote our external foes. What a wonder of selflessness to behold. The cost of their unbillable hours would sustain a small country.

Best of all for me though was the daily dose of being in the lush coop on the 11th floor with the grandest collection of multitalented, goofy yet professional, frolicsome, devoted, unclickish and productive birds ever assembled – the CBA staff.

And back in the southwest corner of CBA Land, I was constantly baffled as to why the nonpareil lawyers, paralegals and law school externs who staffed my department over the years were willing to tolerate the likes of me without once (at least to my knowledge) attempting a coup d’é tat. Such a special, precious lot they are.

I will not try to single out here all the folks to whom I am beholden for my idyllic time in the Bar Counsel seat; the list would be expansive and likely incomplete. I only hope you all know how monumentally grateful I am.

One last thought: Honk! Grunt! Honk! Grunt!

And, what the heck, Hisssssssss!

Conclusion Trusts were a mystery to me before I became a lawyer, and I think they remain a mystery to many non-attorneys and attorneys who do not practice estate planning. But they are an extremely useful tool. If you do not practice in estate planning, you may want to keep the usefulness of trusts in mind the next time you have a discussion with a friend or client about estate planning.

1.

2.

3.

Doogie was 16-years-old when the show first aired in 1989, so he would be 42-years-old today.

When term life insurance policies are taken into consideration, which they absolutely should be for purposes of this discussion, there are a surprisingly high number of clients who need to plan as though their children might be millionaires.

For those familiar with charging orders, this flow of assets out of the trust works much better, as far as the beneficiary is concerned, than the flow of assets out of an LLC when a creditor has attached a charging order.

Matthew W. Gibson, Esq. Pappas Gibson LLC mgibson@pappasgibson.com

Bruce A. Campbell, Esq. Columbus Bar Association bruce@cbalaw.org Fall 2015 Columbus Bar Lawyers Quarterly

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Judicial Elections: A Broken System, Part 2

By Jack D’Aurora In the first installment of this article, published in the summer, I dealt with two issues that make judicial elections unworkable—the political parties’ lack of concern for a candidate’s qualification and voter reliance on name recognition. I also reviewed a third issue, the failed 1987 referendum which would have put into place an appointment/ retention election system and a 2010 poll. Here are the fourth and fifth reasons why the system is broken.

4. Judicial Races might become more political.

In 2002, the U.S. Supreme Court held in Republican Party of Minnesota v. White1 that judicial candidates cannot be precluded from stating their views on legal issues. The case concerned the state’s Code of Judicial Conduct, which prohibited both judges and candidates from announcing their views on disputed legal and political issues. The court found the clause to be unconstitutional.

Based on White, Ohio’s Code of Judicial Conduct may be subject to attack. As it stands, Ohio judges and candidates are prohibited from making “any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”

Judges and candidates are also prohibited from making or committing themselves to positions in connection with cases or issues that are likely to come before the court that are “inconsistent with the impartial performance of the adjudicative duties of judicial office.”2 Is the purpose of the Ohio Code to ensure that judges and candidates will be impartial? If so, this goal has already failed to impress the U.S. Supreme Court: “A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law.”3 Moreover, “there is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction.”4 When running for the Ohio Supreme Court in 2002, thenHamilton County Municipal Judge Tim Black referred to the seat vacated by Justice Andrew Douglas as “labor’s seat.”5 This freely expressed political opinion came just months after White was decided. We have not seen many candidates taking advantage of the freedoms that comes with the White decision, but that might be attributed to the reticence on the part of candidates.

The Ohio Code of Judicial Conduct was modified in March 2009 to allow judicial candidates to state their political affiliation at any time. Previously, judges could identify their political affiliation only until the primaries ended.6 The Court of Appeals for the Sixth Circuit in Carey v. Wolnitzek struck down as unconstitutional Kentucky’s judicial canons that prohibited judicial candidates from identifying themselves as members of a political party.7 Last year, judicial candidates were given somewhat more leeway in campaigning. Based on the holding from In Re Judicial Campaign Complaint Against O’Toole that part of Jud.Cond.R. 4.3(A) violates the First Amendment, the rule has been amended.8 10

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The rule previously read as follows: During the course of any campaign for nomination or election to judicial office, a judicial candidate *** shall not knowingly or with reckless disregard do any of the following: (A) Post, publish, broadcast *** information concerning the judicial candidate or an opponent, either knowing the information to be false or with a reckless disregard of whether or not it was false or, if true, that would be deceiving or misleading to a reasonable person.

The last 13 words in Rule 4.3 (A)—“or, if true, that would be deceiving or misleading to a reasonable person”—have been eliminated.

Advocates of elections will argue that greater freedom in campaigning will help voters be better informed. Perhaps this is true, but greater freedom in voicing opinions during elections brings about some troubling consequences. Judges and judicial candidates may become recognized more for the positions they advocate than for their ability to competently handle the work of judges. As candidates become vocal on their positions, judicial elections could become more of a forum for how judges should be deciding issues and the matter of judicial qualification would further diminish.

5. Money has no place in judicial elections, but it’s there.

In last November’s Ohio Supreme Court elections, Common Pleas Court Judge John P. O’Donnell accused Justice Judi French of “pocketing” campaign contributions from American Electric Power and being “in the pocket of big utilities.”9 O’Donnell was referring to a case before the Ohio Supreme Court—and AEP’s campaign contributions to Justice French—where the court ruled that AEP could retain some $368 million in charges that were questioned by consumers. Was this a cheap shot? Yes. Could money take on a bigger role in public perception of the Ohio Supreme Court and the practice of law before the court? Absolutely.

The U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co., Inc.10 paves the way, and the facts in that case are disturbing. After a $50 million verdict was rendered against A.T. Massey Coal, its CEO, Don Blankenship, decided that to prevail on appeal, he had to change the composition of the West Virginia Supreme Court.11 He did this by supporting Brent Benjamin against incumbent Chief Justice Warner McGraw.

Blankenship contributed $2.5 million to “And For The Sake Of The Kids,” a political action committee that characterized McGraw as too soft on crime and too dangerous for kids, and spent half a million on advertising. Altogether, Blankenship alone spent three times what Benjamin’s own committee spent. A year before Massey’s case came before the court, Benjamin was seated as its new chief justice. Caperton asked Benjamin to recuse himself, but he declined, and Caperton’s case was dismissed by a 3-2 vote. You can probably guess who the swing vote was.

Caperton argued that Benjamin’s failure to recuse himself violated the Due Process Clause of the 14th Amendment.

The U.S. Supreme Court agreed. In his dissent, Chief Justice Roberts stated that challenges based on the Caperton decision will “bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.”12 I’m not sure Chief Justice Roberts has it right. Are we to stay silent about a critical issue—the possibility of money influencing judges, which already creates the appearance of impropriety—so as to avoid scandal?

Asserting that the integrity of judges should be presumed ignores human nature. Twenty-seven state justices filed amicus briefs in support of Caperton’s position, stating that financial support “can influence a judge’s future decisions, both consciously and unconsciously.”13 After all, “every judge is first and foremost a human being, not a detached and unemotional law machine.”14 In 2012, Ohio was among five states that had the most expensive state high court elections, with just under $3.5 million going to Supreme Court candidates.15 Try explaining to the average American worker how $3.5 million in campaign funds doesn’t influence candidates.

How do judicial candidates feel about this? Ask Ohio Supreme Court Justice Paul Pfeifer. Putting things in his own inimitable style: “I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race. Everyone interested in contributing has very specific interests.”16 Regrettably, the fact is that studies show a strong correlation between campaign donations and decisions made by state high courts. A New York Times study found that Ohio Supreme Court justices “routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time.”17 A study published by the American Constitution Society for Law and Policy made similar findings in all states where judges are elected.18 What precludes someone from duplicating in Ohio what Blankenship did in West Virginia? What precludes a litigant in Ohio from presenting a Caperton-type challenge? Are these scenarios we want to see in Ohio?

elections. If I’m right, then the next question is, what can be done?

The Ohio State Bar Association has favored an appointment/retention election system since 1987 but hasn’t done much to promote change. I think it’s time to inquire if the OSBA wants to take up the challenge.

Moving forward.

The threshold question is, how do most lawyers feel? I suspect most are concerned about the current state of judicial

Jack D’Aurora, Esq. The Behal Law Group Blogger, Considerthisbyjd.com

536 U.S. 765, 122 S. Ct. 2528 (2002) Ohio Code of Judicial Conduct, Rule 4.1(A)(6) and (7) 3.

536 U.S. at 777 4.

536 U.S. at 772 5.

“Justice hopefuls: Don’t assume” www.enquirer.com/ editions/2002/09/23/loc_justice_hopefuls.html (Sept. 23, 2002).

6.

Compare Jud.Cond.R. 4.2(C)(6), with Canon 7(B) in the prior code.

7.

614 F.3d 189, 204 (6th Cir. 2010).

8.

141 Ohio St.3d 355, 2014-Ohio-4046 9.

“O’Donnell finally hits TV with French attack ad,” Columbus Dispatch (Oct. 26, 2014) 10.

556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009).

11.

West Virginia does not have an intermediate appellate court.

12.

556 U.S. at 902.

13.

Brief of Amicus Curiae 27 Former Chief Justices and Justices in Support of Petitioners at 5.

14.

Id. at 6.

15.

“Do campaign donations in judicial races influence court decisions?” Stateline, The PEW Charitable Trusts (June 11, 2013) 16.

“Campaign cash mirrors a high court’s ruling,” New York Times (Oct. 1, 2006) 17.

Ibid.

18.

Joanna Shepherd, “Justice at risk, an empirical analysis of campaign contributions and judicial decisions,” American Constitution Society for Law and Policy (June 2013) 1.

2.

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Fall 2015 Columbus Bar Lawyers Quarterly

11

Litigation and Damages

LAW SCHOOLS: THE REAL EMPLOYMENT NUMBERS FOR THE LAW CLASS OF 2014

By Jason M. Dolin The New Narrative Although it took years too long during which tens of thousands of law students - encouraged by law schools to borrow, borrow, borrow - undertook suffocating law school debt, a new narrative has now taken hold with a vengeance: a law school education is overpriced and a risky return on investment, with employment opportunities for law grads limited into the foreseeable future. Just like the old (false) narratives that a J.D. was “a multipurpose degree” and that “you can do anything” with a law degree endured for years beyond reason, the new narrative has taken root and appears poised to enjoy a good long run in the popular mind. The difference, of course, is that the new narrative is true while the old narrative was law school sales fluff.

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As Applications Continue to Drop...

As the new narrative settles in, law school applications continue their multi-year drop.1 And with good reason.

In general, nationally the employment prospects of law graduates continue to remain bleak and in Ohio, they’ve actually gotten worse. An in-depth study by The Ohio State University Moritz College of Law Professor Deborah Merritt of the current employment situations for those who passed the Ohio bar in 2010 shows that due to systemic changes in the legal job market, those 2010 graduates are still struggling five years after graduation.2 Those systemic employmentreducing changes are here for the long haul. Belatedly, many debt-laden, underemployed law graduates have learned the ugly truth that the financial interests of their law schools (in

filling classes and cranking out more and more graduates) were in conflict with their interests in finding work in an already saturated market. To add insult to injury, their law schools’ solicitation letters just keep on coming. ...So Do Admissions Standards But there is another ugly truth; this one for the law schools themselves. Not only are fewer people applying to law school, but those that apply include a shrinking number with high LSAT scores. They are being replaced with lower scoring applicants who wouldn’t have been accepted even a few years ago. A report from the National Conference of Bar Examiners shows that since 2010, 95 percent of ABA-accredited law schools have lowered their admissions standards for students in the bottom of the applicant pool.3 According to one law professor who analyzed the data, “The top is eroding and the bottom is growing.” Because higher LSAT scores generally correlate with success in the first year of law school and with subsequent bar passage4, our law schools, in the interest of taking in tuition dollars, may be setting up these less qualified applicants for future bar failure. It may have already started to happen. Nationally,

the scores on the multistate portion of the July 2014 bar exam experienced the single largest year-over-year decline in four decades.5 Some law schools have started to panic. As fewer bright college graduates are choosing law school, the competition for the best students has turned ugly amongst law schools competing for a shrinking pool of good applicants. The cutthroat competition is no longer about getting into law school. If you have a pulse, there’s a law school for you. No, the cutthroating is now by law schools, against each other, for the best students. The competition for strong applicants was described by Northwestern’s law dean as “... insane.

We’re in hand-to-hand combat with other schools.”6 Employment Drives the Applicant Bus Ultimately, what drives law school enrollment is law graduate employment. If the legal economy was in a strong hiring mode, law schools would still be packed. But that’s not the case. The most recent national employment numbers for the Law Class of 2014, although on the surface appearing to be marginally better than those for the 2013 class, give law schools little reason to cheer. Indeed, it appears that the modest national uptick of 2.9 percent in full-time/permanentJD-required (FTPJD) jobs was a “phantom increase” and did not result from an expanding legal market.7 On the other hand, Ohio’s law schools can’t even claim a phantom increase in employment. Instead, in the aggregate the 2014 graduates of Ohio’s law schools had employment results that were actually worse than the 2013 results.

Continued on Page 14

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Continued from Page 13 National Employment Results for 2014’s Class On the surface, the 2.9 percent nationwide increase over the 2013’s class in FTPJD employment may seem like good news, but a closer look at the numbers indicates that 2014 showed little, if any, actual improvement over 2013. Two factors unique to the 2014 class, and not found in the 2013 class, had been expected to boost 2014’s results. First, the “employed as of” reporting date in 2014 was 30 days later than the “employed as of” reporting date in 2013. The data collected for the 2013 class and all prior classes reported employment as of February 15. As a sop to the law schools fighting bad employment numbers, the ABA increased the length of the “employed as of” reporting period to March 15. Given those additional 30 days, one would expect a higher employment number. Second, the national Class of 2014 was 6.5 percent smaller than the Class of 2013, so, all other factors remaining constant, one would expect an employment increase to mirror that smaller class size (fewer job applicants for the same number of jobs). Even with a 6.5 percent smaller class size, the “increase” in employment was only 2.9 percent.8 Had the legal economy been growing, at a minimum one would expect the increase in FTPJD employment to have more closely mirrored the 6.5 percent in reduced class size. In absolute numbers, nationally the ABA reported that the total number of FTPJD jobs obtained by the Class of 2014 was actually less than the total number of FTPJD jobs for the 2013 class.9 In Ohio Unemployment Grows....

While the national Law Class of 2014 shrank 6.5 percent from 2013, the number of graduates from Ohio law schools shrank from 1,476 in 2013 to 1,297 in 2014, a 12 percent decrease. Apparently, it wasn’t enough. Even with less competition through smaller class size, the chart included tells the sad story. The unemployment rate for 2014 Ohio grads - not employed at any job of any kind - increased to 13 percent from 9.7 percent in 2013. In Columbus, it was the best of times, it was the worst of times. Capital University’s Class of 2014 had the highest unemployment rate in the state at an eye-popping 31 percent, more than triple its 2013 rate.

Capital also had the state’s lowest FTPJD employment rate at 38.8 percent. In an employment Tale of Two Law Schools, Ohio State had the state’s highest FTPJD employment rate at 73.8 percent and the lowest unemployed rate at 1.4 percent In 2013, three of Ohio’s law schools had unemployment rates worse than the national average. In 2014, that number doubled to six. ...As Employment Shrinks Overall in Ohio, the 2014 employment numbers were worse than those in 2013. In absolute numbers, 2014’s Ohio law graduates had 119 fewer FTPJD jobs on March 15, 2015 than the Class of 2013 had on Feb. 15, 2014, a reduction of 15 percent despite a longer reporting period. That reduction translated to a decrease in FTPJD jobs from 55.5 percent in 2013 to 54 percent in 2014, continuing a multi-year trend in which Ohio’s law schools underperformed the important FTPJD national average. In 2013, four of Ohio’s law schools had FTPJD employment above the FTPJD national average.

In 2014, that number dropped to two. Further, the size of that underperformance increased in 2014. In 2013, Ohio’s law schools underperformed the national FTPJD average 14

Fall 2015 Columbus Bar Lawyers Quarterly

by 1.5 percent. In 2014, they underperformed the national FTPJD average by almost 6 percent.

Employment projections by Ohio’s Bureau of Labor Management Information (BLMI) are not encouraging.

BLMI’s most recent predictions actually show Ohio’s legal sector losing jobs through 2016. Long-term predictions through the year 2022 show the number of Ohio law graduates being probably double or more of the projected job openings.10 These numbers tell us that the legal job market in Ohio is not growing and is unlikely to do so in a manner that can sustain the projected output of new attorneys by Ohio’s law schools. Further downsizing is still needed in the form of fewer Ohio law schools and/or fewer law students in order to get future Ohio law classes to a reasonable level of employment. ...But the “Debt-inator” Keeps On Growing But if there’s a certainty in this uncertain hiring story, it’s law school debt, and in 2014 the law school debt machine kept rolling. The average law school debt for 2014 law graduates increased over 2013 at seven out of Ohio’s nine law schools, although several of those increases were marginal.

Case Western had both the highest average law school debt at $131,724 and the highest percentage year-over-year debt increase at 16.1 percent. Overall, Ohio’s Law Class of 2014 graduated with law school debt totaling $113,298,425. Using that overall figure, the average debt per FTPJD job obtained for the Class of 2014 (700 total) was $161,854, running from a high of $275,168 of debt per FTPJD job at Capital to a low of $105,532 of debt per FTPJD job at Cincinnati.

All in nondischargable debt. Somewhere, America’s bankers are smiling. http://www.bloomberg.com/news/articles/2015-03-19/ law-school-applications-will-hit-their-lowest-point-in-15years 2. http://www.lawschoolcafe.org/thread/what-happened-tothe-class-of-2010/ 3. http://www.bloomberg.com/bw/articles/2015-01-06/ getting-into-law-school-is-easier-than-it-used-to-be-andthats-not-good 4. http://www.bloomberg.com/news/articles/2015-04-15/ the-smartest-people-are-opting-out-of-law-school 5.

Id. 6. http://dealbook.nytimes.com/2014/12/01/law-schoolbecomes-buyers-market-as-competition-for-best-studentsincreases/ 7. http://www.bloomberg.com/news/articles/2015-03-19/ law-school-applications-will-hit-their-lowest-point-in-15years 8. h t t p : / / w w w. a m e r i c a n b a r. o r g / c o n t e n t / d a m / a b a/ administrative/legal_education_ and_admissions_to_the_bar/ statistics/enrollment_degrees_ awarded.authcheckdam.pdf 9. h t t p : / / w w w . a m e r i c a n b a r. org/news/abanews/aba-newsarchives/2015/04/american_bar_ associa0.html 10.

BLMI data on file with the author.

1.

Jason M. Dolin, Esq. jmdolin@sbcglobal.net

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Fall 2015 Columbus Bar Lawyers Quarterly

15

MR. TOAD’S WILD RIDE … OR THE NEWLY MINTED (SOLO) ATTORNEY’S WILD RIDE

By Bradley N. Jeckering As a kid, I remember going to Walt Disney World and looking forward to any ride that would allow me to escape from the swamp-like, muggy atmosphere of central Florida. One of the more memorable air-conditioned retreats came in the form of “Mr. Toad’s Wild Ride.” The ride was fast, unpredictable and showered riders with a story filled with explosions, alcohol, police officers, angry judges and little demons … all hurled as the rider sped along sharp turns and threatening trap doors.

Much like Mr. Toad, solo attorneys face a wide variety of practical and practice-related hurdles. As a newly licensed attorney who started his practice shortly after licensure, the business challenges, practical legal challenges and actual legal work can seem beyond your control and, at times, insurmountable.

Here’s what I’ve learned on my wild ride: Quality, Cheap Stuff Exists Starting a law practice straight out of law school creates a variety of problems. From a financial perspective, a recent law graduate has extremely limited resources. Despite that fact, a 21st century business needs a website, some measure of online marketing and a company identity. I received several quotes from friends and friends-offriends, all of which nearly caused immediate cardiac arrest.

I did some research on small business contractors and found an amazing website called freelancer.com. This site is filled with freelancers from around the globe who want to work for you. It is essentially outsourcing for the small business. All freelancers have ratings from previous employers, and their talents range from web design, graphic design, data entry and beyond. My website and graphic design work was done for around $175. It is a beautiful 16

Fall 2015 Columbus Bar Lawyers Quarterly

website (in my not-so-humble opinion) and I achieved a brand identity for 10 percent of the lowest friend-of-a-friend quote.

You’ll Never Know Unless You Ask “I don’t know,” and “I need help.”

These phrases are some of the most powerful words an attorney can utter when speaking with a clerk, bailiff or court staff. As a new attorney, one of the first lessons I learned was that the mechanics of law operate differently depending on where you are, geographically and judicially. What flies in Champaign County is foreign in Franklin County, and Municipal is different from Common Pleas.

Saying to the Clerk of Courts, “I need help,” or “This is my first time doing …” will generally make your life easier. I have heard that sometimes lawyers can be rude to court staff or try to save face by being overly demanding. I think this is a misguided tactic. Asking for help is a sure fire way to gain some sympathy points and to learn how to practice effectively in whatever court you’re in.

You’re not the first new, inexperienced attorney … don’t be embarrassed. Say the magic words and learn. You’ll be a better lawyer for it.

Falling Down Doesn’t Hurt As Much As You’d Think I operate two offices, one at Easton and one in Mechanicsburg, Ohio.

When I started building my dream, Mechanicsburg, Ohio wasn’t on the map. I had a very narrow idea of where I wanted to practice law. Late last year, I received a group email that went out to recent alumni regarding an opportunity in Mechanicsburg, and I figured I’d go check it out. Before I knew it, I had met an amazing pillar in the Ohio legal community, opened an office in Mechanicsburg and had paying clients walking in off the street (yes, you read that correctly, walking in).

Had I ignored that email or been too afraid to put myself out there, my career as a solo attorney may have been short lived. I took a calculated risk and was willing to accept the help of a very generous attorney. Taking risks and deviating from my original career path has enabled me to meet great people and to grow as an attorney. I’m glad I took the blinders off and took a risk in rural Ohio. Consider something that isn’t on your road map and you might luck into your dream.

Riding Off The Rails Like “Mr. Toad’s Wild Ride,” starting a solo or small practice can feel like you’re speeding along with no idea of what is around the next corner.

The reality is that there are an infinite number of practitioners, court staff and services available to help you manage whatever hurdle you face. Being humble, taking risks and expanding my horizons has allowed me to have an amazing start to my legal career. I encourage you to be willing to take the wild ride and realize you’re not in this alone.

If you have questions about initial hurdles to opening a practice or practicing outside of Columbus, feel free to email me at brad@centralohiolegal. com.

Bradley N. Jeckering, Esq. The Law Offices of Bradley Jeckering, LLC brad@centralohiolegal.com

Why Every New Lawyer Should Blog

By Bryan M. Gramlich Chances are that your first job will not necessarily be an exact match with the area of law you would most like to practice. A challenge all new lawyers face when first entering the legal profession is how to direct their career in the direction they want it to go. For example, how can a young litigation attorney start to build a trademark litigation practice without first having clients with trademark problems? One simple way to introduce your name and your area of interest to the legal community and potential clients is to start writing a legal blog. Additionally, a good blog will appear in Internet searches about you instead of generic directory websites.

A legal blog is a great way to immerse yourself in a topic in which you have interest. A new lawyer can report on recent cases from the local area or from around the state and country or troubleshoot potential gaps in areas of the law. Blogging is not only great for learning about the specific area in which you are interested; it can connect you with potential clients and future employers and hone your ability to write for a diverse audience.

Catch the Eye of Potential Clients As all young lawyers know, it can be exceedingly difficult to build a client base while working as an associate attorney. A blog can connect you with potential clients who find you while searching for a solution to a problem they may have. Even clients who come to you or your firm through a referral are likely to do a cursory Internet search of you prior to handing over a fee for your services. A good legal blog in your practice area shows potential clients you are paying attention to the issues in the area and will stay on top of their legal needs. It can also show potential clients that you understand the practical effects that a case or law can have on a business, a skill every effective lawyer must possess.

A legal blog is a great way to immerse yourself in a topic in which you have interest.

Create an Online Portfolio for Potential Future Employers A potential employer is going to Google you before they ever meet you in person or conduct a phone interview. A good blogging history can show a potential employer that a job candidate is knowledgeable in an area of law even if the candidate’s resume does not necessarily reflect a great deal of experience. Legal employers want to know that you are seriously interested in the area of law for which you are applying. To keep a consistent example, if a new lawyer applies for a position as a trademark attorney and the first Google results are blog posts about relevant trademark issues, the hiring attorneys will see that the new attorney is serious about the trademark practice and already knowledgeable in the area.

audience. Good blogging will tell clients how a case or issue will affect the bottom line of a client’s business. However, the blog must also tell the informed reader why a case or issue is legally intriguing.

Additionally, as a young lawyer, it is easy to forget how to write for a nonlegal professional. Blogging is a great way to learn or re-learn how to present the law to a non-lawyer in a way that is easy to understand.

For these reasons and more, legal blogging is a vital tool for a new lawyer to learn new writing skills, create a new means of client development and to further his or her own career.

Learn to Write for a Diverse Audience Perhaps the most useful skill you will acquire from writing a legal blog is learning how to write for a diverse

Bryan M. Gramlich, Esq. United States District Court bryangramlich@gmail.com

Fall 2015 Columbus Bar Lawyers Quarterly

17

King v. Burwell, the Supreme Court’s Recent Decision Upholding the Affordable Care Act

By Doug L. Anderson and Tal A. Schapira The Affordable Care Act1 was enacted into law five years ago and took full effect on Jan. 1, 2014. Designed to expand coverage in the individual health insurance market, the ACA established a series of reforms including: • A requirement that insurers “guarantee issue” coverage to all individuals regardless of health conditions and without pre-existing condition exclusions, • Low-income subsidies to people with incomes up to 400 percent of the federal poverty level (FPL) to help pay for coverage, • Health insurance exchanges for people to shop for, compare and buy coverage and • An individual mandate requiring people to buy insurance if it is affordable or otherwise pay a tax penalty.2 In June, the United States Supreme Court decided King v.

Burwell, rejecting a challenge to the authority of the federal government to provide subsidies to people living in states – including Ohio – where the federal government, not the state, operates the exchange.3 The plaintiffs in King v. Burwell were residents of Virginia, which is a state with a federal exchange. The plaintiffs wanted to exclude themselves from the individual mandate, which requires individuals to buy insurance if it is affordable.

The plaintiffs had incomes less than 400 percent of the FPL and, thus, were eligible for subsidies. Without the subsidies, insurance would not have been affordable to the plaintiffs and, consequently, they would not have been required to buy insurance. Thus, the alleged harm to the plaintiffs resulting from the subsidies was the fact that the subsidies caused the plaintiffs to be required to buy insurance under the individual mandate.

Like the plaintiffs, many people buying insurance through exchanges are eligible for subsidies. In February 2015, 8.8 million people had enrolled in individual coverage in federal exchanges. Of that amount, 7.7 million people – or 87 percent – received subsidies. The subsidies significantly reduce the cost of coverage. Average premium rates before subsidies were $364 per member per month. After subsidies, average premium rates were reduced by 72 percent to $101 per member per month. Subsidies therefore impact most people buying coverage through exchanges and are a significant motivating factor for buying coverage.

Because of this situation, many people feared that a decision by the Supreme Court to strike down subsidies in states with federal exchanges would cause major problems in the individual market. People losing subsidies would have seen premium rates rise by an average of 300 percent. In terms of the effect of this increase, estimates were that healthier people would be more likely to drop coverage than sick people. With healthier people dropping coverage and sicker people remaining insured, the average cost of insurance in the individual market would have risen even higher, making the cost of coverage prohibitive for most people.

18

Fall 2015 Columbus Bar Lawyers Quarterly

Plaintiffs in King v. Burwell argued that the subsidies in Virginia were illegal because the ACA authorized subsides only in states with state-operated exchanges, not in states with federal exchanges. This argument was based on an ACA provision that subsidies were only available “through an Exchange established by the State.”4 The plaintiffs argued that the plain language of this provision meant that subsidies were not available in the 34 states with federal exchanges, including Virginia and Ohio.

The federal government countered that subsidies were intended for people in all states and the ACA treated state exchanges the same as the federal exchange in all material respects. Consistent with this position, in 2012 the IRS issued a regulation authorizing subsidies for individuals enrolled through any exchange “regardless of whether the Exchange is established and operated by a State...or by HHS.”5 Thus, the issue in King v. Burwell was whether the IRS had authority to adopt a rule extending subsidies to coverage obtained through federal exchanges.

In a majority decision supported by six justices, the Supreme Court saw its task as determining a correct reading of the statute authorizing subsidies, recognizing that words or phrases may only be evident when placed in context. In reviewing the ACA, the Supreme Court observed that all states were required to establish exchanges but, if a state decided not to do so, the federal government was required to establish “such Exchange” in the state.6 Based on this language, and other provisions in the ACA which accorded the same treatment to state and federal exchanges, the Court held that “State Exchanges and Federal Exchanges are equivalent and must meet the same requirements, perform the same functions and serve the same purposes.”7 Turning to the purpose of the ACA and its major reforms, the Supreme Court found that the reforms in the ACA were designed to work together to minimize adverse selection, broaden the health insurance risk pool and lower health insurance premiums. The Court found that if low income subsidies were not available, a state’s individual health insurance market would not function as intended.

Reviewing the ACA in its entirety, the Court found that Congress intended all aspects of the ACA to apply in every state regardless of the type of exchange, upholding the IRS rule and foreclosing the possibility that the IRS or any other federal agency could take a contrary view in the future.

The dissent in King v. Burwell,8 comprised of Justices Scalia, Alito and Thomas, took a starkly different view, focusing on the plain language of the provision limiting subsidies to coverage obtained through a state exchange.

Justice Scalia found the majority decision “absurd,” with the majority crossing out the words “by the State” in the ACA not once, but seven times through interpretive “jiggery pokery” and with reasoning that was “pure applesauce,” such that “[w]ords no longer have meaning.”9 The other dissenters had similar views which focused on the specific

provision limiting subsidies to “State Exchanges,” with equally persistent but somewhat less expressive language.

King v. Burwell is the second ACA case to reach the Supreme Court and the second time the Supreme Court has rejected a major challenge to the ACA. Although there are other cases in the lower courts challenging aspects of the ACA, none of those cases rise to the level of King v. Burwell in terms of the impact that an adverse decision could have on the major components of the law. With the Supreme Court’s decision in King v. Burwell, the ACA remains effective in all states and it is likely to remain that way for the foreseeable future.

1.

2.

3.

4.

5.

6.

7.

8.

9.

The Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (2010), as amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 11-152 (2010).

In Nat’l Fed’n of Indep. Bus. v.

Sebelius, the Supreme Court upheld the ACA’s individual mandate, holding that the ACA’s “requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” 132 S. Ct. 2566, 2600, 183 L. Ed. 2d 450, 490 (2012).

King v. Burwell, 135 S. Ct. 2480, 192 L. Ed. 2d 483 (2015).

26 U.S.C. § 36B. 45 C.F.R. §155.20.

42 U.S.C. §18041.

King, 135 L.Ed. 2d at 495.

King, 135 L.Ed. 2d at 501, et seq.

Id.

WHEN SHOULD AN ATTORNEY HIRE A CART PROVIDER?

By Angie R. Starbuck If you’ve ever worked with a client or witness who is deaf or hard of hearing, you both may have struggled with communication. One of the many methods of assisting people who are deaf or hard of hearing with communication utilizes the same process, equipment and software that court reporters use.

It is called Communication Access Realtime Translation or CART. While many of you reading this are familiar with court reporters and how they help you in a deposition or court setting, you may not be aware that there is another specialty that some court reporters have that allows them to provide services to individuals who are deaf or hard of hearing.

Court reporters who specialize in providing CART services write what is being said in a deposition, hearing, trial or meeting, and the words are instantly translated to a laptop screen for the end consumer to read, thereby allowing them to participate equally in whatever proceeding is taking place.

Here are four tips on when and why it would be helpful to hire or request a CART provider in a legal setting: 1. If your client is deaf or hard of hearing and they are being deposed, a CART provider could help facilitate communication for your client. Keep in mind that CART is a one-way communication service, so if your client uses American Sign Language to communicate, CART may not be the best option.

2. If your client is deaf or hard of hearing and their case is going to trial, utilizing a CART provider during the trial could be very beneficial for your client. This service would ensure they are provided the same access as hearing individuals to all that is said during the proceedings.

Doug L. Anderson, Esq. Bailey Cavalieri, LLC Doug.Anderson@baileycavalieri.com Tal A. Schapira Student, Ohio State University Moritz College of Law Talschapira@gmail.com

While there are many similarities between an official court reporter and a CART provider, there are some important differences: 1. The role of the CART provider is to assist with communication whereas the official reporter’s role is to provide a verbatim record of the proceedings.

The official court reporter should not provide CART services in the same proceedings unless there are extenuating circumstances and there is no other option available.

2. In a legal setting, a CART provider is not to provide a transcript or electronic file of any kind. The court reporter’s transcript is the official record.

3. A CART provider may include environmental sounds, like sirens wailing or books slamming, so the consumer gets a sense of what’s being heard by others around them, where the official court reporter will only write the spoken word.

While not every court reporter is able to provide CART services, there are many that work in both settings. CART providers also work in high school, university, corporate and medical settings. Like court reporting, there are also certifications for CART providers by the National Court Reporters Association. Look for a Certified CART Provider or Certified Realtime Reporter when hiring a CART provider. You can locate a qualified CART provider by searching the NCRA Sourcebook or asking your favorite court reporter for a referral.

3. If you have a witness who is deaf or hard of hearing who will be testifying in court, you should bring this to the attention of the judge or other judicial personnel so that appropriate accommodations can be made to have a CART provider there for the witness.

4. If you, yourself, are deaf or hard of hearing, consider requesting a CART provider to assist you in court.

Angie R. Starbuck, RPR, CRR, CCP PRI Court Reporting LLC angie@priohio.com Fall 2015 Columbus Bar Lawyers Quarterly

19

Tourism in Spain Is Popular and Quite Delightful

By The Honorable David E. Cain With mountains and seashores and two of the leading city destinations in Europe, Spain has become a world leader in tourism.

The reasons to go are almost without limit: history, art, culture, scenery, architectural delights, diverse landscape and entertainment, to name a few. And that’s just from seeing a small part of it. Spain is second only to Switzerland as the most mountainous country in Europe and has famous ski resorts all over. The endless sandy beaches along both the Mediterranean Sea and the Atlantic Ocean make coastal resorts popular as well.

About 10 years ago, Spain became the second most visited country in the world. France was first. Now, it also trails the United States and China. Tourism contributes about 6.5 percent of its GDP, with Madrid and Barcelona leading the way.

My wife, Mary Ann, and I went to Spain with the Chancel Choir of St. Luke’s United Methodist Church in Indianapolis. My sister, Alice Shooter, a member of the choir, invited us to fill some extra slots. Their schedule of concerts added elements of purpose and anticipation to the journey.

We arrived in Madrid around noon on a Sunday. The city has numerous open spaces – called plazas, squares or centers – surrounded by narrow streets. That was the case with our hotel, the Me Meliá Madrid, on the Plaza de Santa Ana in the heart of the city’s literary district, the former home of such literary greats as Miguel de Cervantes (1547-1616), the creator of Don Quixote, and Pedro Calderón de la Barca (1600-1681).

The building was constructed in the 1920s as a luxury department store and converted to a hotel in the 1980s. Our bus had to unload about a block from the building. But it was in a great central location, just a few blocks from the Museo Nacional del Prado to the east or the Royal Palace to the west.

First, we got an overview of Madrid’s biggest attractions by boarding an opentop tour bus. We saw many of the same sites during a walking tour the next day.

At no time day or night is the square in the city center lacking people, our tour guide, Maury, commented. One of the narrow streets leading up to it carries more than half a million pedestrians every day, he added. A three-story building in the city center is considered the exact center of the entire country. Everything is measured from this building, Maury pointed out, which serves as a focal point, like Times Square in New York City on New Year’s Eve. Another feature is a statue of Carlos III, aka Charles III, the king who loaned money to the colonies to help fund the American Revolution.

Madrid sits on a plateau 650 meters above sea level. The weather was fine during our visit. But Maury described it as “nine months of winter, three months of hell,” noting that the temperature goes from 32 to 120 degrees.

Madrid grew eastward from the Royal Palace (built in the 17th Century). The “main” square (a place for markets, bull fights and public executions in the 1400s) moved several times and the wall around the city was rebuilt four times (each time further out). Now, Madrid has a population of 3.2 million with 7 million in the metropolitan area. In the 1600s, the Plaza Mayor was the main gathering place. All the facades were cleaned in the 1980s, and it is now the most expensive place to live with space going for 7,000 euros a square foot, despite the need for extensive renovations. Nearby is the oldest ongoing restaurant in the world, the Sobrino de Botin, established in 1725.

The Museo Nacional del Prado sits at the end of a five-mile, multi-lane Paseo del Prado (one of the few wide streets in Madrid) known as the Boulevard of Power. Urbanized in the 18th century, the street now features government offices, embassies and numerous corporate headquarters. The world-class museum (one of three in the immediate area) featured the works of such artists as Goya, van der Weyden, Raphael, Rubens and Rembrandt.

We thought about going to a bull fight that night, but Bob Zehr, a member of the choir who operates the travel agency that put the whole trip together, had a full agenda staked out, this time a flamenco dancing show at the historic (opened in 1911) and colorful Villa-Rosa tablao next door to our hotel. To my unsophisticated mind, flamenco was a highly energetic combination of tap dancing 20

Fall 2015 Columbus Bar Lawyers Quarterly

and clogging. With a single guitar player and singer/chanter (who reminded us of Stevie Nicks) providing the background music, the dancers (two females and a male) took turns tapping, stomping, flailing, arching, hip gyrating and finger snapping while moving quickly around the stage. They totally filled the audio and visual senses, and I concluded that it was just as entertaining as watching a bull get skewered in the dust.

The next day, Mary Ann and I took a side trip about 50 miles south of Madrid to the scenic and historic city of Toledo (pronounced Toe-lay-doe) where the walls were built in the 9th century. It’s the place one needs to go if interested in buying a sword or a suit of armor. It also has a great cathedral, a diocese building that houses the cardinals for all of Spain, the fascinating tomb of Don Gonzalo Ruiz de Toledo, a 12th century synagogue, the monastery of San Juan de los Reyes (built by catholic monarchs in the 15th century) and the Alcázar Fortress overlooking all of it. Toledo is so accommodating to tourists that a set of four escalators take visitors up about a thousand feet from the parking lot to the old town perched atop a mountain. So, who gets hurt on an escalator? Mi. Standing sideways and paying attention only to the landscape I was photographing, the side of my foot hit the stationary metal plate at the top of the moving stairs so hard that I walked with a limp and a swollen foot for the rest of our overseas venture. Back home about two weeks later, a x-ray revealed a broken metatarsal. Glad no particular treatment was in order.

That night the choir had its first concert about a mile from the hotel at the Real Basílica de San Francisco el Grande.

On its way, the choir stopped at the “main” square to sing a couple songs and hand out invitations. The concert had good attendance. I don’t know if the flyers helped. Fortyeight choir members (about a third of the total) came on the Spanish trip and another 30 of us tagged along.

We went by bus the next day to the charming, smaller city of Segovia (population of 55,000) where the main attraction was obvious from a distance – a massive aqueduct built of large granite blocks by the Romans some 2,000 years ago to bring water to the top of the hill in Segovia from a mountain nine miles away. The part of the structure that still remains is about 1,200 feet long and stands about 100 feet tall at the highest stretch. The granite came from a quarry nearly five miles away. At one time, the aqueduct provided water for 11,000 people.

Segovia is anchored by Plaza Mayor, stretched across its highest point with the Catedral de Nuestra Señora at one end, the San Juan theater at the other and restaurants and shops in between. The choir performed its second concert at the theater where tickets were sold to support a mission project of a local church. Again, a nice crowd attended.

About two blocks west of the cathedral is the Alcázar de Segovia. Rising above a rocky crag overlooking the confluence of two rivers near the Guadarrama mountains, it served as one of four castles for Isabel and Ferdinand V who (uniquely) reigned with equal authority. Before Ferdinand, the city had been divided into sections for Christians, Jews and Moors who coexisted quite peacefully. A plaque in the castle sums things up: “Ferdinand V. 1452-1516. King of Castile and Aragon. Established the inquisition at Seville.

Expelled the Jews and Moors. Promoted expeditions of Columbus and Vespucci.”

The next morning we headed westward into the La Rioja wine country. It was Mary Ann’s birthday and the first time she’s had “happy birthday” sung to her by a chancel choir in

a winery. After spending the night in the quaint and charming town of Haro, we bussed to the small town of Nájera where we began a walk of about three and a half miles along the El Camino de Santiago trail, a minuscule part of the Way of St. James where pilgrimages have been taking place for hundreds of years. Along the beautiful wildflower-lined trail through the vineyards that snaked over rolling hills to the mountains on the horizon, the hike was good for the eyes and the soul but hard on my foot still smarting from the escalator attack.

Then, on to Barcelona where our hotel was located directly on the La Rambla, a .7-mile long street in the central city with a wide pedestrian mall that is bustling 24-7 and leads to the 200-foot column holding a statue of Christopher Columbus overlooking the Port of Barcelona in the exact spot where he disembarked after returning from his discovery of the “New World.”

Sunday was a big day for the choir – from singing at a small church where the sanctuary sat behind a row of storefronts to performing a couple of selections inside the world renowned La Basílica de la Sagrada Família (aka Catedral de Barcelona) and to presenting a final concert that evening in an historic basílica a few blocks from our hotel.

Construction of the Sagrada Família began in 1882 and is expected to be complete by 2026, a hundred years after the death of Antoni Gaudí who designed and began building the architectural masterpiece over a period of 43 years. He left models that are still being followed. Nowadays, the work is progressing much faster with the use of cranes and computers. With the naves now closed, the church has 4,500 square meters where 8,000 people can worship. It is nearly 250 feet to the top of the dome inside and nearly 400 feet to the top of the ornate bell towers outside. The front has three facades bearing collections of statues replicating Christian scenes from the nativity to the cross. It’s a “temple of atonement,” so contributions of work or money will “open the gates of Heaven.”

Massive stained glass windows in circular and oblong patterns line the sanctuary and send streams of vivid pastel colors creeping down the white stone walls, pillars and arches at mid-afternoon until it looks like you are standing in a gigantic bowl of spumescent spumoni.

On our last day in Spain, we travelled by bus about an hour north to Montserrat. Literally translated, it means serrated mountain, so named because it looks like the sides – rising nearly straight up more than 4,000 feet – were cut by a serrated knife. Montserrat is also accessible from Barcelona by train and cable car. Near the top of the mountain – where Gaudi found inspiration for the Sagrada Família – is a monastery with a 12th century Black Madonna statue and a basílica where we were thrilled with a short performance by the world famous boys’ choir, L’Escolania, before our choir did a couple songs of their own. The views around the monastery were truly breathtaking.

The choir flew back to Indianapolis the next day. Mary Ann and I flew to London to meet an English couple who became good friends on a Danube riverboat cruise.

Hon. David E. Cain Franklin County Court of Common Pleas David_Cain@fccourts.org Fall 2015 Columbus Bar Lawyers Quarterly

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Citizenship and Naturalizations

By David S. Bloomfield Sr. and Orsolya Hamar-Hilt I wonder when was the last time you asked yourself the question: “What does citizenship mean to me?” Probably, it was a long time ago, maybe in grade school or not at all.

However, citizenship is at the heart of modern debates about personal autonomy, nationhood and the nature of individual and collective responsibility.

Citizenship can be acquired at birth or at some later time.

Throughout the world, two definite principles are established that grant citizenship. One is jus soli, meaning the right of the land. It is associated with the English Common Law. Jus soli confers citizenship on persons born within that nation’s territory. The Immigration and Naturalization Act 301 (a) states that a person born in the United States and subject to the jurisdiction thereof shall be a citizen of the U.S. Now comes the question whether those who were born on an Indian reservation or in one of the United States’ outlying possessions are citizens or not. The law states that a person born on an Indian reservation is also a citizen.

The other principle that grants citizenship is jus sanguinis, citizenship by derivation. The Constitution does not mandate citizenship by descent, but it has been the concept of U.S. statutory law since 1790. Jus sanguinis grants citizenship after birth.

According to INA 301, every person born in the United States is a U.S. citizen. The law, however, reaches out to other individuals and grants them citizenship as well. INA 301 grants citizenship to those who were born outside of the U.S. but to citizen parents. It also includes those who were born outside of the U.S. to a citizen and a national parent but requires that the citizen parent reside in the U.S. for a period of one year prior to the birth. The law goes even further when it states that a person is a U.S. citizen if he or she was born outside the geographical limits of the U.S. but one of the parents is a citizen, the other one is an alien and the citizen parent was physically present in the U.S. for five years.

The United States Constitution declares that the president be not merely a citizen, but a “natural-born citizen.” The qualifier “natural-born” is not defined in the Constitution.

This became an issue during the 2008 presidential campaign.

Republican nominee John McCain was born in the Panama Canal Zone to two U.S. citizens. Some argued that McCain did not become a U.S. citizen until Congress passed a Canal Zone citizenship law one year later, and therefore, McCain was not a “natural-born” citizen.

INA 301 (g) grants citizenship to persons born outside of the U.S. and its territories if they were born to U.S. citizens.

The issue is whether they are “natural-born” or not with respect to the constitutional requirement. The short answer is that we do not know.

If someone satisfies the above requirements, he or she becomes a U.S. citizen without any further application. The law treats them as if they were born in the U.S. Acquiring U.S. citizenship by jus sanguinis could have been easy at one point. Originally, those born outside of the U.S. to U.S. citizens became U.S. citizens as well. It meant citizenship could have been transmitted in perpetuity 22

Fall 2015 Columbus Bar Lawyers Quarterly

The other principle that grants citizenship is jus sanguinis, citizenship by derivation. The Constitution does not mandate citizenship by descent, but it has been the concept of U.S. statutory law since 1790. Jus sanguinis grants citizenship after birth.

without the requirement of ever being physically in the United States. To prevent this result, Congress attached two limits to this principle. First, the parents had to meet certain physical presence requirements in the U.S. before the child’s birth; second, the child had to be in the U.S. and remain for a certain period of time. This latter requirement is called the retention requirement, which was abolished by Congress in 1978. However, it was not abolished retroactively; therefore, all of those who lost their citizenship by descent for failure to reside in the U.S. did not benefit from the change.

INA 320 governs the requirements of becoming a U.S. citizen without filing for naturalization. Obviously, under INA 301 the person does not need to be a legal permanent resident, while INA 320 requires that the person be physically present in the U.S. and be a permanent resident of the U.S. A child born outside of the U.S. automatically becomes a U.S. citizen when all of the following conditions have been met: 1. The child has, at least, one parent who is a U.S. citizen by birth or through naturalization, 2. The child is under 18 years of age, 3. The child is a legal permanent resident, also known as green card holder, and 4. The child is residing in the U.S. in the legal custody of the U.S. citizen parent.

An adopted child by a U.S. citizen automatically becomes a citizen when the child comes into the U.S. with a green card. In cases of doubt of whether a person is a U.S. citizen at birth or becomes a U.S. citizen automatically after birth, the question is whether either the mother or father is a U.S. citizen.

What does it mean to be naturalized? Naturalization is the process by which U.S. citizenship is granted to a foreign citizen after he or she fulfills the requirements established

by Congress in the Immigration and Nationality Act. Those persons who are lawfully admitted for permanent residence may apply for citizenship by filing an application. INA 316

(a) provides that a person is eligible for naturalization if he or she has been residing in the U.S. for five years prior to application and has been physically present in the U.S. at least two and a half years prior to the application for naturalization. Further requirements include that the person has to reside continuously in the U.S. from the date of application up to the time of admission for citizenship. Besides the residency requirements, a good moral character is a major requirement to be eligible for naturalized citizenship.

A Tabloid Tale

By Lloyd E. Fisher Jr.

David S. Bloomfield Sr., Esq. Bloomfield & Kempf dbloo@msn.com

Anna Marie Hahn has the dubious distinction of being the first woman to die in “Old Sparky,” the Ohio electric chair. Convicted of multiple murders in 1937, she was executed on Dec. 7, 1938.

The youngest of 12 children, her tabloid-story life began at her birth in Bavaria in 1906. As a teenager, she had an out-of-wedlock son, Oscar, whom she left in Bavaria in 1927, when she came to Cincinnati to live with relatives. She later brought Oscar to Ohio during a failing marriage and, after the break-up, needing money to support a gambling addiction, she began to offer her “nursing” services to elderly men in the Cincinnati German community. Her first patient was Ernest Koch, who died on May 6, 1932. Ernest’s will left Anna his house which also included a doctor’s office. The office apparently was a source of the blank prescriptions which Anna later used to obtain drugs.

Anna’s next patient was Albert Parker, from whom she borrowed money prior to his death. In quick succession, Jacob Wagner and George Gsellman both died under Anna’s “care.” Wagner included Anna in his will for a gift of $17,000 and Gsellman provided her with $15,000.

Anna’s apparent last victim was George Oberdoerfer with whom she and Oscar had traveled to Colorado in 1937. While there, George died an inexplicable death, and doctors notified the local authorities. Their investigation revealed that, posing as Mrs. Oberdoerfer, Anna had tried to obtain George’s funds and had attempted to pawn diamonds stolen from the hotel.

The Colorado authorities obtained a warrant for Anna’s arrest but, by that time, she had returned to Cincinnati. Confronted by local police, Anna claimed that she had met George on the train to Colorado. She said that they had agreed to share a hotel room but then he became ill.

Suspicious, the Hamilton County authorities obtained orders for autopsies of the bodies of several of Anna’s “patients.” All of the tests revealed poisoning. In August 1937, Anna was charged with the murder of Jacob Wagner.

The trial began on Oct. 11, 1937 and the state presented a solid case.

A newspaper account stated that a chemist testified that the victim had enough arsenic in him “to kill four men.” The evidence also included jars containing the organs of two of the other victims. The prosecutor gave a vivid and dramatic closing argument, while the defense attorney said, “Although she is no angel, she is not guilty of the murder of Jacob Wagner.”

After only two hours of deliberation, the jury, consisting of 11 women and one man, found Anna guilty, with no recommendation for mercy.

Following extensive but futile appeals, on Dec. 7, 1938, Anna was strapped in the electric chair in the Ohio State Penitentiary in Columbus and was electrocuted, holding the prison chaplain’s hand.

Anna’s last letters were sold to the Cincinnati Enquirer under an agreement that placed the payments into a trust for Oscar. His later life was never made public except to note that he served in the U.S. Navy during World War II. Anna’s story is detailed in the book “The GoodBye Door” by Diana Britt Franklin, a winner of the Governor Thomas Worthington Award for Ohio Biography.

Orsolya Hamar-Hilt, Esq. Supreme Court of Ohio Office of Disciplinary Counsel Orsolya.Hamar-Hilt@sc.ohio.gov

Lloyd E. Fisher Jr., Esq. debrigh@columbus.rr.com Fall 2015 Columbus Bar Lawyers Quarterly

23

Classmates, Colleagues, Friends?

By Jameson C. Rehm Put kindly, law school is difficult. The long hours, difficult material and the idea that a bad grade on a final can lead you to retaking an entire 14-week class can lead to all sorts of problems. Add that each student is working against their fellow classmates for the coveted top spots in the class, and the situation appears to lend itself to back stabbing and a lonely existence. I have learned that first impressions can be deceiving.

I, and more than 50 equally crazy night students, have just completed our first year at Capital University Law School.

Starting in late July 2014 and ending in mid-July 2015, our group went from total strangers already saddled with full-time lives to a close knit group of hardened soon-to-be attorneys in under 365 days. And most importantly, instead of fighting for rankings and grades, our group worked together with one common goal: survival.

This story of camaraderie couldn’t be told without some of the characters being brought to the fore. While I wish I could tell you the back stories of each of my classmates, I have neither the space nor your attention span for that kind of writing. Instead, here are just a few of the many people that not only made this first year possible but *gasp*, enjoyable.

For those of you that also survived the night program, I’m sure you’ll find parallels to your own experience. For those that did it the traditional way, read on to see what you missed.

Thomas Spyker, a federal police officer by day and our class representative by night, gets top billing as he basically single handedly brought this class together. Our class discovered rather early on that we were not going to enjoy Contracts.

Spyker solidified his leadership position by taking precious time to create a space where all classmates could electronically congregate, to initially discuss our boredom, anger and frustrations directed at Contracts.

He also produced a towel embellished by a Contracts question, which he then used to question the professor during a class. The rest of that story should be told at a different time. Did I mention he’s on the dean’s list?

Another dean’s list member and smartest 24

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classmate (though he would never agree to it) is Jesse Shamp, who works for the Governor’s office assisting with political races throughout the Ohio. Shamp currently enjoys a 3.9997 (or something along those lines – the poor guy got an Aonce) while holding down a full time job and easily sitting in the top 10 of the current class of 2018. I’ve heard stories of some of the smartest people in classes closing themselves in with their books, working tirelessly in search of that elusive 4.0. Shamp is the complete opposite, helping anyone with a question and quick with an explanation. Shamp is an enigma – a humble, incredibly bright, soon-to-be exemplary attorney.

Each person in class has to be a little crazy to do the night program. I mean, why would we go back to school when we each have perfectly good jobs? How about a person that not only has a perfectly good full time job but drives two hours each way to attend law school? See Tyrus Hudson, an M.B.A.holding Human Resources specialist at the Department of Veterans Affairs in Cincinnati. Hudson makes it impossible to complain about being overwhelmed. He drives up from Cincy for class and drives home to his wife each night while staying prepared for class. I wish I was exaggerating.

No class is complete without a class mom, and Ruth Miller has taken everyone under her wing. At home she has a husband, two kids and dog. At law school, she has 50 or more 23- to 43-year-olds. Known for her “mom voice” when arguing a point in class, Miller’s paralegal job at Nationwide and wealth of experience from working around the country provides an outlet for anyone that needs a good laugh or a good vent.

I truly wish I had the time and space to devote to the rest of my classmates. I would tell you about our former soldiers, Rocky Hogue and Andrew Topetzes, who in addition to serving our country, have families and hold down full time jobs. I’d tell you about Emily Hixon-Patrick, who was pregnant, buying a house and crushing our summer Criminal Law final all at the same time. I’d tell you about Larae Schrader and Marybeth Lawson, bosses for major companies that somehow find time to run departments and sit near the top of our class rankings. And the list goes on and on.

I went to law school expecting hard work and little else. I had heard horror stories of back stabbing and fierce competition for those few high rankings. What I’ve found instead is an uplifting, inspirational group of students that have completely flipped my expectations for law school. For those worried about the future of law, please don’t. If these colleagues are a representation of the future, it will be fine. I’ve never worked harder for the worst grades of my life. But I couldn’t be happier going through it with these classmates, these colleagues, these friends.

Jameson C. Rehm Columbus Bar Association jamie@cbalaw.org

Lawyers With Artistic License Brigid E. Heid

By Heather G. Sowald

The photograph accompanying this story sums up many aspects of Brigid Heid’s life. She is holding an oil painting of an aspen grove which she painted from a digital photograph taken by her husband of 18 years, Kurt, on a fall hiking trip to Colorado. Even though she and her husband only took up oil painting as a hobby four years ago, Brigid laughs that she is already an “award-winning” artist because one of her paintings placed second in a juried art show in Sidney, Ohio. Brigid’s paintings have also been displayed at a local restaurant and at the McConnell Arts Center where she and Kurt take classes with instructor Steven Walker.

Brigid and Kurt also enjoy playing golf and were looking for an activity to do together between January and April – the non-golf season. Before attending programs at the MAC, they took classes through Upper Arlington’s Lifelong Learning program.

Since Kurt enjoys digital photography, a hobby he indulges on their semi-annual mountain hiking trips out west, his photos have now become the basis of their own landscape paintings. Brigid’s realistic paintings are in contrast, she says, to Kurt’s, which are more of a Van Gogh-impressionistic style. Each oil painting often takes Brigid anywhere from six to 12 hours to finish, depending on the complexity of the scene. She enjoys the analysis of recreating the vision in the

photograph onto the canvas, beginning with the sky, then the middle ground, followed by the foreground. The easier part for her is creating the shape and form, but she sometimes struggles mixing the paint colors to obtain the right hue.

Even as a youth, Brigid showed her artistic talent. While art teachers encouraged her to develop her burgeoning skills, she found she also loved math and science. She devoted her studies to the latter as a double-Buckeye, graduating summa cum laude with a degree in chemistry and initially planning to focus her career in patent law. However, after graduating from law school in 1990, she discovered that civil litigation, with an emphasis on employment law, was more to her liking as a young lawyer at Luper, Neidenthal & Logan. In 2008, Brigid joined Carlile Patchen & Murphy as a partner in their employment law group and hasn’t looked back.

Brigid and her husband, a mechanical engineer, both grew up in Fremont, Ohio and share a love of the West which was nurtured by their families. While Brigid’s family took summer vacations touring the national parks, Kurt’s family spent the summers prospecting for silver and gold in the mountains of Colorado. Their parents were friends; one summer the families spent part of their summer vacation together in Dillon, Colo. and panned for gold but only found iron pyrite that day.

In addition to mountain hiking, golfing and painting together, Brigid and Kurt are raising their second rescue dog, Mesa, a Belgian shepherd mix, who shows promise of being an agility dog. As a result, she thinks they may have a new pastime to share.

This busy attorney is a past president of the Women Lawyers of Franklin County and will serve as president of the Columbus Bar Association beginning June 2016. Brigid is an avid golfer, playing at The Ohio State University Golf Club and with the Executive Women’s Golf Association, of which she is also a past president.

Brigid says painting is part of her future retirement plan.

“I realized that one day, when I am no longer physically able to hike in the mountains, I will still be able to paint them and Kurt will still be able to photograph them.”

Heather G. Sowald, Esq. Sowald Sowald Anderson and Hawley hsowald@sowaldlaw.com Fall 2015 Columbus Bar Lawyers Quarterly

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A First-Hand Reflection of the Obergefell v. Hodges Ruling

By Anjali Chavan My alarm sounded at 4:40 a.m., marking the end of a fitful two hours of sleep. After getting dressed and packing a few snacks, I roused my sleepy friends so we could catch a cab and begin our trip from Washington’s U Street neighborhood to Capitol Hill. It was just before sunrise on Friday, June 26. Many believed the United States Supreme Court would announce its decision on marriage equality that day. June 26 held potentially symbolic relevance: On June 26, 2003, the Court invalidated sodomy laws in Lawrence v. Texas; on June 26, 2013, the Court invalidated Section 3 of the Defense of Marriage Act in United States v. Windsor. We subscribed to the June 26 theory and hoped to be in the courtroom to hear the Court invalidate bans on marriage equality in Obergefell v. Hodges.

We arrived at the Court at 5:30 a.m. and were met by a throng of well-dressed and well-caffeinated people all pulsing with excitement. We found the end of a sprawling line and waited, hoping to be among the few to receive a golden ticket, granting us access to the Court’s hallowed halls.

Despite its grand pillars and intimidating corridors, the Supreme Court courtroom is actually quite small, only able to accommodate a few hundred guests. Those wishing to receive an entry ticket must line up outside the building hours before it opens. Due to the gravity of the Obergefell

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v. Hodges decision, some people slept outside the Supreme Court overnight, arriving as early as 2 a.m. to ensure their entrance. Arriving at 5:30 a.m., we were late. Dozens of people stood between us and a seat in the courtroom.

After two hours of waiting, at 7:15 a.m. the Supreme Court security personnel handed the first 50 people in line their purple passes to go inside. I was the 78th person in line.

Despite some neighboring skeptics that we would never receive an elusive purple pass, we couldn’t bring ourselves to leave the line. We moved ahead directly in front of the Supreme Court steps crowded next to the press. We watched as the crowd of travelers grew bearing rainbow flags, Human Rights Campaign banners and homemade signs. At 9:20 a.m., 40 minutes before the justices would render their opinions for the day, a security guard returned and handed me an entry ticket.

While my bladder was about to burst, I bee lined for the lockers, stowed our purses and waited in line to be seated inside the courtroom. We were seated in the back on a row of wooden chairs. As I looked around, I recognized some familiar faces – HRC President Chad Griffin, Lead Plaintiff Jim Obergefell, Plaintiffs Pamela and Nicole Yorksmith – and I was in awe of the beauty of the Court and the palpable nervous energy of its inhabitants at that moment. Fifteen minutes before 10 a.m., secret service shushed the growing crowd and motioned to my row and ushered us to the first row of the public gallery in the dead center of the room. The only thing separating me from the justices were the members of Supreme Court bar.

At 10 a.m., the bailiff announced the justices with a customary “Oyez! Oyez! Oyez!” The nine filed in. Kagan was first. Sotomayor second and so on. When the justices sat, we sat. Justice Scalia was directly in front of me with only 20 feet separating us.

Chief Justice Roberts announced that the Obergefell v.

Hodges decision would be decided and Justice Kennedy had the majority decision. At that point, I knew. We had won... something...not sure of the extent of our victory, but Justice Kennedy’s prior jurisprudence indicated he would favor us.

Holding hands, Kate Christobek, Jillian Roach and I listened to Justice Kennedy deliver our victory with tears streaming down our faces. While a deep quiet came over the crowd, I could hear the silent sobs of the public and I could see one attorney’s body shaking as Justice Kennedy declared: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect

the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.”

While Kennedy delivered his summary, I looked at the other justices. They were looking at us, at me...except Justice Thomas who, true to form, was reclined in his seat, eyes fixed on the ceiling. They knew the gravity of this decision and the far-reaching impact on the lives of our LGBT brothers and sisters. I swear Justice Kagan was fighting back tears. After Kennedy finished, I gave a silent prayer thanking God for this moment.

Chief Justice Roberts’ dissent followed ending as follows, “If you are among the many Americans – of whatever sexual orientation – who favor expanding samesex marriage, by all means celebrate today’s decision.

Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I respectfully dissent.”

He smiled at the crowd periodically while reading. While he disagreed with the majority’s decision, I got the sense he was happy with the outcome. His tone and demeanor suggested celebration. He certainly didn’t agree with the manner in which marriage equality was won, but perhaps, he agreed that it was the right thing to do.

The Court decided one other case that day, but I didn’t hear a word. I was still processing. Now marriages acted out in other states – like that of dear friends Densil Delayahu Porteous and Matthew Dewit – would be recognized in our home state of Ohio – the heart of it all. Now family members, like Kris Surovjak and Shelly Schwarzwalder Rasmussen, long resigned to being forever partners, could start planning their weddings.

Afterwards when I walked out of the front doors of the United States Supreme Court, hundreds had gathered, sporting rainbows and chanting “Love has won! Love has won!” The sense of community overwhelmed me at that moment. We were all there because we believe that our love is no better or no worse than another’s love.

There is still work to be done. We still need to ensure that citizens are not fired from their jobs because of their marriages, and we need to ensure that citizens are not denied housing, public accommodations or immigration papers because of who they love or how they identify. But today, we do as Chief Justice Roberts encourages – we celebrate. We celebrate this victory.

We celebrate equality. We celebrate human dignity. We celebrate the pursuit of happiness. We celebrate marriage. We celebrate children. We celebrate recognition. We celebrate love.

To paraphrase the artist Ice Cube, June 26, 2015 was a good day.

Anjali Chavan, Esq. Dinsmore & Shohl anjali.chavan@dinsmore.com

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Learn more at www.goodhealthcolumbus.org/cmaf Fall 2015 Columbus Bar Lawyers Quarterly

27

Civil Jury Trials FRANKLIN COUNTY COMMON PLEAS COURT

By Monica L. Waller Verdict: $174,018.05. Business Dispute. Insurance broker Michael Turney was terminated from his employment with Plaintiff Willis of Ohio, Inc. in 2010. Shortly after he was terminated, he entered into a severance agreement with Willis which contained confidentiality, non-compete and non-solicitation provisions. According to these provisions, he was not to sell to or accept business from Willis’ clients for a 24-month period. According to Willis, Mr. Turney breached the severance agreement by taking confidential information about Willis’ clients with him when he left and then soliciting and accepting work from these clients while employed by Willis’ competitor, Defendant Tabit, Arganbright & Hazelbaker, Inc. (“Tabit”). Willis also claimed that Mr. Turney committed fraud when he signed the agreement without any intention to abide by it. Willis also sued both Mr. Turney and Tabit for tortious interference with its business relationships. Mr. Turney disputed the allegations arguing that he did not take any information that was confidential and that he only solicited and accepted business from former Willis clients who had expressed an intent to leave Willis. The parties filed cross motions for summary judgment, which resulted in summary judgment in favor of Willis for breach of contract and tortious interference and in favor of Turney on Willis’ fraud claim.

The Court found a triable issue about whether Mr. Turney had misappropriated trade secrets. The jury found in favor of Mr. Turney on the claim that he misappropriated trade secrets, but awarded Willis $130,018.05 for Mr. Turney’s breach of contract and awarded $22,000 from each of the defendants for interference with its business relationships.

Defendants filed a post-judgment motion arguing that the breach of contract figure was not supported by the evidence and that Willis could not recover in both contract and tort for the same conduct. The parties reached a settlement while the post-judgment motion was pending. Plaintiff’s Expert: None. Defendants’ Expert: None. No information regarding settlement negotiations was provided. Length of Trial: 4 days. Counsel for Plaintiff: Robert E. Tait and Christopher C. Wager. Counsel for Defendants: Eric K. Combs. Judge Colleen O’Donnell. Case Caption: Willis of Ohio, Inc. v.

Michael Turney, et al. Case No. 11CV-015804 (2014).

Verdict: $21,259.24. ($13,759.24 in economic damages; $7,500.00 in non-economic damages) Automobile Accident.

On April 27, 2009, Plaintiff Karen Yarrows was headed southbound on Smokey Row Road. As she crossed the intersection of Smokey Row Road and Smokey Row Boulevard, she was struck by a vehicle driven by Judy Morin that was headed westbound on Smokey Row Boulevard.

Plaintiff alleged a head contusion, knee contusion and cervical and lumbar sprains and strains. She was treated in the emergency room and followed up with three months 28

Fall 2015 Columbus Bar Lawyers Quarterly

of chiropractic care. She claimed ongoing pain since the accident. She also had a history of prior back pain.

Ms. Yarrows was examined by defense expert, Gerald Steiman, M.D., who concluded that she had sustained soft tissue injuries in the accident and that a short course of chiropractic care was reasonable but not necessary and that she had fully recovered. The jury awarded all of the medical bills submitted into evidence in addition to $7,500 in noneconomic damages. After the verdict, Defendant moved for a set-off in the amount of the medical payments paid

by Plaintiff’s automobile insurance carrier and JNOV. The Court denied Defendant’s motion and awarded the entire verdict to Plaintiff. Medical Specials: $13,759.24. Lost Wages: None. Plaintiff’s Expert: None. Defendant’s Expert: Gerald Steiman, M.D. (called by Plaintiff in her case-inchief). Last Settlement Demand: Plaintiff’s counsel recalled a last demand of $20,000.00. Defendant’s counsel recalled a last settlement demand of $23,500.00. Last Settlement Offer: $18,332.76. Length of Trial: 2 days. Plaintiff’s Counsel: T. Jeffrey Beausay and Jacob J. Beausay. Defendant’s Counsel: Benjamin Ritterspach. Magistrate Myron Thompson. Case Caption: Karen Yarrows, et al. v. Judy Morin. Case No. 10 CV 6145 (2012).

Verdict: $10,965.50 ($5,965.50 in economic damages, $5,000 in non-economic damages). Automobile Accident.

On Jan. 25, 2011 Plaintiff Tiffaney Jackson was traveling eastbound on Morse Road. Defendant Amanda Herron was traveling westbound on Morse Road and, as she attempted to turn left onto southbound Westerville Road, she collided with Ms. Jackson’s vehicle. The police responded to the accident and both Ms. Jackson and Ms. Herron denied the need for medical assistance. Ms. Jackson went to the emergency room after work that day and complained of a headache and pain on the right side of her leg, arm and neck. She was diagnosed with a sprain/strain of the knee and leg pain. She returned to the emergency room on Feb. 5, 2011 again complaining of right knee pain. An MRI was done later that month which revealed mild swelling but no tears or fractures. Fifteen months after the accident, on April 27, 2012, Ms. Jackson began treatment at Inner Health Chiropractic. She was diagnosed with cervical and thoracic sprain/strains, headache and brachial neuritis. She continued treatment at Inner Health for 24 visits over six weeks.

Defendant Amanda Herron admitted liability but disputed the extent of Ms. Jackson’s injuries. Ms. Herron disputed that the chiropractic care rendered in April 2012 was necessary to treat injuries sustained in the accident. Medical Specials: $7,907.00 ($5,965.50 after write offs). Plaintiff’s Expert: Brady Partee, D.C. (chiropractor). Defendant’s Expert: None. Last Settlement Demand: $25,000.00. Last Settlement Offer: $4,325.00. Length of Trial: 2 days. Counsel

for Plaintiff: Charles H. Bendig. Counsel for Defendant: Michael P. Ferguson. Magistrate Pamela Browning. Case Caption: Tiffaney Jackson v. Amanda Herron, et al. Case No. 12CV 07221 (2014).

Verdict: $0. Gender Discrimination. Plaintiff Britney Choina began working as a dental assistant part time for Defendant Sudhir Sehgal, D.D.S. in August 2008. According to Ms. Choina, Dr. Sehgal regularly made derogatory comments to her and her female coworkers and referred to them as weak and lazy. She also claimed that throughout her two year employment Dr. Sehgal asked her to dinner, made inappropriate kissing gestures and, on occasion, grabbed her face, arm, the back of her thigh and the drawstrings of her pants. In October 2010, Ms. Choina and Dr. Sehgal had a disagreement over the dental instruments needed for a procedure. According to Ms. Choina, Dr. Sehgal pushed her into a break room where he cornered her and refused to let her leave. Ms. Choina claimed that she had to rush at Dr. Sehgal and push her way past him to escape. She did not return to work after that incident. She subsequently sued Dr. Sehgal for hostile work environment, sexual harassment, termination in violation of public policy and intentional infliction of emotional distress. Dr. Sehgal denied Ms. Choina’s allegations. He also asserted that Ms. Choina could not show that the alleged conduct was motivated by gender. During deliberations the jury sent out a question which asked whether they could find in favor of the plaintiff but award no damages. After consulting with counsel for both parties, the court responded in the affirmative. After trial, Ms. Choina filed a motion for relief from judgment arguing that a $0 verdict was not supported by the evidence.

The Court denied the motion. Lost Wages: No information provided. Plaintiff’s Expert: Donna G. Estreicher, Ph.D. Defendant’s Expert: None. No information regarding settlement negotiations was provided. Length of Trial: 5 days. Counsel for Plaintiff: Wesley T. Fortune. Counsel for Defendants: Barry H. Wolinetz and Kelly Wick. Visiting Judge Alan Travis. Case Caption: Britney Choina v. Sudhir Sehgal, D.D.S., Inc., et al. Case No. 11CV 11507 (2014).

Defense Verdict. Medical Malpractice. Defendant Ronald M. Taddeo, M.D. was Rick Strohminger’s primary care physician. Over a period from September 2003 through April 2007, Mr. Strohminger reported symptoms to Dr. Taddeo that included rectal bleeding, constipation and right lateral abdominal pain. Dr. Taddeo’s evaluation of

these symptoms did not include sending Mr. Strohminger for a colonoscopy. On Jan. 26, 2010, Mr. Strohminger was diagnosed with Stage IIIC colon cancer. He died from the disease six months later. The administrator of Mr. Strohminger’s estate asserted that Dr. Taddeo breached the standard of care in failing to properly evaluate, diagnose and treat early symptoms of colon cancer. The estate argued that, if Mr. Strohminger had been sent for a colonoscopy in 2004, it would have revealed a precancerous polyp that could have been removed to prevent the colon cancer. The estate also argued that, if a colonoscopy had been done as late as 2007, the polyp would have contained only an early colon cancer which could have been cured by the removal of the polyp. Dr. Taddeo argued that no evidence of colon cancer would likely have been found if a colonoscopy had been performed at any time between 2004 and 2007. The patient had a colonoscopy in 2000 which was normal. It was Dr. Taddeo’s position that the colon cancer was aggressive and developed sometime after Mr. Strohminger stopped treating with Dr. Taddeo. Medical Specials: $591,782.04.

Plaintiff’s Experts: Todd D. Eisner, M.D. (gastroenterologist), David T. Harris, M.D. (oncologist), Robert D. Odze, M.D. (pathologist), Gregory Rosencrance, M.D. (internist), James Zinser, Ph.D. (economist). Defendant’s Experts: Mark Bibler, M.D. (internist), Douglas Rex, M.D. (gastroenterologist), Elizabeth Montgomery, M.D. (pathologist), Carl R. Schmidt, M.D. (oncologist) Last Settlement Demand: $2,000,000.00.

Last Settlement Offer: None. Length of Trial: 10 days.

Plaintiff’s Counsel: Michael L. Inscore. Defendant’s Counsel: David Lockmeyer and Fred Fifner. Judge Daniel Hogan.

Case Caption: Christina L. Strohminger, et al. v. Ronald M. Taddeo, M.D. Case No. 11CV 6139 (2014).

Defense Verdict. Medical Malpractice. On Feb. 17, 2009, Plaintiff Benjamin Uzunoff suffered a degloving injury with near amputation of his left thumb while he was at work.

He was transported to Riverside Methodist Hospital where surgeons attempted but were unsuccessful in reattaching and revascularizing his thumb. Defendant Joseph W. Donovan, M.D. was the anesthesiologist assigned to the procedure.

Dr. Donovan performed a supraclavicular nerve block using ultrasound to insure proper placement of the anesthesia. Mr. Uzonoff alleged that Dr. Donovan negligently performed the block and injected anesthesia into his brachial plexus (the network of nerves that serves the shoulder, arm and hand).

Continued on Page 30

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Continued from Page 29 Mr. Uzunoff reported constant pain after the procedure and claimed to have developed Complex Regional Pain Syndrome as a result of the brachial plexus injury. Dr. Donovan argued that he did not cause a brachial plexus injury. Since Dr. Donovan performed the supraclavicular block under ultrasound, he and his assisting anesthesiologist could see the needle and the brachial plexus as Dr. Donovan inserted the needle. Both anesthesiologists testified that no anesthesia was injected into the brachial plexus. Dr. Donovan also argued that Mr. Uzunoff’s pain pattern was not consistent with a brachial plexus injury and that EMG studies done after the procedure demonstrated no pathology in the brachial plexus.

Dr. Donovan argued that Mr. Uzunoff’s ongoing symptoms were the result of his degloving injury, avulsion fracture and thumb amputation. Mr. Uzonoff also sued Riverside Hospital but dismissed those claims before the start of trial. Dr. Donovan declined to engage in any settlement negotiations.

Medical Specials: $6,000.00. Lost Wages: None claimed.

Plaintiff’s Experts: Brian G. McAlary, M.D. (anesthesiology), Kerry Levin, M.D. (neurology). Defendant’s Experts: Chad M. Brummett, M.D. (anesthesiology), Lawrence M. Lubbers, M.D. (hand surgery). Length of Trial: 5 days. Counsel for Plaintiff: Eugene L. Matan and Mark E. Defossez. Counsel for Defendants Dr. Donovan and Midwest Physician Anesthesia Services, Inc.: Thomas A. Dillon and Jessica L. Davis. Judge Charles Schneider. Case Caption: Benjamin R. Uzunoff v. Riverside Methodist Hospital, et al. Case No. 10CVA08-11905 (2014).

Defense Verdict. Automobile Accident. Defendant Barbara Stegall was driving on Groveport Road on the afternoon of Jan. 5, 2007 behind a vehicle driven by Plaintiff James Ryan.

As she neared the intersection of Groveport Road and Alum Creek Drive, Ms. Stegall failed to stop her vehicle in time to avoid striking Mr. Ryan’s vehicle which was stopped for a red light. Mr. Ryan claimed injury to his shoulder, neck, back, hip and knee as a result of the accident. He was diagnosed with a torn rotator cuff which had to be surgically repaired.

Mr. Ryan was 72-years-old at the time of the accident and owned a pizza shop. He argued that the injury to his shoulder interfered with his work, forcing him to retire. Ms. Stegall admitted liability but argued that Mr. Ryan was not injured in the accident. It was Ms. Stegall’s position that Mr. Ryan’s retirement was the result of his many other health problems that were unrelated to the accident. Medical Specials: $27,911.00. Lost Wages: not quantified. Plaintiff’s Expert: Michelle Morris, M.D. Defendant’s Expert: None. Last Settlement Demand: $50,000.00. Last Settlement Offer: $5,000.00. Length of Trial: 2 days. Counsel for Plaintiff: James Gilbert. Counsel for Defendant: Belinda Barnes. Magistrate Christine Lippe. Case Caption: James M. Ryan v. Barbara A. Stegall, et al. Case No. 11CV13791 (2014).

Monica L. Waller, Esq. Lane Alton & Horst mwaller@lanealton.com

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