Columbus Bar Lawyers Quarterly Fall 2014 by Columbus Bar Lawyers Quarterly

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Fall 2014 Columbus Bar Lawyers Quarterly

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TAKE A RIDE WITH US By Keith W. Schneider Relevance is a term to which lawyers are finely in tune. Rest assured the Columbus Bar leadership is also acutely aware of the importance of our own relevance to the local legal community. Our board has worked tirelessly to adapt to the proverbial “new normal,” thinking creatively about how we can remain relevant to central Ohio’s legal professionals. I am eager to share with you one of our newest developments: Full Service Legal Staffing, powered by the premier staffing service provider, Dawson. This is a new business venture to assist lawyers who are looking for new employment opportunities and to help law firms that need access to a pool of lawyers or legal support staff on a temporary or permanent basis. The idea to enter the contract legal staffing business initially evolved out of our desire to continue helping new graduates expand their employment options. While newly admitted lawyers are assessing their options – either setting up their own shop or actively searching for the perfect career jump start – we can help. The Columbus Bar is partnering with Dawson Staffing to bring this new venture to fruition. Dawson has been putting central Ohio individuals to work since 1946. We selected Dawson in large part due to our shared values and commitment to the central Ohio community. Dawson is locally owned and has earned recognition year after year as the best in their field.1 Their culture is consistent with that of the Columbus Bar – do the right thing and treat people right. We have a vested interest in elevating the profile of this growing segment of the legal profession. For some, contract staffing carries with it an unwarranted negative connotation. To the contrary, temporary employment offers flexibility and a “try-it-before-you-buy-it” experience. Some are not quite sure what kind of practice they are interested in; some are very certain what they want to pursue and are awaiting the right opportunity; many value the flexibility of contract work, as it affords them work-life balance and the opportunity to pursue more personal interests on their own time; and wouldbe employers have a first-hand look at a pool of candidates from which to obtain experienced attorneys, while saving significant dollars on overhead. Whatever your legal staffing needs, the Columbus Bar has your best interests at heart. We are going to work with candidates to train them effectively on everything from new developments in e-discovery to professional development, to ethics – all while offering opportunities for on-the-job-training. And, for the employers, we will give you only the best and the brightest for affordable rates that will keep you thriving in an increasingly competitive environment. Our 4

Fall 2014 Columbus Bar Lawyers Quarterly

staffing services will allow you to leave the HR and payroll duties to the experts, allowing you to focus on what you do best – practicing law. Whether you are a small firm with an opportunity to take on a big case or a large firm with opportunities to grow an existing client, or anything in between, we can help you find a solution that allows you to adjust your staffing levels to the ebbs and flow of your unique business needs. Better still, the revenue the Columbus Bar realizes from this venture will be reinvested into the profession. The Columbus Bar prides itself on developing new initiatives that generate non-dues revenue. It is one of the ways we can continue to offer an extensive array of benefits while keeping dues rates affordable. By offering our members access to services they need to remain competitive, we strengthen our relationship with members, save you money, and reinvest in the advancement of the profession. The Columbus Bar and Dawson are confident you will wish we had teamed up to provide this new service long ago. So, why not take a ride with us? 1.

Columbus CEO, Best Temporary Employment Agency 2010, 2011, 2013; Columbus CEO Best Executive Search Firm, 2013; Columbus CEO Best Family Owned Business 2013; Columbus Young Professions Best Places to Work for YPs, 2013; Columbus Business First Healthiest Employers 2013. Keith W. Schneider, Maguire & Schneider kwschneider@ms-lawﬁrm.com

Here Goes Nothing? By Jameson Rehm Allow me to take you back in the time to your youth. I’d say these were happier or simpler times, but that wouldn’t be altogether honest. You see, once you have traveled back, you may not feel those fuzzy nostalgic feelings that usually come with memories. You will probably feel fear. You will definitely feel anxiety. You may unconsciously brief a case that may not apply to an open memorandum that’s due in a week to your legal research and writing professor. Yes friends, I have been accepted to attend Capital University Law School. I’ll give you a second to get through all the flashbacks that are running through your head. All better? Excellent. I feel I must first answer the question of “why.” If you’ve been keeping up with Lawyer Quarterly, you’ve noticed the seemingly every issue has an article citing the doom of the legal profession, the dwindling of the attendance at law schools, and the lack of jobs for those lucky enough to graduate law school and pass the bar exam. Besides, I’ve got a cushy gig working for the Columbus Bar as a paralegal, writing for the magazine when they let me submit incoherent ramblings, and getting to be bar exam

free for the past 30 years of my life. Well, I guess the most honest answer is that it’s time for a new challenge. What’s life without challenging yourself to be the best you can be? And besides, if you can do it then I totally can do it (please detect the tongue in cheekiness in the last statement, I’m going to need a job in four years, and I’ve heard the market isn’t too good.) Thus far, I have just been working on orientation tasks, meeting my classmates for the next four years, and discovering just how much I’m going to have to pay back when this is all over. By the time you read this, classes will have begun and I will have become the grumpy guy in ethics (the younger sounding one) answering your call. All this said, I’m ready for the real classes to begin, and to discover what you have all experienced in getting to where you are today. Oh yes, and I’m not too proud to accept any advice from you wise folk. Here goes nothing! Jameson Rehm Jamie@cbalaw.org

Fall 2014 Columbus Bar Lawyers Quarterly

REFLECTIONS OF A MUDDY LAWYER . . . mild dehydration, hematomas that spanned entire limbs, strained muscles, and no chance of walking in heels for weeks to come . . . By Jill Snitcher McQuain I recently ran the Tough Mudder Ohio for the first time.1 When talking with others about my training and preparations for the Mudder, most people seemed utterly dumbfounded about why anyone would willingly do such a thing, absent military training or a desire to enlist. The real reason I did it was to give myself a challenge to work toward – something to keep me motivated in my training. (We lawyers like deadlines, right?) I enjoy strength training more than cardio, and this fit within my personal fitness goals. When I signed up for the Mudder (in spite of the infamous “death waiver” participants are required to sign), I was inspired by the statements on the website: I understand that Tough Mudder is not a race but a challenge. I put teamwork and camaraderie before my course time. I do not whine – kids whine. I help my fellow Mudders complete the course. I overcome all fears. There are approximately 20 different obstacles along the course, most of which require teamwork (obstacles with titles like “pyramid scheme,” “ladder to hell,” “everest” and “fire in your hole”). We had a team of four. The week of the challenge, two of our teammates bailed, and my one remaining partner pulled a groin muscle. But, we decided we were going to do this. The day before the race, registered Mudders were advised that the race2 might be canceled because of “Mother Nature’s temper tantrum” the entire week preceding the challenge. It was accessed too muddy and unsafe. WHAT?! Seriously?! The entire foundation of the Mudder was mud and risk. Admittedly, I did feel a little like someone was trying to tell me something. The Mudder went off as scheduled as one of the muddiest, most grueling courses in Tough Mudder history. When my teammate and I took off, I couldn’t even feel my gloved hands because of the record cold temperatures. Four hours later, we crossed the finish line together – battered and bruised. When we returned home, everyone asked “How was it?” What do you say to that? Um... “It was tough.” If I told the real story, people might think I was utterly crazy. 6

Fall 2014 Columbus Bar Lawyers Quarterly

It took me about two weeks to regain a feeling of normalcy. A tinge of hypothermia, paired with mild dehydration, hematomas that spanned entire limbs, strained muscles, and no chance of walking in heels for weeks to come. So, what do I say when people ask, “How was it?” Here’s what I say. I would do it again in a heartbeat. I learned a lot about myself and others through this experience. I learned how amazing our protective forces are. The Tough Mudder is a fundraiser for the Wounded Warriors Project,3 raising over $7 million dollars to date. The number of soldiers, veterans, firefighters, police officers, and medics that participate is incredible – in fact, there are even people who will attempt to see how many times they can do it in one day. (I am not one of them.) Amazing. “Being a Tough Mudder means putting others before yourself especially those who risk their lives for the safety and freedom of our country.”4 Their camaraderie is something to which we should all aspire. Complete strangers helping each other through obstacles – no Mudder left behind is the mantra. I am both awestruck and eternally grateful to people I had never met and will likely never see again. I learned to appreciate the true power of teamwork. Whether it be a team of two or a team of 200, being a part of a team pushes you to do your best, because nobody wants to let the others down. I learned that no matter how much you prepare for something, there’s going to be some unexpected hurtles over which you have no control. Your mental toughness and agility will get you through. The race was not hard for the reasons I thought it would. Aided by fellow Mudders, the obstacles were not impossible. The toughest challenges were the mud and cold, neither of which you could really train for. It was sooooo unbelievably cold. (It even spit snow.) But, that didn’t deter us from the “arctic enema” (where we had to jump into a dumpster full of ice water). It just made us run faster to try to warm up. I’m certain I was on the verge of hypothermia – trembling so badly by the time we were done, I couldn’t get my shoes off. I never want to experience that kind of cold again. And, who knew that twelve miles of mud – ranging in consistency from manure to pond water – could be such a challenge. The constant focus on stable footing was mentally exhausting. One minute you are running on mud that doesn’t even cover the tips of your shoes; the next minute, it’s up to your chin. This required constant fixation on the runners ahead to see when and where you were going down. I had a real-life epiphany that the journey really is the reward. Crossing the finish line, I didn’t feel the rush of “runner’s high” I expected. I just wanted the hell out of there. As you cross the finish line, you are handed an ice cold beer and a foil warming blanket. The last thing I wanted was a beer; but give me ten of those warming blankets. It was not the feeling of victory or accomplishment that I had expected. Although the thrill of victory was not immediately apparent, after a few weeks of healing and reflection, I realized I had demonstrated to my kids the importance of hard work, discipline, and determination; I made some terrific, lifelong friends. Blair Visser, Assistant Athletic Director at the Athletic Club of Columbus, helped me maintain focus to achieve my goals and taught me so much about fitness and nutrition. Holly Farris was my training partner and last remaining teammate. For more than a year, I trained almost obsessively – physically, mentally, and nutritionally. They made it fun. The end result is that I feel terrific, having achieved a new level of physical and mental fitness.

Now, when I look at photos of us crossing the ﬁnish line, I feel a sense of accomplishment that inspires me to do it again, and I am already recruiting teammates for 2015.5 Tough Mudder is a 10-12 mile (18-20 km) obstacle course designed to test all-around strength, stamina, teamwork, and mental grit. Tough Mudder is Probably the Toughest Event on the Planet. Probably. 2. The Mudder is NOT a race - it is more than a ﬁtness challenge, Tough Mudder is a set of core values both out on the course and in everyday life. For a Tough Mudder, life is about pushing boundaries and overcoming all obstacles through teamwork - and having fun along the way.it is by all accounts a team sport, where participants are urged to help each other out. 3. Every donation supports the 19 free, diverse programs provided by Wound Warrior Project to assist injured veterans on the journey towards a successful civilian life. 4. https://toughmudder.com/woundedwarrior-project 5. I think it would be great to get a CBA team together for next year’s Mudder. The ability to train together, build new friendships, and connect with one another on another level would be remarkable. Any takers? 1.

Jill Snitcher McQuain, Executive Director of the Columbus Bar Jill@cbalaw.org

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8/6/13 10:44 AM

Client Confidentiality in the Age of Surveillance By Bob Ellis

Do you send unencrypted email to clients? Do clients send you email from their work address? Do you communicate with clients using instant messaging or texting? Do you use cloud-based storage or applications? If so, you’re like most of us in the legal profession – but you should consider taking steps to make your online activity more secure. The applicable ethics rules are simple in theory. RPC 1.6(a) says that a lawyer “shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege. . . .” Although 1.6(a) contains exceptions where the client gives “informed consent,” and where the disclosure is “impliedly authorized in order to carry out the representation,” those exceptions don’t cover communications that are not intended to be revealed but that end up being revealed because they were not secure. Comment 16 to RPC 1.6 states that lawyers “must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure,” and Comment 17 speciﬁcally states: “When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” If that were the complete status of ethics requirements regarding online communications, there would be little room for discussion: We all would be encrypting our communications with clients and would never even think of using non-secure means of communication (except to the extent we obtained informed consent from each client).

Fall 2014 Columbus Bar Lawyers Quarterly

But the remaining part of Comment 17 clouds – as it were – the issue: “This duty [to take reasonable precautions], however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule.” Comment 17 was written in the “age of innocence,” when it wasn’t obvious how unsecure online communications really are. The same can be said for ABA Formal Op. 99-413, still considered authoritative, which says that, given the laws protecting the confidentiality of electronic communication, it is ok for lawyers to send and receive confidential information via unencrypted e-mail: “[T]he mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint,” and “the same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet email.”1 Such a view is hard to take seriously today. The only real protection unencrypted communications have these days is “security through obscurity” – the likelihood that a particular message will not be noticed. Nonetheless, no specific guidance on such issues has yet been issued by any ethics organization in the wake of the revelations that virtually all unsecured online communications are monitored by unknown people and organizations around the world. The international law firm Meyer Brown discovered that the NSA had been monitoring its communications with foreign clients and had forwarded the content of those communications to U.S. officials conducting trade negotiations. That firm is now conducting seminars regarding “actual threats to the integrity and confidentiality of your data.” A lawyer’s duty to protect client confidences goes beyond outgoing messages. “A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means must ordinarily warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. [This includes, for example,] circumstances where there is a significant risk that the communications will be read by [an] employer or another third party.”2 This is not merely a theoretical possibility; it happens frequently. If a client uses email that is monitored by an employer or by a third party, the attorney-client privilege may be waived.3 All states now permit cloud computing, either by opinion or rule, or by lack of one.

Those states that place conditions on such permission have imposed fairly mild rules, mainly emphasizing client confidentiality and the integrity of client data. A typical example is New York, which permits cloud computing if the lawyer takes reasonable care to ensure that confidentiality is maintained. The lawyer also must keep up with technological advances to ensure that confidences remain confidential, and monitor changes in the law (and presumably provider contracts) to ensure that online data storage will not cause loss or waiver of privilege.4 Fifteen years ago Scott McNeely, the founder of Sun Microsystems, when told that many Internet users were worried about online privacy, famously declared, “You have zero privacy anyway. Get over it.” Our ethical responsibility as lawyers – now more than ever – is to make sure that his declaration does not apply to our communications with our clients. ABA Formal Op. 99-413: Protecting the Confidentiality of Unencrypted E-Mail (March 10, 1999). 2. ABA Formal Op. 11-459 (Aug. 4, 2011). See also N.C. Ethics Op. 20125 (Oct. 26, 2012); Wash. Advisory Op. 2216 (2012). 3. See Holmes v. Petrovich Development Co., LLC, 191 Cal. App.4th 1947 (Jan. 13, 2011); Fazio v. Temporary Excellence, Inc., 2012 WL 300634 (N.J. Super. Feb. 2, 2012). New York: U.S. v. Finazzo (Slip op.), 2013 WL 619572 (E.D.N.Y. Feb. 19, 2013) (criminal defense attorney’s communication sent to his client’s work email found not privileged; defendant was indicted based on the content of that communication). A ruling in favor of the employee: Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54, 973 A.2d 390 (N.J. Super 2009). 4. N.Y. State Bar Ass’n. Committee on Professional Ethics, Op. 842 (Sept. 10, 2010). 1.

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A Conversation with Judge Sutton By Ali Haque grade World and European history teacher, coached soccer and baseball. I did that for two years and went to law school next at Ohio State. No one in my family had ever been a lawyer. I don’t have any members of my family that have done that, and it was consistent with being a history major. I had come across some lawyers I’d admired so I thought if they like it there must be something to it. As I got older I liked the writing, reading and thinking parts of it. By the time I went to law school I actually loved the law, which is a little odd, but I really did, so in that sense it was the right choice. At the time I thought I would go into international law because of where I was born and my background, but so far that just hasn’t happened – so we will see.

Judge Jeffrey S. Sutton is a judge on the Sixth Circuit Court of Appeals. He talks about his background, his path to becoming a judge, how Columbus has shaped him, and what he expects from attorneys appearing before him. I was born in Dhahran, Saudi Arabia and I grew up in the suburbs of New York City. My father was foreign and he and his sisters were born and raised in the Middle East, primarily in Jordan. His parents, my grandparents, were missionary teachers so he was very familiar with the Middle East; and my uncle is Lebanese and married my Aunt and so he was educated in this country primarily, but when he was dying he went back and worked there for a while. I went to Williams for undergrad. I was a history major, and I played four years of varsity soccer and one year of baseball and was a junior advisor. I met my wife there. She was a year behind me. When we got married in 1985, we looked for teaching jobs in New England, Ohio and Michigan and happened to get two good teaching jobs in Columbus. I think she was happy to be close to her hometown of Toledo and her brother lives in Granville, so that was really positive. I was happy to try it, and now, I love the Midwest. I don’t know what to say. I just totally prefer it. I am partisan in every way. The football team, the area, the state – hook, line and sinker. Law was probably a third choice for me. I thought I would either be a school teacher or go into the foreign service, and I eventually got a job at Columbus Academy in 1985 and was hired by Bo Dixon as the 7th grade Geography teacher, 10th 10

Fall 2014 Columbus Bar Lawyers Quarterly

Judge Sutton attended Ohio State University Moritz College of Law, and he then went on to clerk for Justice Powell and Justice Scalia on the Supreme Court of the United States At Ohio State, I had great professors and great classmates. It helped sharpen my critical thinking skills a little, definitely improved my reading and writing, and it gave me confidence. I probably had a lot more confidence about the profession after law school than I did before, so I give them credit for that. I loved clerking for Justice Scalia. He was a law school professor before he became a Justice, so he brings a teacher’s passion for the law, the teacher’s enthusiasm about debating really difficult issues in the law, so he was like one long seminar with tutorial basically. The other thing about him is we would agree that he is a great writer, but what was most enjoyable was to watch enthusiasm first hand with the writing; he had so much passion about writing. Working for him had a big impact on me. It’s hard to measure it relative to other things, but it had a really big impact on me and he is also just a lot of fun. He’s funny and fun to be with. He enjoys working with his clerks. He’s really great company. After clerking in Washington D.C., Judge Sutton settled again in Columbus, where he was State Solicitor for Ohio and a partner at Jones Day before becoming a judge on the Sixth Circuit. Judge Sutton talks about how Columbus has shaped his professional career. I think I’ve benefited being in Columbus. There are great firms in Columbus, and there are really sophisticated practices and access to legal issues because Ohio is a big state with a lot of different issues. We are a moderate state for government, so we can do things all over. There is a lot of industry. There is banking, insurance and all of that. There is plenty of sophisticated stuff. I eventually got into appellate law, and I think it helped me to be from Columbus because I was known as the appellate guy from Columbus, and it was almost like a brand. It was good. I loved private practice and I miss it tremendously because it’s a collegial group of people in a shared enterprise, shared partnership, and that’s just really fun; and you’re all in the same place. We judges in the Sixth Circuit all live all over, so we’re not together. I think the profession is a real calling

and to have a group of people that share the same vision is really neat and then, you know, people complain about clients but the reality is it’s a pretty neat thing to solve a client problem. I mean it’s true clients can be demanding, sometimes unreasonable, but the whole idea is that it’s a service profession and how satisfying to have someone come to you with a problem and fix it. I really miss that. It’s a really fun thing and I love arguing, I love the adrenaline of arguing. I hated to lose. I don’t miss losing. Now, I don’t lose. It’s really a wonderful thing. In 2003, Judge Sutton was confirmed as a judge on the Sixth Circuit Court of Appeals. He talks about his experience as a judge and what he expects from attorneys appearing before him. I look forward to going to work every day, so that says something about the job. One reason I like it is the job description is a great one, trying to cite cases fairly and giving your clients the rule of law which is a pretty neat thing and the hardest cases are often puzzle solving. We are trying to figure out how the best way to make things work and that’s really hard, but also satisfying when you can work through it every now and then. For attorneys appearing before me, it’s important to keep it short, keep it to the point, try not to sound too much like a lawyer, don’t ignore a common sense, and it’s always nice to have a theory of the case. Lawyers are very risk averse and so they get nervous about being too clear about what their theory of the case is; but what they forget is that if they’re not clear about it, we may not understand what they’re saying or pay as much attention as they’d like. If they are really willing to come up with a clean and clear theory of the case, we may not always agree, but we’re going to certainly understand what they’re saying and when we do agree, that might be why. At oral argument, attorneys should be answering the questions and then making sure you’re appearing to try to answer the questions. It’s not a fencing match, it’s a dialogue, and the best thing in the world from the advocate’s perspective is to hear what’s concerning a judge even though it may make you feel defensive. You need to have that information and you need to respond to it. As a former advocate, I know how difficult it is not to get defensive, but if you can, really accept the question as legitimate and then try to come to grips with it and be straight to the point about it. A lot of people seem to try to avoid answering questions or they’re afraid they’re just going to get hurt and their case is going to get sunk. I mean if it’s a fatal – if that question has a fatal answer – you have a very bad theory of the case. And you should have a theory that can withstand those questions; and in fact someone with a good theory of the case should be thrilled with every question because each question is an opportunity to show how reasonable your theory is. I don’t care for lawyers when they deprecate the other side. I mean this is a profession. We’re all in this together. There’s nothing wrong with arguing hard, fighting hard, but you don’t have to put down the other party or the other lawyers. Why do I think not using footnotes is so important? Because the whole orientation of the reader is to have everything you do in a brief be reader friendly, easier on the reader, and the point of footnotes is a crutch for the writer. They’re designed to make life easier for the writer, but they are not designed to make life easier for the reader. So they’re ultimately an act of selfishness.

Judge Sutton talks about the importance for lawyers to maintain balance in their lives. I’d say balance for lawyers is challenging but it’s indispensable because if you don’t have balance, you’ll lose the family side of things; and if you don’t have balance, you’ll ultimately become not a really good lawyer because the best lawyers are the most creative and you can’t have creativity when you are working 24/7. Creativity requires balance, it requires doing lots of things with your life, having lots of life experiences, reading widely, and the more you’re constantly working, the more difﬁcult it is to have creativity. You’ll be able to hammer out answers to easy problems, and maybe you’ll specialize in solving easy problems, but you’ll never be very good at hard problems. That requires balance, so it’s good on both sides of the equation, a family and profession. I have three kids, so my wife and I are always doing stuff with our kids. We’re a pretty outdoor oriented family, so we do a lot of hiking. There are forty-eight 4,000-foot peaks in New Hampshire, where we go most summers, and we’re all over half. And we’re trying to ﬁnish that up in the next couple years.

Ali Haque Bricker & Eckler ahaque@bricker.com

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About Old Courthouses – Tales and Tattletales By Rick E. Marsh How many lawyers currently practicing in Franklin County have actually tried a jury trial in: (A) the new courthouse, 345 South High Street; (B) the old courthouse, 369 South High Street, the rehabbed building across the street; (C) the old, old courthouse, razed on the site of what is now Dorrian Commons; and (D) the courthouse annex, the County Services Building directly south of Dorrian Commons? In addition to those venues, we should add the municipal courtrooms of the magistrates, in the Municipal Court Building, 375 South High – since the common pleas magistrates were located in the municipal building and tried cases referred to them. Having tried one case in the new courthouse, I can say that I qualify as having tried a jury trial in all courtrooms listed above. The old, old courthouse had a lot of character and it looked like a courthouse, as all of them did in those days. I have a picture in my office to remind me of all of the cases I tried in that building. The first floor did not have courtrooms, as I recall, but it had a food stand that was pretty basic in character, run by the Ohio Department for the Blind. The elevator was a cage that had an operator, and took you up to the floors where the courtrooms were. The clerk’s office was on the High Street side of the building and had windows. Some of the courtrooms were on the exterior of the building with windows. When I started trying cases on a regular basis, in the early 60’s, each courtroom had a deputy clerk.

Each courtroom – at least most of them – were equipped with a spittoon and the spittoon probably served a greater useful purpose than did the deputy clerk. The deputy clerk usually had a chair and desk along one of the walls of the courtroom. Since the chair was the kind that reclined, you could see where the deputy clerk, and these were all men, had fallen asleep, leaned back in the chair and left a grease mark on the wall. The purported purpose of the deputy clerk in each courtroom was that, in case a lawyer trying the case needed to issue a subpoena immediately, he or she could do so – give the subpoena to the deputy clerk, or perhaps it was a precipe for a subpoena, but whatever it was, it was the job of the deputy clerk in the courtroom to see that the subpoena was administratively handled. I can’t remember a situation in which anyone ever needed to utilize the services of the deputy clerk in the courtroom. Courtroom 1 was an interior courtroom, the main criminal courtroom. It was from that courtroom that a particular criminal, being held in a holding room after a noon recess, managed to escape by breaking through the wallboard that was not reinforced by rebar, grabbed a mop and a pail and “mopped” his way out of the courthouse where he got some transportation, went to a county in southern Ohio, assaulted a person there, resulting in a

lawsuit by the assaulted person against the Franklin County sheriff, whom I wound up defending. In those days, Armstrong & Okey were the official court reporters. They had an office on the top floor of the courthouse. Above that floor was some type of attic or loft in which transcripts and other legal papers were kept and which became a haven for pigeons. While I never saw it, it was rumored that these transcripts and other legal papers quite often had a large coating of guano. When the courthouse annex was attached to the old, old courthouse, there was a large blackboard on which Foster Latham, the assignment commissioner, would write down which cases were being tried in which courtroom, and who was trying them. During the time that the old, old courthouse was in use, Franklin County did not have the single assignment system. As a result, cases simply worked their way up the trial list and the assignment commissioner would quite often call the plaintiff and the defendant’s lawyers at 10 a.m., advising that a jury had just gone out and would certainly have a verdict in a couple of hours. Or, the jury had just reached a verdict and their case would start at 1:30 in a given courtroom. Remember, I’m talking about a time when we did not have videotape depositions because we did not have videotape. Doctors came to court and testified, live. My friend, Curt Gantz, says that when I started out the court reporters had quill or feather pens. That’s not true. However, when I did begin my practice many of the court reporters used shorthand. The old courthouse had lots of character and more than a few “characters.” There was no air conditioning in the old, old courthouse, and during the summer civil cases were not tried. We took the summer off, as far as trials were concerned and used that time to get ready for the trials that would resume in the fall. Because we did not have the single assignment system and a date certain for a trial, it was not unusual for those of us who tried a great many cases to finish a case either in the morning or afternoon on a Wednesday or Thursday and start a case on the following Thursday or Friday. Since jurors served for 3 weeks – there were 12 on a panel – it was not unusual to have some of the same jurors that you had on the

ﬁrst case appear in the jury box for the second case. When you had judges like Craig Wright who spoke to the jurors after the return of the verdict and out of the presence of counsel – you were a little concerned because you never knew exactly what Craig was going to tell the jurors about you, your opponent or the case. While it is strictly hearsay, my former partner Arthur Sebastian told me that it was as a result of the case he had tried in the old, old courthouse that listening at the jury room door was forbidden. A case had been tried. The plaintiff’s lawyer was listening at the jury room door of a case that Art had defended, and apparently successfully because the jurors indicated that they were about to sign a verdict for the defendant. At that point in time, the plaintiff’s lawyer went to Art Sebastian and accepted his previous offer that apparently had not been withdrawn. The accommodations for the comforts of the jury were not great in the old, old courthouse. There was one courtroom in the top of the building in the northeast corner that I referred to as Delaware County. It had one bulb hanging down over the jury box, in addition to some other lights, and the jury rooms were absolutely Spartan. When the courthouse annex was built, apparently because of a need to get rid of cases in the summertime, we began to try some cases during the summer months, but it was challenging. If you closed the windows you died from the heat. If you opened the windows, you still had the heat plus the roar of the trucks on Interstate 70, directly to the south of the annex. The old courthouse, which has now been rehabbed and apparently is going to be used as a county administrative building of some type, was an HVAC disaster from the very beginning. Neither the heating nor the air conditioning worked very well. It is my understanding that the county commissioners in those days actually made a claim against the heating and air conditioning contractor, obtained a settlement or some money in one form or another, and then never used that money to repair the system. The courtrooms in the round were an abomination. If you stood directly in the middle of the courtroom, your voice would bounce off the ceiling and at some point you thought that God was repeating what

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Fall 2014 Columbus Bar Lawyers Quarterly

you had just said. In a criminal case, the 13th jury sitting as an alternate could not see the witness box. The courtrooms were not designed for anyone in a wheelchair. I have tried cases where a lawyer in a wheelchair was not able to go into the conference rooms off the side of the courtroom because the witness box prevented access to the rooms. The old courthouse was built at the time of the Jimmy Carter energy crunch where we were told to turn down our thermostats in the wintertime, raise our thermostats in the summertime, and drive less. There were long lines, at times, at gasoline stations. The first time I entered the old courthouse, before it actually opened, I did so as a member of the Common Pleas Court committee because designed into the floor where the law library was to be, there was a lawyers lounge where those of us who tried cases could go and “lounge” while the jury was out. John Adams, the chairman of the committee, feared that we would lose the use of that space and asked me to go up and put a lock on one of the lockers. John obviously knew that possession was nine-tenths of the law. I went up to the ninth floor of the courthouse to meet the presiding judge, got off the elevator and noticed that there were eight rows of twelve spotlights in the ceiling. My comment to that honorable judge was “Your honor, do you know how much heat those spotlights give off?” His answer, which I have never forgotten and will never forget was, “Rick, don’t worry, the building is air conditioned.” The old courthouse didn’t have a lot of character. It was cold in the wintertime and hot in the summertime and warm in that part of the building being warmed by the sun and cold in that part of the building that wasn’t facing the sun. The courtrooms had their faults, but it was a building that worked in the sense that you were able to have access to the bailiffs, the staff attorneys and the judges. A judge like Frank Reda was never in his office, he was always out in his bailiff’s room, his bailiff being Norma Mitchell (Judge Norma), and he was holding court in Norma’s office and telling the same jokes over and over again, to which we all laughed loudly. Once in a while, finding your client in the new courthouse could be a problem. One morning, I was waiting for my client who was supposed to meet me in the chambers of Judge Craig Wright at 8:30 in the morning and she was not there. Sometimes the clients would go into the courtroom, sometimes they would come around the courtroom and go back into the chambers and I would cut through the courtroom and go around chambers, go around the courtroom and I still could not find her. About a few minutes before nine, having gone out into the hallway to look for her, I went back into chambers and there she was, sitting in the conference room of Judge Wright, quite visually upset. When I asked her what happened, this was her story. She said that I had told her to park in the parking lot at the corner of Mound and High Streets but she got confused and she passed the new courthouse and at that time, the common 14

Fall 2014 Columbus Bar Lawyers Quarterly

pleas judges parked in what was then a parking garage, below the surface of the street, on the site of what is now the Municipal Court building. The common pleas judges had a key card that enabled them to enter the parking garage, raise the gate and park their cars. She told me that she pulled down into that parking garage, realized her mistake, obviously the gate would not go up and she could not go into the parking garage. She started to back up and she didn’t look and she backed into the car that was behind her. The man in the car got out of his car, as did she, and he said to her in a rather loud and threatening voice, “Where in the H do you think you’re going?” Her answer was that she had gotten confused and that she was “going to the chambers of Judge Craig Wright.” The man’s response was, “who do you think I am?” Has anyone else had a case where your client backed into the trial judge on the morning of trial? We settled that case rather quickly. The new courthouse has all the bells and whistles and providing the jurors with access to exhibits and other documents through the use of the projector and ELMO is wonderful, but it lacks the access to the staff attorneys, the bailiffs and the judges themselves that the old courthouse had. It is obviously good to have the magistrates for the Common Pleas judges in the same building, with their own courtrooms. That is a big plus, because there were times when your case was set for trial in the old courthouse, and your case was moved to the Municipal Building because it was going to be tried by one of the Common Pleas magistrates, and your witnesses were showing up, as subpoenaed, in a different building, i.e. the old courthouse. So that doesn’t happen anymore. The old, old courthouse looked like a courthouse. I tend to enjoy seeing courthouses that look that way. It’s like going to a beautiful church. You believe that if there is justice, you will get it in that courthouse and in that beautiful church there’s got to be compassion and God’s mercy. The old courthouse worked quite well despite the heating and air conditioning problems and the design problems inherent in the courtroom. The new courthouse has overcome all of those things and with the technology that is available, it has the opportunity to be the best courthouse money can buy, but only time will tell. I wish that those of you who have never had the opportunity to try a case in the old, old courthouse, or the annex, or for that matter, the old courthouse, would have had that experience.

Rick E. Marsh, Lane Alton & Horst rmarsh@lanealton.com

Fall 2014 Columbus Bar Lawyers Quarterly

STARTING A LAW FIRM- YOU CAN DO IT! By Rachel A. Sabo

If you are considering starting your own law firm, ask yourself two questions. Am I willing to work hard? Can I ask for help? If the answer is yes to both, read on. When you begin telling people you are going to start your own firm, you will probably get one of two reactions. Some people will be genuinely excited for you. Others will think you are crazy. Do not pay attention to the latter because chances are they have never done what you are about to do. Be brave. I did it and so can you. First, start planning. Create a business plan. Have others read it, critique it and offer suggestions. Read books on the topic, like “Solo by Choice” by Carolyn Elefant. Try to build up a little nest egg before you start. If your work is contingency fee based work like mine, this is even more important. Network with attorneys (CBA committee meetings area great resource for this) who have their own practice and ask them for advice. A meeting like this is how I came to practice employment law and how I met my mentor. My best piece of advice is that you will need help. You cannot do it alone. You need great mentors who are willing to guide you, teach you and support you. They will be invaluable to you during the first few years of your practice. Remember – they’ve all been where you are right now and chances are, someone helped them get there too. I would recommend deciding what type of law you want to practice BEFORE you open the doors. It is helpful to have mentors who practice in the same area you do because they can provide you with sample documents, answer procedural questions, cocounsel cases with you, etc. Use your mentor as a resource but try to be as independent as possible. There is no 16

Fall 2014 Columbus Bar Lawyers Quarterly

substitute for researching and learning things on your own. Once you know what type of law you want to practice, turn to more practical matters like office space, your logo and your website. You want to have these things before you begin advertising and networking. While I was waiting on bar results, I asked friends to help me with things like this. For instance, I have a friend who dabbles in graphic design. I asked her if she would design our logo and her ideas were amazing. Best part? She did it for free. You will be surprised at how many people will jump at the chance to help you on your journey. Next topic – office space. For someone just starting out who does not yet have clients, sharing space with other attorneys is great. Not only can you exchange ideas and ask for help if you need it, but space sharing arrangements are often more affordable than renting on your own. They also give you the option to share a conference room, fax machine/printer, phone system and other amenities without bearing the expense alone. Above all, try to keep your overhead very low. This will help relieve the pressure while you are building your business. You can also investigate the CBA inc and inc Limited programs and/or Legal Practice Lab) that provide practice development and management. I recommend designing a website before you open your firm or before you begin advertising and networking. You want everyone to be able to navigate to your website and learn about you. Is this an expense? Absolutely. But completely worth it in the end based on the number of clients you will get from it, especially if you have great search engine optimization (SEO). You do not need to hire someone to write the content for your website

in order to have great SEO. Research this online. There are hundreds of SEO tutorials on YouTube and other sites that will teach you everything you need to know about what content should be on your website to reach your target clientele. If you cannot afford to pay someone to do something, learn how to do it yourself. I write a blog for our website and it’s a great marketing tool. Plus, it’s free. Not only does it provide SEO for our site but potential clients learn from the articles I write. Lastly, network. Network with other lawyers. Network with non-lawyers. Meeting people and getting involved in organizations will help you build your practice. This is my personal favorite, as I love to meet other people and I’m a friendly person by nature. Even if you are not, try to push yourself to get involved. Before you know it, networking will be second nature. This is not even close to an exhaustive list but above all, remember that you CAN do this. Will you want to quit sometimes? Sure. Will you be frustrated because you feel you don’t know enough? Of course. But instead of letting this negative energy discourage you, channel it in a different way. Use legal research tools to research whatever issue you are unsure of. Read a book on the topic to learn more. There is no substitute for hard work – you just have to be willing to do it to be successful. Rachel A. Sabo, The Friedmann Firm rachel@thefriedmannﬁrm.com

BE A BETTER OUTSIDE COUNSEL! Appreciate the pressures and demands in-house counsel faces each day. By Erin E. Orndorff

My firm offers a unique program for first year associates. The firm identifies opportunities for associates to spend several weeks in-house with clients engaging them in the aspects of their individual business. The program allows for new associates to see how the client’s legal department operates and how the client runs the business from which legal issues actually arise. New associates are then able to appreciate the pressures and demands that in-house counsel face each day. In return, in-house counsel get legal work at a minimal cost, usually far below the standard hourly rate, and a higher level of client service in the future. I have learned several valuable lessons during my in-house placement with a mid-size manufacturing corporation. Here are a few tips for outside counsel: Follow the Outside Counsel Guidelines Nothing will make in-house counsel more frustrated with outside counsel than when they ignore the outside counsel guidelines. For example, if the guidelines state that you will only be paid for travel at half your rate, do not try charging for your full rate. Respond Quickly While this seems like a no-brainer, it is surprising how many firms fail to do this. In-house counsel usually expects a response to an email in the same business day and a phone call to be returned within 24 hours. Make sure to respond – even if all you can say is

“I will look into this and get back to you.”

make a ﬁrst draft for in-house counsel with the knowledge you have.

Know the Business and the Industry You should know more than just the legal issues the company faces. Know the answers to questions such as: What suppliers are essential to the business? Who are the big players upstream and downstream in the supply chain? The answers to these questions could change how you draft or review contracts or agreements.

Join the Team In-house counsel appreciates when outside counsel feels like part of the team. Make sure to get to know other people in the company besides the inhouse counsel and work to develop the relationship. While every in-house counsel is different, by following these eight simple tips you will be well situated to provide valuable service to the client and maintain a long relationship with them in the future.

Provide Clear Recommendations Rather than just giving the information, outside counsel should provide concrete recommendations. In-house counsel are busy and usually do not want to sift through several paragraphs of legalese to understand your thoughts. Anticipate Changes Pay attention to industry or legal changes that could affect the company. This can be as simple as setting up a Google alert on a regulatory agency and sending a quick email to the inhouse counsel when there is a new regulation. Make the In-House Counsel Look Good – Remember that in-house counsel has clients too. In-house counsel wants to be completely prepared and knowledgeable in meetings. Your prompt and correct information can help them achieve that goal. Draft Documents – This is another one that seems like a no-brainer, but outside counsel will often send discovery requests or forms to in-house counsel with nothing added. You may not know all the answers, but at least

Erin E. Orndorff, Frost Brown Toddeorndorff@fbtlaw.com

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Fall 2014 Columbus Bar Lawyers Quarterly

NAVIGATING THE SEVEN “C”s OF MEDIATION By Daniel F. Ryan As the clouds of conﬂict gather and the stormy, uncertain journey of litigation shrouds the horizon a cry from the crow’s nest rings through the heavy air. “Mediation!” The navigator searches through his strategic maps to determine if the prospect of mediation will beneﬁt those on board the endangered vessel. The course, it seems, takes the ship to the seven “C’s” that lead to the peaceful shores and the buried treasure of the isle of Resolution.

Creativity - While the course of litigation leads to a win/ lose proposition, mediation leaves the door open for creative resolution with a possible win/win scenario. Brainstorming and the ability to “think outside the proverbial box” are honored and welcome during mediation. After all, when all the parties involved are engaged in seeking the treasure of resolution the ability to search all possible sites and share the treasure should be embraced. Controlling the Outcome - The journey of mediation permits the voyagers to plot their own course so that the final outcome is acceptable to them. They can weigh the risks, the benefits, the costs during a time that their fellow voyagers are doing the same. The mediation “guide” assists the voyagers in finding the common route to the treasure of resolution. Cost Control - The route of litigation and continued conflict is fraught with dangers, pitfalls and unanticipated twists and turns. At each pitfall, twist or turn, a cost is associated. The elimination of these dangers controls the cost of the journey to the time of the mediation. Certainty - Continued conflict or litigation is inherently a risky proposition. The voyagers have given away their ability

to direct the outcome and provided that authority to others, be it a judge or jury, who have no stake in the outcome. Maintaining control of the tiller permits the voyagers to gain certainty of how the outcome may be structured.

Confidentiality - Most voyagers on the seas of conflict prefer not to have the issues of conflict and the details of the path that led to the conflict strewn with crowds of gawkers who have no need or right to the information that now must be placed in a public record and aired in the public forum. The confidentiality of mediation and the lack of public scrutiny is a benefit that can often be priceless. Continuing the Relationship - Most conflict does not occur between strangers. Relationships, whether they are business or personal, create the opportunity to engage in decisions that affect others in some manner or another. If mediation is undertaken as a joint journey with consideration for the interests and needs of all of the voyagers, the possibility remains open that, at journey’s end, the voyagers will look forward to continuing their journey together. After all, some beneficial connection was likely seen by all prior to the storm arising. Closure - The benefits of resolving conflict once and for all is a part of the treasure that is most often overlooked. The ability to rid the voyagers of stress, emotional turmoil, uncertainty, risk and costs can be an invaluable gem in the treasure of resolution. Returning to the profitable and enjoyable activities of life must be considered. The navigators for the voyagers in mediation must have a firm understanding of the benefits of sailing the “C”s of mediation to be able to successfully counsel those on the voyage.

The navigator searches through his strategic maps to determine if the prospect of mediation will beneﬁt those on board the endangered vessel.

Daniel F. Ryan dryan.atty@gmail.com 18

Fall 2014 Columbus Bar Lawyers Quarterly

WATER THOUGHTS –

THE SOLUTION COULD BE IN THE EQUATION By John W. Hoppers

I hear tell there is a website where you can post your most hare-brained ideas and if perchance someone grabs your ball and runs with it, you can share in the spoils if the idea is a winner. In order to test that possible outcome, I am posting an idea that keeps running through my mind as I hear repeated warnings of drought in Texas, drought in California, diminishing aquifers, etc. and the dire consequences these events hold for mankind. An acquaintance told me of having to sell off half her Texas herd because of the ground being so dry and cracked that the cows were breaking legs stepping in the deep cracks. Many are predicting dire shortages of fruit and vegetables because of the California dry weather. I have a solution. I have long thought about the journey of water in our rivers from source to sea. I grew up on the banks of the upper Ohio Valley, watching the mighty Ohio ﬂow down from Pittsburgh and points upstream in the Pennsylvania and West Virginia mountains. Billions of gallons ﬂow downhill to the Mississippi and on to the Gulf. Likewise water is wasted at the mouth of the St. Lawrence, the Columbia, Chattahoochee, Caloosahatchee, Red, Platte, Canadian, Snake and Arkansas rivers. Of course some, such as the Colorado and the Rio Grande are probably pretty well spent and are a mere trickle when they reach the sea, but many of the others are still navigable many miles upstream from their mouth. How do we get the water from where it is to where it is badly needed? Well, there are several ways – all very expensive, but if our future food supply is in jeopardy, perhaps there is merit to putting money toward a solution to our shortages rather than some less important projects. Canals can be dug and pipelines can be constructed to

move the essential element from where it is wasted, to where it is needed. I am not advocating a total diversion of rivers from their banks, but just a taking of a portion. Imagine a sixty-inch pipe running full of water constantly round the clock without end. It should not diminish the flow of the river substantially, but it could be channeled to where it is needed most to somewhat alleviate drought conditions. Back in the 1940s I recall reading stories of the “Big Inch,” a pipeline constructed to carry petroleum products across the U.S. in order to get it where it was needed. Since then, there have been many such transit ways built, always for the transmission of energy producing products. Most, if not all of these were built by private industry, with a profit motive as impetus for the projects. Dare we consider a joint venture between agriculture interests, land developers, and our Federal Government? California land developers need water to serve the surging population; agriculture giants need water to stay in business, and job creation is on the mind of every politician currently in office. I submit that the movement of water to where it is needed is a far better use for federal and state funds than some of the infamous “bridges to nowhere” or studies of the sex life of orangutans.

With satellite technology, it should not be difficult to survey the easiest route from point wet to point dry, and digging canals or drilling a few tunnels through mountains would help diminish the labor force deficit everyone decries. With proper selection of routes, the need for pumping stations could probably be kept to a minimum. Possibly there would be locations in the mountains where the flow could be used to generate part of the power needed for the pumps. Call me a dreamer, but when the dryness in California and Texas continues as predicted by some current prognosticators, my dream may be given serious thought by those in greatest need. You may ask how this can be of interest to attorneys. Just think of all the new legal issues that might arise concerning riparian rights to the water flowing in the new canals and John W. Hoppers, pipelines. Strip Hoppers Leithart McGrath & Terlecky jwh@columbuslawyer.net

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(800) 372-2438 or www.rufffarms.com Fall 2014 Columbus Bar Lawyers Quarterly

Changing Role of Legal Secretaries – Are you ready for where we are going? By Kelly Coholich

Lawyers: How has your use of secretaries and other non-legal staff changed since you started practicing? Even if you have not been practicing very long? More important, are you prepared for where those roles are heading? At a recent Chapter meeting of the Association of Legal Administrators, a panel discussed this topic with legal administrators from a wide variety of Columbus law offices. While continued change may be the only certainty, we should all actively engage in the discussion of these changing roles so firms can better serve clients. Firms that adapt best to the shifting staffing environment will earn a competitive advantage over those who resist it. Barnes & Thornburg’s Kathie Skamfer has been a legal secretary since 1975. As a panelist, she shared how much her role has changed over the years. When she began, she worked for a single attorney and spent most of her time on typing and shorthand. Today’s technology helps Kathie to do significantly more work and take full advantage of her strengths. In recent years, Kathie has gone to court to ensure proper handling of multi-step filings and walked client paperwork through administrative agencies. She plans events. She does background research on parties related to litigation matters. In years past, some of these tasks would go to paralegals and marketers, but Kathie efficiently executes all of them with the same title she had nearly 40 years ago. We all know “secretaries” like Kathie who do so much more than what the job description has typically included. Perhaps the industry needs to come up with a more suitable title for the work now accomplished by such stars in our firms. Of course technology is a huge driver in the changes to the legal secretary role. Newer lawyers grew up with technology and can effectively handle more themselves without asking a legal secretary for assistance. (Does anybody really think it more efficient for a secretary to type time entries handwritten by a lawyer than for the lawyer to type them directly into the accounting system?) Not only has technology made traditional typing tasks more efficient, but the volume of work requested by lawyers has declined. More and more courts allow, or even require electronic filing. Rather than rushing to file something in person by 4:59 pm, lawyers and secretaries now rush to file something by 11:59 pm, though possibly from a laptop at home or Starbucks rather than physically in the office. Larger firms may have offices in different time zones handling needs after hours for multiple locations. Clearly people do secretarial work other outside of the typical 9 to 5 sitting in an office. Many lawyers conduct significant business by email rather than by letters and memoranda. It’s now even unusual for lawyers to engage secretaries to prepare longer emails in the same manner they historically had them prepare letters. Less business is conducted in person. To the extent a secretary served as concierge for a lawyer’s clients, that role has greatly diminished. At the same time technology continues to advance, 20

Fall Columbus Bar Lawyers Quarterly

lawyers receive greater pressure than ever to deliver services efficiently. Twenty years ago, an assigning lawyer might have sent an associate to the courthouse to walk through one of those filings that Kathie mentioned at our meeting, and even charged the client for the associate’s time to do so. Few clients will now pay for a lawyer’s time on such tasks other than in unusual circumstances. Nor should they. Another panelist, Bill Nolan (office managing partner of Barnes & Thornburg), pointed out that it is not just legal secretaries’ roles that are changing. When he started practicing 25 years ago, law offices consisted largely of partners, associates, paralegals, and legal secretaries, along with a small handful of administrators. Few other categories existed, and they were usually very small if they did. Now those categories often include several subcategories, and roles overlap more than ever. In addition, outsourcing has become a practical alternative for a number of tasks legal secretaries previously performed. Doyle Rausch with Ricoh told the group that outsourcing began in the 1960s with the printing of securities-related documents. Copy centers, mailing, and faxes soon followed. By the 1980s, it was common to outsource these functions. Now, even lawyer tasks may be outsourced as firms enlist third parties to do work such as large scale document reviews. Firms save by more effectively managing the peaks and valleys associated with big litigation; and they pass those cost savings onto clients, who already receive reduced rates from higher priced lawyers not doing the work. The market of available legal secretaries reflects these changes and the relative decline of the traditional role. While the trend towards greater flexibility will continue, firms find it harder to fill more traditional roles when needed. Input from legal administrators at the program suggests that the median age of legal secretary candidates continues to increase as seemingly fewer people entering the profession. As technology continually changes and the pressure on law firms to more efficiently deliver services increases, legal secretaries’ job titles and responsibilities will undoubtedly evolve. In our office, I try to focus less on specific titles and more on who is best suited to tackle a project based on availability, interest, experience, and skill set. I see little benefit to clients, firms, or employees insisting on maintaining inflexible categories. Firms that embrace the changes as an opportunity will stand out. Kelly Coholich is the Office Administrator of Barnes & Thornburg’s Columbus office and Vice President of the Columbus Chapter of the Association of Legal Administrators. Kelly Coholich, Barnes & Thornburg kelly.coholich@btlaw.com

Turning Dreams into Reality I became a lawyer because lawyers have the ability to take an American dream and turn it into an American reality. My father and mother dreamed of owning their own business, and a lawyer helped that dream to become a reality. My first interaction with a lawyer occurred around age 11. My parents decided to incorporate our family-owned trashhauling business. I remember accompanying my father and mother to the lawyer’s office. I recall asking my father why we needed to incorporate our business. My father explained that by incorporating, we would not lose our house if something went wrong with the business. Even today, when I am asked by start-up business owners about whether they need to incorporate or to form a limited liability company, I skip all of the legal technical talk and just tell that story. So far, not one person has decided to postpone forming some sort of separate business entity for her or his business. There is something about the prospect of losing one’s house that gets their attention. The combination of growing up working in a familyowned business and having that early interaction with a business lawyer solidified my interest in being a business lawyer myself. Watching my parents run our family-owned business showed me how entrepreneurship could create opportunities for our family that would not have been available had my father continued to work as an hourly employee. Over time, I saw the role the law played in every aspect of our business. After we incorporated, my parents borrowed money from a bank to purchase a new truck, negotiated with a distributor to acquire a special type of truck body to handle more trash, and hired our first full-time employee. At each of these intervals, contracts and other legal documents were involved. Over the life cycle of our family business, I saw it grow as we made modest acquisitions of customers from some of our competitors. Ultimately, our family business was acquired as larger and better capitalized organizations entered the previously fragmented trash-hauling business. At each step along this continuum, a trusted business lawyer helped guide our family. After graduating from law school, I joined a businessfocused law firm in Columbus, Ohio, and began to pursue my goal of using the law to help business owners succeed. My passion for small business allowed me to grow a legal

practice focused on supporting family-owned businesses in areas such as automobile dealerships, real estate developers, and light manufacturing. My practice as a business lawyer has been very satisfying. In the business news coverage of most communities, it is often forgotten that most people are employed by employers who are “small businesses” as defined by the U.S. Small Business Administration. Most individuals do not work for the large employers that cities and states seek to entice to locate in their jurisdictions. Consequently, the opportunity to work with the small business owners who drive our nation’s economy continues to be very gratifying. My life as a business lawyer has also been enriched by my opportunity to serve on the boards of various civic and charitable organizations. Serving on the board of my local hospital system and on the board of my local community college has been a great way to support my community while gaining an opportunity to meet other civic and business leaders. Almost without exception, it has been my experience that most nonprofit organizations are very interested in having a lawyer on their board. Lawyers bring unique problem-solving and managerial skills that are helpful to nonprofit organizations. Bar association activities have also played a significant role in my legal career. In particular, my involvement with the American Bar Association has allowed me to join in commercial legal reform efforts in six countries on the continent of Africa. Understanding how strong economies are anchored by a clear and predictable legal system, I have eagerly participated in missions aimed at helping developing democracies secure the benefits of modern commercial legal practices as a way to attract foreign investment and trade opportunities. Our country has been built by the dreams and aspirations of people like my parents and others who through sheer determination, and often with the valuable assistance of knowledgeable lawyers, have been able to turn those dreams into realities. Columbus Bar Lawyers Quarters has permission to reprint Mr. Flowers’ essay, recently published in the GPSolo Magazine of the American Bar Association.

Michael E. Flowers, Vice President/City Executive and Chief Legal Ofﬁcer, KBK Enterprises m.ﬂowers@kbkenterprises.net Fall 2014 Columbus Bar Lawyers Quarterly

LAW SCHOOLS: THE REAL EMPLOYMENT NUMBERS FOR THE LAW CLASS OF 2013 By Jason M. Dolin This past May, after almost six years of recovery, the U.S. economy finally recovered the 8.7 million jobs it lost in the Great Recession.1 Recent reports also show that for each of the five months from February through June 2014, the economy added more than 200,000 jobs. That was the first five-month run of its kind in 14 years. and in June, the overall economy added a robust 288,000 jobs,2 exceeding the rate predicted by many economists. But while growth in the general economy appears to be on a steady trajectory, such is not the case in the legal sector. In the second half of 2013, shortly after the law class of 2013 graduated, three months of job gains in the legal sector were followed by three months of job losses.3 That rollercoaster ride continued into 2014: the legal sector added jobs in January,4 lost jobs in February,5 added jobs in March,6 lost jobs in April,7 lost more jobs in May,8 and added jobs in June.9 According to the U.S. Bureau of Labor Statistics, from June 2013 through June 2014 the legal sector nationally added just 5,400 jobs10 which equates to a growth rate of not quite five-tenths of one percent in 12 months. According to Kyle McEntee, Executive Director of Law School Transparency, after reviewing the class of 2013’s employment data, “The future remains grim for prospective law students.”11 Recent law graduates are experiencing buyer’s remorse. For example, the Wisconsin State Bar released a survey in November 2013 of young lawyers that showed “More than 4 in 10 respondents said that they would not go to law school if they had to do it again, given what they know now.”12 Slow growth, of course, is better than no growth, but still woefully inadequate to handle the 46,776 law graduates – a record – that graduated nationally into the marketplace in the spring of 2013. The legal sector has 36,000 fewer jobs today than it did in June 2008 just before the start of the Great Recession.13

Fall 2014 Columbus Bar Lawyers Quarterly

The Employment Future When it comes to employment, demographics are destiny and the grim demographic is that at least through 2022, America’s law schools will continue to pump out vastly more lawyers than there will be lawyer jobs. This will hold true even with reduced law school classes. Looking ahead, nationally the BLS predicts that 4,680 new jobs in the legal services industry14 will be created on average each year from 2012 through the end of 2022.15 During that same period, America’s law schools – even with class size reductions – will crank out approximately 350,000 to 400,000 new attorneys. Even with deaths and retirements of older attorneys added to the newly created jobs, there will be way too many new lawyers for the projected available openings. Ohio’s numbers mirror the national data. The most recent projections from Ohio’s Bureau of Labor Management Information, the labor statistical arm of the Ohio Department of Job and Family Services, show that from 2012 through 2022 there are projected to be a total of 5,710 total lawyer job openings in Ohio or 571 lawyer job openings per year on average. Of those 571 projected annual job openings, 339 are projected to be job replacements (retirements and death) and 232 are projected to be newly created jobs.16 During that same ten-year period, Ohio’s law schools, even at reduced class size, will graduate well more than twice as many graduates as there will be projected Ohio lawyer job openings. That disconnect bodes ill for recent and future law graduates. The Numbers for Ohio’s Law Class of 2013 Obtaining a full time, permanent job, for which a JD is required (FTPJD) remained difficult for Ohio’s 2013 law class with almost 45% of those graduates not able to find FTPJD employment. Further, almost 10% of those who did find private

practice FTPJD work created it themselves by setting up their own solo practices. Ohio’s direct-to-solo rate is more than double the national direct-to-solo rate and is considered a sign of a weak hiring market; with graduates frequently going direct-to-solo only after they were unable to find other FTPJD work. But while the hiring environment for Ohio law grads is still quite difficult, there were some signs of improvement over 2012. For example, in 2013 six of Ohio’s nine law schools increased their percentage of graduates in FTPD jobs over 2012, a higher percentage of 2013 grads found FTPJD work in private practice than in 2012, and the overall unemployment rate (any type of job, legal or nonlegal) for 2013 law graduates ticked down to 9.7%, from 2012’s 10.9%. The national unemployment rate in February 2013, when the data was reported for the Law Class of 2013, was 7.7%.17 Unfortunately, those positive signs were not enough to help a huge un(der)employed portion of the Class of 2013. The chart shows the employment results for Ohio’s 2013 Law Class in detail. Similar to prior years, 39% of all 2013 Ohio law grads went into FTPJD private practice and of that group, 66.8% went into small practice settings of 1 to 25 attorneys. As in the past, the odds of getting a job in “mega practice” settings of 500 or more attorneys remained low, with only a small fraction of graduates (6.8% of all those who entered FTPJD private practice and 2.6% of total graduates) obtaining those jobs. Employment in FTPJD jobs ranged from a high of 66.7% at Ohio Northern Law School to a low of 44.3% at Capital Law School. At the high end, the average debt burden carried by the 2013 Ohio graduates was $113,416 at Case Western’s Law School to a low of $75,656 at Cincinnati’s Law School. Market economics tells us that at some point the imbalance between law graduates and lawyer jobs will start to even out. The question is when? And a second, and perhaps more important question is, at what new “set point”? While it’s a good bet that we’re likely to see a gradual, if uneven, improvement in FTPJD hiring in the next few years it’s a better bet that it won’t be anything like it was in the hiring days prior to the Great Recession. No one believes that those hiring days will return on any foreseeable timeframe.

http://www.bls.gov/news.release/archives/empsit_ 04042014.htm 7. http://www.bls.gov/news.release/archives/empsit_ 05022014.htm 8. http://www.bls.gov/news.release/archives/empsit_ 06062014.htm 9. http://www.bls.gov/news.release/archives/empsit_ 07032014.htm 10. http://www.bls.gov/news.release/empsit.nr0.htm 11. http://www.nationallawjournal.com/id=1202651684724/ Bright-Spots-Amid-Glum-Jobs-Outlook?slreturn=201406 26054038 12. http://taxprof.typepad.com/files/challenges-facing-newlawyers-task-force-report.pdf; http://www.abajournal. com/news/article/would_you_go_to_law_school_if_you_ had_a_do-over_40_percent_of_young_lawyers/ 13. http://www.bls.gov/news.release/archives/empsit_ 07032008.pdf, Chart B-1 14. The BLS predicts an overall average annual increase across all sectors, including the legal services industry, of 7,480 newly created jobs per year for lawyers. Other than jobs in the legal services industry, however, many of the jobs created in other industries are not FTPJD jobs. 15. BLS data on file with author. 16. BLMI date on file with author. 17. http://www.bls. By Jason M. Dolin gov/news.release/ jmdolin@sbcglobal.net archives/empsit_ 03082013.pdf

http://www.nytimes.com/2014/06/07/business/labordepartment-releases-jobs-data-for-may.html; http://www. americanlawyer.com/top-stories/id=1202658417180/Lega l%20Industry%20Shed%20700%20Jobs%20in%20May ?slreturn=20140510035903# 2. http://www.nytimes.com/2014/07/04/business/jobs-datafor-june-released-by-labor-department.html?hp&action =click&pgtype=Homepage&version=HpSum&module =ﬁrst-column-region&region=top-news&WT.nav=topnews&_r=0 3. July 2013 - job gain - http://www.bls.gov/news.release/ archives/empsit_08022013.htm; August 2013 - job gain - http://www.bls.gov/news.release/archives/empsit_ 09062013.htm; September 2013 - job gain - http://www. bls.gov/news.release/archives/empsit_10222013.htm; October 2013 - job loss - http://www.bls.gov/news. release/archives/empsit_11082013.htm; November 2013 - job loss - http://www.bls.gov/news.release/archives/ empsit_12062013.htm; December 2013 - job loss - http:// www.bls.gov/news.release/archives/empsit_01102014.htm 4. http://www.bls.gov/news.release/archives/empsit_ 02072014.htm 5. http://www.bls.gov/news.release/archives/empsit_ 03072014.htm Fall 2014 Columbus Bar Lawyers Quarterly

Old Blue Danube Offers Great Dance By the Honorable David E. Cain Take a waltz on the “Blue Danube” and capture the charm of old Central Europe. Johann Strauss composed his famous waltz in 1866, in part to expose the Danube as a romantic and exciting water highway through a region filled with natural and architectural wonders. Riverboats do it now. The waterway serves as a front door to some of the most fascinating cities in the world, rich in histories of music and art, of love and war. Outside the urban arena, villages and vineyards, forests and rocky cliffs line its picturesque shores. Lyrics were later written for Strauss’s musical creation and boast of the “old castles looking down from high, greet you smiling from their steep and craggy hilltops, and the mountains’ vistas mirror in your dancing waves.” We boarded our boat in Budapest and traveled upstream (westward) to Nuremberg. Twenty-six locks along the some 400-mile route raised the ship several hundred feet and added an element of marvelous engineering. In all, the Danube – called Donau by the Germans and Austrians – flows through nearly 1,800 miles of Central Europe, passing through more European countries (ten) than any other and the only one to flow west to east. Budapest has to be the most resilient city on the planet and far more beautiful than one might expect. The city has been devastated many times through its history, taking a beating in WWI and then 108 days of bombing in WWII. Rebuilding occurred in 1945, but Russian tanks destroyed most everything again in 1956. “Who is our enemy?” our guide, Liz, queried. “We don’t know. It changes all the time.” The last of the Soviets left in 1991. To celebrate, the Hungarians created a statue of Ronald Reagan, she added. That joined about 1,100 other statues in the city – even after the communists had decimated about 5,000 of such. Today, Budapest has a population of 1.7 million with another 300,000 commuting in each day. The city accounts for 60 percent of the entire country’s GDP. The Hungarian language has 44 letters, making it one of the most difficult in the world. Only the highly educated can speak it well. Fortunately, English is now the country’s first language. Budapest is a Jewish paradise, Liz declared, with the largest synagogue in Europe and the third largest Jewish population. The country has had 16 noble prize winners, she added. It 24

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also has “a lot of idiots,” she lamented. “Generation after generation of ﬁrst cousins married.” The city has 123 thermal springs that pump out more than 80 million liters of thermal water every day with the world’s largest thermal water cave system and, of course, the largest medicinal bath in Europe. Before merging in 1872, Buda and Pest were two cities facing each other across the river – the plains of Pest on the left bank and the hills of Buda on the east. Now, Pest has become the center of business life for the country and Buda is an historic landmark with Buda Castle (the former Royal Palace originally built in the 13th century), Matthias Church and Fisherman’s Bastion (part of an ancient castle wall), among other attractions. They present a virtual smorgasbord of neoRomanesque, neo-Baroque, and neo-Gothic architecture. And it all overlooks the Danube nearly 500 feet below where the far shore features the magniﬁcent eclectic and neo-Gothic sprawling House of Parliament. One day was hardly enough time in Budapest. But at night, we moved smoothly up the river and arrived in Vienna the next morning. Lovers of music and art could spend days or weeks in the museums, palaces and galleries here. Beethoven, Mozart, Haydn and Strauss are among the many musicians who practiced their skills in Vienna, and their works are on wide display. Vienna is now the capital of Austria but has been a great city since the Middle Ages when St. Stephen’s Cathedral was constructed. A Gothic masterpiece, St. Stephen’s is still one of the most famous structures in Vienna. Another would be the Hofburg Palace that was home to the Habsburgs who ruled from in late 1200’s to the early 1900’s. The city has a population of about 1.8 million and is spread across 160 square miles, about half of which is considered green space. Horses and carriages are quite popular in the high tourist areas. We spent our third morning gliding through the unforgettable Wachau Valley with its background of forested mountains and shoreline strewn with quaint villages – always punctuated with the steeples of churches. Miles and miles of steeply terraced vineyards – dotted with monasteries, medieval towns and castle ruins – inspired the nickname “valley of a thousand buckets.” The pristine beauty and rich history of the valley prompted UNESCO to list it as a World Heritage site in 2000.

The end of the valley brought the crowning grandeur of the gigantic Melk Abbey rising in a bright yellow hue from a rocky outcrop overlooking the Danube. It attracts more than a half million visitors every year. Originally established as a monastery by Benedictine monks more than 900 years ago, the abbey was rebuilt in the early 1700’s to its present baroque extravaganza. Features include a church, a marble hall for guest dining, museums, ceremonial courts, library with almost 100,000 leather-bound medieval books stacked from ﬂoor to ceiling, seven inner courtyards and 1,365 windows. Many of the 18th century’s most famous painters and sculptors used their talents at the abbey where monks still work and pray. The abbey also houses a private secondary school with about 800 students. The twin spires and octagonal dome of the church can be seen for miles. By the next morning, we had crossed into Germany and docked at the City of Passau, near both the Austrian and Czech borders and at the conﬂuence of the three rivers: Danube, Inn and Ilz. With a population of 50,000, Passau has 54 churches (52 Catholic and two Lutheran) and an unemployment rate of less than four percent – largely due to the manufacturing presence of Bavarian Motor Works (better known as BMW). Eleven thousand students are enrolled at the University of Passau. The architecture comes in a great variety, from the simplicity of Romanesque (1050-1200) to the highly ornamented baroque (1550-1775) with its great use of frescoes, sculptured plaster and gilding. The most famous baroque landmark is the spectacular 400-year-old St. Stephen’s Cathedral. And it houses Europe’s largest pipe organ with 18,000 pipes (and 233 registers) that can be played from one console. Overlooking the city on the north side of the Danube is the Vest Oberhaus (Upper Fortress) built by the powerful and wealthy Bishops of Passau who controlled the city of 1,300 years. The oldest city on the Danube is Regensburg where we

docked on the sixth day out. Having suffered no war damage, the city is among the best preserved medieval towns in Europe. Roman gates have been standing since 179 A.D. A short walk from the dock and just off the riverbank is the Old Sausage Kitchen. As Germany’s oldest restaurant, the small kitchen and dining room has been operating in the same spot for almost 900 years. Nearby is the Old Stone Bridge. Built between 1135 and 1146 and used by knights during the second and third crusades, it remained the only solid crossing over the Danube for nearly 800 years. The bridge has a span of 1,017 feet and still carries trafﬁc over its 16 arches. One can wander up narrow cobblestone streets and alleys among medieval buildings and towers to visit the over-shadowing Dom St. Peter (or Regensburg) Cathedral that was ﬁrst built about 700 A.D. A Romanesque tower still stands as an anchor to the current high Gothic-style structure – 279 feet long, 115 feet wide and 105 feet tall – that was started in 1273 and began use in 1320. Neo-gothic towers were added from 1859 to 1869 and

Fall 2014 Columbus Bar Lawyers Quarterly

rise to a height of 344 feet. The interior of the cathedral is covered with sculpted religious images and surrounded by spectacular stainedglass windows that were installed mostly during the 14th century. Many of the towers along the city streets had no use except for showing off, our guide commented. For an Italian merchant in Romanesque times, a status symbol was the height of his tower. That afternoon, we took a side trip on a ferry through the stunning Danube Gorge with its Jurassic chalk cliffs and narrow passages leading to the oldest monastery in Bavaria, the Weltenburg Abbey. The abbey was founded in 610 A.D. by Benedictine monks and was rebuilt between 1718 and 1739 in its present baroque style. The interior of the abbey’s church is an unforgettable combination of art and sculpture illuminated only by high invisible windows. On the high alter is a bigger than life, horse-mounted St. George struggling with the dragon. Nearby is the oldest monastic brewery in the world, the Weltenberg Brewery that has been serving its famous dark beer since 1058. The last stop for our riverboat was at Nuremberg on the 106-mile-long Main-Danube Canal, an engineering masterpiece completed in 1992. The canal blends so well with the green landscapes the average passenger may not realize it is an artiﬁcial waterway and the boat is more than 1,300 feet above sea level (thanks to a series of stair-step locks). With a metropolitan area of 1.2 million residents, Nuremberg is the second largest city in Bavaria and for centuries was best known for its toy factories (the city still hosts the world’s largest toy trade fair each year). That changed a great deal when it become the site of the Nazi party national assemblies (from 1933 to 1938) as well as the scene of the post-war trials (1945-46) of 21 men charged with inciting war, war crimes and crimes against humanity. We rode past the complex where “Judgment at Nuremberg” was rendered against all but two of them. Three of the convicted Nazi’s were sentenced to death. We deboarded the bus in Congress Hall, a huge round brick structure modeled after the coliseum in Rome and built to hold 50,000 people, exemplifying the use of architecture to enhance mass dynamics for political purposes. The site is now mandatory study for school students, reﬂecting an effort to make sure history doesn’t repeat itself. Ninety percent of Nuremberg was destroyed during WWII but its successful reconstruction can be seen from the panoramic view offered at the Imperial Castle that sits inside an intact city wall that is more than three miles long and has 80 defensive towers. When we left Nuremberg, my wife, Mary Ann, and I said goodbye to our new friends, Tony and Penny Derrick who were returning to their home in Southampton, England, and journeyed by bus (about three and a half hours) to Prague with our usual travelling companions, Jerry and Jay Gilroy, 26

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of Lansing, Michigan. The ride took us over rolling hills decorated with forests and stands of tall hartwick pines, ﬁelds with crops laid out in straight edged squares and rectangles, multi-acre plots of bright yellow plants that produce canola oil and an occasional castle and fortress overlooking small villages topped with typical church steeples. Not a trace of litter can be seen anywhere on the countryside. Our bus driver said boar hogs sometimes eat the canola plants, become intoxicated by them and block major highways as they sleep it off. Bavarian forests became Bohemian forests as we crossed the border into the Czech Republic. As a highly convenient accommodation to tourists, 31 European countries have entered an agreement to allow easy passage from one country to another without passport checkpoints. Prague should be on everyone’s wish list of places to see. It is called the “city of a hundred spires” but it seems more like a thousand – with an ample share of baroque onions as well – all untouched by WWII. Head for the St. Charles Bridge (built in 1357) that spans the enchanting Vltava River. The sides of the bridge are adorned by 30 baroque statues and sculptors from the turn of the 17th and 18th centuries. On the hillside, one can see the Prague Castle (the largest in Europe with more than 2,000 rooms) and St. Vitus Cathedral, with its twin pseudo-Gothic towers rising about 250 feet into the sky and a Grand Tower, even higher. The Old Royal Palace in the medieval part of Prague Palace is now occupied by the president of the Czech Republic. St. Vitus is the nation’s spiritual center, the scene of many coronations and entombments. With a population of 1.3 million, Prague has more than 300 churches and a large Jewish Quarter featuring a Town Hall built in the 16th century and a synagogue built in the 13th century. Museums, galleries, restaurants and shops ﬂourish throughout the city. Nowhere could one look without seeing interesting old architecture. Even the housing is in huge, ornate stone or stucco buildings. Seems like nothing new has been built since the 18th century. Two days were not enough time here. The Honorable David E. Cain, Franklin County Common Pleas Court David_Cain@fccourts.org

LAWYERS WITH ARTISTIC LICENSE By Heather G. Sowald

ROBERT G. PALMER, sitting behind his drum set, appears in his high school yearbook. Beneath the picture, it says: “Outstanding Senior.” Although Bob had a busy year as president of Hi-Y and Leaders’ club, he also spent hours hurdling for the track team, attending Boys’ State, and participating as an active member of NHS. He didn’t neglect his hobby and main interest, music, as he had a lead in the musical “Bye, Bye, Birdie,” served his seventh year as a drummer in the band, and received the John Philip Sousa award.” And he hasn’t slowed down! Bob’s instincts to start drumming began at age six with two knives on the kitchen table in his home in Grandview Heights. His parents, a physician and a community volunteer, thought actual drums and lessons were safer. His instruments now include drum kit, cajon, conga, and bongos. Bob has continued to play occasionally in dance bands and trios, and he joined with other lawyers to perform at the Ohio Statehouse 125th Anniversary event. As noted in his yearbook, Bob’s talents also extend to singing and acting. After high school, Bob continued to act in collegiate theater and sing in a coed performance group, but didn’t act again until the Columbus Bar staged “1776.” He says he had the best part, playing Thomas Jefferson, because, if for no other reason, he got to kiss the girl! He received his draft notice while attending DePauw University in 1966. He entered into a two-year Air Force ROTC program during his Washington University School of Law years. He began practice in the prosecutor’s ofﬁce for St. Louis County until he was called up for active duty in the USAF JAG Corps, prosecuting and defending criminal cases, and also served in a quasi-diplomatic position in the Republic of the Philippines. Returning to Columbus, Bob practiced law with his brother, Tom, until 1979. Since then, he handled diverse civil litigation matters either as a solo practitioner or in small ﬁrms. Over the last few years, he has focused on developing his mediation practice. As he says about mediating: “Sometimes, the peanut butter, as well intentioned as it may be, is just unwilling to meet the jelly halfway. That’s where I come in.” Bob has been married since 1983 to Susan Lee Simms, a professor at Capital University Law School. He was actively

involved with raising three sons and a daughter, including serving as a licensed youth soccer coach for 13 years. Their kids are now scattered across the country, successfully pursuing their own endeavors. In the recent WOSU TV “Neighborhood” series on Clintonville, Bob played the part of Pat Murnan, a Columbus gambler who kept the mob out of Columbus in the 1930s. Bob has also used his voice and acting skills for a number of instructional and commercial videos, including several for the Columbus Bar. He has taken film acting classes in the hope of doing more acting and voiceover work. Bob has served on arts boards, including dialogue, inc. and the Otterbein Theatre Board, and currently is a commissioner on Columbus Historic Resources Commission. In addition to his other interests, Bob finds time to garden (“I’ll keep planting my flowers, even though the varmints – squirrels, rabbits, deer– and I are always at war”), sail, windsurf, and throw clay pots. Recently been bitten by the golf bug, he wishes he would have learned at a younger age. And he is passionate about snow skiing: “I would rather be in a snow storm at 11,000 feet with my skis pointed downhill than lay on a beach!”

Heather G. Sowald, Sowald Sowald Anderson & Hawley Hawleyhsowald@sowaldlaw.com

Fall 2014 Columbus Bar Lawyers Quarterly

Civil Jury Trials FRANKLIN COUNTY COMMON PLEAS COURT By Monica L. Waller

Verdict: $4,314,186.00 ($1,689,186.00 in economic damages; $2,000,000.00 in non-economic damages; $625,000.00 in loss of consortium). Negligence and Product

Liability. The 45-year-old Plaintiff Everett Webb worked as a firefighter for the Prairie Township Fire Department. On September 21, 2010 he was participating in a training exercise using an MSA Fire Safety Rescue Belt. The device was to be worn around the waist and secured via a Kevlar support line to an elevated stationary point to allow the firefighter to rappel to the ground. The training session was led by Defendant Mark Gibson, an employee of the supplier of the belt, Defendant Fire Safety Services, Inc. The support line was secured to an elevated point and a secondary line was also used. While Mr. Webb was attempting a rappel from a three-story building, the primary support line broke and the secondary line had too much slack to catch him. He fell two and a half stories fracturing his right knee and tibia. He developed swelling in the leg which required an emergency fasciotomy to relieve pressure. He also underwent an external fixation with rods followed by an internal fixation with plates and screws. He subsequently developed traumatic arthritis in the leg and knee and continued to suffer from pain and reduced range of motion. It was anticipated that he would need a future knee replacement surgery. He was unable to return to his position as a firefighter due to the injuries. He was diagnosed with post-traumatic stress disorder and suffered with nightmares and anxiety stemming from the incident. Mr. Webb and his wife, Julie Webb, sued the manufacturer of the belt, Defendant Mine Safety Appliance Co. and the supplier, Defendant Fire Safety Services, Inc. They also sued the employee of the supplier, Defendant Mark Gibson. They argued that the manufacturer recommended that the belts are to be taken out of service after 10 uses and the belt that failed had exceeded that limit and the line was worn. Plaintiffs settled with the manufacturer prior to trial. Defendant Fire Safety argued that Mr. Webb’s co-workers were liable for failing to properly set up the secondary line. The jury attributed 35% of the damages to Mr. Webb’s coworkers. They attributed 15% of the damages to MSA, as the manufacturer. Fire Safety’s proportionate share was 50% of the gross verdict. The jury also found that Mr. Webb suffered substantial permanent physical deformity to his leg. Therefore, the verdict was not subject to the statutory caps. Medical Specials: $97,000 (Past); $20,000 (Future). Lost Wages: $750,000-$1.2 million. Plaintiffs’ Experts: Sal C. Malguamera, PhD (mechanical engineering); Joaquin Castaneda, M.D. (orthopedic surgery); Abul Hasan, M.D. (psychiatry); Tiffany Wynn, MA, LPCC (psychology); Sara A. Ford, MRC (vocational rehabilitation). Defendants’ Experts: David A. Moore, P.E. (mechanical engineering); David Hannallah, M.D. (orthopedic surgery); Donald E.

Fall 2014 Columbus Bar Lawyers Quarterly

Shrey, Ph.D. (vocational rehabilitation). Settlement Demand: $2,900,000.00. Last Settlement Offer: $1,200,000.00. Last Length of Trial: 9 days. Plaintiffs’ Counsel: Daniel R. Volkema and Philip F. Brown. Defendants’ Counsel: David J. Heinlein. Judge Colleen O’Donnell. Case Caption: Everett Webb, et al. v. Fire-Safety Services, Inc., et al. Case No. 10 CV 18516 (2013).

Verdict: $1,673,060.00 ($893,358.00 in economic; $779,702.00 in non-economic; $75,000.00 in punitives). Employment Discrimination. Plaintiff Raechel Peters

(formerly Raechel Sterud) worked as a firefighter with Defendant Orange Township Fire Department under the supervision of Defendant Lt. Keith Myers. Ms. Peters claimed that she was the only active female firefighter and she was subjected to sexual harassment before being fired shortly before becoming a union firefighter. She alleged that a male colleague bragged about his intention to sleep with her, used the only female restroom while she was on duty or used the male restroom with the door open, would invade her personal space and make comments about her physical appearance in her uniform. She claimed that when she tried to notify Lt. Myers of the harassment, she was told to come to work with a smile on her face and shut her mouth. Fellow union member firefighters advised Ms. Peters to wait until her probationary period ended before filing a sexual harassment claim. According to Ms. Peters, within days after she complained to Lt. Myers, he went to the Chief, Asst. Chief and Township Administrator to report that Ms. Peters was having performance problems. During another meeting between Lt. Myers, the Chief, Asst. Chief and Township Administrator, which Lt. Myers secretly taped, the group discussed the fact that Ms. Peters intended to file a sexual harassment claim upon completion of her probationary period and discussed strategies on how to defend against it. Ms. Peters claimed that Lt. Myers did not advise her of any performance problems and told her that he was unaware of any performance problems. However, he ultimately recommended Ms. Peters’ termination and she was terminated three weeks before she completed her probationary period. All firefighters hired following Ms. Peters’ termination were male. Ms. Peters sued for gender discrimination, sexual harassment, retaliation and wrongful discharge in violation of public policy. Defendants argued that there were legitimate, non-discriminatory reasons for Ms. Peters’ termination. They claimed that her attitude and her performance were deficient. They alleged that she questioned her supervisor’s abilities, did not trust his judgment and called him an “asshole” in front of fellow firefighters. They also claimed that she had difficulties handling power saws, operating emergency lights and the radio and deciphering a

map. Moreover, they alleged that another female firefighter similarly situated was able to complete the probationary period and become a union firefighter. The court granted summary judgment in favor of Defendants on claims of sexual harassment, retaliation and wrongful discharge in violation of public policy, but allowed the gender discrimination claim to proceed to trial. Special Damages: $113,800 in back pay, $950,000 in front pay through age of retirement. Plaintiff’s Expert: Brian M. Russell, MNA, CPA/ABV, CVA. Defendants’ Expert: None. Plaintiff demanded $250,000.00 to settle with Defendant Myers only. Last Settlement Offer: $114,000.00 in back pay and reinstatement. Length of Trial: 6 days. Plaintiff’s Counsel: Daniel R. Mordarski and Karen L. Poling. Counsel for Defendant Orange Township: John Latchney. Counsel for Defendant Keith Myers: Michael J. Valentine. Judge Kim Brown. Case Caption: Raechel Sterud v. Orange Township. Case No. 10 CV 1314 (2013)

Verdict: $62,348.00 ($11,148.00 in economic damages; $48,000.00 in non-economic damages; $3,200.00 for loss of consortium). Automobile Accident.

On February 28, 2008, Plaintiff Julie Brown was rearended on I-71 North by Defendant Nathan Smith. Ms. Brown sustained soft tissue injuries to her neck for which she claimed ongoing symptoms for years following the accident. At trial, Defendant’s expert, Grant Jones, M.D. acknowledged that Plaintiff’s treating physician, Plaintiff’s expert Douglas Diorio, M.D. would likely be in a better position to provide an expert opinion on Plaintiff’s injuries and prognosis because of his experience treating Plaintiff. Plaintiff’s insurer, Defendant Nationwide General Insurance Company, was named as a party due to a medical payments lien but did not participate in the trial. Medical Specials: $11,148.00. Plaintiff’s Expert: Douglas Diorio, M.D. Defendant’s Expert: Grant Jones, M.D. Last Settlement Demand: $60,000.00. Last Settlement Offer: $23,000.00. Length of Trial: 2 days. Plaintiff’s Counsel: Kevin L. Lenson and Egan Kilbane. Counsel for Defendant Nathan Smith: Michael Ferguson. Magistrate Christine Lippe. Case Caption: Julie A. Brown, et al. v. Nathan L. Smith, et al. Case No. 10 CV 1739 (2013).

Verdict: $56,008.00. Breach of Contract. Plaintiff

Techmate, Inc. is a professional services company working with technology vendors and resellers. In February of 2006, Techmate hired Defendant Frank Palmiero. Prior to his employment, Mr. Palmiero signed a non-disclosure

agreement. Upon hiring, he also entered into a non-compete agreement. Under both contracts, Mr. Palmiero was obligated to maintain the confidentiality of Techmate’s proprietary and trade secret information. The non-compete also required that Mr. Palmiero maintain the confidentiality of Techmate’s client lists. He was also prohibited from competing with Techmate for one year following his termination. In June of 2010, Techmate learned that Mr. Palmiero had sent e-mails to Techmate’s customers and prospects to solicit employment opportunities for himself. Techmate also claimed that Mr. Palmiero interviewed with Techmate clients while on the clock for Techmate and submitted and was reimbursed for entertainment expenses associated with his job search. As a result, Mr. Palmiero was terminated. Techmate claimed that Mr. Palmiero competed with Techmate within the year after his termination and used Techmate’s confidential and proprietary information. Techmate sued Mr. Palmiero for breach of contract, misappropriation of trade secrets and under the faithless servant doctrine. Mr. Palmiero argued that he did not compete with Techmate after his termination. He claimed that it was several months before he obtained employment and his subsequent employers were neither competitors nor customers of Techmate. Mr. Palmiero also argued that the information Techmate claimed was a misappropriated trade secret was readily available on Techmate’s website. He also argued that the claimed damages were not supported by reliable evidence. The jury did not award damages for breach of contract, but awarded $22,414.00 for misappropriation of trade secrets and $32,694.00 under the faithless servant doctrine. Plaintiff was also awarded attorneys fees which were determined at a subsequent hearing. Plaintiff’s Expert: Keith A. Hock. Defendant’s Experts: None. Last Settlement Demand: $245,000.00 Last Settlement Offer: None. Length of Trial: 4 days. Plaintiff’s Counsel: David M. Scott. Defendant’s Counsel: Jeffrey J. Jurca and Jason P. Grable. Judge Kim Brown. Case Caption: Techmate, Inc. v. Frank Palmiero. Case No. 11 CV 9780 (2013).

Verdict: $43,026.00. Automobile Accident. On September 16, 2011, Plaintiff Terry Caldwell was traveling westbound on Winchester Pike when a vehicle driven by Bradley K. Estes failed to stop at a stop sign at the intersection of Winchester Pike and Hampton Road South. Mr. Estes pulled out in front of Mr. Caldwell causing a collision. Mr. Caldwell’s claimed injuries included traumatic brain injury, fracture of a cervical vertebra, comminuted fracture of a cuneiform bone

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in the right foot, right shoulder pain, right foot pain and an aggravation of pre-existing arthritis. Mr. Caldwell settled with Mr. Estes’ insurer for the $25,000 limit of his policy before suit was ﬁled. He sued his insurer, Defendant State Farm, for underinsured motorist coverage. State Farm argued that Plaintiff recovered from his injuries within 3½ months after the accident and that his ongoing health problems were unrelated to the accident. According to Defendant’s counsel, the jury verdict was to be reduced by the $25,000 previously paid by Mr. Estes’ insurer and the $10,000 in medical payment beneﬁts previously provided by State Farm, but the parties settled after the verdict. Medical Specials: Plaintiff claimed $76,705.10 in medical specials which had been reduced $23,422.72 with write-offs. Defendant claimed that the related medical specials were $35,746.30 reduced to $16,830.39 with write-offs. Plaintiff’s Expert: Kathy Dodd, M.D. Defendant’s Experts: David Hannallah, M.D. Last Settlement Demand: $42,000.00. Last Settlement Offer: $14,000.00. (Both the demand and offer were for “new money” in excess of the $25,000.00 plaintiff already received from his insurer.) Length of Trial: 3 days. Plaintiff’s Counsel: James Malek. Defendant’s Counsel: Belinda Barnes. Magistrate Timothy McCarthy. Case Caption: Terry Caldwell, et al. v. State Farm Mutual Automobile Insurance Company. Case No. 12 CV 2291 (2013).

Verdict: $12,000.00. ($4,740.00 in economic damages, $7,260.00 in non-economic damages.) Automobile Accident. On May 20, 2012, Plaintiff Anna Claytor was

traveling eastbound on Sullivant Avenue when her vehicle was struck in the rear by a vehicle driven by Defendant Jeffrey Hannan. Plaintiff complained of pain in her back, neck, hip and leg as well as headaches. She underwent physical therapy through July of 2012. In the fall of 2012 she treated at Cardinal Orthopedic for back and leg pain. In September of 2013 she was hospitalized for back, leg and hip pain. She claimed $13,000 in medical specials and ongoing headaches, neck, mid and low back pain with radiating pain into her legs. Ms. Claytor’s insurer, Home-Owners Insurance Company, paid $4,065.00 in medical payments coverage and asserted a subrogation claim against Mr. Hannan. Defendant Hannan asserted that Ms. Claytor had extensive pre-existing injuries including a prior leg surgery and a prior fusion surgery in her neck. She also had longstanding low back problems due to degenerative disk disease, scoliosis, spinal stenosis and arthritis. Medical Specials: $13,000.00. Plaintiff’s Expert: None. Defendant’s Experts: None. No settlement negotiation information available. Length of Trial: 2 days. Plaintiff’s Counsel: Charles H. Bendig. Counsel for Defendant Jeffrey Hannan: Thomas J. Mulvey. Counsel for Defendant Home-Owners Insurance Company: Matthew C. Workman. Judge Timothy Horton. Case Caption: Anna Claytor v. Jeffrey Hannan, et al. Case No. 12 CV 13393 (2013).

Defense Verdict. Medical Malpractice. Andrea Robinson, an 18-year old student at Ohio University, was taken by ambulance to the emergency room of Defendant O’Bleness Memorial Hospital on the evening of February 15, 2010. When she arrived, she had a fever and was confused and complaining of a headache. She had a history of vomiting, nausea and decreased mental status. She was evaluated by emergency room physician, Defendant Gwendolyn Millesen, M.D., who suspected bacterial meningitis. A 30

Fall 2014 Columbus Bar Lawyers Quarterly

lumbar puncture produced turbid and cloudy fluid which further supported the diagnosis. Dr. Millesen gave Miss Robinson an antibiotic and made arrangements to have her transported to Riverside Memorial Hospital in Columbus. Air transport was unavailable due to inclement weather. Therefore, Miss Robinson was transported in an ambulance operated by Defendant Life Ambulance. When she left O’Bleness Hospital, Miss Robinson was non-responsive but was receiving supplemental oxygen and maintaining an appropriate oxygen level. Therefore she was not intubated. There were conflicting reports as to whether Miss Robinson’s oxygen levels dropped during transport. However, shortly after she arrived at Riverside, nurses noted that she had snoring respirations which indicated that she was not properly oxygenating. She was intubated and a head CT was performed that revealed diffuse swelling of the brain. A subsequent MRI revealed a brain herniation into the upper cervical spine. Miss Robinson was pronounced dead in the afternoon of February 17, 2010. Her father sued O’Bleness, Dr. Millesen and Life Ambulance. He claimed that the brain herniation was caused by the lumbar puncture performed by Dr. Millesen. He also claimed that Dr. Millesen should have intubated Miss Robinson before transporting her. He also claimed that a nurse failed to properly document Miss Robinson’s condition while she was in O’Bleness and failed to advise Dr. Millesen of Miss Robinson’s rapid deterioration. Finally, Mr. Robinson claimed that the EMTs failed to properly maintain Miss Robinson’s oxygen level during transport. Defendants argued that Miss Robinson’s brain herniation was a consequence of a rapidly progressing case of meningitis and not the result of the lumbar puncture. Defendants also argued that she did not require intubation when she left O’Bleness Hospital and intubation would not have prevented her significant brain injury. The claims against Life Ambulance were dismissed prior to trial. Mr. Robinson also sued Ohio University in a separate action that remains pending before the Court of Claims. Plaintiff’s Experts: Charles Emerman, M.D. (emergency medicine), Joseph Safdeih, M.D. (neurology), James Provenzale, M.D. (neuroradiology), Polly Zimmerman, R.N. (nursing), John F. Burke, Ph.D. (economist). Experts of Defendant Dr. Millesen: Jay Falk, M.D. (emergency medicine), Mark Bibler, M.D. (infectious disease) and Chris Kazmierczak, M.D. (neuroradiology). Experts of Defendant O’Blenness Hospital: Richard Nelson, M.D. (emergency medicine), Harrison Weed, M.D. (infectious disease) and Kenneth Mankowski, M.D. (neurology). No settlement information available. Length of Trial: 13 days. Plaintiff’s Counsel: Laura L. Mills. Counsel for Defendant Dr. Millesen: Gregory D. Rankin. Counsel for Defendant O’Blenness Hospital: Frederick A. Sewards. Visiting Judge Nodine Miller. Case Caption: Joseph Robinson, Individually and as Administrator of the Estate of Andrea Robinson, Deceased v. Gwendolyn Millesen, M.D., et al. Case No. 10 CV 15603 (2013).

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

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