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THE ENGINEERING & SCIENCE BEHIND THE ANSWERS 2
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President’s Page
Just When You Thought We Couldn’t Get Any Better By Keith W. Schneider As is customary with most outgoing Presidents, this is my last opportunity to showcase the fine work of your Association over the past year. It seems as if only yesterday I was sitting down to write my first article for the Lawyers Quarterly and now as in all things in life, my tenure has passed! Your Bar is so fortunate to have the best support staff, led by Jill Snitcher McQuain, of any bar association in the country. And while we are saddened by the loss and retirement of some absolutely wonderful people, the CBA continues as strong as ever. Most remarkable to me is repeatedly in this term and in my prior years as an officer, other state and metro bar associations from across the country want to know what “we are doing at the CBA.” Through Jill’s outstanding vision and guidance, the CBA continues to be highly regarded and ranked top notch amongst our peers. I have also been so fortunate to have at my back the hard work and dedication of my fellow board members who give tirelessly to the vision in doing the good work for your bar. Our committees are as active and strong as ever. I thank each and every committee chair who gave above and beyond the call of duty to make each respective committee the best it can be. And to our affiliates and other partners, a special thanks for your continued support and contribution in an effort to benefit the entire membership of the CBA. None of this could be achieved without your continued support. My year began with the addition of a new member benefit: free, unlimited, online legal research for every member. Fastcase offers smarter, faster, and easier legal research, and boasts the most popular legal app among lawyers, two years in a row. Access to Fastcase typically costs an individual subscriber $995 per year, but the service is included for free in the cost of dues for Columbus Bar members, and it could result in a savings of thousands of dollars for you and your clients. The addition of Fastcase as a member benefit, among other things, has helped the association attract new members and retain existing members. As of the time I am writing this article, the Columbus Bar Association’s membership has grown 10% over the previous year. This growth suggests that we are moving in the right direction. While membership itself is on the rise, some of our traditional revenue generating services have seen a decline. The competition in CLE continues to increase, and we are working to identify new opportunities. Law firms continue to develop their own in-house programming as a client development tool; out-of-state providers are offering free CLE as a marketing strategy; and this year marked the first year when Ohio lawyers are able to get up to 12 hours of their biennial requirement online. 4
Spring 2015 Columbus Bar Lawyers Quarterly
But, the CBA is not just sitting idly by. Judy McInturff - a seasoned bankruptcy lawyer and experienced educator - recently joined the CBA staff, and is directing our CLE program. We’ve ramped up our curriculum to deliver better quality, embrace multi-media in our delivery, and identify opportunities to help law firms develop programming that advances their brand. We also brought online CLE in-house to allow us flexibility in pricing and content delivery. This year, we offered a new version of CLE Easy Pass, allowing users to access up to 12 hours of online programming for one flat fee of $175. Health insurance is another area of ongoing volatility. The CBA has offered a member health insurance program since 1989, and it has been a profitable business that allows the CBA to offer a valuable benefit, while raising revenue that allows us to keep dues affordable. The implementation of the Affordable Care Act continues to impact the bar association and its members, and the full impact is not fully known. One of the benefits of the ACA, however, is that, for the first time in our 26 year history of offering health insurance to members, we are finally able to offer a product for the individual and solo practitioners. In September, we launched a new portal offering individual healthcare options through a collaborative partnership with Willis of Ohio and Connected Health. The new portal enables the subscriber to create a plan based on their own unique needs and circumstances. Members can even select coverage for their adult children, who may no longer be eligible for parental coverage on their parents’ plan. It has been a challenging yet rewarding year; one I will look back on with fond memories for years to come. I am so proud to have been able to serve as the 122nd President and be able to have served in the same capacity as so many outstanding attorneys, many of whom were a guiding force in my early career and who continued to offer their advice and guidance this year. Just as our profession has undergone changes in the wake of economic, technological, and generational developments, so too has the Columbus Bar. But, as with all things, change breeds opportunity. Though my tenure as President will soon end, I am humbled to have had the opportunity to lead the CBA in adapting to the shifting demands of our members.
Keith W. Schneider, Maguire & Schneider kwschneider@ms-lawfirm.com
Everyone Who Believes in the Value of Dispute Resolution Please Stand By! By Edward M. Krauss There is a mutually beneficial partnership that is special and worthy of recognition. The Columbus Bar Association has for years valued and promoted Alternative Dispute Resolution (ADR) in general and mediation in particular. This partnership has included hosting the Ohio Mediation Association’s annual meeting and conference. The event, this year on April 24, offers extraordinary training by nationally recognized experts discussing advanced mediation skills - how people listen and learn, perceptions of what is said and how it is heard, and working effectively with passiveaggressive or highly positional people. Sharpening these skills is an obvious value to attorneys and non-attorneys alike. Monthly meetings of the CBA ADR committee is another opportunity for those interested in the area of practice to meet, exchange ideas, and hear presentations by a variety of professionals. The CBA has reserved an ADR space in each edition of The Lawyer’s Quarterly. Several articles have already been published which brings me to my sales pitch -- we always need good copy, opinions, attitudes, so this is an appeal to attorneys, mediators, counselors, therapists. Anyone with an interest in mediation, arbitration, any form of alternative dispute resolution, is invited to submit about 800 words. My inbox is open. I would also like to comment on marketing the concept of using mediation to resolve a wide variety of situations that are not likely to end up in litigation. For those cases -- a
small claim, a case more about personalities than the facts of the matter -- ADR offers a fine and appropriate alternative. Whatever our professional backgrounds, we all know about and believe in the good of mediation, the (if I may) magic of what can happen at the table. And we all share something else: If ADR is to grow, the American public must begin to understand it more than they do now. How can we contribute to that growth? Same way Kellogg’s sells corn flake- marketing. I challenge all of us to think of ourselves as ambassadors of and spokespersons for the profession of mediation. Whether you are a mediation only practitioner, an attorney, or a counselor, therapist or social worker, if mediation is part of your professional life, I ask that you promote ADR. When the subject of conflict resolution outside a courtroom comes up, discuss ADR, talk about the advantages. Speak at a high school, at a civic organization, to a college government class. Be prepared to talk about mediation -- what it is, how it can help, the differences in litigation, arbitration, mediation. (And consider writing for the CBLQ!) Edward M. Krauss President, Ohio Mediation Association edmkmediator@sbcglobal.net
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The Feeling of Freedom By David S. Bloomfield and Orsolya Hamar-Hilt The United States of America is a country of opportunity, “home of the brave.” From all over the world, people are coming here to better their lives, seek refuge for political or religious reasons, escape from wars or simply fulfill their dreams to become an American citizen. Legal immigration to the United States is limited. The rigorous laws determine the categories that allow a person to legally enter the country and later gain permanent resident status. One of them is family-based immigration, and another common category is work-based immigration. It is also possible to gain legal status through asylum. There are various non-immigrant Visa categories that allow a person to come and stay legally for a period of time. However, non-immigrant Visa holders are not eligible for permanent resident status or citizenship. Illegal immigration is a reoccurring problem in this country because of the strict laws that govern it. The last major overhaul of immigration law was in 1986. Since then, despite various executive actions, more than ten million people are currently living illegally in this country either after staying beyond their permissible date or by having entered without permission. In the last eight years, politicians have been talking about a comprehensive immigration bill. Congress, however, did not pass a law; thus President Obama was faced with the same problem as his predecessors - how to resolve the status of ten million people. He responded to the issue with an executive action.* On November 20, 2014, President Obama announced a series of executive actions, which included expanding DACA (Deferred Action for Childhood Arrivals) to include individuals of any age who came to this country before turning 16 years old and who have been present since Jan. 1, 2010. The other major components of the action include 1) if the individual has been in America for more than five years; 2) if the individual has children who are American citizens or legal residents; 3) if the individual registers, passes a criminal background check, and is willing to pay his/her fair share of taxes. If the individual meets these criteria, he/ she will be able to apply to stay in this country temporarily, without fear of deportation. The original DACA eligibility requirements required that the individual: 1. Was under the age of 31 as of June 15, 2012; 2. Came to the United States before reaching his/her 16th birthday; 3. Had continuously resided in the United States since June 15, 2007, up to the present time; 4. Was physically present in the United States on June 15, 2012, and at the time of making the request for consideration of deferred action with USCIS; 5. Had no lawful status on June 15, 2012; 6
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6. Was currently in school, had graduated or obtained a certificate of completion from high school, had obtained a general education development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; 7. Had not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and did not otherwise pose a threat to national security or public safety. 8. The individual must be at least 15 years old to request DACA, unless he/she is currently in removal proceedings or has a final removal or voluntary departure action. The executive action extended the original DACA, while the other part of the action stopped removal of those parents who came here illegally but have American citizen children less than 21 years of age. The executive action will not provide legal status for undocumented immigrants; it is, however, a three-year delay to the deportation proceedings. These actions will provide a temporary protected status for millions of unauthorized immigrants and grants them employment authorization. The action is being contested in Court but to little avail due to problems with standing and other Constitutional issues. Further, the Presidential action could be reversed by the next president and will surely be if it is a Republican. What is the problem with the action? It is not a solution - - it is a band aid. It gives an opportunity for about five million people to work and be a part of our society. Critics state that the action encourages people to immigrate illegally. President Obama himself announced that “a decision to shield millions of immigrants from deportation without an act of Congress would amount to nothing less than the dictates of a king, not a president.” In September 2013, President Obama said he was proud of having protected the “Dreamers” — people who came to the United States illegally or stayed illegally as young children — from deportation. But he also said that he could not apply that same action to other groups of people. “If we start broadening that, then essentially I’ll be ignoring the law in a way that I think would be very difficult to defend legally,” President Obama told Jose Diaz-Balart in the interview. “So that’s not an option.”1 After all, the moment is bittersweet; it is a victory, but it is a partial victory. The ideal would be if Congress passes a bill that would resolve the problem of all 10 million illegal immigrants residing in this country, and would be able to regulate future immigration. Stay tuned to the next article about employment issues raised in other parts of the executive action.
LARGESS FROM THE LAW LIBRARY By Bruce Campbell
1.
Michael D. Shear, For Obama, “Executive action on Immigration Would be a Turnabout,” The New York Times, November 17, 2014
“Hello, dear, this is your Auntie Melba. I just cleaned out the root cellar before we move to Palm Desert, and I found boxes of old family photos and stuff I thought you might want to keep.” In Melba-speak “you might want to” translates to “you bloody well better,” so, you borrow a minivan and steel yourself for the olfactory pleasures of damp rot awaiting you. The CBA recently got such call from a far more gracious version of Melba in the form of Angela Baldree, MLS, the Director of the Franklin County Law Library. The library had shuffled off to interim quarters whilst remodeling ocurreth. Space was at a premium. Faced with deciding whether to house Corpus Juris Secundum or sundry bricbrac that had accreted over the years in their version of the root cellar, they chose – being librarians after all – tomes (however useless) over other detritus of the decades. They decided to put out a call to the CBA rather than the Salvation Army, believing, I suppose, that the Army would be more chary about what they would/would not take. Thus bidden, we fired up the CBA’s 1948 Dodge pickup and rolled on down to the seat of justice. As it turned out, the library’s dross was a trove of local lawyer history crammed with revealing tidbits of the way we were. Amid the gifted items are a couple pictorial collectives of the Franklin County bar and bench. One is from 1897 and features exactly 0 women and 119 men, only 26 of which were without discernable facial hair. A 1955 en masse selfie of the bar depicts 574 men (1 beard and a thin scattering of mustaches), 4 women, 2 drag queens, and a mime (just kidding about the mime). Assuming we could assemble the current crop of CBA members in a single frame, today’s picture would have 71% males and 29% females – better but not still good enough. As interesting as the pictures are, more fascinating still is a large scrapbook (actually, a repurposed docket book) in which unknown curators pasted various items on top of official court journals of the day-to-day goings on in divorce court circa 1919. Maddeningly, the assemblers were less than assiduous about dating inserted items and did not follow any discernible chronology. Amid the pages, however, is an amazing assemblage of fragile clippings (somewhat redolent of the bouquet of Melba’s root cellar) about the lives and deaths of members of the Franklin County legal community. Only a teaser sampling is possible here. Perhaps the place to start is a drawing of what is now the old, old, old courthouse that burned to the ground in January 1879. Continued on Page 8
David S. Bloomfield Bloomfield & Kempf dbloo@msn.com Orsolya Hamar-Hilt Office of Disciplinary Counsel Orsolya.Hamar-Hilt@sc.ohio.gov Spring 2015 Columbus Bar Lawyers Quarterly
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Continued from Page 7 It and its successor, stood on the ground that is now the small park on the South East corner of Mound and South High. That building in turn was replaced by the soulless, midcentury-modern building across High Street called the “Hall of Justice” which has recently been transformed into a much more attractive and functional facility connected by tunnel to the new, new, new Courthouse. As a bonus, the new design allowed Ben Franklin to come inside out of the weather. Evoking the goings on in one of those courthouses (likely the second) is a cartoon satirizing the political tensions regarding the judiciary of an earlier era.
Things just never change except for who is in and who is out. A few pages later is a clip datable to 1926 only by peeling it back to reveal a story on the other side. It tells the tale of lawyer Charles S. Druggan who “for some unaccountable reason grew a set of mutton whiskers six months ago [and] for some unaccountable reason shaved them off late yesterday.” It seems Druggan was summoned to appear before the Grand Jury as a witness that day. Wags suggested that the two events were related. Durggan adamantly contended that there was no such connection and that he had parted with the chops because “the weather is moderating.” He said “I have not been forced into anything. It’s a free country isn’t it? Or was.” Guess there were slow news days back then too. Scattered about the pages are more engaging vignettes about local lawyers and judges. One article noted, without a hint of sarcasm, that Judge Dana F. Reynolds somehow “convinced” nearly 100% of court employees to sign up 8
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for memberships in the Columbus Zoo (of which he was Chairman) and that a “mopping up of strays” was in progress. As an aside, I would note that much later, I practiced (in the full sense of the word) before Judge Reynolds in his infamous crack of dawn, Saturday morning broom sweeps of the entire uncontested divorce docket (notwithstanding that he was a General Division not a Domestic Judge). Lawyers were given about a minute and a half to have both parties and two character witnesses say all the magic words necessary to support the divorce decree. Woe be unto counsel who had not meticulously rehearsed the four or failed to kick them in the shins if they went on too long. Speedy justice at its finest. Those who may be nostalgic about the days when judicial races were more civil may have that delusion punctured by some campaign materials in the book concerning the 1938 election. For example, Municipal Judge August W. Weber, running against incumbent Common Pleas Judge John R. King (“endorsed by the Columbus Bar”), ran an ad attacking his opponent on the grounds that in recent years, Weber, he contends, had become “unable to see to read or observe the color and facial expressions of a witness” and had to have others read documents to him. The pamphlet rails on about how a judge should be at least as fit as the average juror. Shall we count the folks and organizations that would find that offensive today? An article with a hand stamp of Jan. 8, 1914, entitled “Report of Secretary, Franklin County Bar Association” indicates that the Association held twelve events in the previous year (Wow). It had 345 members, three quarters which paid their dues, for a total income of $758 (which works out to about $3 per paying member). At end of the year, the Association had $125 in the bank. The Report of the Entertainment Committee was more – well – entertaining. It said that the Committee had been somewhat encouraged by the response to its “feeble efforts to revive the long extinct spirit of good fellowship of lawyers.” Nonetheless, the Committee observed that “while the average lawyer is liberal in his views, congenial and social among his fellows, recognized in polite society as a hail-fellow-well-met . . . yet, as a contributor to the social and financial demands of the bar association, he is a dismal disappointment and a testy tightwad.” An attention-grabbing headline of another pasting reads “Columbus’ Perennial Presidential Dark Horse Moves Into New – And Neat – Office.” The article starts with this comment: “Nov. 8, 1939, will probably be remembered by historians of the future as the day on which unknown parties did a wretched job of trying to rub out Hitler in a Munich beer garden and also the day when their American cousins in Chicago did a much better job on a race track man named O’Hare. Lost in the morass of momentous events may be an equally significant happening that occurred in Columbus, O., for [that] was the day that Olin J. Ross moved his office. . . . The septuagenarian barrister, pamphleteer and statesman packed up his belongings [which apparently were scattered foot deep on the floor] and walked into his new office at 180 N. High which, for him, bordered on nakedness.” The piece goes on to say that “this notable dark horse who has never gotten that first call in the presidential race sees a faint spark of hope because there were a lot of poor people out there, and “they’ll vote for me quicker than they would a millionaire like Taft.” As it turned out another dark horse,
Wendell Willkie, got the Republication nomination over Taft and was subsequently defeated by F.D.R. running for a third term. Olin J. Ross is remembered by the Ultimate Adjudicator of Historical Significance – Google – only as author of a novel and a pamphlet titled America’s Debt to Thomas Paine. Wikipedia seems not to have heard of him.
On the same theme, is an article about the 1944 Presidential election in which, law firm founder, and then Governor of Ohio John Bricker, was said to be “the most likely dark horse candidate” in the race for Republican Presidential or Vice Presidential nomination. With coy reticence he told the press he was “not actively a candidate” and that he was turning down “speechifying invitations” so he could “stay in Columbus to do his job.” Sound familiar? Despite his professed priority of vouchsafing the state of the State, he did, of course, wind up as the Vice Presidential candidate with Thomas E. Dewey and did a whole bunch of “speechifying” (173 in 38 states) around the country. Apparently his eloquence had an insufficient effect on the electorate. Again, F.D.R. won handily.
My personal favorite amid this jumble of snippets is this one (dated on the reverse side Aug. 29, 1941):
Today, Lawyer Lewis would likely be a NFL fullback earning seven figures and hiring lawyers rather than being one. Flipping to the back side of the Lewis clip, however, puts the times in more realistic perspective. There appears the byline (but alas not the article) of Ernie Pyle whose dispatches from the front lines of WWII made the sacrifices of that war as vivid to those on the home front as did Life Magazine’s pictures and Bill Mauldin’s editorial cartoons of Willie and Joe. Those terrible times certainly needed some frivolity like Fusco’s fat lawyer story to buoy public spirits a bit. The Columbus Bar is most thankful that the Law Library favored it with these gifts. If any reader has a passion to peruse these pages, please phone. There is a lot more history oozing out of them.
Source of pictured articles: Franklin County Law Library
Bruce A. Campbell Bar Counsel Columbus Bar Association bruce@cbalaw.org Spring 2015 Columbus Bar Lawyers Quarterly
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Ohio Redistricting By Ann Henkener
In December 2014, the 130th Ohio General Assembly passed House Joint Resolution 12. The resolution authorizes placement of an amendment to the Ohio Constitution on the November 2015 ballot, changing the way Ohio draws districts for the Ohio General Assembly.
Current method
Article XI of the Ohio Constitution addresses redistricting and current provisions have been used to draw districts every 10 years since 1971. An Apportionment Board consisting of the Ohio Governor, Auditor, Secretary of State and a person chosen by the Speaker of the House and the leader of the Senate of the same political party, and another person chosen by the House and Senate leaders of the other major political party draw the districts. Districts must be single-member, compact, contiguous, and comply with federal laws such as the Voting Rights Act. Senate districts are composed of 3 House districts. As a general rule districts must have equal population with a variance of 95% to 105% permitted. Any single county with population in that range must be made into a House district. A county with population between 90% and 110% of the ideal may be made into a single district. Then, going from largest to smallest, the remaining counties are divided into districts. They are formed by combining counties, townships, municipalities, and city wards, in that order. Prior districts boundaries are to be adopted to the extent reasonably consistent with the other requirements.
Need for Change
Because the political party that controls 2 or 3 of the offices of Governor, Auditor, and Secretary of State can get a majority of votes on the Apportionment Board, the current method was immediately used to gerrymander the districts to benefit a single political party. In 1971 and 1981 the Democrats controlled those offices, gerrymandered to favor their party, and held majorities in the Ohio House and Senate for most of those decades. In 1991, and 2001, the Republicans controlled those offices, gerrymandered to favor their party, and held majorities in the Ohio House and Senate for most of the rest of those decades. To date, the gerrymander of 2011 appears to be equally effective. Whichever party was in the minority was more favorable to reform, while the majority party believed the voters subscribed to the theory of “to the victor go the spoils.” In 1981, when the Democrats held sway, the Republicans supported a reform measure that lost at the ballot box, When the Republicans were in charge in 2005 and 2012, the Democrats were more supportive of reform. But again, the measures lost at the ballot box. Voters, members of the legislature, and both political parties have criticized our current system, and pointed 10
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out many problems. The number of votes candidates receive in the aggregate do not translate into proportional representation for each political party. The current system produces “safe seats” with little to be decided by voters in the general elections. While the Ohio Constitution requires that districts be “compact,” a quick look at the maps shows that requirement hasn’t been followed. An appeal to the Ohio Supreme Court did not prove effective in resolving perceived deficiencies in the General Assembly district maps approved by the Apportionment Board in 2011. In Wilson v. Kasich, 134 Ohio St. 3d 221, 225, 2012-Ohio-5367 (2102), the Ohio Supreme Court decided that: The words used in Article XI do not explicitly require political neutrality, or for that matter, politically competitive districts or representational fairness, in the apportionment board’s creation of state legislative districts. Unlike Ohio, some states specify in either constitutional or statutory language that no apportionment plan shall be drawn with the intent of favoring or disfavoring a political party. Relators also argued that the maps approved by the apportionment board did not comply with the criteria set out of Article XI, Sections 7 and 10. In particular, Section 7 sets out four specific substantive criteria for drawing maps. Section 7(A) provides that districts shall be compact, composed of contiguous territory, and delineate an area containing one or more whole counties. Section 7(B) provides that when districts cannot be formed from a whole county or counties, they will be formed by combining areas of government units giving preference to counties, townships, municipalities and city wards, in that order. Section 7(C) provides that if it is not feasible to combine areas of governmental units, only one may be divided between two districts. Section 7(D) provides that district boundaries established by the prior apportionment should be adopted to the extent reasonably consistent with the equal population requirements of Article XI. Relators argued that maps could be drawn that more closely met the requirements of Sections 7(A) through (C). The Court decided that Sections 7(A) through (D) were coequal and to the extent they were irreconcilable, the apportionment board must choose how best to reconcile the provisions and that the Court would not intervene. This case confirmed the broad discretion of the Apportionment Board to gerrymander without Court interference. If the basic aim of legislative apportionment is to achieve fair and effective representation for all citizens (Reynolds v. Sims, 377 U.S. 533, 565-566 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)) the gerrymandered districts sanctioned under the Ohio Constitution fall short of the ideal.
Recent efforts
Recent attempts to correct the problems of redistricting have failed. A voter-initiated Constitutional amendment on the ballot in 2005 proposed the use of an objective measurement of competitiveness. It also permitted members of the public to submit plans, promising that the plan with
the most competitive districts would be used. The initiative lost at the ballot, getting just over 30% of the votes. In 2009, the then Republican controlled Ohio Senate passed a redistricting reform measure (128th GA, SJR 5), keeping similar requirements for drawing maps for both the General Assembly and Congressional Districts, but requiring votes from both of the two largest political parties in order to approve maps. In 2010 the then Democratically controlled Ohio House passed a separate reform measure (128thGA, HJR15) using strict, objective criteria to draw maps. The House and Senate were not able to reach a compromise before the 2010 general election. After that election, which elected the members of the 2011 Apportionment Board , the Republicans were going to control the General Assembly redistricting process in 2011, and were no longer interested in reform. Following the path of majority Democrats and majority Republicans before them, the Apportionment Board drew districts favorable to their party, this time the Republican party. Now both the Ohio House and Senate are dominated by Republicans. In 2012, the Ohio Senate again revisited reforming the redistricting process and passed a proposal similar to the 2009 proposal, keeping many aspects of the current system intact, but requiring approval by members of both of the largest political parties. In 2013 and 2014, a subcommittee of the Ohio Constitutional Modernization Commission studied various redistricting proposals but could not reach a consensus. Agreement was finally achieved during the lame duck session after the general election in November of 2014, when the Ohio House and Ohio Senate overwhelmingly passed HJR 12, which will be placed before the voters in November of 2015.
Proposed reform
The amendment would create a 7 person Ohio Redistricting Commission. It retains the Governor, Auditor, and Secretary of state as members and adds 4 legislative appointees, two from the both the largest and second largest political parties. The new proposal requires bi-partisan support to adopt 10year maps for General Assembly districts. It strengthens the requirement that counties, municipalities, townships and wards not be split into more than one district, and provides strict direction on how to divide them if necessary, limiting the discretion of the Redistricting Commission members. It eliminates the criteria that new district lines follow those of the prior apportionment as much as possible, removing one of the irreconcilable clauses in the current Constitution. It requires more public input –three public hearings must be held after proposed maps are introduced. The Commission also has a set of secondary criteria. It won’t draw a plan primarily to favor one political party, the partisan composition of districts should correspond to the statewide preferences of voters, and the districts should be compact. It also provides an impasse resolution mechanism if bipartisan support cannot be achieved. If the impasse mechanism is used, a simple majority of the Apportionment Board could approve maps, thus allowing all of the necessary votes to be provided by members of one political party. However, other provision are included to protect the minority party and provide incentive to get votes from members of both major parties to approve maps. If the impasse mechanism is used, the maps would be effective for only 4 years. During that time, another election would be held for Governor, Auditor, and Secretary of State, and that might change the
political composition of the redistricting commission. The newly elected and appointed Commission would then draw maps that would be used for the rest of the decade. The amendment would also give additional direction to the Ohio Supreme Court if a plan were appealed. One criteria they would need to consider is the degree to which the political composition of the districts in the aggregate corresponding to the statewide preferences of the voters. What the Amendment doesn’t do The proposal addresses only General Assembly districts, not Congressional districts. Currently the Ohio legislature passes a joint resolution adopting district boundaries. Like a bill, the resolution is subject to the veto of the Governor, and subject to referendum by the voters. There are very few requirements for Congressional districts. They must be contiguous, of equal population, and follow federal laws, such as the Voting Rights Act. Gerrymandering of the Congressional Districts seems more extreme that gerrymandering of the General Assembly. The districts look less compact, and they are less representationally fair, i.e. the difference between the aggregate number of votes candidates of a political party get and the number of seats that party wins is greater. Members of the majority party in the General Assembly were willing to address only General Assembly maps at this time. They want to wait until the United States Supreme Court addresses the constitutionality of the independent commission Arizona has been using since 2001. Arizona State Legislature v. Arizona Independent Redistricting Commission is set for oral argument on March 2, 2015. The argument centers around the interpretation of Article 1, section 4, clause 1 of the United States Constitution which says that “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations ....” Under the process in Arizona, a commission on appointments proposes names, then officials of the legislature choose two Republicans and two Democrats to serve. These two then select an independent to serve as chair. The governor can remove a member for neglect of duty or misconduct. The Arizona legislature is arguing that only the Arizona legislature is permitted to draw Congressional districts under the US Constitution, and that the Arizona Independent Redistricting Commission is unconstitutional.
Conclusion
The complexity of HJR 12 certainly indicates there were hard found negotiations to come to a resolution satisfactory to both major political parties. Amendments placed on the ballot by the legislature have had a better track record for passage than amendments placed on the ballot by voters’ initiative. In November, the voters will determine if this is the reform that meets their approval. Ann Henkener Redistricting Specialist League of Women Voters of Ohio ann.henkener@gmail.com Spring 2015 Columbus Bar Lawyers Quarterly
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With New Guardianship Model, Collaboration is Key By Hon. Robert G. Montgomery Shortly after taking the bench in 2011, I saw first-hand Ohio’s guardianship system which had all the key components of the Good, the Bad and the Ugly. Without getting into too much legalese trying to define the guardianship statutes as there is not enough space in this article to do so, I’ll summarize. Guardianships are established for individuals who have lost their mental faculties to the point where they can no longer care for themselves. A guardian is appointed for that person who is referred to as a ward. In Ohio, the indigent guardianship system is based on a volunteer system unless the Court appoints a lawyer as guardian, in which case the Court pays the attorney only $420 per year for guardian services. This payment of $420 is for an entire year’s worth of work when most attorneys would bill $420 for one to two hours of legal services. In a place like Franklin County where the population is over 1 million people, the problems with the current guardianship system are magnified. Historically, guardianships were not utilized as much as they are today for many reasons. Families were not as mobile as they are today and more extended family members were in close proximity. In short, it was easier to take care of your own. However, now, children are raised, educated and many times obtain employment far away from aging parents. The children now have families of their own to raise. In addition, many parents do not want to burden their children. Sadly, many times the Court sees that some family members simply do not want to be a guardian or they are found not to be suitable to serve as guardians. This is the ugly part of guardianships. One of the good aspects is that there still are many family members who do volunteer to serve as a guardian and they do it for free. These family members and/or close family friends who are willing to volunteer as guardians for no money are one of the bedrocks that hold the current system together. In addition, the current system has also been held together by the many caring members of our legal community. Many of these lawyers serve as guardian for $420 per year or even for free. Often times their wards have a diagnosed mental illness or developmental disability where they are prone to violence. The lawyers, along with non-paid family and/or friend volunteer guardians, have been the fabric that holds this patchwork of guardianships together. I can’t emphasize this point enough. For poor people, Ohio’s guardianship system is dependent on volunteers with few exceptions such as Advocacy and Protective Services, Inc., (APSI). By statute APSI may take a limited number of guardianship cases if the wards have a diagnosed developmental disability. As the population increases, this patchwork that is holding 12
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the current system together will continue to stretch until it ruptures. There has been legislation recently introduced, but not passed, that is supposed to improve the current guardianship system. These improvements include the creation a wards’ bill of rights, requiring these non-paid volunteers to do more work thereby stretching the system even further. While admirable, that legislation doesn’t even address the real problem. The two biggest issues with the current guardianship system, as I see it are: 1) how do we find suitable guardians; and 2) how do we pay them. The problems plaguing Ohio guardianships locally have resulted in two attorneys in Franklin County, until recently, having close to 1,000 wards between them. You might be asking yourself “how could this happen where one person is the guardian for over 500 people”. The answer is simple; nobody else was willing to serve as guardian or other applicants were unsuitable. When it came time to find a solution, I thought that relying on attorneys to do social work was not in anyone’s best interest: the lawyers or the wards. I looked at the profiles of all those people who are under guardianship and found a strikingly high percentage of them have a diagnosis of mental illness or are developmentally disabled, and when I say high percentage, I mean north of 70%. When analyzing the types of people under guardianships, it became clear to me that fundamental changes in how Franklin County addresses guardianships was necessary and we needed to address this growing problem of an unfunded-volunteer-based system, along with an aging population that further strains the current system. I believe anytime you want to solve a problem you must first understand the problem. Many people who need a guardian do not have a relative or friend suitable or willing to serve as their guardian, which puts an enormous amount of pressure on the Court to solicit guardians. Probate Courts shouldn’t even be in the position of trying to recruit individuals to serve as guardians because it creates somewhat of a conflict of interest. As Judge, I can’t force people to serve as guardians for $420 per year or for zero pay. The concept of involuntary servitude was abolished as a result of the civil war. After two years on the bench I had a better understanding of the problem with the guardianship system and in 2012 I decided a change was in order. With the help of David Royer, Executive Director of the Franklin County Alcohol, Drug and Mental Health (ADAMH) Board, Jed Morison, Executive Director of the Franklin County Board of Developmental Disabilities (Board of DD), and State Senator Jim Hughes, we created the first Probate Court Mental Health Fund in the state. I drafted this single piece of legislation which can
be found at O.R.C. 2101.026. This was the legislation that would provide the funding answer to this problem without adding new taxes. In 2014, the second part of this legislation was passed which would, in part, answer the other problem of how to find suitable guardians for those in need. The solution to this problem required two different laws being crafted by the legislature. The second piece of legislation is what allows the creation of the Franklin County Guardianship Services Board. When drafting this legislation, I wanted to make sure this new program would be flexible enough to give us the tools and resources to correct this complex problem addressing guardianships. I wanted to draft into the law, the ability to collaborate with the professionals who deliver the treatment and care for so many people who are under guardianships because these individuals and organizations know what guardians should be advocating for on behalf of these wards with difficult and complex diagnosis of mental illness and incapacity along with physical and developmental disabilities. Including these professionals in the solution would truly be in the best interest of the wards. A brief explanation of our collaborative solution is as follows. There is a public-public and a public-private collaboration. The public-public collaboration is the agreement to create the Franklin County Guardianship Services Board by the three public entities contained in R.C. 2101.026. In other words, if the Probate Court, the ADAMH Board and the Board of DD agree to form a guardianship board, they will do this by each public entity appointing one person as their designee to the Guardianship Board. Once this three member Board is created they will hire an Executive Director/Public Guardian pursuant to R.C. 2101.026. This public guardian will then hire all the necessary staff for the efficient operation of the Board. The key is that many of the staff, who will be public employees, will have a background in social work and will be assigned as case workers. These caseworkers will help ensure that the wards needs are being met, including verifying if any services are available to those wards, and if so, that the services are brought to them. Attorneys will still be required to cover all the legal aspects of establishing the guardianship but under the new system the attorneys will do legal work and social workers will do social work. The attorneys will not have to stay on as guardians for the wards for $420 per year. Under the new law, the Franklin County Guardianship Services Board will be able to accept any resources from any entity, organization or individual to help fund, administer, or offset the costs of the Board. The funding for this Board does not entail any new taxes. We are just re-allocating currently existing resources. This ability for the Board to accept any assistance is where the public-private collaboration becomes important. The Board and the Probate Court will utilize many of Central Ohio’s great charities and churches who may not have money to contribute to the Guardianship Board but they have something even better, volunteers willing to donate their time which is exactly what many of these wards need. It is hard to put a price tag on the heart of a volunteer. The volunteers will be an essential part of this new program, but wards will not be totally dependent on volunteers either. The Guardianships public-public and public-private collaborative approach distinguishes itself from other guardianship programs whether public or private. Some of the other essential public partners with the Board are the Franklin County Commissioners, the Central Ohio
Area on Aging and the Franklin County Department of Jobs and Family Services. This new program will be successful because of the collaborative partners and the occupants of the three-member Guardianship Services Board. The three member Board consists of Larry James, Bill Wilkins and Jane Higgins Marx. These are three of central Ohio’s best. In addition, David Royer and Jed Morison, the executive directors of both the ADAMH Board, the Board of DD are deeply committed to making this new program succeed. With a solution to finding suitable guardians, providing more accountability to the wards and their families and knowing how to pay for it with a funding mechanism entailing no new taxes is a great start to solving a real problem. We must understand the problem before we can know how to solve it and I believe all the pieces are in place to accomplish this. Stay tuned!
Hon. Robert G. Montgomery Franklin County Probate Court rgmontgomery@franklincountyohio.gov
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Stop Sending the Wrong Message:
4 Ways Lawyers Can Communicate More Effectively By Kailee M. Goold We’ve all been there. Emailing or texting while a fellow attorney wraps up another CLE presentation. We do it because the presentation isn’t capable of keeping our attention. The speaker reads wordy slides to the audience and is often so unprepared they speed through 15 slides in the last two minutes. And yet, when it’s our turn to present a topic to colleagues, clients or potential clients--we do the same thing! Let’s stop the insanity. Part of our job as attorneys is to communicate effectively. Whether we are advocating, fact-finding or explaining a complex idea—communication is an essential part of our profession. And we have to face the truth: the way people exchange ideas and consume information has evolved. The average attention span is now a whopping eight seconds. We see the effects of this every day. News and industry insights are expressed in 140 characters. Clients want an immediate answer in a one-paragraph email. What does this mean for us as attorneys? We need to do a better job communicating. To survive in the face of a rapidly changing world, we have to do a better job sharing our solutions and advice with each other, referral sources and clients. When people think of attorneys, they think of conservative, unapproachable, robot-like beings. Clients sometimes fear we are inefficient, long-winded and don’t have their best interests in mind. So what do we do when we are given the opportunity to express ourselves? We often confirm those fears. We prove to them how impractical and out of touch we can be through our communication style. We waste opportunities to connect, find common ground and make our points. Our websites all say the same thing. Our blog posts read like antiquated law review articles. We render ourselves useless and uninteresting at our own presentations. We send multi-page memoranda when one page would do. Our materials may as well read: “Hi, I am going to show you how little we have in common and why you might be frustrated working and communicating with me.” This is not to put us all down. We are moving in the right direction. We have started to recognize that law firms are not unlike other businesses and are subject to the same market forces. We have invested in the right tools and resources. We are surrounding ourselves with a formal and informal marketing infrastructure to help us shine. We have modern, functional websites and social media pages. We use PowerPoint and write blog posts. And we do many other things that may have been disregarded as unnecessary just five years ago. However, we are not getting the most out of these resources. Clients engage us for our problem solving and legal analyses; this is our unique service. We are the only ones capable of transforming legal advice into blog posts, memos and presentations. But like anything else that can’t keep pace with evolution, lawyers who cannot demonstrate their value through these media risk becoming virtually extinct. Society is communicating differently. People and business are communicating differently. To provide the most 14
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effective, client-centric legal service possible, lawyers need to communicate differently too. Lawyers that can relate to others and communicate in a way that makes them more helpful than their peers will build more meaningful relationships and earn more and better business. Referral sources, clients, peers and colleagues all want to work with someone who can understand them and communicate on their level. To be more productive in building our careers as lawyers, our communications should become less technical and more practical. Less overwhelming and easier to consume. Many other professional service industries have adapted—this is our opportunity to do the same. With that in mind, here are four simple ways we can communicate more effectively. 1. Change the way you PowerPoint. You are the most essential component of every presentation you give. Don’t be lazy. Add value to your slides. Your slides should contain engaging imagery and minimal words (fewer than ten). Take some free online training in PowerPoint. Learn how to use SmartArt and avoid having a bulleted list on every slide. Use fewer case citations. You can always supplement your presentation with a handout, so there is no reason to turn the audience off with text-heavy slides. 2. Know your audience. Get online and explore how news sources, industry leaders and other professionals exchange ideas. It is the easiest way to learn and understand the kind of content that grabs and keeps attention. Then adapt your communications to take advantage of different audiences. When you book a presentation or have an opportunity to be published, ask about the audience and adjust your content and style. 3. Journalism 101: Retire the Quill. Not all writing is legal writing. Borrow from Journalism 101—blogs and articles should have enticing, engaging titles. Your content should be concise and easy to read. Don’t be afraid of short paragraphs or lists. 4. Be authentic. People want to work with people they like and trust. There is always an appropriate time for formality and thoroughness, but that doesn’t mean we can’t communicate with some personality. So be yourself. You can even smile. Remember, it is not a zero sum game. We can be professional, prove ourselves experts and be likeable all at the same time. There is tremendous opportunity for lawyers to differentiate themselves by evolving their communication style. And with a slight shift in the way we think about what it means to be a wellrounded lawyer, it can actually be pretty easy. What are your thoughts on changing the way we communicate? Let’s continue the discussion online - you can find me on Twitter @kaileegoold using #CBAQuarterly. Kailee M. Goold Kegler Brown Hill + Ritter kgoold@keglerbrown.com
HOW DRY WE WEREN’T By Lloyd E. Fisher, Jr. Prohibition -- that ill-fated American experiment banning recreational alcohol – was a fascinating period of our history. Not that Americans have a heritage of avoiding alcohol. About 1630, the manifest of a ship of the Massachusetts Bay Colony, on its way to America, listed some 10,000 gallons of wine and more beer than water. By the middle 1800’s, tea was more expensive than liquor. And the so-called “Whiskey Rebellion” in the 1790’s was a demonstration against a tax on whiskey. In the 1850’s there was a brief flirtation with prohibition. Neal Dun, a Portland, Maine business man, was a force that drove the Maine legislature to pass a law banning liquor. A few other states followed suit, but in about ten years, all had restored alcohol. A resident of Hillsboro, Ohio, Eliza Trumble Thompson, began a noisy campaign against liquor in 1873. A daughter of a governor and the wife of a judge, Mrs. Thompson led groups of women to saloons, hotels and drugstores where they prayed, sang, read the Bible and asked drinkers to abstain and sellers to cease. The movement had a brief period of expansion in the Midwest, New York and New England but soon died out. A 1900 report estimated that there were then about 300,000 saloons in the United States. Prohibitionists were particularly disturbed by the sight of children bringing buckets to the saloons to be filled with beer and taken home. One of the most colorful opponents of the liquor trade was Carrie Nation. She was six feet tall and attacked bars with a large hatchet, which became her symbol. One report said that she hacked so many bars in one Cincinnati block that she collapsed from exhaustion! There were proponents of alcohol – one of the most influential was Adolphus Busch. He came to America from Germany, married Lilly Anhueser and founded the integrated giant that still dominates the U.S. brewing industry. However, during World War I, antiGerman feelings and the Anti-Saloon League (founded in Westerville, Ohio) turned sentiment against the brewery. The dry forces mounted an intensive campaign for a constitutional amendment. By one estimate, there were 20,000 trained speakers urging the banning of intoxicating liquors. The Amendment was proposed in in 1917 and the final state adoption came on January 16, 1919. By its terms, that made the effective date of Prohibition, January 17, 1920. During the one year’s delay, many citizens stockpiled booze for the coming drought. The mother of actress Mary Pickford bought an entire liquor store inventory and moved it to her
basement. Future President Franklin D. Roosevelt had four cases of “Old Reserve” delivered to his New York townhouse. On January 16, 1920, there was a celebratory service at the First Congregational Church in Washington D.C. at which famed orator William Jennings Bryan was the main speaker. His forty minute “sermon” pronounced liquor dead. From that day and until its repeal in1933, Prohibition generated a colorful period of history. Andrew Volstead was chair of the U.S. House Judiciary Committee that enacted the legislation to administer the Eighteenth Amendment and it was soon called “The Volstead Act”. Enforcement was difficult and inconsistent. Bootlegging gangsters, Al Capone and “Buggsy” Moran, became household words as did their pursuer, Eliot Ness. When Capone was finally jailed, it was for income tax evasion and not violation of the Volstead Act! The Act provided that religious sacramental wine could be sold to priests and ministers and rabbis could authorize sales to individuals. There were some abuses of these provisions but the Methodists formally endorsed unfermented “Welch’s Grape Juice.” A Michigan mother with 10 children was given a life sentence for her fourth Volstead violation – the sale of two pints of liquor to an undercover policeman. Similar incidents began to turn opinion against prohibition. Cynical sentiment included the statement: “ Prohibition is better than no liquor at all” and the song; “I Never Knew I Had A Wonderful Wife Until The Town Went Dry.” Hearst ran an essay contest about the problems of Prohibition and received over 70,000 entries. The Roosevelt landslide of 1932 was the beginning of the end. In anticipation, on December 28, 1932, Anhueser-Busch purchased a team of Clydesdales for “advertising purposes.” The repeal Amendment was passed by Congress and on December 5, 1933, Utah became the 36th and final state needed for adoption. Prohibition was dead but its effects on America and Americans will provide subjects for social scientists for years to come. How dry we weren’t. Sources: “Last Call” – Daniel Okrent, 2010; “Paths into American Culture” – John C. Burnham, Ph. D.
Lloyd E. Fisher, Jr. debrigh@columbus.rr.com
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IT IS SPRINGTIME IN COLUMBUS. CLOSE YOUR LAPTOP AND TAKE A BREAK By Lauren M. Hilsheimer If you are anything like me, by the time spring finally decides to make its fashionably late appearance in Columbus, you are ready to ditch the down coat and gloves, get off of your couch, and forego loyalty to the Netflix or HBO GO membership that kept you warm all winter. You are officially ready to be reunited with the sun, which you have not seen since last September. Spring may also be a good time for you to do a gut check: how are you doing at that work/life balance thing? Most young lawyers are not known for excelling in this area, albeit having good reason. With a new job comes pressures, including demanding hours and heavy responsibility (“Uhh, I have to work until when on Friday?”). Nevertheless, it is incredibly important to strive to maintain work/life balance, whatever that may means to you. Your career is a marathon, not a race. Here are some low-cost, fun activities to try out around central Ohio this spring to help you achieve this balance. Pick your stress relief poison: be social, get active, or give back to your community. Some of these activities pack a two-for-one punch. • Taco Tuesdays @ The Kitchen. The Kitchen in German Village provides “a participatory dining experience that blurs the lines between patron and chef.”1 Every Tuesday from 5-9pm, The Kitchen offers theme-inspired tacos. The menu is served a la cart and offers specialty cocktails, beers, and wines that generally pair nicely with the tacos. The tacos range from $3-4 a pop, and you can generally get out of there spending less than $15 on dinner for one. You can even show up as late as 8pm and still enjoy these reasonable prices. And make sure to check out the Calendar on The Kitchen’s website—The Kitchen frequently hosts yoga followed by brunch on Sundays for around $35. Website: http://thekitchencolumbus. com/; address: 231 E. Livingston Ave., Columbus, OH 43215. • Studio 35 Cinema & Drafthouse. Visit Clintonville’s Studio 35 Cinema & Drafthouse on that occasional rainy 16
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spring day. Studio 35’s claim to fame is that it is the city’s oldest independent movie theater and draft house. Movie ticket prices are cheaper than usual and keep an eye out for the occasional $5 admission night. With around 40 beers to choose from, build-your-own pizzas, salads, subs, and popcorn, this experience should exceed your expectations. Website: http://studio35. com/; address: 3055 Indianola Avenue in Columbus, Ohio 43202. • M.Nicholson’s Hip Hop Fitness Class @ sweat|box. If your favorite way to relieve stress is a good sweat and you are in search of a new workout challenge, check out M.Nicholson’s hip hop fitness class every Saturday and Sunday at sweat|box in Grandview. Admittedly perhaps not for those who have two left feet, this one hour workout complete with choreographed routines, jumps, planks, and squats will leave you totally exhausted and stress free. In the spring, the staff opens up the garage door in the back and fresh air flows in to cool you off. The good news? M.Nicholson’s patrons are nonjudgmental and will pretend not to notice when you botch every routine during your first few classes. The great news? This workout is only $7 for a drop-in class and $40 for a ten class package. See you at sweat|box next Saturday! Website: http://mnicholson. com/hip-hop-classes/; sweat|box address: 935 King Ave., Columbus, OH 43212. • Marcella’s Short North Happy Hour. If you live in the Short North, you know Marcella’s is packed every weekend night with the exception of when the Buckeyes have a night game during the fall. Perhaps you did not know, however, that Marcella’s has one of the best happy hours in the city. If you can sneak out of work a little early, snag a seat around 4:30pm by the windows in the front of the building that open up on warm spring days. You are in for a treat—half off select food and drinks from 4-6pm every Monday-Friday. The half off select food includes the entire left side of the menu and pizzas, and
the half off select drinks includes wine, beer, and cocktail options. Try out the melted pecorino cheese, arancini, and mushroom pizza with taleggio and truffle oil. Wash it all down with a Milan Manhattan. Yum. Website: http://shortnorth.marcellasristorante. com/default.aspx; menu: http:// shortnorth.marcellasristorante.com/ menus/marcsn_dinner1014.pdf. • BESA. “Besa is about engaging the people and causes around you. . . . It’s about making a difference in your life and your community today.”2 BESA helps connect people to their community by aggregating current volunteer opportunities in Columbus on one user-friendly webpage that provides quick sign-up and date and venue information. BESA makes it easy for you to find a volunteer opportunity that fits your busy schedule. You can help serve dinner to families at a shelter, lift the spirit of seniors at a nursing home, or empower youth through sports. Nothing puts work stress in perspective quite like helping those who are less fortunate. Website: http://www.givebesa.org/volunteer. The above activities are just a select few out of hundreds. So make yourself take a break from that brief and get out and explore Columbus. The brief will turn out better with fresh eyes in the morning. 1. 2.
http://thekitchencolumbus.com/. http://www.givebesa.org/pages/ about_us.
Lauren M. Hilsheimer Baker Hostetler lhilsheimer@bakerlaw.com
THE JOB MARKET-
HOW TO STAND OUT FROM YOUR COMPETITORS By Rachel Sabo and Dimitrios Makridis With law school enrollment at an all time low and an uncertain job market, Rachel Sabo and Dimitrios Makridis sat down with Shawn Beem, Assistant Dean for Professional Development at Capital University Law School, to ask him a few questions about what young lawyers can expect after law school and how to differentiate themselves from their competition. Q: How has the percentage of law school enrollment changed since 2008? A: According to the ABA Section of Legal Education in December, 2014, legal education has seen “a 17.5 percent decrease from the historic high total J.D. enrollment in 2010.” Q: Has the job market effected that change? A: I think the job market is one of many factors. Student loan debt, realistic career expectations, law school transparency, a changing legal profession, etc., are just a few of the reasons that many law schools across the country have seen a decline in enrollment. Q: What percentage of graduates find a job out of law school? A: For the class of 2013 nationally, 84.5% were employed in some capacity nine months after graduation. Of the 84.5%, 76% were employed in positions that required admission to a state bar. Q: Has that number increased or decreased since 2008? A: Decreased. For the class of 2008 nationally, 89.9% were employed in some capacity nine months after graduation. Q: How many of those jobs are with a firm, self-employed, or other? A: For the class of 2013 nationally, 49% were employed in a law firm with two or more, 3% were employed as solo practitioners, 12% were employed in a government agency, 18% were employed in a business or corporation, 3% were employed in a school or university, 9% were employed as a judicial law clerk, and 7% were employed in a public interest organization.
Q: What are the 3 most important things a new lawyer can do to find a job? A: Assess, Network, Prepare. All successful job finders complete extensive self- and market assessment, engage in networking activities, and prepare applications and for interviews with thoughtfulness. Taking the time to consider strengths, weaknesses, values, needs, and skills as well as researching the market, employers, and opportunities ensures a better employment fit. Networking is key to learning about available opportunities and to connecting with the profession. Preparing solid cover letters, resumes, and writing samples coupled with thorough interview prep and practice is necessary to gaining employment. Q: Given the large number of people that pass the Ohio Bar each year and the limited number of jobs available for all of those new lawyers, what has Capital Law done to (1) help their students find employment, and (2) prepare their students for the nuts and bolts of opening their own practice? A: Like all law schools, Capital provides ample opportunity to explore the profession, to prepare quality application materials, to engage in networking and relationship building, and to practice skills necessary to finding employment opportunities. We also actively engage employers and post available opportunities. And we maintain an extensive print and digital resource library as well as subscriptions and memberships to regional and national job posting boards, organizations, and online resources. Q: What are some ethical pitfalls new lawyers encounter and what is your advice on how to avoid them? A: Failing to maintain trust accounts, missing deadlines, not returning client calls and emails timely, taking on too many clients, representing clients in matters in which the attorney lacks competence, etc., are just a few examples of ethical and professional issues young lawyers encounter. To avoid these and other issues, young lawyers should
have a mentor, maintain a calendar, learn to properly prioritize, and know the rules of professional responsibility. Q: Are there any specific programs that you recommend for lawyers who want to start their own practice but don’t have a mentor? A: The CBA Inc. program is great and one that all serious future solo practitioners should consider. All new lawyers should participate in the Supreme Court of Ohio’s Lawyer to Lawyer Mentoring program. I also recommend joining the CBAs various committees, as they provide wonderful opportunities to network, to learn, and to find possible friends and mentors. Not a program, but a valuable resource nonetheless, I recommend purchasing and tackling the book, How to Start and Build a Law Practice, by Jay G. Foonberg. Q: As a new lawyer, sometimes we deal with co-counsel in very contentious situations. What tips do you have for remaining firm in your position but still treating opposing counsel with respect? A: First, always treat people the way you want to be treated even when dealing with rude behavior. Second, if you’re well prepared – you did your research, you considered all sides, you showed up ready to make your case – you should have no issue remaining firm and in control of your argument. Third, pause, then speak and always remain calm!
Rachel A. Sabo The Friedmann Firm LLC rachel@thefriedmannfirm.com Dimitrios N. Makridis Makridis Law Firm LLC dimakridis@gmail.com Spring 2015 Columbus Bar Lawyers Quarterly
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My Dog Needs a Lawyer By Jane Brener
“Fur-baby.” Yes, my Labradoodle— Teddy—is my fur-baby. He goes to doggy daycare while I’m at work, gets expensive “haircuts” every couple of months, eats organic food and treats, takes up more of the bed than I do, and likes to sleep with his head on the pillow. Do I sound like a crazy dog lady? I most definitely am one. Teddy is without question a very important member of my family, and many others see their pets as family as well. But our legal system sees things a little differently. To the cold, hard Ohio revised code, Teddy is merely property. The suggestion that Teddy is merely a piece of chattel? I find it hard to digest. In fact, most “dogparents” would likely find this downright offensive. About 90% of dogparents consider their pet a part of the family. In one poll, 50% of dogparents revealed that they would risk their own lives to save their pet. I have a friend whose parents made the mistake of asking her, “If our house was on fire, who would you rescue first: Us or your dog?” It was, inevitably, her dog. Familial devotion isn’t limited to just dogparents, but to all pets. In 2013, “parents” spent an incredible $55 billion for food, toys, and veterinary care. Pet parents are even setting up “pet trusts” for their beloved animals, naming their pet as the beneficiary and providing care and money for their pet in case they predecease
Jane Brener Alliance Data Systems janeybrener@gmail.com 18
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them. These trusts often provide instructions to the trustee regarding food and diet, daily routines, toys, cages, grooming, socialization, medical care, including preferred veterinarian, compensation for the caregiver, the method the caregiver must use to document expenditures for reimbursement, whether the trust will pay for liability insurance in case the animal bites or otherwise injures someone, how the trustee is to monitor caregiver’s services, how to identify the animal, and disposition of the pet’s remains, e.g., burial, cremation, memorial, etc. In other words, they’re thorough. These statistics and stories not only demonstrate that our dogs are more a part of our families than ever before, but they also help explain a new trend in the law: across the country, legislators and judges are treating dogs less as personal property, and more as just another part of a 21st Century nuclear family. Consider laws surrounding negligence or malpractice that results in the death of a pet. A Colorado district court recently awarded $65,000 to a family for emotional distress after the family came home to find their dog dead. The departed had been hit by a car after the family’s maidcleaning service accidently let the dog outside. The grieving family had purchased their beloved dog for only $299. Similarly, a California court awarded $39,000 for the death of a labrador mix in a veterinary malpractice case. The threeyear old lab-mix died of liver failure and his dogparent sued the vet for negligence, deceit, and unfair business practices. Although the jury estimated the market value of the dog to be $10, it assessed the dog’s special value to be $30,000. These awards make clear that the courts viewed the dog as a
family member and not just chattel, for which only the dog’s fair market value would have been recoverable. Divorce cases are another area of the law where dogs are treated more like people, and less like property. Where previously the laws in this area were designed to protect the best interests of human children in divorce, the laws for pets were intended to benefit the owner. There is now a shift in some courts to treat dogs more like children, considering the best interests of the dogs in determining custody of them. Courts have gone so far as to appoint guardian ad litems for pets in custody cases, and courts have awarded shared custody, visitation, and alimony payments to the dog’s owner. But perhaps the coup de’grace is that some dogs have even been awarded their own legal representation. In Georgia, a judge ordered an attorney to represent a pit pull that had attacked a young boy and was facing the “death penalty.” The reason: The interests of justice required it. And in 2007, a U.S. District Court appointed a guardian and special master to advise the court in the Michael Vick case regarding the best interests of the 48 pit bulls that had been seized and saved from the fate of their less fortunate puppies in arms. While many states still define pets as personal property, based on these current trends, and the fact that pet “parents” view and treat their pets as family members, it is likely we will continue to see states and courts making greater strides towards treating our pets how we do--as spoiled little (or in Teddy’s case, big) children that have us wrapped around their paws.
Photos by Susan Soden and Aaron Sheldon Spring 2015 Columbus Bar Lawyers Quarterly
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Quick Expert Cross-Examination By Brian J. Laliberte 1. Start with the expert’s deposition – if you have one. Sometimes, you just are not going to have it. If you do, dissect it. Commit it to memory. Use it to identify and challenge the expert’s assumptions. Design your cross-examination to draw those out for the jury. Identify all the things the expert did not consider. Identify incorrect assumptions. Establish that opposing counsel misinformed his expert or worse. Even the inference that the expert prepared a “made as ordered” opinion will diminish her credibility with the jury. 2. Mine the expert’s report – if you have one – for easy points of contention. As with a deposition, an expert report allows you to conduct research about the sources of information upon which the expert relied in forming her opinions. Using the report and the underlying data as a basis for cross-examination gives you a fighting chance to challenge the expert’s assumptions. Again, an expert can be impeached effectively by having her identify all the data she failed to consider or did not receive from opposing counsel. 3. Assess the exhibits associated with the expert for accuracy and reliability. Experts tend to rely on “stock” data that they have handy. Find more recent data and confront the expert with it. Make the inquiry about the things the expert did not do in preparing her opinion. The jury might find that the lack of attention to detail requires it to give the expert’s opinion little if any weight. 4. Identify exhibits that may impeach the expert. Confront the expert with a more current version of the data set upon which she relied in forming her opinion. For example, there may be a more recent edition of a treatise upon which the expert should have relied. There may be a document produced in discovery, but not identified in the expert’s report, that undermines the expert’s assumptions. Or, there may be a narrower set of data that is more relevant to your case than the data the expert used to arrive at her opinion. 5. Determine whether the expert or her work is at all controversial within his or her profession. The expert’s CV can be a gold mine. Assess the acceptance of the expert’s work within an academic peer group or profession. Determine if the expert has attained tenure in the academic context. If an expert is not affiliated with a college or university, perhaps there is a reason. Find out whether the expert has any professional skeletons in their closet, and use them to your advantage. 6. Search traditional and social media for useful information. Social media can be a rich source of potentially embarrassing information on the expert’s “real” views. Don’t hesitate to explore the expert’s public Internet presence. Has the expert commented publicly concerning issues that resonate in your case? Has the expert made statements that reflect a bias or prejudice relevant to your case? Has the expert commented on your specific case publicly prior to trial? 7. Quantify the expert’s time spent on the matter in terms of money. At first, innocuous open-ended questions can help build rapport with the expert. For example, ask some version of the following series of questions: Are you charging the plaintiff/ defendant for your time here today in court? How do you calculate your fee? Hourly? What is your hourly rate? (Assume $500.00.) How much time did it take for you to drive here? And how long did you take to prepare for your testimony here 20
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today? Of the ten hours you spent preparing for your testimony, how much of that time was spent with opposing counsel? Once the expert commits to her fee schedule, switch to classic leading cross examination. For instance: If we multiply your hourly rate of $500.00 by the number of hours you spent driving here (e.g., 3 hours), that amount is $1,500.00. If we multiply your hourly rate of $500.00 by the number of hours you spent with counsel (e.g., 10), that is $5,000.00.) You would agree that $1,500.00 plus $5,000.00 is $6,500.00? So, before you ever answered opposing counsel’s first question, you earned $6,500.00? Keep a running “tab” and quantify the expert’s time spent on the case in terms of money. Using a whiteboard and calculator to do this in front of the jury drives the point home. The amount the expert earned before testifying at trial adds up quickly when you explore the time taken to investigate an issue, prepare for deposition testimony, and consult with counsel. It can be astronomical. This gives the jury a sense that the opposing expert truly is a hired gun paid for her testimony. 8. Limit cross-examination to a few critical points. Do not keep the expert on the stand any longer than necessary. An experienced expert will use the time to reiterate her opinion, if you aren’t careful, and will do so at your client’s expense. 9. Don’t try to out-nerd the nerd. It rarely is a good idea to take an expert on cross-examination on her own subject of expertise - unless you have a Ph.D in the same subject matter. Even then, it is very easy to lose the jury. Don’t risk juror backlash by engaging in a technical argument when you can destroy the expert’s credibility by executing a limited and artful cross-examination. 10. Prepare a closing question that the jury will remember and the expert cannot contest. Here are two examples. Lawyer Smith: “Dr. Bob, have you ever heard the saying: ‘There are lies, damned lies, and statistics.’” Dr. Bob (an economist), chuckling: “Yes.” Lawyer Smith: “Thank you, Dr. Bob. No further questions.” Another derivation of this type of question, which is harsher and may draw an objection, is: Lawyer Jones: “Dr. Eve, have you ever heard the saying: ‘Figures don’t lie, but liars do figure?’” Dr. Eve: “Yes.” Lawyer Jones: “Thank you, no further questions.” The answer matters less than the question and grabs the jury’s attention. Brian J. Laliberte Ulmer & Berne LLP blaliberte@ulmer.com
A SEMI-AUTOMATIC MACHINE GUN? - OHIO HB 234 FIX By Derek A. DeBrosse, Esq. Governor John Kasich signed House Bill 234 into law on December 19, 2014 dramatically changing the existing gun laws in the State of Ohio. While the newly passed bill implements over twenty new laws or modifications in laws the purpose of this article is to analyze a little known part of the Revised Code with regards to machine guns. Generally speaking an automatic firearm can exist in two different forms, either semi-automatic or full-automatic (otherwise commonly known as a machine gun). Semiautomatic firearms require the actor to actually pull the trigger to fire each individual round while a full-automatic firearm requires a single function of the trigger for multiple rounds to be fired. Federal law under 26 USC §5845(b) defines a “Machinegun” as any weapon, which “shoots...automatically more than one shot...by a single function of the trigger.” Problems have always arisen because Ohio law has expanded upon that definition which has created conflicts in the law with regards to possession and ownership of machineguns as permitted under Ohio law as well as the National Firearms Act of 1934. Ohio separates the definition of Semi-Automatic and simply Automatic firearms establishing that Automatic, generally speaking, is to refer to machineguns. Ohio’s definition of Automatic firearm pursuant to R.C. §2923.11(E) includes the federal “single function” of the trigger definition as well as “any semi-automatic firearm designed or specially adapted to fire more than thirty-one cartridges without reloading, other than [.22 caliber firearms].” In sum, Federal law clearly differentiated between truly full-automatic firearms and semiautomatic firearms while Ohio law defined a full-automatic firearm to include certain semi-automatic firearms. When read literally R.C. §2923.11(E) and R.C. §2923.17 (the law criminalizing unregistered possession) appeared unconstitutional on their face for being overly broad and vague. The issue arises with the literal reading of the law. Realistically all semi-automatic firearms are “designed” to fire more than thirty-one rounds without reloading, as semi-automatic firearms are magazine or belt fed firearms. As long as the manufacturer or an after market manufacturer designs a magazine in excess of thirty-one rounds for the firearm, under Ohio law, even though mechanically semi-automatic, the firearm can be classified as a full-automatic firearm because it was capable (therefore designed) to fire more than thirty-one cartridges. This has created much confusion both in prosecuting criminals under Ohio law as well as the proper legality of possession of thirtyone round magazines by firearms enthusiasts. To the layman the magazines are illegal, however, the law is very clear that it is the firearm itself and not the magazines. This has caused great confusion on when and how to enforce the law and if in actuality it was even constitutional. Because of this confusing statute the ownership of so-called “high capacity magazines” has been called into question. It was clear upon reading the law that it was the firearm and not the magazine that was subject to this restriction, however, prosecutors began to prosecute defendants if they had both the firearm and an associated thirty-one plus round magazine in their possession. In order to legally possess the Automatic firearms as defined under Ohio law a citizen has to look to R.C. §2923.17. Under that statute the person would have to register the firearm under the National Firearms Transaction Registry (“NFTR”) or obtain a permit from the Sheriff pursuant to R.C. §2923.18. The problem is only certain type of firearms can be
registered under the NFTR (federally defined machineguns, suppressors, short-barreled rifles and short-barreled shotguns) and the Sheriff does not have to issue a permit under R.C. §2923.18 (if the Sheriff even knew this law existed. It took this author two years to track down the actual application forms that are subject to R.C. §2923.18). Even if a person is able to convince the Sheriff to grant the permit the question remains, which item should be registered? Is it the firearm, the magazine or both? If the law is strictly construed any semi-automatic firearm in existence, mechanically speaking, other than .22 calibers, needs to either be registered with the NFTR or the local Sheriff. The whole law is simply a mess. The fix was in for this confusing and conflicting area of Ohio law with the introduction of House Bill 234, which takes effect on March 23, 2015. As passed R.C. §2923.11(E) simply redacted the “semi-automaticmachinegun” language. The law now merely defines Automatic firearm with the simple and federally consistent single function of the trigger definition. Whether or not the reader agrees with the policy of this new law one thing is for certain, from a practitioner’s standpoint it is a much easier law to construe and implement. Derek A. DeBrosse, Esq. Barney DeBrosse, LLC www.ohiogunlawyer.com
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Speaking (Up) While Female By Margeaux Kimbrough, Esq. Sheryl Sandberg, the author of the revolutionary and very popular book, Lean In, and Professor Adam Grant, from the Wharton School at the University of Pennsylvania, recently published a New York Times op-ed entitled, “Speaking While Female.”1 In this essay, Sandberg and Grant discuss the phenomenon of women remaining silent in professional settings: When a woman speaks in a professional setting, she walks a tightrope. Either she’s barely heard or she’s judged as too aggressive. When a man says virtually the same thing, heads nod in appreciation for his fine idea. As a result, women often decide that saying less is more. When I first read this article, I was taken aback. Was I part of some weird experiment where Sheryl Sandberg and Adam Grant were watching me on closed circuit television all these years??? It was almost as if they were citing a chapter from my autobiography. While I had long thought my experiences were my own, it was very disheartening to learn that many women had experiences similar to mine. I consider myself (and those who know me would agree) to be a very strong and opinionated woman. However, I know that I have been guilty of self-censorship. How did that happen? For me, keeping silent started much earlier in my life than beginning of my professional career. My mother has always said I’m a talker. I have a loud voice, and sometimes I have a really hard time keeping my opinions to myself. I have been that way as long as I can remember. But at some point during college, I started holding my tongue. I received a degree in Philosophy from The Ohio State University. All of my philosophy courses were predominately male attended. More often than not, I was only one of two women in a class of twenty. Initially, I was able to communicate my “profound” philosophical thoughts by speaking up in classes and presenting, what I thought, were well-reasoned opinions. But there were times after I was done speaking, I would notice my classmates staring at me as if I was a three-headed alien who just landed my flying saucer in the middle of the classroom. Oddly enough, if a male classmate subsequently said almost exactly the same thing I had just said, there would be a sea of nodding heads and approving looks. I thought, “Maybe it’s just me. Maybe I’m just imagining it. Or, maybe my ‘profound’ ideas actually sound like gibberish. Maybe no one has the foggiest idea what I’m talking about.” In order to compensate for my perceived inability to communicate, I trained myself to take even more time to formulate my thoughts. Too often, my new approach resulted in: (a) a male classmate beating me to the punch and saying exactly what I was going to say, thus, rendering my comment moot; or (b) me timidly raising my hand and quietly beginning to speak when another male classmate suddenly, and confidently, interrupts me and proceeds to provide his analysis. I could not, for the life of me, figure out why this continued to happen. I especially could not figure out why it only seemed to happen in my classes where the students were predominately male. By no means did this happen every time I attempted to speak, but it did occur frequently enough that I began to change my behavior. By the time I started practicing law, I had developed a bad habit of keeping my thoughts to myself. 22
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One day, everything changed. I will never forget the moment a few years ago when I was sitting in my office with my mentor, an experienced (and frank) male partner, discussing case strategy. While he was telling me his thoughts, I sat there passively nodding my head in agreement. I was in the middle of formulating my response when he looked me straight in the eye and very sternly said, “I see you nodding at me, Margeaux, but I don’t need someone to agree with me. I need you to give me your opinion.” I was in shock. But, those stern words provided the wake-up call I desperately needed. Slowly and surely, my behavior changed, and I started speaking up again. Eventually, I found my voice. I am a different woman today than I was then—I’m a more confident version of my former self. While there is no one-size-fits-all solution to the “speaking while female” phenomenon, something must be done to encourage women to speak up in professional settings. Sandberg and Grant suggest one solution may be holding meetings “Obama-style”— where women are offered the floor whenever possible. For me, all it took was a strong kick in the pants. As attorneys, we often assume that if someone has an opinion about an issue, that person will undoubtedly share it. We should all remember that sometimes even a woman we perceive as strong and opinionated may need a little help finding her voice again. 1.
January 15, 2015. “Speaking While Female: Sheryl Sandberg and Adam Grant on Why Women Stay Quiet at Work”. NY Times. http://www.nytimes.com/2015/01/11/ opinion/sunday/speaking-whilefemale.html?smprod=nytcoreiphone&smid=nytcore-iphoneshare&_r=2. The cited article is the second of four essays by Sandberg and Grant that discusses the experiences of women at work.
Margeaux Kimbrough, Esq. Kegler Brown Hill + Ritter mkimbrough@keglerbrown.com
MAJOR DEVELOPMENTS CONCERNING INDIVIDUAL RETIREMENT ARRANGEMENTS (IRAs) By Matthew W. Gibson If an individual has $1,250,000 in an IRA that the individual created, those IRA assets are protected from creditors, even if the individual has to file for bankruptcy. But what if that individual passes away and leaves the IRA to one or more beneficiaries? Do the beneficiaries receive any creditor protection? The US Supreme Court’s decision in Clark v. Rameker, which was issued in June of 2014, held that inherited IRAs are not protected from creditors by federal law. The good news for Ohio residents is that Ohio enacted a new law last year that specifically exempts inherited IRAs from creditor claims. As a result, if Ohio residents enter bankruptcy, their inherited IRAs should receive the same protection as an IRA they created (up to $1.25 million). The problem for Ohio residents, however, is that relying on current Ohio law may not be an adequate solution. The major risk, aside from the possibility that the law changes, is that a beneficiary of the IRA might move out of Ohio, and may have to file for bankruptcy as a resident of another state. While a client may know where he or she is going to be for the next few years, the client may not have such a great idea of where beneficiaries might be in 10, 20, 30, or 40 years. Though 8 other states (Florida, Indiana, North Carolina, South Carolina, Alaska, Arizona, Missouri, and Texas) have joined Ohio in protecting inherited IRAs, 41 states have not. For those who want to assure inherited IRAs are protected from creditors, the best option is to name a trust as the beneficiary of the IRA. Care must be taken when drafting a trust that is to be named as the beneficiary of an IRA, and when actually naming a trust as the beneficiary of an IRA, to assure that the beneficiaries of the trust have the option of stretching the distributions. In other IRA-related developments, non-spouse beneficiaries of qualified retirement plans are now able to rollover a lump sum distribution into an inherited IRA. Previously, a lump sum would be taxed in a single year. Beginning in 2015, only once in any 12 month rolling period can an individual rollover money received from an IRA into another IRA within 60 days of the distribution from the prior IRA. Any subsequent distribution within the 12 month period is taxable. Previously, there was no limit on the number of accounts from which an individual could return the money to an IRA and avoid tax, as long as the money was returned each time to an IRA within 60 days. There are no limits on transfers made directly from one IRA trustee or custodian to another IRA trustee or custodian. To be safe, make all transfers directly from one trustee or custodian to another. Be particularly careful with bank
certificates of deposit in an IRA, which often get paid to you (not a trustee or custodian) at maturity, as more than one of these in a 12 month period will now be taxable.
Matthew W. Gibson Pappas Gibson LLC mgibson@pappasgibson.com
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Learn more at www.goodhealthcolumbus.org/cmaf Spring 2015 Columbus Bar Lawyers Quarterly
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England Coast to Coast - On Foot By Hon. David E. Cain
Here’s a novel way to travel abroad - walk. Could be a great method to ensure that all the scenery will be absorbed, the mysteries will be explored and all the roses will be well smelled. Or not. Judge Nodine Miller thought she would give it a try after seeing a description of an upcoming excursion in the monthly publication of the Adirondack Mountain Club of which she is member. It was hyped as an “epic walk across northern England, about 192 miles from the Irish Sea to the North Sea.” Passing through three national parks, “this walk has become one of the premiere long distance trips in the world.” “I can do that,’ thought Judge Miller, who is now retired from the Franklin County Common Pleas Court and sitting when assigned. “I walk my dogs every night around Bexley, I’ve done a half dozen 5Ks and have been part of the relay teams for both the Yukon River Trail Marathon in Whitehouse, Yukon Territory, and the Columbus Marathon,” she reasoned. So, she signed up along with 13 other walkers (and three leaders) from New York, Rhode Island, Vermont, Pennsylvania, Florida and Ohio. Once they assembled in Manchester, England, she learned that she should have chosen her fellow travelers more carefully. Most of them had climbed all 46 peaks in the Adirondacks that are over 4000 feet, some had climbed all the peaks in the Catskills, several had completed the entire Appalachian Trail and two had summited Mt. Rainier. “Walking around Bexley was looking a little weak,” she admitted as buyer’s remorse began to set in. “Also in Manchester, I learned that the benign Adirondack Club description of the trip was – as we say in the law business – not full disclosure.” The current guidebook, “Coast to Coast” by Henry Stedman, says: “All you need is some suitable clothing, a bit of money, a backpack full of determination and a half-decent pair of calf muscles. In the 200-odd miles from sea shore to 24
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sea shore you’ll have ascended and, of course, descended the equivalent height of Mount Everest.” “And, since it was being done in the space of two weeks, it was easy figure that the daily average would be a little more than 14 miles, in all kinds of weather and on many steeply-graded pathways,” Miller commented. Winds of 20 to 30 miles per hour were constant and the trail – so elusive that one of the leaders studied maps fulltime – had to be shared with cows, goats, sheep, dogs, geese, ducks, shepherds and farmers while crossing hundreds of stiles, gates, cattle grids and farm fields, she lamented. “At least, all we had to carry was a day pack,” she continued, “as the club had engaged a service to transport our luggage from inn to inn. If we were lucky, the inn had a drying room for wet gear and boots. If not, we suited up in the same wet clothes and boots for the next day‘s trek.” “The most memorable day was spent hiking on the moors on a former elevated railroad bed with wind gusts up to 70 miles per hour (as reported by local radio) and with horizontal snow. I had to jam my hiking pole into the ground to keep from being blown down the 12-foot drop to the heath. Even the Hound of the Baskervilles would have crawled back into his dog house this day. One of the experienced hikers literally crawled into the inn and announced she had lost her will to live.” “On another unforgettable day, I was hiking along when the ground gave way and dropped me into an invisible bog. Getting out was no simple task because of the suction created as one tries to extricate oneself from the grasping mud. At the end of the day, I had to be hosed off before being allowed into the inn. However, it was a better experience than one of my compatriots who was hopping from rock to rock, only to discover the last rock, which turned into a slide, was actually a cow pie. She, too, had to be hosed off before entering the nightly inn.” On a happier note, “I was amazed and actually dazzled by the stonework we passed. In high fields, stone fences cordoned
off sheep. Barns, homes and sheds were made of stone. Stone walls bordered road after road. The availability and prevalence of stone explains the use of the stone as building material and the limited acreage useable for farming.” Almost all the hiking was in the countryside, Miller reported, passing through little towns and villages here and there. The English were hospitable and welcoming, she added. “But more than once, we heard, ‘Why it’s the Americans. Must be the whole bloody country.’ “By the time we reached Robin Hood’s bay, we did have the calf muscles that Stedman referred to in his book, and we were all friends, having endured all the 200 miles together.” Would she do it again? “Absolutely not,” Miller responded shortly before revealing that she has signed up for another “walking” trip in 2015, this time from Vienna to Prague. The 150-mile trip is sponsored by the Sierra Club. The promo reads as follows: “Walking the Czech Greenways, Austria and Czech Republic. Explore four World Heritage sites and two UN Biosphere Reserves while hiking along a system of medieval trade routes. We’ll start in the great cultural center of Vienna and end in magical Prague. Our walks will take us across the southern Czech areas of Moravia and Bohemia where we’ll discover fairytale castles, old town squares, and the World Heritage site of Telc and Cesky Krumlov. We’ll enjoy moderate hiking with bus support and spend our nights in quaint village inns.” Miller’s leisure activities might help explain why her daughter, a Columbus School for Girls graduate, now lives in a cabin on top of a mountain (Murphy Dome) 20
miles outside of Fairbanks, Alaska, off the grid and with no running water, no electricity and no refrigerator, but a trapdoor in the kitchen floor. The daughter, Jessica Garron, has two children (6 years and 12 years) and a husband and can see Denali from her bedroom window. She is a senior science consultant with the Alaska Satellite Facility and for the vice chancellor for research at the University of Alaska Fairbanks. “Within this role, I work with scientists from around the world using remote sensing technologies to identify and remediate oil spills in Arctic conditions,” she reported. Miller calls her the “queen of dirt and ice.” She is also the leader of the village outreach team on a NSFsponsored, permafrost education grant. “I will be leading people on tours through the permafrost tunnel in Fairbanks, as well as traveling via snow machine and bush plane to remote Alaskan villages to hold community permafrost educational events.” The apple doesn’t fall far from the tree.
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Lawyers With Artistic License By Heather G. Sowald
Arnold S. White
Arnie doesn’t remember why he started painting, but he remembers feeling that he just needed to try his hand at it. Arnie began taking painting classes, which he still continues with, through the Cultural Arts Center. His current teacher is Joe Lombardo. Arnie paints for hours many evenings after work, and sometimes on weekends. He concentrates on finishing one painting before moving on to the next project. He describes his process as, “I just float into new harbors, learning from Joe and fellow artists, trying this and that as I mature my style. I don’t describe it; I leave that for others. I am attracted to Impressionists, but still cannot paint as the greats do.” So far, this amateur artist has gifted his paintings to family and friends, which now hang in homes in Columbus, California, and Nantucket, and some are available for sale at the Cultural Arts Center. One of Arnie’s recent paintings is of fellow attorney, Fred Ransier’s, great-great-great grandfather, Alonzo Jacob Ransier, who was once Lt. Governor of S. Carolina and later a U.S. Congress representative during reconstruction. This particular painting was his most challenging, he says, because 26
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he only had a copy of an1870’s photo from the Library of Congress. Arnie then translated that image into a painting in the style of artists of that era. Fred declares of Arnie’s work, “Needless to say, I was extremely gratified for his time and effort, and totally shocked at what he created! My family is cherishing Arnie’s work and talent in bringing forward a piece of our history we never had before.” Arnie is a Columbus native, who attended South High School and The Ohio State University (B.A., Economics). He received his law degree from the American University’s Washington College of Law in 1969. His current 2-attorney firm is White & Fish, LPA, on Dublin Rd. When Arnie first hung out his shingle, he had a general civil and criminal practice, the latter of which included two murder trials and one armed robbery case. Subsequently, he focused his practice on civil trial work, business, probate, collections, and bankruptcy law. He served as a bankruptcy trustee for 25 years. In the midst of his busy practice, he owned a title agency for 20 years, and argued several cases in both the Ohio Supreme Court and the 6th Circuit Court. Arnie also dipped his toes into the political realm when he ran as the Democratic candidate for a Franklin County Commissioner seat in 1974, and again when he ran for an appellate seat in 1988. During that latter campaign he learned that he had Multiple Myeloma cancer. He spent the next five years undergoing chemotherapy, radiation, a bone marrow transplant, and rehabilitation. Arnie believes that he may be the longest survivor, and perhaps the oldest, bone marrow transplant recipient who suffered from multiple myeloma, in the history of the world. He and his wife, Susan, have been married for 42 years. They have four children, most of whom live in California, and three grandchildren. He looks forward to the day when he will spend a lot of time painting. When he does, he says, he expects his quality of life to improve, as would anyone focused on a creative activity. Of course, he doesn’t know when “that” day will occur, because his office phones just keep ringing! When asked about his philosophy, Arnie says the following: “Pride advocating for clients. Pleasure creating beauty for myself.”
Heather G. Sowald Sowald Sowald Anderson and Hawley hsowald@sowaldlaw.com
Civil Jury Trials and 2014 Year in Review FRANKLIN COUNTY COMMON PLEAS COURT By Monica L. Waller
Verdict: $507,667.00. Medical Malpractice. Plaintiff Michael Sharrett, a 61-year-old truck driver, was a patient of Defendant Cy D. Young, D.O. of Defendant Maplewood Clinic, Inc. Beginning in late 2007, Mr. Sharrett began complaining to Dr. Young that his abdomen was expanding and he felt a sense of fullness. Dr. Young allegedly attributed Mr. Sharrett’s complaints to “middle age spread” and did not seek further evaluation. Mr. Sharrett continued to complain and, in December of 2009, Dr. Young referred Mr. Sharrett to an urologist who diagnosed him with chronic kidney disease and enlarged prostate with hydronephrosis (a distention and dilation of the kidney due to urine obstruction resulting in a two liter accumulation of urine in his bladder). Mr. Sharrett developed bladder retention and an atonic bladder, which is an irreversible condition that requires self-catheterization three to four times per day. He sued Dr. Young alleging that he failed to timely evaluate, diagnose and treat his condition. Mr. Sharrett also alleged that Dr. Young added information to his medical records relating to a referral which was allegedly refused by Mr. Sharrett. Dr. Young disputed Mr. Sharrett’s allegations that he breached the standard of care and asserted that Mr. Sharrett’s condition was neither caused nor worsened by anything Dr. Young did or failed to do. The jury found in favor of Mr. Sharrett and awarded him $482,667.00 in compensatory damages and awarded his wife, Plaintiff Kimberly Sharrett $25,000.00 for loss of consortium. Dr. Young gave his insurer (The Doctor’s Company) consent to settle after his cross-examination. The parties subsequently reached a high-low agreement. However, the verdict did not exceed the high agreed upon. Medical Specials: $15,000.00. Length of Trial: 5 days. Plaintiff’s Expert: Arnold Melman, M.D. (urology) and Jerome Daniel, M.D. (family medicine). Defendant’s Expert: William Giannakopoulos, M.D. (urology) and Michael Yaffe, M.D. (internal medicine). Last Settlement Demand: $350,000.00. Last Settlement Offer: $0. Plaintiff’s Counsel: David Shroyer and Eleni Drakatos. Defendant’s Counsel: Gary Hammond. Judge Reece. Case Caption: Michael Sharrett, et al. v. Cy D. Young, D.O., et al. Case No. 11 CV 594 (2013). Verdict: $300,000.00 ($36,887.30 in economic damages; $263,112.70 in non-economic damages, reduced to $250,000.00 by cap). Slip and Fall. Plaintiff Mary Louise West (69-years-old) visited the Clintonville Giant Eagle store on June 18, 2011. It had rained earlier that day and there were dryer fans on in the foyer, but no wet floor signs. Ms. West stepped from a wet entryway mat onto the tile floor and slipped. She fell to the floor and fractured her hip. She had surgery to repair the fracture followed by several weeks of rehabilitation in a nursing home. She used a walker and then a cane for several months following the surgery. She claimed ongoing pain and stiffness and a permanent 8 inch surgical scar. Ms. West claimed that Giant Eagle created a
dangerous condition in the foyer by tracking in rainwater when returning carts from the parking lot. She also claimed that Giant Eagle knew about the dangerous condition as evidenced by the presence of dryer fans in the foyer, but failed to warn its customers. Giant Eagle argued that Ms. West should have anticipated that the floor would be wet based on the weather conditions and the presence of the dryers and she failed to exercise ordinary care for her own safety. Surveillance video of the fall was presented to the jury as well as eyewitness testimony. Medical Specials: $101,498.34 (Robinson v. Bates of $37,000.) Plaintiff’s Expert: Ralph J. Rohner, Jr. (orthopedic surgery). Defendant’s Expert: None. Length of Trial: 3 days. Plaintiff’s Counsel: Warner M. Thomas, Jr. and Andrew S. Baker. Defendant’s Counsel: Roger H. Williams. Judge Bessey. Case Caption: Mary West v. Giant Eagle, Inc., et al. Case No. 12 CV 13737 (2014). Verdict: $74,021.31. Real Estate. In late 2009, Plaintiffs Kathleen and James Schroeder relocated from Columbus to Illinois. They hired Defendant GCB Properties III, Ltd d/ b/a Columbus Real Estate Pros to manage their Columbus home as a rental property and find a tenant. The Schroeders signed a property management agreement with GCB that placed responsibility for management, upkeep and operation of the property on GCB. The agreement also obligated the Schroeders to maintain insurance on the premises and indemnify GCB in the event of litigation. GCB found codefendants Randall and Lisa Watson to rent the property. On January 4, 2010, the Watsons signed a rental agreement that obligated the Watsons to maintain rental insurance on the property and to pay all rent, utilities and fees. It also stated that pets were prohibited unless by written consent of the owners. The Watsons claimed that, when they signed the agreement, they advised the representative of GCB Properties that they would be bringing two dogs with them when moving into the home and a third may be moving in shortly thereafter. They were told that the third dog would not be a problem since they were paying a pet deposit. The Schroeders claimed that they gave written permission for one dog only. According to the Schroeders, within approximately six months after the Watson’s took possession of the home, Mrs. Schroeder began receiving telephone calls from the president of the homeowners’ association for their Columbus home with complaints about the Watsons which included, running the air conditioning with the windows open, failing to maintain the home and the landscaping and barking from dogs that were being kept in the garage all day. The Schroeders later learned that a neighbor had reported the Watsons to the local humane society and an inspection was done documenting numerous dogs and damage in and around the property. GCB served the Watsons with a notice to leave the premises due to the presence of unauthorized pets on the property. A few days later the Watsons were Spring 2015 Columbus Bar Lawyers Quarterly
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served with a notice to vacate for non-payment of rent. The Watsons contacted GCB in attempt to cure the alleged breach of the rental agreement but were denied the opportunity and moved out. The Schroeders alleged that, upon re-entering the home, they discovered damage to the interior doors and woodwork, carpets and doors and that the landscaping was damaged. The Schroeders sued the Watsons for breach of contract and intentional misrepresentation and sued GCB for breach of contract, breach of fiduciary duty and for an accounting. The Schroeders also included claims against the Watsons and GCB for negligence and unjust enrichment. GCB filed a counterclaim against the Schroeders for breach of contract and indemnity. GCB alleged that the Schroeders failed to secure commercial rental insurance which GCB claimed was required under the property management contract. GCB also filed a cross-claim against the Watsons for contribution and breach of contract. The Schroeders moved for summary judgment on their breach of contract claim against the Watsons and GCB moved for summary judgment on its counterclaim against the Schroeders. The Court granted the Schroeders summary judgment against the Watsons but denied GCB’s motion. The jury found that the Watsons’ breach of contract resulted in $69,297.06 in damages to the Schroeders. The jury also found that GCB was negligent and its negligence caused the Schroeders $68,852.25 in damages to the Schroeders. It also found that GCB breached its fiduciary duty, resulting in $3,935.11 in damages and GCB breached its contract with the Schroeders resulting in $1,233.95 in damages. The jury found in favor of the Schroeders on GCB’s counterclaim, but in favor of GCB on its cross-claim against the Watsons, awarding GCB $1,185.00 on that claim. The Court entered a judgment in favor of the Schroeders against all defendants jointly and severally in the amount of $69,297.06 and against GCB individually for an additional $4,724.25. It also entered a judgment in favor of GCB and against the Watsons in the amount of $1,185.00. GCB subsequently appealed, but the judgment was affirmed. Plaintiff’s Expert: Steve Goebel (general contractor). Defendant’s Expert: Jason Heitmeyer (remodeling). Length of Trial: 6 days. Settlement Negotiations: 28
Spring 2015 Columbus Bar Lawyers Quarterly
GCB made a demand on Plaintiff for the payment of its attorney’s fees. There were no other settlement negotiations. Plaintiff’s Counsel: Michael Hrabcak and Benjamin B. Nelson. Counsel for Defendant GCB Properties: Kevin O’Brien. Counsel for Defendants Randall and Lisa Watson: John W. Waddy, Jr. Judge Brown. Case Caption: Kathleen Schroeder, et al. v. Randall Watson, et al. Case No. 11 CV 15360 (2013). 10th App. Dist. Case No. 13AP-537 (2014). Verdict: $10,285.71 ($0 in economic damages; $10,285.71 in non-economic damages). Automobile Accident. On June 22, 2007, 59-year-old Plaintiff Sharon Berry was driving a small bus southbound on South Third Street when Defendant Curtis Beery, who was also traveling southbound on South Third, made an improper right turn and struck the front of Ms. Berry’s bus. Ms. Berry treated initially with a chiropractor shortly after the accident. Three years later she went to her primary care physician with complaints of knee pain. Her physician referred her to orthopedic surgeon Timothy P. Duffey, D.O., who performed arthroscopic surgery. Ms. Berry claimed that she sustained the knee injury in the accident with Mr. Beery. She also claimed ongoing pain and physical limitation. Mr. Beery’s expert testified that Ms. Berry sustained no more than a knee contusion in the accident and that the treatment after the initial chiropractic care was not related to the injury sustained in the accident. It was the expert’s position that the arthroscopic surgery was performed as a result of a pre-existing knee condition. The BWC paid approximately $22,000.00 in medical expenses. The Plaintiff and the BWC stipulated to the amount of the BWC’s subrogation claim. The BWC did not pursue its claim at trial, but a BWC representative was called to testify regarding the total of the medical expenses incurred. Ms. Berry presented an additional $10,000.00 in medical bills that were not paid by BWC. She did not introduce the BWC’s itemization of medical bills paid and she did not introduce the chiropractor’s bill. Plaintiff’s Expert: Timothy P. Duffey, D.O. (orthopedics). Defendant’s Expert: Kenneth Westerheide, M.D. (orthopedics). Length of Trial: 2 days. Last Settlement Demand: $100,000.00. Last Settlement Offer: $5,000.00. Plaintiff’s Counsel: Mark C. Brookes.
Defendant’s Counsel: Jeanette D. Potts. Magistrate Petrucci. Case Caption: Sharon Berry v. Curtis Beery, Case No. 11 CV 13390 (2013). Verdict: $2,245.00. Medical Malpractice. Plaintiff Paula Smith was a patient of Comprehensive Women’s Care where she would occasionally receive cosmetic treatments. In May of 2006, Ms. Smith went to Comprehensive Women’s Care for a skin resurfacing treatment with the Titan laser. Defendant Anita Somani, M.D. informed Ms. Smith that she had just attended a conference where she learned that the laser could be used safely without a cooling gel and would produce superior results. Ms. Smith agreed to have the treatment without the cooling gel. Ms. Smith claimed that, while Dr. Somani was performing the procedure, it was extremely painful and she developed blisters on her forehead and cheek that evening. She was later diagnosed with a third-degree full-thickness burn on her forehead and less extensive burns on her cheek. The burns healed without any skin discoloration but Ms. Smith was left with a depression in the skin on her forehead. She received a series of filler injections to address the depression in her skin. However, Ms. Smith asserted that a revision surgery would be necessary to completely remove the depression. She sued Dr. Somani asserting that Dr. Somani breached the standard of care by performing the procedure without the cooling gel and failing to recognize that the procedure was causing her injury. Dr. Somani asserted that she did not breach the standard of care, that there was no indication at the time she performed the treatment that Ms. Smith sustained an injury and that burns were a known risk of the procedure. Dr. Somani also disputed the extent of Ms. Smith’s injury. Medical Specials: $6,180.00 in past medical expenses and $2,000$2,500 in future medical expenses. Plaintiff’s Expert: Michael J. Sullivan, M.D. Defendant’s Expert: Nina Deep, M.D. Length of Trial: 4 days. Last Settlement Demand: $77,000.0. Last Settlement Offer: None. Plaintiff’s Counsel: John Camillus. Defendant’s Counsel: Gregory Rankin. Magistrate Watters. Case Caption: Paula Smith v. Anita Somani, M.D., et al. Case No. 10 CV 10961 (2013).
Defense Verdict. Assault. Plaintiff Ashraf “Joe” A. Ettayem and Defendant Tigran “Ty” R. Safaryan were business partners in a corporation that owned retail property at 2950-2960 Groveport Road. However, in January of 2010 the two decided to part ways. Mr. Safaryan bought Mr. Ettayem’s shares in the corporation and the two agreed that Mr. Ettayem would lease the property at 2950 Groveport Road from the corporation and operate a market there. The two further agreed that a wall would be constructed between 2950 and 2960 Groveport Road. On June 9, 2010, Mr. Ettayem discovered that a contractor was in 2960 constructing the dividing wall. Mr. Ettayem objected, arguing that additional work needed to be done before the dividing wall could be constructed so that the wall would comply with the building code. The contractor contacted Mr. Safaryan and reported that Mr. Ettayem was physically blocking him from closing the opening between 2950 and 2960 Groveport Road. Mr. Safaryan came to the scene and, according to Mr. Safaryan, Mr. Ettayem began yelling and cocked his arm to throw a punch. Mr. Safaryan responded by punching Mr. Ettayem once in the face. Mr. Ettayem denied that he cocked his arm and asserted that Mr. Safaryan came to the scene yelling, which prompted Mr. Ettayem to call the police. Mr. Ettayem claimed that Mr. Safaryan struck him without provocation just after he completed the phone call with the police. Mr. Ettayem went immediately to the prosecutor’s office to press charges and then to the emergency room at Grant Hospital. He sustained a fracture in his jaw and two teeth were knocked loose, which required braces. He also alleged that he would likely lose the injured teeth and require either a bridge or
dental implants. Mr. Ettayem sued Mr. Safaryan for assault and battery and sought punitive damages. Mr. Safaryan filed a counterclaim for assault, intentional infliction of emotional distress and interference with contract. Mr. Safaryan dismissed the counterclaim before trial. The jury found in favor of Mr. Safaryan. Mr. Ettayem appealed, but the judgment was affirmed. Medical Specials: $3,462.28 in past medicals. $23,400.00-$25,800.00 in future medicals. Plaintiff’s Expert: Sam Latif, DDS. Defendant’s Expert: None. Length of Trial: 4 days. Last Settlement Demand: $25,000.00. Last Settlement Offer: None. Plaintiff’s Counsel: Stephen A. Moyer. Defendant’s Counsel: Terry K. Sherman and Irving B. Marks. Magistrate Browning. Case Caption: Ashraf A. Ettayem v. Tigran R. Safaryan Case No. 11 CVH 0712. 10th App. Dist. Case No. 13 AP 988. Defense Verdict. Automobile Accident. On November 24, 2010, Plaintiff Gabriel Johnson was driving southbound on North Hague Avenue. As he approached West Broad Street he moved to the left side of the lane, which was widened in advance of a turn lane. He intended to make a left turn onto West Broad, but had not yet entered the turn lane when, according to Mr. Johnson, Defendant Steven Sowers pulled out of a Walgreen’s parking lot on the right side of North Hague in front of Mr. Johnson, causing a collision. Mr. Johnson sustained headaches and pain to his neck, shoulder and back. He alleged that a pre-existing lumbar spine injury was also aggravated. According to Mr. Sowers, the collision occurred when Mr. Johnson improperly attempted to pass a vehicle on North Hague as that vehicle yielded the right of way to Mr.
Sowers so that he could exit the parking lot. Medical Specials: $4,702.80. Plaintiff’s Expert: Brian Scheetz, D.C. Defendant’s Expert: None. Length of Trial: 2 days. Last Settlement Demand: $15,000.00. Last Settlement Offer: None. Plaintiff’s Counsel: George A. Lyons. Defendant’s Counsel: Benjamin W. Wright. Magistrate Skeens. Case Caption: Gabriel Johnson v. Steven M. Sowers, et al. Case No. 12 CV 14577 (2013). Defense Verdict. Automobile Accident. On the evening of September 18, 2006, Plaintiff Isatar Hared Sheq was walking on Capital University Campus when, according to Ms. Sheq, she was struck by a vehicle operated by Defendant Scott Brooks. She claimed that her arm was wedged between the driver’s side mirror and door and her body was spun around. She claimed injury to her left wrist and back and that she developed traumatically induced cauda equina syndrome which required emergency surgery. Mr. Brooks denied that he struck Ms. Sheq. He claimed that he was driving slowly on campus when Ms. Sheq suddenly smacked his driver’s side window with her hand. He also disputed Ms. Sheq’s damages, claiming that she had a six year history of low back pain and an MRI a few months before the accident which revealed a disc bulge and severe stenosis. Medical Specials: $51,980.20. Plaintiff’s Expert: Gerald Steiman, M.D. Defendant’s Expert: Walter Hauser, M.D. Length of Trial: 3 days. Last Settlement Demand: $100,000.00. Last Settlement Offer: $5,000.00. Plaintiff’s Counsel: Edwin J. Hollern. Defendant’s Counsel: Belinda S. Barnes. Magistrate Thompson. Case Caption: Isatar Hared Sheq v. Scott W. Brooks, Case No. 11 CV 12326 (2013).
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2014 Year in Review Based on data collected from the Franklin County Court of Common Pleas Office of the Jury Commission and the Franklin County Clerk of Courts Office, the following statistics have been compiled which provide a snapshot of civil jury trials for 2014: Juries rendered verdicts on 65 civil actions in 2014. (By comparison, there were 43 civil jury trials in 2013, 59 in 2012 and 60 in 2011.)
A breakdown of economic and non-economic damages was available for all 18 verdicts. The non-economic damage awards ranged from $0 to $75,000 and 0 to 60% of the total verdict with an average of 32% of the verdict. There were three plaintiff’s verdicts in which the jury awarded no noneconomic damages. By comparison:
Medical Malpractice Jury Trials 16 medical malpractice cases were tried to verdict in 2014- twice as many as were tried in 2013. In 3 of those cases the plaintiffs were awarded judgments. The other 13 were defense verdicts. The jury awards ranged from $374,000 to $1.8 million. By comparison:
Auto Accident Jury Trials 24 of the 65 jury trials involved automobile accidents. 6 of the 24 auto accident trials ended in defense verdicts. The damages awarded to plaintiffs ranged from $1,137 to $140,000 with an average of $26,145.66 and mean of $12,414.96.
Other Civil Jury Trials 7 cases involving breach of contract claims and other business disputes were tried. This is down from 12 jury trials on the same type of case in 2013. 7 workers’ compensation cases were tried, up from 5 in 2013. 4 of the 7 cases tried in 2014 resulted in plaintiff’s verdicts. There were 3 employment cases tried. All 3 involved allegations of discrimination. Plaintiffs succeeded in 2 of the 3 cases. There were also 3 employment cases tried in 2013. 2 premises liability cases were tried in 2014—the same number as were tried in 2013. Last year the plaintiff succeeded in one and the defense succeeded in the other. *The list of civil trials was derived from a list of cases for which jurors were requested from the Office of the Jury Commission.
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Spring 2015 Columbus Bar Lawyers Quarterly
Monica L. Waller, Lane Alton & Horst mwaller@lanealton.com
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