LAWYERS
Columbus Bar Fall 2020
QUARTERLY The
IMPACT of the
PANDEMIC
This issue examines the impact of the COVID-19 pandemic on different areas of the law. Look inside for articles on human trafficking, connectivity, a history of pandemic jurisprudence, work from home perspectives and more. Plus, we have an update on Ohio’s medical marijuana system, a look at law school employment numbers, small firm/solo practice tips and more. A publication of the Columbus Bar Association • www.cbalaw.org
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Table of
LAWYERS
Contents
QUARTERLY
Fall 2020 P r e s i d e n t ’s P a g e
4
Together, We Can Rob Erney
Bar Insider
7
Law Schools: The Real Employment Numbers for the Law Class of 2019 Jason Dolin
Back to LASC with Cy 12 Giving Pres Awards
Fall ‘20: The Impact of the Pandemic
36
Human Trafficking in Columbus Amid the COVID-19 Pandemic Heidy Carr
40
The Novel Pandemic Jurisprudence Quintin Lindsmith
Melanie Tobias
44
Getting Used To “The New Normal” Gwen Bocher
46
When Are My Employees Unable to Work Under the FFCRA? Alexa Cellier
50
Gwen Bocher Damon Durbin Ashley Johns Tami Kamin Meyer Janyce Katz Garth Rowbotham Doug Vonderhaar
COVID-19 And Workers’ Compensation: An Informed Opinion Jacob Dobres & Mindi Schaefer
Melissa Dutton
Better Lawyer
16
Shaking It Up: Perspectives of Attorneys Working from Home
I t ’s a S m a l l W o r l d Your Fees During a 20 Discounting Pandemic is for Dummies - And What You Should Do Instead Bradley Miller
Points of Practice
25
Ohio’s Medical Marijuana Program Four Years In - Where We’ve Been, and Where We’re Going Walter (Chad) Blackham
29
Marketing in the COVID Era: Are Your Calls and Texts Legally Compliant? Erica Hollar
Bar Happenings
34
Photo Gallery and Calendar of Upcoming Events
Columbus Bar Association Editorial Board
53
Five Things You Can Do To Prevent Isolation and Loneliness Megan Snyder
57
Connectivity in the Time of COVID-19 Lindsay Miller & Greg Dunn
Student Section
60
Tips on Successfully Going Back to School Full-Time after a Career Lindsay Miller
64
Substituting My Childhood Bedroom for Washington, D.C. Isabel “Izzy” Marcelletti
Chair
Board Members
Editor
Brianna Antinoro
Design/Production Sarah Curran
Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org
Life Outside the Law
68
Lawyers with Artistic License: Hon. David B. Tyack Heather G. Sowald
70
You Do Have Time! Scott R. Mote
Jury Verdicts
74
Civil Jury Trials, Franklin County Common Pleas Court Monica L. Waller
Advertising Burgie MediaFusion (614) 554-6294 leslie@burgiemediafusion.com
NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.
P r e s i d e n t ’s P a g e
Together, We Can by: rob erney
I joined the Columbus Bar Association 34 years ago on Sept. 1, 1986. I went to law school at the University of Cincinnati College of Law and graduated in June 1984. I accepted a judicial clerkship in the First District Court of Appeals for two years, and then came home to Columbus in August 1986 to practice law. At that time, I joined the CBA because I felt it was the right thing to do. I remember feeling so honored to be a member of the CBA. I was so happy to begin my practice and I had heard that the Columbus Bar was one of the best bar associations in the country. I immediately got involved in committee work and met Marion Smithberger. Marion was so kind to me and suggested that I get involved in teaching trial skills. I went on to meet a number of outstanding plaintiff and defense trial lawyers, most of whom I am still close to today.
Several years later, I asked Alex Lagusch, our prior Executive Director, how I could best continue to serve the CBA. Shortly thereafter, I received a telephone call from the Hon. Stephen McIntosh, asking if I would join the Professional Ethics Committee. I served on the Professional Ethics Committee for four years and decided to run for the Board of Governors. I was so thrilled the day I learned that I had been elected. My time of service on the Board of Governors has been rewarding on a personal and professional basis. The Columbus Bar Association has been like a second home for me. I have had the great privilege of working with lawyers in other practice areas whom I would never have met if I hadn’t been a member of the CBA. My membership in the CBA has been professionally rewarding but deeply personal to me. For me, membership in my local bar has created a feeling of togetherness. We live in a world that seeks to divide us. It is so comforting to be part of a professional association that brings us together. We at the CBA come
For me, membership in my local bar has created a feeling of togetherness. We live in a world that seeks to divide us. It is so comforting to be part of a professional association that brings us together. 4 | Columbus Bar L aw yers Quarterly Fall 2020
together to help our members, enhance our profession and improve our community. Togetherness creates opportunities. Togetherness provides the power to change. Together, we can accomplish all of our goals. The coronavirus pandemic has reminded us how much we need human contact with each other. Although we have interacted with each other on various forms of video conferencing and by phone, it is just not the same. We long to be together, once again, to satisfy that need for human contact. Membership in the CBA has really helped all of us to satisfy that longing over the past six months. Our ability to switch to a virtual platform in 2020 has allowed of us to stay connected. Today, it is critical to be a member of the Columbus Bar. There are plenty of good reasons to be a member of the CBA. According to our bylaws, the Columbus Bar exists to help our members succeed: “[We] strive to be the leader in providing excellent, innovative, and cost – effective services to members of the legal profession and the general public in central Ohio… [We] will focus on professionalism, education, advocacy, and community service in order to advance the justice system for all.”
NEW
Welcome MEMBERS Emily Anstaett Chassidy Barham Patrick W. Beatty Frederick D. Benton, Jr. Zachary A. Bertke Michael Bird Todd Book Meghan Lindsay Brickner Sophia Chang Ryan D. Chesnut Bryan Choi Jo E. Cline Erica L. Cook Lisa M. Critser Theresa M. Dean
Ryan L. DeYoung Gregory R. Dick Evan C. Ecos Brandon Finley Adam S. Friedman William E. Froehlich Michael J. Galeano Britani L. Galloway Roger Garcia Camille Gill Ari Glogower Leslie Grover Ashley L. Gullett Bethan Harding Stacey N. Hauff
We have fantastic substantive law and professional development committees, cutting-edge CLE courses, free new lawyer training, opportunities for members to raise their profiles, an outstanding practice management center and learning library, the availability of legal forms through our Central Ohio Docs, insurance coverage, diversity programs, and opportunities for leadership development. However, it is the feeling of togetherness and a sense of belonging that creates the value of membership. The Columbus Bar is for all lawyers and all practice areas. We support members in all stages of their careers. We have programming, benefits and resources to assist new lawyers, experienced lawyers and lawyers nearing the end of their careers. We are so blessed to have such great diversity and we learn so much from each other. Each year, the Columbus Bar Foundation honors CBA members who have been practicing law for 50 years. This is an incredible accomplishment and we honor their tenacity, toughness and resilience. A luncheon will be held in the fall to commemorate this momentous occasion. In appreciation for their years of service, all attorneys who have been licensed for 50 or more years
Julian Heinrich Brian W. Kelso Daniel T. Kobil Julia Konieczny Stephanie Ann Kortokrax Sheree Singer Lamendola Nick Lanphear Katherine E. Lusher Nicole M. Makeda J. Scott Marlatt Joy L. Marshall Andrew J. Marvin Megan McClung Steven C. McGann Phillip Elias Joseph Michel Lindsay M. Miller William J. Miller Melanie Ann Mills Kelsey J. Mincheff Judith M. Monseur Pandey Neelam Linda Norris Andres Mauricio Olivari Rodriguez Jami S. Oliver Sarah Elizabeth Paxton Andrew Pfeifer Kaci Philpot
Patrick J. Piccininni Valarie Potell Anne Ralph Michael Renne Matthew T. Rinear Courtlyn Rosser-Jones Brie Rothacher Pete Russell Tad A. Semons Colleen Settineri Sonya Shaw Omotunde Shenbanjo Michael B. Silverstein Bryan R. Stafford Bryan Steward Kassandra J. Stewart Sean Stoner Meredith K. Sugar Milton Sutton Alana Tanoury Reynaldo Valencia Darryl Walton Sheryl Warner Kevin L. Williams Paige LiL Wilson Yukiko Yee Patti Zettler
5 | Columbus Bar L aw yers Quarterly Summer 2020
50 YEAR
ATTORNEYS George J. Arnold Robert D. Bergman Lawrence A. Berlin Jack A. Bjerke James B. Dobbs Timothy D. Gerrity David B. Hornbeck Kenton L. Kuehnle Donald P. Love Ralph E. Nusken Peter A. Precario Jeffrey A. Rich Mark J. Sheriff James W. Slater James M. Wiles Donna Bowman Thomas W. Hill Richard B. Igo Robert A. Koblentz Jonathan W. Marshall John C. Nemeth Robert G. Palmer James A. Readey Alan Wayne Sheppard Ronald L. Solove Charles C. Warner E. Joel Wesp.
receive a free membership year with the CBA. These lawyers who have practiced for 50 years know exactly what I mean when I talk about the sense of belonging and the feeling of togetherness. Above all else, this is the reason why we renew our membership in the Columbus Bar year after year. Membership in the CBA fulfills one of the deepest needs in our personal and professional lives. Serving as your President in 2020 is a great blessing for me. I cannot imagine practicing law in Columbus without being a member of the Columbus Bar. Together, we can increase our membership, improve our member benefits, make a difference in our community, and support each other. There is no obstacle, situation or problem we cannot overcome. Together, we can.
Rob Erney, Esq.
Robert D. Erney & Associates Co., LPA robert.erney@erneylaw.com
6 | Columbus Bar L aw yers Quarterly Summer 2020
Bar Insider
Law Schools:
The Real Employment Numbers for the Law Class of 2019 by: jason dolin
A Tale of Two Charts: Welcome to the irrelevant employment numbers for Ohio’s law class of 2019; irrelevant because they were set in mid-March 2020, roughly coinciding with the beginning effects of the pandemic and the reshaping of our world. While in most years these numbers help us divine employment trends into the future, the massive economic disruption caused by the coronavirus has changed all that. Next year’s numbers are likely to look very disconnected from this year’s, and not in a good way. Their predictive limitations aside, to the extent these employment numbers have any value it may be that they offer us a frozen-in-time photo
of what Ohio’s legal hiring looks like in a maxed-out, full employment economy after a 12year longest-in-U.S.-history economic expansion.1 These results may be remembered as the good old days. But even with a full employment economy, almost one-third of Ohio’s 2019 law grads did not find what almost all of them were looking for: full time, permanent, JD-required (FTPJD) employment. Ohio’s FTPJD employment rate for new law grads once again trailed the national rate. Ohio’s toomany law schools graduated more law students in 2019 than in 2018 and continue to graduate too many students for the FTPJD jobs available. Ohio’s legal economy can’t support increasing numbers of lawyers, with Ohio’s Bureau of Labor Management Information projecting that at the
But even with a full employment economy, almost onethird of Ohio’s 2019 law grads did not find what almost all of them were looking for: full time, permanent, JD-required (FTPJD) employment. Ohio’s FTPJD employment rate for new law grads once again trailed the national rate. 7 | C o l u m b u s B a r L a w y e r s Q u a r t e r l y FA L L 2 0 2 0
end of 2028 Ohio will have 150 fewer lawyer job openings than it had in 2018.2 For decades, Ohio’s too-many law schools have helped cause structural un(der)employment for Ohio’s law grads. And much of that excess was created and has been supported by your tax dollars, which subsidize Ohio’s five (most in the nation) state-supported law schools. Make no mistake, Ohio’s chronic underperformance in FTPJD jobs is related to its production of too many lawyers by its too-many law schools. Do we really need five state-supported law schools? The chart below shows that over the last eight years, three of Ohio’s state-supported law schools have remained in the bottom tier – ranking 6th, 7th and 8th out of Ohio’s nine law schools – in finding FTPJD jobs for their recent grads. A more rational system – less influenced by inertia and politics – based on evidence would have long ago eliminated or merged one or more of Ohio’s state-supported law schools out of existence. In late August, after this article was first submitted for publication, Cleveland State and Akron announced “the formation of a joint Exploratory Working Group to consider a strategic partnership” between those law schools.3 Time will tell whether such a “strategic partnership” is consummated and, if so, whether it results in what is really needed: the reduction of student head count and expenses. If not, it is not the kind of merger that Ohio needs and will do little to address Ohio’s structural un(der)employment caused by the overproduction of law graduates. A Motion to Reconsider The pandemic has forced us to conduct our personal and professional lives in ways once unthinkable. Many of those involuntary changes have been terrible, but some have been beneficial. Some of us have learned to practice more efficiently, albeit at a distance. We may not enjoy practice as much as before, but the wheels of justice continue to roll. And importantly, sometimes they roll more economically and efficiently for our clients than
before. But more important than efficiency, in the midst of the Black Lives Matter movement and the pandemic, many of us have started to reexamine what is important in our lives and our practices and started to question our values, our ethics and the role our profession has played in the past and should play in a post-pandemic future. If we can harvest anything positive from this hellish pandemic, it may be that. Those same forces that have caused practicing lawyers and judges to recalibrate their practices also apply to the gatekeepers of our profession: law schools and the Law Licensing Complex (the LLC) which includes the ABA, the Ohio Supreme Court, the National Council of Bar Examiners and others. What was once unthinkable within legal education – an all-online curriculum – has now become the norm even at the top law schools due to the pandemic. What was once not seriously considered - an online bar exam - will now be administered in this state and many others. An Adherence to Precedent, or Stuck in the Past? Law as a profession has, as one of its defining traits, an adherence to the past. We call it precedent. And to be fair, there is value to society in having predictable rules and outcomes in the conduct of human affairs. As lawyers we are trained and acculturated to find and bind to precedent. But there is a very thin line in our personal and professional lives between a mindset that adheres to precedent and one that cleaves to an unthinking and rigid adherence to the past. Law schools and the LLC are as guilty of that in their sphere as we are in ours. It’s past time that law schools and the LLC took a long overdue, evidence-based, look at the way they do things and ask ‘Why?’ Here are some questions that have festered for a long time but, in light of the pandemic, cry out for new thinking. Can the cost of law school be dramatically reduced by teaching it online? Law school costs
8 | Columbus Bar L aw yers Quarterly Fall 2020
FTPJD RANK
CLASS OF
CLASS OF
CLASS OF
CLASS OF
CLASS OF
CLASS OF
CLASS OF
CLASS OF
2012
2013
2014
2015
2016
2017
2018
2019
OVERALL RANK BASED ON ALL FTPJD RANKS FROM 2012 2019
1
Ohio State 59.5%
Ohio Northern 66.7%
Ohio State 73.8%
Ohio State 75.0%
Ohio State 76.5%
Ohio State 76.4%
Ohio State 79.8%
Ohio Northern 80.1%
Ohio State (11 Points)
2
Ohio Northern 59.4%
Dayton 63.7%
Cincinnati 63.2%
Cincinnati 61.5%
Cincinnati 71.2%
Cincinnati 75.7%
Cleveland State 73.9%
Ohio State 78.6%
Cincinnati (23 Points)
3
Cincinnati 53.6%
Ohio State 61.8%
Case Western 54.8%
Case Western 59.7%
Case Western 56.6%
Ohio Northern 71.2%
Case Western 65.9%
Cincinnati 71.1%
Case Western (32 Points)
4
Toledo 51.7%
Case Western 59.9%
Dayton 52.9%
Cleveland State 52.3%
Cleveland State 53.0%
Case Western 60.1%
Cincinnati 64.4%
Case Western 69.2%
Ohio Northern (34 Points)
5
Dayton 51.1%
Cincinnati 54.4%
Akron 52.4%
Dayton 51.6%
Dayton 49.4%
Akron 59.2%
Dayton 59.0%
Dayton 69.0%
Dayton (40 Points)
6
Cleveland State 48.9%
Akron 51.8%
Cleveland State 49.0%
Akron 51.4%
Ohio Northern 48.6%
Toledo 55.3%
Ohio Northern 57.6%
Akron 63.6%
Cleveland State (45 Points)
7
Capital 48.2%
Toledo 50.0%
Ohio Northern 46.8%
Toledo 45.7%
Akron 46.8%
Capital 53.8%
Capital 54.5%
Cleveland State 62.5%
Akron (52 Points)
8
Case Western 47.1%
Cleveland State 47.8%
Toledo 43.9%
Ohio Northern 41.3%
Capital 37.8%
Cleveland State 52.1%
Akron 54.2%
Capital 62.4%
Toledo (59 Points)
9
Akron 46.8%
Capital 44.3%
Capital 38.8%
Capital 38.5%
Toledo 36.4%
Dayton 50.0%
Toledo 53.4%
Toledo 61.2%
Capital (64 Points)
too much. A recent ABA survey of 1,100 recent law graduates showed that law school debt caused 56 percent of them to postpone the purchase of a home, 29 percent to postpone marriage or to not get married at all, and 48 percent of them to delay or decide not to have children.4 According to the report, survey respondents revealed “… an underlying theme of unhappiness, frustration, and fear stemming from loan burdens.” Further, “Many mentioned issues of mental health, and some cited depression. Others mentioned an inability to save for the future or retirement, as well as difficult choices related to healthcare for themselves or their family.”5 Worse still, the debt burden falls disproportionately on minority law graduates. While white law graduates nationwide have an average law school debt of $100,510, Hispanic law grads carry an average debt of $149,573, and black grads carry an average debt of $198,760.6 Ohio’s average law graduate debt is lower than the national average but nonetheless remains significant. The cost of legal education needs to be reduced, and online education offers one path. Apparently, law schools believe that a fully online legal education is viable because they’re doing it now as a result of the pandemic. Certainly, classroom instruction is more beneficial than online education.
But most of us didn’t go to law school to have a good time. In a cost-benefit analysis, is in-person instruction really worth tens of thousands of dollars a year more than an online legal education? Current ABA rules allow for up to one-third of law school credits to be online.7 But the Ohio Supreme Court isn’t bound by what the ABA requires and, if it wants it, can allow law graduates who have an all-online legal education (with arrangements for clinical education) to sit for its bar exam and practice in Ohio.8 The pandemic has shown that there’s no longer a reason to limit online legal education to one third of all credits. The Ohio Supreme Court has the power. The question is, does it have the interest, or the will, to seriously address or even to study the problem of law school debt? Time for new thinking. Can the cost of legal education be reduced by shortening the course of study? Law school has traditionally been a three-year course of study, but is there evidence that the public is better protected/served as a result of that third year? One thing is certain: the third year adds significant cost to a legal education. In a cost-benefit analysis, do we need a third year? This warrants further study that should be supported by the Ohio Supreme Court. Time for new evidence-based thinking.
9 | C o l u m b u s B a r L a w y e r s Q u a r t e r l y FA L L 2 0 2 0
Can the cost of law school be dramatically reduced by allowing “reading for the law”? Multiple states allow individuals to “read for the law.”9 While the practice varies by state, it typically involves studying under a licensed attorney and/or attending one or two years of law school. While no longer common, it has a storied history, having produced several U.S. Supreme Court Justices and criminal defense luminary Clarence Darrow.10 Reading for the law is not currently permitted in Ohio and may not present a widespread solution. Nonetheless, if allowed, it could radically reduce the cost of a legal education for those who choose to pursue that avenue. It should be studied as an option. Take the Bar Exam in Parts. Does a cram exam really protect the public more than a bar exam that is given in parts; say, half after the first year of law school and half after the last year? For years, medical schools have given the U.S. Medical License Exam in multiple steps across the four years of med school. Our profession’s all-or-
nothing licensing rite of passage is a faux-macho vestige of an earlier day and does nothing more than amp up the test taker’s anxiety without any evidence that its current format provides corresponding benefits. Taking it in parts may lower the anxiety and allow for better performance. How about an empirical study to test that proposition? Diploma Privilege: Do we need a bar exam at all? Wisconsin has had diploma privilege – bar admission based upon graduation from a law school in the state – for years without an apparent problem. It’s time for Ohio to look at this as well. Does the legal establishment in Ohio – the Supreme Court, the state and local bar associations, the law schools, the large law firms - care, beyond uttering the right words, about law school debt and its damaging impacts on new lawyers? Are any of those entities willing to reexamine, based on empirical evidence, whether we should significantly change the way we deliver legal education and permit admission to the bar? Will the effects
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Suzanne McClain: (614) 448-1834, suzanne@nuMedicareAdvisors.com When the time comes to enroll in Medicare, you’ll have questions about all your options. Suzanne will meet you at your office, our office, or at the CBA offices to go over your options.
10 | Columbus Bar L aw yers Quarterly Fall 2020
of the pandemic get those entities to take a fresh and meaningful look at law school debt and bar admission requirements? The science of the pandemic has taught us that spoken words are nothing more than vapors. Actions speak louder than words.
According to its website, “Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants the Supreme Court of Ohio exclusive jurisdiction to regulate admission to the practice of law in Ohio.” See http://supremecourt.ohio.gov/AttySvcs/admissions/default.aspx#:~:text=Article%20IV%2C%20Section%202(B,practice%20of%20law%20 in%20Ohio. 9 Currently, some version of reading for the law is allowed in California (https://www. calbar.ca.gov/Admissions/Requirements/Education/Legal-Education/Law-Office-orJudges-Chamber) , New York (https://www.nybarexam.org/Rules/Rules.htm#520.4), Maine (Rule 10(c)(5) at http://www.mainebarexaminers.org/PDF/MBAR0109.pdf) , Vermont (https://www.vermontjudiciary.org/sites/default/files/documents/LOS%20 Info.pdf), Virginia (https://barexam.virginia.gov/reader/reader.html), and Washington State (https://www.wsba.org/for-legal-professionals/join-the-legal-profession-in-wa/ law-clerk).. 10 In the 20th Century, the list includeds Chief Justice Robert Jackson, Associate Justice James F. Byrnes, and others. 8
https://www.cnbc.com/2019/07/02/this-is-now-the-longest-us-economic-expansion-inhistory.html#:~:text=The%20U.S.%20is%20officially%20in,far%20slower%20than%20previous%20expansions. 2 BLMI data on file with the author. 3 https://www.uakron.edu/im/news/university-of-akron-and-cleveland-state-university-toexplore-creating-unified-law-school 4 https://www.law.com/2020/07/28/new-lawyers-put-off-kids-home-ownership-due-to-crushing-student-debt/ 5 https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020. pdf at 25. 6 https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020. pdf at 28. 7 https://www.americanbar.org/news/abanews/aba-news-archives/2020/06/council-movesto-expand-flexibility/ 1
Jason M. Dolin, Esq.
jmdolin614@gmail.com
AKRON
CINCINNATI
CLEVELAND STATE
OHIO STATE
TOLEDO
CAPITAL
CASE WESTERN
DAYTON
OHIO NORTHERN
TOTALS
Total 2019 Graduates (“Grads”)
129
121
88
168
80
101
143
84
47
961
% of 2019 Grads Employed in Full Time/ Permanent/JD Required (“FTPJD”) Jobs - THE REAL EMPLOYMENT RATE
63.6%
71.1
62.5%
78.6%
61.2%
62.4%
69.2%
69.0%
80.1%
68.8%
82/129
86/121
55/88
132/168
49/80
63/101
99/143
58/84
38/47
662/961
2018=54.2%
2018=64.4%
2018=73.9%
2018=79.8%
2018=53.4%
2018=54.5%
2018=65.9%
2018=59.0%
2018=57.6%
2018=64.3%
6.2%
7.4%
4.5%
3.0%
6.3%
11.9%
7.0%
7.1%
8.5%
6.6%
8/129
9/121
4/88
5/168
5/80
12/101
10/143
6/84
4/47
63/961
2018=8.3 %
2018=13.3%
2018=4.5 %
2018=3.0%
2018= 8.6%
2018= 12.9%
2018= 7.1%
2018= 11.5%
2018= 8.5%
2018= 8.1%
% of 2019 Grads in FTPJD Private Law Practice
45.0% 58/129 2018=45.0%
47.1% 57/121 2018=64.4%
55.7% 49/88 2018=59.1%
42.9% 72/168 2018=48.2%
45.0% 36/80 2018=34.4%
42.6% 43/101 2018=36.6%
40.6% 58/143 2018=42.1%
42.3% 36/84 2018=37.1%
42.6% 20/47 2018=23.7%
44.6% 429/961 2018=44.8%
Of Grads in FTPJD Private Law Practice, % in Solo Practice
10.0% 6/58 2018=0.0%
0.0% 0/57 2018=0.0%
2.0% 1/49 2018=5.8%
0.0% 0/72 2018=0.0%
0.0% 0/36 2018=0.0%
4.7% 2/43 2018=8.1%
0.0% 0/58 2018=2.0%
0.0% 0/36 2018=7.7%
0.0% 0/20 2018=7.1%
2.0% 9/429 2018=2.8%
Of Grads in FTPJD Private Law Practice, % in firms of Solo through 25 Attorneys (small practice)
67.2% 39/58 2018=61.1%
52.6% 30/57 2018=44.8%
61.2% 30/49 2018=61.5%
22.2% 16/72 2018=34.6%
77.8% 28/36 2018=70.0%
76.8% 33/43 2018=73.0%
48.3 28/58 2018=52.8%
72.2% 26/36 2018=69.0%
90.0% 18/20 2018=100.0
57.8% 248/429 2018=55.8%
Of Grads in FTPJD Private Law Practice, % in “mega” firms of 501+
1.7% 1/58 2018=7.4%
21.0% 12/57 2018=12.0%
6.1% 3/49 2018=5.8%
29.2% 21/72 2018=23.5%
0.0% 0/36 2018=5.0%
9.3% 4/43 2018=2.7%
15.5% 9/58 2018=18.9%
11.1% 4/36 2018=13.8%
0.0% 0/20 2018=0.0%
12.6% 54/429 2018=12.3%
% of 2019 Grads with at Least One Law School Loan**
78%
70%
78%
75%
79%
84%
74%
85%
79%
743/961=77.3%
Total Law School Debt for the Class of 2019+
$7,716,245
$5,685,148
$5,889,449
$11,749,500
$4,660,620
$8,841,430
$10,617,555
$6,546,023
$2,478,910
$64,184,880
Average Amount Borrowed by 2019 Grads**
$76,687
$67,121
$85,802
$93,250
$73,744
$104,213
$100,336
$91,681
$66,763
Average Amount Borrowed by 2018 Grads
$78,465
$63,728
$76,448
$92,993
$82,511
$105,868
$96,529
$101,615
$87,066
% Increase/Decrease in Average Amount Borrowed of 2019 Grads vs. 2018 Grads
2.3% Decrease
5.3% Increase
12.2% Increase
.002% Increase
10.6% Decrease
1.6% Decrease
3.9% Increase
9.8% Decrease
23.3% Decrease
NATIONAL AVERAGE = 72.1 % [total grads/# of FTPJD jobs] (2018=66.2%) % of 2019 Grads Unemployed At Any Job 10 Mos. After Graduation (both seeking and not seeking employment) NATIONAL AVERAGE = 6.4% (seeking only)* (2018=7.3%)
PRIVATE LAW PRACTICE
LAW GRADUATE DEBT
See ABA data at http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2019_law_graduate_employment_data. authcheckdam.pdf *The national percentage includes only those who are unemployed and seeking employment. This chart includes those unemployed who are also not seeking and whose start dates have been deferred as well. **This was obtained at https://www.usnews.com/best-graduate-schools/top-law-schools/grad-debt-rankings + Calculated by multiplying total graduates at each school by the percentage of total graduates at that school with at least one law school loan (from Law School Tranparency data) to determine the number of 2019 graduates at each school with at least one law school loan. The product of that multiplication was then multiplied by the average debt per student from that school who had at least one law school loan.
1 1 | C o l u m b u s B a r L a w y e r s Q u a r t e r l y FA L L 2 0 2 0
Bar Insider
Giving Back
To LASC with Cy Pres awards by: melissa dutton
October is National Pro Bono Month When Greg Reichenbach learned that a class action lawsuit he filed against Santander Consumer USA would result in a sizeable cy pres award, he immediately thought of giving the money to Legal Aid. Reichenbach, a consumer rights attorney in northwest Ohio, has a great working relationship with the Legal Aid Society of Columbus. He co-counsels cases, trades strategies, occasionally receives referrals and presents at training with LASC attorneys. The relationship is “mutually beneficial,” says Reichenbach. “We routinely consult with one another about cases and clients, and it’s helpful to all of us,” he says. “I also enjoy participating in their trainings because there is such a need for attorneys who can help defend consumers from bad deals and dishonest salespeople. There are not enough private attorneys, and not enough resources to allow LASC to help
everyone who needs help.” The class action lawsuit, which was the result of a referral from LASC, dealt with a finance company that did not provide adequate information in its vehicle repossession notices. The settlement agreement wiped away more than $120 million in debt for Ohioans. In addition, Reichenbach directed $150,000 in cy pres funds to LASC. His co-counsel from a Cleveland law firm allocated an additional $150,000 to Cleveland Legal Aid. “I feel good about directing the money there because I know that LASC does important work for low-income Ohioans,” he says. “I’m confident it will be used to help poor people, including many whose circumstances are similar to those who were a part of this case. LASC does a great job with the resources it has, and I am happy to help them continue to do good work.” The award is greatly appreciated, said Kate McGarvey, executive director of Ohio State Legal Services Association, the umbrella organization for LASC. “We can’t thank Greg enough for allocating these funds to Legal Aid,” she says. “The timing of
12 | Columbus Bar Lawyers Quarterly Summer 2020
The LASC consumer team anticipates that COVID-related job losses will make it difficult for people to keep up with their mortgage payments, property taxes, credit card bills and car loans resulting in more foreclosures, lawsuits and repossessions. the award also was helpful as much of Legal Aid’s funding is tied to interest rates and the number of court filings, which have dropped dramatically since the start of the pandemic.” Directing cy pres awards to Legal Aid is just one of many ways that the private bar assists Legal Aid, McGarvey added. “We’re fortunate to have many dedicated professionals who give their time and talent to LASC and Southeastern Ohio Legal Services. Volunteers staff our brief advice clinics, accept pro bono cases and present at our trainings. We are grateful for and humbled by the variety of ways that attorneys support our work and provide opportunities for life-changing impacts for our clients.” Reichenbach’s case focused on the finance company’s failure to include required information in its post-repossession notices. The company did not provide customers with information about the minimum price the company would accept at auction for the vehicle, or details about where
their vehicles would be auctioned. The company also failed to hold a public auction. The notices additionally did not inform customers of their right to an accounting. The class claims against Santander Consumer USA, Inc. included violations of the Ohio Retail Installment Act and the Uniform Commercial Code. He estimates that this case lead to debt relief for about 11,500 individuals and corrections to their credit reports. Reichenbach said he chose Legal Aid as the cy pres recipient because there aren’t enough attorneys to assist consumers—especially those with low incomes. “There is a huge pool of people who are ripped off or harmed in a variety of different ways by wrongful business practices and there are not enough attorneys in central Ohio to take on this important work, including consumer protection cases,” he explains. “The need is much greater than the available resources.” Since he began working with Legal Aid more than
13 | Columbus Bar Lawyers Quarterly Summer 2020
a decade ago, Reichenbach says he has been impressed by the commitment and expertise of the consumer law team. He regularly serves as cocounsel with LASC attorney Jaqueline Gutter. “She’s very committed to her clients,” he says. “She always puts her clients’ interests first.” Reichenbach has served as a great sounding board and mentor, Gutter says. “He has a lot of experience with consumer issues related to car purchases like sales at buy-here, pay-here lots, which often sell lowincome drivers overpriced cars with unfavorable interest terms,” she says. “Greg is always willing to take my call and discuss the facts and help develop legal strategy.” COVID-19 and its devastating impact on low-income Ohioans will likely lead to more consultations and referrals between LASC and Reichenbach, Gutter says. The LASC consumer team anticipates that COVID-related job losses will make it difficult for people to keep up with their mortgage payments, property taxes, credit card bills and car loans resulting in more foreclosures, lawsuits and repossessions. Others will be unable to pay utilities resulting in shutoffs. “All of this will affect individuals’ credit reports negatively, compounding the issues our clients face when trying to gain access to favorable credit,” she says. “We are also concerned about consumers turning to payday loans, specifically those that partner with out-of-state banks that seek to skirt the new payday lending statute.” Car purchases will always be problematic for those with little money, she added. “I anticipate that many of our clients who have lost their jobs will look to the ‘gig’ economy, including delivery jobs that require a car, to supplement their income. Those with bad credit often have no choice but to utilize ‘buy-here, pay-here’ car lots,” she says. “Inevitably, some of those buyers will find themselves in need of legal help.” Buying a car can be a real challenge for low-income drivers, Reichenbach agreed. “It’s a struggle on so many fronts,” he says. “They are overpaying for the
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cars to begin with, then they are paying extremely high interest and often the cars are unreliable, which leads expensive repairs. Unfortunately, clients cannot afford the repair and the car payment and often fall behind.” If buyers have difficulty making their monthly payment or the car breaks down, they often don’t have the resources to research whether there were issues with the transaction or if a lawyer could help, he says. “Often people aren’t even aware there was a problem with the sale,” he says. “That’s what’s nice about a class action suit, it has the ability to help a large number of people.”
Melissa Dutton, Esq.
Legal Aid Society of Columbus mdutton@columbuslegalaid.org
14 | Columbus Bar Lawyers Quarterly Summer 2020
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15 | Columbus Bar L aw yers Quarterly Fall 2020
Shaking It Up:
Perspectives of Attorneys Working From Home The coronavirus pandemic has affected all industries; restaurants are only serving patrons outside, retail stores are moving to a predominately online system and small businesses are finding new ways to reach their customers. Private and public companies have shifted to working from home, with all of the trials, tribulations and flexibility that working from home introduces. Many employees, now, are dealing with a much different work schedule than the one they had gotten used to back in February. Some exclusively work from home, on the standard 9 – 5 shift. Others have an adjusted schedule, having to juggle children who are getting schooling exclusively online this year. Some go into the office every so often, with the bulk of their work being from home. And some still are going to the office every day, on a normal schedule (albeit while wearing a face mask).
For attorneys who are used to face-toface meetings with clients, colleagues and judges, it can be hard to get used to meeting digitally. Coffee hours, late-night strategy sections, work parties and networking events are all happening in a form that many attorneys are unused to. As a profession, the mental shift toward conducting business through applications like Zoom or Skype, or simply over email, has caused stress for some, while being an easy change for others. Everyone has been dealing with the impact of this pandemic differently; outside commitments, workload, technology and personal comfort all vary, so no one view will be the same. To gauge how younger attorneys have been coping with the changes, we reached out to our Young Lawyers committee and asked them to share their own perspectives on dealing with the pandemic.
Todd A. Fichtenberg, Esq. Allison L. Harrison Law, LLC todd@alharrisonlaw.com “I was supposed to get married March 21, 2020‌ but the craziness hit the weekend before. Fortunately, my best friend is also a pastor, so after I packed up my downtown office on March 16, 2020, he married us in a private ceremony with just the three of us in
16 | Columbus Bar Lawyers Quarterly Fall 2020
Highbanks Metro Park. It was definitely interesting navigating working from home and being a newlywed. I used a spare bedroom as an office and my wife used the kitchen table to do remote teaching. “I was in the middle of depositions in a business litigation case that we moved to Zoom, so I kept pretty busy. When I wasn’t in depositions or other hearings, I enjoyed taking an extended lunch with my wife. I’m thankful for the technology that allowed us both to continue working. Technology also helped me keep my morning workout routine as I would walk around the neighborhood talking to my gym partner on the phone or FaceTime. As the months went by, working from home got really old, though, as I missed that ability to separate my home from my work. And now, as my wife returns to teach in person, I have gone back to the office about twice a week, so we’re figuring to a new, new, new normal.”
Breezy M. Warner, Esq. Amy M. Levine, Attorney at Law LLC breezym.warner@gmail.com “I started with my firm the last week of January, taking over the criminal law practice. Not only was I starting at a new firm but I was switching from civil to criminal law, and from practicing in Washington to practicing in Ohio. Then bam, here comes covid lockdown. I have been stressed and pushed well beyond my comfort zone to learn things basically on my own. I feel like a solo practitioner working on my couch. I feel the experience has been at times dreadful but I have learned to adapt and it has forced me to grow and become more confident in my abilities and skills.”
17 | Columbus Bar Lawyers Quarterly FALL 2020
Mazen H. Rasoul, Esq. Rasoul Law Office, LLC rasoul.esq@gmail.com “Being an Immigration Solo Practitioner the past four years has been more like riding a roller coaster. Keeping up with all the Presidential Proclamations, Department of Homeland Security changes, US Attorney General Decisions, Court Injunctions, and other changes has been extremely challenging. With COVID-19, things became even more difficult. While trying to adjust to working from home and avoiding in person meetings with clients, we also had to keep up with even more legal and procedural changes. Immigration Courts announced updates on hearings and court closures through a twitter account on a day to day, then weekly, basis.” “I am thankful for the friends and colleagues who came together through the CBA, AILA, and Facebook groups, to help keep each other informed and updated on all the changes happening around us. These groups were the main factor that helped me adjust and take care of my clients and caseload. There is nothing more important than being a member of strong associations and working alongside with amazing colleagues.”
Todd Fichtenberg, Esq.
Allison L. Harrison Law, LLC todd@alharrisonlaw.com
Breezy M. Warner, Esq.
Amy M. Levine, Attorney at Law LLC breezym.warner@gmail.com
Mazen H. Rasoul, Esq.
Rasoul Law Office, LLC rasoul.esq@gmail.com
For attorneys who are used to face-to-face meetings with clients, colleagues and judges, it can be hard to get used to meeting digitally. Coffee hours, late-night strategy sections, work parties and networking events are all happening in a form that many attorneys are unused to. 18 | Columbus Bar Lawyers Quarterly Fall 2020
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I t ’s a S m a l l W o r l d
Discounting your fees during a pandemic is for
DUMMIES by: bradley miller
And what you should do instead It is 3 A.M. The house is dark and quiet. Your significant other is sleeping soundly on the bed next to you. You suddenly sit up with a jolt, your heart racing and a cold sweat rolling down your forehead. What little sleep you’ve gotten the past few weeks has been sporadic at best. Instead, you lie awake at night wondering if you are going to have enough money to make payroll. What do you tell your staff when
you have to let them go? One of the worst things you can do in an emergency is panic. When you panic, typically one of two things happen. Either your “fightor-flight” instincts kick in and you start making hasty hormone-guided decisions, or you become paralyzed with fear and indecision.1 Neither are helpful when you are trying to respond in an emergency. Many law firm owners have been living in a constant state of emergency since mid-March because of COVID. While law firms were classified as “essential businesses” and able to remain open, new client inquiries and legal work dried up for some firms overnight. Most law firms typically
20 | Columbus Bar L aw yers Quarterly Fall 2020
Instead, find ways to add extra or unique value to your services. If you do estate planning, you could offer lifetime annual check-ins to review whether their planning documents need updating. Or you could provide a concierge service by going to your clients’ homes rather than making them travel to your office. have little if any cash reserves, so the reduction in income has caused many law firm owners to panic and become desperate. Offering Discounts Will Damage to Your Firm
Inflict
Long-Term
Looking at an empty bank account is scary. I have been there. The natural reaction is to focus on ways you can get cash quickly. What can you sell? Can you pick up a second job? Do you really need two kidneys?2 For law firms, that usually means figuring out ways to bring in new work. When you are desperate for work, the common advice is to do whatever you need to get clients in the door. That might include taking on matters outside your core practice areas or offering reduced prices and rates to convince prospects to sign with you.3 The common advice is short-sighted. While offering discounts can provide immediate spikes in income, the long-term damage to the
firm isn’t worth it. Why not?
1. Price is an indicator of quality and value. Most consumers of legal services don’t know what legal services are worth or how to compare one provider from another. Price, therefore, can indicate to them what the value of the services is or should be.4 A high price leads to the perception of high value; a low price to low value. Apple computers are generally priced higher than a comparably equipped Windows PC. Is the Apple computer better? Maybe, maybe not. But the higher price suggests higher quality. Clients that pay more are going to assume the services they are getting are higher quality. Conversely, if you discount your services, that signals that your services aren’t as high of quality. I think I would have a hard time finding a lawyer that didn’t want their clients to feel they are getting high-quality legal services.
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2. A low price can scare people away. If you went online and found two identical mattresses – one for $79 and the other for $579 – which would you buy? You would probably wonder why one is priced so low and be skeptical about it. Is the posting a scam? Is the lower-priced mattress filled with sawdust? It just seems too good to be true. If you charge significantly less for a service than most firms, the natural question is, “why?” Are your services not as good? What does the other firms’ price include that yours doesn’t? Are you selling tires but not including installation? These questions can stick with your firm.
3. If you charge less, you must work more/ harder to make the same amount of money. A discount of 20 percent requires you to sell 25 percent more services just to hit the same revenue. That doesn’t take into consideration any additional costs you incur to provide those extra services such as staffing, supplies or travel. It is therefore better to have fewer clients at higher prices, since you can spend the extra time on business development. This is one of the main arguments, in fact, for raising your current prices. If you double your
fees, for example, you may get half as many clients but you make the same amount of money. The extra time can be spent acquiring new work or completing those back-office tasks that never seem to get done (like annual employee reviews!).
4. Discounting your fees shows desperation. Ever go on a date where the other person was trying too hard to impress you? The night probably didn’t last long. Clients, too, can sense when you are desperate. It will turn many of them away. Those who aren’t immediately repulsed may try to use your desperation to drive further discounts and concessions from you. Worse though, you have lost client control before the work even began. We’ve all had them: the demanding client who wants constant updates, thinks they know more about the law than we do and who tries to tell us how to do our job. Good luck getting them to listen to your advice on the best way to resolve their case. They are a headache and force us to question why we chose law as a profession. Once a client realizes you are desperate for their work, they own you. They know they can push you around and make you jump through their hoops – and you won’t be able to fire them. You will work twice as hard and make half as much money working for them. The money isn’t worth your mental sanity.
22 | Columbus Bar L aw yers Quarterly Fall 2020
5. If you quote a price/rate but then reduce it, it raises questions before the engagement starts.
I used to do trials. Now, I do tribulations.
If you could do the work for $XXX, then why did you initially quote more? Is it because you were trying to overcharge? Or are you not confident about yourself and how you will resolve the client’s issue? What really is the value of your services? Clients hire lawyers because we are the “experts.” They expect us to be confident. If we show a lack of confidence in our pricing, the natural tendency of clients is to question what else we aren’t confident about. If a client doesn’t feel you are confident in being able to help them, they will not hire you.
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6. A discount now leads to the expectation of a discount in the future. Retailers have trained us to shop for sales. They want us to feel that little hit of dopamine every time we see a sale sticker.5 They use it so much that sales are now expected. Remember when JCPenney tried to eliminate sales and instead offer lower prices across the board?6 People stopped shopping, revenue plummeted and the sales tags quickly came back. Offering discounts on your services is a slippery slope. If you offer a discount once, the client will expect one the next time – you have now trained the client to focus on price and getting a “good deal.” If you don’t offer one the next time, that might be enough to send a deal-seeking client elsewhere.
7. Focus on adding value. A friend of mine is an optician. He sells eyeglass frames to optometrists. Unfortunately, his
10/7/19 1:21 PM
business is struggling. One of his competitors is selling frames at a loss. The competitor is forcing my friend to constantly lower his prices. Eventually, my friend is going to get run out of business. Don’t try to compete on price. No matter how much you discount your fees, there will always be someone willing to charge less. A price war is nothing more than a race to the bottom. Instead, find ways to add extra or unique value to your services. If you do estate planning, you could offer lifetime annual check-ins to review whether their planning documents need updating. Or you could provide a concierge service by going to your clients’ homes rather than making them travel to your office. I have an arrangement with an employment lawyer so that my clients get a complimentary 30-minute phone consultation with her (something she already offers new clients). I include this as part of my offer to prospective clients. This is additional value which benefits them and sets my services apart from other lawyers, and the employment
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lawyer benefits from a source of new potential clients.
8. Discount only for your best clients. The only time that a discount is appropriate is if it is unexpected and done on the invoice.7 Only offer it to your best clients for their loyalty or for referring you to others, and clearly indicate it as such on the invoice. This way the discount is a reward and incentive for future work. It is not a play for current work and avoids the issues above.
From https://www.epactnetwork.com/corp/blog/9-things-shouldnt-doemergency/ 2 No, just one kidney is enough. From https://www.scientificamerican.com/ article/how-can-you-live-without/. 3 Prices are fixed fees agreed to in advance, just like the cost of a new car or groceries at the store. Rates are hourly multipliers used when billing by the hour. 4 The pricing strategy of offering a more expensive product than competitors is known as price-quality signaling. From https://www.retently.com/blog/ product-pricing-satisfaction/ 5 Our brains are chemically programmed to respond to sales – the bigger the sale the better. From https://neurotracker.net/2016/12/18/shopping-makesfeel-high/. 6 To refresh your memory, from https://business.time.com/2012/05/17/whyjcpenneys-no-more-coupons-experiment-is-failing/. 7 I realize some lawyers offer discounts to non-profits or low-income clients. That is fine as long as you are doing it on your own terms and realize the client will probably expect a discount next time too. 1
Bradley Miller, Esq.
Miller Law, LLC brad@bradleymillerlaw.com
24 | Columbus Bar L aw yers Quarterly Fall 2020
Points of Practice
Ohio’s Medical Marijuana Program
Four Years In - Where We’ve Been, and Where We’re Going by: walter (chad) blackham
House Bill 523, ‘The Ohio Medical Marijuana Control Program’, was passed on Sept, 8, 2016 and created a landmark system for legalized medical marijuana in Ohio. H.B. 523’s intent was to swiftly set up a medical marijuana regime to address patient needs as well as capitalize on the enormous economic opportunity of this growing industry. In reality, the program was subject to overambitious start dates, staggered openings and other issues impeding full deployment. However, the program has also seen notable
improvements since then, and there is reason to be hopeful about its continued future success. Now that we’re four years in, it’s a good time to take a look at where the program was, and where it’s going. H.B. 523’s proposed structure was simple and favored a so-called “seed-to stem” approach that would track the marijuana plant from when it was a seed up to the time it was sold. Under the regime, cultivators were to grow cannabis to be sold to processors and dispensaries. Through various methods of extraction, processors would turn cannabis into different products such as tinctures and capsules to be sold at dispensaries. Laboratories
25 | Columbus Bar L aw yers Quarterly Fall 2020
would test products throughout the supply chain to ensure product integrity. Dispensaries would sell products and interface with caregivers and end-user patients. At the time it was launched, Ohio’s plan differed from many other states by favoring a multiregulatory approach to oversee the industry. The Department of Commerce was to have jurisdiction over cultivators, processors and laboratories, while the Board of Pharmacy would license and oversee dispensaries. The State Medical Board would regulate how physicians could recommend marijuana (yes, recommend and not prescribe - more on that in moment), and determine what conditions qualified a patient for medical marijuana use. The bill also created a new Medical Marijuana Advisory Committee to oversee the entire program and issue recommendations for improvement. The application process was arduous. Prospective licensees had to submit a business plan, an operations plan, a security plan, a quality assurance plan, and a financial plan. While the full regulations were not yet drafted, they would go on to describe rigorous security, training and business operation standards. And the process was expensive. A “Level I” cultivation license permitting the awardee to grow up to 25,000 square feet of marijuana required prospective cultivators to pay a $20,000 fee just to submit their application, with a $180,000 licensing fee and a $200,000 annual fee stacked on top if they were successful. The program was also highly
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competitive due to the limited number of license awards. The bill also arrived during a time of political uncertainty. Then-U.S. Attorney General Jeff Sessions was an outspoken critic of the marijuana industry, and many states had seen mixed success with their regulatory efforts. Marijuana also remained a Schedule I substance federally, which is
But there is great reason to be hopeful for the program’s continuing success. The Medical Marijuana Control Program brought in $58.3 million in sales during its first year. Projections estimate that the program could make up to $161 million in 2020 alone, and potentially up to $1.3 billion in 2025. 26 | Columbus Bar L aw yers Quarterly Fall 2020
why Ohio doctors could only recommend, and not prescribe, marijuana. There was one bright spot at the federal level, however, in that the RohrabacherFarr amendment continued to prevent the allocation of funds to the Department of Justice for purposes of prosecuting state-compliant cannabis regimes.
2019, the first Ohio dispensary opened its doors. In July 2019, the Ohio Legislature passed Senate Bill 57 decriminalizing hemp and instituting a legal framework for hemp licensing and cultivation, while also allowing retailers to sell hemp derived products like CBD.
H.B. 523 put forth an ambitious timeline to establish a well-regulated marijuana industry within two years. However, amid delays involving errors in grading, licensing disputes and missed regulatory deadlines, the program failed to meet its target launch date of Sept. 8, 2018. What had been a hard start date was now a hard sell, as the program transitioned into a soft rollout.
Initial sales figures for the program were modest. Jan. 27, 2019’s first-day sales totaled only $75,000 (compare this to the $3.2 million Illinois brought in on its first day of recreational sales). The application process remained ongoing, with provisional licenses still being awarded to dispensaries so they could begin construction. As of November 2019, figures published by the Board of Pharmacy stated that there were only 69,084 registered patients, despite some sources indicating up to 3.5 million Ohioans could be eligible for medical marijuana use, and only 45,987 registered patients had actually purchased medical marijuana. The tight supply of licensed cultivators, processors and dispensaries also kept prices high, in some cases costing patients up to$3,840 for a 90-day supply of cannabis with no insurance coverage.
But, despite delays dogging the Ohio Medical Marijuana Control Program, it pushed forward. In late 2018, Ohio launched its Medical Marijuana Patient and Caregiver Registry. Final regulations and rules for participants were promulgated by the Department of Commerce and the Board of Pharmacy. And then came one of the biggest changes in federal marijuana policy in decades. The 2018 Farm Bill legalized production of hemp, defined as marijuana containing less than .3 percent tetrahydrocannabinol, and hemp-derived cannabidiol for licensed cultivators who produced hemp in accordance with a state-made plan approved by the U.S. Department of Agriculture, and in compliance with applicable state law. In January
Nevertheless, the program continued to advance. The number of cultivators, processors, dispensaries, patients, caregivers and physicians recommending marijuana climbed throughout the end of the year and into the beginning of 2020. And then, as the COVID-19 pandemic struck, numbers began to
2 7 | C o l u m b u s B a r L a w y e r s Q u a r t e r l y FA L L 2 0 2 0
surge in cannabis regimes throughout the nation. Illinois top cannabis regulator Toi Hutchinson took note of the trend, claiming the marijuana industry is “recession-proof” and “pandemic-proof.” As of July 2020, the Ohio Board of Pharmacy stated that 159,513 physicians had recommended marijuana, the number of registered patients had climbed to 125,087 and 100,224 unique purchases had been made. As Ohio’s Medical Marijuana Control Program enters its fourth year of operation, some issues must still be tackled. Marijuana businesses must continue to open shop, adjust operations for the COVID-19 pandemic, and efforts must be made to bring the cost of marijuana down for patients. More cultivation licenses could be issued to smaller grower operations and farmers to accomplish just that, and to avoid precluding small businesses from the industry. There is still general confusion among Ohioans about how to obtain medical marijuana cards, and the costs for obtaining one can be prohibitively high to patients of lower socioeconomic means.
program’s continuing success. The Medical Marijuana Control Program brought in $58.3 million in sales during its first year. Projections estimate that the program could make up to $161 million in 2020 alone, and potentially up to $1.3 billion in 2025. The Board of Pharmacy continues to add new qualifying conditions for medical marijuana use, ensuring even more patients get the help they need. The Ohio Medical Marijuana Control Program may have had a rocky start, but the Ohio Legislature and the governing agencies should be commended for tackling a complex issue that from a healthcare, business and social equity perspective improves the lives of millions of Ohioans. As rollout continues, so too will increased sales and patient access. Four years in, there is great reason to be optimistic about the future of the Ohio Medical Marijuana Control Program.
Walter (Chad) Blackham, Esq.
But there is great reason to be hopeful for the
Mac Murray & Shuster, LLP cblackham@mslawgroup.com
When judges are
on the ballot, be informed. Learn about the candidates for judge before you step into the voting booth this November. The Columbus Bar Association’s Judge the Candidates website will help you make an informed decision when it is time to elect judges for Franklin County courts.
>> Visit www.JudgeTheCandidates.org
28 | Columbus Bar L aw yers Quarterly Fall 2020
Vote on Tuesday, November 3
Points of Practice
Marketing in the COVID Era
Are your calls and texts legally compliant? by: erica hollar
Times are changing. In the midst of a pandemic, our world is looking very different these days. Not only are restaurants and shopping centers required to adapt to this new normal, but so are lawyers. We have been challenged by how to conduct in-person meetings, network and build our practices. Professional conferences have been cancelled, and court hearings have been postponed, but the show must go on. One thing that attorneys are challenged with now more than ever is how to communicate with their existing clients and how to gain the business of new clients. Face-to-face meetings and in-person lunches may not be possible; people are keeping social distance, and everyone is being asked to put more and more on their plates to fight the economic struggles resulting from COVID-19. Whether you work with corporate or individual clients, one thing is for sure: to be successful today, you must find new and effective ways to connect. For some clients, phone calls are becoming a nuisance, and in some instances, email is even on its way to becoming archaic. Working from home has also affected how people are communicating. The hard boundaries between professional and personal lives have blurred for those who are faced with juggling even more complex and competing needs of family and work. As a result, some businesses have turned to using more informal means of communication, with many beginning
to focus on text messages as a means of communicating and advertising. It’s fast paced, effective and relatively inexpensive. But what does this mean for you as attorney? Depending on how you promote your services, it could mean large fines or even a class action lawsuit if not done properly. Text messages, as well as certain phone calls and faxes, are governed by a federal regulation known as the Telephone Consumer Protection Act.1 The TCPA places restrictions on the use of automatic telephone dialing systems (ATDS) and artificial or prerecorded voice messages. Generally, the TCPA prohibits using an ATDS or prerecorded message to contact cell phones, including telemarketing messages sent using an ATDS, unless the recipient has provided “consent” to receive the call/text. For those who work in the telecommunications area, it’s no secret that the TCPA carries hefty fines—violations can result in penalties of up to $500 per violation, with willful violations trebled
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For some clients, phone calls are becoming a nuisance, and in some instances, email is even on its way to becoming archaic. Working from home has also affected how people are communicating. The hard boundaries between professional and personal lives have blurred for those who are faced with juggling even more complex and competing needs of family and work. up to $1,500 per violation. While news headlines focus on major corporations and their record penalties, those same restrictions apply to small and mid-size businesses as well and can impact them in devastating ways. There is no cap on statutory damages, so depending on the breadth of your communications, violations can result in hundreds of thousands or even millions of dollars in penalties. In addition, many commercial general liability and other business insurance policies explicitly or implicitly exclude coverage for TCPA claims. How can attorneys protect their firms as they look to creative ways to build a client base, including
using text messaging? ATDS: What constitutes an ATDS has been the subject of intense litigation and a clear answer still does not exist. In fact, the ATDS definition is the subject of the Facebook v. Duguid, et al case currently pending before the U.S. Supreme Court. A generic smartphone such as an iPhone is not an ATDS by itself, but any other type of dialing equipment or texting platform should be carefully analyzed. Consent: Before calling or sending a marketing text to a potential client, unless an exemption applies, you must obtain prior express written
30 | Columbus Bar L aw yers Quarterly Fall 2020
consent. There are many ways to do this, but it is critical that a consumer affirmatively consents to receiving promotional or mixed promotional/ informational calls/text. Generally speaking, consent must be obtained in a signed, written agreement. The agreement must specifically indicate the caller(s) to whom consent is being provided and must include the cellular telephone number at which the person consents to receive calls/ texts. The individual must take some affirmative action to indicate their assent. In addition, the agreement must clearly and conspicuously disclose that the person is authorizing the caller to make telemarketing calls, that calls will be made using an ATDS (or prerecorded message, if applicable), and the person is not required to provide consent as a condition of purchasing any services. Depending on a lawyer’s practice, this could be accomplished on an inquiry form on the firm’s website or even in an engagement letter for marketing of future services so long as the consent language is clear and conspicuous, and the consumer’s consent is given specifically for the communications. Check before you text: Before engaging in a text campaign (or making any other calls that would be subject to the TCPA), callers must regularly scrub their databases against the National DoNot-Call Registry, unless an exemption applies, and against their own internal Do-Not-Call list. Callers must also take the possibility of reas-
signed cell phone numbers into account; TCPA liability can apply to calls/texts to the holder of a reassigned number even if the previous holder of the number gave their consent. Keep consent records: Just as consumers can give consent to receiving text messages, they can revoke their consent in any “reasonable” manner. However, there is no precise definition of what is
Your trusted advisor in • Structured Settlements • Trusts Services • Taxable Damage • Mediations • Structured Attorney fees Michael W. Goodman, Esq. CSSC mgoodman@nfp.com
Claire B. DeVan, CSSC cdevan@nfp.com
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considered “reasonable.” Businesses, including law firms, must have a process in place to capture and implement revocations of consent. The caller has the burden of proof to show that the consumer provided written consent to be called and that it was not revoked. All records should be kept for at least five years from the last date the consent is relied upon to make a call. Confirm insurance coverage: Coverage for TCPA-related claims is often excluded from standard business insurance policies, but it is available. If text campaigns or any other calls subject to the TCPA are an integral part of your business or a way your firm is looking to market in the future, you should check with your broker, as the cost of TCPA coverage may be well worth it. The TCPA and other state and federal teleservices regulations form a complicated structure that requires specific knowledge and experience to successfully navigate. Before conducting a calling or texting campaign, seek the advice of skilled TCPA counsel so that you can conduct your campaigns with confidence and focus on growing your practice.
1
(TCPA; 47 U.S.C. § 227)
Erica Hollar, Esq.
Mac Murray & Shuster, LLP ehollar@mslawgroup.com
32 | Columbus Bar L aw yers Quarterly Fall 2020
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Bar Happenings While the CBA continues to operate remotely, we look forward to welcoming our members back in the near future!
Attorney Fred Benton at Community Conversations: Jury Selection , Sentencing & Specialty Dockets
Managing Partners’ Diversity Initiative Annual Meeting 2020
Attorney Don Gregory presents “Teddy Roosevelt: Law in Turbulent Times” live interactive CLE
“Ask the Attorney ” volunteers
Community Conversation on Probation and Parole
Probate Law Institute 2020: View from the Bench
34 | Columbus Bar L aw yers Quarterly FALL 2020
Bar Happenings
What’s Next @ the Bar? For a complete list of events, CLE programs and meetings, visit www.cbalaw.org.
FALL 2020
nov
5-6 nov
7
nov
12 nov
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20 dec
7
2020 Bankruptcy Law Institute Live on Zoom • 9.0 CLE Hours, with 3.5 Professional Conduct Hours Bankruptcy cases are on the rise, and this year’s Bankruptcy Law Institute is here to educate, inform, and inspire. Join us to hear the latest caselaw, cutting edge trends, hot topics, and exceptional instructors. Register: www.cbalaw.org/cle
CBA 5K Virtual Run/Walk Co-sponsored by the CBA Young Lawyers Committee The CBA 5K is a virtual race in support of the Columbus Bar Foundation. If you registered for the event, upload your finish time before midnight on November 8 to be eligible for prizes! Report your finish time at www.cbalaw.org/5K
Community Conversations: Elections & Voting 12:00-1:30pm on Zoom • Popular Vote vs. Electoral College Please join us for the second conversation in our 2-part Community Conversations series on Elections & Voting. All members of the community are invited. Register: www.cbalaw.org
Live CLE Webinar: 2020 Eastman & Smith Employment Law Update 1:30pm-4:45pm on Zoom • 3.0 CLE Hours It is a different world for employers and employees. Join seasoned attorneys from Eastman & Smith to learn all about navigating employer liability in the age of COVID-19. Register: www.cbalaw.org/cle
Live CLE Webinar: Dinsmore In-House & General Counsel Symposium 9:00am-4:45pm on Zoom • 7.0 CLE Hours, with 2.5 Prof. Conduct Hours From corporate governance to Title VII and LGBTQ workplace rights, this program will touch on every area in-house and general counsel need to know and understand. Register: www.cbalaw.org/cle
Live CLE Webinar: Ethical Pitfalls of Law Office Computing 12:00pm-2:00pm on Zoom • 2.0 Professional Conduct CLE Hours Practicing anywhere is no longer just a dream, BUT with that reality comes responsibility and risks. Learn the rules for taking reasonable precautions to protect client information along with tangible and affordable solutions for your practice. Register: www.cbalaw.org/cle
35 | Columbus Bar L aw yers Quarterly FALL 2020
Fall ‘20: The Impact of the Pandemic
Human Trafficking
In Columbus Amid the COVID-19 Pandemic by: heidy carr
Disclaimer: Human trafficking occurs in many different ways, to many different people. There is no set method traffickers use to exploit their victims. Much of the information used in this article talks about sex trafficking in Columbus, Ohio, and specifically, women who have had contact with the courts. The information used here is not to reflect all types of trafficking that occur. Words such as “women” used for victims of human trafficking and “Johns” used for men who buy sex are used here in a generalized manner. There are many boys and men that are sold into sex, as well as women who buy sex or who traffick victims.
From illnesses and deaths to business closures and jobs lost, the coronavirus pandemic has affected all of us. As the world tries to rebound from the ongoing damages of COVID-19, human traffickers have profited from this pandemic in many ways. Stay-at-home orders increased demand and exploitation The stay-at-home orders in many states, while beneficial for the health and well-being of the greater population, contributed to traffickers’ ability to exploit their victims. With more people staying at home, Johns included, offenders have had more time to roam the streets and purchase sex. This climate has made it easier for Johns who are unemployed due to COVID to target victims. Stay-at-home orders have not only impacted the demand of the human trafficking industry, but also the number of victims. Young people are
Stay-at-home orders have not only impacted the demand of the human trafficking industry, but also the number of victims. Young people are already incredibly vulnerable to trafficking – more than 60 percent of women in prostitution are trafficked before their 18th birthdays. And the pandemic has made children even more susceptible. 36 | Columbus Bar Lawyers Quarterly Fall 2020
already incredibly vulnerable to trafficking – more than 60 percent of women in prostitution are trafficked before their 18th birthdays. And the pandemic has made children even more susceptible. Right now, many young people have been taking part in virtual learning due to school buildings being closed. As a result, screen time has increased, and kids are spending more time on the internet, which is a primary way for traffickers to make contact with potential victims. Over the internet, traffickers build connections with kids they intend to exploit. Traffickers can act as “boyfriends” by buying victims gifts and taking them on trips, or as respected father figures. Ultimately, traffickers want to entice their victims to meet them. Meetings usually lead to the introduction of different types of drugs, and then to traffickers pressuring victims to pay back what they “owe” those taking advantage of them. The pandemic has decreased advocates’ facetime with victims Because victims of human trafficking are so controlled by their traffickers, outreach is extremely important. These women have many needs, including medical, dental, psychological, etc., which can be met by outreach and advocacy programs. Their connections to these important resources were dramatically decreased by the pandemic and subsequent shutdown because advocates
could no longer meet trafficking victims face-to-face. The pandemic has also drastically reduced the amount of facetime and services provided by law enforcement. Law enforcement officers conduct outreach alongside other programs to help provide women with information and education on human trafficking. Many women do not realize that they are being trafficked, or that soliciting is illegal. Law enforcement officers’ interactions also help build trust with victims. Most officers that victims come into contact with are men, and so are their traffickers. Victims become so afraid of men, and especially men of authority, due to the trauma and abuse, that they tend to avoid police. With officers’ efforts to provide compassion, not abuse or aggression, victims are more open to intervention. After this
trust is built, women help provide information about Johns and the men trafficking them that can lead to arrest. Recently, one such interaction even led to a homicide case being solved. A balancing act: reducing the jail population while helping trafficking victims We know that jails in the United States are overcrowded. Conversations around reducing the jail population recently increased with efforts to mitigate inmates’ exposure to the coronavirus. As a solution, some cities, including Columbus, have adopted a policy to stop arresting individuals for low-level, nonviolent offenses. This is a policy that was being considered by the City Attorney’s Office and was accelerated by the pandemic. Running in tandem to this discussion is the reality that arresting women for soliciting, a non-violent crime, can actually
37 | Columbus Bar Lawyers Quarterly FALL 2020
help them long-term. Changing Actions to Change Habits (CATCH) court graduates often say that jailtime has saved their lives. Because victims are afraid to voluntarily connect with programs to help them escape or seek help, arrests can be seen as a safer option for them to access vital resources. When trafficking victims are arrested, they are placed in front of treatment teams and defense attorneys. In Columbus, Court and Salvation Army advocates visit suspected trafficking victims, helping connect them with health care, counseling, h o u s i n g , treatment and a path out of trafficking. Separating victims from their traffickers for just 72 hours can help change their lives. Over the last few months, Columbus has seen a decrease in trafficking arrests, though we know there is no decrease in trafficking activity. The City Attorney’s Office has been working with Columbus Police to balance the new arrest policy with the complexities of trafficking. The City Attorney’s Office is supportive of taking a case-bycase approach to arresting suspected victims of trafficking. The City Attorney’s Office continues to support appropriate arrests and issuing bonds to protect these women and get them the help they need. The pandemic’s impact on victims in treatment The coronavirus pandemic has created a sense of isolation where crucial connection once existed. Victims of human trafficking who are in treatment
rely on a sense of “family” for support. Since March of this year, the majority of their interactions with anyone, including their counseling and treatment appointments, have been online. Face-to-face connections are crucial for all human beings, but it may be argued that it is more crucial for this group of women due to the trauma and abuse they have experienced. Although some programs are starting to open back up and some tried to be virtually available, many staff members of those programs have seen the negative impacts the pandemic has caused. These women often want to leave but feel drawn back in due to trauma bonding and fear. To put it into perspective, at the beginning of March of this year, CATCH Court had 38 participants. It is now down to 21 participants due to women either running from CATCH or opting out. In spite of all that, what this pandemic has revealed is that no matter what happens with our economy, social unrest, school closings or unemployment, victims continue to be sex trafficked. And they continue to need our help. Credits: CATCH Court participants and graduate; Hannah Estabrook, CATCH Court coordinator; Judge Paul Herbert, Judge of the Franklin County Municipal Court, and Founder of CATCH Court; and Aaron Dennis, Human Trafficking Taskforce Detective.
Heidy Carr, Esq.
Assistant City Attorney, Zone Initiative Columbus City Attorney Zach Klein’s Office HTCarr@columbus.gov
38 | Columbus Bar Lawyers Quarterly Fall 2020
T h e C o l u m b u s B a r A s s o c i a t i o n i s O h i o’ s N o t a r y P u b l i c R e s o u r c e C e n t e r
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The Columbus Bar Association is an authorized education and testing provider for traditional notaries under the Ohio Notary Public Modernization Act. If you want to become a notary public or renew your existing commission, we’ll assist you with each step of the process. From your background check and required education and testing to your stamps and supplies – we are Ohio’s Notary Public resource center.
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Fall ‘20: The Impact of the Pandemic
The
NOVEL
Pandemic Jurisprudence by: quintin lindsmith
This is not our first pandemic rodeo. But it may as well be, because virtually no one was around when our nation’s first pandemic hit 102 years ago. Still, reports from then reveal surprising similarities in how the country reacted to the pandemic. Mask-wearing was mandated by law in some regions, but not others. There was even violence over maskwearing, including an incident where a board of health special officer shot a man for refusing to wear a mask. (The officer paid a $5 fine and the mayor had to pay a $50 fine.)1 And there was resistance to mask-wearing, including the
formation of an “Anti-Mask League.”2 The worst of the flu hit just before the 1918 midterm elections, and some polling places did not even open because “there were not enough citizens who were well enough and willing to serve on the election board during the influenza pandemic.”3 At polling places that were open, people were advised to enter “one or two at a time,” and instructions urged “not congregating at the polls and avoiding needless exposure.”4 But one area of significant difference between the 1918 flu and the current pandemic is the involvement of the courts and the development of the law. The almost complete absence of precedential residue from the first pandemic suggests there was relatively little litigation directly related
There may be several reasons why there was so little flu-related litigation during and after the first pandemic. Overall, the U.S. was a much less litigious society in 1918. That is partially because the jurisprudence in a number of areas was undeveloped or non-existent. 40 | Columbus Bar Lawyers Quarterly Fall 2020
to the pandemic. But this time around, by August this year, there have been almost 4,300 COVID-related lawsuits filed in the United States just since the end of February, with 883 filed in New York, 572 filed in California and 159 filed in Ohio.5 Over 230 are employment related,6 and according to one trade publication, COVID-related business interruption lawsuits have topped 700 and are not slowing down.7 The breadth and variety of COVID-related litigation is astonishing. Four class action lawsuits have been filed against China, seeking literally trillions of dollars. Fox News was sued for violating Washington State’s Consumer Protection Act after asserting in broadcasts in February and March that the novel coronavirus was a hoax.9 The NRA filed a federal lawsuit over Governor Cuomo’s executive order deeming gun stores “non-essential.”10 A non-profit physicians group filed a federal lawsuit seeking an order that meat and poultry processing plants test their products for COVID-19.11 With this enormous amount of litigation, one might hope there would be some pandemic jurisprudence to draw upon from 1918. Do not even bother looking.
According to one source, a search of U.S. Supreme Court precedent from that era found only five cases in some way involving the pandemic.12 But even in those cases, the pandemic was only a tangential footnote as to why something happened. One case resulted in a finding that the murder confession of a Chinese immigrant while in police custody was inadmissible, because the defendant was extremely ill with influenza. In two other cases, veterans’ wives unsuccessfully sought influenza-related federal insurance benefits, but the actual issue on appeal involved defects in the jury trial.13 Another case involved the denial of a life insurance claim by the widow of an Army doctor, because the doctor had failed to list the after-effects of influenza as a preexisting condition in the life insurance application submitted in 1927.14 No great precedential insight there. There may be several reasons why there was so little flu-related litigation during and after the first pandemic. Overall, the U.S. was a much less litigious society in 1918. That is partially because the jurisprudence in a number of areas was undeveloped or non-existent. For example, while there existed a rough form of class action, Rule 23 was not introduced into the Federal Civil Rules until 1938. Before then, there
was only Rule 48, dating to 1842. It was all of two sentences and had no specific class certification requirements, no reference to the appointment of class counsel, and still allowed “absent parties” to bring their own separate lawsuits. Similarly, business interruption policies had not been fully developed to their modern form, although the concept of “consequential costs” in policies had been around since 1797, when such a policy was first introduced in Britain.15 The insurance industry’s resistance to paying for economic losses was driven by the fact that modern accounting standards were not introduced until the early twentieth century and the financial records of businesses were generally considered unreliable.16 That is partially why the modern form of business interruption coverage did not emerge until almost twenty years after the 1918 pandemic.17 During the first pandemic, workplace safety laws were almost non-existent. Workers injured on the job had difficulty winning lawsuits in a legal environment where employers were permitted to show that the worker had assumed the risk, had been injured by the actions of a fellow employee, or had been partly at fault.18 When worker compensation laws were enacted by most states between 1911 and 1921, even that litigation went away. Still, a handful of federal laws had been enacted to establish workplace safety. But they were directed to only a few industries, such as railroads and mines, and the protections were very limited.19 The National Labor Relations Board would not be established until 1935 and the Occupational Safety and Health Act would not be enacted until 1970.
So, as counsel today are retained to pursue or respond to COVID-related litigation, they will find virtually no helpful precedent from the first pandemic. Over the next 10 years, we will likely see this legal vacuum filled with the creation and evolution of a pandemic jurisprudence that has never existed before, just like COVID-19. It will be a jurisprudence which will hopefully aid society when the next pandemic comes around, which some health professionals say may be coming much sooner than every 100 years. “When Mask-Wearing Rules in the 1918 Pandemic Met Resistance,” www.history.com, May 6, 2020. 2 Id. 3 Sacramento Bee, “Polls Not Open in This Precinct, Too Much Influenza,” November 6, 1918. 4 “Voting During a Pandemic? Here’s What Happened in 1918,” CBSN, April 7, 2020. 5 COVID-19 Complaint Tracker, Hunton, Andrews, Kurth, as of August 13, 2020. 6 “COVID-19 Lawsuits and Claims Increasing in Courts Nationwide,” Littler Mendelson, P.C., June 23, 2020. 7 “COVID BI Coverage Suits Top 700; Yep, That’s A Lot,” July 30, 2020, www.cerriermanagement.com/news/2020/07/30/209635.htm. 8 “At Least Four Class-Action Suits Filed Against China, Seeking Trillions Over Corona Virus Outbreak in U.S.,” www.newsweek.com, April 16, 2020. 9 “Fox News Faces Lawsuit for Calling COVID-19 a ‘Hoax,’” www.forbes.com, April 10, 2020. 10 “NRA Loses Lawsuit Fighting Gun-Store Closures Amid Corona Virus,” nypost. com, August 14, 2020. 11 “Lawsuit: COVID-19-Contaminated Meat Carcasses are Packaged, Carried to Consumers,” Yahoo Finance, August 12, 2020. 12 “The 1918 Flu Pandemic and High Court Jurisprudence,” www.law360.com, March 27, 2020. 13 Id. 14 Id. 15 “History of Business Interruption Insurance,” cms.Imigroup.com. 16 Id. 17 Id. 18 “History of Workplace Safety in the United States, 1880-1970,” EEH.net (Economic History Association), by Mark Aldrich, Smith College. 19 Id. 1
With only rudimentary class actions that may have been pointless, with no business interruption insurance to fight over and with few workplace safety laws to follow, there were simply not as many legal avenues that would support flurelated lawsuits a century ago, even though the types of injuries and damages then would likely be no different than they are now. 42 | Columbus Bar Lawyers Quarterly Fall 2020
Quintin Lindsmith, Esq.
Bricker & Eckler LLP qlindsmith@bricker.com
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Fall ‘20: The Impact of the Pandemic
Getting used to the
“New Normal” by: gwen bocher
I am a French native who moved to the United States in 1999. It instantly became my country. I like everything about it. When 9/11 happened, it was very weird to be French in the U.S. I suddenly felt stuck in a country that was not mine. I felt like a foreigner. I desperately wanted to go home, but I stayed. And 21 years later, another major national crisis struck: COVID-19. How to react? What is social distancing? How do I handle social isolation? When do I wear a mask? Who do I listen to? I got to experience living through a global pandemic with a foot on two continents. Here is what I learned: Except for introverts and hermits, most people do not like being alone. Whether in Europe or in the U.S., people tried to get together. They were told to stay apart, so they found new ways to get together while staying physically apart. In Italy, people sang together on balconies. In France, they played music. In the U.S., they clapped for the healthcare workers, all together, every day at the same time. We have that innate need for community. We need to belong. And yet, interestingly, before COVID-19, when we could freely be together, we did not really want to be… Now, all of a sudden, everyone is missing grandma! We are missing jury duty! Or the first-grade concert that was planned after spring
break! Our coworkers! The paradox of social isolation… How do I stay informed? I decided to stay informed through social media. The news is just too gloomy and scary. The French cannot go out without an official authorization, cannot travel more than 100 kilometers from home and cannot go grocery shopping where they want. On the other hand, the Americans are sharing where to find toilet paper and what is the best recipe for bread. From the pictures I see, everybody seems to be okay. From France, the message I get is: do not take Ibuprofen. Here in the U.S., Ibuprofen is great for fever control. Who should I listen to? What a headache! Let us take Acetaminophen to be safe. Occasionally, a clip of an official newscast will play and reinforce the seriousness of these times of considerable uncertainty and unknown consequences. Do I put my trust in
44 | Columbus Bar L aw yers Quarterly Fall 2020
health officials? The government? Who do I turn to? The paradox of truth and falsity of healthcare information… Do not get me started on masks. The panic over masks is global. It does not matter your ethnicity, gender, age and/or other personal identities, the dilemma is real. We were all encouraged to NOT wear a mask when going out and only wear one if infected. When told to wear one, we had different reactions. The French did not really debate it or discuss it, they just did it. In the U.S., it was another story. It was a whole cultural study to watch it unfold. I got so many phone calls from friends and relatives asking for an explanation regarding what they were reading in the news; it was tiring. At the same time, it was also kind of funny and made me smile (not that you can see a smile when you are wearing said apparel). The paradox of the mask… And the hardest one, social distancing. Social distancing means keeping a safe distance between yourself and other people. That was a new concept! How are we going to greet each other? No more “bise” (giving a kiss on the cheek, a regular form of greeting in France), no more hugs, no more handshakes. How will we survive? How do I stay away from people? Then came along the stay at home orders, shelter in pace and confinement. If I must stay six feet apart from the next person, how will I reach for my drink at the bar? How will my child finally get out of the house and go back to school? On both continents, it seems to be the hardest change to handle. The paradox of social distancing… In the end, whether you are in Europe or in the United States, the pandemic is here and it is scary. And yet, we have found surprising ways to cope. Perhaps most surprising is how quickly we adapt
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to the constantly changing circumstances. Have you caught yourself watching a movie or a sporting event and being astonished at the crowds and/or the absence of masks? We are now living in what some dread is the “new normal.” I do not know about you, but I kind of like it. I don’t have to kiss or hug people. I don’t even have to see them in person. Despite this, part of me would give anything to go back to the “old normal.” The paradox of being a human…
Gwen Bocher
Kohrman Jackson Krantz gfb@KJK.com
In the end, whether you are in Europe or in the United States, the pandemic is here and it is scary. And yet, we have found surprising ways to cope. 4 5 | C o l u m b u s B a r L a w y e r s Q u a r t e r l y FA L L 2 0 2 0
Fall ‘20: The Impact of the Pandemic
When are my employees unable to work under the FFCRA? by: alexa cellier
Many employers are aware of the unique childcare leave provisions of the Families First Coronavirus Response Act. But it is difficult to navigate the “ins and outs” of these provisions now that many childcare centers, as well as other businesses, have reopened. One way to explore the leave provisions is to run through some real-world examples you might encounter.
Background With respect to covered employers, the FFCRA provides up to two weeks of emergency sick leave for an employee who, among other reasons, is:
“unable to work () due to a need for leave because . . . The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.”1 In addition, the FFCRA provides an additional 10 weeks of expanded family and medical leave for an employee who is: “unable to work () due to a need for leave to care for the son or daughter . . . if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”2 The regulations highlight the requirement that the “Child
In summary, when applying the leave provisions of the FFCRA, you should focus on its broad remedial purpose and look for opportunities to be flexible and make voluntary arrangements with your employees requesting leave. 46 | Columbus Bar L aw yers Quarterly Fall 2020
Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19.”3 Both types of leave are paid at two-thirds the employee’s regular rate of pay. A “child care provider” is a provider “who receives compensation for providing child care services on a regular basis” and who is licensed, but “the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.”4 The temporary rule narrows the statute with respect to both types of leave by stating that the “Child Care Provider is unavailable, for reasons related to COVID-19 only if no other suitable person is available to care for the Son or Daughter during the period of such leave.”5 There are some eligibility requirements and exceptions that are not covered in detail here, so please check with your counsel before making any FFCRA leave-related decisions.
Scenario 1 Suppose you have an employee whose mother provides free childcare for his son. Grandma is scheduled to get surgery, but your employee is not comfortable with his
son possibly exposing Grandma to COVID-19 prior to that surgery. The employee’s wife is a nurse with potential exposure to COVID-19. Your employee believes he will need roughly three weeks off work to watch his son while Grandma prepares for and recovers from surgery. Is Grandma a childcare provider? Is she unavailable due to COVID-19 related reasons? Most importantly, do you need to provide any leave under the FFCRA? First, Grandma is probably a childcare provider so long as she provides care on a regular basis to the employee’s son.6 Second, she is likely unavailable due to COVID-19 related reasons. That phrase is undefined in the statute and regulations, but the preamble to the temporary rule focuses on the broad remedial purpose of the statute and the goal to help “parents avoid extra childcare costs that they otherwise may have to incur.” Third, while the employee must certify there is no other suitable person available to care for his son, DOL FFCRA FAQ # 69 limits that person to a co-parent, co-guardian, or the “usual” childcare provider—in this case, Grandma. Unless one of the statute’s exemptions applies or the employee has exhausted his leave, you will likely need to provide paid leave under the FFCRA. But don’t be dismayed! The DOL allows for some flex-
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ibility. If the employee can telework, you may want to explore the possibility of using FFCRA leave intermittently when the employee does not need to actively care for his son.7 “The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.”8
Scenario 2 Suppose you have an employee who holds only one of two positions in your company requiring special skills, but most of her work is manual labor. That employee’s daughter’s daycare is closing for two weeks due to a positive COVID-19 test in one of the children. The employee’s husband is an essential worker and cannot watch the daughter. Your company has only 40 employees, and it will be difficult to make up the work the employee won’t be able to do for those two weeks. Do any exemptions under the FFCRA apply? There is an exception for employers with fewer than 50 employees if granting the leave would jeopardize the
viability of the business as a going concern. There are three ways granting such leave might jeopardize the viability of the business: (1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity. The preamble of the rule indicates the DOL will interpret this exemption narrowly. For instance, the DOL considered a “less restrictive” regulatory alternative for all small employers, but it decided “requiring small businesses to demonstrate that the viability of their business will be jeopardized if they have to provide paid leave” was more appropriate. Other references in the preamble suggest the DOL is really looking for whether the business is
48 | Columbus Bar L aw yers Quarterly Fall 2020
likely to go under. The small employer exemption probably does not apply in this scenario. Loss of the employee’s services for a couple weeks will not cause the company to shut down. Given the broad remedial purpose of the FFCRA, there is significant risk in denying the employee leave based on the unavailability of her childcare provider for a limited period. In summary, when applying the leave provisions of the FFCRA, you should focus on its broad remedial purpose and look for opportunities to be flexible and make voluntary arrangements with your employees requesting leave.
Real Estate Appraisals • Expert Testimony
Thomas R. Horner, MAI
201 Bradenton Avenue • Dublin, OH 43017 Phone: 614-791-0038 Email: info@ohiorealestate.org www.ohiorealestate.org
29 U.S.C. § 2601(a)(5) 29 U.S.C. § 2620(a)(2)(A) 29 C.F.R. § 826.20(b) 4 29 C.F.R. § 826.10(a) 5 29 C.F.R. § 826.20(a)(8), (9)(b) 6 See DOL FFCRA FAQ # 68 7 See 29 C.F.R. § 826.50(c); DOL FFCRA FAQ # 19 8 DOL FFCRA FAQ # 20 9 29 U.S.C. § 2620(a)(3)(B) 10 29 C.F.R. 826.40(b)(1) 1 2 3
Alexa Cellier, Esq.
BakerHostetler acellier@bakerlaw.com
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Fall ‘20: The Impact of the Pandemic
COVID-19 and Worker’s Compensation:
An Informed Opinion by: jacob dobres & mindi schaefer
“You are not entitled to your opinion. You are entitled to your informed opinion. No one is entitled to be ignorant.” So said American writer and Cleveland native Harlan Ellison. In the legal profession, we cannot afford to be ignorant. We cannot simply convey an opinion. We must provide our clients, the courts and our colleagues an informed opinion. With COVID-19 rapidly changing the world and, of course, the legal landscape, informed opinions are not always easy to muster. We must constantly review our opinions to ensure that they remain informed in light of evolving facts and scientific developments. When COVID-19 and coronavirus became part of the lexicon, we at Poling researched the law on communicable diseases and swiftly advised
our clients that COVID-19 is not a compensable condition under Ohio’s Workers’ Compensation Act.1 We advised our clients that as a matter of law, workers’ compensation claims for COVID-19 should be denied as a matter of law. How did we reach that conclusion, and roughly six months later, does our opinion remain “informed?” We began by considering previous workers’ compensation claims involving allegations that the flu, the common cold, pneumonia and other airborne diseases had been contracted in the course of, and arising out of, one’s employment. In one case, an employee who developed pneumococcal pneumonia filed an industrial claim alleging that he had contracted an occupational disease. The Court of Appeals of Ohio, Fourth District, found that the workers’ compensation laws did not extend to “ordinary illnesses” such as colds or influenza.2 The Ingram Court explained that “colds, influenza, and pneumonia are the result of bacteria – in common parlance germs – attacking the
In the legal profession, we cannot afford to be ignorant. We cannot simply convey an opinion. We must provide our clients, the courts and our colleagues an informed opinion. 50 | Columbus Bar L aw yers Quarterly Fall 2020
body. These germs appear and cause epidemics in cities, towns, and counties. It is also a matter of rather common knowledge that such germs appear to be in the very atmosphere surrounding us, at all times. Any and every person is ‘exposed’ to them without being conscious of the fact.” Ingram informed our recommendation that COVID-19 should not simply be accepted as a workplace injury or disease. Another decision that informed our opinion came from Ohio’s Twelfth Appellate District. In Kellogg v. Mayfield, an injured worker alleged that her pulmonary infection resulted due to cold drafts and cigarette smoke in her workplace.3 The Court of Appeals upheld a trial court’s determination that no workplace injury/disease had been established, holding, “the medical evidence indicates that the [injured worker’s] condition was just as likely to result from conditions outside the workplace…”
With the holdings from Ingram and Kellogg, among others, in mind, we felt confident in advising our clients that COVID-19 claims should be denied. Almost simultaneously with our recommendation, Ohio’s legislature busied itself with a number of bills that sought to codify COVID-19 as an occupational disease and provide employees who were required to work outside of their home any time after Ohio’s declaration of a state of emergency with a presumption that if they contracted COVID-19 it had occurred in the workplace.4 Within one month of the state of emergency, three bills were introduced in the Ohio House of Representatives, each of which aimed to create a presumption that certain groups of workers who contracted COVID-19 would have a presumption that the condition occurred as a result of their work activity outside the home.5 One piece of legislation, H.B. 606, which initially aimed to provide immunity to certain businesses when COVID-19 was transmitted, was amended prior to passage by the House of Representatives to create a COVID-19 presumption for
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first responders, corrections officers and food service workers. The Ohio Senate, upon passing its version of H.B. 606, stripped the COVID-19 presumption. To date, the Ohio legislature has not passed any legislation creating a COVID-19 workers’ compensation presumption.
tor – first responders and healthcare workers. Our informed opinion to clients and the general public whose employees are within this labor market would be to closely scrutinize an application for COVID-19 workers’ compensation benefits. R.C. 4123.01(C) defines an injury as “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.” R.C. 4123.01(F) defines an occupational disease as “a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.” 2 Ingram v. Conrad, 2001 Ohio App. LEXIS 6017. 3 (1991) 72 Ohio App.3d 490 4 Executive Order 2020-01D declared a state of emergency as of March 9, 2020. 5 HB 571 would apply a COVID-19 presumption to peace officers, firefighters, or emergency medical workers. HB 573 would apply a COVID-19 presumption to any worker. HB 605 would apply a COVID-19 presumption to employees of a retail food establishment or food processing establishment. 6 https://www.governing.com/work/Ohio-Workers-Contract-COVID-19-File-forWorkers-Comp.html 7 Id. 1
By June 23, 2020, the Ohio Bureau of Workers’ Compensation reported that it had received more than 456 claims for COVID-19, and an additional 208 claims were filed with self-insured employers.6 The BWC created a special team to review and evaluate COVID-19 claims with an aim of providing “consistency throughout the state,” in approving or denying claims, according to Stephanie McCloud, CEO of the BWC.7 Approximately 37.5 percent of the claims filed with BWC were allowed, while roughly 26 percent of claims filed with self-insured employers were approved. According to the BWC, more than 80 percent of the COVID-19 claim applications came from first responders and healthcare workers.8 Reviewing the data from BWC – 664 claim applications filed as of June 23, and 80 percent of those involving first-responders and healthcare workers, we believe that this is another piece of information that supports our original opinion that, as a rule, COVID-19 claims should be denied. We recognize the information that suggests that the great majority of COVID-19 claims involve employees in a very specific sec-
8
Id.
Jacob Dobres, Esq.
Poling jdobres@poling-law.com
Mindi Schaefer, RP, OSBA, AACP
52 | Columbus Bar L aw yers Quarterly Fall 2020
Poling mschaefer@poling-law.com
Fall ‘20: The Impact of the Pandemic
FIVE THINGS You can do to prevent isolation and loneliness by: megan snyder
It’s no doubt that the current state of the world has many people feeling stressed and anxious. Before the COVID-19 pandemic, lawyers were already working in an anxiety-filled setting, dealing with high expectations, multiple deadlines and clients. They were solving people problems, such as divorce, child abuse, crime, etc. They went to work and conversed with coworkers, clients and colleagues with face-to-face social interaction. Now, lawyers are faced with working from home and trying to make this change a new normal.
In 2018, 61 percent of lawyers who participated ranked “above average” on a loneliness scale from the University of California at Los Angeles. Even though they were able to work in a typical, non-COVID-19 setting, most were still lonely. Now that lawyers are forced to stay home as much as they can, they are even more prone to feelings of loneliness and isolation, which can lead to depression and anxiety. To prevent this, lawyers must understand loneliness and isolation. They should also know that it’s ok to feel like you are not ok. These feelings are valid. We are living in an unknown environment, and it is normal to have these thoughts. If these feelings start to interfere with your life—e.g., you start sleeping too much, you cannot get your work done or you are irritable with your family and coworkers—then it might be time to ask for help.
To prevent this, lawyers must understand loneliness and isolation. They should also know that it’s ok to feel like you are not ok. These feelings are valid. We are living in an unknown environment, and it is normal to have these thoughts. 5 3 | C o l u m b u s B a r L a w y e r s Q u a r t e r l y FA L L 2 0 2 0
Use the following Loneliness Scale to see if you can relate to any of the thoughts. If you find that you relate with some of the thoughts, try limiting your screen time, creating structure, connecting with others, staying active and being creative.
What is loneliness? The UCLA Loneliness Scale is a 20-item scale designed to measure one’s subjective feelings of loneliness as well as feelings of social isolation. If you associate with any of these thoughts, you might be experiencing loneliness.
UCLA Loneliness Scale: 1. I am unhappy doing so many things alone 2. I have nobody to talk to 3. I cannot tolerate being so alone 4. I lack companionship 5. I feel as if nobody really understands me 6. I find myself waiting for people to call or write 7. There is no one I can turn to 8. I am no longer close to anyone 9. My interests and ideas are not shared by those around me 10. I feel left out 11. I feel completely alone 12. I am unable to reach out and communicate with those around me 13. My social relationships are superficial 14. I feel starved for company 15. No one really knows me well 16. I feel isolated from others 17. I am unhappy being so withdrawn 18. It is difficult for me to make friends 19. I feel shut out and excluded by others 20. People are around me but not with me1
Obviously, it is not healthy to feel lonely. People who have high scores on the UCLA Loneliness Scale are more likely to have job burnout, chronic illnesses, physical inactivity, and early death.2
Ways to prevent feelings of loneliness and isolation If you are feeling lonely, try to act on some of the following suggestions. Even though we are asked to stay at home as much as possible, there are things you can do to help combat your feelings of loneliness and isolation. Limit your screen time It’s no surprise that most of the news during this time is not good news. Our news and social feeds are filled with stories about crime, racism and uncertainty about the coronavirus. When you surround yourself with bad news, it is bound to have a negative effect on you. Search for positive stories in the news, instead of just scrolling through news of the day. Limit your time on social media and news sites and spend your time doing more productive things. Create structure As a lawyer, you are used to structure, so it is important to create the same type of environment at home. Try to set a schedule and stick to it. Wake up and go to bed at the same time each
54 | Columbus Bar L aw yers Quarterly Fall 2020
day. This will help keep you from veering off in the wrong direction, such as wondering what you will do each day or how you will finish your work each day. Connect with others Connecting with others might seem impossible at this time, but it is not. With technology, you have so many ways to talk to friends and family. Call a friend or a relative. Use apps such as FaceTime and Zoom to create a virtual family get-together. Note that connecting with others does not just mean with your family or colleagues. Try connecting with others through online groups that have the same interests as you. For example, if you are interested in or have a passion for a certain topic like football or ancient history, find an online group and share your thoughts with others.
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Stay active Exercise can instantly boost your mood, and there are plenty of ways to exercise in quarantine. Many online sites have free workouts you can easily do at home. You can take a walk around your neighborhood or in a local park. You can even be active while working on your house, whether it’s through cleaning or mowing your lawn. Try not to get into the habit of binge-watching TV or spending hours without moving. Remember that a body in motion stays in motion! Be creative There’s a reason why there is a back order on home improvement supplies. Many people are using this time to work on their homes: painting the garage, cleaning the basement, building a tree house in the backyard, re-decorating the bedroom, etc. Take this time to do something creative. It doesn’t have to be a home improvement project. You could try painting, writing poetry, learning photography, crocheting or restoring an antique car or motorcycle. Being creative gives you a sense of purpose and can lead to feelings of accomplishment and pride. OLAP can help If you feel like isolation and loneliness are hindering your life, please call the Ohio Lawyers Assistance Program. We can help you get back on the right track. https://fetzer.org/sites/default/files/images/stories/pdf/selfmeasures/Self_ Measures_for_Loneliness_and_Interp ersonal_Problems_UCLA_LONELINESS.pdf 2 https://sparqtools.org/mobility-measure/ucla-loneliness-scale-version-3/ 1
Megan Snyder, MSW, LISW-S
Ohio Lawyer’s Assistance Program msnyder@ohiolap.org 56 | Columbus Bar L aw yers Quarterly Fall 2020
Fall ‘20: The Impact of the Pandemic
CONNECTIVITY In the Time of COVID-19 by: lindsay miller & gregory dunn
The COVID-19 pandemic has highlighted more than ever the need for, and in many locations persisting lack of, broadband access and digital equity.1 Over the last five months and at the necessary direction of governors across the country, employers, colleges and K-12 institutions, and medical care providers have ordered citizens to work, continue their education and manage their health from home. If you lack broadband entirely, all of this is impossible; if you have inadequate broadband, it is still likely impossible. And while many of us hunkered down with streamed content and the ability to stay socially connected through online platforms such as Zoom, those who lack adequate broadband have been physically and socially isolated.
The statistics on the digital divide (i.e., the divide between the individuals who have access to highspeed internet and devices, and the skills and resources to fully utilize them, and the individuals who do not) are daunting. The Census’ most recent American Community Survey found that one in four Columbus households did not have a cable modem, DSL or fiber Internet account in 2018. Thirteen percent of households did not have a broadband subscription of any kind, including a cellular plan, while approximately 11 percent had internet access only through a cellular data plan. According to the Federal Communications Commission 2019 Broadband Deployment Report, 21.3 million Americans lack access to broadband at the federal definition of 25 Mbps download/3 Mbps upload. However, the true count is likely much higher due to inaccuracies in the federal broadband mapping process, explained below. The reason for these ongoing access discrep-
The reason for these ongoing access discrepancies is relatively simple: Internet Service Providers (or ISPs), especially the very large ones, experience a stronger return on investment in dense urban areas or affluent markets than in disadvantaged neighborhoods or sparsely populated regions. As a result, rural and low-income areas typically do not experience the same level of broadband build-out and service availability as their urban and suburban counterparts. 5 7 | C o l u m b u s B a r L a w y e r s Q u a r t e r l y FA L L 2 0 2 0
ancies is relatively simple: Internet Service Providers (or ISPs), especially the very large ones, experience a stronger return on investment in dense urban areas or affluent markets than in disadvantaged neighborhoods or sparsely populated regions. As a result, rural and low-income areas typically do not experience the same level of broadband build-out and service availability as their urban and suburban counterparts. Predictably, then, lack of connectivity is closely tied to other social inequities and vulnerable populations disproportionately lack access to computers and home internet. For example, nearly two-thirds of Columbus households without broadband in 2018 had incomes below $35,000, and 37 percent of older adults (65+) lacked at-home computer or broadband access. Another contributing factor is the flawed federal broadband maps mentioned previously. As the saying goes, you can’t manage what you can’t measure; however, our national broadband coverage maps are notoriously inaccurate. The federal broadband maps are created from data submitted by the ISPs using the FCC Form 477. The Form 477 collects broadband coverage information at the census block level, and if a provider serves just one location within a census block they can deem the entire block served. This is unlikely to create major discrepancies in urban areas like Columbus; however, census blocks can be several square miles in rural regions.
For this reason, some states, including Ohio, have invested in state-level broadband mapping in order to determine broadband service availability at a more granular level than what is available federally. However, mapping without action is a diagnostic tool like an X-Ray or MRI, not a cure. As a second step, the federal government and many states have implemented grant programs that award funding to existing telecommunications or broadband companies in order to incentivize build-out to un- and/or underserved locations. In Ohio, House Bill 13 is currently under consideration by the General Assembly. If passed as presently drafted, it would create a $20 million residential broadband expansion program under the Ohio Department of Commerce. Although a step in the right direction, such programs are only a partial fix to the problem. No matter how well-funded, grants, loans and subsidies alone are insufficient to provide a comprehensive solution to the glaring technology inequities facing our nation. In addition to incentivizing private providers, governments too can invest in broadband infrastructure, including fiber optics and wireless internet towers, in order to enhance local service. Such infrastructure can then be leased by one or more private companies, particularly if it’s an “open access”
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network, and/or developed through a publicprivate partnership. Instead of a quarterly rate of return required for the private sector, governments can provide long-term, patient capital, as well as intentionally target infrastructure buildout to areas that are presently excluded from modern work, education, health and recreation. As a result, in coming years, we anticipate that local, state and federal governments will invest in broadband infrastructure like never before. While we all try to adjust to our “new normal”, the digital divide is not a new problem. But, it does require new solutions. Accurate broadband mapping and government participation are likely to be key. “Broadband” is not a single technology, but a term that describes a range of technologies that provide high-speed internet access. According to the National Digital Inclusion Alliance, “Digital Equity” is a condition in which all individuals and communities have the information technology capacity needed for full participation in our society, democracy and economy. Digital Equity is necessary for civic and cultural participation, employment, lifelong learning and access to essential services. 1
Lindsay Miller, Esq.
lindsay.miller@icemiller.com
Gregory Dunn, Esq.
gregory.dunn@icemiller.com
https://www.digitalinclusion.org/definitions/.
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Student Section: Observations from Law Students
TIPS ON SUCCESSFULLY
GOING BACK
TO SCHOOL FULL-TIME AFTER A CAREER by lindsay miller
Making the leap from full-time employee to full-time student can be daunting. After reading these tips on how to successfully transition, hopefully you will see that you are more prepared than you think. Prior to starting law school last fall at 31 years old, I practiced as a full-time pediatric Speech-Language Pathologist (SLP) in a variety of settings in Chicago and Columbus. Although I loved my job as an SLP, I knew my passion for advocating for individuals with disabilities and policy-related work would draw me to law school eventually. Looking back, I had more tools than expected to make the transition successfully.
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It’s important to have camaraderie with your classmates for a multitude of reasons, ranging from double checking due dates to emotional support. Be open to new friendships even if you feel your network is complete. 1. Instead of viewing law school as a career change, view it as a career addition.
You are not losing your skills from your previous career. You are building upon them. Just because I want to be an attorney doesn’t mean I lose all of my years of practice and hard work as an SLP. My career taught me time management, professionalism, people skills, problem-solving and what I value in a career. Even if you are going to law school to make a complete career shift, the skills from your career are not lost. Use them to your advantage.
2. Don’t be scared of “school mode.”
When telling others about my decision to go back to school, people frequently asked, “Aren’t you worried about having to study again?” The idea of studying, reading, writing and taking final exams that account for most of your grade can be scary when you’ve been out of practice. You may need to brush up on study skills again. However, you likely already have the skills needed. I am willing to bet that in your career, you solved problems, interacted with others, prioritized tasks, met deadlines and were evaluated on your performance. Those are skills important to being a successful student, too!
3. Treat it like a job.
You held a job with working hours and had the experience of balancing a career with life’s other commitments. In your career, you most likely
experienced ebbs and flows in workload as well as times that required you to bring work home or put in more hours. Similarly, you will inevitably have evenings when you study or have projects due that require you to put in more hours than normal. However, if you treat school like a job, it’s manageable. Create a schedule and stick to it. That way, you can feel good about taking well-deserved breaks or dare I say it, entire days off from studying.
4. Don’t rely on your previous academic experience to predict law school performance.
I was fortunate enough to attend one of the best Speech-Language Pathology programs in the country (Go Northwestern Wildcats!). The program was tough, taxing and challenging: 400+ in-person clinical hours, Neuroanatomy, Language Science, Acoustic Phonetics, you get it. I graduated at the top of my class. I also got the lowest score (of my entire class!) on my first midterm of law school because I lost track of time. Because of my career experience, I knew how to keep perspective in that situation. I knew that one screw-up on a midterm did not determine my fate as a law student or future attorney. However, I also knew I had to be proactive and hone my skills quickly. I contacted our awesome academic success professor that evening and asked her for advice on how to improve my time management for the rest of my mid-terms and finals. Fortunately, I made some tweaks, did fairly well in the class and have never lost track of time during an exam since then.
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5. Get involved in activities that are meaningful to you.
There are many opportunities in law school to get involved in activities that spark your interest. Just because you may be a non-traditional student doesn’t mean that you can’t take advantage of every opportunity available to students. I always valued, liked and participated in student government. As a result, I ran for the position of 1L representative for the Student Bar Association and won! Legal Analysis, Research, and Writing was my favorite class of 1L year. I am now a Teaching Assistant for the class and am on Law Review. If you choose wisely, opportunities beyond the classroom do not feel like a must, but rather a privilege.
6. Don’t change the things you already know work for you.
You have the advantage of knowing what time management and organizational strategies work and don’t work for you. I keep a paper planner because I like the feeling of crossing tasks off my list. I get up at 4 a.m. to read some mornings, but rarely stay up past 10 p.m. to complete an assignment. I know that eating healthy and doing my favorite workout makes me feel energized and helps my workflow. I know that using graph paper and Ink Joy pens to take hand-written notes is my
favorite way to take notes. Don’t feel inadequate because you didn’t pull an all-nighter or your outline isn’t color-coded. Trust your instincts. Do what works for you.
7. Make new friends, but keep the old.
It’s important to have camaraderie with your classmates for a multitude of reasons, ranging from double checking due dates to emotional support. Be open to new friendships even if you feel your network is complete. I don’t know where I’d be without my law school friends. You have an advantage because you already have professional networks established and understand the importance of networking. Keep contact with them. Most importantly, being in law school doesn’t mean you have to be absent from your support network outside of school. Continue to spend time and have fun with the people most meaningful to you before you came to school – your friends and family. I’m beyond thankful for my family, boyfriend and friends. They encourage me, keep things in perspective and motivate me to take time off to have fun or just relax.
8. Ask for help (academically and otherwise).
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Don’t let the whole semester go by thinking you’ll “learn it later.” Ask for help. Reach out to your professors. I am grateful for my tremendous team of 1L professors – Professors Anderson, Beattie, Cohen, Cordray, Gilles, Guttenberg, Hara and LooperFreidman. After meetings with them, I felt better about concepts. More importantly, my professors provided peace of mind and encouragement. Just as it is essential to seek out academic support when needed, it is equally important to seek out mental health support when needed. I know I have. It is a well-known fact that law students suffer from higher amounts of mental health and substance abuse than our graduate school counterparts. Fortunately, many law schools now employ licensed therapists and professionals to help students effectively and confidentially. Without your mental health, you can’t expect to do well. Seek out help when you need it, always.
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9. Be kind, work hard and stay humble.
Finally, I leave you with my favorite mantra that has served me best in my transition back to school. Be kind, work hard and stay humble. Wishing you all the best!
Lindsay Miller
Capital University Law School
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Student Section: Observations from Law Students
Substituting my
Childhood Bedroom for Washington D.C. by: isabel “izzy” marcelletti
A 1L’s Summer Reflection on Working from Home From Ohio’s unprecedented stay-at-home order to switching to law school online, the 1L landscape changed rapidly. I temporarily moved back to the Metro-Detroit area and my roommates were my parents. Friends and colleagues, who I saw so often in the hallowed halls of The Ohio State University’s Moritz College of Law, were a mouse click away. The last month or so of spring classes
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At first, it was hard to envision that an experienced attorney would feel the same way as a rising 2L in law school, but we all shared the disorienting experience of COVID-19 and the desire to be resilient against its isolating effects. took place in a myriad of settings around my childhood home, all dependent on where the rest of the household was and where the WiFi was the strongest. Though it was a strange adjustment, I was very fortunate to have such a supportive and safe environment to finish out my academic year during a global pandemic. While learning to navigate the unfamiliar territory of Zoom law school, another rite of passage for 1L students weighed heavily on my mind: securing a summer position. Previously that fall, I was ecstatic to be accepted into the Moritz Summer, Washington D.C. Program, which involved working a full-time position and taking classes alongside Moritz peers to learn from leading legal professionals in the District. As a former Social Relations and Policy student interested in environmental law and government service, I chose Moritz partly for its opportunities like the D.C. Program that emphasize the crucial overlap in the law and government. Meanwhile, during the peak of the pandemic, like many of my law school colleagues at Moritz and
nationwide, I was biting my nails on what would become of the legal environment during the summer of a pandemic. I was thrilled to get a phone interview with the Department of Energy General Counsel’s Office of Legislation, Regulation and Energy Efficiency and I was offered an internship a few days later. Landing my dream summer placement was a bright moment during the unorthodox spring semester, and I was excited to return back to the DMV area. In hindsight, I find it awfully
optimistic that I thought by May 2020 I would pack up my car to move out to Virginia for the summer. As someone who aspires to work in a government capacity on a state or federal government level, having the ‘real’ D.C. experience was essential to me, which includes in-person coffees, meeting alumni for happy hours, working alongside the attorneys at DOE and getting firsthand experience with the fastpaced D.C. legal market, among others. I was dismayed and thought my summer would lack
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substance when my internship was set online. I am going to be honest; I did have a pity party for a day or two, but afterwards, I sat down and jotted down two goals for the summer: to define my work-from-home brand and to be comfortable with the inorganic nature of online interactions. Articulating what I wanted to get out of my summer was a big step to reclaiming accountability for my professional and academic career during the COVID-19 pandemic. Something that I think sets apart the successful legal professionals is the individual brands they create and adhere to in professional settings. In my experience, a brand is a culmination of work ethic and personality traits which would compel a supervisor or staff attorneys to recall positivity who Izzy Marcelletti was as an office colleague and as a companion during a coffee break. Now as a 2L, I would say with confidence that I am well on my way to defining my brand, but it took some hard work and reflection this summer, provided the limited interactions I had ‘in the office.’ In person, there are more organic opportunities to define and test your brand by how you accept praise and criticism from supervisors and other attorneys; ask for advice from and interact with officemates; and navigate spaces with peer interns, for instance. In comparison, when working from home, interacting with those in and out of my office was more inorganic–almost forced at first–and I had to learn
to be comfortable and confident in this situation. For instance, when I wanted to get to know the attorneys in my office, I had to cold email them and tell them my intentions; unlike in a traditional office setting where I could knock on a door and casually ask them to coffee after work. The addition of the intermediary steps of scheduling Zoom/phone calls made interactions feel less personal and made me uncertain that I would not have meaningful and honest conversations that I am used to having in person. When I would start to get in my head about this, I tried to remember that the person on the other end was probably going through the same experience as me. At first, it was hard to envision that an experienced attorney would feel the same way as a rising 2L in law school, but we all shared the disorienting experience of COVID-19 and the
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desire to be resilient against its isolating effects. It took practice and a few deep breaths to remember this was a coffee chat to get to know someone and not an interrogation where folks are looking to point out any blunders. Extending courtesy to myself to adjust to these modified interactions made the networking and brand-establishing process a lot more enjoyable and the inorganic became organic. I went from having a set list of questions for calls to jotting down one or two openers and letting conversations flow. As a result, I gathered insight on how to navigate these new professional spaces, and also gained perspective from leading attorneys on the personal triumphs and sacrifices inherent to the legal profession. In person, I know I am someone who works hard and efficiently; who is learning how to formulate more questions during the rough
draft process; who stays behind after a crowd dissipates to ask follow up questions; and who is willing to stay extra hours later to understand new material thrown her way. By also appreciating the fact that everyone was particularly vulnerable this summer, from intern to supervising counsel, I further distinguished myself as someone who is fearless to jump feet first into unfamiliar legal questions; who follows up and is invested in their legal research outcomes; and who is both personable and varied in skill enough to share teaching tips and tricks to supervisors to aid in their role as homeschool teachers.
Columbus, Ohio professional networks and fell in love with administrative law, a new practice area to explore. I also polished up my process for writing high-quality legal memos, all the while my trusty paw-ralegal, Lucy, was at my side. This summer certainly was 1L of a ride. Isabel “Izzy� Marcelletti
The Ohio State University Moritz College of Law
In conclusion, I worked my dream Washington, D.C. legal internship this summer. I became a proficient Zoomer and improved my academic GPA. I expanded both my Washington, D.C. and
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Life Outside the Law
Honorable David B. Tyack by: heather g. sowald
Judge David Tyack has music in his blood, with the ability to both follow print music sheets or to improvise and play various instruments by ear. David’s father, a ceramic tile-setter who played the old standards of the 1930s and 1940s in weekend bands, did not read music, playing by ear only. Growing up in Bexley, David and his younger brother, a drummer, often joined their father’s bands. David played bass in his father’s bands, and played bass, keyboard, and trumpet in rock and funk bands with classmates.
David has continued to perform in bands through to the current day, albeit less so in more recent years. David started out as a music major at Capital University, ultimately switching and graduating with a degree in economics from The Ohio State University. During his college and law school years (J.D. Capital Law School, 1982), he supported himself by singing and playing bass, keyboard or organ in bands at private parties, weddings and bars. He related that he would haul his 450-pound mechanical organ from venue-tovenue in a trailer and with the aid of a moving dolly. He occasionally, for his own personal enjoyment, still plays his second-hand 68-year-old Hammond organ, which currently resides in his garage. Over the years, he has performed with different
David started out as a music major at Capital University, ultimately switching and graduating with a degree in economics from The Ohio State University. 68 | Columbus Bar Lawyers Quarterly Fall 2020
bands. David played keyboard and bass in a band, which included three female singers, performing Motown girl group songs until the early 1990s. A few years later, he left to join a blues band, which allowed him to hone his ability to improvise and play by ear. In the mid-2000s, as a congregant at the St. John Lutheran Church in Dublin, he played bass in the churches’ contemporary band. More recently, he has joined Judge Herbert’s band, which performs classic rockand-roll music, for occasional court-related special events such
as retirement parties for outgoing staff members. As David and his wife were raising their children, his weekend bandplaying began taking a back seat while they pursued other interests, including power boating and now bicycling. He and his wife, domestic relations attorney Suzanne Sabol, and their nowadult daughters, Lillian and Claire, have enjoyed these activities together. David said that he and Suzanne first met on opposite sides of a domestic relations case, and sometime later discovered a mutual interest in power boating up at Lake Erie, which helped lead them to their future marriage. After many years of the long-distance weekend travel to and from Lake Erie, they put aside their boating hobby and have now taken up bicycling and exploring the trails
around the central Ohio area. David was a solo general practitioner, setting up his own office after licensure in 1982. In 2007, he ran against a Governorappointed judge, and won the seat in the Franklin County Municipal Court. He has been successfully reelected since. David has enjoyed his musicianship over the years. He said that as the only attorney member of various bands, he has met many people he might not have otherwise known. This opportunity has given him valuable insight into the other band members’ lives and problems. The ability to sing and perform on his musical instruments also tapped into his creative side, giving him a time out from the earlier worries of studying or the later concerns and stresses as a practitioner and then as a Municipal Court judge. David recognizes how fortunate he has been to have the gift of a musical ear, and the talent to entertain both himself and others over the years. Heather G. Sowald, Esq. Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com
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Life Outside the Law
You Do Have Time! by: scott r. mote, esq.
One of the most popular “excuses” we hear at the Ohio Lawyers Assistance Program is “I don’t have time.” Yes, I understand that lawyers are busy, but it seems like this phrase has become an excuse for many things. “I don’t have time to take care of my mental health. I don’t have time to talk to a therapist. I don’t have time to exercise. I don’t have time to get a physical. I don’t have time to send my mom a birthday card.” The truth is, every person has the same amount of time; it’s the way you use it that makes the difference. Consider some of these tips on how to better manage your time.
Audit your time
In a quest to get more sleep and focus more on her health and well-being, my wife Gretchen, also an attorney, recently conducted a time audit that she compared against the schedule she thought she was following. She tracked every minute of every day of what she did for one week. This wasn’t a rounding up exercise, such as “from 8 a.m. to 8:30 a.m., I read the paper.” This exercise focused on what she did every minute. At 8 a.m., she walked out to get the paper. At 8:01, she noticed that some of her flowers were starting to wilt, so she removed the faded flowers from the plants. From 8:08 to 8:15, she realized she needed to water her plants, so she went inside and filled her watering can, went
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What would happen if you woke up an hour or two earlier every day? Plenty of positive things! There is something motivating about waking up while everyone else is still asleep. back outside and watered the plants, and put the watering can away. At 8:17, she picked up the paper and walked inside. When she was opening the paper, her computer dinged notifying her of an email. She opened up her laptop and started answering email messages. By now, it was 8:35, and she hadn’t even read the first page of the newspaper. She was already behind schedule. This exercise taught her many lessons, one being that she is easily distracted. Her goal was to read the paper from 8 to 8:30, but she spent all of that time and then some on other tasks. Until she wrote down all of her digressions, she never knew how much time she was wasting. She recommends writing down what you think your schedule is, and then going back and looking at it after you record your minute-byminute time audit. You’ll realize how many interruptions you had in your schedule.
Early to bed and early to rise
We all know that getting enough sleep is important for our health. What would happen if you woke
up an hour or two earlier every day? Plenty of positive things! There is something motivating about waking up while everyone else is still asleep. This is your time to focus on yourself. You can start your day with exercise, meditation, reading the paper, finishing that brief you put off, etc. If you have children, waking up before them can be very helpful for your day. It is difficult to meditate, read, exercise, work or pretty much do anything else
when your two-year-old needs your attention. Take this time for you! When you wake up early, you are more productive throughout the day, which means you should be able to fall asleep faster and easier at night.
Delegate
A 2019 study from Clio determined that the average lawyer worked just 2.5 hours of billable work each day in 2018. If you work an eight-
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hour day, that means you are only using 31 percent of your day to bill clients. An easy way to increase this number is to delegate. There is a good reason you have support staff and paralegals. Delegate less profitable work to paralegals and non-billable tasks to other staff members whenever you can. Before you start a task, ask yourself if this is something a paralegal or administrative assistant can do. The time you spend making copies and updating client files can add up to a significant amount of time— time you could use for billable hours. This is probably obvious, but make sure you don’t take cases that are outside your competence area. You could spend more time than you have trying to learn new parts of the law. Also, get rid of clients who fail to pay. You could spend too much time trying to be compensated.
Organize your day
How much time do you spend in the mornings trying to figure out what to wear, making lunches or getting children ready for school? Try to accomplish these tasks the night before. Maybe your children are old enough to do some of these things themselves. Hold them accountable! During that extra hour or two you have in the mornings (when you start waking up earlier), figure out how you will spend your time during the day. Review your work calendar, your family calendar and determine the best way to organize your day.
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Focus
It is easy for all of us to lose track of time and get distracted during the day. It’s tough to focus on a task when you have notifications chiming, people stopping by your office, children calling you asking you where the cereal is, phones ringing and myriad text messages. Instead of answering each email, text or phone call as it happens, set aside time for each. When you are working on a client case, close your email and put your phone on silent mode. This will help you focus more on the task at hand.
What will you do with your extra time?
Tracking your time has many benefits. If you are honest with how you are spending your time, you might find that you actually do have time. You could enjoy a round of golf, focus on your mental health, take your significant other out on a date, visit your mom, bill more hours or just sit down and watch your favorite television program. You deserve it! Scott R. Mote, Esq.
Executive Director Ohio Lawyers Assistance Program smote@ohiolap.org
If you are unhappy, depressed, suffering from substance use disorder, burnout, or stress, and you believe it is affecting your life, the Ohio Lawyers Assistance Program can provide CONFIDENTIAL help. For more information, go to ohiolap.org or call (800) 348-4343 or (614) 586-0621.
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Jury Verdicts
Civil Jury Trials
Franklin County Common Pleas Court by: monica l. waller
Verdict: $3,975,000.00 ($125,592.96 in economic damages; $3,850,00.00 in noneconomic damages). Automobile Accident. Plaintiff Matifern Hicks was a patron of the Scioto Downs Racino on the evening of Oct. 22, 2013. As she left the Racino and was walking to her car, she was struck by a car driven by 89-year-old Hilda Turcotte. Hicks was thrown into the air and struck the front windshield of Turcotte’s vehicle, knocking Hicks unconscious. She suffered a fracture to her left knee, left ankle and right lower leg and a subdural hematoma. She underwent several surgeries to repair the fractures and remained hospitalized for eight days. Upon discharge, Hicks remained confined to a hospital bed for several months and then had several months of physical therapy. She claimed that she suffered anxiety which required psychological counseling. She also suffered partial hearing loss associated with the closed head injury and bladder dysfunction
related to her extended convalescence. Hicks owned a fruit stand and was unable to carry out her responsibilities to her business, requiring her to recruit friends and family to provide additional labor. Hicks settled her claims against the driver, Turcotte. She proceeded against Scioto Downs, arguing that the conditions on the premises were dangerous and negligently designed and maintained by Scioto Downs. Specifically, Plaintiff alleged that the crosswalk where Turcotte struck Hicks was not properly marked, that there was insufficient lighting in the parking lot and that the Racino had a bus parked in a position that obstructed the view of the crosswalk. Scioto Downs argued that the premises were properly maintained and that the accident was not caused by any of the factors cited by Hicks, but rather was the result of the combined negligence of Turcotte and Hicks. Scioto Downs argued that Hicks did not look both ways before crossing the parking lot. Scioto Downs also argued that Turcotte was driving 25 mph in a 10 mph
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zone. Turcotte also had vision problems and a license that restricted her from driving at night. Scioto Downs presented evidence that Turcotte had no peripheral vision in her right eye and struck Hicks as Hicks approached from the right. The weekend prior to trial, Turcotte’s live-in boyfriend died. The boyfriend had been subpoenaed to testify at trial as he was an eye-witness to the accident. Turcotte was also excused from appearing at trial due to her boyfriend’s death. The jury concluded that Hicks was not negligent, but both Turcotte and Scioto Downs were negligent. The jury attributed 33 percent of the responsibility for the accident to Scioto Downs and 67 percent of the responsibility to Turcotte. Scioto Downs filed a motion to apply the damages cap following trial. Scioto Downs also planned to appeal the verdict based upon a dispute over the jury instructions. The parties reached a settlement for less than a tenth of the verdict while the post-trial motion was pending. Medical Specials: $160,892.61 ($122,710.93 after reductions). Lost Wages:
Not itemized. Last Settlement Demand: $30,000 offer withdrawn prior to trial. Last Settlement Offer: $15,000. Length of Trial: four days. Plaintiff’s Experts: Kevin Pugh, M.D. (orthopedic surgeon); Daniel R. Aerni, P.E. (engineer); Charles Kistler, D.O. (primary care physician). Defendant’s Experts: None. Plaintiff’s Counsel: Michael R. Guluzian. Defendant’s Counsel: William B. Benson. Judge Dan Hawkins. Case Caption: Matifern Hicks v. Scioto Downs, Inc., Case No. 18 CV 2506 (2019).
Verdict: $325,524.89 ($54,084.89 in economic damages; $271,440.00 in non-economic damages). Automobile Accident. On May 21, 2012, Plaintiff James Evans was in his vehicle at the intersection of Morse Road and the exit ramp for northbound I-71 when Defendant Christina Marshall failed to stop at a red light and her vehicle struck Evans’ vehicle in a T-bone collision. The collision caused disabling damage to Evans’ vehicle. Evans claimed injury to his left shoulder and right knee. On Nov. 30, 2013, Evans was on Lincoln Avenue when his vehicle was rear-ended by a vehicle driven by James Cawthorne. This collision also caused disabling damage to Evans’ vehicle. Evans claimed injuries to his neck and right wrist in the November 2013 collision. Evans underwent three surgeries that
he related to these accidents—a right carpal tunnel release on Sept. 19, 2014, a cervical fusion on May 11, 2016, and a left shoulder surgery on Feb. 21, 2017. Evans filed suit against both drivers and the owner of the vehicle driven by Marshall. He also asserted an underinsured motorist claim against his insurer, Nationwide Insurance. The defendant tortfeasors had just $12,500 in coverage each. Shortly before trial, Nationwide consented to settlements with both tortfeasors for the limits of their coverage. Trial proceeded on the underinsured motorist claim. At trial, Nationwide conceded that liability was not disputed, but argued that the damage to Evans’ knee, shoulder, wrist and neck was preexisting and degenerative in nature and not caused by the accident. Nationwide’s medical expert concluded that Evans suffered only soft tissue injuries in each accident and had recovered
from those injuries by the end of 2013. The total medical expense that Nationwide attributed to these accidents was $11,000. Plaintiff claimed $193,869.98 in medical expenses ($121,406.44 after adjustments) was related. Plaintiff also claimed he would incur future medical expense and future lost wages. Following trial, Plaintiff filed a motion for prejudgment interest, in the amount of $140,814.26. Nationwide filed a motion to have the Court apply the statutory cap on non-economic damages to the portion of the verdict that represented noneconomic damages related to the May 2012 accident. The parties settled the case before the Court ruled on any of these post-trial issues. Last Settlement Demand: $510,000. Last Settlement Offer: $30,000 in “new money” (above the $25,000 already offered on behalf of the defendant tortfeasors). Length of Trial: five days. Plaintiff’s
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Experts: Douglas Chonko, D.O. (orthopedic surgeon) and Mark White, D.O. (neurosurgeon). Expert for Defendant Nationwide Insurance: Steven Wunder, M.D. (physical medicine and rehabilitation). Plaintiff’s Counsel: Jack J. Lah and Joel A. Gonzalez. Counsel for Defendant Nationwide Insurance Company: Jerome F. Rolfes and Rebecca J. Johnson. Judge Mark A. Serrott. Case Caption: James Evans v. Nationwide Mutual Insurance Co., et al., Case No. 17CV10510 (2019).
Verdict: $98,500.00 ($58,500.00 in economic damages; $40,000.00 in non-economic damages). Automobile Accident. On May 18, 2016, Plaintiff Anne Rhodes was traveling eastbound on Route 33 when traffic came to a stop. Behind Rhodes was a vehicle driven by Defendant Clarissa Rance. Behind Rance, Defendant Kurtis Swank was driving a cement mixing truck owned by his employer, Defendant Scioto Ready Mix, LLC. Swank was unable to stop in time to avoid hitting the rear of Rance’s vehicle. The force of the collision pushed Rance’s vehicle into the rear of Rhodes’ vehicle. Rhodes drove to an urgent care after the collision. She was diagnosed with dislocation of her shoulder and, subsequently, with bursitis, impingement, arthritis and fraying of the rotator cuff. She received physical therapy, injections and
ultimately had arthroscopic surgery. Following surgery, she was diagnosed with migration of her clavicle, a known postsurgical complication. She planned to have another shoulder surgery to repair the clavicle, but was diagnosed with an unrelated cancer that postponed the second surgery. The defense admitted liability for the accident, but disputed damages. The defense argued that Rhodes’ surgery addressed her preexisting arthritis and not injuries that she suffered in the accident. The defense also argued that Rhodes’ postsurgical complication was the result of her failure to follow her physician’s orders during her recovery and was not causally related to the accident. Past Medical Specials: $60,942.40 ($27,772.73 after reductions). Future Medical Specials: $22,500.00. Lost Wages: $8,000.00. Last Settlement Demand: $100,000.00. Last Settlement Offer: $55,000.00. Length of Trial: three days. Plaintiff’s Experts: Thomas J. Kovack, D.O. (orthopedic surgeon). Defendant’s Experts: Kenneth Westerheide, M.D. (orthopedic surgeon). Plaintiff’s Counsel: John M. Gonzales and Mary Kate Moller. Defendant’s Counsel: Bruce A. Curry and Allyson G. Spivey. Visiting Judge Pat Sheeran. Case Caption: Anne Rhodes v. Scioto Ready Mix, LLC, Case No. 18 CV 3084 (2020).
Verdict: $62,500.00 ($12,500.00 in economic
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damages; $50,000.00 in non-economic damages). Automobile Accident. On June 11, 2016, Plaintiff Michael Rodriguez was driving eastbound on Bethel Road. As he crossed the intersection of Bethel and Dierker Road, his vehicle was struck by a vehicle driven by Defendant Indranil Basu. Rodriguez told the officer who reported to the scene that he had a green light and he saw Basu run the red light. Basu denied that he failed to pay attention when he approached the light, but admitted liability the week before trial. Rodriguez suffered a concussion as well as injury to his shoulder and neck as a result of the accident. Defendant stipulated negligence and the case proceeded to trial on damages only. Defendant argued that Plaintiff’s injuries were pre-existing and not caused by the subject accident. Defendant also pointed to gaps in treatment to contradict Plaintiff’s claimed injuries. Medical Specials: $13,000.00 ($8,900.00 after reductions). Lost Wages: $12,500.00. Last Settlement Demand: $50,000.00 (at mediation). Last Settlement Offer: $22,222.72. Length of Trial: three days. Plaintiff’s Expert: Joseph A. Shehadi, M.D. (neurologist). Defendant’s Expert: None. Plaintiff’s Counsel: David A. Bressman and Thomas F. Martello, Jr. Defendant’s Counsel: Kesha Kinsey. Magistrate Ed Skeens. Case Caption: Michael Rodriguez v. Indranil Basu, et al. Case No. 17
CV 7482 (2019).
Verdict: $4,734.30 ($2,271.90 in economic damages; $2,462.30 in non-economic damages). Automobile Accident. On Aug. 27, 2015, Plaintiff Kimberly Kougher was driving eastbound on Lithopolis Road when she was rear-ended by a vehicle driven by Defendant Bryce K. Evans. Kougher alleged that, as a result of the accident, she sustained injuries to her neck and back and suffered a detached bladder. She initially received for the neck and back injury only. However, several days after the accident, she developed difficulty urinating. She was ultimately diagnosed with a vaginal prolapse in November of 2016 and underwent surgery to correct the problem. Medical Specials: $61,251.50 ($23,033.58 after reductions). Lost Wages: None. Last Settlement Demand: $40,000.00. Last Settlement Offer: $4,500.00. Length of Trial: two days. Plaintiff’s Expert: Renee Caputo, M.D. (urogynecologist). Defendant’s Expert: None. Counsel for Plaintiff: Ryan H. Lauer and
Megan R. Hayden. Counsel for Defendant: Laura E. Plank. Magistrate Myron Thompson. Case Caption: Kimberly Kougher v. Bryce K. Evans, et al., Case No. 17 CV 7503 (2019).
Defense Verdict. Medical Malpractice. 37-year-old David Nicolli underwent sinus surgery on Dec. 22, 2017 with Defendant Boris Karanfilov, M.D. A week later, Nicolli returned to Dr. Karanfilov for routine postoperative care. Later the same day, Nicolli was taken to the emergency room due to severe headaches. That night he lost consciousness and had to be intubated. He was found to have suffered a dissection of his left vertebral artery. He remained unconscious and intubated until his death a week later. The administrator of Nicolli’s estate sued Dr. Karanfilov and his professional corporation, alleging that Dr. Karanfilov fell below the standard of care in failing to send Nicolli directly to the emergency room for evaluation of his headache. According to the administrator
of Nicolli’s estate, Nicolli would have survived if he had received emergency care earlier in the day. Dr. Karanfilov denied that he fell below the standard of care and denied that he caused Nicolli’s death. Medical Specials: $175,493.60. Lost Earning Capacity: $2M. Last Settlement Demand: $2M policy limit. Last Settlement Offer: None. Length of Trial: six days. Plaintiff’s Experts: John Bogdasarian, M.D. (otolaryngologist), Eugene Saltzberg, M.D. (emergency medicine specialist), Avery Evans, M.D. (neuroradiologist), David Boyd, Ph.D. (economist). Defendants’ Experts: Eric Bourekas, M.D. (neuroradiologist), Brett Scott, M.D. (neurosurgeon), Pierre Lavertu, M.D. (otolaryngologist), Howard Levine, M.D. (otolaryngologist), John DelGaudio, M.D. (otolaryngologist), Bauer Sumpio, M.D. (vascular surgeon). Counsel for Plaintiff: William S. Jacobson. Counsel for Defendants: David H. Krause and Adriann S. McGee. Judge David Young. Case Caption: Anthony J. Nicolli, et al. v. Boris Karanfilov, M.D., et al., Case No. 17 CV 6993 (2019).
Monica L. Waller, Esq.
Lane Alton & Horst mwaller@lanealton.com
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Hickey • Thomas W. Hill • Gerald Franklin Hinkle II • Christopher E. Hogan • H. Ritchey Hollenbaugh • Edwin J. Hollern • Eugene L. Hollins • Vincent I. Holzhall • Douglas E. Hoover • John W. Hoppers • Dennis E. Horvath, III • Edward G. Hubbard • James J. Hughes, III • Dwight I. Hurd • Jeffrey W. Hutson • Cynthia Ellis Hvizdos • John D. Hvizdos • Richard B. Igo • Daniel J. Igoe • Frederick M. Isaac • Janet E. Jackson • D. Ryan Jankowski • Vicki L. Jenkins • Caitlyn Nestleroth Johnson • Calvin T. Johnson, Jr. • John P. Johnson, II • Kiehner Johnson • Christopher Jones • John S. Jones • Stephen D. Jones • Michael S. Jordan • Jennifer J. Joseph • John J. Joseph • Michael D. Juhola • Jeffrey J. Jurca • Stanley R. Jurus, Jr. • Bradley D. Keating • Rebecca C. Kells • Russell A. Kelm • John W. Kennedy • Robert W. Kerpsack • Russell W. Kessler • Allen S. Kinzer • Mark Kitrick • Zachary M. Klein • Kenneth R. Kline • Robert A. Koblentz • Bradley P. Koffel • Joseph E. Kohler • Katherine K. Kremer • Kevin F. Kurgis • John L. Landolfi • William M. Lane • Susan M. Lantz • Donald B. Leach, Jr. • Gerald S. Leeseberg • Paul W. Leithart, II • David J. Leland • Robert A. Letson • Richard L. Levine • Phillip G. Lilly • Scott T. Lindsey • Thomas H. Lindsey • Thomas K. Lindsey • Ronald G. Linville • Jeffrey A. Lipps • Marion H. Little, Jr. • Katheryn M. Lloyd • David A. Lockshaw, Jr. • Steven M. Loewengart • Thomas L. Long • Richard L. Loveland • William L. Loveland • J. Richard Lumpe • Patrick D. Maguire • Daniel M. Maher • Kent R. Markus • Robert D. Marotta • Jonathan W. Marshall • LeeAnn M. Massucci • Michael L. Maxfield • Michael D. McCarthy • George C. McConnaughey • Leon M. McCorkle, Jr. • Kerry L. McCormick • Timothy J. McGrath • Stephen L. McIntosh • Kristen E. McKinley • David J. McNichols • Christopher R. Meyer • David P. Meyer • Richard F. Meyer • Jay E. Michael • Brett L. Miller • Robert P. Miller • S. Michael Miller • Terrance M. Miller • Timothy T. Miller • Charles K. Milless • Daniel J. Minor • Denise M. Mirman • Joel H. Mirman • Nancy E. Morrison • Scott R. Mote • James S. Mowery, Jr. • Stephen A. Moyer • Theodore M. Munsell • Timothy E. Murphy • Bernard M. Murray • K. Wallace Neidenthal • John C. Nemeth • David M. Neubauer • D. Wesley Newhouse • Dennis R. Newman • Joseph Nigh • William A. Nolan • Ashley L. Oliker • Andrew W. Owen • Robert G. Palmer • David T. Patterson • David C. Patterson • Kelly C. Patton • Samuel A. Peppers, III • Robert J. Perry • Georgeann G. Peters • John J. Petro • Mark Petrucci • Christopher R. Pettit • Gina M. Piacentino • William R. Polhamus • Mark C. Pomeroy • Rosemary Ebner Pomeroy • Frederic A. Portman • Charles C. Postlewaite • Gary Paul Price • Rebecca Roderer Price • Gregory D. Rankin • Robert L. Ratchford, Jr. • Frank A. Ray • James A. Readey • Susan D. Rector • Frank J. Reed, Jr. • William J. Rees • Lisa Pierce Reisz • James K. Reuss • R. L. Richards • Timothy A. Riedel • Margaret J. Ritenour • Paul D. Ritter, Jr. • Ronald A. Robins, Jr. • Heather B. Robinson • Matthew J. Roda • Douglas L. Rogers • Bridgette C. Roman • Michael J. Rourke • Christopher C. Russell • James A. Rutledge • James G. Ryan • Philip P. Ryser • James A. Saad • Michael D. Saad • Jeffery D. Sammons, CPA, MBA • Charles Rockwell Saxbe • Scott Wilson Schiff • Michael A. Schlonsky • Charles A. Schneider • Karl H. Schneider • Keith W. Schneider • Richard W. Schuermann, Jr. • John D. Schuman • Joel E. Sechler • Jonathan Rea Secrest • Shana Ortiz See • Samuel H. Shamansky • Carol A. Sheehan • Alan Wayne Sheppard • Kevin T. Shook • David I. Shroyer • Gordon P. Shuler • Alex Shumate • Kimberly Callery Shumate • Richard W. Siehl • Thomas J. Sigmund • Belinda Henderson Simile • Carl D. Smallwood • Elizabeth T. Smith • George C. Smith • Lee M. Smith • Scott Elliot Smith • Jill M. Snitcher • Ronald L. Solove • Michael Soto • Beatrice K. Sowald • Heather G. Sowald • Christopher J. Spiroff • Michael L. Squillace • Stanley R. Stein • James H. Stempien, Jr. • J. Scott Stevenson • J. Douglas Stewart • Richard K. Stovall • Evelyn Lundberg Stratton • A.C. Strip • Robin L. Strohm • Roger P. Sugarman • Ira B. Sully • Thomas E. Szykowny • Thomas M. Taggart • Thomas Taneff • Susan M. Temple • J. Troy Terakedis • Myron N. Terlecky • David H. Thomas • Melissa L. Thompson • Steven W. Tigges • Michael C. Tomkies • Kathleen McManus Trafford • Gregory M. Travalio • Thomas W. Trimble • James P. Tyack • Jonathan T. Tyack • Thomas M. Tyack • Anne M. Valentine • Frederick A. Vierow • Daniel R. Volkema • William J. Wahoff • David A. Wallace • Thomas H. Wallace • Robert J. Walter • G. Samuel Wampler • Charles C. Warner • Geoffrey E. Webster • Robert J. Weiler • Amy J. Weis • Robert Werth • E. Joel Wesp • Edward F. Whipps • Angela Paul Whitfield • Scott N. Whitlock • Kelly M. Wick • Alec Wightman • Linda Ann Wilkins • John P. Witten • Barry H. Wolinetz • William H. Woods • Bradley B. Wrightsel • R. Douglas Wrightsel • Thomas D. Wyatt • Michael E. Zatezalo • John W. Zeiger • James A. Zitesman • Benjamin L. Zox • Elizabeth J. Zuercher
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Next Issue: Winter 2021 TOPIC: DIGITAL LAW
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