Already knowing the answers when you walk into court isn’t unfair, it’s un-stupid. At S-E-A, we’ve lived with the burden of proof every day for the last 45 years. In the process, we’ve assembled a multi-disciplinary team of scientists, forensic engineers and researchers all focused on finding real answers. Answers that will stand up to testing in the lab, the field and in court. So choosing to take advantage of our experience and expertise is not only ethical, it is conclusive evidence that you are just as smart as your clients hope you are. Call Jason Baker at 800-782-6851 or vist www.SEAlimited.com for more information.
THE ENGINEERING & SCIENCE BEHIND THE ANSWERS 2
Summer 2015 Columbus Bar Lawyers Quarterly
© 2015
CBA Table
Summer 2013 Columbus Bar Lawyers Quarterly
3
President’s Page
The Law as a Service Profession; The Bar as a Service Organization By Jay E. Michael
As professionals, we have an obligation to serve our clients. Looking back over the past decade or two, there have been monumental changes in the way we engage in the practice of law, especially in the use of technology. Today our clients expect immediate access to us through mobile phone calls, emails, even texts and tweets. I am honored to serve as president of the Columbus Bar Association in 2015-2016. As I have prepared to take on my role for this coming year, I have reflected on what the word service means to me. Personal connections with my clients and with my colleagues within the legal community have been the cornerstone of my practice. The opportunity to serve others has been my greatest reward in both my private practice and during my time serving on the Board of Governors. I think we all, as lawyers, should reflect upon the ways in which our practices serve our clients and the legal profession. I know that the practice of law is like a slippery eel. When you say it is a profession, I will tell you that it is a business, and when you say it is a business, I will tell you that it is a profession. Establishing and maintaining our practices has become increasingly difficult as the surplus of lawyers and the competition of online legal services seems to cut into profits. The economy has had an effect on the practice of law just as it has on other businesses and professions, but we need to keep in mind that we can and do make a difference in people’s lives. As we serve our individual clients, we can also serve our communities by providing pro bono services or volunteering our time to charitable causes. As professionals, we have an obligation to serve our clients. Looking back over the past decade or two, there have been monumental changes in the way we engage in the practice of law, especially in the use of technology. Today our clients expect immediate access to us through mobile phone calls, emails, even texts and tweets. As lawyers, we must also serve the profession. While there have been significant changes in the way we practice law, our duty to our clients has not changed. While we know that a great many people do not trust lawyers in general, they do trust their own lawyers. We must always be aware that each of us is a reflection of the legal profession and we have the opportunity every day to shape the public’s perception of lawyers. While the practice of law continues to evolve and grow in different directions, our duty to our clients and to the profession does not change. Our duty to our clients must be foremost in our thoughts, and in all of our dealings with 4
Summer 2015 Columbus Bar Lawyers Quarterly
our clients and with our fellow lawyers we must exhibit the highest standards of ethics, integrity and professionalism. Continuing on the theme of service, I have also reflected on how that applies to the Columbus Bar, through both the organization’s responsibilities and our roles as members. The mission of the Columbus Bar Association is to serve you, which in turn enables you to better serve your clients. Through staff members and services offered, our bar association serves as a tool to help you grow personally as a lawyer and help the central Ohio legal network grow collectively as a community staple. There are many ways to become involved and support the Columbus Bar, and your membership provides numerous benefits including access to Fastcase for legal research, CLE discounts, insurance, the Lawyer Referral Service and publications. These benefits serve to build your knowledge, your expertise, your connections and your legal career. Aside from the tangible benefits a membership provides, the intangible rewards are boundless. The Columbus Bar brings together a network of excellent lawyers, connected through our shared goal - serving the legal needs of central Ohioans. We serve each other by playing an active role in the Columbus Bar, each bringing our own unique talents and perspectives to the organization as a whole and helping to grow the legal expertise of one another. In the coming year, I look forward to watching our bar association grow even further. I am honored to take an active role in that growth as your president, working with our new Board of Governors and all of our members to continue to solidify the excellent reputation of the Columbus legal community and find new ways to expand our organization. Thank you.
Jay E. Michael, Esq. The Law Offices of Jay E. Michael jay@jaymichaellaw.com
OUR CIVIL RIGHTS SPRING: CONTINUING THE CONVERSATION By Judith M. McInturff We, as Americans, face defining moments on a continuum. Our defining moments are ideally guided by those basic principles to which we are bound, laid out neatly by our many forefathers in a document known as The Constitution. As we wait for the latest United States Supreme Court 14th amendment interpretation, this time on gay marriage in the Obergefell v. Hodges cases, it is time for us to stop and think about civil rights in a more basic and holistic way. It is a privilege to live in a nation that allows a crazy quilt of opinion, adhered by a singular written creed that defines us all. Solicitor General Donald Verilli, on behalf of the federal government in the Obergefell cases, stated: “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.” Consider the common humanity of all of those classes who have, in the past or present, suffered the sting of exclusion and its concomitant simmering judgment. In fact, any number of segments of humanity could be substituted in the place of “gay and lesbian” and the statement would be equally powerful. “Women are equal.” “African Americans are equal.” “Jews are equal.” We lawyers are uniquely qualified to converse on our constitution and civil rights. Prone to reasoned deliberation after reflective thought based on legal history, lawyers shepherd the intent of our forefathers into the 21st century and beyond. Our Columbus Bar provides all of us a safe place to voice the richly diverse opinions necessary to percolate change.The programs that are developed at the bar, written and presented by a panoply of talented attorneys, prove to us
that spirited intellectual exchange is necessary to effectuate enduring change. Watching those programs, beginning with an examination of Loving vs. Virginia at the Martin Luther King, Jr. Civil Rights Symposium and extending to an analysis of the threat posed by non-state actors such as ISIS at the Law of War event, it should be apparent that belonging to an association that allows such intellectual examination of incendiary topics is an honor. Ferguson. Police militarization. Charlie Hebdo. No topic is off limits here at our bar, because we lawyers recognize that in order to properly serve humanity we must understand every side of those important debates. So, let’s turn back to our latest defining moment. Justice Roberts noted to the proponents of gay marriage: “If you prevail here, there will be no more debate. I mean, closing of debate can close minds, and it will have a consequence on how this new institution is accepted.” As attorneys, we cannot accept that debate will ever be fully closed. Failure to effectively communicate means failure to advance thought. Closed minds threaten justice. Our bar is a place where opinions, discussion, even heated arguments, can occur without repercussion. Upon reflection, we believe Martin Luther King, Jr. said it best: “In the end, we will remember not the words of our enemies, but the silence of our friends.” Don’t be silent. Judith M. McInturff, Esq. Columbus Bar Association judy@cbalaw.org
Summer 2015 Columbus Bar Lawyers Quarterly
5
And Speaking of the Law Library... By Angela T. Baldree After two and a half years of living in temporary quarters in the Franklin County Municipal Building, the Franklin County Law Library has moved back to its home on the 10th floor of 369 S. High St. Many people contributed to this new, modern law library, and we hope it will be enjoyed by all the citizens of Franklin County for years to come. As with most libraries, our new space has significantly less square footage than the original library in the Hall of Justice and the temporary space in the Municipal Building. It is our goal to offer exceptional service to our patrons with less space. In coordination with the move, the law library updated its website. The new site address is http://lawlibrary. franklincountyohio.gov. The new site offers a page describing our services, a page with links to other relevant legal websites and a page of our most popular forms. A direct link to our library catalog is found on the home page, so patrons can search for books located in the law library. There is also an announcements section where patrons can stay informed of events in the law library. The law library also launched a Facebook page. Patrons can like us on Facebook at http://www.facebook.com/ fclawlib. This is a great way to get the latest information on law library events. Isn’t Everything Online? In preparation for the reduction in physical space the law library weeded out portions of the print collection. We discarded out-of-date law books or books that were of little value to our patrons. We also discontinued some subscriptions that are available in other formats. It is a common misperception that “everything is online” and that having a print collection at a library is unnecessary. This is just not true. It is imperative that libraries, and specifically law libraries, maintain a robust print collection for several reasons, the least of which is what to do if the electricity or internet goes down. Due to restraints placed on us by the county, access to the actual law library is restricted to 8 a.m. through 5 p.m. Mondays through Fridays. In addition, most online vendors prohibit us from offering remote access to their databases. Those attorneys who wish to do legal research during off hours are then forced to check books out from the law library. The law library allows central Ohio attorneys in good standing with the Supreme Court of Ohio to check out books for fourteen days. Any attorney interested in getting a library card should come to the library with their Supreme Court of Ohio Registration Number. Another reason to maintain a print collection contradicts the misconception that “everything is online.” While a lot of things are online, the effort to digitize historical information is still ongoing. Our reference department gets questions 6
Summer 2015 Columbus Bar Lawyers Quarterly
frequently that cannot be answered with online resources. Recently, an attorney requested several Ohio Statutes from 1919. As of right now, Westlaw has only digitized Baldwin’s ORC back to 1993; we have General Codes back to the 1800’s. The law library also maintains a historical copy of the Columbus City Code. We also keep past copies of several other popular titles including Rules Governing Courts of Ohio back to 1979, Ohio Jury Instructions back to 1952, 10th District Court of Appeals Cases back to 1920 and Attorney General Opinions back to 1846. In preparation for the new law library the staff has been evaluating “holes” in the print collection. Due to budget constraints the last several years, key print titles lapsed. We have received input from several library users while doing a thorough inventory of the law library and have resumed former subscriptions or purchased new titles to bring the print collection up to the standards we all expect. More than thirty titles have been added in the last year including, Nimmer on Copyright, Diagnostic and Statistical Manual of Mental Disorders, Ohio Medicaid Manual, The Attorney’s Guide to Defending Veterans, as well as court rules for Indiana, Michigan, Pennsylvania, West Virginia and Kentucky. We have also added a second copy of our more popular titles including, Anderson’s Appellate Practice & Procedure in
Ohio, Anderson’s Ohio Manual of Criminal Complaints and Indictments, Anderson’s The Law of Professional Conduct in Ohio, Anderson’s The Simple Will in Ohio, Ohio Evidence Courtroom Manual, Weissenberger’s Ohio Civil Procedure Litigation Manual and Ohio Real Property Law and Practice. This ensures that even if one of these titles is checked out to a library patron, a copy will always be available in the reference collection. A Twenty-First Century Law Library Have no fear; we have not forgotten our techno-savvy patrons. Fourteen computers are available. Print release stations are available in the labs and printing continues to be 10¢ a page. All computers are equipped with ports to allow for downloading to flash drives. Downloading or emailing documents does not cost patrons anything. A new television has been installed in the conference room. Any type of electronic device can be connected to the television for meeting presentations. The conference room is available to anyone, but reservations are highly suggested. Complimentary Wi-Fi is also available. Patrons may bring their own devices into the library and connect to the Wi-Fi. Keep in mind legal databases are not accessible from personal devices. Printing from personal devices is not available. Two high functioning copiers are located in the copy room in the law library. Patrons may use these copiers to scan documents to their flash drives at no cost. Both have print release stations similar to those in the computer labs. Costs for copying continue to be 10¢ per page. An electric typewriter is available in the copy room for patrons to use. Faxing services are available in the law library. Patrons may receive faxes at 614-525-4978 at a cost of 25¢ per page. Outgoing faxing is also available. Local faxes are 25¢ a page and long distance faxes are $1.00 per page. The law library provides cover sheets if necessary. What Can We Do For You? The law library continues to offer a superb reference service. Anyone needing reference assistance can call or email the law library and our reference staff will answer your questions in whatever format is best for you. Most of the time reference questions are answered before the end of the day. There is no charge for reference assistance if documents are emailed. Only if you want our staff to print out documents is there a 10¢ per page charge. Four law library employees are registered notary publics in Franklin County. Attorneys in good standing with the Supreme Court of Ohio are afforded unlimited free notaries. All other patrons can notarize up to three documents for only $1.50.
Superseded books are available to be purchased in our Used Book Sale. This ongoing sale is located on a bookcase as soon as you enter the law library. The selection of available books and CDs is constantly changing. Patrons who follow us on Facebook get notifications every time new titles are added to the sale. Every item in the book sale is $7.00 apiece. Courtroom aids are offered to be checked out for fourteen days. Patrons may use these anatomical models for courtroom presentations. Several models are kept including spines, brains, knees, and shoulders. It’s So Pretty Aesthetically, the new law library is very pleasing to patrons and staff. Large north and east facing windows have been installed to allow much more natural light into the library. Most of the interior walls are glass and the shelves have been lowered in order to allow the natural light to flow throughout the library. The furniture has been reupholstered in fabrics that coordinate with the new warm wall colors. Patrons can also relax in our new reading area. A television broadcasts news in an area with lots of comfortable seating. If you are on a break from court, kick back in the reading area with a cup of coffee and a comfy chair, while catching up on the latest news. Law Library Programming The law library will launch a Brown Bag Lunch Series in 2015. These free, one hour programs will be offered during the lunch hour. Participants can bring a lunch into the library and participate in one of the programs. For a complete list of Brown Bag Lunch Programs, check the law library web site, call or stop in. Reservations are required for all programs. We invite everyone to visit the newly renovated Franklin County Law Library, located at 369 S. High St. on the 10th Floor of the Justice Service’s Building. The Law Library serves hundreds of clients each year, primarily attorneys and county, state and federal employees, but is open to the public interested in doing legal research.
Angela T. Baldree, MLS Director, Franklin County Law Library abaldree@franklincountyohio.gov Summer 2015 Columbus Bar Lawyers Quarterly
7
Supreme Court Raises the Stakes in TTAB Proceedings with B&B Hardware Decision By Steve C. Barsotti and Jeffrey J. Nein On March 24, 2015, the U.S. Supreme Court issued a 7-2 decision declaring that Trademark Trial and Appeal Board (“TTAB”) rulings should be given preclusive effect when the TTAB’s considerations are “materially the same” as those before a district court, provided the other “ordinary elements” of issue preclusion are established. B&B Hardware, Inc. v. Hargis Industries, Inc., No. 13-352 (U.S. Mar 24, 2015). The upshot of the Supreme Court’s decision in B&B Hardware is that the stakes are raised in TTAB proceedings, with the outcomes having serious business consequences beyond the fate of the specific trademark registration at issue. The majority opinion, penned by Justice Alito, factors into an 18-year-long dispute between B&B Hardware and Hargis Industries, both manufacturers of metal fasteners. In 1993, B&B registered the mark SEALTIGHT for metal fastener products for use in the aerospace industry. Hargis later attempted to register its SEALTITE mark with the U.S. Patent and Trademark Office in 1996 for metal fasteners use in construction of metal and post-frame buildings. B&B instituted an opposition proceeding with the TTAB, arguing against registration of Hargis’ mark due to a likelihood of confusion with its prior-registered SEALTIGHT mark. The TTAB agreed with B&B and denied registration, citing a likelihood of confusion between the marks. Importantly, Hargis did not appeal the decision. While the opposition proceeding was pending, B&B also filed a claim for trademark infringement against Hargis in federal district court. Prior to the district court’s ruling, the TTAB announced its own ruling on likelihood of confusion. B&B moved for summary judgment arguing that Hargis was estopped from relitigating the issue of likelihood of confusion due to the preclusive effect of the TTAB’s decision. The district court disagreed, stating that the TTAB’s decision did not have preclusive effect. On appeal to the Eighth Circuit, the Court of Appeals also ruled in favor of Hargis, reasoning that issue preclusion was not appropriate since district courts utilize different criteria than the TTAB in evaluating a likelihood of confusion claim. In March, the Supreme Court reversed the decision. Turning to the Restatement (Second) of Judgments for guidance, the Supreme Court announced there is no absolute rule precluding a TTAB decision from being given preclusive effect, noting that “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Restatement (Second) of Judgments §27, p. 250 (1980). Thus, even though district courts and the TTAB have minor differences (but not fundamental differences) in the details and procedures associated with determining the likelihood of confusion between two marks, as long as a final decision is reached by the TTAB on the same issue that is before a district court, deference should be given to the TTAB. 8
Summer 2015 Columbus Bar Lawyers Quarterly
Litigants in administrative trademark proceedings and infringement suits will need to carefully craft their strategies on a caseby-case basis to account for the changing risk landscape. Historically, resources devoted by parties to TTAB proceedings have been relatively scant (as contrasted with infringement actions), as a TTAB proceeding was often viewed as merely “Round 1” of a larger fight. Following the Supreme Court’s decision, the possibility of a “Round 1” knockout is very real, meaning that parties need to keep their guard up. From a defense perspective, although risk clearly existed prior to the decision, the Court has now removed any doubt that an adverse decision from the TTAB (which cannot award monetary damages) can be used as leverage in an infringement action in federal district court (which can award damages). From a plaintiff’s perspective, the ruling will force a strategic decision regarding forum to be made at the outset of a dispute, with the understanding that there will be no clear “second bite at the apple.” From either perspective, the process of TTAB opposition and cancellation proceedings will likely begin to more closely resemble contentious, more costly litigation, and losing parties at the TTAB will be more likely to appeal. The true impact of B&B Hardware will become clearer as litigants evolve their registration and enforcement strategies, and the courts begin applying the decision to TTAB rulings. Moreover, the TTAB may begin assigning greater weight to evidence of actual uses of a mark in the marketplace, uses which may be different in nature or scope from those listed in a registration, which will further impact litigation strategy. In the meantime, litigants in administrative trademark proceedings and infringement suits will need to carefully craft their strategies on a case-by-case basis to account for the changing risk landscape. The only certainty is that TTAB proceedings are likely to become more costly fights.
Steve C. Barsotti, Esq. Kegler Brown Hill + Ritter sbarsotti@keglerbrown.com Jeffrey J. Nein, Esq. Kegler Brown Hill + Ritter jnein@keglerbrown.com
For Solo Practitioners and Small Firms Sometimes the Best Office is No Office By Otto Beatty, III
Solo and small firm attorneys are often looking to keep their overhead down. One of the ways this can be accomplished is by working from primarily from home and utilizing the services and benefits of a virtual office facility. Virtual offices afford attorneys the ability to work from anywhere they choose, while enabling them to establish a professional presence and a place to meet clients in a convenientlyaccessible office atmosphere on an as needed basis. The virtual office also serves as their professional address that can be marketed and a place where they can receive their professional mail and have clients drop off documents. Virtual Office facilities are located in most of the Columbus commercial business districts – Dublin, Polaris, Downtown, Easton and New Albany. Virtual Office vs. Shared Office Arrangements? A virtual office is different from an office sharing arrangement. Most virtual office facilities provide mailbox/ address services and on-demand office space to businesses. Unlike a shared office facility or an executive suite, offices and conference rooms are rented by the hour, half-day, or by the day; as opposed to monthly or annually. The attorney does not have a dedicated office or the fixed cost of one. This is a cost-effective option if you only meet with clients in person a few times a month. The “per use” or “pay as you go” model of virtual office facilities is attractive because you only pay for office space when you are actually using it. If the attorney only uses the virtual office when he or she is billing time or charging a fee, then the hourly rental cost or office use bundle easily pays for itself. Even if a shared or single rental office only costs a few hundred dollars a month, it still may not pay for itself every month. Finally, virtual office facilities have staff and other technological resources designed to support small businesses and mobile professionals. Virtual Office vs. Traditional Full-time Office Lease? For most solo practitioners, working from home and utilizing a virtual office is a better choice than entering into commercial office lease. Most landlords require a five year commitment. Most virtual office facilities require a commitment of less than a year; thereby providing the practice with more flexibility. The financial investment and commitment involved in a traditional office far exceeds the lease. Utilities, office equipment, furniture, phone service and internet service are just a few expenses that one has to incur in establishing a traditional office outside of their home. Working primarily at home and strategically using a virtual office, allows one to avoid duplicating or eliminate these expenses.
Professional Image and Marketing Many attorneys worry that not having a full-time office will compromise their image and be unattractive to clients. In addition to the ethical concerns, most clients prefer to meet with a lawyer in a private office or conference room in a professional environment. Most attorneys prefer not to have clients meet at their personal home. The virtual office addresses both of the concerns of clients and attorneys. Furthermore, a virtual office can enhance your personal image by allowing you to establish a professional presence in a prestigious location such as Easton or Dublin without paying pricy rent in these areas. While most lawyers are not required to have an office near the courthouse or in a particular neighborhood, certain addresses or areas may be more appealing to certain prospective and current clients. Many out-of-town firms have used virtual offices to open a branch office in Columbus. Others attorneys utilize virtual offices to have multiple offices throughout Columbus both for meeting and marketing purposes. Depending on the location of the facility, the virtual address can also increase your law practice’s search engine ranking for those searching for lawyers online. Many virtual office facilities are staffed, thereby allowing the practice to have a full-time front desk without a full-time office. Attorneys can have their clients drop off documents and payments to a reliable and professional person. When clients visit the office, they are greeted and offered refreshments, giving the same professional feel as a larger firm. Most importantly, the attorney who minimizes his or her expenses by utilizing a virtual office can devote more resources towards other marketing and technological solutions to maintain and grow their practices. Many attorneys utilizing virtual office have asserted that their clients actually admire that their fees are not being invested in a fancy office and furniture. In sum, many solo practitioners and small firms have found that a virtual office combined with a home office can be a cost-effective way to reduce overhead expenses while maintaining a professional presence. This trend will continue to grow as more attorneys discover this workplace innovation.
Otto Beatty, III, Esq. Managing Director, Intelligent Office obeatty@intelligentoffice.com Summer 2015 Columbus Bar Lawyers Quarterly
9
Up and Coming Attorneys Help Legal Aid Thrive By Dianna Parker Howie Each day, members of our community encounter legal barriers to housing, employment, childcare, medical coverage and other basic human needs. The Legal Aid Society of Columbus is charged with meeting these civil legal needs for those who cannot afford representation. With our funding at an all-time low, LASC is exploring how we can more strategically and efficiently deliver legal services, while also engaging more volunteers, particularly those attorneys who are new to the practice of law. This article explores new attorney pro bono participation, shared through the perspective of ten outstanding “new” attorneys who volunteer with LASC: Anna Sanyal, Andrew Peiffer, Kwame Christian, Jesse Branner, Jason Gerken, Lynda Clark, Ryan Sander, Eric Becker, Sheena BatemanCarrothers and Michalea Delaveris. We have a professional responsibility to ensure access to justice. Paragraph six of the preamble to the Ohio Rules of Professional Conduct urges all attorneys to “devote professional time and resources and use civic influence to ensure equal access to our system of justice.” This call to action encourages all practitioners—regardless of their areas of practice—to help our most vulnerable citizens. Families in shelters trying to find safe, affordable housing, victims of domestic violence fighting to cut marital ties with their abusers without sacrificing their children’s financial stability, military veterans struggling to reenter society free of criminal records or overwhelming debt, adults with life-threatening conditions forced to navigate red tape to obtain medical coverage for medication, accommodations or surgery, and home-bound senior citizens frightened by calls from debt collectors threatening to throw them into debtors’ prisons— these are the stories of the people in our community seeking access to justice. These are the clients who are helped when attorneys meet the Preamble’s challenge. 2014 Moritz graduate Andrew Peiffer accepted a position with Student Legal Services at The Ohio State University after graduation, but before he had even taken the July bar exam, he contacted LASC and asked how he could help. Andrew, who now volunteers as a licensed attorney at the Faith Mission brief advice clinic, explains how pro bono fulfills his professional obligation. “I became a lawyer so that I could work in the service of others. As attorneys, the service we provide is a vital one, and I believe that our unique qualification to provide it obligates us to provide it for those whose need exceeds their ability to pay for it.” Local law schools instill this expectation in their students, as evidenced by increasing student pro bono participation. Ryan Sander donated more than 550 hours to LASC during law school at Capital University, where he earned his JD in 2014. Now working in compliance at a private firm, he volunteers after work at local clinics. He notes, “The need for an advocate and someone who cares and listens is something everyone can relate to regardless of socioeconomic status.” 10
Summer 2015 Columbus Bar Lawyers Quarterly
Pro Bono satisfies your internal call to action. In addition to their ethical motivations, many attorneys who volunteer through LASC-sponsored clinics are drawn to service through faith. Lynda Clark, who works for the Franklin County Clerk of Courts, describes her motivation to volunteer at the clinic at New Salem Missionary Baptist Church clinic, where she is also a member. “I believe that having been blessed to earn a law degree I should be a blessing to those less fortunate.” Led by Moritz professor Vincene Verdun, New Salem church partnered with LASC in 2012 after recognizing that low-income members of the Linden community had unmet legal needs, and their church happened to have many attorney members. Others are drawn to pro bono by their own internal motivations. Anna Sanyal, who works in compliance at JP Morgan Chase, was raised in an immigrant family that espoused the Horatio Alger “bootstraps” worldview. Her decision to volunteer was inspired after attending a “Bridges Out of Poverty” training session—a program that raises awareness about the sometimes hidden obstacles facing low-income people—that single-handedly changed her worldview forever. She recalls, “I realized that despite being a hard worker, without the proper education, guidance and resources, it is hard to break the cycle of generational poverty. More importantly, I learned that we all need to support each other during times of need in order to have a vibrant and successful community.” LASC finds working with twenty-something attorneys to completely defy the somewhat negative stereotypes associated with the millennial generation. These new attorneys set aside significant portions of their free time and find ongoing motivation by personally witnessing the concrete impact on their clients’ lives. Kwame Christian graduated from Moritz in 2013 and started his career working in policy and research at the Kirwan Institute at OSU. His experience at the New Salem clinic is illustrative. “Beyond legal advice, we give clients the opportunity to be heard. A number of my clients just wanted to talk to someone who would take the time to listen and validate their emotions. This emotional validation can, in some instances, be just as important as the practical legal advice we provide.” You will learn so many new skills that will make you a better lawyer. Although our new lawyers cite the desire to help and satisfy ethical expectations as the primary motivators, the secondary benefits to their careers are undeniable. Sheena Bateman-Carothers, a 2013 Akron Law graduate, was drawn to pro bono initially as a networking tool. After assisting with brief advice clinics, Sheena started volunteering inhouse with the LASC Domestic Team, donating more than 160 hours in 2014. Working closely with her LASC mentor Kathi Schear, Sheena gained experience in family law, previously unfamiliar to her. “I have been able to interview clients, write various pleadings and motions and represent
Bateman
Becker
Branner
Christian
Clark
Delaveris
Gerken
Peiffer
Sander
Sanyal
domestic violence victims in Civil Protection Orders,” she notes. Sheena also recognizes that despite her primary goal of practicing criminal law, her practice has been enhanced by understanding the civil law overlap for issues such as domestic violence. For attorneys like Lynda Clark, who accepted a nonlegal position during the economic downturn, pro bono participation is essential to maintaining a connection to the practice of law and one’s continuing legal education. “I want to make sure that I use my legal skills at all possible times,” she explains. Lynda credits free Continuing Legal Education programming sponsored by LASC and opportunities to exercise her skills from law school. Even new practitioners with legal jobs can develop practical and fundamental skills through pro bono. Andrew Peiffer relates, “As a new attorney, I am learning every day how much cannot be learned in a classroom. The professional benefit of my pro bono experience is a crashcourse in a variety of legal topics, as well as the development of important practical skills, such as communicating with clients, managing expectations, and, all too often, delivering bad news.” While studying at OSU Moritz, Michalea Delaveris started volunteering at the LASC-sponsored YWCA Family Center clinic. Now an associate at Baker Hostetler, her volunteer work continues to serve as an excellent training ground to develop core competencies. “On a professional level, pro bono experience has been critical to growing subject matter and skills proficiency. Brief advice clinics have helped me learn to research efficiently, communicate effectively with clients and develop an internal due diligence checklist to spot-check my own advice.” Like the clinic volunteers, attorneys who litigate pro bono cases referred by LASC can also build skills. Jason Gerken joined Porter Wright as a new litigation associate in 2013. Last year, he began accepting pro bono cases from LASC’s Volunteer Resource Center, taking advantage of his firm’s policy of matching new associates with experienced volunteers who mentor and co-counsel. Jason acknowledges, “As a young associate at a large firm, in can be difficult
in the normal course of business to find opportunities to interact with clients and opposing counsel, or to truly run a case from start to finish, but pro bono work affords those opportunities.” You can meet attorneys who will help you become a better lawyer. We all appreciate a good firm reception or cocktail hour, but pro bono participation can serve as a non-traditional, organic networking opportunity for new lawyers. Eric Becker of Squire Patton Boggs was drawn to pro bono by his Supreme Court mentor Jim Abrams of Taft Stettinius & Hollister, who encouraged Eric to volunteer at clinics to gain involvement in the local legal community. Interactions at brief advice clinics also lead to valuable mentoring relationships for new attorneys. Kwame Christian is building a solo practice, and through the New Salem clinic, he engages with other pro bono attorneys, many of whom have years of experience as private practitioners. Kwame notes, “You form real and lasting connections with your fellow volunteers.” Pro bono case representation also affords new lawyers in large offices outside access to members of their firms. By co-counseling with more senior attorneys on cases referred by the LASC Volunteer Resource Center, Jesse Branner, who joined Bricker & Eckler in 2013, uses her pro bono cases to “strengthen relationships with partners and other attorneys in the firm.” You are not alone. Stepping into the unknown can be scary—especially for those of us who worked so hard to obtain a law license. Delving into unfamiliar substantive areas is daunting, but this lack of poverty law expertise is not an insurmountable challenge. Legal Aid provides training, mentors, research, handbooks and sample pleadings. Ryan Sander comments, “The pro bono training given by LASC is very helpful and more than enough to help at brief advice clinics. For full Continued on Page 12 Summer 2015 Columbus Bar Lawyers Quarterly
11
Continued from Page 11 representation, although there may be a learning curve, you will find there are plenty of attorneys who are willing to help you gain the knowledge you need to successfully advocate for your client.” Clinics are excellent training grounds for new attorneys. Andrew Peiffer acknowledges that LASC clinics staffed by multiple volunteers are ideal because “even inexperienced attorneys can gain experience in a safe way.” Pro bono is worth your time. All attorneys are busy. New attorneys—many of whom are starting families, building practices and developing professional reputations—are swamped. Eric Becker describes his approach to this challenge. “Particularly for private sector attorneys, time is the one non-replenishing resource everyone wishes they had more of. But keeping an organized schedule—utilizing calendar and scheduling tools—is the best way to reserve time for volunteering while completing one’s work related obligations.” New attorneys should also be realistic about how much time they can commit. “Give yourself permission to start slow,” advises Jesse Branner. “Brief advice clinics are a great starting point – you show up for a few hours, talk to clients, and leave. This is often issue spotting and directing clients to the appropriate services, and you don’t take any of the clients with you.” Anna Sanyal agrees, “I make a realistic time commitment that I can actually honor. For me, that is usually one or two nights a month. Because I primarily volunteer at clinics
The Columbus Medical Association Foundation
which usually occur after the work day, I am able to balance both.” For those who handle cases referred from LASC, developing one’s own pro bono niche helps ensure that the undertaking is still manageable. Jesse took several VRC consumer cases in a row. “I suggest finding a type of case that you are comfortable with and focusing on those. You become more efficient with representing clients when you understand exactly what the process will look like.” Clients come to LASC and the local clinics because they are in crisis and are struggling to maintain their daily living necessities. A few hours of attorney volunteer time makes a significant impact on a client’s livelihood. Jason Gerken addresses how and why he manages to carve out time despite his aggressive schedule. “It’s very easy to make time when you realize that your client’s problem is his or her own version of ‘bet-the-company’ litigation. When that becomes clear, working through lunch, staying late, or coming in to the office on the weekend is a small sacrifice to make.” You will enjoy it. In the end, pro bono work is about the people you are helping, and helping people feels really good. “Each one of my pro bono clients has been incredibly grateful, and truly appreciates what we are able to accomplish for them,” Jesse reflects. “Even if we don’t arrive at the desired result, they always say thank you and recognize our effort.” In 2014, 99 attorneys with admission dates since 2010 donated more than 2800 hours to LASC. This number is more than 50 percent of the total hours donated by pro bono attorneys to LASC, even though they make up less than onethird of the total volunteer roster. As each of our outstanding volunteers highlighted today ultimately leaves the “new attorney” category, LASC looks forward to working with new graduates who can help ensure access to justice in our community.
A unique 501(c)(3) partnership of physicians and the community that can assist your clients in fulfilling their charitable interest in the medical and health and wellness arena. For more information on the Foundation, it’s charitable options and services, contact
Weldon E. Milbourne 1390 Dublin Road, Columbus Ohio 43215
614.240.7420
wmilbourne@goodhealthcolumbus.org
Learn more at www.goodhealthcolumbus.org/cmaf 12
Summer 2015 Columbus Bar Lawyers Quarterly
Dianna Parker Howie, Esq. The Legal Aid Society of Columbus dparker@columbuslegalaid.org
The Gap Between Academic and Real World Mediation By Jeffrey W. Hutson The idea for this column struck me as I sat with a mix of volunteers who had agreed to serve as mediators in the American Bar Association’s Regional Representation in Mediation Competition hosted by The Ohio State University Moritz College of Law. Among the volunteers were fairly recent graduates of the law school and those of us with a range of experience as mediators. In the mediator training session, one of the more experienced mediators related that he really did not understand the judging criteria for the students, a scoring sheet I also found unfamiliar and a little challenging. Our predicament underscored a number of things: the varied training of those of us in the room, the wide diversity of ADR practice and the teaching of ADR as an academic course in the law schools - kudos to the Moritz College of Law’s Nancy Rogers for this. We were expected to evaluate students on their ability to communicate with each other, face to face, in general sessions with their clients. The students were expected to develop the facts, identify their concerns, understand the concerns of the other party, explore alternative solutions and arrive at a negotiated solution. The role of the mediator was limited to occasionally facilitating when the students stumbled and handling caucus sessions only when requested by the students. The students were allowed one caucus, which was optional and not always used. The closest I came in law school to this kind of training was a single seminar semester course in settlement negotiations. At this time, I do not believe the academic model used in the mock mediations would work in Columbus for construction and commercial mediation. Contrast my experience at the law school to a mediation I conducted recently. As usual I explained to the lawyers prior to the mediation that I would conduct a general session, that opening statements were optional and that we would then proceed to caucus. The lawyer requesting the mediation immediately pushed back on the idea of any general session, and strongly suggested we go immediately into caucus sessions. He was not alone in his distrust of general sessions. Some very successful mediators do not use general sessions at all, seeing them as a waste of time and fraught with the danger of exploding tempers and hardening positions. In current commercial practice the emphasis is on “shuttle diplomacy,” and this process occupies the majority of the mediator’s time. Why the gap between the academic and the “real world” of commercial mediation? My analysis suggests that the primary reasons are the expectations of lawyers hiring mediators and the kind of training most lawyers have in advocating for clients in adversarial settings. Lawyers I encounter in my practice are looking for (1) an impartial sounding board to get some sense of how successful their positions will be in a court room, (2) someone who can communicate with his or her opponent who is often viewed as difficult and uncooperative, (3) a track record of success, meaning settlements achieved, (4) experience in the given
field of practice as well as experience mediating like cases and (5) often someone who can talk sense to his or her client who the lawyer realizes has unrealistic expectations. Trained mediators will immediately recognize the pitfalls inherent in this approach: (1) distrust by the parties or clients arising from the lack of transparency and a sense that the mediator is “on the other side,” (2) a sense that the mediator is forcing or coercing a settlement and anger at feeling pressured to do something they don’t want to do, (3) a feeling of being “left out” if the mediator spends more time with other people, (4) sometimes less than a complete or global settlement and (5) a sense that justice and fairness are being sacrificed for a settlement at any cost. All of these are fair criticisms. Different mediators resolve these concerns in different ways. Notwithstanding resistance from lawyers, I do use general sessions, always at the outset, and often at interim points in the process. The initial general session is crucial in setting the tone for the mediation and establishing realistic expectations. Parties need to hear from the mediator that he or she is impartial, that he or she will respect confidences, that the process ultimately is theirs to settle, not the lawyers nor the mediators, that the mediator has no power to dictate a settlement, that the mediator is not giving legal advice as that comes solely from their counsel and that the mediator will not waste their time if he or she perceives that the case cannot be settled and the parties need to explore other avenues to resolve the issues. In a neutral manner, I like to demonstrate an understanding of the uncontested facts as well as of the issues dividing the parties, generally in lieu of counsel making opening statements. While some lawyers are very good at stating their positions in a positive way - as law students are now trained to do in mediation classes and competitions - others use the opening statements to strike awe and fear in the opposing side. This latter strategy does not have a great history of success. Using the caucus, the mediator is usually better at communicating the other side’s arguments in a way that demonstrates both its concerns and the sincerity of their positions. My experience judging these competitions over the last two years has taught me a lot about mediation skills and has demonstrated the value and importance of bringing the teaching community and practicing community together. I encourage other experienced mediators, regardless of your approach to mediation, to volunteer for these competitions.
Jeffrey Hutson, Esq. Lane Alton & Horst jhutson@lanealton.com Summer 2015 Columbus Bar Lawyers Quarterly
13
Live Jury Deliberations: A Peek Behind the Closed Door By William C. Becker and Jeffrey L. Maloon
What would you give to be a fly on the wall as the jury deliberated your case?
front of the jury making the argument that your case will stand just fine without their testimony. We know this visual worked as it was discussed favorably by our mock jury in their deliberations.
Very little has been done to research why and how juries decide cases. We recently had the opportunity to watch a mock jury deliberate and were pleased to see that many of the things that we teach and are taught about trial practice actually do work.
Jurors Appreciate Candor While we have been trained to advocate for our clients, jurors appreciate an honest presentation of the evidence and our mock jury confirmed that they have come to expect it more when one is representing the government. Judge Schneider shared an example of what he found to be a particularly effective closing argument. It was a simple demonstration. Old school. Counsel took a sheet of paper, slapped it on the projector for all to see, drew a line down the center, and then proceeded to list the pros and cons of his case. It is sometimes easy to forget that jurors hunger for the truth as they struggle with the evidence and coming to the right decision in the case. We have all learned and have been taught that you can’t hide your weaknesses. Perhaps it is time to consider being more candid with the jury, in a persuasive way, then we have been in the past.
The Set Up Thanks to Tom Shields, we were able to recruit volunteer jurors from the Franklin County Municipal Court jury pool once their service had been concluded. We supplemented our pool with members of our office, each having a profile to play other than themselves. With the Honorable Charles Schneider from the Franklin County Court of Common Pleas presiding, we then presented a closing argument from one of our trial practice cases. The jurors were allowed to take notes. They received an abbreviated charge from Judge Schneider and then were provided with copies of exhibits that were presumed to have been admitted during the course of the trial as well as written jury instructions. With the benefit of the technology in the Ohio Court of Claims, the jurors then retired to a conference room where their deliberations could be viewed live back in the courtroom. Themes Matter We have learned and have been taught that themes matter. It was very heartwarming to hear the mock jurors repeat our themes, or dare we say sound bites, in their jury deliberations. We saw themes matter as jurors who you have won over seek your words to persuade their fellow jurors. With all of the clutter of extensive testimony and voluminous exhibits, your themes or select words rise to the top of the jury’s deliberations. Be Visual Again, we learn and are taught the importance of being visual in the presentation of our case. But being visual doesn’t mean showing a bunch of words. In fact, we heard from our jurors that when we pick a document with a lot of words and just try to highlight a few, they look to see what we are not showing them. Lesson learned: The less wordy the better. In our mock case, we had a witness that came with a lot of baggage. After you do your best trying to defend their testimony, consider eliminating their words in closing by taking a page or two of their testimony and ripping it up in 14
Summer 2015 Columbus Bar Lawyers Quarterly
Jurors Care About Who Is In And Who Is Out In our mock case, jurors spent a fair amount of time talking about the culpability of the “victim” – a non-party. The jurors also talked about why the government wasn’t prosecuting the company the Defendant worked for. Although the liability of non-parties can now be apportioned, we have to anticipate that our jurors will be troubled by who is in and who is out of the case. Around The Room We Go With our mock jury, the foreman was selected on a volunteer basis. It wouldn’t surprise us if this happens more often than not. Although “leaders” are more likely to volunteer, the foreman didn’t have any greater influence over the other jurors. Our jury was very respectful of the opinions of all. Something that we can perhaps anticipate with most juries. Although the leaders appear to have spoken first, our jury went around the room to make sure all opinions were heard. There was a tendency by those with strong opinions to want to rebut what they were hearing from others who didn’t share their views. Nonetheless, the jury got through all opinions. Thus, even the non-leaders you left on the jury may be heard from. The “Weight Of The Evidence” As the jury began their deliberations, they passed around the exhibits and jury charge. While being a proponent of jury interrogatories, I regretted that we hadn’t submitted any to help them focus their discussions. We used very few exhibits, of which I’m also a big
proponent, in this reader’s digest version of a trial. One has to wonder whether our jury would have been as willing to review the exhibits if they were piled high. As we debriefed the jury afterwards, there was a consensus that they would have preferred to have the exhibits in their hands rather than looking at them from the projector. While this might involve a little bit more time to accomplish, through moving to admit Exhibits as used, it is something that should be considered as being worth the time. Conclusion - It All Matters It starts at the beginning. If you don’t have the right people in the room, you are not going to like the way your deliberations go. Themes, visualization of the evidence, simplifying the evidence, dealing with your weaknesses, being honest with the jury, anticipating their questions and yes, even anticipating their deliberations all matter – all come together for a successful deliberation and outcome. Jurors truly want to do the right thing. They hunger for the facts. They hunger for honesty. Feed that hunger and you will be well on your way to a satisfying verdict.
William C. Becker, Esq. Ohio Attorney General’s Office William.Becker@ohioattorneygeneral.gov
Jeffrey Maloon, Esq. Ohio Attorney General’s OfficeJeffrey. Maloon@ohioattorneygeneral.gov
Steps Your Court Reporter Takes to Prepare Your Transcript for Production By Angie R. Starbuck Do you ever wonder how a court reporter gets such a clean transcript to you after your deposition and the steps she takes to accomplish this? Imagine this: You’ve just completed an all-day deposition of the expert witness in your case and you’ve lightened the load in your briefcase by giving all your exhibits to the court reporter. You’ve told her that you need the transcript expedited. You’ve been watching the realtime screen all day, so you know how clean the transcript is. It can’t be that difficult or take that long to get the transcript ready for delivery, right? While your favorite court reporter is very good at her job – she must be, otherwise you wouldn’t hire her, right? – producing a transcript isn’t as easy as hitting the print button on her computer. Here are some of the steps a good court reporter will go through once the deposition is over in order to produce a clean, accurate transcript that will help you and your client in their case: • The court reporter will either read through the entire transcript herself or she will hire a person called a scopist that will read through the transcript. The purpose of this is to correct any untranslates – words that don’t translate from steno into English on the court reporter’s computer, to add punctuation and to check spellings of proper names. • The court reporter will also insert the descriptions and page locations of each exhibit mentioned during the deposition in order to create the index page. • She will also add the title pages which requires her to enter the caption of the case and the names and addresses of all the parties present. • Once the court reporter is finished with these steps, either she will proofread the entire transcript again or she will hire a proofreader to proofread it. This step allows the proofreader to catch any minor errors that the court reporter may have missed while reading through it the first time. The proofreader will also check to make sure the page numbers on the index match up with the transcript. • The court reporter will then have to make any corrections that need to be made after the proofreading step and then either handle the production herself or send it to her court reporting agency to produce the transcript and send it to the attorneys. Depending on the type of deposition and the complexity of the case or the witness, it could take up to two times the length of the deposition for the court reporter to complete the transcript. So for a four-hour deposition, she could spend eight hours editing and proofreading that transcript. So remember, after your all-day deposition is over and you’ve expedited that transcript for overnight delivery, your favorite court reporter will be up for hours that night reading, editing and proofreading in order to provide you with the great service and accurate transcript you’ve become accustomed to. Angie R. Starbuck, RPR, CRR, CCP Court Reporting angie@priohio.com
Summer 2015 Columbus Bar Lawyers Quarterly
15
ASSEMBLING YOUR PERSONAL BOARD OF MENTORS By Jill K. Bigler You’ve heard it over and over during law school and as a young lawyer – find a mentor. We all know mentors are instrumental in helping young lawyers find their footing in the legal world and are crucial for success. But I suggest to you to do more than that. Assemble your own board of mentors. Everyone knows the phrase, “It takes a village to raise a child.” The same is true for young lawyers. It takes more than one mentor to build a successful legal career. In today’s world, one mentor is no longer enough. No one person will possess all of the skills and expertise a young lawyer needs to develop and succeed. And let’s be honest, no matter what stage of our career we’re in, we all could benefit from having our own personal board of mentors to give us advice, impart knowledge, help us navigate challenging situations, solve problems, open doors, motivate us, be brutally honest and sometimes, just listen. Throughout my career, I have been blessed with my own board of mentors. People I admire and trust and who want to see me succeed. While the composition of my board has changed over time, each mentor has guided, supported and helped me at different times and in different ways. In assembling your own board of mentors, think about your goals, what areas or skills you could use help with and what you want to accomplish. Next, look for mentors who can help you fill in those gaps and guide you toward success. Like any good board, the people you choose should each be able to contribute something different to your development and mentor you in different areas of your life. Think about people whose opinions you value. People who inspire you, motivate you and challenge you. And while everyone’s board will look a bit different, the following types of mentors should be in the mix. The Veteran The Veteran is a successful, seasoned lawyer who has “been there and done 16
Summer 2015 Columbus Bar Lawyers Quarterly
that.” They are well-respected in the community and have incredible knowledge and mastery of their craft. These lawyers are not only experts in their practice area and are usually very willing to impart their wisdom on young lawyers, but they are able to provide a “big picture” perspective that can help shape your career path.
intimidating to others. The Networker is someone who is successful at making and maintaining relationships. They are the ones that seem to know everybody worth knowing and have their finger on the pulse of the industry. They enjoy connecting people who may not have otherwise met and can help you expand your network.
The Inspiration The Inspiration is, ideally, the person you aspire to be in 5 to 10 years. This person may be inside or outside of your organization, but either way, has successfully navigated their career path to the place you want to be. They can give you first-hand advice on how to advance your career, what challenges you may face along the way and what skills you need to be successful.
The Non-Lawyer In general, lawyers tend to surround themselves with other lawyers. One great piece of advice one of my mentors gave me as a young associate was to never define myself too narrowly. The same is true for mentors. It’s important to build relationships with people outside the practice of law to keep your board and your perspective diverse. While the Non-Lawyer may not be able to show you how to take a deposition, they may be great at public speaking or know a lot about a particular industry or business.
The Challenger The Challenger is a person who is always encouraging you to improve. They challenge your thinking, ask tough questions and push you to step outside of your comfort zone. You can count on these people to call it like they see it and give you honest, constructive feedback when you need it most. The Peer The Peer is someone who is generally at the same stage in their career as you, though they may younger or older in age. They are people you would naturally connect with and learn from based on shared experiences. The Peer can offer you practical advice for challenges you may be facing because they have probably gone through the same thing. Peers are great sounding boards and can give you the motivation and encouragement you need to persevere through difficult situations. The Networker Networking is a critical part of the practice of law and while it comes naturally to some, it can be incredibly
Whatever combination of mentors you choose to surround yourself with, remember that assembling your board and building these relationships takes time. Don’t force the connection. Be patient. The best mentoring relationships often develop organically and evolve over time. Focus on developing genuine, meaningful relationships with people you respect and admire, and the mentoring relationship will follow.
Jill K. Bigler, Esq. Bricker & Eckler jbigler@bricker.com
The Role of Lawyers as Educators By Luke A. Fedlam There are many terms that are them to take more ownership of the legal commonly used for lawyers – attorney, aspects of their lives. It provides the client adviser, counselor, negotiator, defender with a keen understanding of business and prosecutor quickly come to mind. and financial concepts that could prevent But there’s one more that stands out as him or her from being taken advantage more important than almost any other: of in the future. And, in my experience, educator. I have embraced the role of the most satisfied clients are those who educator as an integral part of my practice take an active role in the legal services in my work with professional athletes relationship. Beyond the academic fundamentals of on all of their off-the-field personal and a transaction, there are many practical business opportunities. Professional athletes are unique clients ways to help educate clients in protecting who have complex business, personal and themselves in a transaction. A background legal needs. Athletes often spend their check is a critical tool in understanding entire lives focusing on a particular sport, who is on the other side of a deal, especially sometimes to the exclusion of almost if the client has never interacted with that anything else that is unrelated. Their person in the past. Knowing whether energy has been concentrated on achieving the opposing party has a questionable success at the highest levels. Because of this professional record, such as liens, lawsuits hyper-focus on their professional sports or criminal convictions, enables the client careers, many fundamental financial and to make a more insightful decision when business skills have been either overlooked balancing the risks and rewards intrinsic in any deal. When a client gets involved in or were never in place to begin with. As I work with professional athletes, a deal, there is certainly financial risk, but I am committed to educating, advising there is also the business risk associated and ultimately protecting my clients. with the parties involved. Accessing as Education becomes a critical component much information as possible about the of an athlete’s long-term success once life others involved in a transaction is a costafter his or her sport becomes a reality. If effective means of protecting a client from the athlete is presented with a business likely financial and legal liabilities in the or financial opportunity, engaging in a future. purely transactional relationship with a Another important aspect of educating lawyer is not truly serving his or her best a client on the specific details of any deal interests. I have a responsibility to take or opportunity is not to mire the client in the time to make sure that my clients are the minutia of a deal, but to help him or educated on not only the aspects of the her understand the risks of the deal. Many transaction they might see on a bill, but clients focus on the return on investment also on what the transaction documents or the business opportunity. While this actually mean and how the outcome of a project could potentially affect their lives, both positively and negatively. For example, when considering an endorsement deal, most athletes – and many of the people close to them, for that matter – care only about how much they get paid and what actions they have to take in order to receive the compensation; this information is typically found on the first page of any endorsement deal. But those many other pages contain incredibly valuable information that can affect the rights of that athlete for a very long time. (614) 336-1950 Taking the time to educate an athlete Info@valuation-analysts.com – or any client – on those ‘other pages’ www.valuation-analysts.com empowers the clients and encouragesWe sell only advice and expertise. We are
We are Independent
is important, it is not enough. Taking the time to educate clients throughout a transaction makes them more thoroughly informed professionals and helps protect them in various aspects of their lives and businesses. Once educated, clients can then be appropriately equipped to evaluate whether a project is truly in their best interests. If the answer is yes, then it is important to ensure that they are protected from the risks discovered in the deal through the drafting of appropriate documents. In many ways, professional athletes are similar to doctors, entrepreneurs and other professionals with whom we work – they are focused intensely on their crafts and not on the potential impact of various legal nuances in the decisions that they make. It’s critical that, as counselors, advisers and attorneys, we approach our client relationships with a focus not only on executing transactional legal work, but that we also take the time to educate our clients and position them for long-term success through educational empowerment.
Luke A. Fedlam, Esq. Kegler Brown Hill + Ritter Twitter: @LukeFedlam
Valuation2545 & Litigation Farmers Drive Consulting Experts Suite 180
Columbus, Ohio 43235 P: 614-336-1950 Our professionals have been F: 614-336-3994 qualified as experts in Federal courts www.valuation-analysts.com and numerous county courts info@valuation-analysts.com throughout Ohio. By Trial Tested Experts
Brian A. Russell, MBA, CPA/ABV, CVA S u c CVA cession Planning Walt Eckert, CPA, Linda Johnson CPA, CVA
ESOPs
advocates of our independent objective opinion Divorce of value. We neither act as broker nor dealer. Summer 2015 Columbus Bar Lawyers Quarterly
We are Experienced
17
Litigation and Damages
Judicial Elections: A Broken System By Jack D’Aurora We have come to the point where we need to examine the practicality of judicial elections. Name recognition has become more important than qualifications, and the potential increases for politics and money to have a greater role and negative impact in judicial elections. Some think we need to amend the process by which we elect judges. I think the problems are too numerous to be fixed. It’s time to give serious consideration to a merit appointment/retention election system. Here are the three reasons why we need to change. Look for additional reasons in part two of this article, to be published in the next edition of Lawyers Quarterly. 1) The parties care more about name recognition and fund raising ability than qualifications. Admittedly, my experience is limited to Franklin County, but I suspect that what happens here is typical of what goes on throughout the state. That point aside, the first problem with judicial elections is that they are controlled by the parties, and qualifications are not a high priority for the parties. The two most important things for a candidate are an ability to raise money and a likelihood of being elected, which usually means having a recognizable name. I understand from a friend who screened for a common pleas court seat in last November’s election that the first question asked was, “How much money can you raise?” There was little discussion about qualifications. There is a big disconnect between what the parties and practicing lawyers want. The Columbus Bar Association evaluates candidates on their qualifications and rates them as either “highly recommended,” “acceptable” or “not recommended,” but the CBA can only vet candidates who made it to the ballot. If the parties were concerned about qualifications, then every judicial candidate running in a Franklin County election would be rated “highly recommended” by the CBA, but that doesn’t happen. In last November’s elections, three trial judge candidates endorsed by the two major parties— plus a sitting trial judge—were only rated “acceptable.” Two candidates—one for the appellate and one for the trial court—were actually “not recommended” by the CBA.1 The incumbent trial judge was appointed by Gov. John Kasich over a much more experienced trial lawyer. If qualifications matter, why would that have happened? Yes, the CBA vetting system is subjective and, therefore, subject to error, but it’s an honest attempt to rate candidates on their qualifications. Besides, aren’t lawyers are in the best position to determine who will make good judges? What’s worse, the parties make deals as to who they will run, to the detriment of voters. For example, in 2008, the Democratic Party agreed not to run candidates against three incumbent Republican judges in exchange for the Republican Party not running anyone against incumbent Democrat Judge Tim Horton.2 A study conducted years earlier confirmed that the parties make these deals.3 How do unopposed candidates serve the public good? 18
Summer 2015 Columbus Bar Lawyers Quarterly
2) Names matter more than anything in judicial elections. To illustrate the importance of names, let’s look at one race in particular from last November and compare the candidates, who I’ll refer to as Candidates A and B. Before going further, I have to tell you, Candidate A is a good friend and someone I think highly of. I have never met Candidate B but assume he is a good lawyer, a good person, and a hard worker. Candidate A has been practicing law since 1987. He has tried over a hundred jury trials in a variety of civil cases, received the “Respected Advocate Award” from the Ohio Association of Civil Trial Attorneys in 2011, and regularly serves as a mediator. Candidate B has been practicing law since 2005 and has tried 30 felony cases. The CBA “highly recommended” Candidate A. Candidate B was rated as “acceptable.” Based on these qualifications, you would assume Candidate A won, but that’s not what happened. Candidate B won, and it’s likely he won because of something that was given to him: a common last name that resonates with voters who have no other basis upon which to vote. I don’t mean to be critical of Candidate B. My focus here is not about people but about the process. The problem with judicial races being determined on the basis of last names is hardly a newsflash. Plenty has been written about the name game in judicial races. Voters in Cuyahoga County are attracted to names such as Corrigan, Gallagher, McMonagle, Russo and Sweeney.4 The name Cook works well in Summit County.5 In Franklin County, names like O’Neill, Kennedy and Brown draw voters like a moth to flame. 3) We should not conclude the public is adamant about voting for judges. The 1987 referendum in which Ohioans rejected an appointment/retention election system is regarded as conclusive proof the public will reject change. I don’t think this nearly three-decade-old referendum fairly reflects how voters feel today. Before I explain why, let’s look at what happened in the referendum. The OSBA, the Ohio League of Women Voters, and the insurance and business communities promoted a ballot proposal for an appointment/retention election selection system, known as Issue 3, which called for establishing nominating commissions for the Supreme Court and each appellate court. Each commission, composed equally of lawyers and non-lawyers, would screen candidates and propose three names to the governor for appointment. Once appointed, a judge would be required to receive at least a 55 percent approval vote in regular retention elections to stay in office.6 The unions and political parties opposed Issue 3, casting it as anti-democratic and elitist. They preyed on voters’ fears and claimed the commissions and governor would be less attuned to the interests of the common person.7 They ran television ads that featured voting booths encircled by chains and the sound bite, “Don’t let them take away your right to
vote.”8 The scare tactics were successful. Issue 3 was soundly defeated. More recently, Quinnipiac University conducted a poll in Ohio and asked: “Which do you prefer: A) Keeping the current system of electing Ohio Supreme Court judges; or, B) Changing to a system in which new judges would be appointed by the governor and confirmed by the legislature?”9 Eightyone percent of respondents preferred the current system, which should not be surprising, considering that Kasich’s approval rating was just 41 percent four months prior.10 Who wants a governor, much less an unpopular one at the time, to control the judiciary? What voters say in response to polls and how they conduct themselves, however, are two different things. Voters may say they want to retain the right to vote for judges, but many don’t exercise that right. According to the League of Women Voters, 40 percent of voters in Ohio’s November 2012 elections did not vote for judges.11 In the 2014 Ohio Judicial Election Survey, conducted by the Ray C. Bliss Institute of Applied Politics, University of Akron, 30 percent of respondents stated they voted for judges “most” or about “half the time;” 20 percent said “not very often,” “rarely,” or “never.”12 When responding to a referendum or poll about voting rights, people are dealing with a question in the abstract, but when you talk with people about how they feel about the system, you hear something quite different. I’ve talked to a number of non-lawyers about judicial elections, and I hear cries of frustration. Voters don’t know who they should vote for, and the reason is that they don’t have meaningful information about the candidates. Ask your friends how they feel about voting for judges. Even lawyers who don’t litigate will tell you they don’t have enough information when voting for judges—unless they ask their litigator friends for help. I think people are ready for change. In the next edition, I’ll cover how politics and money will likely play a greater role in judicial elections—to everyone’s detriment.
in Ohio: History, Recent Developments, and an Analysis of Reform Proposals, Report of the Center for Law and Justice, University of Cincinnati College of Law (2003) at p. 24. 4. The name game still vanquishes all else in Cuyahoga County judicial elections, Cleveland Plain Dealer (Sept. 05, 2014). 5. When electing judges, it’s justice in name only, Akron Beacon Journal (Oct.15, 2014). 6. Solimine, Chavez, Pulley & Sprouse at 10. 7. Ibid. 8. Jacob H. Huebert, Judicial Elections and Their Opponents in Ohio, The Federalist Society for Law & Public Policy Studies (2010) at 12. 9. http://www.quinnipiac.edu/news-and-events/quinnipiacuniversity-poll/ohio/release-detail?ReleaseID=1823 (accessed Jan. 7, 2014). 10. Ibid; Kasich approval on the rise, Public Policy Polling (Aug. 15, 2012). 11. http://www.lwvohio.org/site.cfm/ Voter-Election-Center/JudicialVoter-Information.cfm (accessed April 3, 2015.) 12. https://www.uakron.edu/ dotAsset/f1ab548d-8b9d-40cdab0a-844236cb7a0d.pdf (accessed Jack D’Aurora, Esq. The Behal Law Group Considerthisbyjd.com
1. http://www.cbalaw.org/cba_prod/files/polls/2014%20 Judiciary%20Committee%20Findings.pdf (accessed Jan. 7, 2015). 2. Harmon, Judge Horton Might Never Face Voters, The Columbus Dispatch (June 16, 2009). 3. Solimine, Chavez, Pulley & Sprouse, Judicial Selection
Summer 2015 Columbus Bar Lawyers Quarterly
19
Judges, Juries and Judgments By Cathy Geyer and Collette Feldmann Intrigued by the increasing use of mediation in Ohio’s litigation landscape, we scoured the Ohio Supreme Court Statistical Report and central Ohio jury verdict information to extract key data and then we used it to create this infographic. Why an infographic? Because our brains love visual content and it has a huge effect on attention, comprehension and retention. With an average of only eight seconds to capture the attention of an audience, intriguing visuals can pique interest before information is even processed. We’d bet you are only reading this text because the images on our infographic grabbed your attention. Once attention has been captured, comprehension becomes top priority. Our brains are pre-wired to automatically interpret relationships between objects, allowing for almost instant comprehension with minimal effort. That makes sense, since research shows that the human brain deciphers image elements simultaneously, while language is decoded in a linear, sequential manner taking more time to process. In fact, scientists have found that our brain can process a visual scene in onetenth of a second. Finally, studies conducted by New York University show that people only remember 10 percent of what they read, 20 percent of what they hear and 80 percent of what they see and do. Even the greatest orator will not make a lasting impact on a jury if they do not retain the information they heard. So next week, when the image of the State of Ohio tipping the scale of the lone judge is still stuck in your mind, remember the power of visuals.
Cathy Geyer, Esq. McGrath & Foley ccgeyer@mcgrath-foley.com Collette Feldmann President, Reveal Litigation Visuals collette@revealvisuals.com 20
Summer 2015 Columbus Bar Lawyers Quarterly
nts: The Power of Infographics
Created by Reveal Litigation Visuals Summer 2015 Columbus Bar Lawyers Quarterly
21
No Car, No Money, No Problem By Hon. David E. Cain One form of cheap transportation has sadly disappeared from the highways and byways over the past 50 years. This method of getting around was prominent when I began college. No reservations were required. And what it lacked in reliability, it made up in adventure. Actually, it was not a different means of transportation, just a way of not paying for it. And it wasn’t just cheap. It was free. The practice of hitchhiking – also known as thumbing or bumming a ride – left me with many memories (some good and some not so good) from my two years at a small college in Michigan. Hitching probably reached the height of its popularity during WWII. Lloyd Fisher, local attorney and frequent writer for Lawyers Quarterly, said he easily traveled around the country during the 1940s by riding his thumb while wearing his Army outfit. “Nobody in uniform ever had a problem getting a ride. People would go out of their way to pick you up,” he recalled. Fisher returned to the states in 1945 after a tour in Europe and had no difficulty hitchhiking to Southern California to see a girlfriend. My first memory of hitchhiking also came from the mid1940s when I was three years old and my sister was four. We stood in front of our parents on Rt. 21 somewhere around Newcomerstown. My dad’s Model A Ford couldn’t quite make it from Akron (where my grandparents lived) to Byesville (in southern Guernsey County).Only a short time passed before a man picked us all up in a fairly new coupe. I was fascinated by the cigarette lighter on his dashboard. How could it burn like fire? The Good Samaritan was going through Byesville, and hedropped us off at our house. In the early 1950s, an uncle bragged that he hitched a ride home from Korea. So, it seemed only natural to fall back on hitchhiking in December 1961, when I found myself at Spring Arbor College, about eight miles west of Jackson, Michigan, and needed a ride home to Byesville (a little less than 300 miles to the southeast) for Christmas vacation. First, one must enhance the starting position. In my case, it was to find someone heading home – in the direction of Detroit – and get dropped off along Rt. 23 as it passes northsouth through Ann Arbor. That worked fine. And getting rides was fairly easy until I got to Jacksontown in Licking County. Carrying two large suitcases along 22
Summer 2015 Columbus Bar Lawyers Quarterly
snow banks several feet high at the edge of the roadway and it was near midnight. Discouragement began to set in. As if on cue from the Almighty, a former scoutmaster from Byesville – commuting from a second shift job in Newark – picked me up and dropped me within a block of my final destination. Going back about two weeks later presented a greater challenge. My starting spot was enhanced by a northbound traveler who dropped me on Rt. 224 near Lodi as it looked like a good place to head west. After several rides covering many miles, I was hoping I was near Toledo. But when I went into a gas station to ask directions, I discovered my location to be in Elyria, barely west of Cleveland. That’s when I saw two or three guys filling a gas tank on a car with a Valparaiso College sticker on the back window. As suspected, they were heading back to school, same as me, and they agreed to get me to somewhere in Northwest Ohio. First, they had to go back home to pick up luggage. I got some funny looks when they introduced me to their parents, but soon I was mobile and headed in the right direction again. They left me at the intersection of two highways in an area so rural there was no sign of any life in any direction. The next few hours were spent wondering if I’d ever see another vehicle. I made it back to Spring Arbor sometime the next day, but I don’t remember how. A couple months later, in March 1962, I needed to get away from the mental and physical confines of the fundamentalist Spring Arbor College. So, I made arrangements by mail to visit my lifelong friend from Byesville, Francis C. Francis, who was a freshman at the University of Dayton. Hitchhiked on a Friday evening and made it to Dayton fairly quickly. Walked a couple miles to his apartment building. Soon, he insisted on running me through the Dayton nightclub circuit, featuring such musical greats as H Bomb Ferguson at the piano. Back in his apartment about 3 a.m., Francis noted that a big parade would be occurring in New Concord (about 15 miles from Byesville) that afternoon to honor its native son, John Glenn, who had just become the latest American hero by being the first person to orbit the earth. One of Francis’ roommates took us to a highway shortly after dawn and we thumbed in the direction of the rising sun. One ride got us to the corner of Hamilton and Main Streets at the edge of the Great Eastern Shopping Center. “You’ll die here,” a young fellow in an Air Force uniform warned us. He said he had been on the corner for two hours without the slightest hope for a pick up. Unspoken courtesy among hitchhikers, like hookers, caused us to walk about a block eastward so we wouldn’t be working the same spot. Just a few minutes later, we saw a big new school bus stop in front of the airman. We watched him board it. Then, the bus pulled up and stopped in front of us. The driver said he had picked up the bus at the factory in Lima and was delivering it to the East Coast. But he began swearing when we told him we were going to a John Glenn parade in New Concord. “I was in New York City when they had a ticker tape parade for John Glenn. It held me up for two hours. I was in Washington, D.C. when they had a parade for John Glenn. Held me up another two hours. And now it is happening again.”
By the time we got a mile or two from New Concord, the National Road, i.e. Rt. 40 (there was no I-70), became a parking lot. Cars had been abandoned on the berms, the shoulders, the roadway itself. New Concord is a long narrow town stretched along Rt. 40 with the Muskingum/Guernsey County line dissecting it near the its eastern edge. We walked to the middle of town in plenty of time to wave at John and Annie who were riding in a convertible behind a band continuously playing “When Johnny Comes Marching Home Again” to the cheers of the large crowd lining both sides of the four-lane street. The band was from New Concord High School, soon to be renamed John Glenn High School. Later, we were walking – about the same speed as the traffic – well east of the village when Francis implored: “Hey, look at that.” It was the big yellow school bus towering over the mass of cars creeping toward us. The driver was still cussing when he dropped us off at 11th Street and Wheeling Avenue in Cambridge where a high school friend spotted us and said he’d take us to Byesville after dropping off some groceries. Nobody was home at my house, but my mother soon returned and I hid in a closet where I knew she would hang her coat. I wanted to surprise her. It worked. The next morning was a warm and sunny Sunday and we hitched out of Byesville with our coats hanging over our arms. Before we got to I-75 (one of the few stretches of freeway in the state) snow began to fall. Francis headed south on I-75 and I headed north. But before long, the snow was so heavy the traffic became quite sparse. I didn’t make it back to Spring Arbor until Tuesday. I knew a Spring Arbor student who lived in Lima. He answered my phone call, came to pick me up and gave me a bed until we could drive back together. After Glenn returned to space as a senior citizen in 1998, a parade in his honor went down High Street in Columbus at noon on a weekday and held me up on my way to a meeting in the Short North. I found comfort in thinking about that school bus driver. In the Fall of 1962, I set my personal record for speed when I needed to make a special trip home for the weekend and traveled from Detroit to Byesville in six hours. My first driver said he hadn’t picked up a hitchhiker in five years. “You’ve got a good, honest face,” he explained. He zoomed across the Ohio Turnpike in a flash and let me out in Massillon, all the while offering a friendly lecture on basic politics. “There’s no such animal as a Democrat or Republican,” he declared. “You’re either a liberal or a conservative.” The man was a multi-state sales manager for Chrysler and the son of The Hon. Frank T. Bow, longtime Republican congressman from Canton. Probably the most frustrating experience came in February 1963. The temperature had warmed up to 10 degrees below zero during an especially cold winter and I decided to hitchhike to Oxford, Ohio, to see a friend at Miami University. I spent most of the night alongside a highway somewhere in Defiance County. That’s as far as I made it. My last hitchhiking memory from the sixties involved my friends, Steve Kuhnash and Jim Woodward, who like me had immigrated here from Guernsey County. They made a sign: “OSU to San Francisco.” I “enhanced their start” by driving them to New Rome. They made it to “the city by the bay” in 46 hours, not counting an overnight at a motel in Tucuman, New Mexico. “Our most memorable rides were with a rodeo cowboy from Oklahoma and a female impersonator from San Francisco,” Steve recalled. It wasn’t
his first hitchhiking adventure. Shortly after graduating from high school, he heard of a shortage of cherry pickers in northern Michigan and hitchhiked to Traverse City. After two days of cherry picking, with $12 in his pocket and an ache in his stomach from eating too many cherries, Kuhnash hitched across Canada to West Point, New York, to see his sister and her cadet husband. Other memories involve being picked up by a taxi on a dry run, a tractor-trailer rig with a pistol on the dash, a priest who counseled me on career choices and a middle aged woman who drove me from Ann Arbor to Cambridge. She said she was from Texas and in Michigan waiting for a visa to clear so she could spend some time in Canada. Had some time to kill and hadn’t seen this part of the country. For years, I picked up hitchhikers myself. It was almost guaranteed they would have good stories. But now nearly everyone has some kind of a car. We have many freeways and laws against entering them on foot. Truckers are legally prohibited from picking up hitchers. And most people would be afraid to pick one up. But hitching was good to me during my college years. It taught me to never give up and it strengthened my faith in humanity.
Hon. David E. Cain Franklin County Court of Common Pleas David_Cain@fccourts.org
Franklin Park Physical Medicine Franklin Park Physical Medicine
Personal Injury Care
Stay Back 50 Feet
Medical Doctors on a Lien Phone: (614) 258-7588
Personal Injury Care Medical Doctors on a Lien Our medical reports are clear, concise, well written, and timely. The physicians use the full range of physical medicine modalities: electric muscle stimulation, ultrasound, diathermy, massage, traction table, therapeutic exercise for strengthening and mobilization and various other accepted treatment modalities. Personal Injury Care: (614) 258-7588 BWC Injury Cases: (614) 258-6948
www.MedDoc4U.com Summer 2015 Columbus Bar Lawyers Quarterly
23
Corruption Among the Palms By Janyce C. Katz On a beautiful day in Palm Beach, the Lake Worth Lagoon glistens. When no clouds mar the sky and the temperature in Columbus is fifteen below zero, Palm Beach is paradise. Across South Ocean Boulevard, the Atlantic Ocean pounds the shore, and birds of all types decorate the sky and the waters. But, Palm Beach’s perfection is a partial illusion based upon tropical climate and easy access to beaches. Worth Avenue, now a street lined by some of the most expensive stores in the world, allegedly was once an alligator path. A different kind of predator now walks the street on two legs, wearing expensive, handmade suits. In January 2009, Time magazine called Palm Beach “the new capital of Florida corruption,” naming not only winter resident and Ponzi scheme leader Bernie Madoff, but also two city and four county commissioners convicted of federal corruption charges. Since Palm Beach became an enclave for the wealthy, it developed a good and a bad side. The good is that a man named Henry Flagler, who saw the wisdom of running a train track from St. Augustine to Key West and building resorts along the way, also decided Palm Beach was the perfect spot to locate an exclusive resort for the world’s wealthiest people. The bad part involves some of the tactics he used, many of which may have landed him in jail under today’s legal and ethical standards. Unless, of course, he had the right team of lawyers or some of the corrupt judges that have tainted the Florida judiciary.1 Flagler, who made his considerable fortune by partnering with John D. Rockefeller to build Standard Oil into a powerful monopoly, discovered Florida when his first wife was told to try the state’s beach air to cure her lung disease. While Flagler’s trip to St. Augustine did not save his first wife’s life, Flagler did see the potential to develop a playground for the wealthy. In 1894, Flagler opened the Royal Poinciana Hotel in Palm Beach, extending a trunk line of his railroad there during the hotel’s construction. The Royal Poinciana Hotel, the first completely electrified hotel, had every convenience available and could accommodate 1,700 guests. Soon the country’s wealthiest citizens were wintering there, traveling directly to Palm Beach in their private railroad cars. The creation of Palm Beach as a playground for the very wealthy had a dark side. Flagler had the homes of the Royal Poinciana’s construction workers burned just weeks before the hotel was to open because they were black. He thought having these workers living on the island would prevent him from charging the highest possible price for the hotel’s rooms. The workers were told he and his staff tried to save their homes. Then, he encouraged the workers to buy land he owned in what is now West Palm Beach, build new homes there and commute across Lake Worth to work at his new hotel. Flagler paid the legislature and governor to create a law allowing him to divorce his second wife, and used the newspapers he owned to publicize the importance of a broader divorce law. After Flagler divorced his second wife 24
Summer 2015 Columbus Bar Lawyers Quarterly
and had her committed, the law was allowed to expire and was not renewed.2 A good example of judicial corruption is former Judge Joseph Alexander Peel, Jr., remembered not for his work on the bench, but for the murder of highly respected Senior 15th Judicial Circuit Judge Curtis E. Chillingworth and his wife, Marjorie. Judge Chillingworth served for three decades and was contemplating retirement in 1955 when he learned that Peel, who had represented both a husband and a wife in a divorce, failed to finish the paperwork for the woman, remarried with a baby, which Peel’s negligence made illegal. Judge Chillingworth had only reprimanded Peel in 1953, for representing both parties in the divorce action. 3 Peel was concerned that Chillingworth might remove him from his lucrative judicial position; Peel received money by alerting certain people when he signed warrants authorizing raids against them. He also hoped to use the position, along with his corrupt friends as a political powerbase, to run for first attorney general and then governor. To protect his current position, income and future plans, Peel decided to murder Judge Chillingworth. He called two men, Floyd “Lucky” Holzaphel and Bobby Lincoln; both men were in the racket protection business with Peel. Peel told them Chillingworth was trying to ruin them and had to be killed. The two men agreed. One night, they dragged Judge Chillingworth and his wife at gunpoint from their cottage into a boat, taking them far out into the ocean. Saying “ladies first,” Holzaphel tossed Marjorie, loaded with weights, into the water. The judge called out “I love you” as she quickly sank. He jumped into the ocean, swimming around while the murderers tried to hit him with their gun handles. After tying an anchor around his neck, he too sank. The Chillingworth’s bodies were never found, but five years later, the murderers were exposed. Peel, no longer a judge, tried to have others murdered. First, he sought the murder of the state attorney. Then, Peel bought insurance for an employee, making himself the beneficiary. He asked “Lucky” Holzapfel to beat the man to death but the man survived, and both Peel and Holzapfel were arrested for attempted murder. Holzapel claimed the attorney had insulted him, and the jury acquitted him. Peel’s case was dismissed. Holzapfel’s involvement in another murder and Peel’s latter attempt to have Holzapfel murdered led to the arrest of both men for murder of the Chillingworths. During the trial, Holzapfel confessed and implicated Peel on the record. Lincoln, who was given immunity, testified against Peel and Holzapfel. The defense attorney attempted to discredit Lincoln because of his race and Holzapfel because he was a notorious criminal. The jury found Peel guilty of being an accessory before the fact in the murder of Chillingworth and recommended mercy. Peel received life in prison. He pled nolo condendre to Mrs. Chillingworth’s death and received a second life sentence. He was paroled December 23, 1979 and was immediately transferred to federal prison to serve eighteen years for an unrelated mail fraud crime. He was released from federal prison in 1982, nine days before he died of cancer. He confessed involvement in the murders of the Chillingworths just before his death,
but did not admit responsibility for their organization. Holzapfel was sentenced to death, but that was commuted to a life sentence. He died in 1996. Having changed his name, Lincoln died a free man in 2004. Unfortunately, Palm Beach has not been the only Florida county seeped in corruption. Even the Florida Supreme Court became involved, with one justice asking the attorney on a case before him to write the opinion and the Chief Justice accepting a trip to Los Vegas from a dog track owner with a case before the Court. For these and other reasons, Integrity Florida has ranked Florida as the most corrupt state in the country. Attempting to limit the abuses by Florida’s judges, the Florida Bar established the Judicial Code of Conduct. Part of the restrictions, Canon 7C, designed to prevent direct solicitation of money by a judicial candidate running for office, was challenged by Lanell Williams-Yulee, a candidate for judge, who among other violations of the Florida code, sent out written requests for contributions, which she claimed were part of her First Amendment speech rights. When the Florida Supreme Court found the Canon constitutional, Yulee appealed to the U.S. Supreme Court. The Court accepted the case, perhaps because of the split in the decisions of the Circuit Courts on whether a limit on direct solicitation is constitutional. On April 29, 2015, writing for a five justice majority of the U.S. Supreme Court, Chief Justice Roberts held that Canon 7C “advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech, thereby withstanding strict scrutiny.” The Court decision is quite interesting in that it has Chief Justice Roberts siding with the Court “liberals” and, as Justice Scalia points out in his dissent, constitutes a reversal of the Court’s very broad application of the speech principle.4 Citing Tumey v. Ohio, 273 U.S. 510, 532 (1927), the Chief Justice wrote that a judge’s personal solicitation of money could result in a possible unknowing sway of the balance of a case toward the donor, who usually is a lawyer or a litigant. He distinguished judges from other elected officials, saying they are not politicians even when they run for office. Justice Breyer concurred in the majority opinion, but opined that “the tiers of scrutiny should be used as guidelines.” Justice Ginsberg, joined by Justice Breyer, concurred in part with the decision, but dissented from Part II. She would not apply an “exacting scrutiny test” to differentiate elections for administrative offices from those for judicial offices. But, she argued that where politicians should be responsive to the electorate, judges should follow the law, and, as a result, different campaign-finance rules may be imposed on judges. She would have applied a broader standard to protect judicial integrity, because judicial elections have become politicized, with judges targeted because their decisions differed from what certain individuals wanted. She seemed to argue that the Court should have expanded on its decision in Caperton v. A.T. Massey Coal Co. 556 US 868 (2009) to allow states to develop rules to limit the influence of outside groups politicizing judicial elections. In his dissent, Justice Scalia, joined by Justice Thomas argued that “[f]aithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech.” He agreed with the premise that judicial integrity must be preserved, noting a compelling interest to ensure judges “are seen [sic] to be impartial.”
Justice Scalia would have held that Canon 7C(1) was too broad, preventing those not appearing before a judge as well as lawyers and litigants from speaking through their financial contributions. He finds the majority’s compelling interest in judicial integrity to be vague, as written thank you notes from judges and committee fundraising for judicial elections are permitted under the Florida Canon, but a judge’s direct solicitation of funding is not. He found no proof that what Yulee did swayed opinions of the judicial system. He failed to find that Florida’s ban restricted no more speech than necessary to meet its objective. Justice Scalia accused the majority of not liking elections of judges and of “mowing down” one First Amendment right after another. Justice Kennedy filed a separate dissent. He found it ironic that the Court limited speech in an area, political speech, that should be the freest area of speech. By limiting a judge’s ability to speak by raising money directly, the Court is cutting off the debate between candidates. Justice Alito also filed a separate dissent in which he described Canon 7C(1) as “narrowly tailored as a burlap bag” and implied that such a designation destroys the meaning of narrow scrutiny. Justice Alito decried the holding of the Florida Supreme Court that “stained” Yulee’s record by “finding she had engaged in unethical conduct.” If either Flagler or Peel were alive now, neither Canon 7C(1) nor the Court’s decision would have protected the public from these men’s actions. The image of judicial impartiality would still be hindered by the antics of Judge Peel, because Peel represents pure corruption, not just the perception of justice purchased in exchange for a contribution directly solicited. Flagler, who operated without restrictions in creating wealth for himself, opening Florida to the world but also destroying the lives of many, would remain untouched by any provision of the Canons. But, the Canons would have limited his impact on a judge, had anyone dared to bring a case against him. Would stronger restrictions have lessened the evil actions of Flagler, Peel and the many others like them? I can’t say for sure. However, I believe that a good regulatory system and proper enforcement of said would have limited their ability to harm the general public. Martin A. Dyckman, A Most Disorderly Court: Scandal and Reform in the Florida Judiciary (University Press of Florida, 2008). 2. Murray Weiss and Bill Hoffmann, Palm Beach Babylon: Sins, Scams and Scandals (Birch Lane Press, 1992). 3. Jim Bishop, The Murder Trial of Judge Peel (Trident Press, 1962). 4. Lanell Williams-Yulee v. The Florida Bar (Case No. 131499). 1.
Janyce C. Katz, Esq. Senior Vice President, General Innovations & Goods, Inc. janyce.c.katz@gmail.com Summer 2015 Columbus Bar Lawyers Quarterly
25
Lawyers With Artistic License Susan L. Rhiel By Heather G. Sowald
Susan Rhiel’s expertise in and enjoyment of playing the violin is rewarded every winter as she participates in the Gahanna Community Theater’s annual musical. Susan’s violin playing has made her an “instrumental” part of these performances. The nightly rehearsals for these musicals begin every January, about five weeks before opening night. Susan began taking violin lessons at age 10. Her high school in Pennsylvania had a strong music program, and she took part in many competitive festivals around the state. After graduating as the class valedictorian, Susan majored in music at Marywood University in Scranton, Pennsylvania, studying under the auspices of the Audubon String Quartet. In addition to taking 22 credit hours every semester, she practiced her violin for hours every day, learned to play piano, and performed in a string quartet at many venues. The discipline required in the music field, she says, has led her to be super-organized, a trait that has served her well in her law practice. She married her husband, Wes, upon graduating from college. Susan and her future husband, then one-year old, met on the day she was born! Their mothers were high school friends and the two families got together regularly. Wes finally appreciated Susan’s feminine charms when they were teens, which led to a lifelong romance between them. Her husband’s job as an environmental engineer brought them to Columbus, where Susan found employment as a music teacher in the elementary school of St. James the Less. After two years of receiving annual wages of $5,000, which essentially allowed her to pay for the car she needed to get 26
Summer 2015 Columbus Bar Lawyers Quarterly
to the school, she began exploring other options for financial security. Susan bravely quit her job just one day after she and Wes bought their first house and began her studies at OSU Law School. While there, she not only held down a job as a law clerk and excelled in her classes, she also gave private music lessons to up to 22 students at a time, teaching lessons every evening and on Saturdays. Her first job as a lawyer was as an associate with Thompson Hine & Flory in 1986 in the bankruptcy department, during time which she gave birth to her two sons, Thomas and Andy. Susan was the first woman in the Columbus office of the firm to have a baby during her employment there. After becoming a partner, she left for Frost & Jacobs in 1998. In 2001, she and Myron Terlecky formed a law partnership, and later she became a solo practitioner. Her very busy practice encompasses handling complicated bankruptcy cases and serving as a bankruptcy trustee, where she manages a docket every other Tuesday. Susan has been active as a participant in and speaker for local, state and national bar associations and their bankruptcy committees. Susan is one of the founders of the Central Ohio Network of the International Women’s Insolvency & Restructuring Federation. She also remains involved with her college alumni association, is currently the President Elect of the Vision Board at her church, and somehow she also finds time to teach local high school students about personal finance. Following in her footsteps, both of her now adult sons were active participants in the music programs in the Gahanna schools. Her male-dominated family also is into sports, so Susan has found herself playing golf with them. In fact, she boasts that she is the only one of them to have had a hole-in-one! That miraculous event occurred about 12 years ago when she hit her drive over the water on a parthree at the Arrowhead Golf Course. Susan relates that she has never received so many phone calls in her life as she did after her name appeared in the Sunday Sports section for that accomplishment! Susan and her family also love to travel. They have traveled throughout U.S., Canada and Europe, and they hope to continue to explore many new places. But, a constant for Susan is her music, which remains a big part of her life. Susan is looking forward to the day she can devote more time to traveling, playing the violin and developing her skills on the piano. In the meantime, she and her husband take long, relaxing evening walks with their dog, Moby, as a way to decompress from their busy careers. Heather G. Sowald, Esq. Sowald Sowald Anderson and Hawley hsowald@sowaldlaw.com
THREE WAYS TO UNCOVER THE FUTURE PROFIT HIDDEN IN YOUR FIRM’S FINANCIALS By Jay P. Murnen A professional service provider’s customer base is the lifeline that feeds the company, so keeping your buyers satisfied and engaged is your highest priority. However, this effort has to be balanced with one that’s equally important: strengthening your company’s profitability and cash flow. How can you efficiently and effectively bolster your bottom line without sacrificing the service model that your customers appreciate? The answer could be buried in your current and historical financial information. Did you know there is hidden data in your firm’s financial performance that can provide business-critical information, increase profitability, and help you strategically plan for the future? This data can provide a viewpoint of where you are, where you’re going and how you’re going to get there. The most successful firms uncover what’s buried below the surface of their data and use it to perform better. Here are three ways you can look at your fiscal information differently to make your company stronger. 1) Understand what the data can do for you A firm’s financial information is important because it provides the baseline for the company’s fiscal health. It allows you to: • Assess your current operations and position • Make informed decisions about corporate strategy and operations • Communicate financial metrics to your organization, its leaders and its stakeholders • Evaluate your relative performance against those metrics 2) Use your past financial performance as a roadmap for the future As we start a new year, all professional service firms should have a forecasted budget to project and understand what is expected for the next 12 months. This financial roadmap sets proper expectations for the entire organization and allows you to plan for the impact of the operations on the firm.
The firm also needs to budget the capital requirements of its balance sheet accounts in order to illustrate the complete financial position of the organization. This provides an integrated view of the impact of a firm’s operations and the projected capital requirements for its investing and financing activities on the firm’s cash flows. 3) Use the right tools to translate the numbers into usable information To help businesses uncover – and use – valuable information from their financial data, Clark Schaefer Hackett developed Viewpoint Business Solutions. We use analytics, forecasting and enhanced communication to provide clarity about your business’ fiscal position. This intelligence helps companies: • Evaluate current financial position and performance • Make organizational and operational changes to improve profitability and cash flow • Formulate and prepare an integrated forecasted budget • Articulate and communicate the business’ story and performance to the outside world of key stakeholders of the business With this insight, you can learn how yesterday’s decisions and events impact profitability and cash flows today and into the future. It allows your business to be proactive in its response rather than reactive. When everyone in the organization understands the financial position and strategic direction of a firm the organization will be aligned with consistent messaging, communication, direction and focus. Jay P. Murnen Clark Schaefer Hackett jpmurnen@cshco.com
Monday through Friday, The Daily Reporter reaches Central Ohio’s top decision makers. Make sure you’re connecting with the people who can help make your business successful.
Follow the crowd Be in the right place, at the right time. Be in The Daily Reporter. Call 614-228-NEWS (6397) today for advertising information.
Summer 2015 Columbus Bar Lawyers Quarterly
27
Civil Jury Trials FRANKLIN COUNTY COMMON PLEAS COURT By Monica L. Waller Verdict: $374,000. ($0 in non-economic damages; $0 in loss of consortium) Medical Malpractice. On August 25, 2005, Plaintiff Rodney Archer, a newspaper deliveryman, sustained serious injuries when a van he was working on rolled over him and drug him down a driveway. He was taken to Defendant Berger Hospital emergency room for treatment. Cervical xrays were taken and interpreted by Defendant Steven Haas, M.D. Dr. Haas found no evidence of fracture. Mr. Archer remained in the hospital for six days, during which time he experienced pain in his left shoulder and arm. The pain continued after he was discharged and persisted despite chiropractic care. In December of 2005, Mr. Archer was examined by a neurologist and had an MRI shortly thereafter. The MRI showed fractures in Mr. Archer’s cervical spine. The original x-ray films from Berger Hospital were then reviewed and found to show a rotation of the cervical spine. Mr. Archer was diagnosed with a C7 nerve root injury. A discectomy and fusion was performed in March of 2006 to stabilize the cervical fracture. After the surgery, Mr. Archer underwent physical therapy but continued to suffer from neck and arm pain. A stimulator was implanted in Mr. Archer’s spinal cord in further attempt to alleviate the arm pain. Plaintiff alleged that Dr. Haas breached the standard of care by failing to recognize the injury to Mr. Archer’s spine as shown in the x-rays from August of 2005. He further alleged that, because the injury was not repaired immediately, he suffered permanent nerve injury and permanent pain. Defendants moved for summary judgment arguing that Plaintiff could not meet his burden of proof on causation because the evidence did not establish that he would have avoided permanent injury if surgery had been performed sooner. The motion was denied. Claims against Defendant Berger Hospital were subsequently dismissed. At trial, Defendant Dr. Haas again argued that Plaintiff could not prove proximate cause. The jury found in favor of Plaintiffs and awarded $68,000 in past medical expenses, $162,000 in past lost earning capacity and $144,000 in future lost earning capacity. The jury did not award any non-economic damages. Medical Specials: $90,000 ($30,000 Robinson v. Bates). Lost Wages: $7,000/year plus additional lost earning capacity. Plaintiff’s Experts: John J. Cronan, M.D. (radiologist); Carol Miller, M.D. (neurosurgeon); Daniel Capen, M.D. (orthopedic surgeon); David Boyd, Ph.D. (economist). Defendants’ Experts: Mark S. Younis, M.D. (radiologist); Patrick W. McCormick, M.D. (neurosurgeon); William S. Pease, M.D. (physical medicine and rehabilitation specialist). Last Settlement Demand: unknown. Last Settlement Offer: None. Length of Trial: 6 days. Plaintiff’s Counsel: David I. Shroyer and Thomas D. Hunter. Counsel for Defendants Dr. Haas and Mid-Ohio Radiology, Inc.: Gerald J. Todaro and Zachary J. Lyon. Counsel for Defendant Berger Hospital: Robert Kish. Judge Kimberly Cocroft. Case Caption: Rodney Archer, et al. v. Steven Haas, M.D., et al. Case No. 10 CV 303 (2014). Verdict: $35,000.00. ($17,420.00 in non-economic damages) Automobile Accident. On January 12, 2012, Plaintiff Tracy Jones was sideswiped by a vehicle driven by Defendant 28
Summer 2015 Columbus Bar Lawyers Quarterly
Marcie Sawyer and owned by Defendant Susan Sawyer. Ms. Jones suffered a concussion, left hand contusion and ligament injury, left mandible contusion, left radial nerve contusion and right knee contusion. She underwent surgery sometime later to repair tendons in her wrist. She sued Marcie and Susan Sawyer for negligence and negligent entrustment. She also sued her insurer, State Farm on an underinsured motorist claim and made a claim against Chillicothe Body Shop for breach of contract in connection with the repair of her vehicle. The Sawyers tendered their policy limits of $12,500 and Plaintiff settled with the body shop before trial. Defendant State Farm disputed the nature and extent of Plaintiff’s injuries. Plaintiff’s Expert: Anthony Lattavo, M.D. (family practitioner). Defendant’s Expert: Gerald Steiman, M.D. (neurosurgeon). Length of Trial: 2 days. Last Settlement Demand: $75,000.00. Last Settlement Offer: $53,000.00 (including $12,500 from Sawyers’ policy). Plaintiff’s Counsel: William J. Price. Counsel for Defendant State Farm: Mitchell M. Tallan. Judge Colleen O’Donnell. Case Caption: Tracy Jones, et al. v. Macie Sawyer, et al. Case No. 12 CV 11384 (2014). Verdict: $16,611.47 ($7,000 in non-economic damages) Automobile Accident. On January 6, 2010, Plaintiff Melinda Cummins was driving southbound on I-270 with Defendant Terry Bauer behind her and Defendant Michael O’Dell behind Mr. Bauer. The road conditions were poor due to snow and ice. Mr. Bauer struck the rear of Ms. Cummins’ vehicle and Mr. O’Dell struck the rear of Mr. Bauer’s vehicle. The parties disputed whether Mr. O’Dell struck Mr. Bauer and pushed him into Ms. Cummins or Mr. O’Dell struck Mr. Bauer after he hit Ms. Cummins. Ms. Cummins claimed injury to her neck and low back. She developed pain and numbness down her right arm and into her hand. She was ultimately diagnosed with a right disc herniation at C5-6 with effacement of the thecal sac. She underwent a discectomy and anterior cervical fusion with internal fixation to repair the C5-6 herniation followed by injections for pain. Defendants argued that the surgery was unnecessary and not related to the automobile accident and that the treatment that followed the surgery was also not related to the automobile accident. Ms. Cummins had a prior thoracic vertebral fracture. Defendants called William Miely, M.D., one of Ms. Cummins’ treating physicians, as an expert for the defense. The jury found each defendant 50% responsible for the accident, but did not award damages for the surgery and the post-surgical care. Medical Specials: $141,646.89 ($92,990.54 Robinson v. Bates). Lost Wages: $3,500.00. Plaintiff’s Experts: Christian Bonasso, M.D. (neurosurgeon) and Gregory Figg, M.D. (pain management specialist). Defendants’ Expert: Martin Gottesman, M.D. (orthopedic surgeon) and William Miely, M.D. (orthopedic surgeon). Length of Trial: 5 days. Last Settlement Demand: $500,000.00. Last Settlement Offer: $20,000.00. Plaintiff’s Counsel: Braden A. Blumenstiel. Counsel for Involuntary Plaintiff Loomis Co.: Todd Smith. Counsel for Defendant Bauer: Bradley L. Snyder. Counsel for Defendant O’Dell: Belinda S. Barnes. Counsel for Defendant Trustmark Affinity
Markets: John P. Archer and Melissa A. Yasinow. Judge Michael Holbrook. Case Caption: Melinda Cummins, et al. v. Terry Bauer, et al. Case No. 11 CV 16364 (2014). Verdict: $4,026.93. Breach of Contract. In May of 2008, David Brehm entered into a purchase agreement with Defendants Thomas and Mary Wiseman for the purchase a nearly 3.8 acre parcel of land at 6565 Worthington Galena Road in Worthington, Ohio. The parcel contained a three-building professional park. While the parties were in negotiation on the sale of the property, Mr. Brehm (doing business as “Brehm, LLC”) entered into lease agreements with the Wisemans for four unoccupied suites within the professional park for a two year term. Shortly after the purchase agreement was signed, Mr. Brehm formed Plaintiff 6565 Worthington, LLC and assigned the purchase contract to that entity. The leases were also later assigned to 6565 Worthington, LLC. After closing on the sale, Mr. Brehm discovered that the underground HVAC system was in need of substantial repair. The system failed multiple times and estimates to have the system repaired exceeded $70,000. Plaintiff argued that the defects in the HVAC system were latent defects about which Defendants were aware and had a duty to disclose. He also alleged that there was a failure in the calculation of the property tax proration and that Defendants failed to pay $1,726.93 that they were required to pay under the purchase agreement. Finally, Plaintiff argued that Defendants damaged the units they leased and failed to pay the last two rent installments on their two-year leases. Defendants argued that the parties considered the need for repairs to the HVAC system in their negotiations and credited Plaintiff $50,000 for that purpose. They also argued that Plaintiff had an opportunity to inspect the premises and discover the defects with the HVAC system. They also filed a counterclaim against 6565 Worthington, LLC and a thirdparty complaint against Mr. Brehm for breach of contract and fraud claiming that Plaintiff and Mr. Brehm mishandled and improperly failed to return their security deposit. Cross motions for summary judgment were denied. The jury found in favor of 6565 Worthington, LLC on the claims for unpaid taxes of $1,726.93 and for excessive wear and tear on the rental units of $2,300, but did not find that Defendants failed to disclose latent defects in the HVAC system. Plaintiff’s Experts: Paul Murrin (HVAC), Benjamin Tritsch, Chuck Blanchard (leak detection). Defendants’ Expert: None. Length of Trial: 3 days. Last Settlement Demand: $99,000.00. Last Settlement Offer: $45,000.00 was offered but withdrawn before trial. Plaintiff’s Counsel: Bryan M. Griffith. Defendant’s Counsel: Nelson E. Genshaft. Magistrate Tim Harildstad. Case Caption: 6565 Worthington, LLC v. Wiseman, et al. Case No. 11CVH-2371 (2014). Defense Verdict. Legal Malpractice. Plaintiff James Gonzales worked as a roofer for A.W. Farrell & Sons until July 23, 2007 when he fell through the roof he was working on and suffered serious injury. After the accident, Mr. Gonzales’s wife contacted Defendant Joseph Fraley and discussed pursuing legal action to recover for the injuries. Mr. Fraley advised that claims against an employer are generally workers’ compensation claims. Mr. Fraley also discussed VSSR and intentional tort claims. The Gonzales’ ultimately hired Mr. Fraley to represent them and signed a fee agreement indicating that the law firm of Pecheff & Fraley Co., LPA would “represent me in all Workers’ Compensation claims.” However, it was the Gonzales’ recollection that Mr. Fraley also agreed to pursue a VSSR claim and to investigate whether an intentional tort claim could be asserted as well. Mr. Fraley denied that he agreed to pursue either a VSSR or intentional tort claim. Mr.
Fraley proceeded with the workers’ compensation claim only and did not investigate further into the other potential claims. Both parties agreed that Mr. Fraley did advise the Gonzales’ within the first year he represented them that he did not intend to pursue an intentional tort claim. However, the Gonzales’ claim that Mr. Fraley did not advise them that he would not pursue a VSSR claim until after the statute of limitations on that claim had expired. Plaintiffs also claimed that Mr. Fraley failed to pursue any claims against third parties. Both parties moved for summary judgment. The Court granted Defendants’ summary judgment motion in part, concluding that Plaintiffs could not have succeeded on the VSSR claim. However, the parties proceeded to trial on the remaining claims. The jury concluded that Defendants did not breach the standard of care. Plaintiff’s Claimed Damages: $1,839,234.24. Plaintiff’s Expert: Charles H. Cooper, Jr. (attorney) Defendant’s Expert: Thomas Pitts (attorney). Length of Trial: 6 days. No settlement negotiation information was available. Plaintiff’s Counsel: Daniel R. Mordarski. Defendant’s Counsel: Michael J. Hudak. Judge Patrick Sheeran. Case Caption: James Gonzales v. Joseph Fraley, Esq., et al. Case No. 11 CV 10344 (2014). Defense Verdict. Medical Malpractice. Plaintiff Donald Troyer sought treatment from podiatrist, Defendant Leonard Janis, D.P.M. in December of 2005 for a painful right ankle. In November of 2006, Dr. Janis performed an ankle replacement surgery. Mr. Troyer complained of ongoing pain after the ankle replacement. In April of the following year, Dr. Janis performed a bone resection and nerve release in the right ankle. He developed an infection after that surgery and continued to have pain in his ankle. In October 2007, it was determined that the bones in Mr. Troyer’s ankle had not healed. In December of 2007, Dr. Janis removed the original implant and performed a second ankle replacement. By April of 2008, Mr. Troyer was complaining of pain in his ankle again. Approximately a year later, Mr. Troyer began treating with orthopedist Thomas Lee, M.D. Dr. Lee concluded that the second ankle replacement was not successful and performed an ankle fusion in May of 2009. The ankle fusion also failed and Dr. Lee amputated Mr. Troyer’s right foot at the end of November, 2009. Mr. Troyer and his wife filed suit against Dr. Janis claiming that Dr. Janis breached the standard of care in the positioning of the artificial ankle during both ankle replacement surgeries which caused both procedures to fail and ultimately lead to the amputation of Mr. Troyer’s lower leg. Medical Specials: $444,280.70. Plaintiff’s Experts: Eric Bluman, M.D. (orthopedic surgeon); Richard Nitsch, LPO (prosthetist); Cam Parker, RN, BSN, CLCP (life care planner); David Boyd, Ph.D. (economist). Defendant’s Experts: Stephen Conti, M.D. (orthopedic surgeon). Length of Trial: 6 days. There were no settlement negotiations. Plaintiff’s Counsel: Anne M. Valentine and Craig S. Tuttle. Defendant’s Counsel: Mark L. Schumacher and Julia A. Turner. Judge Mark Serrott. Case Caption: Donald P. Troyer, et al. v. Leonard R. Janis, DPM. Case No. 09 CVA 1825 (2014). Defense Verdict. Employment Discrimination. Plaintiff James G. Bowditch was terminated from his employment with Defendant Mettler Toledo International, Inc. (“Mettler”) in early 2010 after Mettler discovered that Mr. Bowditch had sexually explicit and non-business related material stored on his work computer and had forwarded some of the material to family, friends, co-workers and suppliers. The inspection of Mr. Bowditch’s computer occurred after a Mettler human resources executive discovered two Mettler employees on the Continued on Page 30 Summer 2015 Columbus Bar Lawyers Quarterly
29
Continued from Page 29 production floor reading a sexually explicit e-mail that had originated from Mr. Bowditch’s computer. Mettler concluded that Mr. Bowditch’s use of Mettler’s computer was a violation of Mettler’s policies as set forth in the employee handbook and terminated his employment. At the time of his termination, Mr. Bowditch was 50-years-old. He had been employed by Mettler for nearly 30 years. Mr. Bowditch claimed that Mettler discriminated against him when it terminated him because younger employees who engaged in the same conduct were not terminated. Mr. Bowditch produced evidence that sexually explicit material was also found on the computer of another employee on four different occasions years earlier and that employee was not terminated. Although the employee was only six years younger than Mr. Browditch, the discovery of explicit material occurred when that employee was in his mid to late 30’s. Mettler argued that the employee was not comparable to Mr. Bowditch for purposes of establishing a prima facie case and that the age difference was not significant enough to raise the inference of age discrimination. It was also Mettler’s position that the material found on the other employee’s computer was far less objectionable than the material Mr. Bowditch was storing and forwarding. The trial court granted summary judgment in favor of Mettler and Mr. Browditch appealed. The Tenth District reversed the summary judgment decision and remanded the case for trial. Mettler sought review by the Ohio Supreme Court, but the Court declined jurisdiction. The case proceeded to trial and the jury found that the evidence did not show that Mettler discriminated against Mr. Bowditch on the basis of age. No expert testimony was presented. Plaintiff’s Claimed Damages: $596,000.00. Length of Trial: 6 days. Last Pre-Trial Settlement Demand: $500,000.00. Last
Pre-Trial Settlement Offer: $75,000.00. (Counsel’s recollection differed about whether the demand was increased and offer was withdrawn during trial.) Plaintiff’s Counsel: Russell A. Kelm and Joanne W. Detrick. Defendant’s Counsel: James E. Davidson, Mimi F. Geswein and J. David Campbell. Visiting Judge Alan Travis. Case Caption: James G. Bowditch v. Mettler Toledo, Inc., et al. Case No. 09CVH-6735 (2014). Defense Verdict. Slip and Fall. On September 2, 2010, Plaintiff Janet Berrien entered Defendant’s Speedway store and headed to the drink station. On her way, she passed a wet-floor sign that had been placed there by an employee who had mopped the floor just before Ms. Berrien arrived. After Ms. Berrien got her drink and as she walked back through the Speedway, Ms. Berrien fell and fractured her hip. She concluded that she fell on a wet substance on the floor because her clothes were wet after she fell. However, she could not identify the substance or its source. Speedway moved for summary judgment, but the motion was denied. Medical Specials: in excess of $50,000.00. Lost Wages: Unknown. Plaintiff’s Expert: Robert Turner, M.D. (orthopedic surgeon) Defendant’s Expert: None. Length of Trial: 3 days. Last Settlement Demand: $100,000.00. Last Settlement Offer: None. Plaintiff’s Counsel: Terry V. Hummel. Defendant’s Counsel: Bradley L. Snyder. Magistrate Ed Skeens. Case Caption: Janet Berrien v. Speedway, LLC, et al. Case No. 11 CV 14679 (2014). Monica L. Waller, Esq. Lane Alton & Horst mwaller@lanealton.com
GROWING WITH A STRONG FOUNDATION Our commitment to growth reflects real dedica�on to our clients now and in the future.
Brian P. Barger Stephen D. Brown Joseph R. Durham Melissa A. Ebel
Our estate planning prac�ce, well established in northwest Ohio, is expanding in Columbus to serve the needs of our clients.
David S. Jackson Bryan L. Jeffries Brian T. Johnson Alyson J. Letsky
If you are interested in growing with us, we’d like to hear from you. Give us a call.
René L. Rimelspach eastmansmith.com
614.564.1445 • 100 East Broad Street • Columbus 30
Summer 2015 Columbus Bar Lawyers Quarterly
Mark A. Shaw Kyle D. Tucker
Want your news on the go? Our e-edition is available at 12:01 a.m. each business day.
thedailyreporteronline.com
Top Top of mind. of mind.
Energy. Passion. ConďŹ dence. Just a few of the qualities found in abundance at Barnes & Thornburg that benefit our clients, ourJane Brener Energy. Passion. Confidence. a few of WhetherAndrew B. Coogle colleagues, and ourJust community. the qualities found in abundance at counselBrian J. Downey you are a business looking for legal Barnes & Thornburg benefit clients, or a lawyerthat looking forour a fresh opportunity,Charles R. Dyas, Jr. our colleagues, andof mind. our community. keep us top Robert C. Folland Whether you are a business looking for Amy Ruth Ita legal counsel or a lawyer looking for a Catherine Jopling fresh opportunity, keep us top of mind. Kevin R. McDermott William A. Nolan Douglas M. Oldham David Paragas Adrienne A. Pietropaolo 41 S. High Street, Suite 3300 614-628-0096 Julie A. Veldman Uncommon Value
ATLANTA
CHICAGO
DELAWARE
INDIANA
LOS ANGELES
MICHIGAN
MINNEAPOLIS
OHIO
WASHINGTON, D.C.
btlaw.com
41 S. High Street, Suite 3300 614-628-0096 ATLANTA
CHICAGO
DELAWARE
INDIANA
LOS ANGELES
MICHIGAN
MINNEAPOLIS
OHIO WASHINGTON, D.C.