Columbus Bar Lawyers Quarterly Summer 2018 by Columbus Bar Lawyers Quarterly

LAWYERS

Columbus Bar Summer 2018

QUARTERLY

Vacation & Leisure In this issue, Columbus Bar Lawyers Quarterly dives into legal topics that center around vacation and leisure: international travel and healthcare, parks & recreation, your rights when traveling by car, noise ordinances, owning or renting vacation homes, hosting outdoor parties and sports liability. This issue also tackles legal writing styles, conflict management, immigration visas and more.

A publication of the Columbus Bar Association • www.cbalaw.org

Table of

LAWYERS

Contents

QUARTERLY

Summer 2018 President’s Page

What Can the Bar Do for You? Sam Peppers

Let the Dogs Out? 34 Who Isaac Rinsky Fun and the Associated 37 Summer Risks: Who is Responsible for the Resulting Injury? Abigail Chin and Elizabeth Moyo

Bar Insider

Legal Storytelling: Character, Conflict and Arc Mark Kitrick and Mark Lewis

Discipline Cases in the 11 Lawyer Supreme Court of Ohio Nelson E. Genshaft

Better Lawyer Leadership Program: 14 Barrister A Rewarding Opportunity for New Attorneys Rebecca Bradley

Hiring Internationally: Immigrants Get the Job Done Payam Yazdani

Can You or Can’t You? Contractions in Legal Writing Ian F. Gaunt

Points of Practice

What Can You Learn from a Country Lawyer? Abe Lincoln Revisited Don Gregory

is What You Make It 24 Conflict Cynthia Price

Vacation & Leisure and Parks: Making 28 Recreation Columbus a Great Place to Live Rob Dorans

Florida vs. Ohio Homestead: Why Does It Matter? Brittany Pace

No Place Like Home 40 There’s Jeffrey Kaman

Automobile Travel Tips, North and South of the Border William Nesbitt and Chelsea Lund

Ounce of Prevention: Health Tips 46 An for Safe Travels Mairi K. Mull

Traveling Internationally: The Quick and Safe Way David Bloomfield and Orsolya Hamar-Hilt

Columbus Bar Association Editorial Board Chair

Janyce Katz

Board Members Melanie Tobias Amy Koorn Ashley Johns Allison Lippman Garth Rowbotham

Editor

Brianna Antinoro

Design/Production Sarah Curran

Life Outside the Law Active and Out of the 52 Get Desk Chair! Kristin Gordon-Hock

Eight Traits for Wellness 56 Embrace Scott R. Mote

Columbus Bar Association 175 S. Third St., Suite 1100 Columbus, OH 43215 (614) 221-4112 www.cbalaw.org

Southwest Scenery for 58 Try Serious Sightseeing Hon. David E. Cain

with Artistic License: 62 Lawyers Sean Harris Heather G. Sowald

Jury Verdicts Jury Trials, Franklin County 64 Civil Common Pleas Court

Advertising Burgie MediaFusion (614) 554-6294 leslie@burgiemediafusion.com

Monica L. Waller

NOTICE: Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. Any statements pertaining to the law contained in this magazine are intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues.

President’s Page

What Can the Bar Do for You? by SAM PEPPERS As I begin my year as Columbus Bar President, I think about the many wonderful, diligent, smart attorneys I know who practice law in Columbus and the Central Ohio Area. Every day you seek to fix other people’s problems, right wrongs and correct the problems in our society. You do this day in and day out. And yet, our profession is under attack from inside and outside sources. Over the coming year, I hope to address some of these issues. I don’t profess to have all the answers and I certainly do not profess to have the ability to correct these issues without assistance. The CBA and I will need your time, talents and wisdom to address these challenges. First, we need to take care of ourselves. Attorney wellbeing and mental health concerns due to chronic stress, depression and substance abuse has become a problem we can no longer ignore. The American Bar Association established a taskforce to study this issue and the taskforce issued its report in August 2017.1 A

2016 study of 13,000 practicing lawyers completed by the ABA Commission on Lawyer Assistance Programs along with the Hazelton Betty Ford Foundation “found that between 21 and 36 percent qualify as problem drinkers, and that approximately 28 percent, 19 percent, and 23 percent are struggling with some level of depression, anxiety, and stress respectively.” Further, the study found that the “parade of difficulties also includes suicide, social alienation, work addiction, sleep deprivation, job dissatisfaction, a “diversity crisis”, complaints of work-life conflict, incivility, a narrowing of values so that profit predominates, and negative public perception.” Who among us does not know a colleague that is described here or for that matter, who among us has not experienced some of these things ourselves. I believe if we don’t take care of ourselves we will lose our valued position in society and someone outside our profession might try to solve the problem for us. This is why I have discussed this issue with CBA staff and the Board of Governors and

Every day you seek to fix other people’s problems, right wrongs and correct the problems in our society. 4 | Columbus Bar L aw yers Quarterly Summer 2018

we have begun our own Attorney Wellness and Mental Health Taskforce to develop practical programs for our members and their families to combat this growing problem. Secondly, we must find a better way of bringing new attorneys into the profession and placing them in positions where they can grow their practices. This means we have to address the two-fold problem of law student debt and a lack of employment positions where new lawyers can grow as attorneys and as individuals and make a reasonable income to support themselves and their families. During the next year, the CBA Board and I will begin discussions with the two local Law Schools to address the student debt issue and to provide a curriculum that produces practice ready attorneys upon their passage of the bar exam. I believe addressing these problems and finding some solutions to these issues will go a long way to resolving some of the stress that lawyers are feeling. We also need to combat the relegation of the practice of law to just filling out the proper form or drafting the proper document that some internet services suggest that is all there is to it. We need to promote the legal thought processes that every lawyer brings to the table when addressing a client’s problems or concerns. I believe these actions will provide enough push back

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for internet services to diminish in public appeal. But this requires that we educate and present practice ready attorneys to the public.

Annual Meeting 2018 5 | Columbus Bar L aw yers Quarterly Summer 2018

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CBS AGENCY, INC.: Professional liability insurance and probate bonds through the Columbus Bar’s insurance agency.

I would also like to see the membership of the CBA increase over the next year to where 90 percent of the lawyers that live and practice in Franklin County and the surrounding area are dues paying members. This requires that the CBA continue to produce and provide CLE, practice management services, and other resources that are innovative and beneficial to our members and their families. It is our promise that the CBA Staff and the Board of Governors will do all that we can to continue our tradition of being one of the best Bar Associations in the Country. But we also need the help of our members in two areas: We need our members to suggest CLE topics, programs and resources that they would like the CBA to provide. For some that will mean that you have to step up and be willing to teach or moderate a CLE program. For those with some expertise, what better way to give back to your profession and colleagues? We also need members to promote

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the CBA to non-members. If you have found the CBA to have been a benefit to you in your practice, we ask that you share that experience with the non-member lawyers that you know. Please invite them to committee meetings, programs and social/networking events. And finally, I would ask that you use the services that the CBA provides to the Bar. These services include fiduciary bonds or professional liability insurance provided by CBS Agency, the Practice Management Center that was recently launched to help our members become more efficient, Central Ohio Docs which provides over 50 domestic relations and real estate forms for a low cost of $20 per month, meeting places for clients, mediations, settlement conferences and more at a reasonable rental rate, notary needs including classes and seals, and the Incubator Program, which is a great place for new lawyers to start a solo practice with peer and mentoring support. All of

6 | Columbus Bar L aw yers Quarterly Summer 2018

these services are available to our members. I ask that you try these services to see if they work in your practice and then tell us if they are of benefit or if there is more we can do or other services we can provide to assist our members and the Bar in the practice of law. I want to thank you all for this wonderful opportunity and I am looking forward to the coming year. I do believe we have one of the best Bar Associations in the U.S., if not the world. But, we will only continue to be as good and as relevant as the involvement of our members. So I leave you with one final thought. It is here that I would like to paraphrase a famous statement from John F. Kennedy’s inaugural address: “Ask not what your Bar Association can do for You, Ask what you can do for your Bar Association.” By doing this we will make the CBA better so that its activities benefit not only the members of the Bar but our community at large. 1 https://www.americanbar.org/content/dam/aba/images/abanews/ ThePathToLawyerWellBeingReportFINAL.pdf

Samuel A. Peppers, III, Esq.

Dinsmore & Shohl, LLP sam.peppers@dinsmore.com

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Bar Insider

Legal Storytelling: Character, Conflict and Arc bY Mark Kitrick and Mark Lewis Recall the last time you were swept away by a story. Was it an adventure movie, a romantic novel or simply listening to a loved one recount the day’s events around the kitchen table? What you likely remember most is a feeling. Whether joy, fear, sadness or surprise, you were pulled by this feeling to your emotional center, where your moral and intuitive core resides. This is where stories live in each of us, the place from which meaning, empathy and understanding most often arise. As lawyers, we are too often separated from our emotions by legal reasoning and abstraction. But we cannot live on rules and reason alone. We need stories, too; ones

that embrace our imaginations, our feelings and our values. Such emotional wellsprings are vital to our wellbeing because law is far more than a set of rules and doctrines to guide social order. Law is a way of life. It is our calling. In this series of articles about Law and Literature, also known as “LawLit,” we seek to find our way back to our emotional core by looking at and through the multi-colored emotive and humanistic prism of stories and storytelling traditions. From great literature we can learn the most practical lessons about reading, writing and ethics – the tools of our legal trade. Likewise, Law-Lit makes us more ethically attuned to the sturm and drang of daily practice. We also learn the art of crafting meaningful, true stories. In short, through Law-Lit we become better storytellers who honor truth-telling without sacrificing the joy of a finely spun narrative.

Just think, for example, how much we might improve our legal writing. No longer just a technical way to solve problems, advocate or communicate in law practice, legal writing through the art of storytelling can also become a medium to properly move our readers emotionally, imaginatively and ethically. After all, legal stories are built on the same tools of narrative technique that have served authors, screenwriters and campfire orators for millennia: Homer to Christopher Nolan; Shakespeare to Stephen Spielberg; Jane Austen to J.K Rowling. They all rely on the three titans of story art: character, conflict and arc.

While truth, candor and ethics must hold sway over whatever storytelling impulses move us, there is much room for storytelling in our legal writing. 8 | Columbus Bar L aw yers Quarterly Summer 2018

We know that our favorite characters come alive through vivid detail, purposeful action and inner conflict. It is much the same internal conflict that drives characters to strive for external goals and to transform their lives, often in surprising ways. The most convincing characters also change as the story’s narrative arc leads us through the plot’s cause and effect. There is no story without change, consequence and struggle. Whether Ebenezer Scrooge or Han Solo, the most enduring characters follow much the same story arc to change. So, how can fundamental story ideas improve our legal writing? For starters, most readers – including your legal audience – understand information better when conveyed through story that reveals a compelling character caught in an empathetic struggle to change. Whether enmeshed in the conflicts of Hamlet or Shrek, we come to understand and relate to dilemmas

through story, not through dry facts or chronological recitations. Unfortunately, most legal writing still relies too heavily on abstractions and jargon. The “law” becomes the character, rather than the client or an actual person. Because we relate better to people than ideas, focusing on characters or even learning to bring the “law” itself alive as a character serves our readers well.

with the narrative naturally leading us to the decision. Think how we all inevitably predict and expect the ending to well-told stories. That is the inherent persuasive power of stories. In this first Law-Lit article, we leave you with practical advice drawing on the concepts of character, conflict and arc. In your next legal writing project,

Our same readers will naturally appreciate story as a means to reach conclusions. We know from cognitive science that people, in this case readers, resist being told what to think or do. Stories guard against this reaction while still persuading us. We come to our own conclusions when reading a story; 9 | Columbus Bar L aw yers Quarterly Summer 2018

approach your task as a storyteller who asks these three questions:

1. Who is my main character and what do they want above all else?

Mark M. Kitrick, Esq.

Kitrick, Lewis, & Harris, Co., LPA mkitrick@kitricklaw.com

This could entail both external and internal goals. In other words, they seek to achieve some change in the world and perhaps also within themselves. We relate best to such characters.

2. What conflict stands in their way?

This might be another character, law or fact that stands in direct opposition to them. Consider also the moral values at stake in resolving this conflict. Align, as best you can, your character’s goals and the resolution of the story obstacles with values your reader is likely to hold.

3. What actions might they take to overcome those obstacles, leading by cause and effect to the ending that affirms their actions or the values they imply?

This is the essence of narrative arc, the story sets into forward motion cause and effect that leads to change. In future Law-Lit articles, we will develop these story principles and how best to use them in your legal writing. For now, as you put these initial three questions to the test, fight the urge to think in legalisms or conventional lawyerly ways. Think instead as a storyteller creating artistic solutions to character, conflict and arc. After arriving at those story solutions, write and solve your legal problem as a technically savvy lawyer should, using all the tools of legal reason. Those tools and norms should, of course, govern any urge to run away with the story, as we must always remain mindful of the special constraints we face as legal storytellers. While truth, candor and ethics must hold sway over whatever storytelling impulses move us, there is much room for storytelling in our legal writing. Until then, enjoy reading and writing your legal stories.

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Mark D. Lewis, Esq.

Kitrick, Lewis, & Harris, Co., LPA mlewis@klhlaw.com

Bar Insider

Lawyer

Discipline Cases in the Supreme Court of Ohio by NELSON E. GENSHAFT This is the first in a series of planned articles that will highlight significant cases on lawyer discipline decided by the Supreme Court of Ohio. Each of the cases noted below were presented to a panel of the Board of Professional Conduct. The Ohio Supreme Court then reviews the case and makes a final decision. I have focused on discipline cases that involve contested issues and lawyer sanctions. I have not included cases that involve uncontested motions, default judgments or resignations/reinstatements after suspension, since those cases typically do not involve contested issues under the Rules of Professional Conduct. Cases noted since January 1, 2018:

1. Mahoning County Bar Association v. Cochran, Case No. 2017-1080, Decided 1/2/18. Respondent Cochran was charged with violating professional conduct rules after he was convicted of a misdemeanor offense in federal court. Board recommended one-year stayed suspension. The Court

accepted the Board’s finding of misconduct and the recommended sanction. Cochran had represented a person charged in a state court case relating to a shooting; Cochran’s law partner represented the same person on a federal charge for growing marijuana. Unknown to Cochran and his partner, their client was cooperating with federal authorities in an effort to avoid prison. Cochran was charged in federal court with obstruction of justice. After an initial mistrial and an acquittal on two charges, the government announced that it intended to retry Cochran on remaining charges. Cochran agreed to plead guilty to a new charge of “misbehavior in the presence of the court.” Judge determined the conviction was a misdemeanor. The Board’s recommendation of a stayed suspension was based on Cochran having no prior disciplinary record, no dishonest or selfish motive, his cooperation in the case and the fact that criminal sanctions had already been imposed. Key issue in the case was the Board’s determination that Cochran’s conduct was not dishonest or deceitful.

2. Disciplinary Counsel v. Goebl, Case No. 20171083, Decided 1/2/18. Respondent Goebl was charged with failing to cooperate in investigation of overdrafts in his Interest on Lawyer Trust Accounts (IOLTA). He claimed a third party stole his IOLTA checks, causing an overdraft. Goebl failed to respond to requests for information about his IOLTA and ignored subpoenas served on

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him for two depositions. He ultimately was deposed and then examined by a physician who diagnosed adjustment disorder with anxiety. Parties stipulated to facts, finding of misconduct and sanction of a sixmonth stayed suspension. Court accepted parties’ stipulated sanction and ordered a six-month stayed suspension, subject to a mental health examination by Ohio Lawyers Assistance Program (OLAP), compliance with all treatment recommendations and no further misconduct.

3. Disciplinary Counsel v. DeMasi, Case No. 2016-0994, Decided 1/3/18. Respondent DeMasi was charged with three counts in a complaint tried to a panel of the Board. Charges included DeMasi’s refusal to attend her own judgment debtor exam and contempt relating to her refusal to accept an order for the exam; negligence in representing a client and refusal to refund fees to the client and return documents; overdrafts in her IOLTA; and refusal to cooperate in the investigation of her IOLTA. Court found DeMasi is not ready to resume her practice based on a pattern of misconduct, multiple offenses, refusal to cooperate in disciplinary process, refusal to acknowledge misconduct and failure to make restitution to her client. Court ordered indefinite suspension, subject to refunding client’s fees, a mental health examination, compliance with a treatment program based on the examination and her ability to return to a “competent, ethical and professional practice of law.”

4. Columbus Bar Association v. Nyce, Case No. 2017-1078, Decided 1/3/18. Columbus Bar Association filed a four-count complaint against Respondent Nyce, including failure to disclose his lack of malpractice insurance, failure to withdraw from representation, improper communications with a person represented by counsel, IOLTA violations and improper use of his trust fund to conceal assets. The matter was tried to a panel which recommended

disbarment. Respondent objected. The Court found that he had testified falsely, tried to impede the disciplinary process and refused to accept responsibility for his misconduct, all of which tipped the sanction from indefinite suspension to permanent disbarment. Court agreed with Board’s finding that Respondent was no longer fit to practice law and the only way to protect the public was to disbar him.

5. Mahoning County Bar Association v. Atway, Case No. 2017-1082, Decided 1/3/18. Atway was Cochran’s law partner in the case described above in Mahoning County Bar Association v. Cochran. Atway represented the same client who was working with the FBI in an effort to avoid jail time. Atway was charged with obstruction of justice, but his trial ended in mistrial. He then agreed to plead guilty to a lesser charge, essentially “lying to his client.” He was fined and placed under house arrest. Atway and Board stipulated to certain violations of the Code and a sanction of suspension for two years with credit for time spent in house arrest. Court reviewed and agreed with the two-year suspension, but refused to grant credit for time served. Given his conviction for depriving a client of his right to the effective assistance of counsel, Court found no compelling reason to grant any credit against the two-year suspension.

6. In re Application of Winwood, Case No. 20171114, Decided 1/3/18. Respondent applied to take the Ohio bar exam given in July 2017. Because he had criminal convictions as a juvenile, his application was reviewed by the Board, which found that the crimes involved were committed so long ago that they did not bar him from taking the exam. However, Winwood’s failure to disclose the crimes on several law school applications, after being advised by a law school professor to disclose them, demonstrated intent to conceal. Respondent was permitted to reapply to take the July 2018 bar exam.

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Each of the cases noted below were presented to a panel of the Board of Professional Conduct and then reviewed by the [Ohio Supreme] Court. 7. In re Application of Washington, Case No. 2017-1137, Decided 1/3/18.

9. Cleveland Metropolitan Bar Association v. Hurley, Case No. 2017-0798, Decided 1/16/18

Respondent was initially approved to take the Ohio bar exam given in July 2017, but the Board noticed that she had been dismissed from an internship with the Ohio Department of Administrative Services, which she had not disclosed on her application. Her dismissal was based on a discrepancy between the hours she reported as worked and the records of her employer. Board conducted two hearings and recommended that her application be denied, but that she be permitted to reapply in the future. Court agreed with Board, finding that Respondent’s failure to disclose and failure to cooperate in the investigation demonstrated that she did not have the “requisite character, fitness and moral qualifications for admission to the practice of law.” Respondent was permitted to reapply for the bar exam given in July 2018.

Respondent was admitted to the Ohio bar in 2008, but received a two-year suspension in April 2015 for felony and misdemeanor convictions. Relator charged him with practicing law while under suspension. The charges were based on Respondent writing letters under name of his former law firm claiming that employers who posted online applications had discriminated against him by excluding him from employment because of his prior felony convictions and his race. The letters referred to Respondent’s “client” and demanded $500 to avoid further action. In fact, Respondent had no client, and he was the person claiming discrimination. Of the 20 letters sent by Respondent, only one employer responded by paying the $500 demanded. Relator charged Respondent with practicing law while under suspension. Board recommended disbarment, which is the normal sanction for practicing while under suspension with no mitigating circumstances, be imposed. However, the court found mitigation based on Respondent’s cooperation in investigation, restitution to the employer who paid him $500 and his recent enrollment in an OLAP program to address a mental disorder. Court suspended Respondent indefinitely, subject to mental health exam reporting that Respondent is qualified to return to practice law, along with his compliance with OLAP contract and all recommendations made by OLAP.

8. Disciplinary Counsel v. Maciak, Case No. 2018-544, Decided 1/24/18. Respondent was admitted to the Ohio bar in 2000, but worked for a Florida-based company as its general counsel. Between 2007 and 2015, Respondent’s Ohio license was suspended several times for registration and CLE violations. Florida investigated Respondent for possible unauthorized practice of law violations because he was neither admitted to Florida bar or certified as Authorized House Counsel under Florida rules. Disciplinary Counsel investigated pursuant to a grievance filed in Ohio, and charged Respondent with UPL for practicing in Florida, practicing while under suspension in Ohio and making false statements to Relator. Board found Respondent committed UPL and practicing while under suspension, and recommended two-year suspension with entire suspension stayed under conditions. Court agreed and imposed two-year stayed suspension with conditions.

Nelson E. Genshaft, Esq.

Strip Hoppers Leithart McGrath & Terlecky Co., LPA neg@columbuslawyer.net

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Barrister Leadership Program: A Rewarding Opportunity for New Attorneys BY REBECCA BRADLEY About two years ago, at the very dawn of my career as an attorney, I felt an itch to jump in head first. The excitement of finally becoming a lawyer, after I had worked so hard for so long, made me want to absorb as much information in as little time as possible. I wanted to speak with influencers and learn what I could be doing to make myself an effective advocate. I wanted to get input from peers and mentors to understand what path would be the most fulfilling for me and the most effective use of my talents. I wanted to give back and make my mark on the Columbus legal community. However, I almost immediately found myself overwhelmed in the best way. Columbus is a community full of resources for new attorneys. While I knew that these resources existed, I was unsure which would serve me and my needs best, and did not know where to begin. In my fervor of internet research, I came across the CBA’s Barrister Leadership Program, and was

immediately interested. I had to wait a couple of months to apply, but upon beginning the program I found it to be exactly the experience I needed. It was tailored toward attorneys, like me, who want to develop leadership skills and contribute to their community. The lessons I learned in the program became my compass with which I continue to guide many of my professional decisions. The Columbus Bar Association’s Barrister Leadership Program provided me with innumerable opportunities for growth in the advent of my legal career. Monthly, I would find myself waking up for the program’s 7:30 a.m. meetings and leaving the meeting at 9 a.m. with a clearer understanding of my role as a member of the Columbus legal community. I felt like a fountain of questions. I’ve been blessed with some exceptional mentors in my legal career, but the Barrister Leadership Program answered questions I didn’t even realize that I had. Throughout the program’s lifetime, the CBA has done a wonderful job identifying the areas of a young attorney’s career path in which they may need the most guidance.

I’ve been blessed with some exceptional mentors in my legal career, but the Barrister Leadership Program answered questions I didn’t even realize that I had. 14 | Columbus Bar L aw yers Quarterly Summer 2018

Many aspects of this program make me grateful to have been a participant, but the three that have affected myself and my career most profoundly have been the increased confidence and communication skills, the expansion of my personal and professional networks through the people I have met in the program, and the fulfillment acquired by the opportunity provided by the program to give back to the Columbus community. I remember two of our earliest sessions focusing on the communication skills and the profession. I also remember reading the rundown of meetings for the year and thinking “Will we benefit from two separate communication sessions?” The answer was YES! These are two of the sessions I revisit the content from most frequently. Communication is a skill I continue to develop on a moment-to-moment basis, and one of the things I work hardest to craft. Being an effective communicator has benefited me immensely in my

profession, as well as my personal life. The Barrister Leadership Program was a catalyst for me to shift my focus toward honing these skills. Throughout our morning sessions, the program delivered a consistently impressive roster of speakers who helped me and my colleagues develop a more comprehensive picture of the legal profession. In many instances, we had the opportunity to speak with the presenters in a small group format. The chance to talk to respected attorneys and community leaders in such an intimate setting was one of the elements of the program that I valued most. Barrister Leadership covered many topics relevant to young attorneys. Some which I had expected before joining, such as networking, professionalism and effective communication, and some which I hadn’t considered before joining like stress management,

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board service and mental health. The comprehensive nature of this program is one of its greatest assets. I was particularly pleased with Barrister Leaders’ focus on community involvement. I’ve always tried to make time to have a positive impact on my community through volunteer activities and involvement. However, I found that academic rigors of law school, and the adjustment to my new profession, had pulled me away from community engagement. Giving back to my community has always been a grounding and fulfilling element of my life and this program helped me to personally refocus in a way that nurtured my legal career and passion for volunteerism simultaneously and symbiotically. As a rescue dog owner, I was overjoyed to work with my fellow attorneys to collect toys, food and other necessities for the Capital Area Humane Society. Through this project and others, chosen by our class, I became aware of what a powerful impact I can have on the community I love as an attorney. And how much more powerful that impact can be when I am collaborating with like-minded individuals and colleagues.

the opportunity to test-drive Teslas at Easton. We were also divided into small groups of four or five and encouraged to build relationships with fellow group members by meeting up monthly. This helped us build relationships with our cohorts that extended beyond the program itself. I think that any qualifying young attorney with a passion for the legal profession and a thirst to become more involved in the Central Ohio community would benefit immensely from participation in this program; especially if they relate to my experience. The Barrister Leadership Program helped me transform my first few years of practice from what could have been an overwhelming and discouraging experience, into a challenging and rewarding one. For that, I am very grateful.

Rebecca Bradley, Esq.

Luftman Heck & Associates, LLP rbradley@lawlh.com

I would be careless to leave out the social element of the Barrister Leadership program. There were many fun opportunities to socialize with fellow members and past members as a group. A favorite of mine was our first social at Pins Mechanical, and another was

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16 | Columbus Bar L aw yers Quarterly Summer 2018

Hiring Internationally: Immigrants Get the Job Done BY PAYAM YAzdANI What if a business selling Persian rugs is looking to offer repair services? At this particular time, they may have a problem if they can’t find a local repair expert to hire. Traditionally, most businesses were able to import talent where the U.S. labor market fell short. This process is now threatened by recent actions including the Presidential Proclamation 9645, or the so-called travel ban, and policies related to the H-1B program and the North American Free Trade Agreement. This is not to disappoint those looking to meet their labor needs through the global talent pool. Employers should be advised that when they are unable to find the expertise they need, they may be able to look beyond the U.S. borders. The U.S. immigration laws contain several different immigrant and non-immigrant visa categories that are designed to support business activities. Some non-immigrant employment categories frequently utilized by businesses are L, TN, E and H. With an L visa, a U.S. company with a foreign office can bring in an executive or manager, or an employee with a specialized knowledge who has worked for its foreign office. This visa has many requirements and is sometimes difficult to obtain, but it is a critical tool for foreign entities with U.S. offices or entities aiming to enter the U.S. market.

Canadian and Mexican professionals can utilize the NAFTA based TN visa. This visa is issued for professional activities designated in the regulations. Many U.S. companies, including auto manufacturing suppliers, rely on this visa to fill their highly skilled labor positions where the U.S. labor market falls short. As an example, this visa enabled a research scientist from Canada to enter the U.S. to innovate the next generation of car antennas. Another treaty-based visa is the E visa. Under E visa’s investment category, a foreign investor from a country party to the requisite treaty can enter the U.S. to develop and direct his investment. The investor’s entity can also apply for visas for its key employees holding the same nationality as the investor. This visa is utilized by various firms, from large German automobile manufacturing suppliers who need to bring in their German engineers, to small investors operating cab companies, restaurants or online businesses they started in the U.S. Still, the most talked about employment-based visa is the subcategory of the H visa, the H-1B. With the H-1B visa, employers can utilize foreign workers for specialty occupations for up to six years, and under certain circumstances, for a longer period of time. Oftentimes, an H-1B is the only viable visa option available to international students graduating from

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Photo by Kamyar Adl U.S. universities. And in many cases, it is the only visa available to employers looking to meet their skilled labor needs. This has made the H-1B visa quite valuable in a growing economy. In the most recent fiscal year, the government received 190,098 H-1B visa petitions subject to the annual cap. Yet, the annual cap is 65,000 with an additional 20,000 visas allocated to those who earned a U.S. master’s degree. The large number of visa petitions has forced the government to select petitions for processing through a computerized lottery. Although the visa is very popular in the Information Technology sector, those who obtain an H-1B work in different industries providing an array of professional services. The visa is utilized by large employers in industries such as insurance, automotive, pharmaceutical, banking and technology, as well as small employers in various industries like engineering or consulting.

Many employers use immigrant visa petitions, in addition to non-immigrant visas, to import or retain talent and expertise. Employment-based immigrant categories range from EB-1, reserved for persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers, to EB-2, reserved for professionals holding an advanced degree and those with exceptional ability, to EB-3 which includes professionals, skilled workers and other workers who can perform a job for which employers cannot find qualified candidates in the U.S. So, what if a Persian rug store is looking to offer repair services? Last year we were contacted by a rug store looking to offer repair services. The business was looking to hire an expert who could repair valuable rugs, but was unable to locate a candidate through its local recruitment efforts. An experienced rug weaver was finally located, but he was over 6,000 miles away, in Iran.

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Oftentimes, an H-1B is the only viable visa option available to international students graduating from U.S. universities. And in many cases, it is the only visa available to employers looking to meet their skilled labor needs. The long process of required recruitment efforts and necessary certifications and approvals to bring this individual to America worked fine until the U.S. President decided to stop issuance of all immigrant and non-immigrant visas to the nationals of a few countries, including Iran. The only option now may be to pursue a mysterious waiver included in the proclamation, the procedure for which remains non-existent or largely unknown, at least publicly at this time. Despite stories like this, businesses looking to hire foreign nationals need not be disappointed. With a few exceptions, importation of talent and expertise is available to businesses that can’t find qualified local workers. Local workers also don’t have much to worry about. In most cases, the wage offered to foreign workers must be at or higher than the prevailing wage for the position, and in many cases, the local pool of labor must be considered first, before the employers can file visa petitions for foreign workers. Immigrants are contributing anywhere the U.S. labor market falls short. They support innovation and help push American industries forward. This creates a competitive edge for American businesses and supports the growth of employment opportunities for American workers. The TN research scientist from Canada who is inventing the next generation of car antennas in the U.S. can make the American auto industry more competitive, and this will support new job opportunities in America. It is no secret that America attracts the very best. Imagine if everyone in the world was interested to work at your firm. You would be able to hire the most qualified candidates in the entire world, and that would make your firm competitive at the global level. Allowing immigrants into our country on employment visas would only make America great again.

Payam Yazdani, Esq.

Yazdani Law, LLC payam@yazdanilawfirm.com

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Can You or Can’t You?

Contractions in Legal Writing BY IAN F. Gaunt They’re regularly used by Chief Justice Roberts, Justices Alito, Gorsuch, Kagan (dissenting) and @JusticeWillett; they’re approved — cautiously — by Bryan Garner and Ross Guberman; they pop up in Orwell’s “Politics and the English Language.” But the BBC bans them, as does Justice Sotomayor and so did Justice Scalia. More likely than not, your 1L Legal Writing textbook did not approve. So can you use contractions in legal writing or not? And if you can, should you? The first question is easy enough: Contractions are perfectly acceptable in professional English. Just look to the precedent. Fowler used them throughout his Dictionary of Modern English Usage. Presidents Franklin Roosevelt, Truman, Eisenhower and Kennedy used contractions in their State of the Union addresses, as has every president since Ford. The federal plain language guidelines say to use them “wherever they sound natural.”

In law, Justices Brennan, Frankfurter and Stewart used contractions in their opinions, and you can find them in briefs written by Miguel Estrada and Deepak Gupta. Mark Painter, former Judge on the Hamilton County Court of Appeals and author of The Legal Writer, dismisses the ban on contractions in legal prose as “another error.” The Ohio Supreme Court writing manual mentions contractions precisely once, when it explains the correct use of “it’s” versus “its.” That’s just the advice aimed at writing to a court — we don’t have space to get into books and law reviews. Contractions aren’t just acceptable; they can also improve your writing. Contractions increase both comprehension and readability. Careful use can revive moribund prose. And you already know that an engaged reader is that much closer to becoming a persuaded reader. The strongest objection against contractions goes like this: If you’re writing a brief, you’re writing for a

The same rules apply as for anything else you’re writing. Write for your audience and use your ear. 20 | Columbus Bar L aw yers Quarterly Summer 2018

Contractions aren’t just acceptable; they can also improve your writing. Contractions increase both comprehension and readability.

judge — and that judge might not like contractions. That judge might believe contractions are simply not appropriate for court. So you should avoid them. There is mixed evidence on this objection. Guberman, author of Point Made, conducted an informal poll of judges and found that most of them are actually fine with contractions — 42 percent approve and 21 percent don’t care. But that still leaves 37 percent, and that remainder feels rather strongly about the issue. (They’re not alone: Scalia and Garner almost stopped writing their co-authored Making Your Case because of their disagreement over contractions.) So what should you do? Obviously if you know the judge does not like contractions you do not use them. An easy way to check is to run a simple text search of the judge’s opinions in whatever legal database you use. Type in a Boolean search like <[Judge’s name] & “*n’t” OR “*’re” OR “*’ve” OR “*’ll” OR “*’d”>. That exact search will return the most common contractions without drowning you in possessives. If you find a contraction, check the results to make sure it’s not in quoted text. Then follow the judge’s lead.

Even if the judge does use contractions, you still don’t want too much of a good thing. Use contractions confidently but carefully. A helpful way to gauge if a contraction is appropriate is to read the brief out loud. If the contraction sounds unnatural, break it. You also want to avoid contracting any noun and “is,” which can give the reader a bad miscue, tripping them into seeing a possessive instead of a contraction. And any double contraction (usually contracting the subject, would, and have, all at once) might be fine when spoken but is just a mess on the printed page. The same rules apply as for anything else you’re writing. Write for your audience and use your ear.

Ian F. Gaunt, Esq.

ifgaunt@outlook.com

21 | Columbus Bar L aw yers Quarterly Summer 2018

Points of Practice

What Can You Learn from a Country Lawyer? Abe Lincoln Revisited by don gregory One Hundred and Seventy-Five Years ago a wiry country lawyer traveled the states of the old Northwest Territory, often sharing rooms and meals with opposing counsel and the circuit judge as they dispensed justice from county seat to county seat. While I would not recommend similar sleeping arrangements today, modern trial lawyers can still learn valuable lessons from Abraham Lincoln.

1. Be modest.

Too many lawyers, even good ones, are often too full of themselves. Be more like Lincoln, who began remarks to law students on the practice of law with the statement “I am not an accomplished lawyer.” Avoid frilly language. As Lincoln said, “I never went to school more than six months in my life, but I can say this: that among my earliest recollections, I remember how, when a mere child, I used to get irritated when anybody talked to me in a way I could not understand.”

2. Be honest.

As Lincoln warned, “If in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.” Do not let hunger for a win get in the way of the truth. As Lincoln stated, “I am not bound to win, but I am bound to be true,” and “I must stand with anybody that stands right, stand with them while he’s right, and part with him when he goes wrong.” You will be wise to avoid any testimony that is not direct and truthful. As Lincoln noted, “no man has a good enough memory to be a successful liar.”

3. Be civil.

While there was much more familiarity between members of the Bar in Lincoln’s time, particularly given that they were often sharing the same bed while riding the circuit, it is still important to be civil and courteous. As Lincoln admitted, “I’ve always wanted to deal with everyone I meet candidly and honestly. If I’ve made any assertion not warranted by facts, and it is pointed out to me, I will withdraw it cheerfully.”

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Do not let hunger for a win get in the way of the truth. 4. Value compromise.

Even in Lincoln’s day, litigation was stressful and costly. As a result, Lincoln counseled, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expenses and waste of time.”

5. Don’t carry a grudge.

Lincoln was working on a big case in Chicago that was transferred to Cincinnati where “big city” lawyers who were more sophisticated took a leading role in the case and minimized Lincoln’s involvement. Rather than being bitter, Lincoln observed the trial and learned a lot from the lawyers he watched. One of them, who had treated him with disrespect, was later needed when the Union required an intelligent, forthright and well-organized

individual to supervise the Union’s war effort. So, Lincoln reached out to that lawyer and named Edwin Stanton as his Secretary of War. Together, they helped win the Civil War. Trial lawyers who apply these commonsense principles of a simple country lawyer will be rewarded with fine reputations and equally fine results.

Donald W. Gregory, Esq.

Kegler Brown Hill + Ritter dgregory@keglerbrown.com

23 | Columbus Bar L aw yers Quarterly Summer 2018

Points of Practice

CONFLICT

Is What You Make It by Cynthia price After mediating for nearly 10 years, I know conflict can seem to take on a life of its own, but it does not. Conflict is the proverbial fork in the road and you now have choices to make. Martin Luther King, Jr., said, “I refuse to accept the idea that we are mere flotsam and jetsam in the river of life, unable to influence the unfolding events which surround us.”1 I concur. Conflict does not and cannot take on a life of its own; it is what we make it. Whether one feels misunderstood, misquoted or flat out lied to, whatever happens next is optional. As humans, we always have options. We have the ability to consider and weigh information; we also have consequences. Whether conflict is competently managed seeking a positive result or whether conflict is weaponized to create maximum damage is a choice. It is one we all face. My message is, you cannot delegate or abdicate

your responsibility or usurp another’s responsibility for resolving conflict. Back to Management 101: you can delegate authority, but not responsibility. You are reading this article because you have a role and responsibility to resolve conflict. Understand your efforts will either move parties toward a satisfactory resolution or toward prolonged intractability.

What Does Conflict Look Like?

“Conflict… is conceptually defined as a form of intense interpersonal and/or intrapersonal dissonance (tension or antagonism) between two or more parties based on seemingly incompatible goals, needs, desires, values, beliefs, or attitudes”.2 Conflict is the interplay of dissonance through perceptions, actions and reactions. Researchers confirmed what we anecdotally know: conflict is often emotionally draining and exhausting. It only occurs because of our personal and social relationships. Conflict can affect physical, emotional and mental health. It can also bring about positive change creating opportunities to address issues important to all parties.

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Conflict has become an obstacle that trips up the young, the old and everyone in between with losses in productivity, opportunities and sometimes life. What We Feel During Conflict

“Increased heart rate, perspiration, warm temperature and heightened blood pressure are some of our physical sensations experienced during conflict.” Laura Guerrero and Angela La Valley of Arizona State University reported “negative emotion and destructive communication often sabotage people’s chances for a successful outcome.” These researchers go on to relate that people tend to think more positively about their own behavior, than of those they are in conflict with. And not surprisingly, people in dissatisfying relationships generally experience more misperception, misunderstanding and negative emotion during conflict than people in satisfying relationships. A flood of negative emotions can impede constructive communication and lead to defensiveness. Individuals who are unskilled in expressing emotions may resort to aggressive communication, including nonverbal displays of disapproval or contempt. Research also suggests that individuals who lack communication skills are “more likely to use violence than their socially skilled counterparts and to find themselves in downward spirals of negative emotion and behavior during conflict situations.”3

It is important that individuals who find themselves in patterns of downward spiraling learn to recognize the emotional states that lead to negative behavior.

Ways and Means to Deal with Conflict

Anyone serious about positively managing conflict must consider respect as the prime directive. Philosopher Alain de Botton said of the Arab-Israeli conflict, “it’s a war between two peoples who feel deeply humiliated by the other, who wants the other to respect them. Battles over status can be more intractable than those over land or water or oil.”4 The golden rule can be effective in conflict management: “Do unto others as you would have them do unto you.” At the same time, understand that what works for you may not work very well for the other party, thus the conflict. Choose to be productive. Language must be a means to an end and not the end in and of itself. Your choices of particular words, body language, timing, references and environment all affect each and every communication scenario. Parties in conflict can certainly expect some negativity when communicating, but as parties share

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TRUST & ESTATE

ADMINISTRATION INVESTMENT

MANAGEMENT

PARK their stories and listen to one another, all parties must seek to know what they consider as truly important as well as what the other side considers important. They need to investigate their values, how they are similar and how they are different. They must also begin to look for the common values of their relationship. The direction of the conversation must change from largely negative to increasingly hopeful. This change is brought about by problem solving activities. First, the conflict must be reframed and restated; not simply as a matter of Party A versus Party B, but as a larger issue in which the interests and needs of both parties must be addressed for a successful resolution. Negotiating, brainstorming and seeking new information are all viable paths to the resolution of conflict. Individuals and groups must make an earnest effort if there is any chance at transforming a given conflict. In the end, as with all other areas of life, attitude is everything. Saint Francis de Sales advised “do not lose your inner peace for anything whatsoever, even if your whole world seems upset.”

Final Reflections

Conflict happens and it has happened to you. Your clients are currently in the middle of it. The legal and conflict engagement professions exist because conflict continues to happen. Some conflicts are minor and some have continuing and far reaching consequences. Conflict has become an obstacle that trips up the young, the old and everyone in between with losses in productivity, opportunities and sometimes life. Deepak Chopra suggests that “understanding that a world of peace is possible

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only if we relate to each other as peaceful beings, one individual at a time.”5 OK, I’m a peacenik, but you don’t have to be one to want a more peaceful life. You are in control of you; learn to manage and model conflict positively. Say yes to respectful, purposeful communication. Remember you have a choice. 1

See Nobleprize.org Putnam, Linda L. Definitions and Approaches to Conflict and Communication, edited by John G Oetzel & Stella Ting-Toomey, Thousand Oaks: 2006. (1-32) 3 Guerrero, Laura K. & La Valley, Angela G. Conflict, Emotion, and Communication, edited by John G Oetzel & Stella Ting-Toomey, Thousand Oaks: 2006. (69-96) 4 See Botton, Alain de. Brainyquote.com/ 5 See Botton, Alain de. Brainyquote.com/ 2

Cynthia K. Price

Moving-Forward Communication ckp@communicationpractice.com

26 | Columbus Bar L aw yers Quarterly Summer 2018

Upcoming Events

What’s Happening @ the Bar? For a complete list of events, CLE programs and meetings, visit www.cbalaw.org.

SUMMER 2018

july

Diversity + Inclusion = Not Limited to African Americans • 3.0 CLE Hours

july

Constitutional Conversations: Presidential Pardon Power 12-1pm @ the CBA • This event is free and open to the public

10 11 july

18 august

Talk about a melting pot! There are over 300 million people in the U.S. and over 7 billion on planet Earth. But somehow, when we discuss diversity and inclusion, we only view the world as black and white. Join us for the colorful capstone event to our Community Cultural Conversations series.

Can the President pardon anyone, including himself? We’ll discuss the issue with a constitutional law professor and a litigation attorney from Washington, D.C. Bring your voice to the conversation!

Committees & Cocktails • 3rd Wednesdays, 5-7pm @ the CBA

This free monthly event gives members from all committees and practice areas a chance to meet, network and make valuable business contacts in a casual, relaxed atmosphere. The CBA provides beer, wine, soft drinks and light hors d’oeuvres. RSVP to donna@cbalaw.org.

COMMITTEES and

COCKTA LS COLUMBUS BAR ASSOCIATION

Committees & Cocktails • 3rd Wednesdays, 5-7pm @ the CBA

COMMITTEES and

COCKTA LS COLUMBUS BAR ASSOCIATION

september

2nd Annual Jay Yano Memorial Golf Outing • Bent Tree Golf Club

september

Ballots and Bullets • 2.5 CLE Hours (with .5 Prof. Conduct) • Special Pricing

Please plan to join us for the 2nd Annual Jay Yano Memorial Golf Outing, a 4-person scramble at Bent Tree Golf Club. Tickets include green fees, cart, bag tag, golf, 2 drink tickets and dinner buffet. Purchase tickets online at www.cbalaw.org and email donna@cbalaw.org with questions.

Ballots and Bullets examines the roots and political aftermath of the violence that occurred in Cleveland in 1968—and discusses why race violence and police brutality still persist 50 years later. James Robenalt, attorney and author of Ballots and Bullets, will present this CLE program. All attendees will receive a copy of his book.

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Summer ‘18: Vacation & Leisure

Recreation and Parks: Making Columbus a Great Place to Live by rob dorans Established in 1910, the Columbus Recreation and Parks Department (CRPD) serves as the premier health and wellness destination for Columbus residents. With 353 parks, six golf courses, 120 miles of regional trails, 29 community centers, eight outdoor pools and the largest ball diamond complex in the country, CRPD offers safe, affordable programming that keeps residents active and healthy throughout the year. While the Department provides services for residents of all ages, it places significant emphasis on youth in our community. The Department’s mission— to connect the people of our community through the power of nature, wellness and creativity— serves as the foundation for everything it does. CPRD has a unique leadership structure to help achieve this goal. In addition to a Director, the Department has a seven-member public Commission. The CRPD Board of Commissioners serve as the

public voice in shaping the mission of CRPD. For the past two years, I have had the honor to serve on this seven-member board with other community leaders. During my time on the Commission, I have been fortunate to help navigate a number of legal issues involving the Department. As one might imagine, CRPD engages in dozens of property transactions on an annual basis; everything from purchasing property to expand the city’s bike trail system to working with private parties to acquire easements to ensure access to parks. Providing a legal perspective for the Commission’s oversight has been a rewarding experience. However, a far more rewarding experience has been engaging

with the Department on its human services mission. For those who are familiar with the Department’s work, you may hear a common expression: “We put people first.” It is with purposeful intent that recreation comes first in our Department name. The Department is not only focused on providing green space in an urban environment, but how to use green space and other recreation amenities to engage our community though meaningful programming. This programming includes all the classic recreational activities that most envision when referencing their local recreation and parks department such as sports leagues, fitness classes and pottery workshops. However,

What makes CRPD special is its longstanding and intentional focus on programming around summer nutrition and youth violence intervention.

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what makes CRPD special is its longstanding and intentional focus on programming around summer nutrition and youth violence intervention. Approximately one-third of children in the City of Columbus live in poverty and face challenges in securing healthy food. Of the kids who live in poverty, less than 15 percent of them attend summer feeding sites, leaving more than 85 percent of them at high risk for hunger and malnutrition-related illnesses and developmental delays. Throughout the school year, a free breakfast and lunch is available to all Columbus City School students. However, during the summer months, one out of every four families in Ohio report they experience food hardships. The Department’s summer nutrition program, Go Lunch!, offers free, balanced meals during the summer months at a variety of locations, including our community centers, Boys & Girls Clubs, YMCA’s, churches and schools. This program ensures children’s nutritional needs are met. In 2017, the Department coordinated over 220 partner sites and served over 500,000 nutritious meals to kids across our community. CRPD has been a leader in this programming for nearly 50 years. In addition to the Department’s work to solve hunger needs in our community, it is important for the

Department to provide programming to help young people grow and succeed. As a Commissioner, I am frequently asked about the city’s ability to provide positive spaces, such as recreation activities and job training opportunities, to keep young people engaged and off the street. As part of CRPD’s Youth and Family Division, the Department has a program aimed at reducing crime and violence called the Applications for Purpose, Pride and Success (APPS). The program engages with Columbus youth and young adults, ages 14 to 23, through proven prevention and intervention strategies. APPS is comprised of three focus areas which are; the Neighborhood Violence Intervention Program (NVI) program, which is focused on building relationships with proven high-risk youth - or known violent offenders; prevention through late-night programming at four community centers; and an eight-week job readiness program. The job readiness program was designed with an emphasis on training and mentorship to prepare teens and young adults to get, keep and excel at their current or future job opportunities. The goal is to provide teens and young adults with an enriching experience that has redeeming value for their future career paths and assists them in becoming selfsufficient.

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The Department’s summer nutrition program, Go Lunch!, offers free, balanced meals during the summer months at a variety of locations, including our community centers, Boys & Girls Clubs, YMCA’s, churches and schools. Both CRPD Director Tony Collins and Columbus Mayor Andrew J. Ginther have made it a top priority for the Department to help build up our neighborhoods. Our Youth and Family Division is a prime example of that commitment. Kids who participate in the APPS job readiness program have the opportunity to learn the importance of fiscal responsibility, like managing a budget and planning for their future household expenses; fundamental life skills like the importance of getting to work on time, being a team player, and time management; and, most importantly, career exploration, which focuses on helping kids find their passion. The teens who participate in this program have a level of grit that is unmatched. One story which comes to mind is a participant who serves as the primary caregiver for his family. His four brothers and sisters frequently look to him as a resource for not just hugs or a quick game of pick up ball, but for food and basic needs. He participated in the Department’s cohort last summer and showed up to work one day with mud completely covering the bottom half of his jeans. When CRPD’s staff asked why he was so muddy, he explained that he didn’t have a way to get to work and rode his bike from the Southside of Columbus to the heart of downtown to arrive on time. Many in our community tend to think of CRPD when they drive past Berliner in the summer time and see dozens of softball games or when they attend a community event on the Scioto Mile or in their neighborhood park. CRPD is at the forefront of helping to plan, schedule, permit and fund hundreds of events and programs that make Columbus one of the best places to live. That in itself is no small task; however, we are fortunate to live in a community that looks beyond simply engaging in the traditional work of a recreation and parks department. Programs like

APPS and Go Lunch! are prime examples of CRPD, the City and our community looking to build a more equitable and vibrant future.

Rob Dorans, Esq.

Chief Legal Counsel Affiliated Construction Trades of Ohio rdorans@actohio.org

30 | Columbus Bar L aw yers Quarterly Summer 2018

Summer ‘18: Vacation & Leisure

Florida vs. Ohio Homestead

Why Does It Matter? by BRITTANY PACE I am often asked about the pros and cons of, or the differences between, owning Florida and Ohio real estate. The difference is important when determining your domicile, which can impact your tax situation and estate plan. One major difference is in the homestead protections and tax credits available to an Ohio and Florida resident. You can only have one domicile and one primary residence. Florida and Ohio both

have laws to determine domicile. Generally speaking, “domicile” is where you intend to reside permanently. More specifically though, under Ohio law, Ohio is your presumed domicile if you spend 212 “contact periods” in Ohio during a taxable year. A “contact period” is a period in which you are away overnight from your property located outside Ohio and, while away, you spend at least some portion of time of each of two consecutive days in Ohio. This presumption can be rebutted. Under Florida law, Florida is your presumed domicile if you file a “Declaration of Domicile” Form in the Clerk of Court in the county

in which you reside. This is further determined by your actions while in that state. To establish domicile in a new state, you should take efforts to terminate your domicile in a prior state. Sometimes, agencies or courts will look at the address you use for voter registration and income tax purposes when determining which real estate is your primary residence. In each case, it is a subjective and fact-driven analysis. Your domicile will determine where your estate is administered. There are also major tax differences. For

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example, Ohio residents pay a state and city income tax while Florida residents generally do not pay either state or city income tax. Neither Ohio nor Florida has an estate tax. Both Ohio and Florida residents pay property taxes, at different rates. There are two major forms of homestead property tax relief in Ohio: the Owner Occupancy Credit and the Homestead Exemption Credit. You are eligible to receive a 2.5 percent “Owner Occupancy Credit” on your Ohio property taxes for Ohio real estate as long as you own and occupy that home as your principal place of residence on January 1 of the year you file for the credit. You (and your spouse) are only entitled to this credit for one home. If you are an owner occupant as described above, and you are 65 or older or permanently and totally disabled, you might also be eligible to receive a “Homestead Exemption Credit.” This credit allows homeowners the potential to exempt up to $25,000 of the market value of their homes from their property taxes, or $50,000 for disabled veterans. The exact savings vary depending on local tax rates in the relevant community. You should

check with the County Auditor to determine when and where to file for these credits. Specific deadlines and filing requirements apply. If you own a home in Florida and reside in that home as your primary residence, you are likely eligible to receive the “Homestead Credit” on your Florida real estate taxes. This credit can reduce the taxable value of real property up to $25,000 per year (or up to $50,000 per year for a married couple). Again, check with the County Property Appraiser for filing requirements and deadlines. In addition, increases in real estate tax assessment are capped at 3 percent of the prior year’s assessed value. Even more, your Florida property has greater protections from creditors in Florida than it would in Ohio. With some exceptions, a creditor cannot force you into a foreclosure or other sale to satisfy a judgment. If you claim your Florida real estate as your primary residence you cannot simultaneously claim your Ohio real estate as your primary residence – and vice versa. Doing so can result in penalties. For example, an

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If you claim your Florida real estate as your primary residence you cannot simultaneously claim your Ohio real estate as your primary residence – and vice versa. individual took advantage of the Homestead Credit for both their Ohio and Florida real estate. Florida found out and issued an individual tax assessment against him for each year he claimed homestead in both states and also forbade him from receiving the Florida Homestead Credit at any time in the future. Another factor to consider in determining whether to purchase Ohio or Florida real estate is the applicable conveyance fees. In Ohio, conveyances fees range from around $2 to $4 per $1,000. In Florida, conveyance fees are $7 per $1,000. This may make an impact when negotiating your real estate purchase contract.

Litigation Group

Regional Reach

Litigated in over

Brittany M. Pace, Esq.

Litigation attorneys

states

www.bricker.com

Carlile Patchen & Murphy LLP bpace@cpmlaw.com 33 | Columbus Bar L aw yers Quarterly Summer 2018

Summer ‘18: Vacation & Leisure

WHO LET THE DOGS OUT? by isaac rinsky It’s summer in Ohio again. The last snow of April has passed. The heat is sweltering and it’s 120 percent humidity outside. After a long winter and a fickle spring, you can finally take your dog for a walk without freezing to death or washing away. You venture outside voluntarily for the first time in months. You smile as the sun blinds you with its radiance. You grab your well-worn nylon leash and affix it to a very rambunctious Fido. The long winter has left you with an insatiable wanderlust. All around you, the sound of gaspowered lawn management equipment is deafening, and the pungent odoriferousness of mulch assails your olfactory sense. All of a sudden, you see another adventurer walking towards you with their faithful canine companion. As they approach, you realize that their dog is much bigger than yours. You also realize that their dog is not on a leash. Several thoughts enter

your head. Shouldn’t their dog be on a leash? What if their dog runs towards me and my dog? What if their dog attacks me and my dog? These are thoughts that undoubtedly all dog owners/ walkers have pondered. Before we address those questions, should we not first consider: Who is responsible for the dog? Many a distempered citizen has appeared in the Franklin County Environmental Court, just waiting for their chance to exclaim, “I am not the owner of that dog!” What they fail to realize, and what is consolingly whispered to them, is that the Ohio Revised Code holds owners, keepers or harborers of dogs responsible for

many dog related offenses. Some common examples of harboring or keeping a dog include: (1) Walking the dog, (2) Dog sitting, (3) Living in the same house with the dog, (4) Picking up the dog at the pound. These are just a few common examples. So before you agree to take care of a dog for a friend or pick it up at the pound, make sure to confirm that the dog is licensed and vaccinated. If that dog gets loose while it is within your control, you may be held responsible.

Do you have to have your dog on a leash in Columbus? If you are on your own property, you must keep your dog confined to that property.

Make sure your dog is registered, vaccinated and under your control or confined to your yard at all times.

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If your dog is a female and is in heat, then you must keep the dog on a leash if you leave your property. Otherwise, no leash required. However, if you decide not to restrain your fur baby, here are some things to consider. You or some other person must maintain reasonable control over your dog at all times. So, if you are walking your dog without a leash, you better make sure he/she is well trained and will respond to verbal commands.

What if a dog attacks me or my dog? If a dog is attacking you, you may have the right to injure or kill that dog. If a dog is attacking your dog, you most likely cannot kill that dog.1 If you are bit by a dog, or a dog kills your dog, then the owner, keeper or harborer of the offending dog can be criminally liable. If, after an investigation by Franklin County Animal Control, it is determined that a dog caused physical harm to a person, or that it killed another dog, the owner, keeper or harborer of the dog can be charged with a fourth degree misdemeanor. The offending dog can also be designated as dangerous. If a dog is designated as dangerous, this designation can be appealed within ten days. The court will then determine whether there is sufficient evidence to show that the dog, without provocation, either caused injury (other than serious injury or death) to a person or killed another dog. “Without Provocation” means that the dog was not teased, 35 | Columbus Bar L aw yers Quarterly Summer 2018

tormented or abused by a person, or that the dog was not coming to the aid or defense of a person who was not engaged in illegal or criminal activity and who was not using the dog as a means of carrying out such activity. If poor Fluffy is designated as dangerous, it does not mean she will be put down. She can still live to a ripe old age barking at the sky and stealing hot dogs off the table. You will have to register her as dangerous, have her fixed, microchipped and she will have to wear a special collar to identify her as “dangerous.” You will also have to confine her in a more secure manner than before.2 If, heaven forbid, Fluffy causes serious physical harm to a person, then the court may order her to take a forever nap. Euthanasia is not required in this scenario, but if it is not ordered, the person responsible will have to obtain liability insurance for Fluffy that equals or exceeds $100,000.

What if Buddy got loose despite my best efforts to keep him contained in my yard? Unfortunately, many courts in Ohio have held that dog confinement offenses are a strict liability. This includes jail-able offenses for confinement of dogs. If Buddy picked the lock on your gate, or jumped over an impossibly high fence while you were at work, you could still be on the hook for his delinquency. Hopefully this information will assist you and your furry friend this season. Make sure your dog is registered, vaccinated and under your control or confined to your yard at all times. If not, you might find yourself talking to a Deputy from Franklin County Animal Control. And they may ask you, “Who let the dogs out?” 1 2

See O.R.C. 955.28(A). See O.R.C. 955.22(D).

Isaac J. Rinsky, Esq.

Columbus City Attorney, Prosecutor Division ijrinsky@columbus.gov

36 | Columbus Bar L aw yers Quarterly Summer 2018

Summer ‘18: Vacation & Leisure

Summer Fun

and the Associated Risks: Who is Responsible for the Resulting Injury? by Abigail Chin and Elizabeth Moyo As the summer heats up, many people will head outside for a splash in the pool or to take in a ball game. As the saying goes, “it is all [summer] fun and games until someone gets hurt.” This article explores some of the risks associated with summer activities, who is legally responsible for injuries resulting from those activities and some practical considerations to avoid liability for such risks.

The Recreational Activities Doctrine, the Open and Obvious Defense and Sovereign Immunity May Shield Property Owners. Although property owners generally owe their invitees a duty of ordinary care, the standard of care is lower when the invitees are engaged in a recreational activity. Likewise, they owe no duty to protect against an open and obvious risk. Public property owners may also be entitled to rely on their sovereign immunity as a defense.

1. Recreational Activities Doctrine When a person is engaged in a recreational activity, they voluntarily

assume the ordinary risks associated with that activity. As a result, a person injured while engaged in such activity can only recover from the defendant property owner if the injury was a result of the owner’s reckless or intentional misconduct, as opposed to ordinary negligence. For example, in Marchetti v. Kalish, the plaintiff could not recover for a broken leg sustained during a backyard game of “kick-the-can.” The court found that by engaging in the activity, plaintiff assumed the ordinary risks of that activity. Further, she could not prove the defendant acted recklessly or intentionally when he knocked her down during the game.1 Likewise, in Fout v. Ins.

37 | Columbus Bar L aw yers Quarterly Summer 2018

Co., the plaintiff, who was training a horse, could not recover when the horse escaped control and injured the plaintiff. The court found that the horse escaping control was a foreseeable part of training horses.2

2. Open and Obvious Defense Like the recreational activities doctrine, when a plaintiff encounters an open and obvious hazard that they could have avoided, the defendant will not be held liable for their injuries. The open and obvious nature of a game or activity is dependent on the surroundings. Courts will consider the nature of the risk including whether a reasonable person recognizes the open and obvious danger the activity presents. Even if the activity presented an open and obvious danger, the injured party may still recover if the defendant acted recklessly or intentionally. For example, in Mullens v. Binsky, the plaintiff could not recover for an 18-year old who drowned in a privateproperty owner’s pool. The appellate court affirmed summary judgment in favor of the property owner. The court found the property owner had no duty to supervise or warn the decedent of the dangers of swimming in the pool because swimming in a backyard pool presents an open and obvious risk of danger which can be appreciated by both minors and adults.3

3. Sovereign Immunity – O.R.C. § 2744 Many recreational facilities are owned and operated by cities or municipalities. In addition to the recreational activities doctrine and the open and obvious defense,

public entities may be protected under Ohio law. Chapter 2744 provides for political subdivision immunity to tort liability, unless an exception in the statute applies.4

The Owner or Operator Must Still Protect Against Reckless Conduct. Even when a participant has assumed the risk of spectating or participating in a recreational activity, property owners and facility managers must guard against the reckless conduct of their employees and hazards that are unforeseeable to the invitees. Consider the following examples: •

•

In Rawlins v. Cleveland Indians Baseball Co., the plaintiff-attendee was struck by a 95-mph baseball, leaving him partially blind. The plaintiff argued that an usher at the stadium instructed him and the rest of his section to get up and leave, which distracted plaintiff from the game and the baseball that hit him. The Eighth District Court of Appeals reversed summary judgment in favor of the defendants. The appellate court determined that the usher’s action created enough of a dispute of fact of an attendant circumstance that a jury needed to determine whether the defendants’ conduct contributed to the plaintiff’s injury.5 In Kinnison v. Ohio State Univ., a child drowned at a birthday party hosted by the defendants. The Tenth District Court of Appeals reversed summary judgment in favor of the defendants, citing a genuine issue of material fact over the defendants’ recklessness. Although a swimming pool and water present an open

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When a person is engaged in a recreational activity, they voluntarily assume the ordinary risks associated with that activity.

•

and obvious hazard, the appellate court determined that a jury needed to resolve whether the defendants acted recklessly by failing to provide adequate safeguards commonly present at pools, such as adequate supervision and safety warnings.6 In Aber v. Zurz, the plaintiff went tubing on a boat driven by the defendant and fell off the tube, breaking his jaw in the process. The Ninth District Court of Appeals reversed summary judgment in favor of the defendant. Although falling off the tube is a foreseeable risk, the appellate court found an issue of fact concerning foreseeability and whether the defendant was acting recklessly by driving above a normal rate of tubing speed.7

In Conclusion Participants and spectators should be aware that they assume certain risks by engaging in recreational activities. Likewise, they are responsible for safely navigating open and obvious hazards. If injured while engaged in a recreational activity or as a result of

Abigail Chin

OSU Moritz Law Student chin.189@osu.edu

an open and obvious hazard, they may not be able to recover from the property owner or manager. On the other hand, property owners and managers must guard against conduct that may give rise to attendant circumstances that call into question whether the facilities were maintained and operated with a reckless indifference to the injured party. To limit such exposure, owners and operators may consider industry standards; how similar facilities operate; consulting experts; hazardous areas that need to be warned about or protected against; whether there are adequate warnings of inherent dangers on the premises; the nature of the activities on the premises; and employee training, monitoring and recording practices. 1 53 Ohio St.3d 95, 559 N.E.2d 699 (1990). 10th Dist. Franklin No. 96APE12-1680, 1997 Ohio App. LEXIS 2834 (June 30, 1997). 3 130 Ohio App.3d 64, 71, 719 N.E.2d 599 (10th Dist. 1998). 4 See R.C. 2744.02. 5 2015-Ohio-4587, 48 N.E.3d 136. 6 10th Dist. Franklin No. 13AP-501, 2013-Ohio-5715. 7 2008-Ohio-778, 175 Ohio App. 3d 385, 887 N.E.2d 381. 2

Elizabeth L. Moyo, Esq.

Porter Wright Morris & Arthur LLP emoyo@porterwright.com

39 | Columbus Bar L aw yers Quarterly Summer 2018

Summer ‘18: Vacation & Leisure

There’s No Place Like Home Maximizing Your Clients’ Summertime Use, Enjoyment and Value within a Community Association by Jeffrey Kaman Summertime in Central Ohio is full of outdoor activities and fun in our communities and neighborhoods. For residents living in community associations, these summertime activities come with additional benefits and responsibilities. Knowing your clients’ obligations is crucial when advising them on maximizing the use of their property, especially before they make significant investments when improving or modifying their homes. Architectural Modifications Many homeowners perform construction projects on their homes during the summer. Whether by hiring contractors or doing it themselves, homeowners make improvements, such as constructing a deck, building a fire pit or installing a swimming pool. These improvements not only maximize enjoyment, but also property values, so while communities encourage and foster improvements, these improvements must be consistent with the community and design standards. Before undergoing a construction project in a community association, attorneys should advise their clients to ensure the project complies with their community’s governing documents. Many

community governing documents, which are restrictions filed with the county recorder’s office, contain restrictions on architectural control standards, including permitted and prohibited additions and alterations to property, such as paint colors, exterior materials, recreation equipment and elevation changes. These architectural control standards supplement existing ordinances and building codes. While architectural control provisions vary from community to community, they often require that the association review the proposed plans to ensure architectural harmony with the surrounding property and compliance with deed restrictions. If an owner completes a project without association approval when required, the owner could be forced to remove the

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improvement, restore the property, and as provided by Ohio law, pay the association’s legal and court costs.

Grilling and Open Flames Grilling is a summertime pastime; however, community residents, including apartment residents, must comply with all relevant fire code regulations governing the operation of open-flame cooking devices. For communities with three or more attached homes, the Ohio Fire Code, codified in Ohio Administrative Code Section 1301:7-7-03(H), restricts, with a few exceptions, open-flame cooking anywhere within 10 feet of combustible construction. While many of these provisions apply specifically to communities with three or more attached homes,

As Central Ohio continues to develop new communities… it is essential that attorneys advise their clients on what they can and cannot do to their property. parts of the fire code apply to unattached homes in a typical neighborhood. In addition, community governing documents may also restrict the storage location of grills and propane tanks. Fire pits and chimneys are also popular during the summer, and the use of open flame devices in residential communities is also governed by the Ohio Fire Code. Administrative Code Section 1301:7-7-03(G) (4) proscribes minimum distances from various open flames to buildings and other combustible materials. Section 1301:7-703(G)(2) also requires that homeowners obtain permits from local authorities before lighting larger fires, including bonfires. In fact, many populated communities prohibit bonfires in residential areas, both by municipal ordinance as well as private deed restriction.

Pools Many homeowner associations in Central Ohio restrict the installation of pools. While some restrict pools entirely, newer communities often prohibit above-ground pools. In addition to compliance with the association’s architectural control standards, residents must comply with local municipal ordinances regulating pool maintenance. For example, many

municipalities require that all pools have fences at least four feet high around the pool. Finally, pool use, including its construction, maintenance and drainage, must comply with any health and safety regulations, and may not interfere with other residents’ property or damage the association’s common elements.

Banners, Flags and Signs Memorial Day and Independence Day are great opportunities for residents to display their patriotism, often in the form of signs and flags. To that end, Ohio law permits owners to display the American and other military flags, subject to time, place and manner regulations adopted by the community association board. For example, association boards may adopt rules regulating flag size, materials, and placement that an owner must follow. In addition to flags protected by law, community associations may also have restrictions on additional banners and signs that may be displayed on a property.

Parking With increased social activities during the summer, an influx of cars and traffic may create parking problems for community residents. Community associations often regulate parking within the community’s private streets and parking lots, such as prohibiting overnight

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street parking, limiting on-street parking and creating limitations on guest parking. To avoid towing of cars and other enforcement remedies, community association residents should verify whether community parking regulations exist on the private roads and parking areas. In communities with public roadways, municipalities may adopt ordinances against parking in front of fire hydrants, restricting parking to one side of a street and prohibiting blocking driveways sidewalks. While public roads are outside association jurisdiction, the government and police may enforce the parking restrictions through ticketing or other measures.

Noise and Nuisance Parties and other outdoor activities also mean that noise and nuisance violations increase during the summer months. Community living requires careful attention to local ordinances that regulate noise. For example, Columbus Municipal Code, Section 2329.11, regulates City-wide quiet hours between 10:00 p.m. and 7:00 a.m., and prohibits raucous or otherwise unreasonable noises. In an association, there are often restrictions prohibiting nuisances that damage

or impair another person’s use of their property, which can subject the violating owner to enforcement assessments, injunctive action and the responsibility to reimburse the association for any costs and attorneys’ fees expended in remedying the nuisance. As Central Ohio continues to develop new communities, and as our existing communities age and are updated, it is essential that attorneys advise their clients on what they can and cannot do to their property. Restrictions on the property are designed to protect the safety of residents, increase property values and promote harmonious and orderly community living. By advising clients of their rights and responsibilities, residents living in these communities will reap the best benefits of community living.

Jeffrey Kaman, Esq.

Kaman & Cusimano, LLC jkaman@kamancus.com

42 | Columbus Bar L aw yers Quarterly Summer 2018

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Summer ‘18: Vacation & Leisure

Automobile Travel Tips, North and South of the Border by William Nesbitt and Chelsea Lund There are many things to take into consideration when traveling, such as where to stay and what to pack. However, the one thing that is not always weighed as heavily when planning for a trip are legal issues when traveling across the border. Here are a few tips to keep in mind when deciding on your next vacation destination.

Canada

A valid U.S. driver’s license is all you will need in order to be able to drive in Canada, though tourists with a license from a different country may be required to obtain an international driving permit (IDP). Obtaining an IDP requires a minimum age of 18 years old and must be issued in that person’s home country. Much like Ohio, Canada requires proof of auto insurance. Even with a valid driver’s license, you are not authorized to drive without insurance. Driving without insurance is a serious offense in Canada and

the penalties vary by province, so make sure to look ahead of time based on your specific destination. For instance, the minimum fine on a first offense is $5,000 in Ontario; additionally, your license may be suspended and your car may be impounded for up to three months. However, U.S. auto insurance is an acceptable form of coverage if you are traveling as a tourist in Canada for less than six months. If you decide to rent a car in Canada, check with your U.S. auto insurance company to see if a rental would be covered under your current policy. If you’re planning on driving your own vehicle across the border, make sure you have your vehicle registration with you to provide to the border official, as one of the things they are looking for is stolen vehicles. If you plan on renting a car in the U.S. and driving into Canada, check ahead

with the rental car company to verify they will allow you to drive the rental vehicle across the border. If they allow it, bring a copy of the rental agreement with you. Keep in mind that if you plan on traveling to Canada, anyone with a DUI (OVI in Ohio) conviction within the previous ten years may be barred from entry.

Mexico

If you are driving in Mexico, a U.S. driver’s license is acceptable, though it is recommended that you get an IDP, which translates your license into ten other languages including Spanish. You can obtain an IDP from AAA or the American Automobile Touring Alliance. Make sure to carry both your U.S. license and the IDP with you while driving in Mexico.

Regardless of where you decide to travel and if you decide to rent a vehicle or drive your own, make sure to do your research ahead of time.

44 | Columbus Bar L aw yers Quarterly Summer 2018

Mexico also requires all drivers to have auto insurance, but U.S. auto insurance does not cover drivers in Mexico. Some U.S. auto insurance companies offer a Mexico travel add-on, which provides limited coverage within 25 to 75 miles over the border. However, this type of insurance does not always meet the Mexican liability requirements, so make sure to check with your auto insurance provider before choosing this option. There are also numerous companies close to the border crossing on the U.S. side that offer Mexican insurance. If you are in an accident in Mexico, you can be detained until it’s confirmed that you have the means to settle any damages or injuries for which you are responsible. As always, do not drink and drive, especially because auto insurance coverage in Mexico can be declared invalid if a driver is under the influence of alcohol or drugs. If you plan on driving your own vehicle into Mexico, you are required to obtain a Temporary Import Permit from a customs office. This permit is not required if you are traveling within the Border Zone (approximately 20-30 kilometers south of the border). In order to obtain this type of permit, you will need to provide your driver’s license, car registration, birth certificate or passport, major credit card in your name, leasing contract (if leasing the car) and an immigration form. There is a small fee and it’s required that you post a bond in order to obtain this permit, though the bond will be refunded when the permit is cancelled at the border upon return to the U.S.

We believe numbers are a powerful tool to help our clients resolve critical issues

Rebekah Smith CPA, CFF, CVA, MAFF Director of Forensic & Dispute Advisory Services rsmith@gbq.com

Keith Hock CPA, CFF, MAFF, CVA Director of Forensic & Dispute Advisory Services khock@gbq.com

Commercial & Economic Damages

Fraud Investigations

Construction Disputes

Intellectual Property Disputes

Family Law

IT Forensics

Forensic Accounting

Valuation Related Disputes

230 West Street, Suite 700 Columbus, OH 43215

William H. Nesbitt, Esq. The Koffel Law Firm will@koffellaw.com

Chelsea J. Lund, Esq.

The Koffel Law Firm chelsea@koffellaw.com

As with Canada, check with any rental company before renting a car in the U.S. to drive into Mexico as some companies prohibit driving across the border. If you are permitted to do so, any rental insurance you buy in the U.S. will likely not cover the vehicle across the border. It’s easier and wiser to rent a car after you’ve crossed into Mexico and obtain auto insurance through the rental agency. Regardless of where you decide to travel and if you decide to rent a vehicle or drive your own, make sure to do your research ahead of time.

45 | Columbus Bar L aw yers Quarterly Summer 2018

Summer ‘18: Vacation & Leisure

An Ounce of Prevention: Health Tips for Safe Travels by Mairi K. Mull Summer is here at last, and for many, that means a long-awaited vacation is just around the corner. If you are among those of us daydreaming about upcoming travel plans, make sure that your pretrip preparation includes steps to protect your family’s health. While it is impossible to eliminate all risk of illness or injury while traveling, a little advance planning can be the difference between disappointment and disaster. Three of our top recommendations are discussed below.

1. Know when and where your medical care is covered. Health insurance plans often do not cover care rendered outside of the United States, or only provide coverage in limited circumstances. Original Medicare, for example, will reimburse medical services you

receive in a foreign country only if: (1) you are in the U.S. when a medical emergency occurs and the foreign hospital is closer than the nearest U.S. hospital that can treat your condition; (2) you are traveling through Canada by the most direct route between Alaska and another state when a medical emergency occurs, and the Canadian hospital is closer than the nearest U.S. hospital that can treat the emergency; or (3) you live in the U.S. and the foreign hospital is closer to your home than the nearest U.S. hospital that can treat your medical condition (regardless of whether an emergency exists).1 To minimize expenses if you or your family member should require medical care during your trip, consider contacting your insurer

to find out what international coverage your policy provides. Ask specifically about any limitations that will apply, such as exclusions of preexisting conditions or nonemergency care, and make sure you know how your insurer defines these and any other key terms. Additionally, make sure you know the requirements to obtain reimbursement upon your return, as you may be required to pay for care upfront even if it is ultimately covered. To receive reimbursement from Medicare, a beneficiary must submit an itemized bill from the provider, along with a completed copy of form CMS 1490S, to the Medicare contractor for his or her State within one calendar year.2 If you are privately insured,

Being proactive is the most effective and least costly way to protect your health.

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ask your insurer about any applicable time limits or documentation requirements you will need to meet, and consider packing a copy of any relevant claim forms. If your insurer does not cover international care, you may want to consider purchasing a short-term travel health insurance policy to supplement your current plan. Again, it is important to consider the limitations of coverage – in particular, the federal Centers for Disease Control and Prevention (CDC) recommends that you choose a policy that includes medical evacuation (i.e., emergency transportation to a quality hospital and/or back to the U.S.) and a 24-hour physician support center.3 If you plan on engaging in “adventure activities” during your trip (e.g., skiing or scuba diving), you should also confirm that your policy does not exclude coverage for injuries you might incur during those activities.

2. Ensure that needed medications are safe, effective and legal. According to the World Health Organization, an estimated one in ten medical products in low and middle-income countries is substandard or falsified.4 Medications in this category may be contaminated, contain the wrong dosage of an active ingredient, or contain no active ingredient at all – any of which may cause severe harm to a patient. If your travel itinerary includes time in a developing country, consider packing some common over-the-counter medications to treat pain, fever, diarrhea, and/or infection, and be wary of purchasing medications on the street.

What happens when we work together?

Central Ohio is healthier.

To assist your clients in fulfilling their charitable interest in health and wellness through the CMA Foundation, please contact: Weldon E. Milbourne 614.240.7420 wmilbourne@cmafohio.org

and the same name may be used to refer to drugs with different active ingredients or dosages. Further, certain substances may be banned or restricted in other nations, particularly medications that affect the Central Nervous System (e.g., analgesic opioids, anabolic steroids, and psychotropic medications).5 To avoid trouble at customs, check with the embassy of the country you will be traveling to in advance to

Regardless of your destination, it is important to know the names of the active ingredients in your pharmaceuticals. Brand names often vary between countries,

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find out if there are any restrictions applicable to your prescriptions. Bring only as much of your medication as you will need for the trip and carry it in its original packaging, along with your prescription and any other required documentation. Finally, make sure that you are taking any medication as intended. If you have a prescription that must be taken on a particular schedule, discuss with your physician how to adapt this schedule to different time zones. Be mindful of dosages and storage conditions, and check to make sure you have obtained any necessary refills before departure.

3. Identify sources of information and assistance in advance. You may not be able to anticipate all of the issues that could arise during your trip, but you can equip yourself to handle them as they come by identifying sources you can turn to for help. The U.S. Embassy in your destination country can assist you in locating medical services, and can notify your family and friends in case of an emergency. Locating their contact information before you go could save time when it matters most; additionally, if you register with the Embassy in advance, they can provide you with current updates about safety conditions and other important information to inform your decision-making.6

You may also wish to obtain a free membership to the International Association for Medical Assistance to Travellers (IAMAT), a non-profit organization that connects travelers to reputable English-speaking local doctors around the world.7 IAMAT and similar organizations can help you identify health risks specific to your destination, and provide the information you need to take preventative measures. As always, being proactive is the most effective and least costly way to protect your health, and will improve your odds of safe travels no matter where you go. Bon voyage! 1

For more information, see https://www.medicare.gov/coverage/travel-needhealth-care-outside-us.html. 2 For more information, see https://www.medicare.gov/claims-and-appeals/file-aclaim/file-a-claim.html. 3 See https://wwwnc.cdc.gov/travel/page/insurance. 4 See http://www.who.int/en/news-room/fact-sheets/detail/substandard-andfalsified-medical-products. 5 See https://www.iamat.org/blog/what-you-need-to-know-about-travelling-withmedications/. 6 To register, visit https://step.state.gov/step/. 7 To join, visit https://www.iamat.org/membership/new.

Mairi K. Mull, Esq.

Vorys, Sater, Seymour and Pease LLP mkmull@vorys.com

48 | Columbus Bar L aw yers Quarterly Summer 2018

Summer ‘18: Vacation & Leisure

Traveling Internationally: The Quick and Safe Way by David Bloomfield and Orsolya Hamar-Hilt Vacation season is quickly approaching, which leaves many to wonder if traveling by air is truly more difficult now than in the past. If you’ve ever flown, you know that it entails strict scrutiny and tightened security. Example A: in April, actor T.J. Miller jokingly made a bomb threat while on a train to New York. This resulted in his arrest at LaGuardia Airport days later and caused an inevitable travel delay. International air travel adds even more difficulties to the already complicated process. Let us start with the most basic element: the passport. If one is a United States citizen, the person can apply for a U.S. passport by obtaining the appropriate application form online, filling it out and sending the completed form as indicated online. With the application, the applicant must submit evidence of U.S. citizenship, two passport style photos and the appropriate application fee. If this is the

applicant’s first passport, the application must be submitted in person, usually at a United States Post Office. The process can take anywhere from a few days to a few months depending on the time of year you apply. If necessary, you can contact your U.S. Congressperson to speed up the process or arrange expedited handling, for a fee. It is not unusual to go to Washington, D.C. for a oneday service arranged by your local Congressional office (for an extra fee) when needed to travel. Plenty of extra time is critical for international travel. Passports must have at least six months of validity or you will not be permitted to

board the plane. In most instances, international travel involves switching planes and trying to make connections. Airlines have recently shortened connection times which makes travel even more stressful. For domestic travel, one can apply for a Transportation Security Administration (TSA) PreCheck to save time and avoid long lines at airport security. The TSA also requires that passengers show a valid ID at the security checkpoint before boarding their flights. Valid forms of identification for all travelers include passports from the U.S. or a foreign government if the final destination is outside the U.S. Passenger names are then

When traveling, remember patience is a virtue and preparedness for the experience is a must. 49 | Columbus Bar L aw yers Quarterly Summer 2018

compared against the No Fly List and a longer list of “selectees”; passengers whose names match names from this list receive a more thorough screening before being potentially allowed to board. Among the many criticisms against TSA’s effectiveness, one major criticism is that the search and screening by TSA added to the travel time, which creates long lines at the airport. In order to shorten the waiting time, TSA offers several PreCheck programs that expedite screening for domestic and international travel. Global Entry is practical for international travelers. This program is available for U.S. citizens, Permanent Residents and citizens of select additional countries. It offers expedited processing through CBP (Border Patrol) at airports and land borders upon arrival in the U.S. and includes the TSA PreCheck. There are two more

programs, Nexus and Sentri, and both offer expedited screening within the U.S., but Global Entry is the most pertinent. Children under the age of 13 traveling with a parent or guardian are afforded the same treatment, as well. But at age 13, children are on their own. If you travel at least once internationally, you should consider applying for Global Entry to save time and aggravation at the airports. The program has a membership fee between $50 to $122 per year and applications are available at certain airports and offices in the U.S., although the wait for an appointment could be long. It is not available at John Glenn International Airport, but they can be found at Cleveland or Cincinnati Airports. While the Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops

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and searches, case law tells us that it’s not always true at the border. The sovereign has unfettered autonomy to control its borders. Border patrol and Customs (combined in CBP) at the border at the time of landing require no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. Moreover, prolonged detention of travelers beyond the routine customs search and inspection are permitted. In fact, motor vehicles may be searched at the border, even to the extent of removing, disassembling and reassembling the fuel tank.1 Once a person has entered the U.S. the full force of law and Fourth Amendment rights apply. While it is doubtless that security adds to the time of travel, we, as passengers, also contribute to delays. So as a practical matter, when traveling by air, it is wise to be ready for security checks by having our passports ready, try to avoid having lots of change in our pockets, wear slip on shoes, etc. When traveling, remember patience is a virtue and preparedness for the experience is a must. Meet the experience with a cooperative, kind and understanding attitude. Your trip will be that much more enjoyable. And don’t forget to join PreCheck or Global Entry for a quicker experience.

David Bloomfield, Esq.

Bloomfield & Kempf dbloo@msn.com

Orsolya Hamar-Hilt, Esq.

Bloomfield & Kempf orsolyahilt@gmail.com

Happy travels! For additional assistance on these issues, you can reach out to Bloomfield & Kempf, LLC, an immigration law firm. Visit bloomfieldkempf.com for more information and to reach out to the team. 1

https://law.justia.com/constitution/us/amendment-04/19-border-searches.html Justitia U.S. Law

51 | Columbus Bar L aw yers Quarterly Summer 2018

Life Outside the Law

Get Active

and Out of the Desk Chair! BY Kristin Gordon-Hock In April 2018, I added race number 45 to my list of half marathons. (It was actually half marathon number 46, if I count that one full marathon that ended with a medic ride to the 13.1 finish after a stress fracture shut me down for the day at mile 16—but that’s another story for a different column!) I don’t share this number to brag; I share it because I am proud. I also believe that if I am a normal, everyday, non-elite athlete who trots along at an average pace and I can do it, then anyone reading this can! I share it because more than 40 of my 45 half marathons, and all five (and a half) full marathons, were trained for and completed while working full time as a paralegal. Committing to and training for an event such as a marathon can feel like a fulltime job

in itself. There is a particular two to three-week period at the end, just a few weeks out from race day, that even the most seasoned athlete may dread. It is hard work to fit it all in. Then enters “taper madness,” that period of time right before the race that you’ve cut back to doing practically nothing. Even if it starts as a relief, I’m feeling pretty grumpy by the end. Add in the daily responsibilities of homelife that we all possess, and it can be hard to feel motivated or organized enough to make such a commitment happen. Especially as a paralegal, attorney or other legal professional, this career often comes with unstructured or nontraditional schedules, emergencies, unexpected new clients/projects and lengthy trial preparations that can get in the way. Even though I’m a runner in my “off” time, the reward of making this a part of my lifestyle is that it benefits me in every single aspect of my life. There are, of course, the health benefits of making exercise stick as a regular part of your life. Pick up any issue of a fitness magazine or browse

It’s not just joy in moving my body, but in soaking up the sights and sounds around me. It’s the practice of being present in the moment. 52 | Columbus Bar L aw yers Quarterly Summer 2018

running statistics online, and the prominent message is that regular, consistent exercise improves our physical and mental health in a myriad of ways. It makes me happier, which makes me a better employee, a better paralegal, a better coworker, a better wife, a better friend and just a better member of society. It controls my stress level. If I’m tired of looking at a computer screen all day, or leafing through volumes of discovery, three to four miles on my feet can do wonders for my brain power and gives me a muchcraved energy boost, whether it’s mid-afternoon or at the end of a long day. Early morning movement gets me energized and ready to tackle the day ahead. Running in general makes me excited about trying new things and traveling to new places. It makes me appreciate the little things. It’s not just joy in moving my body, but in soaking up the sights and sounds around me. It’s the practice of being present in the moment.

If you have thought about making running or walking – or exercise in general – a regular part of your life, there are probably a lot of things holding you back. I recommend the following tips to get started:

1. Find your “why.”

If you are like me, you may need some added motivation to get into a routine. My exact “why” changes from one season to the next, but overall, it’s because I am worth it. I know I’m a better, happier me when I run. My very first “why” when I started running in 2002 was simple: my doctor told me I needed to control my weight, that I needed to start exercising and I wanted to stop smoking. Whatever your discipline, your “why” can be a person or a goal (run a mile, run a 5k, complete a triathlon, become a CrossFitter, do a headstand, bench press a certain weight, complete a 20-mile bike ride, do something that scares you or complete something with a friend or as a team).

2. Find your tribe.

Being a part of the local running community has given me a giant network of people in all areas of my life, and all areas of fitness. I have met incredible individuals who have become great friends and some are even professionals with whom I’ve networked. We all have different backgrounds, but running (and fitness) is our common thread. It’s a rare day that I can’t find someone to meet to work out with, run with or to hold me accountable. As a member of Columbus Eastside Running Club (CERC), I have built in running resources for routes, mileage, water, training plans and race day perks – all I have to do is register and show up! Through my running buddies, I’ve discovered a passion for yoga, I’ve dabbled with swimming and mini-triathlons, and I’ve completed a 40-mile bike race. This year, I’ll be (carefully) embarking on a few traditional trail runs for the first time.

53 | Columbus Bar L aw yers Quarterly Summer 2018

3. Find your goal.

You must have an end goal in sight. And when you reach your goal, make a new one. It’s OK – and actually important – to start small. I couldn’t run a mile when I first started running. My first two or three half marathons were completed with a run-walk method. I can count the accomplishments of which I’m the proudest on one hand, and finishing my first 5k is just as monumental and memorable as the day I finished my first marathon.

4. Mix it up.

I’ve learned over and over that you must mix things up in order to stay motivated and excited. You also must do this to avoid burnout and injury (insert story about stress fracture, here!). In the last few years, I’ve finally started to heed this important advice. I love going to different types of yoga classes with different instructors. Varying my disciplines is exciting and needed. I also like experimenting with strength training, because I really, really dislike strength training. This is how I know it’s something important that my body needs. On the same hand, if you absolutely hate something, you do not have to do it, and you shouldn’t. Hate running? Find another form of cardio. Hate yoga or weights? Try something else. Find what you love, and don’t worry about what everyone else does. Just get yourself moving.

5. Don’t be so hard on yourself.

Remember, you are not getting paid to do this. Life happens. You are going to get stuck at work late, you are going to be too tired and you are going to decide to skip that workout some days to spend time with family and friends. Do what is important to you and listen to what you need. Your schedule or your class time is a guide – it’s not an obligation. Summer is the perfect time of year to get started. There are so many opportunities to get outdoors; you don’t need a gym. Right now, you can find fitness events, activities, classes and challenges in the city and surrounding areas. This is my favorite time of year as a runner because I can find a 5k to support every single weekend for five months straight. What are you waiting for?

Kristin Gordon-Hock

Wolinetz & Horvath, LLC kgordonhock@wolinetzlaw.com 54 | Columbus Bar L aw yers Quarterly Summer 2018

CONNECT THE

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Life Outside the Law

Embrace Eight Traits

for Wellness BY scott r. mote, esq.

It’s finally summer, and I am grateful for that. Speaking of being grateful: every day, I am thankful for something wonderful in my life. Today I am thankful that I have taken the steps to be a happy and successful lawyer. As an advocate for attorney wellness, I’d like to share some common traits that lawyers who live happy and fulfilling lives embrace.

A Positive Attitude

Have you ever heard of Debbie Downer? Debbie is a fictional character from Saturday Night Live who always brings up depressing topics when hanging out with her friends. For example, when having breakfast at Disney World and the waiter asks if they want steak and eggs, Debbie says, “Ever since they found mad cow disease in the U.S., I’m not taking any chances.” Being happy starts with a positive attitude. Instead of bringing up mad cow disease, Debbie could have been positive by saying, “I’m so thankful that I can make my own

choices on what I want to eat this morning. I think I will have the fresh fruit for breakfast.” Always look on the bright side, instead of focusing on the negative parts of life. If you catch yourself seeing the glass half empty, try to catch yourself before the negative thoughts sink in. Then think of something positive instead. Don’t be a Debbie Downer!

Technology

Lawyers are busy at all hours of the day. We are constantly meeting deadlines, meeting with clients, volunteering, making phone calls or going to court. Many lawyers take advantage of all that technology can do to make their lives easier. Online applications are available specifically for lawyers for time management, billing, meditation, taking notes, calendaring, file storage, etc. Do a google search for “best apps for attorneys” and you will find many time-saving tools that will help you succeed.

Balance

Balancing work and life is definitely a challenge for lawyers, but it can be done. You might find it difficult to find balance when you are required to be accessible at all times. Try

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inheriting a mindset where you work to live, not live to work. Living to work can lead to stress, burnout, depression, substance abuse and even suicide. You owe it to yourself to find balance in your life. A healthy balance consists of work, hobbies, family time and setting aside time for yourself to do activities that you enjoy. The apps that were mentioned above can help you set aside time for life outside of the office.

Resilience

Resilience is the ability to bounce back from tough situations. Maybe you didn’t land the client you had hoped for or you lost a trial. Being able to accept defeat and move on are imperative to a lawyer’s wellbeing. Since lawyers tend to dwell on what went wrong instead of learning from their mistakes or misfortunes, it is crucial to learn how to be resilient and bounce back.

Authenticity

Be yourself! Maybe you like to wear flowers in your hair or do things differently than some of your other colleagues. That’s OK. “People are their happiest when they are being their authentic self. In the image-conscious world we live in and high pressure environments in which lawyers operate, lawyers are often at risk of disconnecting their authentic self from the image they are projecting to clients and colleagues. Doing this, though, leaves us out of balance and that leads to stress.”1

Goals

All lawyers have goals — whether they are financial, related to family, clients or the office — but make sure you set realistic ones. Don’t set yourself up for failure. Set easy and

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challenging goals that you know you can obtain at some point. You might not reach your goal of being able to recover $250,000 for crime victims in one year, but you know you can achieve this goal over five years.

Confidence

Confident lawyers are not afraid to fail. They know that they can learn life lessons from failure. They listen more than they speak. They know how to ask for help and that they don’t have all of the answers. They own up to their mistakes. Don’t confuse confidence with cockiness, though. Cocky people think they can never be proven wrong, they brag and they believe that asking for help is a sign of weakness. Cockiness is a sign of insecurity.

Stay well! If you are unhappy, depressed, suffering from substance abuse, burnout, or stress, and you believe it is affecting your life, the Ohio Lawyers Assistance Program can provide CONFIDENTIAL help. For more information, go to ohiolap.org or call (800) 348-4343 or (614) 586-0621. 1

www.huffingtonpost.com/monica-zent-/thesecrets-to-being-a-ha_b_12913776.html

Scott R. Mote, Esq.

Ohio Lawyers Assistance Program smote@ohiolap.org

Competence

Happy lawyers make wellness a top priority. They take the necessary steps to remain competent. When you are well, you are at your best, which not only makes you feel great, but it also benefits your clients. 57 | Columbus Bar L aw yers Quarterly Summer 2018

Life Outside the Law

Try Southwest Scenery for Serious Sightseeing BY hon. david e. cain A glorious array of natural and manmade wonders is readily accessible by using Las Vegas as a base. Seeing icons of American geography in three states in three days was a fairly easy venture. Sometimes, doing something once can establish a tradition. So it was when we took our granddaughter and other family members on an Amtrak trip to New York City as part of her high school graduation celebration two years ago.

This year, our oldest grandson wanted to go to the Southwest. So, we booked rooms in Vegas. On our first full day there, we headed for Hoover Dam, a little less than an hour’s drive to the southeast. A few miles past Boulder City, we stopped at the Visitor’s Center in the Lake Mead National Recreation Area where a ranger suggested we leave our vehicle parked in the center’s lot and hike the last three and a half miles to the dam. Good advice!

through five tunnels that pierce the rocky mountainsides and it offers great overlooks of the Boulder Basin section of Lake Mead with its waters looking royal blue against the red and gray volcanic plateaus.

The wide and inviting rusty pebble trail follows the route of trains that carried supplies to build Hoover Dam in the 1930s. The trail passes

The Colorado River runs more than 800 miles before flowing out the Grand Canyon into lakes Mead and Mohave and then serving as the border between Nevada and Arizona. The river basin has been in a 16-year drought. Even the decreased snowfall amounts in the mountains of Wyoming, Utah and Colorado contribute to the lower water levels. Lake Mead is nearly 150 feet below a full pool of 1,229 feet. However, more than 25 million people in Nevada, Arizona and California still depend on it for their drinking water. Lakes Mead and Mohave hold more than four trillion gallons.

A disturbing sight, however, is the “bathtub ring” along the shores and around the islands that mark the high water level when the Boulder Basin was full at the turn of the century.

Another good reason for the hike came into view as we neared the dam and saw a long stretch of

58 | Columbus Bar L aw yers Quarterly Summer 2018

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Our experienced trust professionals are highly accessible and are committed to timely, face-to-face meetings. traffic waiting to enter the Visitor’s Center parking area. The concrete dam was for a long time the tallest in the world at 727 feet. Its crest is 1,200 feet wide and the base is 660 feet thick. Seventeen turbines can produce some four billion kilowatts per year, providing electricity for more than a million residents, along with the Las Vegas strip that never allows night to fully fall. Flood and silt control is also a big benefit. The next day, we headed the same direction but went past Hoover Dam into Arizona and traveled another couple of hours, about half of it on a secondary road. That got us to the West rim of the Grand Canyon, aka the Grand Canyon West area. While not so commonly known as the North and South rims, it has been the site since 2007 of the heralded Skywalk, a 10-foot-wide, horseshoe shaped glass bridge that extends 70 feet out from the rim. Queasy is not a

strong enough word to describe the feeling one gets when looking down through the glass 4,000 feet to the canyon floor. The Skywalk is owned and operated by the Hualapai Tribe of indigenous Native Americans and is not part of the Grand Canyon National Park. A tourist begins at a huge central parking lot beside a gift shop where tickets can be purchased to get on the shuttle buses that operate continuously, taking visitors to three points of interest where passengers can get off for as long as they want or not at all. They are: The Hualapai Ranch with wagon, stagecoach and horseback riding and overnight cabins; Eagle Point that features the Skywalk, a Native American Village and an amphitheater for tribal dancing; and Guano Point with its spectacular panoramic view of the Colorado River snaking out of the last stretches of the Grand Canyon.

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Sometimes, doing something once can establish a tradition. So it was when we took our granddaughter and other family members on an Amtrak trip to New York City as part of her high school graduation celebration two years ago. This year, our oldest grandson wanted to go to the Southwest. The river looks gray and tired, not white and sassy as it does at some points where it bisects the North and South rims some 250 (highway) miles to the east. I saw that section of the river about 18 years ago when a friend and I hiked from the South Rim down the South Kaibab trail to the river to spend the night and to hike back out on the Bright Angel trail the next morning. The Hualapai Tribe recently added another attraction for thrill seekers at the West Rim – two zip lines that take riders at speeds up to 50 miles an hour nearly 1,000 feet above the canyon floor. One is 1,100 feet long; the other is 2,100 feet. I did not check them out. The South Rim is about 275 miles from Vegas, a little too far for a one-day round trip. Even though the average distance across the canyon is only 10 miles (as the crow flies), it takes five hours to drive the

215 miles between the South Rim Village and the North Rim Village. On the third day, we headed northeast about 150 miles into the southwest corner of Utah, through the city of St. George, to the spectacular Zion National Park. We got a taste of the Zion Canyon (that draws 4.5 million visitors a year) but that’s just one section of the 229-square-mile park that provides a whole network of canyons, forests and deserts. The North Fork of the Virgin River cut spans up to a half mile deep through the reddish and tan Navajo sandstone to form the 15-mile-long Zion Canyon. The Zion Canyon Scenic Drive is accessible only by shuttle buses for much of the year. They continuously circle the 10-mile roadway and stop nine times in each direction. Each stop is close to one or more trailheads. Hikers’ guides are available with descriptions of each trail so that visitors can pick and choose by length and difficulty. The buses are free, about seven minutes apart, and can accommodate wheelchairs, backpacks, climbing gear and even a few bicycles. But waiting lines can be long during the heavy tourist seasons. Many of the trails offer breathtaking views of the majestic canyon walls with unique peaks and some 2,000-foot sandstone cliffs that are world renowned among climbers. Sparkling streams, ribbon waterfalls and emerald green water holes add to the charm.

60 | Columbus Bar L aw yers Quarterly Summer 2018

Another shuttle system runs a Springdale Town Loop in the opposite direction from the scenic loop (both start at the Visitor’s Center) to connect with hotels and parking lots in the neighboring village. In all, more than 50 hikes are available in the Zion National Park with some catering to backpackers or horses and mules. One of the most exciting hikes would be in the Narrows. At the northern stretches of the Zion Canyon, the Narrows is 16 miles long and up to 2,000 feet deep, decorated with sheer walls, natural springs and hanging gardens. At times the canyon is only 20 to 30 feet wide. Most of the time, hikers are actually in the river, wading or even swimming. “The current is swift, the water is cold, and the rocks underfoot are slippery. Flash flooding and hypothermia are constant dangers,” a guidebook warns. And if you still haven’t had enough of canyons, you can drive another two hours to the northeast and see a totally different landscape at the Bryce Canyon National Park. On the fourth day, we hiked the Las Vegas strip and took in a performance of the Blue Man Group. All in all, it was quite the Southwest experience.

Hon. David E. Cain

Franklin County Court of Common Pleas David_Cain@fccourts.org

Life Outside the Law

Lawyers with Artistic License:

Sean Harris BY HEATHER G. SOWALD Walking into Sean’s office, a beautiful four-sided rotating mahogany bookstand is the first object to catch one’s eye. Sean crafted it himself, this replica of Thomas Jefferson’s bookstand in Monticello. Sean also built a standing desk, which takes pride of place in the opposite corner of his office, which he says he uses often. Sean Harris, a partner in the firm of Kitrick, Lewis, & Harris, has uncannily followed his father, Jay Harris’, path in life and profession.

Both are successful personal injury attorneys, wood workers, pilots, husbands, fathers and active in trial lawyers’ associations. His father, a partner in the Toledo firm of Harris, Reny, & Torlewski, L.P.A., inspired Sean to also become a plaintiff’s personal injury lawyer. He recalls his father telling him that plaintiff’s attorneys directly help people who have been injured and deserve compensation. Sean also appreciates the opportunity to be a catalyst for change to ensure safer commercial equipment, knowing that his efforts will save others’ lives and limbs. Sean also learned from his father to mix his love of creating objects

Sean also appreciates the opportunity to be a catalyst for change to ensure safer commercial equipment, knowing that his efforts will save others’ lives and limbs. 62 | Columbus Bar L aw yers Quarterly Summer 2018

out of wood with his personal injury law practice. Sean figures out how to build smaller wooden scale models of equipment which gave rise to his clients’ injuries. He says the creation of these models not only helps him figure out how the accident occurred, but also believes these models visually show the client’s story better than a photograph can depict. Sean says that he finds that the reality of the scale model sitting in front of the mediator or a jury creates a better ultimate outcome for his clients. Sean’s woodworking skills came in handy when he and his wife, Alyssa, were low on funds and had their first home in Clintonville. Now his skills are enhancing their current home in Worthington, which they share with their three children, ages 11, 9 and 1. He has all of the standard woodworking equipment in his basement workshop, including a table saw and drill press, plus equipment which allows him to be even more creative. While he enjoys the creation and enjoyment of the wood pieces, Sean laughingly says

the best part of woodworking is the excitement of adding new tools to his collection. In addition to this creative hobby, Sean recently learned to fly. He spent last year training, flying and taking the examinations, and is now a licensed pilot. However, he says that despite his so-far safe flying record, his wife is still not ready to fly with him. He is hopeful that she will someday change her mind. Sean, a past president of the Central Ohio Attorneys for Justice, has just attained the office of President of the Ohio Attorneys for Justice (formerly Ohio Trial Lawyers Association), following in his father’s footsteps. They are the only father and son to both hold this position in Ohio’s history. As he looks into his future, Sean is content to continue creating his wood models and furniture, sharing his time with his family and his profession, while always looking for that exciting new piece of woodworking equipment to acquire.

Two scale models Sean created for use in his personal injury practice

Heather G. Sowald, Esq.

Sowald Sowald Anderson Hawley & Johnson hsowald@sowaldlaw.com

Jury Verdicts

Civil Jury Trials

Franklin County Common Pleas Court by MONICA L. WALLER Verdict. $502,344.12. Medical Malpractice. On May 28, 2013, Plaintiff Barton Kaderly was receiving physical therapy at Defendant Cardinal Orthopedic Institute. He was placed on a piece of equipment called the Dynatronics T4 Traction/Decompression Hi-Lo Treatment table. The physical therapist lowered the table unaware that Mr. Kaderly’s hands were moved underneath it. Mr. Kaderly sustained a comminuted fracture to his left middle and a laceration to his third finger. Mr. Kaderly underwent surgery, which involved an open reduction and internal fixation with plates and screws. A second surgery followed after Mr. Kaderly bent the first plate set. Prior to his injury, Mr. Kaderly earned approximately $19,000 per year restoring old cars. He claimed that, as a result of the injury, he was unable to return to that work. Mr. Kaderly and his wife sued Cardinal Orthopedic, Orthopedic One and the physical therapist. The physical therapist was voluntarily dismissed. The case proceeded to trial on Mr. Kaderly’s claim against Cardinal Orthopedic and Orthopedic One

only. Defendants argued that Mr. Kaderly bore some responsibility for moving his hands into the pinch point of the machine at the time it was lowered and for bending the plate placed in the initial repair procedure during his recovery. The jury found in favor of Mr. Kaderly and awarded him $1,191 in past medical expenses and $68,750 in future medical expenses. The jury also awarded him over $340,000 in past and future lost wages and $31,250 in pain and suffering. The jury also awarded his wife $55,000 in loss of consortium. Following trial, the Court remitted the past lost wages award to $75,766.00, reducing the total award to $426,578.12. Plaintiff also moved for pre-judgment interest arguing that the defendant’s insurer failed to engage in good faith settlement negotiations. Plaintiff succeeded on the motion and was awarded $22,091.00 in prejudgment interest. Medical Specials: $1,191.00. Lost Wages: $346,153.00. Last Settlement Demand: $95,000.00. Last Settlement Offer: None. Plaintiff’s Expert: Jason Graf, LPT (physical therapist); James Nappi, M.D. (orthopedic surgeon). Defendant’s Expert: Michelle Albert, PT

64 | Columbus Bar L aw yers Quarterly Summer 2018

(physical therapist); Steven Kann, M.D. (orthopedic surgeon). Length of Trial: five days. Counsel for Plaintiff: David Shroyer. Counsel for Defendant Brant Poling and Sabrina Sellers. Judge Chris Brown. Barton Kaderly, et al., v. The Cardinal Orthopedic Institute, et al., Case No. 14 CV004981 (2017).

Verdict: $209,046.77 ($54,046.77 economic; $150,000 noneconomic; $5,000 loss of consortium) Automobile Accident. In the Fall of 2001, Plaintiff Sandra N. Oliver (70) and her husband were stopped in traffic on I-270 southbound on November 10, 2015 when their vehicle was rearended by a vehicle driven by Terry L. Harter. The force of the collision pushed their vehicle into the vehicle in front of them. Mrs. Oliver was the front-seat passenger. Mrs. Oliver was taken from the scene by ambulance to the emergency room where she complained of pain in her head, abdomen, midback and toe. Her vision was also blurry and she was nauseous and vomiting. She was diagnosed with a fracture in her thoracic spine at T9-10 and a fractured

right toe. She was transported to another hospital where she was admitted and went on to have surgery. Her surgeon performed an internal fixation with placement of screws at T7, T8, T9, T10 and T11. She remained hospitalized until November 19, 2015. Her rehabilitation required physical therapy and the use of a back brace and bone growth stimulator. Despite these interventions, Mrs. Oliver complained of daily severe back pain. She was also left with a permanent surgical scar on her back. Mrs. Oliver sued Mr. Harter and made a claim against her insurer, Westfield, for underinsured motorist coverage. Mrs. Oliver resolved her claim against Mr. Harter and proceeded to trial against Westfield. Westfield stipulated negligence but disputed the extent of Mrs. Oliver’s damages. The parties disagreed primarily on the compensation owed to Mrs. Oliver for the scarring. The jury answered an interrogatory indicating that Plaintiff’s injury was not a substantial physical deformity. Medical Specials: $204,386,17 ($54,046.77 after write-offs). Lost Wages: $1,611.60. Last Settlement Demand: $400,000.00.

Last Settlement Offer: $225,000.00. Plaintiff’s Expert: Christopher Karas, M.D. (neurosurgery) Defendant’s Expert: None. Length of Trial: two days. Counsel for Plaintiff: Brian Garvine. Counsel for Defendant: Josh Bills. Magistrate Jennifer Hunt. Case Caption: Boyd Oliver, et al. v. Westfield, Case No. 16CV006806 (2017).

Verdict: $14,000.00. Consumer Claim. On January 27, 2014, Plaintiff John Pronkoski purchased a Ford F150 Truck from Ricart for $25,515.00. Mr. Pronkoski alleged that, shortly after taking possession of it, the vehicle began making loud noises when driven over 10 mph or in reverse. He attributed the problem to defects in the transmission system and engine. Efforts to have the vehicle repaired through authorized dealers were unsuccessful. Mr. Pronkoski then attempted to revoke his acceptance of the vehicle, but Ford refused. Mr. Pronkoski sued Ford for breach of both written and implied warranties under the MagnusonMoss Warranty Act. Ford disputed that it had breached any warranty

with Mr. Pronkoski. According to Ford, all verified defects in the vehicle were repaired after just one attempt. Ford asserted that the remaining complaints about the vehicle could not be reproduced at the Ford dealership. The jury found in favor of the Plaintiff and awarded $14,000, which it concluded was the difference in the value of the vehicle as warranted and the value of the vehicle as purchased. Last Settlement Demand: Repurchase of the vehicle and $3,500 in attorney’s fees. Last Settlement Offer: Withheld at the request of counsel. Plaintiff’s Expert: George Thielen (car inspector). Defendant’s Expert: Keith Hallberg (engineer). Length of Trial: three days. Counsel for Plaintiff: David Tannehill. Counsel for Defendant: Jeremiah J. Wood. Judge Jeffrey Brown. Case Caption: John Pronkoski v. Ford Motor Company, Case No. 15 CV010594 (2017).

Verdict: $7,500.00. Toxic Exposure. In 2010, Plaintiff Deborah Crist participated in a home audit program offered by Defendant Columbia Gas. The audit report

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offered suggestions on how to improve the energy efficiency of her home. Among the suggestions was that Ms. Crist add insulation and replace windows. Following the advice of the audit report, Ms. Crist hired Defendant Energy Tech to install blown-in cellulose insulation into the attic and exterior walls of her home. The work was performed on August 12, 2010. During the installation, Ms. Crist complained of intrusion of the cellulose insulation into her living space and ordered the workers to stop the work. Ms. Crist subsequently experienced worsening symptoms of her pre-existing multiple chemical sensitivity including dizziness, coughing and respiratory issues. In January 2011, Ms. Crist hired Central State Windows to replace the windows in her home. Before the installation, Ms. Crist discussed her chemical sensitivities with Central State. Central State recommended a caulk manufactured by Henkel Corporation. Despite the use of the recommended caulk, Ms. Crist experienced a further exacerbation of her condition after the window installation. After seeking care from a number of health care providers, a neuropsychologist ultimately diagnosed Ms. Crist with toxic encephalopathy (a brain injury). The neuropsychologist related the injury to her exposure to these products installed in her home. Plaintiff sued Columbia Gas, Energy Tech, Central State and Henkel. The claims Ms. Crist asserted included negligence, breach of contract, consumer claims, fraud, negligent misrepresentation, negligent infliction of emotional distress and intentional infliction of emotional distress. The Court

granted summary judgment in favor of Central State Windows and Columbia Gas. Plaintiff voluntarily dismissed her claims against Henkel before trial. Plaintiff also voluntarily dismissed all claims against Energy Tech except the negligence claim. The jury concluded that Energy Tech was negligent and awarded Plaintiff $500 for her medical expenses and $7,000 for other economic losses. The jury did not award any damages for noneconomic loss. Medical Specials: $44,000.00. Lost Wages: $50,000.00. Last Demand: $400,000.00. Last Offer: $5,000.00. Plaintiff’s Experts: Raymond Singer, Ph.D. (neuropsychologist); Bettina Herbert, M.D. (physiatrist). Defendant’s Experts: Hannah L. Hays, M.D. (toxicologist); Marcel J. Casavant, M.D. (toxicologist). Length of Trial: five days. Counsel for Plaintiff: M. Shawn Dingus. Counsel for Defendant: James Featherstone. Judge McIntosh. Case Caption: Deborah Crist v. Columbia Gas of Ohio, et al., Case No. 14 CV 2367 (2017).

photograph to him. The employees were unable to produce it. After several subsequent demands for the photograph were unsuccessful, Mr. Shirima was ultimately advised that the photograph must have been destroyed. Mr. Shirima sued Wal-Mart and the employees who were involved in enlarging and displaying the photograph. The claims against one defendant were resolved by a directed verdict in favor of that defendant during trial. Claims of invasion of privacy and intentional infliction of emotional distress against Wal-Mart and one employee proceeded to trial. The jury found in favor of the defense. Settlement information was not provided. No experts. Length of trial: two days. Counsel for Plaintiff: Alexander Y. Adusei, Jr. Counsel for Defendants: Patrick Kasson and Jackie Jewell. Magistrate Mark Petrucci. Case Caption: Brian J. Shirima v. Wal-Mart Stores, Inc., et al., Case No. 16 CV-3708 (2017).

Defense Verdict. Invasion of Privacy. Plaintiff Brian Shirima went to a Wal-Mart photo lab to have his passport photograph taken. Several days later, Mr. Shirima was informed by a Wal-Mart employee that Mr. Shirima’s passport photograph had been enlarged and reprinted onto canvas and was being displayed at the photo lab. Mr. Shirima demanded that his photograph be removed. A few days after the photograph was removed, Mr. Shirima returned to the Wal-Mart and demanded that the employees turn over the

66 | Columbus Bar L aw yers Quarterly Summer 2018

Monica Waller, Esq.

Lane Alton & Horst, LLC mwaller@lanealton.com

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Coming in October 2018 Planning for Your Future: Probate and Estate Planning

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