Dayton Bar Briefs Magazine May 2021 Vol. 68 No. 8

The Magazine of the Dayton Bar Association | MAY | Vol. 70, No. 9

Dayton

Bar Briefs

Renewal Season is here!

2021-2022

DBA Membership

Trustees Message

DBA Congratulates

Labor & employment

The Year That Wasn't, Then It Was pg 4

The Honorable Alice O. McCollum Retires pg 12

Employment Litigators and Employers Welcome A Change to Ohio's Employmnet Law pg 18

CONTENTS

Dayton

Bar Briefs

May 2021 | Vol. 70, No. 9

Dayton Bar Association Board of Trustees

Features 4 PRESIDENT'S MESSAGE

2020-2021

Fredric L. Young President

Merle F. Wilberding First Vice President

Second Vice President

Denise L. Platfoot Lacey Hon. E. Gerald Parker Jr. Rebecca M. Gentry Member–at–Large

Justine Z. Larsen Sean P. McCormick Member–at–Large

Hon. Mary Wiseman

Immediate Past President Bar Counsel

Phone: 937.222.7902 www.daybar.org

Fax: 937.222.1308

The contents expressed in the publication of DAYTON BAR BRIEFS do not necessarily reflect the official position of the DBA.

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Dayton Bar Briefs May 2021

NEW FEATURE!

Advice for a Young Lawyer: What Clients Really Want

By Chandler L. Watson Esq. | Foos Lentz & Posey LLP

By Gretchen M. Treherne Esq. | Jackson Lewis, P.C.

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NEW FEATURE!

The Strange Condition: Knowledge Without Experience

By Sabra L. Tomb Esq. | Air Force Research Laboratory

John M. Ruffolo, ex officio

Shayla M. Eggleton, Communications Manager

LEADERSHIP DEVELOPMENT CLASS

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18 LABOR & EMPLOYMENT

Employment Litigators and Employers Welcome A Change to Ohio’s Employment Laws

Member–at–Large

Jennifer Otchy, Chief Executive Officer

Supreme Court Complaints

By Terry W. Posey Jr. | Foos Lentz & Posey LLP

16 RISING STAR: AMANDA PORTERFIELD ESQ.

By Ebony D. Davenport Esq. | University of Dayton School of Law

Anne P. Keeton

Library of Congress ISSN #0415–0945

APPELLATE COURT PRACTICE

By Ebony D. Davenport Esq. | University of Dayton School of Law

Member–at–Large

Paid subscription: $30 / year

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By Edward D. Smith Esq. | Nolan Sprowl & Smith

12 DBA CONGRATULATES

The Honorable Alice O. MCollum Retires

Treasurer

BAR BRIEFS is published by the Dayton Bar Association, 109 N. Main St., Ste 600, Dayton, OH 45402–1129, as its official publica­tion for all members. Comments about this publication and editorial material can be directed to the Bar Associa­tion office by the first day of the month preceding the month of publication. The DAYTON BAR BRIEFS is published September through Summer.

BARRISTER OF THE MONTH: PAUL E. ZIMMER ESQ.

Secretary

Chief Executive Officer

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Caroline H. Gentry

Jennifer Otchy, ex officio

The Year That Wasn’t, But Then It Was

By Fred L. Young Esq. | Shareholder, Green & Green, Lawyers

LEADERSHIP DEVELOPMENT CLASS

22 FROM THE JUDGES DESK

Up in Smoke

By The Honorable Richard S. Skelton | Montgomery County Court of Common Pleas

Departments 7

MAY SECTION MEETINGS *Join us for the final Section meetings of the 2020-21 Season!

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2021 DBA ANNUAL MEETING *Fri. June 4 | Sponsorhip opportunities! | Zoom or In-Person

14 2021-2022 DBA MEMBERSHIP RENEWAL SEASON 17 MAY CONTINUING LEGAL EDUCATION 19 2021 CELEBRATION OF LIFE MEMORIAL EVENT *Wed. May 19 | Zoom 21 MINDFUL MONDAYS 23 MAY CHANCERY CLUB VIRTUAL EVENT *Check DBA website for date & details 24 MEMBERS ON THE MOVE 24 CLASSIFIED ADS 25 LAW RELATED ORGANIZATIONS 27 ADVERTISER INDEX 937.222.7902

DBA Annual Partners Sponsors of the DBA

Providing annual financial support and partnership in our mission to further the administration of justice, enhance the public’s respect for the law, and promote excellence & collegiality in the legal profession.

2020-2021 DBA Gold Partners FARUKI+

www.ficlaw.com With offices in Cincinnati & Dayton

FARUKI+ is a premier business litigation firm with offices in Dayton and Cincinnati. The firm’s national practice handles complex commercial disputes of all types, including class actions; antitrust; securities; unfair competition (trade secrets and covenants not to compete); employment; advertising, media and communications; attorney malpractice; data privacy and security; intellectual property and product liability. While its trial practice is national, the firm has always been, and continues to be, committed to the local legal community.

Thompson Hine LLP www.thompsonhine.com

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 7 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times. For 5 straight years, Thompson Hine has distinguished itself in all areas of Service De-livery Innovation in the BTI Brand Elite, where it has been recognized as one of the top 4 firms for “Value for the Dollar” and “Commitment to Help” and among the top 5 firms “making changes to improve the client experience.” The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTH® – a smarter way to work – predictable, efficient and aligned with client goals.

If you are interested in becoming a DBA Annual Partner, contact: Jennifer Otchy, DBA CEO | jotchy@daybar.org | 937.222.7902 www.daybar.org

May 2021Dayton Bar Briefs

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Presidents Message

The Year That Wasn't, Then It Was O

n June 26, 2020, I stood in the Boardroom of the Dayton Bar Association with Judges Mary Wiseman and Kate Huffman, the DBA Chief Executive Officer, Jennifer Otchy, and my wife, Cathy. My inaugural speech as President was performed into a video camera with just the DBA logo on the screen for me to see. While the moment was not itself glorious, it was with friends, and with the person I love very much.

We all hoped that life would soon return to normal, but it did not and it probably will not for a very long time. We continue to face unprecedented challenges, but even in the worst of times, you turn into the wind and move forward.

That is what the Dayton Bar Association, its members, its Board members, and Jennifer Otchy and her team have done throughout this pandemic. We pivoted, innovated and changed with the times all to keep our Association vibrant and moving forward for the benefit of all of us.

Some thought this year would be a write-off in many ways. I just cannot think that way. There are too many voices that push me along my path to simply sit back. Some thought this year would lack any real events, like our annual Bench Bar. That’s not what I wanted to see happen. This year’s Co-Chairs, my law partner and dear friend, Tom Green, and Judge Steven Dankof, worked hard to create a virtual presentation that kept us interested over two days, learning and being moved by our speakers. I cannot recommend enough the book “Picking Cotton” written by our keynote speaker, Jennifer Thompson.

Her compelling story stays with me to this day.

Our Holiday Luncheon, another high point every year, was a virtual success as well, with Judge Thomas Rose and Governor Mike DeWine spending time with us despite their busy schedules.

The DBA found success in other events as well. Our DBA Lead4

Dayton Bar Briefs May 2021

By Fred L. Young Esq. DBA President Shareholder, Green & Green, Lawyers flyoung@green-law.com 937.224.3333

ership Committee excelled at organizing a February blood drive with appointments filled to the brim. That fantastic group of professionals helped our community at a time of dire need.

Even before the pandemic began, the DBA was focused on the growth of active participation in our Sections. I am a believer that our Sections are the lifeblood of our legal community and our Association. There you find opportunities for education, networking and professional growth. We were already considering ways to expand virtual participation in Section meetings before virtual reality was the only game in town. Our Section Chairs and Vice Chairs have worked hard to entice attendance, offer great meeting topics and keep the associative aspect of our world intact.

With no intent to exclude other Section leaders from my appreciation, I want to specifically express my thanks to Sharalie Albanese, who leads our Paralegal Section. She always finds great speakers and comes up with interesting meeting topics. Sharalie is dedicated to our paralegals and their professional growth. I invite our attorneys to sit in on her meetings as well. I believe you will find the time well spent.

Our CEO, Jennifer Otchy, and her team were forced to work remotely, but that did little to slow their efforts on our behalf. Her team shined in their innovation and creativity to ensure our members continued to receive true value from their memberships. From bringing us interesting webinars and CLEs, to ensuring we still could communicate and associate, the DBA staff kept our engines going and our wheels turning. Under Jennifer’s leadership, we enhanced the telephone system and will be soon rolling out a new website structure that will benefit us all. continued on page 5

937.222.7902

PRESIDENT'S MESSAGE: The Year That Wasn't, Then It Was continued from page 4 One of the greatest privileges associated with my role as the DBA President has been serving with our dedicated Board members. I had big shoes to fill (side query - Judge Wiseman, how did you get such big feet?). But each of our Board members plays an invaluable role in helping the DBA navigate these uncharted waters. Our President Elect, Merle Wilberding provides wisdom and leadership that will allow for a great transition into the next term.

Anne Keeton is leading efforts to create a much needed Health and Wellness Section. The past year was an immense burden on the health and well being of us all, but we lawyers really need guidance and help in these areas, pandemic or not.

Our Second Vice President, Caroline Gentry undertook the task of establishing our Social Justice Task Force. The Task Force is committed to promoting and supporting anti-racism and social justice in the legal profession and the community at large, and seeks to increase diversity within the legal profession, empower under-represented individuals, develop and strengthen crosscultural awareness, educate members and the community on social justice and allyship issues, and partner with local governments and organizations working toward the same goals.

These are just a few examples of the great year the DBA put together in the face of headwinds unheard of in our lifetimes. There are many more examples, but Shayla puts a strict word limit on me every time.

I have a few more weeks of “heavy lifting” to do in my term, but I deeply thank the DBA and its membership for the opportunity to serve you. Despite the hurdles, I will remember the entire time and the people with whom I have worked and served with tremendous joy.

www.daybar.org

May 2021Dayton Bar Briefs

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Barrister of the Month

Paul E. Zimmer Esq. Pickrel, Schaeffer & Ebeling Co. LPA W

hile that phrase is the branding of his high school alma mater, Alter High School, it also portrays Paul E. Zimmer’s life and his lifelong career in the practice of law.

Growing up in Kettering, Paul, along with many others I know, had the distinct honor to be the first graduating class of Knights at Alter High School in 1966. I knew Paul in high school, but not well until we matriculated to Notre Dame together. We were in the same class, though I was downtown with the Eagles of Chaminade High School.

Paul decided to go to Notre Dame, a decision which was influenced by guidance counselors and others going there whom he knew. This was a great choice since he graduated magna cum laude in 1970 from Notre Dame with a major in Economics! Shortly after graduation, Paul married his high school sweetheart, Maggie Traynor right before starting law school at Duke. He always felt he wanted to go to law school and it “seemed more practical” a career. However, Paul’s decision to go to Notre Dame for undergraduate school and then to law school at Duke had to be based upon the fact that the Fighting Irish are great at football and the Blue Devils are great at basketball. This has enabled him to hedge his bets for the appropriate team when they were foes!

While at Notre Dame Paul had been in Army ROTC but still had to attend summer camp right after graduation to get his commission. At Ft. Riley, Kansas he witnessed the difficulties the 1st Infantry Division (“Big Red One”) had assimilating back to the Army stateside, running trash patrol at the Ft. Riley Military Reservation instead of reconnaissance or combat patrols. After law school, Paul joined Pickrel, Schaeffer & Ebeling, spending parttime as a clerk and part-time studying for the

bar exam. After taking the bar, he had Officer Basic Training at Ft. Benjamin Harrison just as Vietnam was winding down. He had already been promoted to 1st Lieutenant due to his participation in ROTC at Notre Dame and his time in law school. Like many who went this route, he had rank with no experience. He humbly recounts the irony of being “in charge” of training because of his rank, while the experienced “lifer” drill sergeants were teaching “green” officers, including himself, how to be an officer in the United States Army. His active stint in the Army Reserve ended with going inactive shortly before Thanksgiving in 1973.

sion stations to participate. Both judges were admirably trying to protect the right to a fair trial. Those who remember Judge Carl Kessler have to smile, but the Court ruled against him,2 holding the one-sided nature of the hearing would render the hearing “meaningless.” The local television stations were allowed in the courtrooms, subject to conditions of course.

The rest is media history. Paul is proud of his involvement in establishing broadcast access to trials.

After several years in general practice however, Paul gravitated to corporate law. He said working with other attorneys, helping business clients with corporate issues, negotiations, real estate, and succession planning has given him tremendous satisfaction. His leadership abilities eventually led him to the management team at PS&E and later, President of the firm.

He has been actively involved in the Dayton Bar Association as Past Chair of the Business and Taxation Committee, along with the OSBA Corporate Law Committee and the Business Law and Health Care Sections of the ABA. Paul told me he went into law partly because it was more practical. I found it interesting that Paul helped our entire profession in the Dayton area in a very practical way, by chairing a committee at Sinclair Community College, to obtain ABA certification for Sinclair’s paralegal program.

Paul does not view his professional responsibilities to his clients, and the practice of law, as the entirety of his obligations as a lawyer. In

“Prepared, purposeful and passionate”

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Dayton Bar Briefs May 2021

After completing Army Basic Training, Paul began full-time with PS&E. While Paul is known as a prominent corporate attorney, focusing his practice on mergers and acquisitions, tax, health care law, and transactional law, he started in the general practice area first.

This afforded him the opportunity to participate in two of his most memorable and significant cases. Both cases changed the law in Ohio and gave guidance to the courts, the parties, and their counsel about access to trials through cameras in the courtroom. There was plenty of resistance. Both cases were proceedings in mandamus and prohibition.

Paul represented Grinnell Communications (WDTN-TV ). The first case involved the Honorable Rodney Love.1 The Court ordered that Judge Love follow the mandatory Canons of Judicial Conduct, hold a hearing with a presumption to permit media coverage (print, radio, and television broadcasting) and allow cameras in the courtroom during a criminal trial. A few months later, in the second case, the Honorable Carl D. Kessler, long remembered as an icon of the Bench, resisted by holding a hearing, but not permitting the local televi-

continued on page 7

ENDNOTES: State ex rel. Grinnell Communications Corp. v.

Love, 62 Ohio St. 2d 299 (June 1980).

2 State ex rel. Miami Valley Broadcasting Corp. v.

Kessler, 64 Ohio St. 2d 165 (December 1980).

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937.222.7902

addition to Paul’s love of his family, he believes that his love of the law and commitment to his profession requires involvement with his community. Besides coaching soccer for 16 years, serving on the Miami Valley Soccer board and announcing swim meets at the local swim club with his children, Paul and Maggie did many civic things together, including leading Octoberfest and working together for Alter.

He was on the initial Board of Trustees at Alter High School, served as President of the Board and was inducted into the Alter High School Hall of Fame. Catholic education has always been important to Paul, and he served as President of the Miami Valley Catholic Education Council for the Archdiocese of Cincinnati.

Paul also enjoys golf at Dayton Country Club, where he served as president. He regularly meets with friends in a club that studies all kinds of history.

Family though has been the foremost aspect of his life. “Maggie and I took a vacation every other year with the [four] kids and the grandkids, so the cousins are very close because of

that. It was very special.” Paul’s forty-six-year marriage to Maggie ended with her untimely death in 2017, a loss which not only his family but their many friends and the community felt deeply.

In July 2020 he married Dr. Toni Moore, a renowned Catholic educator, and the widow of long-serving Kettering Municipal Court Judge, Robert L. Moore. Together the newlyweds share 29 grandchildren, her ten and his nineteen! He stays busy attending their events and recently coached his granddaughter in soccer. He is still actively involved in the community as VicePresident of the Community Foundation for Kettering and is currently a College Promise Mentor.

Looking out from the 27th Floor of the formerly named “Kettering” Tower, Paul has time to reflect on the city in which he has practiced law for almost fifty years and all the individuals and businesses he has helped that make the region thrive. He is still passionate about the practice of law. With this kind of dedication to his family, his profession and his

BARRISTER OF THE MONTH: PAUL E. ZIMMER ESQ. continued from page 6 community, Paul seems reluctant to discuss retirement, which is not surprising. There is not enough energy to keep pace with his loyal and purposed life as husband, father, law partner, colleague, and friend.

“Prepared, purposeful and passionate” is welllearned, and what Paul Zimmer epitomizes.

By Edward M. Smith Esq. Nolan Sprowl & Smith DBA Editorial Board edsmith@nsslawyers.com | 937.228.7104

May 2021 DBA Section Meetings Why join?

Being a part of a DBA Section doesn’t mean you have to practice in that respective area of law.

Joining a Section is about utilizing your DBA Membership to its fullest extent.

It’s about being apprised of the happenings in the courts, being connected to other areas of practice, and having the opportunity to socialize with colleagues.

Contact Lori lluebben@daybar.org to Join a Section as yet another complimentary advantage of your DBA Membership!

Mon. May 3 CANCELED Juvenile Law | 4-5pm Wed. May 5 • Young Lawyers Division | Noon-1pm • Estate Planning Trust & Probate | 4-5pm Thurs. May 6 Real Property | Noon-1pm

Tues. May 11 • Civil Trial ADR | Noon-1pm • Labor & Employment | Noon-1pm Wed. May 12 Appellate Court Practice | Noon-1pm Thurs. May 13 Domestic Relations | Noon-1pm

Thurs. May 20 Workers' Comp & Social Security | Noon-1pm Wed. May 26 Criminal Law | Noon-1pm Thurs. May 27 Paralegal | Noon-1pm Corporate Counsel | 5-6pm

Mon. May 17 Federal Practice | Noon-1pm

RSVP Online: daybar.org/events www.daybar.org

May 2021Dayton Bar Briefs

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Appellate Court Practice

Supreme Court Complaints

By Terry W. Posey Jr., Esq. Foos Lentz & Posey LLP tposey@flp.law | 937.802.2397

A

it a certain level of experience, appellate practitioners begin to pick up on some aggravating outcomes at the Ohio Supreme Court. I do not mean probable things, like having your jurisdictional appeal rejected (which happens 95% of the time), or even losing an accepted case on the merits (that is usually a 50/50 shot).

At a recent DBA Appellate Practice Committee meeting, we debated the most annoying decisions by the Supreme Court that create a sense of frustration. By no means is anyone suggesting that the Court actually has the ability to do anything about these (or even should), but these things happen frequently enough to be complained about.

Dismissed as Improvidently Accepted

Smart appellate practitioners know that even though the Ohio Supreme Court accepted jurisdiction over your discretionary appeal and let your client go through briefing and oral argument, they may decide to dismiss the case anyway.

Even smarter practitioners may seek to achieve this outcome if they were the appellee either by motion or arguing for it in your brief.

Pursuant to S.Ct.Prac.R. 7.10, when the Supreme Court “later finds” there is no issue worthy of review, it may” sua sponte dismiss the case as having been improvidently accepted.” Yes, you can go through all the effort of overcoming your five percent odds of acceptance, all the time and energy of briefing, all the stress and preparation of oral argument, to just have the case dismissed.

This happened seven times in 2020. Fourteen sets of counsel had their time and energy declared “unnecessary” by the Supreme Court because it could not find a constitutional question or question of great general interest important enough to issue an opinion.

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Dayton Bar Briefs May 2021

I know, I know – at least one party still won.

Their lower court decision still creates instructive and persuasive law, even if it is only binding in their individual appellate district, right?

Dismissed as Improvidently Accepted with Instructions

Only sometimes! There is even a worse form of being dismissed as improvidently accepted: being dismissed as “improvidently accepted with an order that the court of appeals’ opinion may not be cited as authority except by the parties inter se.” This means that one party won the case, but not in a way that should be relied upon by anyone else.

Three of the seven improvidently accepted dismissals in 2020 orphaned the lower court opinions with these orders (which can be an important reminder on why Shepardizing is important).

In this instance, the Supreme Court does not even explain why the case is only of interest to these parties – is it an unusual fact pattern? Has there been a change in the law that makes writing a substantive decision only of interest to these particular parties? Nobody knows.

A 4-3 Denial on Jurisdiction

We have already discussed that the Supreme Court only accepts jurisdictional appeals about 5% of the time. There are seven justices, and there must be four votes for acceptance.

The justices usually vote in unanimous blocs.

However, when they split 4-3 in favor of denying jurisdiction, it is one of the worst feelings in the world for an appellate practitioner. I should know – it happened to me twice in one year.

Once in a blue moon (or if the law regarding your issue has been continuing to evolve while the jurisdictional decision was pending), a motion

for reconsideration can sway that last justice into your column. Otherwise, you remain one single vote away from unlocking the keys to further appellate review, and the lower court decision remains undisturbed.

Not Paying Close Enough Attention to the Mandate

Actually, this one is usually the fault of the practitioner. You win at the court of appeals, but the intermediate court only addressed one of the three reasons you were supposed to win (most likely because the other two were mooted because of the first holding). The other side prevails at the Supreme Court reversing the court of appeals on that issue. The Supreme Court then ends its opinion with a mandate returning the case to the trial court to proceed.

Wait! You had two more issues for the intermediate court of appeals to review. The Supreme Court sometimes pays a little too close attention to the relief requested by each party. If the appellant asks for a remand to the trial court, and you only asked for the court of appeals to be affirmed (not acknowledging the possibility of your loss), the Supreme Court’s mandate may eliminate your rights to review of the mooted arguments.

Even reconsideration may not save you here.

Best practices suggest that you swallow your pride, and in the conclusion of your brief acknowledge that if the lower court is reversed, there are still undecided legal issues for it to consider, and that the mandate should address this by sending it to the lower appellate court, not the trial court.

Have any of these happened to you? Is there something we missed? Come commiserate with your fellow slightly-traumatized practitioners at the next Appellate Practice Committee meeting!

937.222.7902

Options to attend in-person or virtually!

Contact Chris:

Annual Meeting

calbrektson@daybar.org

2021

937.222.7902

Friday, June 4th | 5:30pm

Sinclair Community College

Please join us for the 2021 DBA Annual Meeting as we thank DBA President, Fredric L. Young for his year of service and welcome Merle F. Wilberding as the DBA President for the 2021-2022 year! We are offering a hybrid program this year with in-person and virtual registration options. The 2021-2022 DBA Board of Trustees will take their oath of office and we will recognize outgoing Board members and Section leaders. Join us Friday, June 4th beginning at 5:30pm!

Sponsorship Opportunities Become a sponsor of the premier DBA event of the year!

Silver Level $1,200 • Recognition on back cover of program • Recognition listed inside of program • Registration for (8) Annual Meeting Dinner • Recognition during dinner presentation • Logo/Name on electronic signage • Logo/Name on DBA website & marketing • Recognition via print in (1) Dayton Bar Briefs

Young Wilberding

SPONSOR DEADLINE MAY 19

Bronze Level $600 • Recognition listed inside of program • Registration for (4) at Annual Meeting Dinner • Recognition during dinner presentation • Logo/Name on electronic signage • Logo/Name on DBA website & marketing

Patron Level $300 • Recognition listed inside of program • Registration for (2) at Annual Meeting Dinner • Recognition during dinner presentation • Name on electronic signage • Name on DBA website & marketing

registration details: daybar.org/events/annualmeeting www.daybar.org

May 2021Dayton Bar Briefs

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Advice for a Young Lawyer:

What Clients Really Want T

hroughout law school I was taught about the “client-lawyer relationship” and my professional obligations for serving my clients through law school textbooks. Upon entering practice, I quickly learned that there is more to what clients really want then what I had read in those textbooks. So, what do clients want? Below are the five biggest “client wants” that I have learned in my time as a new attorney.

1. Clear and Timely Communication

Clients want updates. Clients do not want to be left wondering what the status of their case is or what their lawyer doing to advocate for their interests. Send the client an email notifying them that the judge ruled on the motion in their case. Call the client and let them know you will be sending their Ohio Secretary of State documents via email. Let the client know that you spoke with opposing counsel.

Provide the client with a general status update. Taking the time to communicate with the client goes a long way to maintaining a happy client relationship.

2. Clear Expectations

Clients bring their problems and want the lawyer to find them a solution. Setting forth a plan for solving the client’s problem serves their interest and the lawyer’s too. Explain to the client the process for filing a Complaint and how long the opposing side has to Answer.

Describe the steps that follow sending a demand letter. Give the client timelines. Set boundaries for what you will and won’t do for the client.

Knowing what to expect puts the client’s mind at ease and mitigates the potential for any future issues in the lawyer’s representation.

3. Be on Top of Your Game

This may seem obvious, but clients expect their attorney to perform at the best of their ability. Knowing what you need to do to perform is essential. Before your first oral argument, re-read your outline one more time. Take the time to research one more legal issue. Proofread your motion and then proofread it again. Reflect and consider if there was anything further that could’ve been done. A lawyer on top of his or her game is the strongest client advocate.

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Dayton Bar Briefs May 2021

By Chandler L. Watson Esq. Leadership Development Class Foos Lentz & Posey LLP cwatson@fpl.law | 937.913.0200

4. Adaptability

As the Covid-19 pandemic continues, adaptability has taken on a whole new meaning. Clients want to know that their lawyer can still conduct a deposition in their case through zoom (including screen sharing and knowing when to hit the mute button). Clients want answers to their questions. Can the settlement conference still take place? What about mediation? Did the deadlines change? Is my case paused? Attorneys across Dayton have risen to this occasion by adapting their practice to fit the current times and learning how to answer these client questions. While the world may be in a form of chaos, attorneys must provide a sense of stability for clients by showing them adaptability.

5. Personal Considerations

Lastly, and perhaps most importantly, Clients often come to lawyers in highly stressful and emotional situations. They may be going through a tumultuous marriage divorce. Or a business divorce. Their business may be struggling because of a breach of contract issue. They may want to leave their employment but feel trapped by a noncompete. They may be dealing with estate issues after losing a loved one.

In these situations, clients want an attorney who will listen. While attorneys may not be able to understand exactly what the client is experiencing, at the very least the attorney can try. Clients then want and need their options explained to them in a realistic manner. Clients want to trust your advice. Serving as a counselor at law is an integral part of an attorney’s day-to-day and it is a role that some clients value most.

937.222.7902

Enhancing Diversity, Equity & Inclusion in Our Legal Community The Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable strives to strengthen Dayton’s legal community by promoting efforts to enhance diversity, equity and inclusion. The Legal Roundtable’s 2021 initiatives are described below.

Each has met with great success in recent years benefitting diverse law students and participating attorneys and judges.

Mentoring Program – January – April 2021 On Thursday, January 21, the Legal Roundtable/University of Dayton School of Law kicked off its second year for the Diverse Mentoring Program via a Zoom conference where mentors and mentees met and became acquainted. Twenty-one mentoring pairs are participating in this year’s program which will continue through April. This is an increase from the 18 pairs that participated in last year’s program (which was cut short due to the COVID-19 pandemic). The February mentoring topic was Professional and Personal Branding. We look forward to a great mentoring program and thank all those who are participating.

Cori Haper (Cori.Haper@ThompsonHine.com and Zion Savory (savoryz1@udayton.edu) are co-leads of the program.

Mock Interview Program – January 30, 2021 The Roundtable, in conjunction with the University of Dayton Black Law Student Association, conducted the 2021 “Mock Interview” program virtually on Saturday, January 30. Although virtual, the session was very interactive, providing students with simulated job interviews and immediate, substantive feedback. Students from the University of Akron School of Law and Cleveland-Marshall College of Law also participated. Students have found the experience rewarding, as have the attorneys and judges who have participated in the past.

Diversity Clerkship Program – Summer 2021 The Diversity Clerkship program is open to both rising 2Ls and rising 3Ls. We are reaching out to law students throughout Ohio to apply for positions. The Roundtable will refer candidates to participating firms, courts, and offices, based on the organization’s preferences.

Thank you to returning participants, Wright & Schulte, Thompson Hine, the Montgomery County Public Defender’s Office, the Dayton Municipal Court, and the U.S. Federal District Court for the Southern District of Ohio, and welcome to new participants, Faruki+ and Legal Aid of Western Ohio. Once again, Julius Carter will be funding a student’s clerkship. We encourage your firm, office, and/or organization to join or financially support the Diversity Clerkship program. If you are interested in participating or would like further information, please contact Jamar King (Jamar.King@ThompsonHine.com or Ebony Davenport (davenporte1@udayton.edu) Membership Meetings Meetings of the Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable (currently virtual) are open to all legal professionals and law students. A virtual meeting of the Roundtable is being planned for May 4. All those on the Roundtable mailing list will receive a notice regarding the meeting. For more information or to be added to the Roundtable mailing list, please contact: Ellen.Geron@ThompsonHine.com.

www.daybar.org

May 2021Dayton Bar Briefs

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DBA Congratulates

The Honorable Alice O. McCollum

Retires I

Judge McCollum has received countless awards from the DBA. Most notably, during the DBA Chancery Club Luncheon via Tom Rauch; outdoor photograph with Jesse Beasley and below as Co-Chair of the 2018 DBA Bench Bar with Glen McMurry.

n a career defined by “firsts,” it can be easy to focus only on the historical significance of Judge Alice McCollum’s standing in our profession. After all, she did establish the pre-law program at Wilberforce University, become the first Black woman faculty member at the University of Dayton (teaching in the law clinic), become the first Black woman to preside over the Dayton Bar Association, become the first Black woman to be elected to the Dayton Municipal Court, and later become the first Black woman to be elected to the Montgomery County Probate Court. Despite having broken through these and many other glass ceilings, Judge McCollum has always considered herself a public servant above all else.

Although her over four-decade-long legal career has now come to an end, her legacy and impact will continue to be felt for decades to come.

Had it not been for her college roommate’s interest in law, we may have lost Judge McCollum to the STEM field. As a mathematics major at the University of North Carolina (Greensboro), she had a job lined up as a systems analyst with no interest whatsoever in the law.

As a woman of faith, however, Judge learned quickly that sometimes the plan we have for our lives does not always come to fruition. A combination of divine intervention, history, and an open mind revealed a new path for her life. A mutual friend informed Judge and her roommate about a seminar designed to expose minorities to careers in the law. The Council on Legal Education Opportunity, Inc. (“CLEO”), hosted several seminars across the country, one of which Judge McCollum attended with her roommate. The CLEO seminar was launched in part due to the recent assassination of Dr. Martin Luther King Jr. and subsequent uprisings in response to his death. The hope was that exposing and integrating more African Americans into the legal profession could help ease racial tensions. While attending the seminar, Judge McCollum developed a new perspective and appreciation for the law and how it shaped every facet of our society. She later attended the University of Cincinnati College of Law where she obtained her J.D. before coming to Dayton to begin her career.

Judge McCollum worked in various sectors and positions at the beginning of her career, and although she was open to the idea of becoming a judge someday, she was not prepared to make that transition as quickly as she did.

Shortly after becoming eligible to become a judge, she was appointed to the Dayton Municipal Court (“DMC”) in February of 1979 and immediately had to run. Although continued on page 13

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DBA CONGRATULATES: The Honorable Alice O. McCollum Retires continued from page 12

she was a bit anxious due to her limited exposure to criminal law and politics at the time, Judge did what she has always done— trusted the timing of her life and leaned into the larger plan laid out for her. She won that race and in 1979 assumed her seat as the first Black woman elected to the Court, a position she maintained for next 24 years.

During her tenure at the DMC, Judge McCollum developed a reputation for helping defendants faced with unfair charges. She maintained a fair and balanced approach to all of her cases by giving everyone who entered her courtroom the benefit of the doubt.

That is why despite her nickname “Let ‘em go Alice O,” she maintained a positive working relationship with the police. While she enjoyed her time at the DMC and appreciated seeing the impact she had on the community, she took another leap of faith and decided to run for Probate Court. Never one to back down from a challenge, Judge McCollum was excited about the prospect of delving deeper into a different area of the law. Due to the support she garnered over the years from the community at large and the local Bar, she won that race in 2002 and assumed her new role in 2003 as the first Black and first woman to serve on the Montgomery County Probate Court.

During her tenure, Judge McCollum implemented several changes to make the Court more accessible and efficient. She led the Court through a long-term initiative to

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implement e-filing, which has since made case management and public records access easier for all litigants and attorneys who appear before the Court. She also led efforts to re-organize the layout of the Probate Court to ensure that her staff could work more efficiently and better serve the community.

Judge McCollum also implanted a Staff Appreciation Day to recognize the hard work done year-round to keep the Court running smoothly.

When asked to reflect on the impact of her historic career, she noted how pleased she was to see other Black women walk the trail she blazed. Since her first term as a Municipal Court Judge, Dayton and Montgomery County have welcomed others onto the bench, including Judge Deirdre Logan, Judge Frances McGee, Judge Denise Cross, Judge Adele Riley, Judge Risa McCray, and Judge Mia Wortham Spells. Judge McCollum has been instrumental in many of these women’s careers as several of them have consulted her prior to embarking on their own judicial races. Judge Spells was one of Judge McCollum’s students at Wilberforce University years ago, so seeing her trajectory and eventual landing on the Municipal Court has been particularly rewarding.

Having officially retired from the bench in January of 2021, Judge McCollum is settling into a new rhythm. Just because she is no longer presiding over cases or actively practicing law does not mean that she will no longer

serve the community in some capacity. She is incredibly active in her church community, serving on its governing board. Once our world settles into a safer place post-COVID-19, she looks forward to traveling with family and friends. As for now, she enjoys spending more time with her grandchildren and keeping up with their “new math.”

When asked about the length of her career, she told me that when you find what makes you happy, you will be better at it because it will not stress you out as much. It’s safe to say that serving the community on and off the bench for the last 42 years has brought Judge McCollum serious joy, and we are truly grateful for her service. May we all find and sustain that level of professional fulfillment.

Congratulations on your well-deserved retirement, Judge McCollum!

By Ebony D. Davenport Esq. University of Dayton School of Law Co-Chair YLD & Chair Editorial Board davenporte1@udayton.edu 937. 229.3555

May 2021Dayton Bar Briefs

13

Renew Your DBA Membership!

M

ay is the kick-off for Dues Renewal season at the DBA. We hope you are considering renewing your membership. This year reminders will be sent to your email and legal administrators of your office. If we do not have an email address on file for you, please give us a call so we can add an email address to your records.

Also, we hope that you are following us and remain on the lookout for up-to-date information via the DBA’s social media sites: Facebook @DaytonBarAssociation and Twitter @Dayton_Bar. The DBA Board of Trustees have worked diligently to make sure your membership brings value to you and your practice.

Section Leadership

The DBA has over 25 sections, interest groups and divisions all dedicated to promoting excellence, networking and collegiality in the profession. Be it through participation in the Young Lawyers Division, Domestic Relations or Civil Trial Practice sections – just to name a few, we encourage you to get involved and join the conversation.

View full list of DBA sections and sign up online, just in time for the 2021-2022 DBA Season that kicks off in September. Join today and become a organizer or speaker of next year’s meetings and events.

Special Events, Networking

The DBA hosts over 50 events throughout the year, all geared towards engaging you, our members to become active in local community, volunteer projects, become a mentor, find a mentor, share your knowledge and expertise, attend DBA CLE seminars, present a DBA CLE seminar, attend free luncheons.

In the upcoming Bar year, we intend to kick things up a notch in efforts to really make DBA events ones you can’t miss!

Renew Today!

As a member, we look forward to hearing your ideas on areas of improvement, that we may better serve you in the future. Join us at our first in-person/virtual hybrid event, the 2021 DBA Annual Meeting to be held on Friday, June 4th at Sinclair Community College or available to stream via Zoom.

The DBA future is bright and we are excited to continue the celebration of the DBA’s legacy and embrace our future.

Take Advantage of The Value of DBA Membership!

Enrich Your Career and Get Connected.

2021-2022

DBA Dues Renewal Deadline July 1st Check with your firm administrators and keep watch of your email inbox for your 2021-2022 DBA Dues Renewal Statement.

Give us a call today if we do not have an email address on file for you.

Don't have an email address?

We will be mailing your statement to you.

renew/join the dba Visit www.daybar.org to join or renew through our online application

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Dayton Bar Briefs May 2021

Chris Albrektson DBA Member Services 937.222.7902 calbrektson@daybar.org

Mail Application: Dayton Bar Association 109 N. Main St. Suite 600 Dayton, OH 45402

937.222.7902

Make the Most of Your Membership!

We are here for you.

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Continuing Legal Education

Reduced Member Rates on All LIVE & Online Programs & CLE Passports Members SAVE Up to 30% on Programming

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DBA MEMBERSHIP ADVANTAGES Facility Rental

Conference and Office Space in Downtown Dayton, with seating up to 50 LAWYER REFERRAL SERVICE Discounted Pricing for Members!

Member 30% discount for live + online CLE. Access to business building LRS to grow your practice.

Over 100+ programs per year in various practice areas Each year LRS receives more than 12,000 calls Fastcase and trends in the law.

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CAREER AND PRACTICE Publications ADVANCEMENT Dayton Bar Briefs Magazine (monthly)

PUBLICATIONS AND COMMUNICATIONS

Complimentary with your membership, editions of Follow the DBA on Social Media Dayton Bar Briefs Magazine and the Dayton Legal Access 25 practice area sections, job postings, Pictorial Legal Directory (annual) @DaytonBar Directory sent right to your doorstep! Access to Online Young Lawyers Division, Development Printed Leadership & Online Versions of Print Accessible 24-7 @DaytonBarAssociation Legal Directory. News sent straight to your inbox via Program, DBA Mentor/Mentee programs more.Inbox DBA News Sent Straightand to Your Peek@theWeek - local court rules accessible 24-7.

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Build Your Client Base + Grow Your Practice COMMUNITY OUTREACH Connect With Clients A variety of programs and opportunities designed to assist to the greater Dayton community and fit your schedule and interests.

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Wills for Heroes & Wills for Vets DBA Volunteer Day @ The FoodBank Dayton Liberty Bell Award & Law Day Activities

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Chancery Club Luncheons (monthly) your inbox.

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www.daybar.org | 937.222.7902 May 2021Dayton Bar Briefs

15

Rising Star

Amanda Porterfield Esq. ES Gallon & Associates

W

ife, mother, attorney, trivia expert— these are just a few of the hats worn by this month’s Rising Star, Amanda Porterfield. While Amanda is not one to brag or boast about her accomplishments, her career trajectory thus far is certainly something to be proud of and worth celebrating.

Amanda knew from an early age that she wanted to be a lawyer. She never shied away from an argument and enjoyed helping others, making a career in the legal field a no-brainer.

As she matured, her desire to help others intensified, leading her to study Sociology at Indiana University Bloomington. She later enrolled at the University of Dayton School of Law where she earned her Juris Doctorate in 2012. While in law school, Amanda had her eyes set on family law and had every intention to practice as a public defender working primarily with children and young adults. Her internship at the Montgomery County Public Defender’s Office handling child support reduction cases enhanced her desire to pursue a career in public interest law. As she would soon learn upon graduating, staying open and flexible goes a long way in this profession.

Amanda began her career doing document review and later worked as a research attorney at LexisNexis which is what exposed her to labor and employment law, specifically workers compensation issues. While at LexisNexis, she worked extensively with attorneys in California helping them navigate the state’s workers compensation system. Because California’s system parallels Ohio’s system, Amanda was inadvertently becoming an expert in the field.

She enjoyed this work so much that she later 16

Dayton Bar Briefs May 2021

transitioned to working with Ohio’s Bureau of Workers Compensation as a claim service specialist. Amanda leaned on a trusted mentor, explaining her desire to want to practice full-time in this area, which led to her work at E.S. Gallon & Associates where she handled the bulk of the firm’s workers compensation cases and other related administrative cases.

Due to her growing expertise in this area, Amanda has recently transitioned roles and now serves as hearing officer for the Industrial Commission of Ohio where she works in a quasi-administrative law judge capacity hearing the very cases she has spent her career handling.

Amanda would not be in the role she is in today or have experienced these dynamic career shifts had she been rigid in her goals and vision for herself as a law student and new attorney. She encourages all students and new attorneys to remain open to all the different areas of law and to take courses that might not fit in their initial vision for themselves. Exposing yourself to new experiences and opportunities may reveal strengths and talents that you never knew you had and those talents may lead you in directions you otherwise would not have explored. Amanda also emphasized the importance of networking and nurturing professional relationships.

Many of her professional advancements would not have been possible had it not been for the assistance and guidance of her closest mentors and professional allies. Amanda is proof that no matter what stage you are in in your career, staying flexible and adaptable can open doors and reveal pathways to a promising future.

By Ebony D. Davenport Esq. University of Dayton School of Law Co-Chair YLD & Chair Editorial Board davenporte1@udayton.edu 937. 229.3555

937.222.7902

M ay DBA CLE *All CLE, Section Meetings Held Via Zoom

*Inquire about our NEW CLE Audit Pricing Available!

Thurs. May 20 | Noon-1pm | 1.0 Prof Conduct Hr

Video Replay: Discplinary Decision and the Sanctions Lawyer

Presenters, DBA Bar Counsel, John M. Ruffolo Esq. and Dave C. Greer Esq. cover Professionalism and Recent Advisory Opinions.

Agenda: Traveling The Respondent’s Weary Road

1. A touch of history

2. A condensed view of the process

3. Disciplinary case vs cases in court or arbitration

a. The Respondent’s perspective

b. The perspective of the Respondent’s lawyer

4. The art of the comeback

a. Roads of no return

b. Greetings for the prodigal son or daughter

John M. Ruffolo Esq. DBA Bar Counsel Ruffolo Stone & Stone

Dave C. Greer Esq. Partner Bieser Greer & Landis LLP

Tues. May 25 | Noon-1pm | 1.0 Prof Conduct Hr Part 3 of 3 Part DBA CLE Mindful Health & Wellness CLE Series!

[In]sight for Sore Eyes: Recharging "Mentally"

This final installment to the three part series will explore areas that should not be ignored. Struggling with separating work from home (literally!) and finding that coping mechanisms have either vanished or alternately, flooded over you? We can only imagine a stressful profession increases what society is already feeling.

COVID-19 turning into COVID-21 calls for self-reflection. We don’t want client relationships to suffer!

U pdates

to

O nline S elf -S tudy CLE Did you know?

Due to COVID-19, the Supreme Court of Ohio has waived the cap on self-study courses, including webinars.

All Judges, Magistrates and Attorneys Can Complete

ALL CLE Credits ONLINE

For more information, visit: supremecourt.ohio.gov/AttySvcs/CLE/ To register for Self-Study CLE, visit: daybar.ce21.com/

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May 2021Dayton Bar Briefs

17

Labor & Employment

Employment Litigators and Employers Welcome A Change to Ohio’s Employment Laws

O

n April 15, 2021, the Employment Law Uniformity Act (“ELUA” or the “Act”) took effect. The Act (H.B.352) provides simplification and clarification of Ohio’s anti-discrimination statute, Ohio Revised Code Section 4122. The ELUA harmonizes Ohio’s anti-discrimination law with its federal counterparts. Among its key reforms, the ELUA: • Institutes a two-year statute of limitations for all employment discrimination claims.

• Requires individuals to file an administrative charge of discrimination with the Ohio Civil Rights Commission (OCRC) as prerequisite to filing a discrimination lawsuit in court.

• Eliminates personal liability for supervisors and managers.

• Affords an affirmative defense to certain harassment claims to employers who can show that they took reasonable and appropriate action to prevent and properly correct the sexually harassing behavior and that the claimant unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer.

• Unifies the filing of age discrimination claims to the same procedures and remedies for all other protected classes.

There had been several prior attempts to fix the perceived errors in Ohio’s anti-discrimination laws, but all had succumbed to a legislative demise. The changes in the ELUA have been in the making for over 20 years.

Previously, Ohio’s anti-discrimination legal framework was often confusing and far-reaching. The previous law did not have any filing prerequisites with the OCRC, the state’s civil rights agency.

Claims against employers could be made for up to six years after the discriminatory action took place, which was the longest statute of limitations of any state in the country. The previous law also contained four different ways for employees to file age discrimination claims, each with different remedies and filing deadlines. Managers 18

Dayton Bar Briefs May 2021

By Gretchen M. Treherne Esq. Jackson Lewis, P.C. Co-Chair Labor & Employment Gretchen.Treherne@jacksonlewis.com 513.898.0050 and supervisors could also be he held personally liable for statutory discrimination under the previous law. Moreover, no affirmative defense for an employer’s good faith efforts to stop workplace harassment was available under the law. The ELUA changes all of this.

Although the ELUA reduces the statute of limitations from six years to two years, it also increases the time to file a charge of discrimination with the OCRC from 180 days to two years. The new law mirrors federal requirements in which an employee must exhaust administrative remedies by first filing a discrimination chare with the OCRC before filing a civil lawsuit in state court. The statute of limitations to file a civil claim will be tolled while the claim is investigated by the OCRC. If a claimant dual files their charge with the U.S. Equal Employment Opportunity Commission (EEOC) and obtains a right to sue notice from the EEOC or if a claimant pursues solely injunctive relief, they will be able to bypass the OCRC. New procedures at the OCRC allow a charging party to request an immediate right to sue notice if a charge has been pending for at least 60 days. The ELUA also encourages the early resolution of charges before the OCRC. Parties may elect to mediate the charge at the OCRC, with the hope of avoiding litigation. Although the OCRC’s mediation process has been in place for a while, the ELUA prioritizes conciliation for all charges, allowing for more efficient resolution of claims.

Under the ELUA, supervisors, managers, and co-workers have greater protection from discrimination liability. This change should allow members of management to exercise reasonable business judgment regarding employee discipline and termination without the threat of being sued. While they can no longer be held personally liable for the alleged employment discrimination when they are acting in the interest of an employer, there is an exception if the supervisor or manager is also the employer. Additionally, the ELUA does not continued on page 19

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protect supervisors and managers from being found personally liable if it is determined that the individual acted outside the scope of their employment, retaliated against the plaintiff, or engaged in discriminatory practices.

Moreover, the ELUA does not change the concept of vicarious liability under Ohio law; thus employers can still be found liable for the unlawful conduct of a supervisor.

The ELUA encourages employers to enforce robust anti-discrimination policies and ensure that employees are aware of and understand such policies. To assert the affirmative defense to harassment claims under the ELUA, employers must prove all of the following: (1) that it had an effective harassment policy; (2) that properly educated employees about the policy and complaint procedures; (3) that it exercised reasonable care to prevent and promptly correct the harassing behavior; and (4) that the complainant failed to take advantage of any preventative or corrective opportunities.

Thomas Berry *Irvin G. Bieser Jr. *Asher Bogin *Glen Bower Gwendolyn R. Bowers *Ray A. Cox *Larry J Denny *Edward James Duffy Jr.

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This is consistent with the “Faragher- Ellerth” defense available under federal law. An exception to the defense is if the complainant can prove that taking preventative or corrective action would have failed or would have been futile. The affirmative defense also cannot be used if an employer takes an adverse, tangible employment action against the complaining employee (such as a demotion, termination, or failure to hire or promote) arising out of the alleged harassment.

The ELUA officially recognizes discrimination claims as tort actions. Accordingly, such claims are subject to the damage caps specific under Ohio tort law. This means that a plaintiff generally may not recover more than $250,000 or three times their economic losses, up to $350,000 in noneconomic damages (such as emotional distress), and may not recover more than two times compensatory damages as punitive damages. Alternatively, if the employer is a “small employer” of 100 or fewer employees, a plaintiff may recover up to

Douglas Anthony Fannin *Patrick Flanagan *Carmine M. Garofalo James Geisenfeld *Robert J. Hadley Dennis M. Hanaghan *Louis I. Hoffman *Richard M. Hunt

LABOR & EMPLOYMENT: Employment Litigators and Employers Welcome A Change to Ohio's Employment Laws continued from page 18

10 percent of the employer’s net worth, up to $350,000, in punitive damages. An employment plaintiff may still recover economic damages such as back pay and attorneys’ fees.

Employees have the right to be free from workplace discrimination. The ELUA attempts to strike an appropriate balance between employee rights and employer obligations. The clarity and uniformity provided by the ELUA should equally benefit employees and employers. PLEASE NOTE: This article is for informational purposes and is not intended to constitute legal advice.

Magistrate Randal Knight *Honorable John S. Pickrel Donald Rapp *Shearl J. Roberts Robert E. Signom ll Chris Van Schaik *indicates DBA Membership

May 2021Dayton Bar Briefs

19

The Strange Condition: Knowledge Without Experience I

had been suffering from near-crippling self-doubt since entering the legal profession in early 2019 and was struggling to understand the origin of my lingering malaise when I was struck by a statement made by Bumble CEO, Whitney Wolfe Herd, while watching Gayle King interview the CEO recently on CBS This Morning.1 After dealing with personal and professional setbacks in 2014, Wolfe Herd stated that she had lost all of her confidence, but what she realized was “you can lose confidence, but you can never kill ambition”. Wolfe Herd turned her pain into something purposeful and created Bumble.2 Until I became an attorney, I had always been a confident person.

However, suddenly thrust into the ultra-professional environment of the practice of law, working with people who were years, even decades into their careers and law practices, who had intimidating resumes, who articulated every sentence perfectly, were never flustered by anything, were so perfectly polished, I was soon wracked with self-doubt.

It was a slow leak of my essence, like a balloon losing air over time. I no longer recognized myself. Instead of the confident person I once was, I now often struggled to find the right words when explaining something to colleagues, I was anxiety-ridden, and paralyzed with fear to make a mistake.

The statement made by Wolfe Herd struck me in the right way on the right day at the right time. It was the medicine I needed; hearing her say that “you can lose confidence, but you can never kill ambition”, resonated with me so deeply it shifted my perspective. Wolfe Herd was right: I may have lost my self-confidence, but my ambition was ever present, pressing me to overcome and succeed.

By Sabra L. Tomb Esq. Leadership Development Class Air Force Research Laboratory sabratomb@hotmail.com | 937.225.3654 The shift in perspective was this: knowledge does not equal competence. Competence is built on the foundation of experience.

The strange condition I was suffering from is that I had a head full of knowledge with little legal experience. I was not broken; there was nothing wrong with me. My lack of experience was presenting as a lack of confidence, but I was letting my lack of experience get to me and that was getting in the way of positive professional development.

I was under the misconception that attorneys have all the answers immediately after passing a bar exam and there was something wrong with me because I did not have all the answers at the tip of my tongue for every client, for every issue, every day. Knowledge is important, but in the practice of law, the experience and wisdom that is only bestowed upon us over time may be even more important than the legal education we earn before we practice.

Although I have not turned my pain into something purposeful in the same way Wolfe Herd did, hearing her words triggered the realignment I needed, putting me back on the path of finding my confidence again. Thankfully, I am slowly feeling like my old self again which is a success.

Tips to Overcome Symptoms Associated with the Strange Condition: 1) Only allow those who have earned it to speak into your life.

Not everyone in your life deserves the same energy or equal weight. It is easy to allow others, especially colleagues or peers, people we typically spend quite a bit of time with, to influence how we feel about ourselves. This can be dangerous territory for your confidence and well-being, especially as a newer attorney.

Do not let others’ biases and life experiences hold you hostage or have unearned sway over your self-confidence. This was a hard lesson for me to learn. It is my natural tendency to take everything personally, but understanding that for the most part, what people say anddo has nothing to do with me and everything to do with them set me free.

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Dayton Bar Briefs May 2021

2) Spend time doing something you are already good at or enjoy.

Doing something you know you are good at will boost your self-confidence, which will carry over into your career. I enjoy physical exercise and have worked out for nearly 25 years. During the last year, I started carving out more time to work out. Getting back into a consistent exercise routine has increased my overall well-being. I sleep and manage stress better, have more energy, and when I am feeling overwhelmed, exercise gives me the mental and physical boost I need to maintain a positive state of mind. continued on page 21

ENDNOTES: “Bumble Takes Flight.” CBS This Morning.

CBS, February 11, 2021. Television.

2 At 31, Whitney Wolfe Herd became the youngest self-made female billionaire after taking Bumble public in February 2021.

She is worth an estimated $1.5 billion.

Forbes. https://www.forbes.com/profile/ whitney-wolfe-herd/?sh=22a556703147.

Accessed 24 March 2021.

1

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LEADERSHIP DEVELOPMENT: The Strange Condition: Knowledge Without Experience continued from page 20 3) Gain knowledge and experience in your areas of deficiencies.

The knowledge you possess may be in the wrong area or not enough for your current job and clients. Identify your weaknesses, create an action plan, and execute. Gaining strength in your professional weak areas will encourage you, build your confidence, and develop you as an attorney.

After my recent epiphany thanks to CBS This Morning’s interview with Whitney Wolfe Herd, I realized part of the reason I was feeling discouraged is that I did not know and could not speak the federal government acquisition language.

Although I am not an acquisition attorney, nor am I required to be in my current position, many of the issues our office handles are tangentiality related to acquisition law. Bottom line: my lack of knowledge and understanding in acquisition, fiscal law, and contracting was negatively affecting my ability to interact with my clients and provide them the best advice possible. Once I realized this lack of knowledge and understanding was a deficiency, I immediately discussed this with my boss. He and I came up with a plan to address the deficiency. I enrolled in an Acquiring Emerging Technologies Class for government attorneys, which turned out to be exactly what I needed to gain a deeper understanding of many of the issues my clients deal with on a day-to-day basis.

Experience makes the master practitioner, but knowledge is the foundation of the practice.

Barb Morsa E-RYT500, YACEP

Indigo Yoga

A new daybar.org coming soon!

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May 2021Dayton Bar Briefs

21

From the Judges Desk

Up in Smoke

By The Honorable Richard S. Skelton Montgomery County Common Pleas Ct richard.skelton@montcourt.oh.gov 937. 225.4368

F

or those of you who find the content of this article hard to believe, trust me, this is not an April Fool. While I know it may be difficult for many of my colleagues to believe, I did not spend most of my youth in Church. And unlike a certain former President, I DID HAVE FRIENDS WHO INHALED. Shocking, I know.

I have previously opined that the criminalization of drugs has failed our society. We spend an unbelievable amount of money on programs and efforts that we have no clue as to their success. No statistical/empirical studies. One would think that a person of my inkling would suggest that we simply forget any enforcement/concern about marijuana use/ abuse. In fact, I still support legalization and I do not support criminalization of marijuana. I report to you, however, that I now believe we need to take steps to understand the current state of marijuana. Let me explain: In the 60’s/70’s/80’s good pot still had a relatively low THC content and was a relatively minor drug buzz for those who chose to smoke. I suggest in this article that the pot of that era is not the pot of the 21st Century. While I can no longer personally attest to the potency of the local ganja, I know many people who still smoke pot and have some former clients who have informed me regarding the strength of today’s pot. It is simply, I am told, a whole new ball game. Just the other day a long time friend told me he took one hit from today’s super pot, and was basically too high to effectively function for three straight hours!!

I am not aware of any conclusive studies that have accurately measured perception reaction times for those under the influence of a certain level of marijuana. In fact, there is no reliable method by which we can tell if a person is “under the influence”. We can tell if marijuana shows in a urine sample but without sophisticated lab work we cannot quantify or, more importantly, tell whether the person is under the influence at the time of the test.

In my former life, I litigated a marijuana OVI charge. The experts I retained opined that there is no method by which the government or anyone else can accurately state that a person is “under the influence”.

Yes, they can quantify an amount of THC in the body but have no idea when it was ingested. THC is stored in fat cells for as much as 30 days or longer. Simply illustrated, a person can smoke strong marijuana on Monday and still test over the so-called legal limit on Friday even if he had consumed zero pot from Monday to Friday. A person who did not smoke pot for several days would not be “under the influence”.

As stated, I write this article not to suggest a recriminalization of marijuana as I remain convinced that it has many valid and effective medicinal attributes. I write this article to stimulate discussion regarding the testing of marijuana so that we can know how to address persons with problems with high potency pot. I welcome any discussion/comment/ advice regarding this pot issue.

DISCLAIMER: The views expressed are those of the author and the article is not intended to express the views of the Dayton Bar Association, nor as support or endorsement of the viewpoints and opinions expressed in the article.

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Dayton Bar Briefs May 2021

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937.222.7902

DAYTON Bar Association

HERBERT M. EIKENBARY

Trust

upcoming Chancery Club Luncheons The Last Luncheon Until Fall 2021!

What is The Eikenbary Trust?

The late Herbert M. Eikenbary granted the bulk of his estate to fund Grants and Loans to lawyers under the age of 35 who practice/reside in Montgomery County. These Grants and Loans are to aid young, deserving lawyers who are in need of financial assistance.

Individual loans, are available up to $6,000 at 4% interest, while grants up to $4,000 are also available.

To Apply: Jennifer Otchy, DBA Chief Executive Officer Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129 jotchy@daybar.org | 937.222.7902 | www.daybar.org

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Over the past year, the Public & Member Services Section of the DBA has worked tirelessly to bring you awesome virtual Chancery Club events, speakers & content.

Grab lunch from your kitchen, or take a moment in your office to network and catch up with one another at the final Chancery Event of the 2020-2021 Season!

Vist the DBA website for details regarding the

May Chancery Event

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May 2021Dayton Bar Briefs

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M embers

on the

M ove & C lassifieds

The Honorable Michael J. Newman, a United States Magistrate Judge for the Southern District of Ohio, was recently elevated and sworn in as a United States District Judge for the same court following his Senate confirNEWMAN mation. For many years, Judge Newman has devoted himself to meeting with young people to explain the workings of the Federal Courts and Third Branch - an effort he began while national president of the Federal Bar Association. He now chairs the Southern District’s Civics Committee and co-chairs the Civics Committee for the Sixth U.S. Circuit Court of Appeals. This past fall, Judge Newman was honored to receive the Ohio State Bar Foundation’s highest award, the Ritter Award, “for a lifetime of service…in attaining and promoting the highest standards of professionalism, integrity and ethics in the practice of law while assisting other attorneys, the courts and the public to envision and cause changes which improve the justice system in Ohio.”

If you are a member of the DBA and you’ve moved, been promoted, hired an associate, taken on a partner, received an award, or have other news to share, we’d like to hear from you!

• News of CLE presentations & political announcements are not accepted • Printed at no cost • Must be submitted via email and are subject to editing • Printed as space is available Contact Shayla to submit your announcement or ad: publications@daybar.org | 937.222.7902

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Dayton Bar Briefs May 2021

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• Classified ads are accepted each month, September through June • Copy and payment must be received by the 1st day of the month preceding the month of publication • Bar Briefs Editorial Board reserves the right to refuse any ad • Classified ads of greater length are allowed • Members: $20 per 25 words | NonMembers: $30 per 25 words • Additional $5 for DBA reply box • Submit your ad to Shayla Eggleton, DBA Communications Mgr: publications@daybar.org

May Classifieds LOCAL COURT RULES

Dayton Municipal Court has proposed changes to the Local Court Rules.

Please visit Dayton Municipal Court: daytonmunicipalcourt.org for notice of and an opportunity to view and comment on proposed local court rules.

MEDIATION/ARBITRATION Dennis J. Langer Retired Common Pleas Judge (937) 367-4776 LangerMediation.com

MEDIATION/ARBITRATION William H. Wolff Jr., LLC Retired Trial and Appellate Judge (937) 293-5295 (937) 572-3185 judgewolff@woh.rr.com

MEDIATIONS

Jeffrey A. Hazlett Esq. 5276 Burning Bush Lane Kettering, Ohio 45429-5842 (937) 689-3193 hazlettjeffrey@gmail.com nadn.org/jeffrey-hazlett

937.222.7902

L aw -R elated O rganizations Dayton Bar Foundation

Your Gift Will Help

STRENGTHEN

Our Foundation.

T

he Dayton Bar Foundation (DBF) is the charitable giving arm of the Greater Dayton Legal Community.

Your contribution will enable the DBF to continue to fulfill its mission of funding innovative local organizations in their quest to improve our community by promoting equal access to justice and respect for the law. In the past few years your contributions helped to fund grants to: - Access for Justice - Advocates For Basic Legal Equality (ABLE) - Catholic Social Services of the Miami Valley - Greater Dayton Volunteer Lawyers Project (GDVLP) - Law & Leadership Institute - Legal Aid of Western Ohio (LAWO) - Life Essentials Guardianship Program - Miami University Center Pre-Law Center - Wills for Heroes

DONATE online: daybar.org/foundation Make a donation now and help us make a difference through our programs.

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GLreater D aytonOV olunteer L awyers aw -R elated rganizations Greater Dayton Volunteer Lawyers Project

Providing Pro Bono Legal Services to Chapter 7 Clients During a Pandemic W

e are well into the beautiful spring we have had thus far, and I hope all of you are enjoying these days and feeling some relief from the stress and uncertainty we all encountered this past year.

For those of us who work in the legal profession we are accustomed to a day not going quite the way we planned, but a pandemic creates a whole new set of circumstances and challenges. Some of you had already prepared a survival plan to keep your law practices going in the event the “what if ” happened. The Greater Dayton Volunteer Lawyers Project (“GDVLP”) also has a plan for delivering services safely to clients who are lower income individuals who desperately need our services and at the same time protect our volunteers and staff. I would like to highlight the changes we have made here at the GDVLP over this past year for clients who want to file a Chapter 7 bankruptcy, so you can be assured GDVLP puts safety first.

I am responsible for assisting clients who are seeking Chapter 7 bankruptcy relief who reside in the counties of Champaign, Clark, Darke, Greene, Miami, Montgomery, and Preble. The clients are first screened to determine financial eligibility. For clients who qualify for our services, have provided the necessary paperwork, and complied with the Bankruptcy Court’s filing requirements such as credit counseling, I select four clients to put into a clinic and schedule them with a volunteer attorney. While attorneys and clients are still welcome to come to our offices for clinics (our office follows the recommended COVID safety precautions), we can and have been having clinics via Zoom. I 26

Dayton Bar Briefs May 2021

have found that many of our clients are very familiar with using technology, and if they are not, they are willing to learn. Most of the Chapter 7 bankruptcies the GDVLP handles are straightforward -- clients with no substantial assets such as a home or at times clients who are reaffirming a car loan or a mortgage. Whether the volunteer attorney is appearing in person or by Zoom, I prepare (and file) all of the paperwork (e.g., Petition, Certificate of Compliance, and Suggestion of Bankruptcy, if needed) and work with the attorney to find a mutually convenient date and time for the clinic. If the attorney is appearing by Zoom, I email the attorney a draft of the Petition at least a week before the scheduled clinic, so the attorney can review it before the client meeting. I also organize and send to the Trustee upon filing of the Petition the documents a Trustee requires. In a nutshell, my goal is that the attorney’s time is limited to legal advice to the client and attending the Meeting of Creditors.

You may wonder about the amount of time you need to commit to for a clinic. I allow 20 minutes for each client, and, of course, your attendance at the meeting of creditors.

For those reaffirming car loans or mortgages, there is the time involved in working with the lender on the reaffirmation agreements. As for the benefits of representing our clients, there is one CLE credit for six hours of pro bono work, coupons for Boston Stoker, and fulfilling your commitment to providing pro bono legal services.

The following quote from one of our volunteer attorneys, Elizabeth M. Chinault, validates GDVLP’s commitment to safety

and respect of a volunteer attorney’s time: "It has been my pleasure and honor to regularly volunteer for GDVLP in the bankruptcy clinics. Sharon, along with the rest of the team, are always incredibly organized and efficient, thereby ensuring that the time I spend with clients is seamless and productive. The level of knowledge and skill from the GDVLP staff means that the amount of time I am required to spend on a case is minimal, at best. I have also been very impressed with their ability to adapt and provide a safe and healthy environment during the Covid-19 pandemic for the clients and volunteer attorneys. I cannot say enough good things about my experiences with GDVLP over the past 12 years and would strongly encourage everyone to consider volunteering."

If you are interested in volunteering to take a bankruptcy clinic or have any questions, I would be happy to speak with you. I can be reached at sharon@gdvlp.org or (937) 461-3857, option 2.

Finally, I wanted to thank all of the volunteers who I called upon this past year to represent GDVLP’s Chapter 7 clients. Your time is always valued and appreciated.

By Sharon Igli Paralegal Greater Dayton Volunteer Lawyers Project sharon@gdvlp.org | 937.461.3857

937.222.7902

University of Dayton School of Law

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