Summer 2021 Dayton Bar Briefs Magazine

summer 2021

BarBriefs The Off icial Magazine of the DBA

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TRUSTEE'S MESSAGE So Where Do We Go From Here?

appellate court practice

from the judge's desk

Do You Have a Final Appealable Order

A Tribute to a Wonderful Profession

pg 4

pg 6

pg 16

SUMMER 2021 |

DAYTON Bar Briefs

BarBriefs DBA Board of Trustees 2021-2022

Merle F. Wilberding President

Caroline H. Gentry First Vice President

Anne P. Keeton Second Vice President

Hon. E. Gerald Parker Jr. Treasurer

Michael J. Jurek Secretary

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summer 2021

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Contents Columns:

4

So Where Do We Go From Here?

By The Honorable Gerald Parker | Montgomery Cty Common Pleas Ct Gen Div

TRUSTEE'S MESSAGE

16

JUDGE'S DESK

A Tribute to a Wonderful Profession, a Great Community and Great People

By The Honorable Michael Krumholtz | Montgomery Cty Common Pleas Ct Gen Div

Ebony D. Davenport Member–at–Large

James H. Greer Member–at–Large

Justine Z. Larsen Member–at–Large

Sean P. McCormick Member–at–Large

Fredric L. Young Immediate Past President

Features:

6

Appellate Practice Pointers - Do You Have a Final Appealable Order

By Jeffrey Sharkey Esq. | Partner, Faruki PLL

APPELLATE COURT

18

Meeting New Challenges Head On LEADERSHIP

By Adam Beiersdorfer Esq. | Beiersdorfer Law, LLC DEVELOPMENT

John M. Ruffolo, ex officio Bar Counsel

Jennifer Otchy, ex officio Chief Executive Officer

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 DBA office. The DAYTON BAR BRIEFS is published September through Summer.

Paid subscription: $30 / year Library of Congress ISSN #0415–0945 Jennifer Otchy Chief Executive Officer Shayla M. Eggleton Communications Manager Phone: 937.222.7902 www.daybar.org The contents expressed in the publication of DAYTON BAR BRIEFS do not reflect the official position of the DBA. 2 2

DAYTON DAYTONBar BarBriefs Briefs|| SUMMER SUMMER2021 2021

Departments:

10

DBA Membership Benefits *Don't let this be your last issue!

11

Continuing Legal Education Unlimited CLE Membership Save the Date: 29th Annual Bench Bar Conference on 11/5

14

Section Leadership & 2021-2022 Meeting Schedule

Also Inside:

19

LAW RELATED ORGANIZATIONS

20

LAWYER WELLNESS

23

CLASSIFIED ADS

23

ADVERTISER INDEX

Dayton Bar Foundation pg 22 Diversity & Inclusion Legal Roundtable pg 19 Greater Dayton Volunteer Lawyer Project pg 21 University of Dayton School of Law pg 23

OLAP: Feeling anxious? Recognize the signs and learn how to cope

By Scott Mote, Executive Director, OLAP

WWW.DAYBAR.ORG

2021-2022

DBA Annual Partners 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.

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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

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3

Column

Trustee's Message:

So Where Do We Go From Here?

By The Honorable Gerald Parker Montgomery County Common Pleas Ct Gen Div Gerald.Parker@montcourt.oh.gov

I

remember it like it was yesterday. It was one of my first major cases while working as a young Assistant Montgomery County Prosecutor. The charge was rape and defense counsel filed a motion to suppress the show-up identification. For purposes of the motion I had to subpoena the victim and have her testify which is obviously not ideal prior to trial. Nonetheless, I was more than prepared. I made sure I covered everything necessary to demonstrate that the show-up ID was far from suggestive. Defense counsel cross-examined my victim and, in my head, I was saying to myself, no harm done.

After the motion, defense counsel and I remained in the courtroom to chat. We spoke briefly about the case, but mostly it was a chance to get to know one another a little better. He had been practicing well over ten years at the time and told me his father was a judge. He inquired about my background, my thoughts on being a prosecutor and where I might see myself in the future. Then, this attorney did something that I have never forgotten. He gave me some positive feedback but also some constructive criticism. He pointed out to me that one of my questions, while technically suitable for this motion to suppress, could be damaging at trial if it elicited the wrong response from my victim. Truthfully, he was absolutely right, and if she had answered this question in a different way, might have been able to use it against her, potentially weakening my case.

The purpose in telling that story is to show the collegiality of the bar members in the greater Dayton/Miami Valley area.

While some attorneys might have taken offense to this, as a young attorney at the time, I appreciated the fact that a more experienced attorney, and my adversary in the moment, would take the time to provide insight on how I could become a better trial attorney. While the defense attorney shall remain nameless (Hint: his name rhymes with “Mick Shoenaris”), I am beyond grateful to him. He likely does not remember doing it, but the 4

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SUMMER 2021

point is that I still do almost fifteen years later. I am proud to know that I both practiced and preside in a place where for the most part, attorneys conduct themselves civilly. I assure you that cannot be said in many other parts of this state.

This brings me to my call to action to answer the title question above. Where do we go from here? For my last year serving as Treasurer of the Dayton Bar Association, I am going to make it a point to personally reach out to young attorneys and see how they are doing. More importantly, I am going to encourage the more experienced attorneys to do the same. Find out how their cases are going-do you have advice or words of encouragement to help them become better practitioners of the law? It does not take much time or effort. If you are a young attorney you might even get a free lunch out of it. After 2020, we have quite the catching up to do. It appears things are starting to open up and get back to normal (chill out, Delta variant).

What you are most certainly going to see this upcoming year from the DBA Board of Trustees is us meeting our members where they are. Programs and events such as Inn of Court, Bench Bar and Chancery Club are vital to our operation; however, they can be a bit intimidating, formal and downright stiff for many, especially our younger attorneys. Alternatively, having multiple gatherings at your local brewery can get a bit redundant and mundane. With that being said, be sure to follow our First Vice President, Catherine Gentry, who will continue efforts to address social justice issues. Also, be on the lookout for Second Vice President, Anne Keeton, and her efforts on ways to improve our mental and physical health as practitioners. The remaining members-at-large are dedicating this year to providing mentorship opportunities, diversifying our membership, and sharing advice and best practices to help all members of the bar improve as professionals. I am so excited for this upcoming year and where the DBA is headed.

2021-2022 DBA Board of Trustees Our Vision

We aspire to have all citizens of our community respect and understand the role of lawyers, the legal system, and the administration of justice.

Our Mission

The DBA furthers the administration of justice; enhances the public’s respect for the law; and promotes excellence and collegiality in the legal profession.

Diversity Statement

The DBA supports the full and equal access to and participation by individuals in the Association, the legal profession and in the justice system regardless of race,gender, ethnicity, national origin, religion, age, sexual orientation, gender identity, or disability. We are committed to the implementation of the terms and spirit of this Statement on Diversity and Inclusion.

Merle F. Wilberding

Caroline H. Gentry

Anne P. Keeton

President

First Vice President

Second Vice President

Phone: (937) 449-5772 wilberding@coollaw.com

Phone: (937) 449-6748 cgentry@porterwright.com

Michael J. Jurek Secretary

Hon. Gerald Parker Treasurer

Phone: (937) 222-2424 akeeton@ffalaw.com

Phone: (937) 225-4448 gerald.parker@montcourt.oh.gov

Ebony D. Davenport

James H. Greer

Justine Z. Larsen

Member-at-Large

Member-at-Large

Member-at-Large

Phone: (937) 339-0511 mjurek@dunganattorney.com

Phone: (937) 229-3555 davenporte1@udayton.edu

Phone: (937) 250-7779 jhg@biesergreer.com

Phone: (937) 250-7790 jzl@biesergreer.com

Sean P. McCormick

Fredric L. Young

John M. Ruffolo

Jennifer Otchy

Member-at-Large

Immediate Past President

ex officio Bar Counsel

ex officio Chief Executive Officer

Phone: (937) 443-6824 sean.mccormick@ thompsonhine.com

Phone: (937) 224-3333 flyoung@green-law.com

Phone: (937) 434-3556 ruffololawdayton@aol.com

Phone: (937) 222-1364 jotchy@daybar.org

SUMMER 2021 |

DAYTON Bar Briefs

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Feature

Appellate Practice Pointers:

Do You Have a Final Appeal Order

By Jeffrey S. Sharkey Esq. | Faruki PLL | jsharkey@ficlaw.com

A

landmine that ruins a surprising number of appeals is the final order doctrine. Whether an order is final and appealable is governed by R.C. 2505.02, and most of the time, it is pretty easy to determine whether a trial court's order is a final appealable order. But here are some recent cases that show that there can be surprises lurking in every appeal.

Nored v. Dayton City Schools | Second District, 2019-Ohio-1476 a. Plaintiff sued Dayton School District and XYZ Corporation as a placeholder for an unknown party. The trial court granted judgment on the pleadings to Dayton School District, and plaintiff appealed. b. The Second District held that there was not a final appealable order since the trial court's order did not resolve claims against XYZ Corporation. Parties have one year to serve fictitious defendants, and the court's opinion suggests that the result would have been different if that year had passed. c. Practice pointer: failing to account for all parties is a frequent final order mistake.

Jaballas v. Hasting Mutual Ins. | Second District, 2021-Ohio-737 a. Plaintiffs sued their insurer under an auto policy and umbrella policy. The complaint did not identify them as separate claims.

The insurer moved for summary judgment on the auto policy claim, but did not mention the umbrella policy. The trial court granted summary judgment to the insurer, and the entry included the Civ.R. 54(B) “no just cause for delay language.” b. The Second District held that the trial court's order was not final because it did not address claims under the umbrella policy.

The Second District further held that the trial court had abused its discretion by including the Civ.R. 54(B) language without any explanation as to why claims under the auto policy should be immediately appealable. c. Practice pointer: failing to account for all claims is a frequent final order mistake.

Onady v. Wright State Physicians, Inc. | Second District, 2018Ohio-3096 a. Trial court denied summary judgment to the defendant, and included "no just reason to delay" language from Civ.R. 54(B). b. The Court of Appeals held that a trial court's order still must satisfy R.C. 2505.02 to be appealable. The court held that denial of motion for summary judgment is not a final appealable order, even with no just reason to delay language. c. Practice pointer: in most cases, the denial of a motion will not be a final appealable order, even with the Civ.R. 54(B) language.

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Thomasson v. Thomasson | Supreme Court, 2018-Ohio-2417 a. A husband filed for divorce, and the trial court sua sponte appointed a guardian ad litem for the wife. b. The wife appealed, but court of appeals held that there was no final appealable order, which was consistent with precedent for the appointment of a guardian ad litem for minors. c. The Supreme Court reversed, and held that the decision was a final appealable order. The Court explained that caselaw holding that the order establishing a guardian ad litem for a minor was not a final appealable order was not applicable, since a different rule applied. d. Practice pointer: a trial court order is more likely to be considered appealable if the trial court's order is plainly improper.

Kellie Auto Sales v. Hernandez | Tenth District, 2020-Ohio-1516 a. After a bench trial, the trial court issued an entry that denied a motion to dismiss, and ordered the plaintiff to submit a proposed entry within one month. The trial court’s entry stated that it was NOT a final appealable order. The defendant nevertheless appealed. The trial court later issued an entry that awarded damages to the plaintiff, and stated that it was a final order. b. The Tenth District held that there was no appellate jurisdiction – easy. However, the court went on to hold that the appeal divested the “trial court from issuing further orders affecting matters at issue in the appeal.” The fact that “the appealed order was not a final appealable order does not retroactively sanction a trial court’s action on appealed matters during the pendency of the appeal.” The trial court's damages entry was thus “void.” c. Practice pointer: be careful litigating in the trial court after a notice of appeal has been filed, as there is a significant risk that any relief you obtain will be void, even if there is not a final appealable order.

"s

urprises lurking in every appeal."

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Mick v. Village of New Holland | Fourth District, 2020-Ohio-4475 a. The trial court concluded that the plaintiff was wrongfully terminated, and was entitled to reinstatement and back pay. The trial court said that the order was final and appealable. However, the trial court did not determine the amount of back pay. The defendant appealed. b. The plaintiff later filed a motion seeking to hold the defendant in contempt for not paying back pay. The trial court conducted a hearing on the amount of the back pay owed. c. The Fourth District held that an order that determines liability but defers on the issue of damages is not final. An exception exists if calculating damages is a “ministerial task similar to assessing costs.” d. Practice Pointer: the trial court does not determine whether its orders are final and appealable, and an order is not final and appealable if issues of damages remain to be determined.

The key takeaway here is that you need to be careful regarding whether a particular order is final and appealable, and the trial court does not decide whether its orders are final and appealable.

One final point that I would like to mention: we at the DBA Appellate Practice Section offer a moot court service to DBA members. The Second District has been kind enough to let us use its courtroom, and three or four of us from the Section have been acting as Judges. It is a good opportunity for you to practice arguing before attorneys who are likely to be much like your panel, i.e., have read the briefs but otherwise are not familiar with the facts or the law. If you have an upcoming appellate argument and would like a moot court session, please reach out to me.

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SUMMER 2021 |

DAYTON Bar Briefs

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Friday, June 4, 2021

Annual Meeting

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Thank You Annual Partners & Sponsors!

Hubert A. & Gladys C. Estabrook Charitable Trust administered by:

Fred & Cathy Young

Casper & Casper, LLC Daily Court Reporter Foos & Lentz, LLP

Mike Mobley Reporting A Veritext Company

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Ohio Bar Liability Insurance Co.

J. R. Zent & Associates, LLC

Photo credit Julie Noeth @Wallingphotography.net SUMMER 2021 |

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DBA Membership

A Message from Our President

" "D

uring a very challenging year, we have all been encouraged by how well the DBA adjusted and expanded its services,

thanks to our Immediate Past President, Fred Young, and to our CEO, Jennifer Otchy. We are looking forward to more personal engagement in the coming year, and we need you to be a part of it. The best is in front of us.

Come join us." ~Merle Wilberding

Coolidge Wall, Co. L.P.A. 2021-2022 DBA President

DBA MEMBERSHIP ADVANTAGES CLE

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Each year LRS receives more than 12,000 calls requesting a referral to local attorney.

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Complimentary with your membership, editions of Dayton Bar Briefs Magazine and the Dayton Legal Directory sent right to your doorstep, archived and accessible 24-7! Access to Online Legal Directory.

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DBA Continuing Legal Education

Upcoming DBA CLE Visit daybar.org/events to view our full calendar, event details, and to register!

August 2021 Thurs. August 19

11am-Noon

Zoom Live Webinar

Rules of Evidence 1.0 Gen Hrs

Speaker: Hon. Mary Kate Huffman, Judge, Mont Cty Common Pleas Ct

This CLE will explore four different aspects of the Rules of Evidence: 1. The recent substantial change to Evid. Rule 601,modifying the standard for the determination of the competence of any witness; 2. Consider Evid. Rule 404, particularly in light of the 2020 decision by the Ohio Supreme Court in State v. Hartman; 3. Analyze the often-confusing concept of judicial notice as contained in Evid. Rule 201; 4. Balancing the separation and sequestration of witnesses under Evid. Rule 615, with the court’s inherent authority to control the courtroom.

Fri. October 22

8:30am-11:30am

Live Seminar @ Sinclair Community College

Domestic Relations Seminar

2.75 CLE Hours (pending approval) • 8:30am-10:00am Session 1: Mitigating Compassion Fatigue Among Legal Professionals Speakers: Hon. Mary Kate Huffman, Judge Mont Cty Common Pleas Ct; Susan Wawrose, Adjunct Professor of Law, University of Dayton School of Law • 10:15am-11:30am Session 2: Domestic Relations Court Update Speaker: Hon. Timothy Wood, Judge, Mont Cty Domestic Relations Court

Thurs. October 28

September 2021 Tues. September 28

Live Seminar @ Sinclair Community College

Elder Law Institute

6.0 Gen Hrs (pending approval) Registration coming soon!

October 2021 Live Seminar @ TBA

Appellate Apointed Counsel Seminar 3.0 Gen Hrs (pending approval) Registration coming soon!

11:30am-1pm

Live Seminar @ Mont Cty Common Pleas Court Room 8

Technology in the Courtroom Today oday 1.5 PC Hrs

Speaker: Hon. Mary Wiseman, Judge, Mont Cty Common Pleas Ct

Technology is ever evolving, and if leveraged by lawyers can enhance their abilities to practice law. This seminar will explore technology available in the courtroom to help lawyers make their case effective. Hon. Mary Wiseman will provide an interactive overview of technology available in the courtroom for lawyers and discuss new technological opportunities in remote proceedings. Hon. Mary Wiseman will provide helpful insight from a judge’s perspective on how technology can help lawyers advocate for their clients in the courtroom.

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DAYTON Bar Briefs |

Live Seminar @ Sinclair Community College

Lincoln and the Law 1.5 Gen Hrs

Speaker: Hon. Dennis Langer (Ret.)

This 90-minute lecture will explore Abraham Lincoln’s 23 years practice as a trial lawyer, focusing on three important cases.

Hon. Dennis Langer will also discuss several constitutional issues with which Lincoln dealt as president.

November 2021

Fri. October 15

Wed. October 20

9am-10:30am

SUMMER 2021

Save the Date! Detailed Agenda Coming Soon.

Fri. November 5

8:30am-4pm

Live Seminar @ Sinclair Community College

29th Annual DBA Bench Bar Conference

Keynote Speaker: Linda Greenhouse, Clinical Lecturer in Law and Senior Research Scholar in Law at Yale Law School Linda Greenhouse covered the Supreme Court for The New York Times between 1978 and 2008 and writes a biweekly column on law.

Ms. Greenhouse has received several major journalism awards during her 40-year career at the Times, including the Pulitzer Prize (1998) and the Goldsmith Career Award for Excellence in Journalism from Harvard University’s Kennedy School (2004). In 2002, the American Political Science Association gave her its Carey McWilliams Award for “a major journalistic contribution to our understanding of politics.”

Ms. Greenhouse has authored several books, and her latest book will be released on November 9th and is entitled, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.

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DBA Sections

2021-2022 Section Leadership |

Admin

Meeting Dates & Times

Admin

Eikenbary Advisory Board Frank B. Williams III., Co-Chair

Eikenbary Advisory Board Frank B. Williams III., Co-Chair

Unauthorized Practice of Law & Fee Dispute Arbitration

Unauthorized Practice of Law & Fee Dispute Arbitration

John M. Ruffolo, Co-Chair

Advisory

John M. Ruffolo, Co-Chair

Service

Bar Exam and Qualifications 2021 Bench Bar Conference Diversity Issues

Paralegal

John (Jack) R. Hilgeman, Co-Chair

Caroline Gentry, Co-Chair

3rd Friday at 12pm

Harry G. Beyoglides Jr., Co-Chair

Dan Gentry, Co-Chair

Julie E. Zink, Co-Chair

4th Thursday at 12pm Sharalie E. Albanese, Chair

Hon. Gerald Parker, Co-Chair

Myla Cardona-Jones, Co-Chair

*Board Liaison: Fred Young

*Board Liaison: Caroline Gentry

Professional Ethics Christopher R. Conard, Co-Chair Adam R. Webber, Co-Chair Ronald J. Maurer, Co-Chair Karen D. Bradley, Co-Chair

Bar Briefs Editorial Board *Meets annually Zach White, Chair *Board Liaison(s): Merle Wilberding & Ebony Davenport

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September 17, 2021 October 15, 2021 November 19, 2021 January 21, 2022 February 18, 2022 March 18, 2022 April 22, 2022 May 20, 2022

September 23, 2021 October 28, 2021 November 18, 2021 January 27, 2022 February 24, 2022 March 24, 2022 April 28, 2022 May 26, 2022

Public Service & Congeniality Hon. Mary Kate Huffman, Chair

Substantive Appellate Court Practice

Criminal Law

Federal Practice

Real Property

4th Wednesday at 12pm

3rd Monday at 12pm

1st Thursday at 12pm

Terry W. Posey, Co-Chair

Thaddeus Hoffmeister, Chair

Daniel Gentry, Chair

Co-Chair(s) TBA

Jeffrey S. Sharkey, Co-Chair

(Co-Chair TBA)

*Board Liaison: James Greer

*Board Liaison: Anne P. Keeton

*Board Liaison: Hon. Gerald Parker

September 8, 2021 October 13, 2021 November 10, 2021 January 12, 2022 February 9, 2022 March 9, 2022 April 13, 2022 May 11, 2022

September 22, 2021 October 27, 2021 November 17, 2021 January 26, 2022 February 23, 2022 March 23, 2022 April 27, 2022 May 25, 2022

*Board Liaison: Merle Wilberding September 2, 2021 October 7, 2021 November 4, 2021 January 6, 2022 February 3, 2022 March 3, 2022 April 7, 2022 May 5, 2022

Civil Trial & ADR

Domestic Relations

Christopher C. Hollon, Co-Chair

Co-Chair(s) TBA

Misty Connors, Co-Chair

*Board Liaison: Michael Jurek September 9, 2021 October 14, 2021 November 9, 2021 (Tuesday) January 13, 2022 February 10, 2022 March 10, 2022 April 14, 2022 May 12, 2022

*Board Liaison: Hon. Gerald Parker

2nd Wednesday at 12pm

2nd Tuesday at 5pm Jade Smarda, Co-Chair *Board Liaison: Anne P. Keeton

September 14, 2021 October 12, 2021 November 9, 2021 January 11, 2022 February 8, 2022 March 8, 2022 April 12, 2022 May 10, 2022

Corporate Counsel

2nd Thursday at 12pm

Estate Planning, Trust & Probate Law 1st Wednesday at 4pm Edward M. Smith, Chair Kristina M. Rainer, Vice-Chair *Board Liaison: Justine Larsen

4th Thursday at 5pm

3rd Thursday at 12pm

Joshua R. Lounsbury, Co-Chair Jennifer M. Brill, Co-Chair

Juvenile Law

*Board Liaison: Fred Young

1st Monday at 4pm Serah Siemann, Co-Chair

September 16, 2021 October 21, 2021 November 18, 2021 January 20, 2022 February 17, 2022 March 17, 2022 April 21, 2022 May 19, 2022

September 13, 2021 October 4, 2021 November 1, 2021 January 10, 2022 February 7, 2022 March 7, 2022 April 4, 2022 May 2, 2022

Labor & Employment Law

Young Lawyers Division 1st Wednesday at 12 PM Steve D. Strain, Co- Chair Chandler Watson, Co-Chair

Quarterly 2 Tuesday at 12pm nd

*Board Liaison: Ebony Davenport

Jason P. Matthews, Co-Chair

Kristin Finch, Co-Chair

September 23, 2021 October 28, 2021 November 18, 2021 January 27, 2022 February 24, 2022 March 24, 2022 April 28, 2022 May 26, 2022

Workers’ Comp / Social Security

Gretchen M. Treherne, Co-Chair

Benjamin A. Watson, Co-Chair *Board Liaison: Sean McCormick

September 20, 2021 October 18, 2021 November 15, 2021 January 17, 2022 February 21, 2022 March 21, 2022 April 18, 2022 May 16, 2022

*Board Liaison: Caroline Gentry September 1, 2021 October 6, 2021 November 3, 2021 January 5, 2022 February 2, 2022 March 11, 2022 April 6, 2022 May 4, 2022

October 5, 2021 January 11, 2022 March 8, 2022 May 10, 2022

September 1, 2021 October 6, 2021 November 3, 2021 January 5, 2022 February 2, 2022 March 2, 2022 April 6, 2022 May 4, 2022

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Column

From the Judges Desk:

A Tribute to a Wonderful Profession, a Great Community and Great People

By The Honorable Michael W. Krumholtz Montgomery County Common Pleas Ct Gen Div Michael.Krumholtz@montcourt.oh.gov through success or failure, I learned a great deal.

I had the opportunity to “play the game” against some excellent adversaries who left me not only with some scars but also an abiding appreciation for the work ethic required to be a successful trial advocate.

Then the opportunity of a lifetime came. s I prepare for my imminent retirement After approximately three years, I left the Prosand a move to chase an inexhaustible ecutor's Office to join Bieser Greer & Landis three-year-old girl around Fort Collins, as an associate. I consider this to be my luckiest Colorado, I think to myself, what a lucky man professional moment. I was thrust into a world I am in so many respects. For the purposes of of outstanding lawyers and mentors, who by this article, I highlight my tremendous luck in their everyday example, trained and educated me being a lawyer in Dayton, Ohio and Montgomas a professional. They showed me that the pracery County. What a rich cauldron of excellent tice of law is a higher calling. Back at the time lawyers who more importantly are wonderful when civil trials were actually a frequent occurpeople. Older lawyers who take the time to asrence, I was initially given a number of insurance sist and advise younger lawyers. A judiciary who defense cases to litigate. Under the hands-on works not only cohesively but collegially, and is tutelage of Howard Krisher and Leo Krubs, I very committed to working with, and not at cross was trained how to do it the right way with the purposes to, the lawyers in their courts. interests of the client always paramount.

This lovefest began for me when I graduated My greatest opportunity to grow as a from law school in 1979. Lee Falke, the then trial lawyer was the amazing privilege Montgomery County Prosecuting Attorney, gave and incredibly exhilarating experime my first legal job as an assistant prosecutences in which I second-chaired ing attorney, more because of a long-standing Dave Greer. At a conference a friendship with my father than for any schocouple of years ago, I heard lastic achievement on my part. For a would-be an outstanding Toledo trial trial lawyer, it was the perfect beginning. The lawyer describe Dave as “the opportunity to learn the trial practice from very Dean of the trial practice experienced and very talented senior lawyers. in Ohio." How true. Dave, Thank you, Jim Burroughs, for your patience through his combination of and willingness to help a young and sometimes amazing intellect, incredible bewildered lawyer in any circumstance. work ethic, vast experience and The Prosecutor's Office was a petri dish for innate skill, is the best advocate I’ve growth in the trial practice, with so many trials ever seen in a courtroom. But he is and so many opportunities to grow. Whether

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also much more. He's a senior lawyer who gave me every chance in case after case to perform and grow in experience and confidence. In our first trial together, allowing me to do a part of the closing argument. In one instance, he actually told the client that I would be the lawyer to try their case rather than him. On so many occasions, promoting me.

A mentor not only through example, but in providing a young lawyer the opportunity to succeed or fail on his own. Thank you so much, Dave, for your mentorship and your friendship.

Also at Bieser Greer, I was able to learn about the practice of law and the absolute unwavering commitment to the interests of the client from Charlie Shook and Ted Shank. My education from two of the smartest and kindest people I've ever encountered, who always imbued their wisdom with good fellowship, is something I treasure.

To my comrades in arms who fought side by side with me in a number of battles and in a

number of trenches, John Haviland and Dave Williamson: there is a special relationship that one builds when they go through stressful career situations as a team. John and Dave always had my back, as I hope I always had theirs. Thanks guys, for your skill and your friendship.

To my friend Larry Gregor, also a comrade in a number of cases: what a wonderful teammate.

Larry and I tried a tax evasion case in Federal Court in Cincinnati over a three-and-a-halfweek period. Every day, Larry would pick me up at my home in Oakwood at 5:30 a.m., and we would journey through the obstacle course that is I-75 between Dayton and Cincinnati so we could arrive at court early to speak to our client and the other defense counsel in the case. Larry is another of those whom I consider a brother in arms. Thank you for all of those grand times even though we didn't consider them to be so hot at the time.

To Jamie Greer, who is the successor to the greatest of legacies at Bieser Greer. I so enjoy seeing you develop into the fine lawyer you are today and the way in which you carry the

legacy of the firm consistent with the approach of Charlie Shook, Ted Shank, your dad, and your grandfather. Best of luck.

In 2013, I became a Common Pleas Judge largely due to the wiles of my great friend and best adversary, Steve Dankof. Steve and I had a number of cases together as lawyers, all of which I think he won. But in addition to being a tremendous adversary, he became one of my best friends. His combination of passion and intelligence, and the fact that he too roots for the San Francisco Giants, have been great reasons for my affection.

To my colleague and friend, Judge Dick Skelton. I didn’t really know Dick until he joined the bench. Our time spent swapping stories, discussing cases and life, and laughing at each other’s expense has been an absolute pleasure. Dick has become a good friend and a very welcome backstop.

To all of my colleagues on the bench: you are simply the best. When I attend judicial functions around the state, I think to myself that we have a very special judicial landscape here in Montgomery County. The judges of the Common Pleas Court are truly the epitome of collegiality. We are “all for one and one for all” in the best sense of that expression. If someone needs help they have ten ready, willing and able partners to come to their assistance. In moments of great stress and tremendous confusion, I know I can simply go nextdoor, down or across the hallway, or to the third floor and speak with someone who has had a similar experience and who can give me guidance on the best way to handle the situation.

Thank you all so much.

To the Dayton Bar Association: I was so fortunate to join the Association as a young lawyer, to work on the various committees, to serve as Bar

Council, and then as the DBA President. Working with then-Executive Director Bill Wheeler and then-Vice President Christine Haaker was as enjoyable a professional experience as I've had.

As an active member of the Dayton Bar Association, I was overjoyed to see Jen Otchy’s selection as the Chief Executive Officer. As I came to know Jen and observed her work in organizing various DBA functions, I saw organizational ability and people skills that made me positive she was a worthy successor to Bill Wheeler. Jen, good luck in all of your efforts on behalf of the local bar.

To my staff – Tina, Val, and Emily: you are tremendous at keeping this court afloat and always working together as a team. You have informed me, indulged me and protected me to the point that I consider each of you as family.

I owe you a debt of gratitude that I can never repay. Godspeed.

So, now as I consider the things I have to do for retirement after the first of the year, and the things I have to do to move with my wife to Fort Collins sometime in March of next year, I smile when I consider the great, good fortune I've experienced as a Dayton, Ohio lawyer. To work with and against the people that I’ve met as a trial lawyer, and with the people I've met as a judge. And so, if you’re ever in Fort Collins, the Micro Brew Mecca of the world, and you fancy swapping stories about the Dayton legal community and the practice of law, and enjoying a beverage, feel free to give an old lawyer a call.

My right hand for so many years, Tina Reiter, will have my Colorado phone number. As a favor, please do not pass that number on to my numerous creditors. With much love and great thanks.

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Leadership Development:

Feature

Meeting New Challenges Head On

By Adam Beiersdorfer Esq. | Beiersdorfer Law, LLC | arbeiersdorfer@gmail.com

T

omorrow is a new day and one we must rise-up to meet. It seems like nearly every article written this year has focused on the giant elephant in the room [COVID] – and not surprisingly so as it has remained ever-present. For some readers they have dealt with the loss of family, friends, or neighbors, for others it may have been the sudden loss of their favorite restaurant, business, or employment and for others merely the constrictions of personal rights. The truth of the matter is the broader COVID impact has touched nearly every aspect of our lives, even for those who remained healthy, so of course we have had little else to talk about.

Personally, I remember a great feeling of angst when the lockdowns were announced. Though it was easy to jump to the worst-case medical scenarios, I often found myself worrying about the seemingly mundane – the social loss the lockdowns would bring. My children, like many here, lost their home away from home when schools were closed. So too for my wife when her workplace announced they were shuttering the office and going entirely remote moving forward – a decision still in force to this day. The social loss of the last year will be tallied and felt for some time to come.

The sudden tectonic shift of everything going remote created a tsunami of change for my family. Every room of our house felt occupied, with kitchen counters, dining room tables, office desks, and bedrooms all fair game for work and meetings – privacy virtually disappeared overnight. Changes rippled through the family roles as well, with my job suddenly feeling like a personal assistant to both of my children first, and a lawyer second. My days were spent making sure their classroom meetings were attended, their course work was completed and that they were fed morning, noon and night. Through it all, we managed their school, our work, and the family constantly being around each other.

Even though we were meeting these metrics, it is important to note we were merely surviving, not thriving.

We humans are social creatures and the deprivation of each other’s contact has caused significant effects privately as well as profession18

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ally. Thanks to technology, many of us were able to take advantage of virtual meetings, check-ins and happy hours to stay connected. These tools however served merely as temporary place-holders for in-person time – at least for myself, they were always inadequate. Learning to “shelve” relationships with family, friends and colleagues over the last year has taken its toll - a toll many could see play out in the growing discourse we saw, heard or read about in the news, on our social media accounts or during phone calls. In time, all things will pass and this too will pass. I believe we are finally turning a corner and our patience and perseverance have paved the way to a return to some normalcy. Vaccines are broadly available for anyone who wishes to receive them;

schools are planning for a new year without COVID; and in workplaces where it makes sense, employers are bringing their workforces back. Our social deprivation is coming to an end.

As I sit by my window, I hear a songbird singing away. It’s chirps and warbles are warm and inviting - a striking difference from its absence these many months. I know this song is meant for other birds, but today I can’t shake the feeling it is meant for all of us. The serenade serves as a reminder that seasons change, and with them the joys and struggles we must deal with. Today, the songbird is the herald of the world post COVID and I for one am ready to rise-up and meet the next challenge head on, I look forward to seeing you there.

HERBERT M. EIKENBARY

Trust

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

Law Related Organizations

Diversity, Equity & Inclusion Roundtable

Diversity, Equity & Inclusion Legal Roundtable Virtual Meeting – May 4, 2021 The May 4 virtual meeting of the Dayton Diversity, Equity & Inclusion Legal Roundtable was a robust session (see agenda below).

Please send suggestions for future topics, guest speakers, and initiatives that further our mission. Simply stated, our mission is to enhance diversity within the Dayton area legal community. Working together, the legal community will come to more closely reflect the composition of the greater Dayton community. For more information, please contact Wray Blattner, Wray.Blattner@ThompsonHine.com, or Jamar King, Jamar.King@ThompsonHine.com.

Meeting Agenda • •

Introduction (U.S. District Court Judge Michael Newman and Wray Blattner) Update on Primary Roundtable Initiatives • Mock interview program and diversity clerkship program (Jamar King); mentoring program (Zion Savory)

•

Other 2019 – 2020 Activities and Discussions (Wray Blattner) • Roundtable meeting hosts: Thompson Hine, Coolidge Wall, Wilmer Hale, and University of Dayton School of Law (UDSL); monthly virtual meetings of the ad hoc planning committee • Forging a strong relationship with UDSL • Black Law Student Association’s “Get Real” sessions • Dayton Bar Association’s Diversity Day • Discussions with Dayton Foundation (e.g., funding assistance; MVRPC’s Institute for Livable & Equitable Communities) • Mansfield Rule

•

University of Dayton School of Law (Dean Andrew Strauss and Professor Julie Zink) • Flyer Legal Promise

•

Dayton Bar Association (CEO Jennifer Otchy)

•

“Cashless Bail” (Honorable Steven K. Dankof, Montgomery County Common Pleas Court)

•

Future Legal Roundtable Actions (Shannon Martin) • Adoption of a diversity “pledge” and/or a local “Mansfield Rule” • Assist diverse attorneys – fifth-year and up • Partnerships between predominantly diverse firms and non-diverse firms • Best practices for recruiting diverse law students and lateral hire candidates • Development and implementation of a formal firm/office diversity program

•

What Can My Firm/Office Do? (Julius Carter) • Serve as a mentor; engage a diverse UDSL extern; hire a summer clerk through the diversity clerkship program • Participate in the next mock interview session • Support funding of the diversity clerkship program or other diversity initiatives • Host a Legal Roundtable event • Participate in Legal Roundtable meetings – give input and suggestions, lead a discussion, bring in a speaker. Make our Legal Roundtable a more effective vehicle for change.

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Law Related Organizations

LAWYER WELLNESS: Ohio Lawyers Assistance Program (OLAP)

Feeling anxious? Recognize the signs and learn how to cope

By Scott Mote Esq., Executive Director | OLAP | SMote@olap.org

A

t the beginning of the pandemic, in a short period of time, lawyers had to learn a new way to run their offices. We had to determine a way for employees to work from home, and had to determine who was an “essential” worker. We had to learn how to use Zoom efficiently. We had to schedule our work schedules and personal lives in ways we never had to before. Then, just as we were getting the hang of working in a different environment, the world started getting back to “normal.”

Now, we (and many other workers around the globe) are returning to work, which is causing some of us to have anxiety. The first step in coping with anxiety is to recognize and understand it. Then you can learn ways to cope with it.

Recognize your anxiety

Do you recognize how you react when you are anxious? If so, you have conquered the first step to managing your anxiety. Anxiety is how your body reacts to the threat of danger: upset stomach, headache, sweating, butterflies in your stomach, shallow breathing, tightness in your chest, restlessness, feeling a general sense of doom. For example, when you think about returning to work and you are anxious or stressed about it, you might notice that your heart starts beating faster, your palms begin to sweat, and/or you tell yourself that you cannot go back to the office.

Once you have identified how your body reacts to anxiety, you can learn ways to control it. If you notice that you react to stress by clenching your jaw and your breath becomes labored, you can learn to relax or practice deep breathing exercises when you notice these things happening in your body.

If environmental triggers, such as other people, social media, or the news, cause your anxiety, you can learn how to control these as well. If you become anxious when you read the news, recognize it and then make a plan of how much time you will spend reading the news a day. Better yet, eliminate it from your life. Remember that anxiety is your reaction to something, and it’s not a part of your personality that you cannot change.

Communicate

Now that you know the signs and symptoms of anxiety, talk about it! You are not the only one who might be afraid to go back to the office after the pandemic. Many other people have similar fears about it. It is important to talk to friends, family, co-workers, and/or a therapist about your anxiety.

It is also important to set boundaries 20

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with your co-workers, friends and family.

Let them know what you are comfortable with doing at the office. If you are still afraid of getting the virus, know that your feelings are not about who is right and who is wrong about the virus. It is your personal choice, and you are allowed to choose. Be prepared for those who might push back at your decision to wear a mask, maintain social distance or get the vaccine. You might want to develop a civil response, such as “You can never be too safe.”

Stay in the present

Living in the present, or mindfulness, is not just a popular phrase. It’s an evidence-backed lifestyle that psychologists recommend for those struggling with anxiety. Being in the present moment, or the “here and now,” means that you are aware and mindful of what is happening at this very moment. You are not distracted by events from the past and you are not worrying about the future. You are centered in the here and now. All of your attention is focused on the present moment.

Be prepared

Simple habits, such as picking out your clothes the night before, packing your briefcase in advance and packing your own lunch, can help you feel more in control and less anxious. Make sure you give yourself enough time in the morning so you do not feel rushed to get out the door, which can contribute to anxiety.

Be positive

Remember why you wanted to be a lawyer and think about all of the ways you have helped other people. Think about why you love being a lawyer.

Have something to look forward to

Planning a long weekend, a night out or just a quiet night in? That is something you

can look forward to when work gets hectic, or when you start stressing about going back to the office. You can also look forward to listening to your audiobook on the commute to or from the office, walking your dog when you get home, going to your child’s baseball game, having dinner with your family. We all have so many things to look forward to.

Help others

If you manage the staff, clearly communicate the back-to-work plan to all employees in your office. Employees will feel better if they know that you have established clear guidelines and you are willing to recognize their concerns. Set aside time to talk to your staff and let them know how you can help them return to work in a positive way.

It’s ok to ask for help

When your anxiety becomes so extreme that it is keeping you from your responsibilities and interrupting your normal activities, you should seek help. It’s ok to ask for help!

You would ask your doctor for help if you had chest pains, right? Asking for help about anxiety is the same as asking for help for any other ailment. Whether it is through deep breathing exercises, mindfulness, talk therapy or medication, you can recover from anxiety. You just need to recognize it, understand it and talk about it.

The Ohio Lawyers Assistance Program is another way to ask for help. If you are unhappy, depressed, suffering from substance use disorder, burnout, or stress, and you believe it is affecting your life, OLAP can provide CONFIDENTIAL help. For more information, go to ohiolap.org or call (800) 348-4343 or (614) 586-0621.

OLAP has saved lives, careers, marriages and families. All inquiries are confidential.

(800) 348-4343 / ohiolap.org

Law Related Organizations

Greater Dayton Volunteer Lawyers Project

“Can you hear me?”

“Can you see my screen?”

“Janet, we can’t hear you – you’re on mute.”

"Can we all mute?

Someone’s dog is barking” “Awwww! What a cute cat/baby/ wall painting/virtual background!”

By Summer Hawks Esq. | WilmerHale

W

ho would have ever imagined 18 months ago that these would become some of the most repeated sentences in our client or business meetings?

We are all very aware of the changes COVID has wreaked upon our “normal” lives.

Some changes have been great, some not so great, and some just truly funny. Who knew so many would come to embrace the newscaster’s uniform of business attire on top and pajama pants on bottom?

Some of the biggest changes include the giant leap forward we’ve all taken with the technology in our jobs. Thank goodness this quarantine happened at a time when Zoom, FaceTime, WebEx, and Microsoft Teams enabled us to stay connected from afar.

These services have allowed us to put faces with what would have been anonymous voices in past years.

Within the sphere of the Volunteer Lawyers’ Project and the WilmerHale Legal Resource Center, that face to face connection has been invaluable for the community we serve. We assist low-income citizens of the Miami Valley area by providing information and assistance with completing forms for pro se filings in the areas of criminal record sealing, post-divorce family

law issues, and juvenile proceedings. These situations are often some of the most stressful, confusing, and emotionally charged events in people’s lives. Much of the time, our volunteers’ most important job is to give the person information that helps the process seem less arbitrary, less severe, and honestly - less scary. The reassuring smile, the dignity of looking someone in the eye as you shake their hand, the pat on the shoulder with a heartfelt wish of good luck and good fortune can do more in the long run than the forms we are helping them fill out.

The power of those small gestures would be completely lost if we were all just talking to disembodied voices.

Prior to the pandemic, we were able to meet with and assist people in person at twice monthly clinics. Since COVID, we’ve worked with the VLP to take our process 100% online. The virtual meetings, online notary, editable forms – all took time to setup, but the process has been improving since May of 2020 when we realized the period of quarantine would be much longer than initially thought. While handshakes aren’t the same in our virtual context, the pivot to remote meetings has also opened the door to reach people in need who previ-

ously may have had difficulties attending one of our sessions in person. Difficulty in arranging childcare, lack of transportation, inability to take time off work – all of these issues have impeded equal access to justice for the community we serve, and all of these issues can now be more easily overcome with the technology made better through this long time of social distancing.

As more and more people become vaccinated and the pandemic’s most restrictive requirements start to lift, we look forward to resuming our in-person clinics at some future date. But, we will take away the silver lining of a new reality where our services are not limited by physical location and inperson presence.

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Law Related Organizations

Your Gift Will Help

Dayton Bar Foundation

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.

Gifts may also be made in honor or in memory of family, friends or colleagues.

For more information about the Dayton Foundation:

Jennifer Otchy, DBF & DBA CEO jotchy@daybar.org | 937-222-7902

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Law Related Organizations | Classified Ads

University of Dayton School of Law

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Daily Court Reporter....................7 Eikenbary Trust...............................18 Ferneding Insurance......................7 LCNB Bank..............................................13 NFP/Rogers McNay.........................13 OBLIC...................................back cover R.L. Emmons & Associates...........7 SUMMER 2021 |

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109 N. Main St., Suite 600 Dayton, OH 45402–1129 ADDRESS SERVICE REQUESTED

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