May/June 2016

THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

May/June 2016

Cleveland attorney grants wishes

VOL. 30, NO. 3 www.ohiobar.org

Ohio courts apply case-within-a-case doctrine

Access to justice: A one-year report

rivacy breach Inattention to detail Failure to appear Poor results Client dissatisfaction Second-guessing Settle and sue Frivolous claims Fee dis ed-malpractice claims Malpractice claims Client complaints Grievances Disciplinary complaints Missed deadlines Non-client claims Negligent a fiduciary duty Potential claims Poor advice No knowledge of the law Incorrect application of the law Cyber breach Damages Libel Slander Def ght or trademark infringement Invasion of privacy Piracy or misappropriation of an idea Support Staff Errors Subpoenas Advertising plaints Claims filed in other states Lost/stolen client data Cyber extortion Cyber terrorism Damage to reputation Miscalc s to communicate Poor case selection Wrong advice Conflicts of interest Privacy breach Inattention to detail Fai oor results Client dissatisfaction Second-guessing Settle and sue Frivolous claims Fee dispute-turned-malp upport Staff Errors Subpoenas Advertising Errors Pro se complaints Claims filed in other states Poor clie ost client file Failure to supervise Lost/stolen client data Cyber extortion Cyber terrorism Negligent a fiduciary duty Potential claims Poor advice No knowledge of the law Incorrect application of the law ach Damages Libel Slander Defamation Copyright or trademark infringement Invasion of privac Se essing Settle and sue Frivolous claims Fee dispute-turned-malpractice claims Malpractice claims C nts Grievances Disciplinary complaints Missed deadlines Support Staff Errors Subpoenas Advertisin omplaints Claims filed in other states Poor client selection Lost client file Failure to supervise Lost/stol ber extortion Cyber terrorism of the law Incorrect app aw Cyber breach Dama Defamation Copyrigh infringement Failure e Poor case selec dvice Conflicts acy breach Inattention to detail ailure to appear Poor results Client d You may not cond-guessing Settle and sue Frivolous claims Client comp notice our work, Disciplinary complaints Missed deadlines Non-client acts Breaches of fiduciary duty Potential cla but we’re there vice No knowledge of the law Incorrect applic law Cyber breach Damages Libel Slanprotecting your mation Copyright or trademark infringement Invasion of privacy Piracy or misappropriation of reputation and idea Support Staff Errors Subpoenas Advertising Erpractice because Claims filed rors Pro se complaints in other states Lost/stolen client data Cyber extortion Cyber terrorism your reputation Potential claims Poor advice No knowledge of the law Incorrect application matters. Trust of the law Cyber breach Damages OBLIC, Ohio’s Libel Slandered deadpremier provider ent claims lines Non-cliNegligent acts Breaches of fiof professional duciary duty Potential claims Poor No knowledge of the tio liability insurance law Incorrect applicaber breach Damagesport Staff Errors Subpoenas Advertising Errors P aims filed in other states Poor client selection Lost in Ohio since 1979. client file Failure to supervise Lost/stolen client data Cyb er terrorism Damage to reputation Miscalculations Failures to communicate Poor case selection Wrong ad interest Privacy breach Inattention to detail Failure to appear Poor results Client dissatisfaction Second-gue e Frivolous claims Fee dispute-turned-malpractice claims Malpractice claims Client complaints Grievances mplaints Missed deadlines Non-client claims Negligent acts Breaches of fiduciary duty Potential claims Po owledge of the law Incorrect application of the law Cyber breach Damages Libel Slander Defamation Copy ark infringement Invasion of privacy Piracy or misappropriation of an idea Support Staff Errors Su ng Errors Pro se complaints Claim other states Lost/stolen clien tion Cyber terrorism Damag ation Frivolous claims Fee To learn more visit: Owned and endorsed d-malpractice claims Supp by the Ohio State Bar Association ubpoenas Advertising Erro www.oblic.com nts Claims filed in other sta t selection Lost client file Fa #ReputationMatters e Lost/stolen client data C ber terrorism Negligent acts Breaches of fiduciary duty Potential claims Poor advice No knowledge of the law Incorrect application of the law C mages Libel Slander Defamation Copyright or trademark infringement Invasion of privac Second-guessing Settle and sue Frivolous claims Fee d-malpractice claims Malpractice claims Client complaints Grievances Disciplinary complaints Missed deadlines reaches of fiduciary duty Pote advice No knowledge of the law Incorrect application of the law Cyber breach Damages Libel Slander Defamation Copyright or trademark infr www.ohiobar.org on of privacy Piracy or misappropriation of an idea Support Staff Errors Support Staff Errors Subpoenas Advertising Errors Pro se complaints C

Protecting Ohio lawyer reputations from more threats than they know

OhioLawyer

Vol. 30 No. 3 Departments 3 | Letters to the Editor Readers respond to recent articles

Features 8 | Permissible scope of an interrogatory

by Timothy J. Puin Without a uniform standard for the permissible scope of an interrogatory, reviewing Ohio and federal court decisions is valuable in addressing disputes cases.

qualifies as a “permanent and 12 | What substantial physical deformity” exception to Ohio’s cap on noneconomic losses?

by Mark M. Biggerman Ohio law does not explicitly define “permanent and substantial physical deformities,” yet interpretation of the phrase is essential as a potential exception to limits on noneconomic losses.

5 | In Brief 2 in 10 attorneys have drinking problems; New rules bring changes to lawyer status; Court adopts rules to increase pro hac vice attorney fees and add a voluntary fee; Local courts to adopt rules for juvenile shackling under new statewide rule 6 | President's Perspective Outgoing thoughts and updates 22 | Practice Tips Improvidently accepted: An overlooked appellate tool 24 | Counsel Comments Ohio Ethics Guide on File Retention 25 | Beyond the Courtroom Lawyer by day, wish-granter by night 26 | Member News Awards and community involvement of OSBA members

16 | Laws & safety tips for Ohio’s road runners

27 | Inside OSBA Save the date for the 2017 All-Ohio Legal Forum; Moot Court seeking competition judges; OSBA Leadership Academy graduates class of 2016

18 | Malpractice? Prove it!

28 | Foundation News New Fellows invest in impact

by Elizabeth Mote An infographic exploring the rules of the road for Ohio runners.

by David J. Oberly Ohio courts continue the trend of applying casewithin-a-case doctrine to reject legal malpractice cases.

30 | Books & Bytes Book reviews of January 1973: Watergate, Roe v. Wade, Vietnam, and the Month that Changed America Forever and Think Like an Entrepreneur, Act Like a CEO 32 | CLE Calendar May and June programs

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May/June 2016

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Letters to the Editor Unbundling legal services

Recently I read an article authored

by OSBA President John Holschuh titled “Unbundling legal services.” It saddened me greatly to see the head of our association openly advocating for the continued dumbing down of our already beleaguered profession.

As an old sole practitioner with an emphasis in real estate and landlord tenant matters, I am constantly contacted by pro se landlords. They often have initiated an eviction or a foreclosure action only to be confronted by a zealous legal aid attorney ready to beat them in court. The out-ofdate forms these landlords obtained from the internet don’t pass muster in most courtrooms. They want me to put the toothpaste back in the tube.

My standard answer is that I do not have the time to cure their foundational (or jurisdictional) problem, and I refer them to the bar association.

Your article ignores the hard financial realities all lawyers are now facing.

By attempting to “limit” what aspect we become involved in, we are further marginalizing what we do.

When it blows up under your theory, no agreement will “limit” the bar complaint engendered by a client who blames you for their mistakes.

That the OSBA President authors an article which has the practical effect of further cutting down on a lawyer’s billable time is shocking and will ultimately hurt the client and delay the positive outcome they desire.

Perhaps this issue needs to be rethought.

Laurence A. Lasky, Dayton

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Let the people ride

Bravo! The article “Let the People Ride” in the March/April 2016 issue makes all Ohio lawyers proud. Ellis Jacobs and ABLE proved once again that doing the right thing makes the right thing happen. There can be no tolerance for discrimination accomplished through suburban parochialism.

Particular praise goes to the editorial board and staff for prominently and courageously featuring this article. It is a direction needed which has been urged for many years. The appearance of this article signals a welcomed inclusiveness in this statewide organization.

Gary J. Leppla, Dayton

A day that changed the Supreme Court – and America I read with great interest Judge Forchione’s article about the Senate’s rejection of Judge Robert Bork’s nomination for the U.S. Supreme Court, which resulted in the confirmation of Justice Edward Kennedy and a change in the philosophical balance of the Court.

Judge Forchione noted that “the public sentiment in 1987 was starving for a Supreme Court willing to recognize important fundamental rights.”

However, Judge Bork was not rejected because he would not recognize such rights; he was rejected because he would neither create nor invent them from a Constitution that was silent about them, like the Court did with abortion and homosexual marriage.

Judge Forchione noted that Bork “would be unwilling to embrace the social change that the public demands today.” Left unstated was whether that should be the work of a judge, as opposed to elected legislators. If indeed, society is actually clamoring for such changes, it should be a relatively simple matter to actually

amend the Constitution in the way it was expressly designed to be amended, rather than doing an end run around the Constitution using judges who simply create law out of whole cloth.

Those on the left insist that the Constitution is a “living, breathing document,” which means that it is whatever five justices on the Supreme Court say it is. Conservatives believe that if that is the case, you don’t really have a Constitution. Judge Forchione noted that the day Judge Bork was defeated in the Senate, “America took a fundamental turn on a path that would reshape America.”

Whether that “reshaping” was good for America is debatable, but it certainly was not good for the judiciary.

Dale E. Creech, Jr., Dayton

The collateral effects of addiction

As an attorney in recovery, I read with interest recent articles about opiate abuse. Our organization is to be commended for addressing the issue. Like many of us, I have clients who deal daily with the collateral effects of addiction: loss of custody, unemployment, no driver’s license and a cycle of unpayable fines and costs.

Many give up trying and relapse.

Without hope, there is no recovery.

I know: when my license was suspended, I worked over six years toward reinstatement. I received help from the Ohio Lawyers’ Assistance Program (OLAP) and many inside and outside our profession. Sober since 2002 and restored to practice in 2008, I feel an obligation to help.

Here are some things to consider: First, loss of custody due to addiction should be temporary, not “permanent in nature.” Under current law, temporary custody may be terminated when a parent has significantly

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Ohio Lawyer

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corrected problems that led to loss of custody. People awarded custody are reluctant to return children and are skeptical of recovery. They were injured by the addict’s behavior.

Courts should consider these cases and favor temporary over legal custody.

Editor’s Note: The Ohio Lawyers Assistance Program is a private, non-profit organization dedicated to helping Ohio’s judges, attorneys and law students obtain treatment for substance abuse, chemical dependency, addiction and mental health issues.

For more information, visit the OLAP website at www.ohiolap.org.

As a result, the addict sees treatment as a right or a rescue and addiction becomes a profitable enterprise.

Addicts should be responsible for and should value their recovery. Cost of treatment should be repaid through service or employment and not a never-ending well. Fines and fees for people maintaining sobriety could be reduced, not as a free pass, but in recognition of addiction as a disease, not a crime. Public housing might also consider amnesty for recovery.

Second, treatment shouldn’t be a revolving door based on Medicaid coverage. I have seen defendants sent to residential treatment eight or more times, usually women for whom there are more beds. That more men are sent to a greater number of prisons may be These and issues previously a violation of equal protection. If we addressed are a start. As attorneys, bemoan men lacking parenting skills, we are in a unique position to turn we need facilities that allow men to the collateral effects of addiction care for their children and learn those from punitive to positive. child-care skills. Addiction favors neither gender, nor should the law. The Richard E. Wolfson, Portsmouth treatment industry, with no better rate of recidivism than other programs, is seen as anJIC-336_OhioLawyer_ arm of the drug courts.

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In Brief 2 in 10 attorneys have drinking problems

A new study conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs reveals substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.

The study reports that 21 percent of licensed, employed attorneys qualify as problem drinkers, 28 percent struggle with some level of depression and 19 percent demonstrate symptoms of anxiety.

The study found that younger attorneys in the first 10 years of practice exhibit the highest incidence of these problems.

The findings of the national study, the most comprehensive ever, represent a reversal of previous research that indicated rates of problem drinking increased as individuals spent more time in the legal profession. When focusing solely on the volume and frequency of alcohol consumed, more than 1 in 3 practicing attorneys are problem drinkers, the study found.

Attorneys compared to other professionals, including doctors, experience alcohol use disorders at a far higher rate than other professional populations. Mental health distress is also more significant. The study found that the most common barriers for attorneys to seek help were fear of others finding out and general concerns about confidentiality.

The collaborative research project marks the first nationwide attempt to capture such data about legal professionals.

Approximately 15,000 attorneys from 19 states and across all regions of the country participated in the study.

If you or a colleague you know needs help, contact the Ohio Lawyers Assistance Program (OLAP) at (800) 348-4343.

OLAP is a private, non-profit 501(c)(3) organization dedicated to helping Ohio’s judges, attorneys and law students obtain

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treatment for substance abuse, chemical dependency, addiction and mental health issues. Your confidentiality and the confidentiality of anyone about whom you express concerns will be protected. ​ —www.prnewswire.com

New rules bring changes to lawyer status

The Ohio Supreme Court announced new rules that will allow non-active attorneys to engage in limited legal practice to provide pro bono service.

The changes to Rule VI of the Rules for the Government of the Bar of Ohio include: •

Eliminating the requirement that an attorney be 65 years or older to qualify for emeritus status and instead only require that he or she have practiced for a minimum of 15 years;

•

Adding a biennial registration requirement and a $75 registration fee; and

•

Requiring an emeritus pro bono attorney, upon expiration or revocation of the attorney’s status, to file for either active or inactive attorney status.

The emeritus pro bono status will be available to an attorney admitted to practice law in Ohio and associated with a law school clinic, legal aid, approved legal services organization, public defender’s office or other legal services organization. The attorney will be required to have supervision from an active-status attorney to appear before a court, administrative board or agency.

Routine legal services won’t require supervision. The emeritus attorney won’t be allowed to receive compensation beyond reimbursement for expenses from the pro bono organization.

Court adopts rules to increase pro hac vice attorney fees and add a voluntary fee

Government of the Bar of Ohio that will increase attorney fees to help fund legal aid services. It becomes effective on July 1.

Pro hac vice registration fees, which out-of-state attorneys pay if they want to appear in an Ohio court proceeding, will increase from $150 to $300.

The new rules also implement a $50 voluntary “add-on” fee to the biennial attorney registration.

The $350 registration fee hasn’t been raised since 2007.

The Supreme Court will use the money collected from these two fees to help fund civil legal aid services for lowincome or disadvantaged Ohioans. The Court’s Task Force on Access to Justice recommended the fee increases in 2015.

Local courts to adopt rules for juvenile shackling under new statewide rule

An amendment to the Rules of Superintendence for the Courts of Ohio will mandate that local courts adopt rules to regulate the shackling of youth appearing in court proceedings. The Ohio Supreme Court adopted Sup. R. 5.01, which will take effect July 1.

Under Sup. R. 5.01, local restraint rules would create a presumption against shackling. However, local courts can restrain children on a case-by-case basis if a judge or magistrate finds on the record it is necessary because the juvenile’s behavior is a significant threat or the juvenile is at risk of fleeing. The judge or magistrate must also find that restraint is necessary because no less restrictive alternatives exist.

The Ohio Judicial College is working to embed research within the training it offers to juvenile court judges, magistrates and employees concerning best practices for handling juvenile offenders in court proceedings.

—courtnewsohio.gov

The Ohio Supreme Court adopted amendments to the Rules for the

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President’s Perspective Outgoing thoughts and updates One-year report on Access to Justice

With this being my last “President’s Perspective” article, I wanted to follow up on my first article from last year detailing Access to Justice and the OSBA. A lot has happened since then, and all for the better! Let me start by saying that I was very fortunate to be in the right spot at the right time a year and a half ago. It was when I was president-elect that Chief Justice Maureen O’Connor formed the task force on Access to Justice, chaired by Yvette McGee-Brown, who asked me to serve, along with Bill Weisenberg, Angie Lloyd, Dick Pogue, Justice French and others. A year ago the OSBA held the Summit on Access to Justice at the annual meeting resulting in a report I delivered to the Chief Justice. Since then, OSBA Executive Director Mary Augsburger and I have met on numerous occasions with the Chief Justice on ATJ. Now the results are coming through.

Increase funding for legal aid services

The tremendous drop in funding for legal aid, largely due to the virtual loss of interest on IOLTA accounts ($22.3 million in 2007 to $2.5 million in 2014), has resulted in the layoff of one-third of the legal aid lawyers in Ohio and the closing of four offices, while the demand has only risen.

The need for increased funding was the key recommendation in both the Supreme Court Task Force report and the OSBA Summit report. As a result,

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the Ohio Supreme Court this year increased attorney fees in two areas: Pro hac vice registration fees will increase from $150 to $300, with the additional $150 that out-ofstate attorneys pay being directed to civil legal aid services; and biennial attorney registration fees will now include a voluntary $50 add-on to support civil legal aid services.

It is anticipated that these two increases will generate somewhere between $500,000 to $700,000 annually for civil legal aid services. The funds will be collected and administered by the Supreme Court to provide additional funding for civil legal aid in Ohio. While certainly not solving all the legal aid problems in Ohio, it is a start, and thanks to the Ohio Supreme Court for all its work!

Legislative funding for legal aid services for veterans

Unlike other states, the Ohio legislature has never appropriated funds for civil legal aid services until now. House Bill 64, the budget bill, was signed into law by the governor on June 30, 2015, and provided $750,000 per year for two years beginning July 1, 2015, and ending June 30, 2017, to assist veterans who need legal services. I reached out to Angie Lloyd, Executive Director of the Ohio Legal Assistance Foundation (OLAF), to ask her how the program is going. “Rep. Kirk Schuring, Dist. 48, was particularly

interested in supporting legal aid services for veterans, so he spearheaded the effort to get the general appropriation passed in the biennium budget,” Lloyd said. “We awarded him our first annual Voice of Justice Award this past fall at Legal Aid Day on Oct. 13 in recognition of his work.

"As a result of the appropriation, we are able to report that Ohio has an active Veterans Legal Corps working around the state to handle low-income veterans’ issues with federal veterans benefits, housing, medical access and consumer issues. There is at least one Veterans’ Legal Corps advocate at each of our seven legal aid locations.

Equally important, though, is that by housing one at each of our locations, the full range of legal services and expertise is available across the state for our vulnerable veterans to address the legal issues with which they struggle.”

Again, another great step in providing legal services to those most in need, and may I say, who deserve it for their service to our country.

New emeritus pro bono attorney rule

Another recommendation of the Supreme Court Task Force was “The Supreme Court should explore adopting an ‘emeritus rule’ that would permit senior attorneys who are no longer actively engaged in the practice of law to provide pro bono legal services.” And indeed, the Supreme Court has followed through

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by amending Gov. Bar R. VI dealing with the registration of attorneys.

Under the new emeritus pro bono attorney rule, an attorney admitted to practice law in Ohio who is associated with a law school clinic, legal aid, approved legal services organization or public defender’s office may file for emeritus pro bono attorney status if he or she meets the following requirements: •

Is admitted to the practice of law in Ohio;

•

Has been engaged in the practice of law, as defined in Gov. Bar R. I, Section 9(B), for a minimum of 15 years;

•

Is in good standing with the Supreme Court;

•

Has not resigned from the practice of law in Ohio, resigned from the practice of law in Ohio with discipline pending, or permanently retired from the practice of law in Ohio;

•

•

Has not voluntarily or involuntarily relinquished the attorney’s license to practice law in another jurisdiction to avoid discipline or as a result of discipline imposed by a relevant authority; and Has not been disciplined for professional misconduct within the past 10 years or been disbarred by another jurisdiction.

The emeritus pro bono status allows the attorney to appear before any court or administrative board or agency on behalf of the organization, provided there is written consent from the client and the supervising attorney. The written consent is to be filed in the record and brought to the attention of the judge or presiding officer. Routine legal services do not require supervision and the attorney is not allowed to be compensated except for reimbursement of expenses from the legal services

organization. There is a $75 emeritus pro bono attorney registration fee and application and the attorney must stay current with CLE requirements.

By adopting these changes, it is anticipated that lawyers with as little as 15 years of experience will now volunteer their time to help those in need without having to fully register as an attorney and without having to obtain malpractice insurance. Senior lawyers, lawyers who have left the profession to raise a family or lawyers not otherwise engaged in the active practice of law, who want to do pro bono work can now become emeritus pro bono attorneys. This can be a winwin by allowing attorneys to continue in the profession while helping those in need of legal representation.

More work to be done

While we have made great strides to improve Ohio’s Access to Justice, much work remains. Several other recommendations of the Supreme Court Task Force include: •

Create a Supreme Court Access to Justice Director position;

•

Development of an Access to Justice impact statement;

•

Use technology, including the internet, to improve ATJ;

•

Create self-help centers for pro se litigants; and

•

Create standardized forms for use by pro se litigants.

The accomplishments that have been achieved thus far are due to the hard work of many, including the Chief Justice, the members of the Supreme Court Task Force, the folks at OLAF including Angie Lloyd and Jane Taylor, and the committed staff at the OSBA, including Bill Weisenberg and Mary Augsburger! Thanks to all.

Personal note

With this being my last President’s Perspective, I want to thank everyone for all they have done to help me during my term as President of the greatest bar association in the country: your Ohio State Bar Association! I cannot begin to tell you what an honor it has been to represent the OSBA and the great attorneys I have met across the state of Ohio. I must give special thanks to a few who have helped, and I apologize to those I do not mention but have been with me throughout my term. First, Mary Augsburger, the best executive director in the country! Not only is Mary on top of every issue facing the OSBA, but also she is proactive and does her job with a smile. And my dear friend Bill Weisenberg, who is the source of guidance and wisdom at the OSBA. His knowledge and leadership have been invaluable to me in dealing with issues facing the OSBA. And Marty Mohler, with whom I have had the pleasure of working with for the past two years. We have become close friends, and I look forward to continuing our relationship. And Ron Kopp, who takes over for me when my term is over and who is a fellow Miami Redhawk. I can assure everyone that the OSBA will be in excellent hands under Ron’s leadership, provided he doesn’t appoint me to any task forces.

And finally, to my wife Wendy, who has been with me every step of the way. I don’t know what else to say except I love you more than anything, and I couldn’t have done it without you. Thanks again to everyone.

Permissible scope of an interrogatory

by Timothy Puin

Without a uniform standard for the permissible scope of an interrogatory, reviewing Ohio and federal court decisions is valuable in addressing discovery disputes.

Forty-five years after the adoption of the Ohio Rules of Civil Procedure in 1970, courts addressing discovery disputes still have not enforced a uniform standard for the permissible scope of an interrogatory.1 Rule 33(B), Scope and use at trial, provides that “[i]nterrogatories may relate to any matters that can be inquired into under Civ. R. 26(B)” and are not “objectionable merely because an answer to the interrogatory involves an opinion, contention or legal conclusion.” Rule 33 does not, however, address whether an interrogatory may ask for the factual background of a claim or whether its scope is limited to narrower questions, such as the identity of witnesses, a

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description of documents relied on by the adversary, or a chronology of interactions between the parties.

A brief review of Ohio and federal court decisions discussing the permissible scope of an interrogatory may be helpful in addressing discovery disputes over perceived requests for a “narrative response.”

The one-inch rule

According to the Staff Note to Rule 33 (July 1, 2009, Amendment): Recognizing that computer word processors have replaced the typewriter, Rule 33 was amended in 2004 to delete the former “minimum one-inch

space” requirement in favor of a requirement that the party propounding interrogatories provide the responding party with an electronic copy of the interrogatories for use in preparing a new computer-generated document containing both the questions and the answers.

That is, prior to 2004, the propounding party was required to leave at least one inch of white space on the page between interrogatories to provide sufficient room for the responding party to type in the answer.2 One inch did not leave much room for detailed responses and objections, strongly suggesting that interrogatories

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were intended to be limited in scope.

Penn Central

This view was promulgated by Penn Central Transportation Co. v. Armco Steel Corp., 3 which was authored

by Judge Robert L. McBride4 of the Montgomery County Court of Common Pleas in 1971, shortly after adoption of the Ohio Rules.

Judge McBride opined: A direction or command to another party to set forth a picture or history with particulars or a narrative of events by words or drawings is not an interrogatory. … If an interrogatory commands the other party to spew out all the intricate details of a complicated situation, the limit of acceptable use of this form of discovery has been violated.

Two generations of lawyers have employed the standard objection to interrogatories— “Objection. Calls for a narrative response. Penn Central v. Armco Steel ”—and, indeed, Penn Central is persuasive authority.5 Judge McBride offered further guidance after joining the Ohio Court of Appeals for the Second District, in Turner v. Greenline Equip. Inc.,6 wherein he suggested interrogatories may be broader in scope than those calling for a “yes” or “no” response, although they still should be “susceptible to a categorical response:” It should be noted that adequate space was afforded plaintiff to answer the interrogatories in accordance with Civil R. 33(D).

Moreover, a continuation sheet was provided should plaintiff require additional space to answer. … Most of the interrogatories complained of are prefaced by the word “identify.” Such questions are susceptible to a categorical response and are, therefore, entirely proper.

Thus, Penn Central stands for the proposition that an interrogatory

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that calls for a “narrative” response is objectionable in its scope, while Judge McBride in Turner confirmed that interrogatories must call for a “categorical” response. The dictionary definition of “narrative” is something that is narrated, i.e., a story or account; and, the definition of “categorical” is something absolute and unqualified.7

Disagreement with Penn Central

If Penn Central had been uniformly adopted, it might be understood today that interrogatories basically call for “name, rank, and serial number.” However, litigants have pushed back against objections based on Penn Central, in part because of the expense of depositions.8 Ohio courts have resisted wholesale adoption of Penn Central, as early as 1983, in Stai v. The Kroger Co.9 In Stai, the defendants were asked to describe in two interrogatories exactly what a security guard employee saw or heard that created the suspicion that the plaintiff was a shoplifter.

The defendants objected, citing Penn Central. On appeal, the Ohio Court of Appeals for the Tenth District held: Although we would concur [with Judge McBride] that depositions are a more satisfactory form of discovery by which information of the nature sought here should be elicited, we are not prepared to say that questions of this nature are per se improper when posed by an interrogatory.10 Other cases disagreeing with Penn Central are Dauterman v.

Toledo Hospital,11 and Hudson v.

United Services Automobile Assoc.

Insurance Co.,12 citing Stai.

Even a decision from Judge McBride’s home court, the Montgomery County Court of Common Pleas, mildly dissented from the Penn Central view.13

Federal Court decisions

Given that Penn Central is still good law, although controversial, federal court decisions discussing the permissible scope of interrogatories are instructive. It is well-settled that Ohio courts may look to interpretations of the corresponding rule in the Federal Rules of Civil Procedure.14 The majority view about the scope of Fed. R. Civ. P. 33 appears to be more liberal than the view articulated in Penn Central.

Cases disfavoring a broad scope, and thus in the spirit of Penn Central, include Gregg v. Local 305 IBEW,15 Hendricks v. Mirabilis Ventures, Inc.,16 quoting Middle District Discovery handbook, and Williams v. Sprint/United Management Co.17 Cases favoring a broader scope include Smith v. Montgomery Cty. Sheriff ’s Office,18 citing Babcock Swine, Inc. v. Shelbco, Inc.,19 Laserdynamics, Inc. v. Asus Computer Int’l, 20 and Chodkowski v. Cuno Incorporated.21 A decision from the U.S. Bankruptcy Court for the Northern District of Ohio is helpful in noting that the Penn Central objection—“calls for a narrative response”—while “nowhere stated in the rules themselves” is “another way of objecting that an interrogatory is overbroad or unduly burdensome.”22 Along these lines, other federal courts have noted that the real issue is not whether an interrogatory calls for a narrative response, but whether it is extreme in its request.23 In Brassell, the U.S. District Court for the Southern District of Mississippi noted that overly expansive “blockbuster” interrogatories are improper, but an interrogatory calling for a lengthy narrative response may be proper if the need for the information outweighs the burden in producing it. “Moreover, the fact that the information could also be sought by way of a deposition is not grounds for refusing to answer an

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interrogatory, so long as the answer can be made without imposing an undue burden on the responsive party."24

Penn Central is still good law Penn Central, decided the year after adoption of the Ohio Rules of Civil Procedure, and authored by a noted jurist, is still good law; however, Ohio courts have dissented from what is perceived to be Penn Central’s overly restrictive view of the scope of interrogatories, and litigants have also expressed frustration. Parties seeking discovery can cite federal court decisions favoring a more expansive view. Federal cases are instructive in pointing out that the key issue is whether an interrogatory is objectionable because it is overbroad, burdensome or seeking to exceed the permissible number of interrogatories—not because it calls for a narrative response.

The day is past when a responding party rolled the original interrogatories, page by page, into a typewriter, and typed the responses into a one-inch space; thus, it is less compelling to argue today that a narrative response is uncalled for. Indeed, a narrative response may benefit both parties by narrowing the issues and possibly limiting or even avoiding depositions, consistent with the purpose of the Civil Rules in promoting efficient discovery.25 In light of these considerations, parties propounding interrogatories would be well-advised to include a clause in the instructions to the effect of, “these interrogatories do not call for an impermissible narrative response, but instead seek a brief but reasonably complete statement of the facts requested.” Conversely, parties objecting to interrogatories would be well-served to avoid the familiar, “calls for a narrative response,” and instead to object on the basis the interrogatory is overbroad, burdensome or in excess of the number permitted.

Decades ago, Penn Central took its place in the pantheon of classic

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discovery objections, along with “plaintiffs are on a fishing expedition” and “defendants are stonewalling.”

The decision will continue to resonate given the overlapping purposes of interrogatories and depositions. Until there is a less expensive way of taking depositions and greater risk for parties who essentially ignore interrogatories, plaintiffs will continue to challenge the view articulated in Penn Central.

Meanwhile, defendants will resist being unfairly locked into a factual narrative or a theory of the case before discovery and their own internal investigations are complete. The best possible solution would be an amendment to Rule 33 to clarify the permissible scope of interrogatories; absent that clarity, Penn Central will continue to be a controversial but necessary reference for litigators—and one of the most influential Court of Common Pleas decisions in Ohio jurisprudence.

Author bio

Timothy J. Puin, a 1995 cum laude graduate of Case Western Reserve University School of Law, is a sole practitioner in Hudson. He has contributed articles to the OSBA’s Law You Can Use and recently presented at a CLE on the Affordable Care Act’s employer mandate.

Endnotes E.g., Schwartz v. Maguire, 2009 WL 8706449 (Montgomery Cty. Com. Pl. 2009) (“This court attempted to consult the relevant authority to assist in resolving the latest conflict that exists between the parties and has, sadly, learned that there is an absolute dearth of authority on the subject of the appropriate extent of the scope of inquiry contained in an interrogatory”).

2 Early v. The Toledo Blade, 130 Ohio App.3d 302, 315 (6th Dist. 1998) (appellant’s counsel should have sought a remedy from the trial court for “the failure of the Blade to provide at least one inch of space for each answer”); Mills v. Mills, 1983 WL 4491, *2 (12th Dist.

1983) (“The trial court erred in failing to measure the space allowed by the appellant 1

for answer to the interrogatories”).

27 Ohio Misc. 76, 271 N.E.2d 877, 879 (Montgomery Cty. Com. Pl. 1971).

4 Judge McBride, who passed away in 1997 at age 97, was instrumental in the adoption of the Ohio Rules of Civil Procedure, the creation of the Ohio Judicial Conference, and the writing of Ohio’s original jury instructions.

Former Chief Justice Thomas J. Moyer noted, “He was recognized statewide as a judicial scholar.” www.supremecourt.ohio.gov/PIP/ news/2007 (last visited Dec. 22, 2015).

5 E.g., Schwartz, 2009 WL 8706449 (“The oft-cited case of Penn Central … authored by the late Judge McBride of this court, appears to provide the most cogent direction for this court’s determination of the latest Gordian knot that exists between the parties”); 36 Ohio Jur. 3d Discovery and Depositions §112 (“An interrogatory…does not contemplate an array of details or outlines of evidence, a function reserved for depositions. … It should be a narrow question that is capable of being answered by a categorical statement without a lengthy explanation such as can be explored on deposition”), citing Penn Central; Cully v. St. Augustine Manor, 1995 WL 237129, *14 (8th Dist. 1995) (“A review of appellant’s motion to compel reveals that appellant largely sought information which was irrelevant; i.e. … information from non-party witnesses in the form of interrogatories which were designed to take the place of depositions”), citing Penn Central.

6 1980 WL 352524, *6 (2nd Dist. 1980).

7 Merriam-Webster.com (last visited Dec. 22, 2015).

8 E.g., Mark B. Smith & Lori S. Blackford, “Penn Central v. Armco Steel: What’s So Wrong With A Narrative Response?,” Ohio Trial (Ohio Assoc. for Justice, 2010) (“Despite the fact that it resides among the Ohio Miscellaneous Reports, Penn Central has been allowed to frustrate Ohio civil discovery to an amazing degree”). The author respectfully acknowledges the work of Mr. Smith and Ms. Blackford as contributing to this analysis.

9 1983 WL 3593 (10th Dist. 1983).

10 Id., 1983 WL 3593 at *4. Again, in 1994, the Tenth District minimized the importance of Penn Central, in Bratka Interiors, Ltd. v.

The Homewood Corp., 1994 WL 85635, *2 (10th Dist. 1994) (referring to Penn Central as “a trial court decision from Montgomery County,” in rejecting the appellant’s objections to answering on the basis “that 3

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interrogatories are merely ‘simple questions’ and that appellees must take depositions if they wish to acquire more information”).

11 2010 WL 7096593 (Lucas Cty. Com. Pl. 2010) (“Dr. Dodd objected to these interrogatories on the basis that they require ‘a narrative answer that can be more properly obtained through other discovery mechanisms.’ … This court finds that Interrogatory Nos. 16 and 21 can be answered without too lengthy of an explanation”).

12 150 Ohio Misc.2d 23, 902 N.E.2d 101, 111 (Greene Cty. Com. Pl. 2008) (“McBride gave a very narrow construction of what was proper in an interrogatory. … other Ohio courts have rejected the narrow use of interrogatories Judge McBride felt was proper. The Court declines to follow the narrow construction of Penn Cent.”)

13 McDonald v. Burton, 2008 WL 4461041 (Montgomery Cty. Com. Pl. 2008) (“Interrogatories 2 and 3 do call for an [sic] narrative response, which, despite the Penn Central case, are not per se objectionable. However, the depositions are scheduled and these questions lend themselves better for that format”).

14 E.g., State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St.3d 82, 86, 661 N.E.2d 728, 732 (1996) (“we look for guidance to authorities interpreting the federal rule”).

15 2009 WL 1325103, *3 (N.D. Ind. 2009) (“what Gregg is requesting essentially amounts to a narrative response to each of the complaints and arguments in his six letters.

Thus, Gregg is effectively gathering a slew of imprecise discovery requests about the facts of his allegations under the umbrella of a single interrogatory, amounting to an inappropriate attempt to avoid the requirements

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of the case management order limiting the number of interrogatories to fifty”).

16 2008 WL 423566, *1 (M.D. Fla. 2008) (“Interrogatories that purport to require a detailed narrative response of the opposing parties’ case are generally improper because they are overbroad and oppressive”) 17 235 F.R.D. 494, 502 (D. Kan. 2006) (“As a general rule in this District, the court will find interrogatories overly broad and unduly burdensome to the extent that they ask for ‘every fact’ which supports identified allegations or defenses. Interrogatories should not require the answering party to provide a narrative account of its case”).

18 2012 WL 871255, *1 (S.D. Ohio 2012) (“Plaintiff does not ask for a detailed narrative of ‘the opposing parties’ case,’ but rather for a chronology of this Defendant’s actions. In routine discovery with counsel, this would be the sort of question asked on deposition, but Plaintiff ’s circumstances do not allow that approach”).

19 126 F.R.D. 43, 44-45 (S.D. Ohio 1989) (“With all respect to Judge McBride’s opinion, this Court does not believe that the Penn Central decision accurately reflects federal discovery law. … The fact that a party has a choice between using interrogatories and depositions does not bar the use of interrogatories. …

There is no need to insist rigidly a priori that interrogatories cannot be commands or seek narrative or other expansive detail”); 20 2009 WL 153161, *1 (E.D. Tex. 2009) (“The court orders the defendants to provide a narrative response to this interrogatory”).

21 2006 WL 1062115, *5 (D. Conn. 2006) (“As other cases from within this circuit and this district have held, only a full narrative

response to an interrogatory comports with the Federal Rules of Civil Procedure”).

22 In re Continental Capital Investment Services, Inc., 2009 WL 1661918, *5 (Bkrtcy.N.D. Ohio 2009) (“nothing in the Federal Rules of Civil Procedure prescribes any specific form for interrogatories and courts, including courts in this circuit, have found that narrative answers to interrogatories are not only acceptable, but in some cases required”; while “[c]ourts have found interrogatories overly broad to the extent that they ask for ‘all facts’ or ‘every fact’ that supports an allegation or claim,” there is “no question” a party is “entitled to inquire as to the factual basis” of a claim “as such inquiry goes to the very heart of the case”).

23 Slabaugh v. State Farm Fire & Cas. Co., 2013 WL 4777206, *3 (S.D. Ind. 2013) (“An interrogatory might improperly call for a narrative response when it is used as an attempt to exceed the interrogatory limit. … However, an interrogatory that merely ‘seeks to discover who has knowledge relating to the case, and to learn what it is that they know’ is not improper as calling for a narrative”); Brassell v. Turner, 2006 WL 1806465, *2 (S.D. Miss. 2006) (“the proper analysis is not whether the question seeks a response in a narrative form (which is, ordinarily, the proper manner in which to respond to an interrogatory), but consideration of the extent of the response required”).

24 Citing 2006 WL 1806465 at *2. Fed.R.Civ.P. 26(d) (discovery may occur in any sequence).”

25 See Smith & Blackford (“Civil Rule 1(B) [Scope of rules; applicability; construction; exceptions] makes clear that the rules should be interpreted to promote, not frustrate, the efficient exchange of information”).

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What qualifies as a “permanent and substantial physical deformity” exception to Ohio’s cap on noneconomic losses?

By Mark W. Biggerman

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Since the enactment of R.C. 2315.18 in 2005, Ohio plaintiffs have been limited in the amount they can recover for noneconomic losses in personal injury actions.1 Generally, those damages are capped at $250,000.2 There are four limited exceptions, however. They are found in R.C. 2315.18(B) and include situations where a plaintiff suffers a permanent and substantial physical deformity, a loss of use of a limb, the loss of a bodily organ system3 or a permanent physical functional injury that permanently prevents the injured person from being able to independently care for him/herself and perform life-sustaining activities.4 Of the four, “permanent and substantial physical deformity” is the least specific and, therefore, the most open for interpretation. Unfortunately, R.C. 2315.18 does not define the term.

Moreover, interpretive Ohio case law is scarce. There is only one Ohio decision addressing the meaning of the term: the 2010 Fifth District Court of Appeals opinion in White v. Bannerman.5 In that case, the plaintiff alleged that, due to the defendant’s negligence, the tendons in her hands had been severed, both her face and hands were scarred, and her fingers suffered permanent numbness.6 After the defendant failed to respond to the complaint, the trial court granted default judgment, held a bench hearing on damages and then awarded the plaintiff $750,000.7 The defendant appealed, arguing that the damages exceeded the noneconomic statutory limit in R.C. 2315.18.8 The court of appeals disagreed, holding: Ashley suffered objective injuries to her hands and face in the form of severe scarring and limited mobility, with the permanency of those injuries being obvious.

——— Upon review of the evidence presented, including Ashley’s

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testimony of the substantial nature of her injuries to both her hands, photographs of her injuries, and the objective permanency thereof in appearance and function, we find the trial court’s determination of damages does not exceed the statutory limits for noneconomic damages.9 Beyond that, Ohio courts have not provided any guidance.

Fortunately, however, there are a few decisions by federal district courts in Ohio that do provide some assistance for practitioners.

Five, to be exact, with four of them rendered by the U.S. District Court, Northern Division of Ohio.

The first, Bransteter v. Moore, was actually decided in 2009, a year before White.10 That case involved a plaintiff who had sustained a perforated bowel and a resulting scar after several surgeries. The defendants sought to limit the noneconomic damages she could recover, pursuant to R.C. 2315.18.11 The Northern Division District Court noted the lack of legislative history or Ohio case law to assist it in determining whether the scar was a permanent and substantial physical deformity. The plaintiffs argued that a scar is a disfigurement. The defendants contended that scarring did not fall within the definition of permanent and substantial physical deformity because it is not specifically mentioned in the statute and the two categories are mutually exclusive.12 The court disagreed with the defendants and held that “scarring may be so severe as to qualify as a serious disfigurement.”13 However, because it also found that “not every scar would qualify as a substantial physical deformity,” the court decided to wait to resolve the issue following trial testimony.14 In doing so, it advised that the defendants could move for a directed verdict and the plaintiffs could request a jury interrogatory.15

The Northern Division District Court addressed the issue again in 2011.

In Weldon v. Presley,16 the plaintiff claimed that, as a result of a motor vehicle accident, she had sustained injuries to her head, neck, shoulders and back.17 Consequently, she underwent surgery “to ‘relieve extensive compression of her spinal cord to stabilize the vertebrae in her spine.’”18 As a result of the operation, she was left with a four centimeter incisional scar.19 The plaintiff also claimed to have “permanent damage, pain, and suffering and that the pain and suffering will continue in the future.”20 The defendants filed a motion for summary judgment, arguing that the injuries were not a permanent and substantial physical deformity because the plaintiff had “suffered no anatomical or structural alteration of her spine” and her “chief complaints were ‘aching, stiffness and burning about the posterior aspect of her neck, bilateral trapezius and interscapular areas.’”21 In response, the plaintiff submitted evidence to validate her injuries and cited Bransteter for support that her surgical scar raised a genuine issue of material fact as to whether her injuries were permanent and substantial.22 The court explained that, despite the lack of a specific definition for “permanent and substantial physical deformity,” the injuries listed in R.C. 2315.18(B)(3)(a) “help qualify the level of injury suffered.”23 Thus, “[g]iven the extreme qualifications required for the other injuries listed, it seems clear that permanent and substantial physical deformity must be severe and objective.”24 The court then concluded that the plaintiff’s injuries did not rise to that level. In doing so, however, it focused specifically on her scar: Reasonable minds could not conclude that such a small single scar, merely four cm long, amounts to a severe disfigurement. Common

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experience readily teaches that many people have some type of scar, from childhood roughhousing or surgery. Such incidental scars do not rise to the level of “substantial physical deformities” as required by Ohio Revised Code § 2315.18.25 The court distinguished Bransteter by pointing out that it held only that scarring may be so severe as to qualify as a serious disfigurement.26 The court also contrasted the facts in that case and White by explaining that the plaintiff’s scar was not “equivalent to the multiple scarring at issue in Bransteter or the disfigurement of hands and face noted in White.”27 About a year later, in 2012, the Northern Division District Court handed down its third decision on the

issue in Ohle v. DJO Inc.28 There, the plaintiff’s injuries included the loss of most or all of her shoulder cartilage.

Her shoulder bone had also been replaced with a metal prosthesis and she now had a large raised keloid scar from her collar bone to her armpit and two smaller keloid scars on the front of her shoulder.29 According to the plaintiff, the combination of these injuries qualified as a permanent and substantial physical deformity. The defendants disagreed, arguing that internal modifications of a person’s body structure and surgical scars did not satisfy that exception under R.C. 2315.18(B).30 The court explained that, in light of R.C. 2315.18(E)(2), which permits parties to seek summary judgment on the nature of a plaintiff’s injury,

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motions regarding the applicability of Ohio’s noneconomic damages cap have been treated as ones for summary judgment. Therefore, “whether a deformity is sufficiently permanent and substantial should, once the plaintiff crosses an evidentiary threshold, be for the jury, not the court, to decide.”31 In support, the court referenced Ohio’s Pattern Jury Instructions and interrogatories, which had been republished just shortly after enactment of the noneconomic damages cap. They require jurors to determine whether a plaintiff has been permanently and substantially physically deformed.32 The court also cited the decisions in Bransteter, 33 White, 34 Weldon, 35 and Williams v. Bausch & Lomb Co., 36 for the proposition that determining the nature of a plaintiff’s injuries

should be left to the trier of fact.37 As to the facts before it, the court held that the plaintiff had reached the necessary evidentiary threshold by providing enough evidence of the lasting and permanent effects of the surgeries and whether they left a permanent substantial deformity.

Accordingly, the jury was in the best position to determine whether the nature and location of scarring, removal of a portion of a bone or total loss of cartilage deforms an individual.38 The next decision, Sheffer v. Novartis Pharmaceuticals Corp., was decided by the District Court in Ohio’s Southern Division in 2014.39 The plaintiff there claimed that a prescription drug caused her to develop osteonecrosis of the jaw, which led to a broken jaw bone and

some exposed bone in her mouth.40 After surgery, her jaw had been fused and she no longer had any exposed bone. However, she maintained that her jaw would never be perfect and that she still suffered some jaw pain.41 The court cited Ohle and the rule that whether a deformity is sufficiently permanent and substantial is a question for the jury once a plaintiff crosses an evidentiary threshold.42 However, the court held that a permanent and substantial physical deformity must be severe and objective.43 In this case, it found that the plaintiff’s injury was “not the type of catastrophic ‘permanent and substantial physical deformity’ contemplated by R.C. 2315.18(3)(a).”44 Therefore, the injury was “insufficient, as a matter of law, to defeat the statutory caps on noneconomic damages.”45 The District Court in the Northern Division weighed in a final time in Cawley v.

Eastman Outdoors, Inc.46 In this case, the plaintiff was allegedly injured when a defective arrow shattered upon release, piercing his left-hand thumb.

In addition to suffering lasting injuries to his hand, including a scar, he had decreased range of motion, diminished grip strength, ongoing pain and the possibility of future ailments, such as arthritis. Further, because the surgeon was unable to remove all the minuscule carbon fiber fragments from the hand, they would sometimes migrate to the surface and extrude through the skin.47 The defendant moved for summary judgment, seeking imposition of the noneconomic damages cap.48 The plaintiff argued that a jury could find that his scar and his external and internal deformities, which resulted from subsequent surgeries, qualified as a permanent and substantial physical deformity.49 The court denied the defendant’s motion, holding that the issue of “whether Plaintiff’s injury is a

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‘permanent and substantial physical deformity’ that is exempted from the statutory damages cap is a question for the jury.”50 However, the decision seemed to be based primarily on the plaintiff’s scar. After citing Bransteter for the proposition that scarring may be so severe as to qualify as a serious disfigurement,51 the court held: “Although Plaintiff and Defendant disagree about the severity of Plaintiff’s scar, that is a question for the jury.”52 So what collective guidance do these six opinions provide? With only six cases to work from, it is difficult to draw many expansive conclusions; however, at least two things do seem to be evident.

First, procedurally, R.C. 2315.18(E) (2) all but encourages the filing of a motion for summary judgment on the issue. As such, any other pretrial motions related to that topic will most likely be treated as if they were motions for summary judgment.

Second, scarring (especially multiple scarring) appears to be generally sufficient to at least survive summary judgment. Four out of the five opinions addressing this question agree. The only court concluding otherwise made it a point to emphasize that, in that case, the plaintiff had only a small, single scar, merely four centimeters long.

As for other commonalities in the opinions, three courts held that, to qualify as a permanent and substantial physical deformity, the injury must be severe and objective. Two held that whether internal deformities fall under the exception was a jury question. Two more ruled that decreased mobility and range of motion may qualify as permanent and substantial physical deformities. Yet, ongoing pain may not be enough.

Although the body of case law on this issue is small, it is beginning to take shape; however, it is still malleable. Counsel representing clients in cases where an injury is potentially a permanent and substantial physical deformity are still in a position to persuade

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courts as to how the term should be defined. The best way to do that is to familiarize themselves with the applicable precedent on the subject.

Author bio

Mark Biggerman is a solo practitioner in Cleveland. He has over 21 years of experience representing both plaintiffs and defendants at all levels of the Ohio and federal judicial systems, including cases before the U.S. Supreme Court and Ohio Supreme Court. His practice areas include employment law, personal injury, product liability, appeals, civil rights and complex litigation. Visit his website at www.mblegal.com or email him at mark@mblegal.com.

Endnotes “Noneconomic loss” is defined as “nonpecuniary harm that results from an injury or loss to person or property that is a subject of a tort action, including but not limited to, pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish and any other intangible loss.” R.C. 2315.18(A)(4).

2 R.C. 2315.18(B)(2). More precisely, the statute caps damages for noneconomic loss at the greater of $250,000 or three times the amount of the plaintiff ’s economic loss. Furthermore, each plaintiff may not recover more than $350,000 or a maximum of $500,000 for each occurrence that is the basis of the tort action. Id. 3 R.C. 2315.18(B)(3)(a).

4 R.C. 2315.18(B)(3)(b).

5 5th Dist. Nos. 2009CA00221, 20090CA00245, 2009CA00268, 2010-Ohio4846, 2010 WL 3852354.

6 Id. at ¶ 2, 7-9.

7 Id. 8 Id. at ¶ 77.

9 Id. at ¶ 76, 87.

10 N.D. Ohio No. 3:09 CV 2, 2009 WL 152317.

11 Id. at *2.

12 Id. 13 Id. (Emphasis in original).

14 Id. 15 Id. 16 N.D. Ohio No. 1:10 CV 1077, 2011 WL 3749469, report and recommendation adopted, 2011 WL 3754661.

17 Id. at *1.

1

Id. at *7.

Id. 20 Id. at *1.

21 Id. 22 Id. at *3, 7.

23 Id. at *6.

24 Id. 25 Id. at *7.

26 Id., citing Bransteter, 2009 WL 152317 at *2.

27 Id. 28 N.D. Ohio No. 1:09-cv-02794, 2012 WL 4505846.

29 Id. at *2.

30 Id. at *4.

31 Id. at *3.

32 Id. at *4, citing OJI Civil 315.01(6).

33 2009 WL 152317.

34 2010 WL 3852354. 2011 WL 3749469. The court pointed out that, although the court in White made the factual finding that the scarring qualified as a deformity, it was nevertheless a bench trial in which the court properly acted as the trier of fact. Ohle, 2012 WL 4505846 at *3.

35 2011 WL 3749469.

36 S.D. Ohio, No. 2:08-cv-910, 2010 WL 2521753. The opinion in Williams addressed the exceptions for “loss of a bodily organ system,” in R.C. 2315.18(B)(3)(a), and “permanent physical functional injury,” in R.C. 2315.18(B)(3)(b), as opposed to “permanent and substantial physical deformity.”

37 Ohle, 2012 WL 4505846 at *4.

38 Id. 39 S.D. Ohio, No. 3:12-cv-238, 2014 WL 10293816.

40 Osteonecrosis is “a condition that occurs when there is loss of blood to the bone. Because bone is living tissue that requires blood, an interruption to the blood supply causes bone to die. If not stopped, this process eventually causes the bone to collapse.” WebMd, www.webmd. com/arthritis/avascular-necrosis-osteonecrosissymptoms-treatments.

41 Id. at*1-2.

42 Id. at *2, citing Ohle, 2012 WL 4505846 at *3.

43 Id. at *2.

44 Sheffer, 2014 WL 10293816 at *2.

45 Id. at *3.

46 N.D. Ohio No. 1:14-CV-00310, 2014 WL 5325223.

47 Id. at *1.

48 Id. at *1, 7.

49 Id. at *7.

50 Id. at *2.

51 Id. at *7, citing Bransteter, 2009 WL 152317 at *2.

52 Id. 18 19

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LAWS & SAFETY TIPS FOR OHIO’S ROAD RUNNERS

by Elizabeth Mote 1

If you can, use the sidewalk. Runners are considered pedestrians in Ohio.3 As a result, where a sidewalk is provided and “its use is practicable,” it’s unlawful to walk or run in the street.4

2

If there’s no sidewalk or you can’t, use the shoulder. Where there’s no sidewalk, you must walk or run only on a shoulder, “as far as practicable” from the roadway.5

3

Face traffic. Where there’s no sidewalk or shoulder, you must walk or run “as near as practicable” to the outside edge of the roadway, and if it’s a two-way street, only on the left side, i.e. facing oncoming traffic.6

4

Don’t run on freeways. Ohio law defines a “freeway” as “a divided multi-lane highway for through traffic with all crossroads separated in grade and with full control of access.”7 Pedestrians are prohibited on freeways except in situations that likely don’t apply to going for a run.8

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Running USA reports that U.S. running event finishers have increased 300 percent from 1990 to 2013,1 and since 1990 there has been more than a 140 percent increase in U.S. marathon finishers (224,000 vs. 541,000).2 With the popularity of running and the “sweet spot” of event participation between the ages of 25 and 44, there’s a good chance you or someone you know regularly runs on Ohio’s roadways. But do you know the rules of the road?

1

If there’s a marked crosswalk, use it. Between adjacent intersections with traffic control signals in operation, you can’t lawfully cross anywhere except in a marked crosswalk.9

6

Drivers must exercise due care, but you don’t always have the right-of-way. Although drivers must yield the right-of-way to any pedestrian on a sidewalk, at any point other than within a marked crosswalk or within an unmarked crosswalk you must yield the right of way to “all vehicles, trackless trolleys, or streetcars.”10

7

Don’t dart. Don’t cut across intersections. Ohio law prohibits pedestrians from suddenly leaving a curb or “other place of safety” to walk or run into the path of a vehicle which is “so close as to constitute an immediate hazard.”13 You’re also not allowed to cross an intersection diagonally unless authorized by an official traffic control device.14

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It goes without saying you must obey traffic signals.11 However, when traffic control signals are not in place, not in operation or aren’t clearly assigning the right-ofway, drivers are only required to yield, slow down or stop for a pedestrian crossing within a crosswalk when the pedestrian is on the half of the roadway where the vehicle is traveling, or when the pedestrian is approaching so closely from the other side “as to be in danger.”12

Although it’s tempting to violate these laws to avoid curbs or waiting at intersections, consider running at a park or on a trail if you simply refuse to stop or try stretching so you’re not standing still.15 Plus, if you’ve read this, you can’t say you don’t know the rules.

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By following these laws and safety tips, we can contribute to safer roads for Ohio drivers and runners.

7 2

3 5

Endnotes

1 2015 State of the Sport – U.S. Race Trends, July 13, 2015 www.runningusa.org/2015-state-of-sport-us-trends?returnTo=annual-reports (last accessed 07/24/2015).

2 Running USA’s Annual Marathon Report, March 23, 2014 www. runningusa.org/index.cfm?fuseaction=news.details&ArticleId=332 (last accessed 07/24/2015).

3 R.C. 4511.01(X) (pedestrian means “any natural person afoot”).

Liz is an associate attorney at Kitrick, Lewis & Harris Co., LPA, and has experience in a variety of legal matters, from complex civil litigation and foreclosure to employment law. She focuses her practice on serious personal injury, wrongful death claims and other consumer matters. Liz earned her law degree from Capital University Law School. She has been a member of national and local bar associations since law school, is an avid runner and enjoys being outdoors as much as possible.

4

4

R.C. 4511.50(A).

5

R.C. 4511.50(B).

6

R.C. 4511.50(C).

7

R.C. 4511.50(YY).

8

R.C. 4511.051.

9

R.C. 4511.48(C).

10

R.C. 4511.48(E); R.C. 4511.441; R.C. 4511.48(A).

11

R.C. 4511.12.

12

R.C. 4511.47(A).

13

R.C. 4511.46(B).

14

R.C. 4511.48(D).

Whether it’s acceptable to run in place, run in circles or dance around at a stop light/sign is surprisingly a highly debated issue and perhaps a topic for another article or blog post.

15

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May/June 2016

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MALPRACTICE? PROVE IT! Ohio courts continue trend of applying case-within-a-case doctrine to reject legal malpractice cases

By David J. Oberly

Litigating a legal malpractice case generally encompasses a wide variety of unique complexities not seen in other types of lawsuits. One of the most daunting challenges of a legal malpractice lawsuit concerns the “case-within-a-case” requirement that is sometimes—but not always—triggered in connection with proximate causation. When applicable, the rule requires the plaintiff to prove that it would have prevailed in the underlying lawsuit. Oftentimes, the case-within-a-case requirement by itself is sufficient to derail an otherwise meritorious legal malpractice claim. Importantly, two recent Ohio appellate decisions exemplify the current trend of Ohio courts in routinely applying the case-within-acase requirement where a plaintiff places the merits of the underlying litigation directly at issue to preclude legal malpractice actions in their entirety. As a result of the increasing prevalence of the doctrine in legal malpractice litigation, both plaintiff’s attorneys and defense practitioners are well advised to take note of the potential advantages and pitfalls of this game-changing rule.

Overview of the case-within-a-case requirement

To establish a cause of action for legal malpractice, a claimant must demonstrate the existence of an attorney-client relationship giving rise to a duty, a breach of that duty and damages proximately caused by that breach. If a plaintiff fails to establish a genuine issue of material fact as to any of the elements, the attorney is entitled to summary judgment.

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www.ohiobar.org

As a general rule, the requirement of causation often dictates that the merits of the malpractice action depend on the merits of an underlying case. As such, a plaintiff in a legal malpractice action may be required to demonstrate the merits of the underlying claim.

Nonetheless, the Ohio Supreme Court has rejected universal application of the case-withina-case doctrine, concluding that the element of causation cannot be replaced or supplemented with a rule of thumb requiring that a plaintiff, to establish damage or loss, prove in every instance that he or she would have been successful in the underlying matter(s) giving rise to the complaint.

In holding that not every legal malpractice case will require the plaintiff to establish that he or she would have succeeded in the underlying matter, the Ohio Supreme Court necessarily implied that there are some cases in which the plaintiff must so establish. This type of legal malpractice action involves the case-within-a-case doctrine, which means the plaintiff must establish that he or she would have been successful in the underlying matter. Here it is insufficient for the plaintiff to present simply “some evidence� of the merits of the underlying claim.

The less-stringent "some evidence" standard applies in cases in which a plaintiff’s damage or loss has been suffered regardless of the fact that the plaintiff may be unable to prove that he or she would have been successful in the underlying matter(s) in question. In such a case, the plaintiff need provide only some evidence of the merits of the underlying claim. The case-within-a-case doctrine, however, applies if the theory

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of the malpractice case places the merits of the underlying litigation directly at issue. To prove causation in these cases, the plaintiff must prove that but for the attorney’s negligence, the plaintiff would have obtained a better outcome in the underlying case. In this way, all the issues that would have been litigated in the previous action are litigated between the plaintiff and the plaintiff’s former lawyer, with the latter taking the place and bearing the burdens that properly would have fallen on the defendant in the original action.

Recent applications of the case-within-a-case doctrine by Ohio courts Passerell v. Cordell

In Passerell v. Cordell, 2015 Ohio 1767 (11th Dist.), the court ruled that the case-within-a-case doctrine estopped a plaintiff from asserting a legal malpractice claim in the absence of expert testimony establishing that the claimant would have fared better in the underlying litigation but for the defendant attorneys’ malpractice.

The legal malpractice claim in that case arose out of Stuart Cordell’s representation of David and Michael Passerell—both part owners of AllPass Corporation—in a business dispute over the family-run company.

Shortly after the company’s recently terminated president and co-owner filed a complaint for declaratory and injunctive relief for damages against the two owners and AllPass, the Passerell brothers sought out Cordell to enter an appearance on their behalf and represent their interests in the litigation. At that time, Cordell informed David and Michael of the potential conflict of interest that existed as a result of Cordell’s prior representation of the company’s former president. Less than a month after undertaking the representation, it became apparent to Cordell that there was, in fact, a conflict of interest.

Accordingly, he sought to withdraw as counsel for David and Michael, which was later granted by the court.

However, before he withdrew, the court held an ex parte temporary

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restraining order hearing on the president’s motion for a temporary restraining order, which was not attended by Cordell. A temporary restraining order was granted that day. Approximately a month later, the three individuals settled the litigation, and the lawsuit was dismissed.

David and Michael Passerell subsequently filed a complaint for legal malpractice against attorney Cordell.

Importantly, while Cordell engaged the services of an expert who opined that he had not breached any duty of care toward his former clients, David and Michael believed otherwise but did not engage an expert because they thought that the breach was so obvious and the harm so evident that an expert was unnecessary to prove legal malpractice.

The court found that the case-withina-case doctrine applied to bar the brothers’ legal malpractice claim because the plaintiffs could not succeed on the element of proximate cause in the absence of expert testimony.

In reaching that conclusion, the court noted that the plaintiffs were arguing that but for the alleged malpractice of Cordell, they would have prevailed in the underlying litigation. Accordingly, their case relied entirely on success on the merits of the underlying case, thus triggering the case-within-a-case doctrine. To do so, the court found, required them to establish that the entire result of the case would have been different by demonstrating how they would have prevailed in the underlying litigation—that if Cordell had attended the hearing, the judge would not have granted the restraining order, and if the judge had not granted the restraining order, they would have had a better outcome in the case and would not have incurred the claimed damage or loss. To prevail, then, the brothers were required to establish a proximate causal connection requiring them to address complex business litigation, various procedural issues and corporate law, which would require them to prove the case-within-a-case.

Given these complex issues and the particular circumstances of the case,

the court continued, the jury could not properly evaluate the evidence on the element of proximate cause without the benefit of expert testimony on the question of whether the outcome of the underlying case would have been different, but for the negligence of their former attorney; however, David and Michael had failed to disclose an expert on this issue, which barred them from presenting any expert testimony on the issue of proximate causation. Without expert testimony on causation, David and Michael could not satisfy the case-within-a-case causation requirement. As a result, the plaintiffs were precluded from establishing the essential elements of their legal malpractice claim, thus mandating judgment in favor of the defendant attorney as matter of law.

Skoda Minotti Co. v. Novak, Pavlik & Deliberato, L.L.P.

A very similar result was also seen recently in Skoda Minotti Co. v. Novak, Pavlik & Deliberato, L.L.P., 2015 Ohio 2043 (8th Dist.), where the court invoked the case-within-a-case doctrine to bar a legal malpractice claim that arose out of a taxpayer mandamus action filed against the city of Akron. In that case, Robert Smith retained Novak, Pavlik & Deliberato, L.L.P. and Scott Perlmuter for the purpose of compelling the production of travel records, receipts and credit card statements from the mayor of Akron and other city personnel whom he believed improperly destroyed these records, which established that they “traveled the world, stayed in four-star hotels, and wined and dined” on the taxpayer’s dime.

Smith also sought damages for the estimated 1,000 documents that were destroyed. Eventually, Smith’s case was voluntarily dismissed without prejudice. Thereafter, Smith terminated the attorney-client relationship with Perlmuter and Novak. After the case was dismissed, Smith did not refile his claims against the city of Akron.

Smith subsequently asserted a claim for legal malpractice against Perlmuter, alleging that his former attorney was

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negligent for failing to present evidence at an evidentiary hearing, hiring an expert against Smith’s wishes and then later claiming an expert was not needed, and dismissing a case that was worth approximately $985,000. The court found that the case-within-acase doctrine applied to bar the claim because Smith’s failure to refile the action after it was voluntarily dismissed without prejudice and litigate the merits of the city case was fatal to his claim that any alleged negligence caused him to incur damages. Because he alleged that he would have obtained a better outcome in the case—the recovery of $985,000—but for the negligence of his former attorney, Smith was alleging a legal malpractice action that involved the case-within-a-case doctrine, which required him to establish that he would have been successful in the underlying matter. Smith failed to do so when he had the opportunity to litigate the merits of his claims by refiling his complaint after the first dismissal, and chose not to. As a result, Smith failed to establish proximate cause when he did not refile and litigate the merits of the city case. Thus, Smith was unable to put forth a set of facts which, if true, would establish Novak’s and Perlmuter’s liability.

Accordingly, his legal malpractice claim failed as a matter of law.

Causation is an essential element in any legal malpractice lawsuit. Without question, the case-within-a-case requirement favors the defense in legal malpractice litigation. It is a stringent,

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unique requirement not seen in other types of litigation that essentially requires the plaintiff to try two cases— the underlying case and the malpractice case—in one action. The defendant only needs to defeat one of the two cases to avoid liability altogether. Obviously, then, defense practitioners must carefully analyze the issue of causation at the outset of any legal malpractice lawsuit to determine both whether the case-within-a-case rule applies and, if so, whether the requirement can be wielded to completely shield the defendant from liability. On the flip side, plaintiff’s counsel must also make a tough judgment call on the same issues at the initial client intake stage.

Where the potential pitfalls to causation can be avoided, the casewithin-a-case doctrine may present several advantages for a plaintiff, as the rule can pose thorny issues for the defendant lawyer with regards to his or her task of establishing that his or her former client would not have succeeded in the underlying litigation. For example, the defendant lawyer may have made statements advocating for the plaintiff’s position in the underlying matter. If so, and such evidence were deemed relevant and otherwise admissible in the legal malpractice action, the lawyer will be at a disadvantage in the legal malpractice action, and may come across as disingenuous in the eyes of a jury in attempting to argue the opposite position from what was taken in the original lawsuit. In addition, if the

legal malpractice plaintiff can testify credibly and put forth reliable evidence concerning the underlying events that establish a prima facie basis for the defendant’s liability in the underlying litigation, then the plaintiff has an advantage over his former lawyer, who must seek and obtain testimony and other evidence from both the defendant and frequently other individuals and entities who were not involved in that prior litigation. Where the doctrine does apply, counsel on both sides of the table are well advised to devote a considerable amount of time and effort toward mapping out an effective strategy to prove or defeat the casewithin-a-case requirement at trial, including determining the optimal course of action in structuring the trial-within-a-trial and analyzing the need for expert testimony, which is frequently, but not always, required on the issue of causation in legal malpractice lawsuits.

Author bio

David J. Oberly is an associate in the Cincinnati office of Marshall Dennehey Warner Coleman & Goggin. A member of the firm’s Professional Liability Department, he focuses his practice on the defense of employment law, civil rights and commercial litigation matters. He may be reached at djoberly@mdwcg.com.

May/June 2016

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21

Practice Tips Improvidently accepted: An overlooked appellate tool The Ohio Supreme Court, like most courts of discretionary review, does not decide all cases it agrees to hear on the merits. In the Ohio Supreme Court, the Justices call that outcome dismissing as improvidently accepted (or allowed). In shorthand at argument, the Justices may ask whether the case should be “improv-ed.” The chance to win a case as appellee after the Court has already agreed to review it is an often-overlooked opportunity.

This article draws lessons about the improv tool—another chance to win a case—by looking at recent cases where the Court or some Justices discussed that kind of dismissal.

The Supreme Court accepts roughly four to seven percent of discretionary appeals per year.1 That translates to about 55-100 cases.2 Of those cases, four to seven percent might be dismissed through improv in a given year. If you are an appellee who is on the losing end of the odds for a grant of jurisdiction, you have about the same odds of winning by convincing the Court to improv the granted case. You can increase those odds by paying attention to what the Court is saying about the cases it decides are not worth deciding.

That is not always easy to do; improvs are sometimes silent, 3 even when several dissenting Justices would have decided the case on the merits.4 Other times, though, a dissenting voice sheds light on the improv.5 For example, Justice Pfeifer’s threeJustice dissent in Wilkins v. Sha’ste begins by explaining that the Court had previously spoken on the issue, but the dissent disagreed with the conclusion that the prior statement resolved the newer case.6 The other (silent) Justices may well have viewed

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the earlier precedent as controlling.

Much like instances where a court declines to answer a certified question of state law,7 the silent majority may have been of the view that existing precedent already provided an answer.8 A dissent from a merits case can also explain why some Justices would have dismissed the case.9 An example is Justice Kennedy’s opinion in Infinite Security Solutions.10 That dissent would have dismissed the certified conflict (disagreement between two appellate districts) on the belief that the supposedly conflicting cases did not “squarely present” a conflict because the record did not “definitely” show the critical fact that would have put the appellate opinions at odds.11

Arguments for improv

One is perhaps the most familiar: The Ohio Supreme Court “sits to settle the law, not to settle cases.”12 That principle may be expressed in various ways. A case might be described as being “highly fact specific,”13 seeking “mere error correction,”14 or embracing a rule for a “single case.”15 But all those formulations get at the core problem that some appeals do not “qualify as a ‘case[ ] of public or great general interest.’”16 That is the terra firma of improvs.

More off the beaten path are several arguments for improv that are less firmly settled. On each of these arguments, the Court appears divided.

One argument is that an improv does not speak to the validity of the underlying judgment. In one improved case, three Justices dissented and worried that the improv “implicitly” endorsed the lower court’s view, but four Justices did not share that concern.17 Another is that even

By Mike Hendershot certified conflicts may be dismissed as improvidently accepted. In another improv-ed case, four Justices did not view the dismissal as problematic, but three Justices dissented and opined that the conflict “compel[led]” the Court to exercise its “constitutional duty” to review the case.18 The divide in that case breaks along seniority. The dissenters all joined the Court in or after December 2012; the Justices favoring dismissal have all been on the Court more than a decade. A third possible argument invokes a broad question about both the Court’s jurisdiction as well as improvs. Two Justices have expressed the view that the Court should exercise “caution” when “announcing a new rule” in a case decided “on summary judgment.”19 In an age where trials are rare, that view could dramatically increase the odds of improv dismissals (and the kinds of cases the Court accepts at the jurisdiction stage).

Opposing an attempt to improv

The recent cases offer some lessons here as well. First, amici matter. They will not be dispositive, but they may help fend off a motion to improv.20 Second, an argument that the case gives the Court a chance to “lead” on a new issue, rather than wait for full percolation in the intermediate courts, might fend off a suggestion to improv.21 Third, some Justices object to improvs where the appellate court has “failed to follow the clear guidance” of the Ohio Supreme Court.22 Fourth, resisting an improv might mean redoubling the arguments that secured jurisdiction in the first place. The Court generally wants to avoid leaving unanswered “important questions” that the lower courts regularly face.23 Finally, be

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prepared for the question at oral argument. The Justices may ask openly whether a case should be improv-ed, or may ask indirectly whether a case has broad significance or is more akin to error correction. The oral argument in one of the recent dismissals featured no less than four exchanges with three different Justices about “error correction” and other suggestions that an improv was on the table.24

When are arguments to improv made?

Any time after the Court accepts jurisdiction. The argument might be pressed in a brief on the merits, 25 at oral argument 26 or possibly in a stand-alone motion to dismiss.27 Or the arguments might be advanced at each step. The substance of the argument might also affect its timing. Sometimes the reason to improv is a twist on a theme offered in the brief opposing jurisdiction, but in other cases a post-grant development may spark the argument in favor of improv. An example is Jodka v.

City of Cleveland, a certified-conflict case.28 After the case was accepted, the Court reversed the conflict case, thereby erasing the conflict.29 The result: The certified-conflict appeal was dismissed. That is a rather obvious basis for an improv, but the same result might well follow from a change in federal law, a change in statute or regulation, or a change of precedent in one of the appellate courts.30

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The dismissal as improvidently allowed is a long shot, but it succeeds several times a year. It is a tool that all appellate lawyers should know well, and a tool they should consider at each step of Supreme Court litigation.

Author bio

Mike Hendershot is the Chief Deputy Solicitor for Ohio Attorney General Mike DeWine. He is an OSBA certified specialist in appellate law and has argued 16 cases before the Ohio Supreme Court.

Endnotes See Supreme Court of Ohio: Annual Report 2013 at 20 (available at www.sconet.state.oh.us/ Publications/annual_reports/annualreport2013. pdf) (last visited April 14, 2016).

2 Id. 3 See, e.g., State ex rel. DeWine v. GMAC Mtge., L.L.C., 2016-Ohio-985 ¶ 1 (certified question of state law) (unanimous); State v. Rosario, ___ Ohio St. 3d ___, 2015-Ohio-4536 (unanimous); SRMOF 2009-1 Trust v. Lewis, 142 Ohio St. 3d 369, 2015-Ohio-1494 (unanimous).

4 State v. Shaffer, 144 Ohio St. 3d 428, 2016Ohio-52 (Kennedy, J., dissenting); State v.

Williams, 144 Ohio St. 3d 247, 2015-Ohio4537 (Kennedy, J., dissenting); Ohio Bureau of Workers’ Comp. v. McKinley, 143 Ohio St. 3d 370, 2015-Ohio-2927 (Kennedy and French, JJ., dissenting); Akron v. Ohio St. 1

Dep’t of Ins., 144 Ohio St. 3d 56, 2015-Ohio2926 (Kennedy, French, and O’Neill, JJ., dissenting); Kuhn v. Kuhn, 143 Ohio St. 3d 457, 2015-Ohio-2806 (French, J., dissenting); A.S. v. Watts, 142 Ohio St. 3d 527, 2015-Ohio1518 (Kennedy and French, JJ., dissenting); Jodka v. City of Cleveland, 143 Ohio St. 3d 1201, 2015-Ohio-861 (Pfeifer and O’Neill, JJ., dissenting); State v. Laber, 140 Ohio St. 3d 65, 2014-Ohio-3154 (O’Connor, C.J., and Lanzinger and French, JJ., dissenting).

5 Kuhn, 2015-Ohio-2806 (Kennedy, J., dissenting); State v. Clemons, 142 Ohio St. 3d 423, 2015-Ohio-1491 ¶ 2 (French and O’Neill, JJ., dissenting); Wilkins v. Sha’ste, 2015-Ohio-477 (Pfeifer, French, and O’Neill, JJ., dissenting); Fondessy v. Simon, 142 Ohio St. 3d 147, 2014-Ohio-4638 (Kennedy, French, and O’Neill, JJ., dissenting); State v.

Belew, 140 Ohio St. 3d 221, 2014-Ohio-2964 (O’Connor, C.J., and Lanzinger and O’Neill, JJ., dissenting); see also State v. Leak, ___ Ohio St. 3d ___, 2016-Ohio-154 ¶ 36 (O’Connor, C.J., and Pfeifer and O’Donnell, JJ., dissenting without opinion); Stewart v. Lockland Sch. Dist. Bd. of Educ., 144 Ohio St. 3d 292, 2015-Ohio-3839 (O’Donnell, J., dissenting without opinion); In re J.T., 143 Ohio St. 3d 516, 2015-Ohio-3654 (Pfeifer, J., dissenting without opinion); State v. Straley, 139 Ohio St. 3d 339, 2014-Ohio-2139 (O’Donnell, J., dissenting without opinion); Sauer v. Crews, 140 Ohio St. 3d 314, 2014-Ohio-3655 (Pfeifer, J., dissenting without opinion).

6 141 Ohio St. 3d 548, 2015-Ohio-477 ¶ 2 (Pfeiffer, French, and O’Neill, JJ., dissenting).

continued on page 24

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Counsel Comments Ohio Ethics Guide on File Retention

By Desiree Blankenship Client files. The phrase brings up a myriad of questions and has long left practicing lawyers wondering just what to do and when. We addressed a few of these questions in the last edition of Counsel Comments. Specifically, we touched on the makeup of client files and what the client is entitled to at the end of representation. I received several follow-up questions and comments from a number of readers and those blossomed into some interesting (and fun!) conversations.

In that last article, we also referenced guidance that was to be forthcoming from the Board of Professional Conduct. Our timing proved spot-on, as the Board released its Ohio Ethics continued from page 23 See, e.g., Luckey v. Butler Cnty., 112 Ohio St. 3d 1467, 2007-Ohio-388.

8 Western Helicopter Servs. v. Rogerson Aircraft Corp., 811 P. 2d 627, 630-31, 635 (Or. 1991).

9 State v. Shabazz, ___ Ohio St. 3d ___, 2016Ohio-1055 ¶ 2 (O’Donnell and Kennedy, JJ., dissenting) (opining that case raised “significant issues” about the “proper role of an appellate court”); Infinite Sec. Solutions, LLC v. Karam Prop., II, Ltd, 143 Ohio St. 3d 346, 2015-Ohio1101 ¶ 35 (Kennedy J., dissenting); Daniel v.

Daniel, 139 Ohio St. 3d 275, 2014-Ohio-1161 (Lanzinger, J., and O’Connor, C.J., dissenting); State v. McGlothan, 138 Ohio St. 3d 146, 2014-Ohio-85 ¶ 23 (Lanzinger, J., dissenting).

10 2015-Ohio-1101.

11 Id. ¶ 35 (Kennedy, J., dissenting).

12 Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St. 3d 480, 492, 2000-Ohio-397 (2000) (Cook and Lundberg Stratton, JJ., concurring).

13 Lee v. Cardington, 142 Ohio St. 3d 488, 2014-Ohio-5458 ¶ 33 (Pfeifer and O’Neill, JJ., dissenting).

14 McGlothan, 2014-Ohio-85 ¶ 23 (Lanzinger, J., dissenting).

15 Daniel, 2014-Ohio-1161 ¶ 25 (O’Connor, 7

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Guide on File Retention in March.

This non-binding guidance, authored

by D. Allan Asbury, Senior Counsel to the Board of Professional Conduct, and Heidi Wagner Dorn, Counsel to the Board of Professional Conduct, provides an excellent reference for attorneys as they face the issues that surround client files and the retention of such. Additionally, the Ethics Guide delves into the topic of digital media and cloud storage, providing a number of helpful tips to support attorneys as they transition into digital storage.

Rather than summarize the Board’s guidance, we opted to use this edition of Counsel Comments to provide a full copy of the publication C.J., and Lanzinger, J., dissenting) (arguing that majority “redefine[s]” statutory term to reverse this case); see also Hayward v.

Summa Health Sys./Akron City Hosp., 139 Ohio St. 3d 238, 2014-Ohio-1913 ¶ 34 (Pfeifer, J., dissenting) (opining that the appeal was about “this case only” and did not involve anyone’s “personal liberty”).

16 State Auto. Ins. Co. v. Pasquale, 113 Ohio St. 3d 11, 2007-Ohio-970 ¶ 46 (2007) (Pfeifer, J., dissenting).

17 Wilkins, 2015-Ohio-477 ¶ 5 (Pfeiffer, French, and O’Neill, JJ., dissenting).

18 Fondessy, 2014-Ohio-4638 (Kennedy, French, and O’Neill, JJ., dissenting) (noting that all 12 appellate districts had addressed the question).

19 Friebel v. Visiting Nurse Ass’n of MidOhio, 142 Ohio St. 3d 425, 2014-Ohio-4531 ¶ 35 (Pfeifer and O’Neill, JJ., dissenting).

20 Belew, 2014-Ohio-2964 ¶ 2 (O’Connor, C.J., and Lanzinger, J., dissenting) 21 Belew, 2014-Ohio-2964 ¶ 35 (O’Neill, J., dissenting).

22 Clemons, 2015-Ohio-1491 ¶ 2 (French and O’Neill, JJ., dissenting).

23 Kuhn, 2015-Ohio-2806 (Kennedy, J., dissenting) (French, J., dissenting without opinion).

to you as an insert. This insert can easily be removed to serve as a desk reference to guide you through client file retention moving forward.

Author bio

J. Desiree Blankenship serves the Ohio State Bar Association as General Counsel and Assistant Executive Director of Legal and Business Affairs.

She provides counsel to the Executive Director and her staff, as well as to the OSBA Board of Governors.

Prior to joining the OSBA team, Ms. Blankenship served the Ohio Department of Commerce as chief legal counsel and as assistant director.

Blankenship earned her law degree from Capital University Law School.

Oral Argument in No. 2014-727 at 1:15, 12:20, 26:00, 27:10 (March 25, 2015) (available at www.ohiochannel.org/MediaLibrary/ Media. aspx?fileId=146160) (last visited April 14, 2016).

25 E.g., Appellee Br. in No. 2013-1591 at 4 (April 29, 2014) (available at http://goo. gl/eUSJLv) (last visited April 14, 2016).

26 E.g., Oral argument in No. 2014-738 at 25:45, 26:25 (June 9, 2015) (available at www. ohiochannel.org/MediaLibrary/ Media. aspx?fileId=146664) (last visited April 14, 2016).

27 E.g., State ex rel. Walgate v. Kasich, 140 Ohio St. 3d 1412, 2014-Ohio-3785 (granting motion in part); Mot. in No. 2012- 665 (Jan. 14, 2013) (available at http://goo.gl/7D1iBQ ) (last visited April 14, 2016) (granted, see 134 Ohio St. 3d 1481, 2013-Ohio-902).

28 143 Ohio St. 3d 1201, 2015-Ohio-861.

29 Walker v. Toledo, 143 Ohio St. 3d 420, 2014-Ohio-5461.

30 Pasquale, 2007-Ohio-970 ¶ 46 (Pfeifer, J., dissenting) (“[T]his case and the issue before us would be moot under current law.”).

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Beyond the Courtroom Lawyer by day, wish-granter by night

By Josia Klein For children who have been diagnosed with a life-threatening illness, daily life can be full of pain and uncertainty.

Thankfully, organizations like A Special Wish Foundation (ASW) are dedicated to diverting their attention from the world of hospitals and sickness. The Cleveland chapter of ASW is home to many volunteers with giving spirits, large hearts and persistent enthusiasm. Among those staff members is Cleveland attorney and OSBA member Joseph Ritzler.

Ritzler has been involved with the Cleveland chapter of ASW since its inception. When his close friend Jason Beudert had a personal experience overcoming a life-threatening condition, the pair saw the void for a Cleveland-based wish granting organization. With the help of many dedicated individuals, they founded A Special Wish Cleveland as a way to use their connections to give back.

As a full-time attorney and a founding member of Ritzler, Coughlin & Paglia, Ritzler dedicates many of his evenings and weekends to working with ASW. Beudert credits Ritzler for the organization’s success, saying that “Joe’s support on the front end, whether it be financial, operational, or motivational” led them to be where they are today, as an organization with more than 50 wish kids.

There are many different types of wishes that A Special Wish Cleveland can grant to qualifying children and adolescents, and with its focus on hope for full recoveries, patients need not be considered terminally ill to receive a wish. In the past, the organization has provided gifts such as laptops or shopping sprees, and they can also arrange special

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visits. All children dream of meeting their heroes, and meeting a favorite sports star, entertainment figure or government leader can be sure to boost morale for someone battling an.

Large wishes entail visits to special locations, such as Disney World or Hawaii. For these trips, the foundation covers the complete costs of travel, lodging, meals and spending.

Ritzler’s company has a direct effect on these special journeys: in 2015, it sponsored a trip to Disney World for a young girl living with epilepsy.

But the company’s involvement doesn’t end there: for Christmas last year, the business was one of many donors that funded Christmas presents for wish families. Ritzler said it culminated with an amazing experience for wish children and their siblings: “The corporate community was fantastic, and there’s a great civic spirit within the city.”

For Ritzler, continuing to work with A Special Wish has been an easy decision because he was hooked after his first participation with a wish family. He is passionate about the mission of ASW Cleveland because of his unique bonds with the children and families he serves. “Illness is difficult on the whole family,” notes Ritzler, “so we grant wishes every day of the week.”

A Special Wish stays in touch with families year-round, giving parents special date nights, planning birthday parties at Dave and Buster’s or Chuck E. Cheese or simply delivering cookies to the hospital. A life-threatening illness is not a death sentence, and Ritzler states that a goal of A Special Wish is “to be at our wish kids’ college graduations and weddings.”

Joseph Ritzler, co-founder of Cleveland's A Special Wish Foundation.

Being involved with ASW Cleveland is a particularly rewarding experience for its volunteers. One of Ritzler’s favorite experiences was when a local group of Disney Princesses visited a Cleveland hospital and he saw the pure joy on the faces of the children. Ritzler says that his work with A Special Wish has taught him to appreciate his family and his two fantastic, healthy children.

“Joe is a great friend, and without him there is no Special Wish Cleveland chapter,” says Jason Beudert. “In a day and age where people can be very selfish, to find a business owner and family man who is so dedicated to A Special Wish’s success is incredible.”

Ritzler takes satisfaction in being a leader in both the legal profession and the Cleveland community and intends to be involved with A Special Wish Cleveland for many years to come. As an organization that has a lasting effect on children, families and volunteers alike, A Special Wish Cleveland’s mission is an important one.

Author bio

Josia Klein is an intern in the publications department of the Ohio State Bar Association. She is a junior at The Ohio State University, where she studies English.

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Member News Akron

In Memoriam

Karen Adinolfi, Roetzel & Andress, was elected to Chair of the Board of Trustees of the Akron Blind Center.

2016

Reuven J. Katz 91 Cincinnati Feb. 13, 2016

Joseph G. Nauman 88 Kettering March 1, 2016

Cleveland

Michael Distelhorst 67 Powell Feb. 17, 2016

Michael Baker Lange 80 Tiffin March 19, 2016

Patricia A. Shlonsky, Ulmer & Berne LLP, was named a 2016 Client Choice award recipient.

Edward Chyun, Littler, was selected to participate in the 2016 Leadership Council on Legal Diversity (LCLD) fellows program.

Columbus D. Brent Mulgrew, Ohio State Medical Association, received Columbus CEO's 2016 Healthcare Lifetime Achievement Award.

Alex Shumate, Squire Patton Boggs, was named Chairman of The Ohio State University Board of Trustees.

Findlay Elizabeth A. Behrendt, Oxley, Malone, Hollister, Warren & Spaeth, received the 12th Annual Jackson E. Betts Professionalism Award.

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OSBA Member News in Ohio Lawyer magazine is limited to awards and civic duties. The news listed above is edited from press releases that are sent to the OSBA. Other submitted member news, such as promotions and new positions, is featured on the OSBA website.

To keep up to date with the most recent member news, visit ohiobar.org/membernews.

To submit an announcement for consideration in Member News, please email it to the editor at membernews@ohiobar.org.

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Ohio Lawyer

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Inside OSBA

CLE VEL A ND

AUGUST 23-25, 2017

A collective thank you to all who attended and participated in the 2016 All-Ohio Legal Forum and annual meeting. Mark your calendars to save the date for next year: Aug. 23-25, 2017, at the Cleveland Convention Center.

Moot Court seeking competition judges

The Ohio Center for Law-Related Education (OCLRE) is seeking attorneys to judge its high school Moot Court State Competition on Friday, May 20. As 2016 marks the 50th anniversary of the Miranda v. Arizona decision, judges will evaluate students’ oral arguments about what Miranda means today, and how the decision translates to juveniles. Volunteers are also needed to evaluate students’ written briefs. Please complete the volunteer application found at oclre.org/volunteer-opportunities, or contact Caitlyn Smith at (614) 485-3507 or csmith@oclre.org.

OSBA Leadership Academy graduates class of 2016

Each year the OSBA selects a class of 24 up-and-coming lawyers from across the state to participate in the OSBA Leadership Academy. Participants receive instruction in areas of personal and professional development from

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some of the preeminent practicing lawyers and leadership experts in Ohio. Among this year’s class members are Pamela Leist of Cincinnati and Jeremy Young of Columbus.

Pamela is an attorney with the firm of Ennis Britton Co., LPA and represents public school districts across the state.

“The Leadership Academy has provided me with invaluable tools to help me grow professionally and further develop my practice,” Pamela said. “I have gained lifelong connections in the profession that I will leverage for years to come. I am thrilled to be a part of the program, and encourage colleagues to take advantage of the opportunity.”

Jeremy is a business and property litigator in the Columbus office of Roetzel&Andress.

the Leadership Academy, I have come to know bright young lawyers in many areas of practice. It has been an amazing way to expand my professional network. The quality of programming was also impressive. The OSBA ensures that class members receive instruction not only on how to be a better lawyer, but also on how to develop and capitalize on your personal brand in the legal marketplace.

I would highly recommend the Leadership Academy to anyone.”

The Leadership Academy class of 2016 will graduate May 20. If you are a practicing attorney of five to 10 years and you’re interested in developing the leadership skills that will take your legal career to the next level, contact the OSBA to learn about how you can apply to join the class of 2017.

“The Leadership Academy has expanded my network, as well as my horizons,” Jeremy said. “Through

May/June 2016

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27

Foundation News New Fellows invest in impact The Ohio State Bar Foundation will welcome a dedicated group of new Fellows at the 2016 Fellows Induction Ceremony on June 14 at the Thomas J. Moyer Ohio Judicial Center.

President Thomas P. Moushey and Chief Justice Maureen O’Connor will preside over the program and officially welcome new members.

These Fellows will join the ranks of 1,033 civic-minded attorneys from across the state to promote the pursuit of justice and to help the public understand how the

law works for them. While new Fellows will have the opportunity to volunteer for a number of law-related projects, their donations will fuel the Foundation’s grant making efforts. Because of the generosity of Fellows, the Foundation has awarded more than $10.5 million in grants to programs and projects throughout Ohio.

To learn more about the Ohio State Bar Foundation, visit www.osbf.net or contact Kristin Eckert at (614)487-4474 or keckert@osbf.net.

Recognizing excellence Do you know an outstanding attorney or organization doing great work?

Help us tell the world about them.

The Ohio State Bar Foundation honors those who see it as their duty to build a better justice system.

Awards nominations for 2016 are due June 1. For awards criteria and a nomination form, visit www.osbf.net/what-we-do/awards or contact Kristin Eckert at keckert@osbf.net or (614)487-4474.

Joyce Anagnos Toledo

James C. Aranda Lancaster

Kacey S. Chappelear Columbus

Susan A. Choe Columbus

Michael L. Cioffi Cincinnati

George L. Davis III Portsmouth

J. Michael Debbeler Cincinnati

Eleni A. Drakatos Columbus

Lauren K. Epperley Dayton

Jonathan E. Faulkner Dayton

Gary F. Franke Cincinnati

Bradley N. Frick Columbus

John C. Greiner Cincinnati

Jeffry D. Harris Gambier

Genevieve M. Hoffman Columbus

Sunny L. Horacek Dublin

Catherine A. Jopling Columbus

Charles A. Kirby Portsmouth

Robert A. Klingler Cincinnati

Amanda M. Leffler Akron

Clement H. Luken, Jr. Cincinnati

J. Kevin Lundholm New Philadelphia

Mathias D. Manner Columbus

Mag. Arvin S. Miller III Dayton

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Katheryn L. Munger Delaware

Kevin P. Murphy Warren

Drew Odum Cleveland

Joseph C. Oehlers Dayton

Tina T. Pecuszok Toledo

Bradley D. Reed Cleveland

Brian M. Roberts Dayton

Meghan A. Roth Toledo

Marybeth W. Rutledge Kettering

Alan B. Schaeffer Dayton

Thomas R. Schuck Cincinnati

Sen. William J. Seitz Cincinnati

Jeffrey S. Senney Dayton

Hon. James F. Stevenson Sidney

Matthew D. Stokely Dayton

Frederick W. Stratmann Columbus

Dean Andrew L. Strauss Dayton

Courtney J. Trimacco Cleveland

Robert J. Wagoner Columbus

Christopher A. Watkins Lebanon

Vicki R.A. Werneke Cleveland

Dennis V. Yacobozzi II Columbus

Mechelle Zarou Toledo

HONOR. REMEMBER. CELEBRATE.

Honor the exceptional, celebrate an occasion and recognize the significant people in your life with a charitable gift to OSBF. Tribute gifts are an easy way for you to support OSBF grantmaking initiatives and to ensure special colleagues, friends and family receive the statewide recognition they deserve. To dedicate your gift call 614/487/4477 or visit www.osbf.net and click “Donate Now”.

IN HONOR OF

(Gifts received from Jan. 15, 2016, to March 31, 2016)

Beth Ann Gillespie Thomas D. Lammers & Kimberly S. Lammers E. Terry Warren

CONNECT WITH OSBF www.ohiobar.org

IN MEMORY OF

(Gifts received from Jan. 15, 2016, to March 31, 2016)

Prof. Michael Distelhorst Lee E. Belardo

Elizabeth Charlotte “Betty” Moushey

Neil Light Mechelle Zarou

Judge William Skow Mechelle Zarou

Lee E. Belardo

Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation May/June 2016

Ohio Lawyer

29

Books & Bytes Book review of interwoven events and people that seems less coincidence than bound by a common thread of fate. The book focuses on a trio of issues— Watergate, reproductive rights and the cessation of the Vietnam War.

January 1973: Watergate, Roe v.

Wade, Vietnam, and the Month that Changed America Forever,

by James Robenalt. 416 pages.

Chicago, Illinois: Chicago Review Press. 2015. Illus. $27.95.

Sometimes, amidst the ruckus of American history, the stars align themselves. Founding Fathers Thomas Jefferson and John Adams both died on the same day—July 4, 1826, exactly 50 years after they celebrated Independence Day. In Jay Winik’s masterful book, April 1865, the month marked the end of the Civil War and the assassination of Abraham Lincoln. In Cleveland attorney James Robenalt’s latest history book, as the title suggests, the pivotal time is January 1973, a period when “A war would end, a new political movement would get its start, a burglars’ trial would undo a presidency, the Supreme Court would establish a woman’s right to an abortion, and two expresidents would drop dead.” (Putting the month in additional perspective, “Superstition” by Stevie Wonder and Carly Simon’s “You’re So Vain” topped the Billboard music charts, while The Poseidon Adventure reigned in the movie theatres and Jonathan Livingston Seagull led the best-seller fiction list.)

This nutshell synopsis by Robenalt, a partner in the Cleveland law office of Thompson Hine, involves a series

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Robenalt relies heavily on transcripts of numerous court proceedings and the Richard Nixon White House use of secret tape recordings, which give the reader an invisible presence in the taunt chronology. The verbatim transcripts help propel the story at a frantic pace, as Robenalt shifts scenes between the Supreme Court, Capitol Hill, the White House, Camp David, the District of Columbia courtroom of the Watergate burglars, the Vietnam War peace talks in Paris, Southeast Asia and other venues, often in the same day. The changing national and international settings across simultaneous time zones put a global perspective on a travelogue otherwise focused largely on the downtown D.C. political scene.

Nixon’s rationale for installation of the taping system was simple: “We want it someday, if someone wants to write a history.” (That “someone” now obviously includes Robenalt.) During a White House meeting between Nixon and his chief of staff, H.R. Haldeman, Robenalt describes the scene: Then the two men said something that, in hindsight, was fairly amazing.

Neither one seemed to know or remember that Nixon’s office in the Executive Office Building had been bugged for as long as the Oval Office.

Nor did they know that Camp David had a recording system installed.

“It covers here [the Oval Office],” Haldeman said, “and it covers the cabinet room, which adjoined the Oval Office.”

“You should put it in the EOB too,” Nixon said. Haldeman agreed.

“It should be in the EOB.” “I wouldn’t put it in other places, like Camp David, because I make my own notes,” Nixon said. But the EOB, they both agreed, was different. “It would save me having to recall some things,” he said.

This same concept of knowing surveillance also caused Nixon to be skeptical of some surreptitious recordings. When National Security Advisor Henry Kissinger gave the president an update on the South Vietnamese positions of cease-fire talks divulged, in part, from CIA wiretaps, Nixon was leery of the accuracy of the information.

Rarely does Robenalt lapse into editorial comments, which seem out of place in this unbiased and straight forward history text. Robenalt recounts a conversation between Nixon and White House Special Counsel Charles Colson involving the harsh criticism by the CBS television network of the administration’s handling of the Vietnam War: “In a call on December 27, 1972, the two spoke about the need for revenge against CBS, which had been scathing in its reporting about the Christmas bombings. ‘Whatever we can do to them, they deserve,’ Colson said. ‘That’s right,’ Nixon replied. ‘One thing we are going to do is go all out for cable. I think cable hurts all the networks. That’ll really stir them up.’”

Robenalt muses, with the benefit of hindsight and the omnipresent use of a TV remote control, “He had no idea.”

The historical significance of the deaths of Harry Truman and Lyndon Johnson within a month of each other did not go unnoticed, with Colson noting to Nixon, just reelected to a second term,

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that no former president was still living, an event that had not occurred since Herbert Hoover was president after the death of Calvin Coolidge.

Robenalt’s treatment of the Supreme Court decision in Roe v. Wade and the case’s linkage with Texas politics has so many interconnecting characters, dates and coincidences that Robenalt could instead have focused the book on

the role of Texas in the monumental events of January 1973. The plaintiff’s lawyer, Sarah Weddington, was a recent law school graduate of the University of Texas. Robenalt writes, “At twenty-six, Weddington’s total experience in a courtroom consisted of the two-hour argument before a three-judge panel in the proceedings below. Few lawyers with such meager résumés find themselves arguing

before the U.S. Supreme Court.”

mentors professionals to help advance their careers and works with leaders of various stripes in law, government, corporations and higher education. A journalist with a master’s degree and a J.D., Jones has had a distinguished career at the SEC, in Washington law firms and at a Fortune 500 company.

out as especially useful to attorneys and other professionals.

Robenalt has a unique ability to relate history in near breath-taking prose.

The lively dialogue and the author’s interviews with several of the era’s still living participants, makes a retelling of contemporary history an enjoyable, if not a bewildering read.

By Bradley S. Le Boeuf, Akron

Book review

Think Like an Entrepreneur, Act Like a CEO, by Beverly E. Jones. 224 pages. Pub. 2016, The Career Press, Inc., $15.99.

Looking for practical and proven career advice? Are you a fledgling attorney, or a seasoned professional looking or perhaps needing to reinvent yourself, or a lawyer of any age feeling unfulfilled or anxious in your job, or a leader seeking advice on how to inspire others? Well, have I got a book for you. All of you. I recommend Think Like an Entrepreneur, Act Like a CEO, by Beverly E. Jones.

The book is packed with well-organized practical tips that are thought provoking and attitude changing. Jones writes with crystal clarity, efficiency and charm. Illustrative and relatable stories support the tips in each of the

“Bev is the ideal career coach—full of ideas and inspiration. She encourages and educates people—sometimes with a gentle nudge and sometimes with a firm hand. But either way, she gets people to where they want to go. She motivates them to be the best they can be at whatever career they choose. She

The book is packed with well-organized practical tips that are thought provoking and attitude changing. Jones writes with crystal clarity, efficiency and charm.

The subtitle sums it up well: “50 Indispensable Tips to Help You Stay Afloat, Bounce Back, and Get Ahead at Work.”

50 short and targeted chapters. She presents common sense advice on topics ranging from self-discipline to attitudes to managing the boss to harnessing social media for success. The book is an easy read that can be revisited whenever the reader needs a reminder about how to think and behave for the best chances of professional success and personal happiness.

The author is an executive coach based in Washington D.C. She leads retreats,

Among the plethora of self-help books available, this one stands

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The book features other enthusiastic reviews. Here’s one

by Professor Tom Hodson:

also guides people seeking second and third careers in life. She works under the philosophy that it is never too late.”

Well said. Let me add only this: It is never too soon to focus on enhancing your own career and personal satisfaction. This book will help with that journey.

By Sandra J. Anderson, Columbus

May/June 2016

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CLE Calendar

To register or for more information, call (800) 232-7124 or (614) 487-8585, or visit our website at yourosba.ohiobar.org to view the full calendar and discover more courses.

Corporate/Business

LGBT Diversity and Inclusion Conference June 15

Hold the Applause: Handling Clients and Ethical Considerations July 7

Business Law Conference May 23

Labor & Employment

Other

Law Office Management

Young Lawyer Connect June 8

Liquor and Gaming Video Replay May 16

Ticket Sales: Marketing and Generating Revenue June 8

Criminal

Death Penalty Defense: Trials and Appeals May 5 & 6

Advanced Employment Law Update and EEOC Initiatives May 8 Filling the Seats: Setting Up Your Office and Billing/Fees May 6 Best in Law Firm Technology June 20

Elder Law

The 2016 Medicare \ Medicaid Forum June 29

Estate Planning, Trust & Probate Law

Litigation

Civil Litigation and Trial Skills (V) May 11

Basics of Estate Administration June 22

Trial Evidence for the Ohio Practitioner (V) May 12

27th Annual Conference on Wealth Transfer June 24

E-Discovery: From 50,000 Feet to Ground Level May 20

Family Law

Taking and Defending Effective Depositions June 16 & 28

Ohio Family Law Institute June 9 & 10

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Government Practice Institute May 13

Real Property

Titles to Real Estate June 7

Workers Compensation

Follow the Yellow Brick Road of Workers' Comp 102: The Tin Man and The Scarecrow June 15

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