November/December 2016

THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

November/December 2016

12 ways to help a veteran 5 Ohio women lawyers who are breaking glass ceilings 5 ways to modernize your practice

VOL. 30, NO. 6 www.ohiobar.org

Protecting your reputation before, during and after the storm.

OBLIC is there to protect your reputation when you need it most.

Reputation Matters. Let OBLIC Protect Yours.

Owned and Proudly Endorsed by the OSBA, OBLIC is the only carrier exclusively devoted to protecting Ohio attorneys. #REPUTATIONMATTERS Visit www.oblic.com to Apply Now or call (800) 227-4111 for more information.

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OhioLawyer

Vol. 30 No. 6 Departments 2 | Letter to the Editor Reader responds to recent issue 3 | President's Perspective Help shape the future of the profession

Features judges: Uncontested matters 10 | Private [O.R.C. 2701 .10]

14 |

by Judge Michael E. Gilb Private judges help today’s practitioners minimize stress associated with attending a final hearing in a civil matter and are especially useful in uncontested proceedings.

Ohio ranks above national average of trailblazing women attorneys

by Tori Metzger Compared to the national women lawyer average of 36%, Ohio women lawyers make up 41% and are at the forefront of breaking the glass ceiling.

ways to help Ohio veterans and 24 | 12 servicemembers

by Steve Lynch Learn how lawyers can help Ohio veterans in time for Veterans Day.

5 | Inside OSBA OCLRE call for volunteers and support; 2016 Leadership Academy; Ohio Jury Management Association announces award 6 | Foundation News OSBF honors excellence in the profession 7|

Member News Awards and community involvement of OSBA members

8 | Books & Bytes Book Review: Notorious RBG: The Life and Times of Ruth Bader Ginsburg 26 | Practice Tips Blaming the employer: Strategies for limiting your client’s exposure 28 | Practice Tips 5 ways to modernize your practice

30 | Practice Tips Fraud prevention measures

32 | CLE Calendar November and December programs

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November/December 2016

Ohio Lawyer

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OhioLawyer Ohio Lawyer is published bimonthly by the Ohio State Bar Association.

Ohio Lawyer Staff Editor: Nina Corbut Editorial: Tori Metzger

Graphic Designer: Chris Lochinski Website Editor: Dan Beckley

Content Advisory Board Judge David Hejmanowski, Chair, Delaware Steve Bolton, Youngstown Alicia Graves, Cleveland Thomas L. Guillozet, Versailles Paul Hervey, New Philadelphia Rachael Ingram, Westerville William Kaufman, Lebanon

OSBA Officers

President: Ronald S. Kopp, Akron President-elect: Randall M. Comer, Springfield

Kris Long, Columbus Joseph L. Ludovici, East Liverpool Kevin P. Murphy, Warren Erin Rhinehart, Dayton Stephen L. Smith, New Bremen Judge James Stevenson, Sidney

Executive Director: Mary Amos Augsburger

Advertising Sales and Editorial Offices

Ohio State Bar Association P.O. Box 16562 Columbus, Ohio 43216-6562 (800) 282-6556; (614) 487-2050

Advertising: ODelGarbino@ohiobar.org Editorial: ncorbut@ohiobar.org Printing: Hopkins Printing

Dear editor: The two [recent Ohio Lawyer] articles paint a rosy picture of limited representation or “unbundling the bundle” as its proponents like to refer to this giveaway. Like the comments of attorney Laurence Lasky, I, too, believe limited representation is another blow to an attorney’s ability to survive and is fraught with danger. Nothing in the two articles present the down side; because other states permit limited representation adds nothing.

Limited representation is the perfect scenario for Murphy’s Law; what can go wrong will. Is the case one in which limited representation might work? If the pro se litigant finds himself in the lion’s den, it’s the attorney’s fault as he will contend the attorney should not have let him do this in the first place. If this happens, you might find yourself working to right the ship and spending uncompensated time working on something you did not agree to. If you leave him to his own devices, he may have a malpractice claim.

Ohio Lawyer is published as a service to members of the Ohio State Bar Association through their dues and is not available to nonmember attorneys. Governmental agencies and educational and legal research organizations may subscribe annually for $35. Single copies to members and qualified subscribers are $7.

To avoid such a situation, the attorney will find himself looking downfield attempting to foresee what can go wrong and crafting a limited representation agreement to cover any possible situation. This will be time consuming to say the least, and if you do not cover yovurself, a malpractice claim. The end result is the attorney will be practicing defensive law, putting himself at increased risks and looking over his shoulder at his insurance carrier, one who would likely raise rates if you participate in limited representation.

©Copyright 2016 by the Ohio State Bar Association. All rights reserved. Any copying of materials herein, in whole or in part, and by any means, without written permission, is prohibited. Requests for reprint permission should be sent to the Ohio Lawyer editorial offices.

Editor reserves the right to reject any advertising submitted for publication. While advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication in Ohio Lawyer. Statements or expressions of opinion herein are those of the author and not necessarily those of the Ohio State Bar Association, its officers, staff or the board of editors.

It is evident the personal injury, medical malpractice and other specialty attorneys have written themselves out of the equation. That means the “Main Street” attorney, the general practitioner, will bear the burden for the benefit of the pro se litigant, the courts and the specialists.

Editorial Offices

Ohio Lawyer (issn 1097-6493) is published bimonthly by the Ohio State Bar Association, P.O. Box 16562, Columbus, Ohio 43216-6562. Phone: (800) 282-6556 or (614) 4872050. Periodicals postage paid at Columbus, Ohio and additional offices. Ten dollars of dues pays your required subscription to Ohio Lawyer.

Manuscript Submission

OSBA members are encouraged to submit manuscripts to the editor for possible publication in Ohio Lawyer. Articles submitted should not exceed 10 typewritten, double-spaced pages.

Manuscripts are not purchased, and those submitted become the property of the Ohio State Bar Association. Editorial policies can be obtained by calling (800) 282-6556 or (614) 487-2050 or visiting www.ohiobar.org/editorial policy.

Postmaster (USPS 016-304): Send address changes to Ohio Lawyer, P.O. Box 16562, Columbus, Ohio 43216-6562.

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Letter to the editor

Ohio Lawyer

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November/December 2016

It’s all a limitation on the attorney’s ability to make it. The “Main Street” attorneys may well find themselves going the way of medical family practice, giving up as they find themselves in a no-win situation with increased burdens and rising costs. That eager new law school graduate who hangs out his shingle in a limited representation environment won’t have much to look forward to since his charges will be a fraction of what they could have been, and at the same time meet his expenses and repay his school loans. It’s not additional clients; it’s part of the great American giveaway at the attorney’s expense.

Eddie Lawson, Springboro

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Help shape the future of the profession The practice of law has changed more in the past decade than it had perhaps in the preceding 100 years. When I began practicing in the late 1970s, the way I went about my job wasn’t much different from the way my predecessors had gone about theirs some 70 or 80 years before—perhaps excepting the advent of the copy machine.

In the following years, proliferation of the fax machine brought about changes to a degree. It was the rise of the computer in the mid- to late-1990s, however, that revolutionized everything we do.

The computer has improved our profession in many respects. It helps us to do better research. It allows us to file with courts electronically.

We communicate more quickly with our clients and opposing counsel.

But with that improvement has come challenges. Internet services market to our clients, threatening to take legal business once only the province of Ohio lawyers. At the same time, clients feel ever more capable of handling their own legal affairs by use of forms and other information readily obtained through the Internet.

We hear from courts as we travel around the state, by the way, that they are being overwhelmed by pro se litigants who are using forms to handle their own legal affairs.

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Meanwhile, though most citizens in this country have needs for civil legal services, most say they cannot afford a lawyer. Yet, we have a plethora of lawyers who are five years or less out of law school reporting that they are unemployed or underemployed.

Many law school graduates have not been able to obtain a law-related job at all. The irony is not lost upon us!

After speaking at an OSBA district meeting earlier this fall, one young lawyer told me he had not been able to find a job in the four years since graduating from law school. He said that he attempted to cobble together about 20 hours of work per week at various jobs he would call “legal work,” while filling the rest of his time with work unrelated to the law.

Remarkably, he claimed to make more income from the non-legal work.

Meanwhile, this person has over $130,000 in student debt. He reported that he had barely been able to make a nick in that, let alone a dent. (My tuition at Ohio State’s law school in the late 1970s was only $459 per quarter!)

As I have traveled around Ohio, I’ve seen up close how common this lawyer’s story is. While the economy has improved since 2008, the legal market has never fully recovered. It is fundamentally and structurally changed.

As a result, law school applications have declined, and many fewer are graduating from law school today than in 2007, leaving fewer lawyers to enter the pipeline. Meanwhile, 25 percent of all lawyers in Ohio are 63 years old and older. That means that about onequarter of the lawyers in Ohio should be retiring in the next five or so years.

The good news for younger lawyers is that this rate of retirement among baby boomers should continue to open doors for those seeking legal work. A fear is, though, that those taking over at the earlier end of the spectrum may not be as well trained as the lawyers in my generation.

Lawyers are not practice-ready upon graduation, and yet a large number are forced by the job market to dive into the practice whether they are ready or not—and too often without training from a more experienced lawyer.

At the same time, some would suggest that a few of our law schools have begun accepting students not otherwise qualified to attend. The belief is that this practice has seriously eroded bar passage rates. Passage rates for the last two bar exam sessions have been the lowest in memory.

Some have advocated requiring law schools to shore up their standards, but others rightly point out that assiduous enforcement standards might disproportionately exclude

November/December 2016

Ohio Lawyer

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"...fewer lawyers are entering the pipeline. Meanwhile, 25% of all lawyers in Ohio are 63 years old and older.

That means that about one-quarter of the lawyers in Ohio should be retiring in the next five or so years."

some minorities who would very much like to become lawyers.

These are just some of the challenges facing our profession as we walk into the future. As a result, your Ohio State Bar Association has established a Futures Commission that is exploring all of these issues and more.

Ohio lawyers believe these entities are a boon to their business. Others regard them as competition. One law school dean said recently that bar associations should get out of the way and let these entities serve the public, given that a huge percentage of the population currently believes it is underserved. I’m curious if you agree.

One of the primary issues the Futures Commission is considering is whether and to what extent internet services (such as Avvo, Rocket Lawyer, and others) should be regulated by the Supreme Court or legislature. Some

The Futures Commission is chaired by President-Elect Randall Comer, and it will report its recommendations next year. I would love to hear from you with thoughts, questions and ideas. I will make sure any communications

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are passed on to the Futures Commission. Feel free to write to me at rkopp@ralaw.com, or write to Randall at rcomer@martinbrowne.com.

The future is ours to make. The OSBA is preparing for it. We invite you to join us!

Ronald S. Kopp is the president of the Ohio State Bar Association and partner at Roetzel & Andress in Akron.

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Inside OSBA 2016 Leadership Academy

OHIO CENTER FOR LAW-RELATED EDUCATION

The OSBA Leadership Academy trains lawyers for future opportunities for leadership in the Association, profession and community. Congratulations to the class of 2016!

Christopher L. Brown City of Mansfield, Deputy Law Director

Magistrate Deborah G. Lang Licking County Court of Common Pleas, Domestic Relations Division

Matthew B. Bryant Bryant Legal LLC

Pamela A. Leist Ennis Britton Co., LPA

Andrew C. Clark O’Reilly Law Offices

Jacob H. Levine Law Office of Jacob H. Levine

Christopher T. Curry Chris Curry, Attorney at Law

Robert H. Meyer, IV Kendall and Meyer Law

Magistrate Erica J. Gordon Seneca County Common Pleas Court

Christine M. Smith Smith Law Office

Alicia N. Graves Law Offices of Alicia N. Graves

Michelle Tussing Ohio Military/Veterans Legal Assistance Project (Operation Legal Help Ohio)

Todd B. Guelde Hallett Hallett & Nagel Jeanna V. Jacobus Associate Assistant Attorney General, Court of Claims Defense Joshua M. Kin Pickrel Schaeffer Ebeling Arun J. Kottha Goodyear Tire & Rubber Co.

Interested in the Constitution?

Try We the People January 27; May 17

Interested in appellate advocacy?

Try Moot Court May 5

Interested in social justice?

Try Youth for Justice / Project Citizen May 10

Interested in litigation?

Michael G. Van Buren Calfee Halter & Griswold LLP

Try Mock Trial March 9-11; March 24; March 30-31 Visit www.oclre.org/volunteer to learn more about the programs or to register to volunteer. For more information or questions, contact oclre@oclre.org.

M. Philip Walton Attorney at Law Jamie Wittensoldner Gruber, Thomas & Co. Jeremy S. Young Roetzel & Andress

To learn more about the Leadership Academy visit ohiobar.org/LA.

www.ohiobar.org

The Ohio Center for LawRelated Education is looking for volunteers to serve as judges for its culminating activities:

The Ohio Jury Management Association (OJMA) has been selected as the recipient of the National Center for State Courts’ (NCSC) 2016 G. Thomas Munsterman Award for Jury Innovation. The Munsterman Award recognizes states, local courts, organizations or individuals that have made significant improvements or innovations in jury procedures, operations and practices.

November/December 2016

Ohio Lawyer

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Foundation News OSBF honors excellence in the profession Before a sold-out crowd at the Ohio State Bar Foundation’s Annual Awards Dinner on Oct. 7, 2016, we honored Sandra J. Anderson, Ronald L. Kahn, Drew Odum and the Summit County Juvenile Court Crossroads Program for their commitment to the ideals of the Ohio State Bar Foundation. To read more about their legacies, visit osbf.net.

We are grateful to our Annual Awards Dinner Sponsors – this event was made possible because of your generosity. Thank you.

Dinner Sponsor

Welcome Reception Sponsor

Network & Nightcap Sponsor

In honor of Past President Lee E. Belardo, sponsored by President Thomas P. Moushey and Geiger Teeple Robinson & McElwee PLLC.

Table Sponsors

CareSource Cheeseman, LLC Geiger Teeple Robinson & McElwee PLLC Kitrick, Lewis & Harris, Co., LPA Ohio State Bar Association

Pickrel, Schaeffer and Ebeling Roetzel & Andress The Ronald McDonald House of Cleveland Thompson Hine Tucker Ellis LLP Ulmer & Berne LLP

Nominate a civic-minded attorney for the OSBF Fellows Program

Do you know a lawyer whose career demonstrates outstanding dedication to the welfare of his/her community? Do they serve their profession and community with integrity and honor? If your answer is yes, we invite you to nominate them to the OSBF Fellows Program. Nominations – including self-nominations – are due by Dec. 15. Forms are located at www.osbf.org/who-we-are/fellows. For additional information, contact Kristin Eckert at keckert@osbf.net or (614) 487-4474.

CONNECT WITH OSBF 6

Ohio Lawyer

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

IN MEMORY OF

Gifts made between July 15, 2016 and Sept. 28, 2016

Gifts made between July 15, 2016 and Sept. 28, 2016

Hon. James A. Brogan Patrick J. Foley

Erle Bridgewater Hon. Edward S. Robe

Courtney W. Burton R.C. Wiesenmayer

Carole Dougherty Ronald W. Dougherty

John D. Holschuh Jr. Michael A. Baer

Honorable David Dowd Hon. Jack & Mrs. Kathleen Zouhary

Ronald L. Kahn Joan A. Green Amy M. Handel Howard Karfeld Joan M. Levin Jeff and Roey Margulies Douglas B. Mayers Ricki T. Schwartz OSBF President Thomas P. Moushey Michelle L. Kranz Ohio Lawyers Assistance Program Scott R. Mote Denny L. Ramey Joseph W. Shea Robert Trafford Ralph K. Frasier

Hon. David A. Katz Reginald S. & Joanne Jackson Hon. Jack & Mrs. Kathleen Zouhary Edward S. Noble Kraig E. Noble Margaret M. Stolar Toba Jeanne Feldman Heather Sowald & Robert Kaplan Hon. John B. Tracy Louis and Estelle Tracy Ret. Hon. Thomas Unverferth Kraig E. Noble

Rob C. Wiesenmayer II R.C. Wiesenmayer

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

November/December 2016

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Member News Columbus

In Memoriam

Thomas Rosenberg, Roetzel & Andress, has been elected as a Fellow of the American College of Construction Lawyers for 2017.

2016

Cleveland Keith A. Ashmus, Frantz Ward LLP, is the recipient of the prestigious William Booth Award from the Salvation Army of Greater Cleveland.

Ronald L. Kahn, Ulmer & Berne, received the Ramey Award for Distinguished Community Service from the Ohio State Bar Foundation.

Mansfield Christopher L. Brown, City of Mansfield, was named winner of the American Bar Association’s national Up and Comer Award.

John W. Wurts, Jr. St. Petersburg, FL Vincent N. DePascale Upper Arlington

79 March 28, 2016

David A. Caborn Upper Arlington

58 Aug. 24, 2016

75 April 21, 2016

William Weigl Kettering

90 Sept. 21, 2016

Michael Roy Szolosi, Sr. 71 Columbus May 26, 2016 Hon. David A. Katz Toledo

82 July 26, 2016

Charles R. Grieser Columbus

95 July 29, 2016

David D. Dowd, Jr. Naples, FL

87 Aug. 4, 2016

Jay D. Cutrell Georgetown

65 Aug. 8, 2016

Pericles “Perry” Stergios 55 Massillon Oct. 9, 2016

This list is not all-inclusive. To see a complete list of OSBA Member News, visit ohiobar.org/membernews.

Painesville Josh Strickland, Dworken & Bernstein Co., received the Ohio State Bar Foundation’s District 18 Community Service Award for Attorneys 40 and Under.

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.

www.ohiobar.org

November/December 2016

Ohio Lawyer

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Books and Bytes Book Review: Notorious RBG: The Life and Times of Ruth Bader Ginsburg

By Josia Klein

Notorious RBG: The Life and Times of Ruth Bader Ginsburg, by Irin Carmon and Shana Knizhnik.

240 pages. New York, NY: Dey Street Books. 2015. $19.99.

Notorious RBG is an homage to Supreme Court Justice Ruth Bader Ginsburg, the originally underestimated octogenarian whose passionate dissents incited the Internet memes that turned her into a national phenomenon.

The Notorious RBG sensation began as a Tumblr account created by co-author Shana Knizhnik. A law student at the time, Knizhnik wanted to pay digital tribute to Ginsburg’s 2013 dissent defending the Voting Rights Act. She then partnered with journalist Irin Carmon to create Notorious RBG, a graphic non-fiction book that delves into Ginsburg’s life and legal career accompanied by interviews, annotated court decisions, photos, archived documents and gorgeous illustrations.

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Ohio Lawyer

Justice Ginsburg’s explosion in popularity was unprecedented, as her previous 30 years as a judge had landed her a reputation as a restrained moderate. The book’s title is a reference to influential rapper Biggie Smalls, also known as The Notorious B.I.G. While the physical contrast between an elderly Jewish woman and a 300-pound performer is striking, similarities between the pair can be found in that both are from Brooklyn and each can “pack a verbal punch,” according to Knizhnik. Each chapter of the book is inspired by Biggie’s lyrics, including the notable “Your Words Just Hypnotize Me” and “Been in This Game for Years.”

The book’s aesthetic was described by The New York Times as “if a scrapbook and the Talmud decided to have a baby.” It is an accurate depiction: Alongside biographical chapters detailing Ginsburg’s childhood, college and legal experiences (including her first cases to the Supreme Court and the numerous sexist barriers she faced in the professional world) are annotated versions of her favorite legal briefs that she delivered to the Supreme Court.

Ginsburg’s firsthand accounts of sexism in the legal and professional world serve as a reminder of her work in the continuation of the Women’s Rights Movement. Readers see her progression from a timid law student, afraid to make waves even as she was disqualified for a job due to pregnancy, to a fierce law professor, helping to win a federal class-action paydiscrimination claim after discovering the wide wage gap between her salary

November/December 2016

and those of her male peers. Even into her term on the Supreme Court, the sexism continued: At parties, when introduced alongside her husband Marty as “Judge Ginsburg,” hands still stretched to him rather than Ruth.

RBG Tattoo by Nikki Lugo on Rachel Fink The chapter designated to Ruth and Marty’s love story portrays a loving relationship based in equality. The pair traded off in their sacrifices, compromising for success at work and at home. Though Ruth transferred to Columbia from Harvard for Marty’s career, Marty was the full-time caretaker of their daughter Jane when Ruth moved abroad to research her first book. Upon discovering that his wife was a horrible cook, Marty took over the culinary duties for the family. Meanwhile Ruth handled the finances, a balance that served them well. Ruth describes Marty as her “best friend,” and the book takes an emotional turn as it depicts Marty’s final days, including his final letter to Ruth, written in the hospital. After

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@ohiokate, Instagram Marty Ginsburg’s death in 2010, the court was hearing an important case; at the urging of her children, Ruth returned to the bench the very next day with a dark ribbon in her hair.

Today, Ginsburg has found her niche on the court and does not shy away from being a lone dissenter, vocalizing the passionate opinions that led to her Internet fame. She makes no apologies for her discord, warning, “I will continue to give voice to my dissent if the court veers in the wrong direction when important matters are at stake.”

Ginsburg offers a complex perspective as an utterly unparalleled woman: Her closest friend on the court was legal opposite Antonin Scalia, she gave up water-skiing only as she entered her seventies, and she refuses to resign even as she faced pancreatic cancer in 2009.

Though the writing can at times be bulky, the takeaways from the novel are clear: Work for what you believe in. Choose your battles wisely. Don’t be afraid to take charge.

And, above all else, have a sense of humor—a little goes a long way.

Author Bio

Josia Klein was an intern in the publications department of the Ohio State Bar Association.

She is a senior at The Ohio State University, where she studies English with minors in Women’s Studies, Professional Writing and Human Rights.

© Eleanor Davis

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November/December 2016

Ohio Lawyer

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Ohio Lawyer

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Private judges help today’s practitioners minimize much of the stress associated with attending a final hearing in a civil matter and are especially useful in uncontested proceedings.

M

ore than 30 years ago, in the early 1980s, as the idea of using private judges was just emerging, a handful of states including Ohio adopted legislation authorizing private judges to handle civil matters (anything from complex civil disputes to private family law matters [traditional and non-traditional]).

child care, waiting for your case to be called, and other issues only add to the drama often associated with attending a final hearing in a crowded courthouse.

R.C. 2701.10 provides that the parties to any civil action may refer such action for adjudication (in its entirety) to a private judge.1

The Ohio statute was adopted in 1984, but the concept of private judging dates as far back as 1872.

At that time, California had a general reference statute, but it wasn’t until the mid-1970s that the idea of using private judges started to blossom.3 In 1976, three Los Angeles lawyers used a private judge to handle a complex commercial case. In 1979, Judge H. Warren Knight retired from the bench and founded Judicial Arbitration and Mediation Services (JAMS), the first company to offer private judges and now one of the nation’s largest providers of alternative dispute resolution services.4

Used properly, employing a private judge could enable today’s practitioners to minimize much of the stress (upon themselves and their clients) associated with attending a final hearing in a civil matter, which would be especially useful in uncontested proceedings.

Issues like missing school or work, fighting traffic and congestion, finding and paying for parking, securing

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Are private judges a new concept?

The statutory authority for private judge proceedings has existed for decades.2

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When is it rational to use a private judge?

The California experience suggests that private judges are most popular in two types of cases: complex civil litigation and divorces.5 In Ohio—used creatively—I suggest that private judges could be useful in any number of civil matters, including uncontested divorces or dissolutions, including post-decree matters; child custody, support and visitation, including grandparent rights; paternity actions; estate and trust matters; guardianships; conservatorships; receiverships; and other civil matters where judicial intervention is mandated. Moreover, I suggest that private judges may be especially useful in matters that are uncontested, but where a judge’s authority and signature are required.

In complex civil litigation, private judges are useful because they

typically move proceedings quicker than such proceedings would move in the public court system; proceedings are generally more private (held somewhere other than a public courtroom); such proceedings offer more sensitivity with handling confidential information; and a private judge is generally more focused (such judge isn’t dealing with a crowded docket) and has more specialized knowledge (in public court, judges are randomly assigned to a case and the overall experience of the judge is unknown prior to assignments).6 In family law matters (traditional and non-traditional), a private judge adds privacy to the proceedings— keeping the parties out of a crowded public courtroom (hearings can be held in an attorney’s office or another mutually agreeable location).

Additionally, the proceedings are

more convenient to the parties (especially useful for uncontested matters). A private judge can also offer practitioners greater flexibility in choosing an appropriate forum since a private judge can generally appear in any of Ohio’s 88 counties.7

The 1984 statute remains underutilized

Although the Ohio statute has existed since 1984, it remains underutilized, even though it is a valuable tool for many of today’s practitioners.

In Ohio, private judges are at work handling civil and family law matters. The “pioneer” of private judging in Ohio may be Judge Donald A. Cox, who retired from the Gallia County Common Pleas Court bench in 1992. He founded Judicial Alternatives of Ohio, Inc., in 1993, and has been

I suggest that private judges may be especially useful in matters that are uncontested, but where a judge's ` authority and signature are required.

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providing mediation, arbitration and private judge services ever since.8 He offers what he calls an innovative and unique “divorce route” that provides private hearings in attorney offices, litigants’ homes, public libraries, even nursing homes. His website reports having handled cases in more than 30 counties, having conducted more than 100 civil trials and countless mediations and arbitrations.

In 2012, private judges heard a substantial number of divorces in Franklin County, with Judge Cox handling the majority of those cases.9 The evidence suggests that the number of private divorce hearings will continue to rise as more couples (traditional and non-traditional) take advantage of the benefits provided by using a private judge. The primary benefit is being able to schedule on their time, rather than appearing at a crowded courthouse for hearings or conferences.10 Another benefit is the privacy and flexibility in choosing an appropriate forum.

In Ohio, private judicial referrals will grow as more Ohio practitioners turn to private judges to handle their civil matters. Judge James L. Kimbler recently retired from the Medina County Common Pleas Court bench; he founded North Coast ADR Services, and through North Coast, offers mediation, arbitration and private judging services pursuant to R.C. 2701.10.11

Private judges keep Ohio’s justice system moving

The concept of employing a private judge promises to move the practice of law forward in Ohio.

Crowded courthouses, reduced budgets and jammed dockets tend to slow our civil justice system, and constitutional directives mandating preference in criminal cases force more and more civil matters to take a back seat. Fully using R.C.

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2701.10 and its provisions on private judging permits the parties to any civil action in any court to have such matter referred (in its entirety) to a private judge.12 Once an appropriate referral is made, the judge before whom the matter is pending in public court “shall order” the referral to the private judge.13 Furthermore, once the order of referral is put on, the private judge has all the powers, duties and authority of an active judge.14 Any judgment entered by a private judge has the full force and effect of a final judgment in a public court.15 Any judgment rendered by a private judge is fully reviewable on appeal.16 Unlike arbitrators or mediators, private judges are officially part of the state court system; their judgments have the same force and effect as judgments of any other state court, and their judgments can be appealed in the state court system.17 Imagine for a moment (both for yourself and your clients) no unnecessary trips to the courthouse, no fighting traffic or waiting in line, no juggling child care, and no lost time waiting for your case to be called—you control the schedule, the time and the place for your final hearing.

If you take advantage of private judging, these imaginations could be possible.

Practitioners should look creatively at R.C. 2701.10, and how using a private judge may assist them (and their clients) to navigate smoothly and quickly through the civil justice system, especially in uncontested matters.

Author bio

Judge Gilb sits on the General Division of the Warren County Common Pleas Court in Lebanon, Ohio.

He was elected to three terms and served 6 years (from 2001-2007) as a State Representative in Ohio. He graduated from the University of Cincinnati in 1982, and Ohio Northern University College of Law in 1985. He practiced law in Ohio for 30 years before becoming a Judge.

Endnotes 1 R.C. 2701.10(B)(1).

2 Id. (Ohio’s statute was adopted in 1984).

3 Anne S. Kin, Rent-A-Judges and the Cost of Selling Justice, 44 Duke Law Journal 166-199, at 173 (1994); available at http:// scholarship.law.duke.edu/dlj/vol44/iss1/4.

4 Id. at 174.

5 Id. 6 Id. 7 R.C. 2701.10(A).

8 See www.privatejudgedonaldcox.com.

9 See “Many Opt for Private Judges in Franklin County (Couples often use them for dissolution, uncontested divorce),” Columbus Dispatch, Feb. 11, 2013. www.dispatch.com/content/stories/ local/2013/02/11/frequent-use-ofprivate-judges-in-county-is-rare.html.

10 “Compare: Should You Hire Your Own Private Divorce Judge?” Posted Jan. 20, 2015. www.divorceattorneysohio.com/2015/01.

11 See www.northcoastadrservices.com.

12 See note 1.

13 R.C. 2701.10(C).

14 Id.; see also, note 3, at 170.

15 R.C. 2701.10(D); see also, note 3, at 170.

16 Id. 17 Id.; see also, note 3, at 166.

Who knows, employing a private judge may not just lessen a client’s burden. It may, in the end, make the practice of law more enjoyable.

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Ohio ranks above national average of trailblazing women attorneys

by Tori Metzger

T

he first woman lawyer, Arabella Mansfield, was admitted to practice law in the U.S. in 1869, yet in 2015 The Washington Post dubbed the legal profession “the least diverse profession in the nation.”1 Where does Ohio rank on the women’s diversity scale comparatively?

Years ago, many law firms claimed that there simply weren’t enough highly educated women who applied for hire, but those women didn’t, and still don’t, agree. Like many other careers, women weren’t welcome for hire until it was absolutely necessary.

In the 1940s during World War II, young and middle-aged men went overseas to fight in the war, forcing law firms to either hire women attorneys or pause business. When 417,000 men didn’t return, law firms decided to keep those women attorneys and hire even more.

According to Constance Cook, a graduate of Cornell Law School during the war and one of the first women hired by Shearman & Sterling, “Women with marvelous qualifications had been graduating from law school for 75 years, and they never took any of them. There’s no question. They were desperate for help.”2 Many believe the glass ceiling has been shattered, but reports prove otherwise. The ABA Journal reported in March 2016 that full-time female lawyers still earn only 77.4 percent of the pay of their male counterparts, equating to roughly ¾ or 77 cents of the male dollar.3

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www.ohiobar.org

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In 2006 the National Association of Women Lawyers (NAWL) challenged America’s 200 largest law firms to increase the number of women equity partners, women chief legal officers, and women tenured law professors to at least 30 percent by 2015.

After nearly a decade, those numbers have hardly budged. Today women comprise 18 percent of equity partners, up only 2 percent from the 2006 survey.4 “If the pace of progress over the past 10 years continues, women equity partners will not reach the NAWL Challenge goal of 30% until the year 2181,” a NAWL press release said.5 Although these numbers might be different for solo, small and mid-sized firms, only a handful of large firms nationwide took this challenge seriously, which seems to be the issue at the core of the profession’s diversity struggle.

Similar to an early 1900s women’s suffrage advertisement, some of today's law firms tout women’s diversity programs on their websites, career pages or marketing initiatives.

When will women attorneys be welcome at all law firms, not just some, and when will it be universally understood by the legal profession?

Even after the continuous effort to prove their intelligence, prestige, business value, work ethic and passion

for the law to their clients, male counterparts and bosses, women in the profession have more glass ceilings to break. Just as before, Ohio’s women lawyers are at the forefront of that challenge.

and current goals on the next page.

Ohio’s practitioners should be proud of their history of trailblazing women attorneys. Out of 50 states, Ohio became the sixth state in the nation to admit its first woman lawyer to practice in 1873, and the sixth state to appoint its first woman judge in 1921. The last state to admit a woman to the bar was Delaware in 1923, exactly 50 years after Ohio. The last state to appoint its first woman judge was North Dakota in 1979, only 37 years ago.6

Author bio

Ohio has been ahead of the curve since 1873. According to the American Bar Association’s 2016 lawyer demographics, 64 percent of America’s lawyers are men and 36 percent are women.7 As of Oct. 1, 2016, there are 15,781 registered women attorneys in Ohio.8 With a total of 38,237 attorneys in the state, 41 percent are women, putting Ohio ahead of the country’s average.

Among Ohio’s trailblazing women are the current Chief Justice of the Supreme Court of Ohio, the first woman Attorney General of Ohio, the Mayor of Toledo, business partners, presidents and chief counsel. Read about their journeys, accomplishments

To join and support the success of other women attorneys, become a member of the OSBA’s Women in the Profession Section.

Tori Metzger is a content strategist at the Ohio State Bar Association.

Endnotes 1 www.washingtonpost.com/posteverything/ wp/2015/05/27/law-is-the-leastdiverse-profession-in-the-nation-andlawyers-arent-doing-enough-to-changethat/?utm_term=.b51dca33b4cf 2 Bowman, Cynthia Grant, “Women in the Legal Profession from the 1920s to the 1970s: What Can We Learn From Their Experience About Law and Social Change?” (2009).

Cornell Law Faculty Publications. Paper 12. scholarship.law.cornell.edu/facpub/12.

3 www.abajournal.com/news/article/ pay_gap_is_greatest_in_legal_occupations/ 4 www.nawl.org/2015nawlsurvey 5 www.businesswire.com/news/ home/20151027006122/en/Law-Firms-RealProgress-Promoting-Women-Lawyers 6 wlh.law.stanford.edu/wp-content/ uploads/2011/01/sleeth-first-woman-lawyers.pdf 7 www.americanbar.org/content/dam/ aba/administrative/market_research/ national-lawyer-population-bystate-2016.authcheckdam.pdf 8 Supreme Court of Ohio database.

Above: Florence E. Allen, 1912

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www.ohiobar.org

CHIEF JUSTICE MAUREEN O’CONNOR

The Supreme Court of Ohio

Why did you want to become a lawyer?

To help people. My law degree opened many opportunities for public service work—and the good that public servants can perform in those roles—as a magistrate, judge, county prosecutor, lieutenant governor, and member of the Supreme Court of Ohio.

Give us an overview of your day-to-day work and lifestyle.

My day consists of handling administrative matters that are the Chief Justice’s responsibility, writing opinions, reading the briefs for upcoming cases set for oral argument, speaking to groups about the Supreme Court and judicial election reform, and meeting with staff members to keep abreast of projects the administrative staff is working on. Of course it varies by day, but most days consist of one or more of those tasks.

What goal are you currently working toward?

Ending the scourge of opioid addiction in Ohio and addressing the ongoing impact that court fines, fees, and bail practices have on communities, especially the economically disadvantaged, across the United States. I am co-chair of the Conference of Chief Justices

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OHIO BECAME THE SIXTH STATE IN THE NATION TO APPOINT ITS FIRST WOMAN JUDGE IN 1921. and the Conference of State Court Administrators’ National Task Force on Fines, Fees and Bail Practices.

What is the best career advice you’ve received?

To turn my passion into a career if at all possible.

as a member of the Court. It was and is challenging. I have never been afraid of hard work, so it was a matter of working harder and smarter and relying on the excellent staff in place at the Supreme Court to keep up with the workflow.

What do you do in your spare time?

What does work/life balance mean to you?

Working in a meaningful job, yet building in time for family, community, spiritual growth, and myself.

What is the biggest challenge you have overcome in your career & what did you learn from it?

As I near the end of my first six-year term as Chief Justice, handling all the administrative matters as Chief and keeping up with the caseload

Play with and be involved in the lives of my five grandchildren, ages four and under; travel.

What is something others might not know about you?

I like to fly fish.

How do you define success?

Making a positive difference in the lives of others.

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Why did you want to become a lawyer?

As clichéd as it may sound, I wanted to make a positive difference in people’s lives

What goal are you currently working toward?

I want to be a good lawyer for my clients, but also a useful citizen.

To do this, I serve on the BGSU board, several Ohio public boards, and I also chair the JoAnn Davidson Ohio Leadership Institute.

What is the best career advice you’ve received?

From my parents: Be honest, work hard, and remember your responsibility to help those in need.

What does work/life balance mean to you?

In my 30+ years as a public servant, I can tell you that this “balance” is a myth; rather, it is “work/life juggling,” which defined my world and those of other working women. I regret my inability to balance better and to give my loved ones enough time. My advice to women who ask this question is that it doesn’t exist, but it is a critical aspirational goal. It is important to strive for “balance,” but also to understand 1)

OHIO'S 2016 LAWYER DEMOGRAPHICS = 5%

that this quest will not be perfect, and 2) when there is time to spend with loved ones—DO IT—and do it wholeheartedly, without distraction.

What is the biggest challenge you have overcome in your career & what did you learn from it?

My first challenge was that I was often the only woman or the first woman to hold the position I held: I was the only woman elected county prosecutor in the state out of 88 counties. I was the first woman elected Attorney General and Auditor of State. I was the first City Prosecutor in Perrysburg. I was one of only 3 women Senators in the Ohio Senate.

All this required that I work harder to prove my credentials and to earn respect among my peers and those I served. While certainly daunting at

64% 36% times, I loved these challenges—and I might add that having a sense of humor was a great way to put doubters at ease.

What do you do in your spare time?

I enjoy reading, sailing, and traveling with friends.

What is something others might not know about you?

As a former art major, I have some modest talent for drawing and painting….

How do you define success?

I think success is finding comfort in your own skin, knowing who you are and understanding and using the talents God has given you. Success is combining that self awareness and using those talents not only for yourself and your loved ones, but also to those who are in need of your talents.

BETTY MONTGOMERY First woman Ohio Attorney General Of Counsel, MacMurray, Peterson and Shuster; President, Montgomery Consulting Group

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LINDSAY KARAS STENCEL Chief Legal Counsel & Partner, NCT Ventures; Managing Principal, Lindsay Karas Stencel Law, LLC Why did you want to become a lawyer?

I didn’t want to be a lawyer initially.

I was a biochemistry major in college for 2.5 years, but after exploding my 50th test tube in lab, I decided that the medical world was not for me.

I knew I wanted to pursue a career that was rewarding and involved analytical thought processes, so the legal field seemed like a smart choice. Plus, I love to help people achieve their goals, and I get to do that every day at NCT and through my personal practice by helping small businesses develop and grow!

What is the biggest challenge you have overcome in your career & what did you learn from it?

The biggest challenge of my career to date remains exiting law school immediately into the in-house legal profession and learning how to make the leap between what they taught you in law school versus actually practicing law. I felt like my learning curve was a straight line pointed toward the ceiling for about 9 months, but with the help of some amazing mentors and friends, I learned how to do things, why to do things, and most importantly, how to manage expectations of parties internal and external to NCT. The most important thing that I learned was this: If ever given the opportunity to mentor

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someone (regardless of whether they ask for the help), do it. You have no idea how immensely helpful or important you can be in setting people up for success, just as my mentors did for me.

What is the best career advice you’ve received?

The best career advice that I have ever received is this: As an attorney, there will always be more work. There will always be more to do and more you wish you did. However, if you come in every day, work hard and get as much done well as you possibly can, do not let your inability to get every single thing done stress you or make you feel like a failure. Because guess what? The work will still be there tomorrow and the world will not implode if you don’t get it done.

always a bit skewed to the “work” side of the scale. That said, I think it is immensely important to have some time for myself each and every day, with no cellphone, no Internet and no distractions. Finding even 5 minutes of quiet in the chaos of everyday life helps to keep me happy (and sane).

How do you define success?

Success is a very personal thing. It is not dictated by how others see you or how they value you. It is how YOU value YOU. If you can go to bed at night knowing that you feel good because you improved someone else’s life through the practice of law (or whatever your trade may be), then you have succeeded.

There are 15,781 registered women attorneys in Ohio.

What does work/life balance mean to you?

I love working, so I would be the first to admit that my balance is

What is something others might not know about you?

I was a Division I Collegiate Lacrosse Player, 2-time team captain and 2-time defensive player of the year. Turns out, I have phenomenal hand-eye coordination!

Oh, and I love science (a lot).

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Why did you want to become a lawyer?

Prior to attending law school, I worked as a lobbyist for anesthesiologists and ophthalmologists in North Carolina. I attended law school with the intention of returning to North Carolina and lobbying. However, during law school I took an interest in tax law due to a remarkable person and professor, Gwen Handelman, at Washington and Lee School of Law. As a result, after law school I joined a tax firm in West Palm Beach, Florida, instead of returning to North Carolina to lobby.

What goal are you currently working toward?

Professionally, my goal is to increase my visibility as an attorney in the area of healthcare litigation. I also am always striving to achieve professional excellence as an attorney by servicing my clients with high quality counsel and by serving my profession with the highest level of ethics.

Give us an overview of your day-to-day work and lifestyle.

My day-to-day work involves representing and advising companies on business litigation and education law matters. I represent a broad based client list including national retailers and restaurants, hospitals, dealerships, management companies, non-profit agencies, insurance agencies, insurers and schools.

Aside from work, I serve as the President and as a Board Member of the Asian Pacific American Bar Association of Central Ohio. I also serve as a Board Member for the Asian American Commerce Group in Columbus, a non-profit organization connecting Asian American ethnic groups and business organizations with the public sector. Also, I am an active member of St. Agatha Church

What is the best career advice you’ve received?

Be true to yourself. This means be true to the decisions you make in your career. Be honest to yourself and your clients. Be faithful to your values and beliefs.

and involved in my children’s schools (St. Charles and St. Agatha).

How do you define success?

A life full of happiness with my family and career and a meaningful impact on my community.

What does work/life balance mean to you?

Work/life balance means what are your priorities in life and how do you balance those priorities. It is imperative that you reflect on both your career (i.e., professional development/ partnership, clientele, etc.) and personal priorities (i.e., health, family, etc.) and clearly understand where each falls.

What is something others might not know about you?

I enjoying singing but according to my daughter, Lilly, I should stick with being an attorney.

With a total of 38,237 attorneys in the state of Ohio, 41% are women.

DIEM N. KAELBER Partner at FisherBroyles LLP; President, Asian Pacific American Bar Association of Central Ohio

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PAULA HICKS-HUDSON Mayor of the City of Toledo

Why did you want to become a lawyer?

As a young girl, my family and parents’ friends always said that I should become a lawyer. I was the one who always argued and believed strongly in making a case for the “underdog.”

While working at Central State University, I worked in the Upward Bound Program. Sometimes I had to write letters or appear in Montgomery Juvenile Court on behalf of the students in our program. Our director viewed our program as a place to provide kids with an opportunity to see what education could provide for them.

I became fascinated with how the law applied to children. Also, I needed a terminal degree and decided to pursue a law degree rather than English.

Give us an overview of your day-to-day work and lifestyle.

My work day is generally a 12 to 16-hour day. Toledo has a strong Mayor form of government, which means that I am responsible for the operations of the city with the help of my chief of staff, chief operating officer and the various department directors. My days usually include meeting with staff, constituents, other elected officials, dignitaries, etc. I review and sign contracts. There are the various media events and council meetings in which I participate. In

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the evenings, I attend community meetings and events. Of course, I am constantly reading and researching best practices for improving the work that the City is required by charter to do.

What goal are you currently working toward?

My professional goal right now is to pass Issue 2, which is a 3/4 percent income tax renewal. This renewal is vital for the ability of our safety forces and a few general fund departments to provide essential city services.

What is the best career advice you’ve received?

Never give up.

OHIO BECAME THE SIXTH STATE IN THE NATION

What does work/life balance mean to you?

Before becoming Mayor, it meant creating a rhythm by which I am able to have time for the things that are most important to me without becoming harried over a long period.

Since becoming Mayor, trying to have a meal with my husband.

What is the biggest challenge you have overcome in your career & what did you learn from it?

The biggest challenge I faced was taking over as Mayor of the City of Toledo when my predecessor became ill and ultimately died in office. I learned to trust my instincts, rely on the advice and wisdom of others and to ask for help.

What do you do in your spare time?

Read.

What is something others might not know about you?

I am a church organist.

TO ADMIT ITS FIRST WOMAN LAWYER TO PRACTICE IN 1873.

How do you define success?

By seeing growth and development in the people. It is important to me that I provide opportunities for others to be successful.

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FEMALE FIRSTS AT THE OSBA Nettie Cronise Lutes was the first woman lawyer admitted to the bar of Ohio.

1889 Florence E. Allen was the first woman to speak at an OSBA annual meeting.

1912 The OSBA appointed a Women’s Welfare Committee.

1987 Kathleen B. Burke became the first woman president of the OSBA.

1994 The Nettie Cronise Lutes Award was created to recognize women lawyers who have “improved the legal profession through their own high level of professionalism and who have opened doors for other women and girls.”

2013 J. Desiree Blankenship became the first woman General Counsel of the OSBA.

1873 Nettie Cronise Lutes was the first woman to join the Ohio State Bar Association.

1912 Jessie Adler of Cincinnati was the first woman to take an active part in a floor deliberation at the 43rd annual meeting.

1929 Kate Hagan was the first editor of Ohio Lawyer magazine.

1993 The Women in the Profession Section was created.

1995 Mary Amos Augsburger became the first woman Executive Director of the OSBA.

2015 www.ohiobar.org

A

s co-chair of the OSBA Military and Veterans Affairs Committee, and as someone who has worked in military organizations for more than 35 years, I respectfully offer 12 considerations for Ohio attorneys interested in helping needy veterans or current servicemembers (SMs).

Organizations

Ohio Legal Aid Legal aid societies throughout Ohio provide many noteworthy services to the veteran community, including advocacy for homeless veterans, sponsorship of brief advice clinics for veterans, coordination of services with the VA’s Veterans Justice Outreach Program, and partnering with the Ohio Military/Veterans Legal Assistance Project to match low-income veterans with volunteer attorneys. See ohiolegalaid.org/.

Ohio Military/Veterans Legal Assistance Project (OMVLAP) Attorneys looking to help low-income veterans and active duty SMs with civil legal issues, including claims before the Department of Veteran Affairs, should look into volunteering for the OMVLAP, a non-profit with a growing cadre of volunteers who have helped hundreds of veterans and SMs around Ohio. There is an urgent need for more volunteers, especially in rural areas. See mvlap.org/.

12 ways to help Ohio veterans and servicemembers

By Steve Lynch

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OSBA Military and Veterans Affairs Committee (MVAC) MVAC provides training, mentoring, networking and encouragement to attorneys who share the goal of improving legal services for Ohio’s veterans and military personnel.

Committee members include current and former JAGs from all branches of the Armed Forces, experts with the VA Claims process, plus distinguished judges and attorneys – some of whom have served in legal and non-legal capacities overseas (including Iraq and Afghanistan). See ohiobar.org.

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Ohio Veterans’ Courts More than 20 Ohio jurisdictions have established Veterans’ Courts, which recognize unique challenges that many veterans face, such as complications from post-traumatic stress disorder and traumatic brain injuries, and allow for diversion to special treatment programs managed by the VA and other state and local other agencies.

Volunteers can serve as mentors to veterans who are being considered for or already entered into a diversionary program. See http://dvs.ohio.gov/ HOME/Ohio_Veterans_Courts.

Veterans’ Service Commission (VSC) Each Ohio county has a VSC that advises and assists present and former members of the military, their spouses, surviving spouses, children, parents, and dependents in presenting claims or obtaining rights or benefits under any law of the United States or State of Ohio. VSC commissioners are appointed by a local judge, and hire an executive director who manages the county office. See dvs.ohio.gov/.

from the VA. This entails completion and submittal of VA Form 21a to the VA Office of General Counsel, and completion of 3 hours of specialized CLE within the first 12-month period following the date of initial accreditation. See mvlap.org.

Websites: Statesidelegal.org & Consumer Financial Protection Bureau (CFPB) As the preeminent web-based resource for SMs, veterans and their advocates, Statesidelegal.org provides detailed information on a wide-range of topics, including divorce and custody, VA disability compensation, VA and public benefits, SCRA and the legal rights of women who serve. It also provides research and networking tools for legal advocates.

The CFPB Office of Servicemember Affairs addresses consumer financial challenges affecting SMs, veterans and their families. See www. consumerfinance.gov/servicemembers/.

Stand downs

Veterans’ Service Organizations (VSOs) VSOs, such as the American Legion, Veterans of Foreign Wars, AMVETS, and Disabled American Veterans, provide a multitude of services to veterans and their families, including assistance with VA Claims. See dvs.ohio.gov/.

Stand Downs – Homeless Veterans Stand downs are special events that bring homeless veterans together with VA and local social service providers, medical and legal volunteers, veteran service organizations and others to provide one stop shopping for homeless vets in need of help. Stand downs can run for up to three days and are often held at a regional VA center.

Projects in need of volunteers

Statutes

Ohio Veterans Legal Needs Assessment Ohio does not have one, and we need one if we are to accurately assess the needs of our veteran community, and properly develop and allocate resources to meet their needs. If you are interested in helping develop one, get in touch with me.

Requirements and resources VA Accreditation Program Attorneys seeking to help veterans with benefit claims before the VA normally must receive accreditation

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Servicemembers Civil Relief Act (SCRA) The SCRA is one of several federal statutes that provides special protections to the military. It can have significant impacts on a wide variety of civil matters. For example, it allows for early termination of vehicle and residential leases, reopening of default judgments, automatic stays for SMs unable to appear in court due to military duties, protections against eviction and foreclosure – and a lot more. If you plan to help a military client, get to know the SCRA.

For more info, download OSBA’s recently published “Ohio Guide to the Servicemembers Civil Relief Act, 2nd Ed.” (ohiobar.org/scraguide).

Uniformed Services Employment and Reemployment Rights Act (USERRA) USERRA is a federal law that makes it illegal for employers to discriminate against employees based on their military status. USERRA protections typically occur when employees who serve in the reserve or National Guard are threatened with dismissal or actually fired because of lengthy work absences due to military deployments.

The law is found at 38 U.S.C.A. §4301 - 4335. The Department of Labor and Department of Justice have enforcement authority, but private rights of action are permitted.

Bottom line?

Many low-income veterans and some SMs cannot afford legal services needed to maintain basic necessities for themselves and their families, or to effectively assert their rights to benefits. Volunteers can help fill the gap. If you want to volunteer but are not sure where to start, please send me an email or give me a call. I’ll help you find a good fit.

Author bio

Steve Lynch served for 21 years on active duty in the USAF, much of it as a JAG. Since 2001, he has worked as a civilian legal assistance attorney for the Coast Guard in Cleveland. He serves as a volunteer advisor to Statesidelegal.org and on the Board of Directors of the Ohio Military/Veterans Legal Assistance Project. He can be reached at stephen.t.lynch@uscg.mil or (216) 902-6042. He thanks retired Ohio Supreme Court Justice Eve Stratton, Stephanie Ripma, 3L at CWRU Law School, and Morgan Helgreen, 2L at Case Law School, for their help with this article.

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Practice Tips Blaming the employer: Strategies for limiting your client’s exposure

By Daniel Leister

In lawsuits involving workplace accidents, there is often evidence that the plaintiff’s employer was at fault. Perhaps the employer failed to provide adequate training. Maybe the employer failed to implement a hazard communication program. Although there are countless ways in which an employer could be at fault, the ability for a defendant to blame a plaintiff’s employer is very limited. Generally, employers who participate in workers’ compensation are immune from claims related to workplace injuries. Injured employees are generally limited to workers’ compensation benefits.

is responsible, in whole or in part, for the plaintiff’s injuries. But trying to blame the plaintiff’s employer—and thereby reducing potential exposure— can be a difficult undertaking.

What happens when an injured worker sues a third party? Can the third party blame the plaintiff’s employer? Welcome to an uncharted area of Ohio law: apportioning fault to an immune employer. During discovery, defendants routinely find evidence that the plaintiff’s employer

Seeking contribution or indemnification

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Ohio Lawyer

There are three potential options: (1) suing the employer directly, (2) apportioning fault to the employer, and (3) arguing that the employer’s conduct was a superseding/intervening cause. Determining which options are available is highly case-specific and may depend on your appellate district, public policy or even the judge’s political leanings.

One option is to sue the plaintiff’s employer directly for indemnification or contribution. The problem is, employers are also immune from thirdparty claims.1 The same immunity that prevents an employee from

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suing her employer also protects the employer from third-party claims related to the same injuries.2 But there is one main exception: express waiver. An otherwise immune employer can enter into an agreement that expressly waives workers’ compensation immunity. The test is stringent. Contractual language is key. To be an “express waiver,” the contract “must refer specifically” to workers’ compensation immunity.3 A generally worded indemnification clause will not suffice.4 The agreement must specifically reference workers’ compensation immunity and expressly state that the employer is waiving such immunity. As such, your client’s ability to sue the plaintiff’s employer will likely depend on the applicable contractual language.

Apportioning fault

Adding an additional defendant may not always be the best strategy. If

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joined, the employer may be motivated to defend its actions and, potentially, criticize your client. Sometimes it is easier to blame an empty chair.

Ohio does recognize the “empty chair” defense; however, under Ohio’s current statutory framework, it is not entirely clear whether the “empty chair” applies to immune employers.

Ohio law: “[I]n Ohio, there is no such thing as employer negligence, and a tortfeasor cannot raise the affirmative defense of the empty chair to an employer for negligent acts.”8 According to the 5th district, to allow the empty chair defense would be “completely inconsistent” with workers’ compensation immunity.9

In 2005, Ohio enacted a new apportionment of fault statute, R.C. 2307.23, that allows juries to apportion fault to non-parties. A defendant can point to an empty chair and argue that an absent party was responsible for the plaintiff’s injuries. However, 2307.23 does not address whether the empty chair defense applies to immune employers. Section 2307.23 merely states that the jury can apportion fault to “each person from whom the plaintiff does not seek recovery in this action.”5 The statute does not explain whether the phrase “does not seek recovery” includes people from whom the plaintiff cannot seek recovery (i.e. immune employers).

About two years later, the 8th district disagreed. In Fisher v.

Beazer East Inc.,10 the 8th district unanimously concluded that, under the apportionment statute, juries may apportion fault to an immune employer.11 The court’s reasoning was simple and straightforward.

The apportionment statute, R.C. 2307.23, “does not exclude employer negligence from the apportionment.”

The court found no evidence that the Ohio General Assembly intended to treat immune employers differently than any other non-party. Because the employers are still not parties, use of the “empty chair” defense would not compromise an employer’s workers’ compensation immunity.

Without statutory guidance, the question still remains: Can a jury apportion fault to an immune employer? Only Ohio’s 5th and 8th appellate districts have addressed this issue, and each district reached a different conclusion: the 8th district answered “yes;” the 5th district answered “no.”

On Jan. 27, 2012, Ohio’s 5th appellate district decided Romig v. Baker HiWay Express, Inc.6 In a 2-1 decision, the 5th district decided that a jury cannot apportion fault to an immune employer. Judge Gwinn wrote that “there is no way to reconcile” Ohio’s apportionment statute and Ohio’s workers’ compensation immunity statute.7 The apportionment statute does not contain an exception for workers’ compensation immunity.

The workers’ compensation statutes do not contain an exception for the “empty chair defense.” In light of this perceived conflict, Judge Gwinn made a bold statement about

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The Ohio Supreme Court has not weighed in on this issue. Trial courts will be left to determine on a caseby-case basis whether to allow a jury to apportion fault to an immune employer. Plaintiffs will cite Romig, defendants will cite Fisher, and judges will have to choose a side.

Superseding intervening cause

If you lose the apportionment battle, another option is to argue superseding intervening cause.

With this affirmative defense, the employer’s fault is not the issue.

The issue is whether the employer’s act broke the chain of causation.

Practice tips

Draft contracts carefully.

When drafting indemnification clauses, always include an express waiver of workers’ compensation immunity. This will enable your client to bring indemnification

and contribution claims against otherwise immune employers.

Advise your clients. Early in every case, clients want to know whether someone else is potentially responsible for the alleged damages. Knowing the interplay between Ohio’s apportionment statute and workers’ compensation statutes is critical.

Manage your clients’ expectations and inform them of the uncertainties and realities regarding apportioning fault to immune employers.

Prepare for appeal. If the judge prevents you from apportioning fault to an immune employer, you should discuss appellate options with your client right away. Also, do not let the adverse ruling affect your trial strategy. Prepare for trial as if the employer’s fault is still on the table.

Call all of your witnesses and experts.

If necessary, make offers of proof.

It is difficult for an appellate court to find “harmless error” when the record is replete with evidence of the plaintiff’s employer’s negligence.

Author bio

Daniel Leister is a fourth year associate at Sutter O’Connell.

Daniel is a civil defense litigator who focuses on medical malpractice, products liability and appellate advocacy.

He can be reached at (216) 928-4546 or dleister@sutter-law.com.

Endnotes 1 Perry v. SS. Steel Processing Corp., 40 Ohio App. 3d 198 (8th Dist. 1987).

2 Id. 3 Kendall v. U.S. Dismantling Co., 20 Ohio St.3d 61, 65 (1985).

4 Id. 5 See R.C. §2307.23(A)(2).

6 Romig v. Baker Hi-Way Express, Inc., 2012-Ohio-321.

7 Id. at ¶37.

8 Id. at ¶45.

9 Id. at ¶46.

10 Fisher v. Beazer East Inc., 2013-Ohio-5251.

11 Id. at ¶39.

November/December 2016

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Practice Tips 5 ways to modernize your practice

By Cat Dismukes

Lawyers and businesses look for better ways to manage their time, bring in more revenue and market to a larger audience. Technology advancements raise the bar in these areas because they allow firms to reach a new level of efficiency. Some firms that run as a virtual office have fully accepted the movement toward an updated view of a traditional law firm. Not only does this allow firm efficiency, but also it grants clients the option to access their legal documents or advice on their own time. Lawyers do not have to completely overhaul their offices into virtual ones, but imbedding these advanced tactics in your own office can help save time, money and sanity in the long run. Follow these five tips and see the difference as your firm becomes more efficient.

up to speed 1smallGet on technology‌ in increments.

Technology is a broad term that is overwhelming if not narrowed down

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to individual categories. Some of the technological advances used to enhance the workplace are cloud services, online marketing tools and virtual assistants.

Break it down, relax and modernize your practice in small increments.

2 Reach for the clouds.

The stereotypical picture of the cloud is this mysterious technology which confounds most people. Where does the information go? How does one control the cloud? Or, the scariest question for some, how does one delete something from the cloud? The cloud is not as mysterious as it may seem.

Cloud services are actually essential to the workplace due to the instant gratification culture that our society has recently fostered. With the cloud, your firm can store all of its documents, emails, invoices, billing information and other items within a secure server that is available anywhere with Internet connection. It allows attorneys to work on cases during flights or at

November/December 2016

home and allows clients to look over documents at their own time and place as well. This round-the-clock availability increases flexibility for both attorneys and clients. Businesses like Clio provide cloud services, and Ohio State Bar Association members receive this service at a discounted rate.

3 Upgrade from Clippy.

Remember the office assistant that appeared on the bottom of your screen in Microsoft Word during the late 1990s? It was the little paperclip, known as Clippit or Clippy, which gave you tips on how to improve your interaction with Word. Whether he annoyed you or not, Clippy was a form of virtual assistant. Virtual assistants and paralegals can help streamline your work. Using the cloud, you can share documents with assistants or paralegals to keep you from constantly scanning and faxing documents back and forth. A virtual assistant organizes documents within the cloud, schedules appointments and

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sends emails, turning mundane, nonbillable work into a hassle-free task; you can now focus more on face-toface client interaction while increasing revenue for yourself and the firm.

Virtual paralegals will save you time and money by working only when needed. You do not have to pay a full-time salary when the extra assistance is deemed unnecessary.

They can also help draft standard legal documents to free more time for attorneys—quite the improvement from the old paperclip on your screen.

4

Morph selfies into marketing tactics.

You share photos of your new gourmet creation in the kitchen, update family and friends on your relationship status and create a viewable stream of your inner consciousness all on social media.

If you and others you know constantly update and view social media, then that is a perfect platform for businesses to take advantage of. Social media gives businesses a new, personable outlet for marketing campaigns that reach a larger, mostly free, audience. Marketing may not come to mind as having a direct relationship to office efficiency, but it does help businesses gain clients. With the increase of Internet traffic, marketing tactics include online platforms to reach a broader target audience than previous print ad marketing campaigns. This means that businesses use social media—Twitter, Facebook, Instagram and blogs—to connect with potential clients on a daily basis. It is another round-the-clock tactic to enhance a firm. Not only does it bring in new clients, but also it is free if no new staff is required. Your firm will spend the same amount of money on marketing as it did previously while reaching a much wider audience.

Start rethinking your selfies, tweets and posts; they may come in handy.

the information to compare and contrast different vendors for each technology service, implement efficient technology usage tactics and acquire technological knowledge from personal research. However, firms can choose to hire a service that holds your hand throughout the entire process. OSBA recently partnered with CuroLegal, which provides virtual services that encompass almost the entirety of office technology, from auditing your firm’s technology to nurturing the well-oiled machine that your firm has become.

(See the sidebar for more information)

FINDING HELP

The future has arrived.

example, the company assists

Do not spend time worrying about how future technology will affect your firm because the future has arrived. Take the necessary steps to streamline your technology use. This new technology is constantly morphing the business world in regards to office efficiency, client reach and round-the-clock connectivity.

But how do you know what technology to use or how to implement it into your office routine? Understanding what technology is out there and what can help your firm is fundamental in creating a streamlined office.

Author bio

Cat Dismukes was an intern in the publications department of the Ohio State Bar Association. She is a senior at The Ohio State University studying communications with minors in professional writing and creative writing.

Consulting is the initial step. CuroLegal completes a comprehensive analysis of your firm’s technology. What are you using, how are you using it and is it cost efficient? From there, the company recommends new ways to use your current technology; they also aid in implementing new technology into your office routine. For in operating your firm’s cloud as well as ensuring that all of your employees use it properly.

CuroLegal also provides virtual assistants and paralegals so your firm can be confident in the services you are receiving. Make appointments, send invitations, manage dockets and draft standard documents all without wasting any of your or your firm’s time.

Additionally, CuroLegal creates and implements a marketing strategy for your firm based on your needs and budget. The company generates marketing materials such as newsletters, emails, brochures and other content. This stress-free way to cover advertising will ease the firm’s burden and help you reel in more clients.

For more information, visit

www.curolegal.com.

5 Organize your thoughts.

These new technologies save time and money, but the implementation can be more daunting than you anticipate. You could sift through

29

Practice Tips Fraud prevention measures

By Brendan M. Inscho

The Auditor of State’s Public Integrity Assurance Team is charged with investigating public fraud throughout Ohio, and since 2011, has obtained 110 convictions for crimes including theft in office, unlawful interest in a public contract, and engaging in a pattern of corrupt activity.

Additionally, forensic auditors have identified $8,350,134 that were illegally expended or misappropriated.

Here are some practical tips attorneys can advise their clients adopt to avoid becoming victims of fraud.

Segregation of duties

Segregating duties refers to the division of labor that results in checks and balances. Businesses should identify high-risk areas, such as cash and credit cards, and implement policies that ensure no one person has control over an entire accounting transaction.

Trust, but verify. Prudent offices divide duties so no one person has total control over the public’s money.1 This is why most offices require multiple signatures on checks to draw on a government account.

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Ohio Lawyer

Reconciliation

Most households balance their checkbooks by comparing checkbooks with bank statements. Similarly, most businesses perform monthly “book-to-bank” reconciliations, and many governing boards require fiscal officers to provide monthly reconciliations. Those public officials who do not reconcile do so at their peril. Another example of reconciliation is comparing credit card bills with receipts. If an employee uses a credit card to make a purchase or seeks an expense reimbursement, the business should compare the purchase against the receipt.

Job rotation and vacations

We all know employees who are so dedicated to their work they never leave. While hard work and devotion are laudable, from a controls perspective, this is problematic.

Fraudsters often avoid vacations like the plague, because being away means losing the ability to cover-up. Job rotation and vacation can remove the ability of single fraudsters to cover up their crimes.

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Hotlines

The Association of Certified Fraud Examiners recently published its 2016 Report to the Nations.2 One particularly interesting graph contained in the report measured the amount by which various anti-fraud controls reduced the average magnitude of loss, as well as the amount of time it took to detect fraud. Hotlines alone reduced on average the magnitude of loss by 50 percent and the discovery time from 24 to 12 months.3 The Auditor of State’s Office Fraud Hotline is 1-866-FRAUD-OH.

Credit card policies

Most attorneys and their clients would agree that it is not acceptable to hand a checkbook to a single employee and give unrestricted authority to draw on the account. Most businesses have solid controls in place for checks, such as requiring counter signatures and requiring receipts prior to reimbursing employee expenses.

Just as segregation of duties calls for businesses to check each other’s work, individuals should not be permitted to use credit cards without someone else approving the purchase.

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Culture

In general, public offices need to understand that lax oversight creates an environment ripe for fraud. For those of us who were trained as trial attorneys, this should come as no surprise.

We were taught that body language accounts for approximately 55 percent of verbal communication, as opposed to only 7 percent of the actual content of our words.4 Just as trial attorneys’ actions reflect on their cases, employees’ actions demonstrate their commitment to fraud prevention.5 If controls are only discussed annually or during performance evaluations, employees get the message management is not that concerned with controls.

If we can advise our clients to implement the above-referenced controls, they and we will benefit more from acting as fences.

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Author bio

Mr. Inscho is the Director of Public Integrity for the Ohio Auditor of State’s Office. He grew up in Dayton, Ohio, earned his B.A. in Economics from the University of Dayton and his J.D. from the American University Washington College of Law. After graduating from law school, Mr. Inscho clerked for the Honorable Alfred Nance of the Circuit Court for Baltimore City and was an Assistant State’s Attorney for the City of Baltimore. Mr. Inscho returned to Ohio with his wife and was hired by the Delaware County Prosecuting Attorney’s Office. He has been with the Auditor’s Office since 2011. Mr. Inscho is admitted to practice law in Ohio and Maryland and is a Certified Fraud Examiner.

Endnotes 1 See generally State v. Shannon, 191 Ohio App.3d 8, 2010-Ohio-6079, (12th Dist.) (while a coworker nominally had the same duties as the defendant-appellant, state was able to show coworker did not provide any check on defendant-appellant, permitting her to steal $1,620 in utility fees, $4,057 in healthcare premiums, and $1,908 over two years from a village government).

2 Report available at https://s3-us-west-2. amazonaws.com/acfepublic/2016report-to-the-nations.pdf.

3 Association of Certified Fraud Examiners, Report to the Nations, p.44.

4 Pamela Peters, Gaining Acceptance through Non-Verbal Communication, 7 Pepp. Disp. Resol. L.J. 87 (2007) 5 In their insightful article for the Indiana University Kelley School of Business Horizons, Fraud Risk Management: A Small Business Perspective, authors Megan F. Hess and James H Cottrell, Jr. list seven prevention strategies: the first of them is management showing that ethics matter.

November/December 2016

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31

CLE Calendar

LiveCLE 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.

Banking, Bankruptcy, Commercial Banking Institute November 16

Corporate/Business

Antitrust Institute: Corporate Compliance in the New Economy November 10

Energy

Oil and Gas Update November 18

Estate Planning, Trust & Probate Law Fiduciary Income Tax November 7, 15

Fourth Annual Great Lakes Asset Protection Institute December 1

General Practice

Journalism, Social Media and the Courts: A New Frontier December 2 Crisis Management and Crisis Communication December 6 Supreme Court Year in Review December 14

Starting the Conversation: Preventing Suicide December 27

Effective Legal Negotiation and Settlement December 19, 20

Labor & Employment

E-Discovery: From 50,000 Feet to Ground Level December 28

National Labor Relations Board Update: Times are Changing December 8

Law Office Management

Build Your Practice: A Road Map to Effective Ethical Business Development November 14, 15 Exit Strategy for Retiring Lawyers November 14, 15 Financial Planning for Lawyers December 5 OSBA Legal Technology and Practice Management Conference December 8-9 Guide to a Lawyer’s Economic Development Plan December 12

Litigation

Trial Evidence for the Ohio Practitioner December 13, 16

Professional Conduct

Sean Carter - The Truth, The Whole Truth & Nothing but the Truth: The Ethical Imperative for Honest November 9, 10 Fall Professional Conduct: Ethics, Competency and Electronic Information* November 21 Social Media and the Countdown to Your Ethical Demise December 27 ACTL Ethics December 6 Young Lawyer Connect December 7

Real Property

24th Annual Bradley J. Schaeffer Real Property Institute December 15

CLE video replays are marked with an asterisk (*).

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Ohio Lawyer

November/December 2016

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