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2 Winter 2015 Columbus Bar Lawyers Quarterly Winter 2015 Columbus Bar Lawyers Quarterly 3 President’s Page Do Americans get their day in Court?

By Keith W. Schneider

Every attorney knows the saying — in The Columbus Bar Association strives to follow and America, everyone is entitled to his or her day understand these trends. After all, understanding the changes to the legal system is the fi rst step in continuing to help people in court. But how literal must we take “day in in need. As prominently displayed on the Jefferson Memorial court” to mean? in Washington, D.C., Thomas Jefferson once said:

The Ohio Supreme Court recently issued its 2013 Statistical “I am not an advocate for frequent changes in laws and Report with a conclusion that, frankly, is not surprising: cases constitutions, but laws and institutions must go hand in hand in Ohio just are not going to trial. Of course cases are going with the progress of the human mind. As that becomes more to trial, just not at the rates some of us may recall. According developed, more enlightened, as new discoveries are made, to the 2013 Statistical Report, only 2% of criminal cases new truths discovered and manners and opinions change, and 1.2% of civil matters go to trial. This is nearly half of with the change of circumstances, institutions must advance what it was just ten years ago. (In 2004, the rate of cases also to keep pace with the times.” going to trial was nearly 4% for criminal cases and just more than 2% civil.) This is not new; however, the decline of cases Trends follow human progress, and the legal system is no going to trial has been at least a 5-year trend. different. To help, to educate, and to expand, we must look So what is the cause of this trend, and what does it mean forward and not waver in nostalgia of the days of trials gone by. for lawyers? More cases are settling out of court, in some Going back to the opening question, then, do Americans respects, means that clients are enjoying a more economical still get their day in court? The and more effective result. Hopefully, this translates to a important thing is that clients feel better client experience. as though they are heard and that The rise of alternative dispute resolution also contributes justice is served. Admittedly, some to this trend. Last year, the Board of Governors adopted would argue that the absence of the report issued by our Task Force on ADR, identifying a jury or bench trial is in itself, an seven recommendations the CBA can undertake to help injustice. Fewer trials, however, advance the use of ADR. The recommendations range from does not necessarily equate to lesser increasing awareness and education about the benefi ts of justice; rather, that our profession has ADR, to providing more public access to information about progressed in a manner that delivers ADR. The Task Force, through the ADR Committee of the a more effi cient delivery of justice. Columbus Bar, has been hard at work delivering on these Keith W. Schneider recommendations. Maguire & Schneider Finally, trials take time, and this time is dictated by the kwschneider@ms-lawfi rm.com court, not the client. Out-of-court settlement, on the other hand, allows the attorneys and the clients to work together to set a different timeframe more conducive to the client’s needs. Of course not all cases settle out of court; indeed, some cases simply cannot settle just by the nature of the case. By getting cases off of the docket in a timely fashion due to settling out of court, courts in Ohio are more able to clear dockets and move cases along in a timelier fashion. This trend supports another trend identifi ed in the Ohio Supreme Court’s 2013 Statistical Report: comparing all cases of all types, the time from the fi ling of an action to fi nal disposition, on average, is becoming a more effi cient process (2009 revealed a 131-day mean while 2013 featured a 124- day mean). These statistics are not without their downfalls and controversies, of course, but thanks to reports such as these, Ohio’s courts are able to allocate resources appropriately and effectively, which in turn creates a more effi cient legal system overall.

4 Winter 2015 Columbus Bar Lawyers Quarterly CBA’s Health Insurance Exchange - Are You Prepared for Open Enrollment?

By Char Bigelow Char Bigelow [email protected]

Open enrollment looms for many of us again, and if you are considering. This is basically the cost of premium you’re like most, you are looking forward to it about as plus the plan’s out-of-pocket maximum. Most people much as a trip to the dentist. Make no bones about it won’t hit this number unless something serious happens, – choosing health insurance is no easy task! but you should consider whether and how you would Here’s a reminder of some key things consumers should handle it if you did. consider on the way to making the best choice for them. Is Your Doctor In-Network? – If keeping your current Consider Your Likely Costs – Most people should doctors is important to you, check the Provider Network focus on their “Likely Cost” under each plan – in other words, what you would pay for your premium plus care for any plan(s) you are considering. Going out of network you expect to receive throughout the year. On the CBA’s for care is usually more expensive than staying in-network. Smart Choices™ platform, we’ve done the math to If you aren’t wedded to your current doctors, however, provide an estimate (using what you’ve told us about your you may be able to save money on your insurance by likely healthcare use) of how much each plan might cost choosing a lower-cost plan with a different network. you out-of-pocket for care, based on how it pays benefi ts. And if you are still unsure of your decision, keep in In addition, if you think you will use particular services mind that there are offl ine sources of help, too. We have (e.g., chiropractic care), make sure you know how each a dedicated Call Center staff that is well qualifi ed to help plan covers these services. our members navigate the decision-making process and Consider Your Unexpected Costs – You should also answer specifi c questions about plan options. Log on look at the “Maximum Potential Cost” for any plan(s) today at www.cbalaw.org.

Winter 2015 Columbus Bar Lawyers Quarterly 5 From Carrier Pigeons to Client Outreach: the Strategy Behind our Communications By John J. Tufano

Carrier pigeons dispatched messages across the battlefields say one is “an estate planning lawyer” is a good start, but it for ancient Persians and Romans. To transmit news or warn does not paint the whole picture. of impending danger, Native Americans would relay smoke When I think in terms of an incomplete identity, I envision a signals. The electrical telegraph allowed encrypted messages basement room of a retail store housing clothing mannequins, to jump across the Atlantic Ocean. And now, the Age of the heaped in a pile. Eyes wide open, but stiff, bloodless, and Internet removes geography as a barrier to how far our social indistinguishable. They all have the figure to show the cut of networks reach. These are distinct forms of communication, a cloth, the identical figure, and their identity stops then and state-of-the-art for their times. there. The example is abstract, but it shows that to stand out To the legal industry, though - how does a historical snapshot and truly connect with our audiences, we need to define who of modes of communication apply? The old-fashioned, we are. even ancient forms, teach us a valuable lesson, one that Completing the example, more than just “an estate planning lawyer” his or her identity may be “an estate planning today’s technology makes quite easy for us to forget. Pigeon lawyer whose focus is to be a helpful resource to ensure a post, smoke signals, and telegraphs (despite their electrical person’s accumulations in life are distributed exactly as they component) required a distinct strategy to their messaging. are intended, who also volunteers on a nonprofit’s finance They were not sent at the near effortless stroke of a key. Their committee.” Choosing and articulating an identity helps senders and receivers could not slink into autopilot, parroting others recognize the personhood in each of us, avoiding the generic messages in rapid fire. They were purposed, targeted, mannequin syndrome. and intended to generate actions. Lawyers and law firms can realize a distinct advantage in their practices by taking the same strategic approach to communications with clients, employees, Know Your Audience and the community. Some practices focus on a niche area of law, others a full spectrum of legal services. Knowing who we are and what we provide is further defined by knowing our audience. Addressing Build a Strategy client pools, do we try to reach anyone who will need a lawyer? Many lawyers and law firms operate from the foundation Do some of us practice in real estate, but target commercial of a strategic plan. It might include financial models, business developer clients? Whether new to the practice of law or development goals, recruitment, even personal achievement standing on a 20-year career, a strategic communications plan ambitions. Some are governed annually, others by quarter. can help us all learn by periodically asking ourselves about Every day, though, lawyers and law firms communicate, and the identity of our audience. There are a number of ways to rarely does a strategy guide. Almost every interaction with accomplish this, although arguably the simplest and most clients, coworkers, and the legal market is an exchange of precise question to ask is “Whose problems do my skills best messages that, when drive by a plan, can help elevate one’s solve?” This framing helps us understand exactly what we can practice in a market saturated with XYZ firms. do and for whom we can do it. Think for a moment about the following example: if a name or firm’s letterhead was removed from a piece of correspondence, Translate into Their would a receiver be able to distinguish its content from the Language same sent by another? Would the receiver even care to? A Lawyers suffer from the communications strategy strips away anonymity and builds an chronic ailment of speaking identity. It helps define how and why a lawyer communicates. in tongues. Medical It stimulates receivers to latch on, to immediately recognize malpractice case law reads that their lawyer speaks distinctly to them. different than the elements The following highlights a selection of key elements that help steer a communications strategy for lawyers and law firms. of protecting mineral rights, which reads Communication is a Two-Way Road different from the general The great Margaret Miller once quipped, “Most powers an agreement conversations are simply monologues delivered in the presence details for a voting of a witness.” Miller’s thought sounds with a special ring for shareholder. These litigators: we could look to the theater of a witness stand to languages (mostly) discuss communications, although that is a conversation for a make sense to those different day. Common to all forms of lawyer communication, who practice in these there is a relationship between us and our audience, both areas. It is important engaged in sending, receiving, interpreting, and reacting. to remember that our audiences, our clients, Know Yourself co-workers, judges, Another core component to a communications strategy, we are not necessarily as must first know who we are, our identity - or what we want gifted/cursed in these it to be - among our peers, the community, and our clients. To languages.

6 Winter 2015 Columbus Bar Lawyers Quarterly Translating these tongues into the language of our listeners can transform centuries-old precedent into a living I Will Remember You and breathing solution. We obtain knowledge over hours, years, spent By Kathy Wiesman reading cases or reviewing corporate Twenty-three plus years ago my husband decided to take a new job offer, fi lings. And, we want to share that a great opportunity for him and our family. As a native Texan, I said (in my knowledge to show that we can outside voice), “Really? Ohio?” (There may have been a few more colorful maneuver the legal trappings of real- words, but my memory is fuzzy.) After considering some options (divorce, world problems. However, the legal smothering him with a pillow, running away from home, witness protection documents we draft are often written program), I came to Columbus kicking, screaming and crying. in the legal version of these real-world But now, it’s back to the Lone Star State we go (with some crying). problems, at least from the perspective January is my last month at the CBA. Our decision to retire is bittersweet, of (potential) clients. It is important to as we are excited to start a new chapter in our lives but sad to end another tell the story of drafting a contract’s one. scope of work, for instance, with the It’s hard to imagine that soon I won’t be coming here. Things will be awareness that the client might only different, life won’t be the same. In our new journey, I will be missing you really care about the contract’s impact more than you could ever know. on his budget for labor and materials, Who knew? I have spent some of the best days - and years - of my and how those costs impact his life here. I love this city and its people. Working at the Columbus Bar quarterly profi t margin. Association for the past 19 years has been an amazing experience. We have These core components can gone through many changes, but the fundamental principles have remained guide us to recognize the need for the same. Every change has been embraced by association members, and communicating with a strategy in the philosophy of our association has been that change makes us stronger, place, the importance of knowing our better. identity and those of our audiences, You have helped me grow as a person. Here, I have found not just and how and why to communicate in co-workers but precious friends, and I will leave with some wonderful ways that resonate with them. There memories of the time we have spent together. Here, I have had the honor are other components to consider, and privilege to work with so many remarkable board members, offi cers, given each unique circumstance, such presidents, committee chairs and members, and to witness the swearing in as the medium that carries a message of both the fi rst female and fi rst African American CBA presidents. There and the ability to adjust to the changing are not enough words to express the thanks and appreciation of these needs of others. If there is anything to great leaders. Without their passion and undying commitment to devote remember, it is that a communications hundreds of hours of volunteer service, the Columbus Bar would not be strategy has enormous value and can the nationally-recognized and admired organization it is today. Without all prevent our client updates, internal of you, this Association would not exist. It has been my pleasure to serve memos, and trade journal articles it and you. from the likes of smoke signals sent in I’ve had the great fortune to help produce our Columbus Bar Friday the pitch of a windy night, altogether newspaper and Columbus Bar Lawyers Quarterly magazine. And, of course, missing their mark. I have been so blessed to have worked beside two dedicated, innovative and simply remarkable executive directors, Jill Snitcher McQuain and Alex Lagusch - my bosses, but more importantly, my friends. On a different note, anyone who knows me well knows that I am an avid college football fan, a girl who grew up and graduated from college in the Southwest Conference (yes, I am that old). I swore never to root for “those” Big Ten teams, but au contraire. I’ve acquired Ohio State necklaces, earrings, fl ags, banners, serving dishes, drinkware, tee shirts, sweatshirts, tennis shoes - you get the picture. Trust me, the Buckeyes will always have a presence wherever I am! So, in the words of Dr. Suess, “Don’t cry because it’s over. Smile because it happened.” I’m trying desperately to embrace that. Thank you all. I feel blessed beyond measure that I got to be a part of such a great team at THE Columbus Bar Association.

John J. Tufano Kathy Wiesman [email protected] [email protected]

Winter 2015 Columbus Bar Lawyers Quarterly 7 Integrity

By Dianna M. Anelli Without it, nothing works.

Integrity. The word conjures up a host of thoughts and restored. Without integrity, nothing works. So how does meaning. The Oxford English Dictionary defines it as “the this restoration occur? The first step is to acknowledge the condition of having no part or element taken away or integrity breach. As humans, we are loathe to do this. We wanting; undivided or unbroken state; material wholeness, think it makes us look weak, or bad, or, at least, we fail to completeness, entirety.” look good. We want to sweep it under the rug, ignore it, or The second definition is “the state of being whole, entire forget about it. But there is a separation between the promise or undiminished.” Merriam-Webster defines it similarly breaker and the one to whom the promise was given that will as “the quality of being honest and fair” and “the state of remain without a restoration of integrity. Like a breach in being complete or whole.” “Whole” is defined as “having all the integrity of the hull of a ship, it must be addressed for the necessary parts: not lacking anything; not limited in any way; relationship to be restored. having all necessary parts, elements, or steps.” For example, The mere acknowledgment that one has not kept one’s when a ship’s hull lacks integrity, it takes on water, because word goes a long way to bridge the gap that the lack of the whole is compromised. It is not seaworthy. integrity creates. When one acknowledges the impact on The same can be said for the human condition. As humans, self of the integrity breach and the impact on the other, the our integrity goes in and out all of the time. Indeed, integrity gap lessens further. Finally, when one puts structures into is always on its way out. As humans, our integrity exists in place and tells the other person that structure to ensure that our word. When we keep our word, we are in integrity. When word is kept, the division between the two evaporates and we break our word, we are out of integrity. When using the integrity is restored. word “integrity” with regard to the words we speak, the So practically speaking, what does such a restoration promises we make, the first definition -- that involving process look like? Let’s take a situation where one is late for morality or ethics -- can be excised from the definition. As a meeting. It may look something like this: “I said I would humans, once we break our word--which, if we are honest, do be here at 9 a.m. I did not appear until 9:15 a.m. I am happens every single day--it often is not a statement as to out of integrity in this area. The impact on me is that I am our honesty or ethics. It is a condition in which we said that embarrassed and I must rely on another to catch me up. The we would perform, and we have experienced a breakdown impact on you is that time is taken to catch me up, I have in performance. This may come in the form of failing to do interrupted a discussion and you are wondering where I am a task in a timely manner, failing to do it in the manner in and when I will get here. I will put an alarm on my clock to which it was meant to be done, failure to do it completely, or ensure that I timely arrive for future meetings or will be in that there was an expectation that was not met. communication if I will be late.” With every integrity breach, there is a consequence. That is When this restoration is done without explanation, to say, there is an impact. The impact occurs in at least two blame, defensiveness, making one’s self or another wrong, ways. There is an impact to the promise breaker, and there the gap that occurs due to the breach is an impact on the person to whom the promise was made. of integrity disappears. The other The impact on the promise breaker often is the listening of person’s listening of the promise her of those to whom the promise was made gets smaller. breaker enlarges, sometimes to a The promise breaker is viewed as unreliable. The impact on greater extent that existed before the the individual to whom the promise was made often is an breach. The point is, though, that extra burden, which can come in a number of forms. The there is nothing in the way of effective end result is that there is a separation in relationship between communication. And that goes a long the promise breaker and the one to whom the promise is way in relationship building. made. Often this starts with very small, seemingly minor occurrences, such as a failure to be on time. Given that this happens so often in the human experience, Dianna M. Anelli what is one to do? Well, all is not lost. There is a restoration THE ANELLI LAW FIRM process. It is crucial that, once it goes out, integrity is [email protected]

8 Winter 2015 Columbus Bar Lawyers Quarterly If You’re Hosting the “Party,” You’d Better Serve the Cake

By Adam R. Todd

On my fi rst week on the job as an associate attorney, the v. Diemer, 35 Ohio St. 3d 68, 70, 518 N. E. 2d 941 (1988); managing partner of my fi rm likened a civil lawsuit to a Rokakis v. Estate of Thomas, 8th Dist. No. 89944, 2008- party. In response to my inquiry about certain interrogatories Ohio-5147, ¶7. The case may proceed all the way to trial that I considered unnecessarily invasive of the plaintiff’s and even judgment, but that judgment is nothing without personal life, my boss replied, “Well, he [the plaintiff] started service. It is wholly unenforceable. the party!” Because it made the aggressive defense more What if the defendant attends your get together, wears palatable and probably because it was just plain funny, the a party hat, and even plays “pin the tail on the donkey?” party analogy stuck with me. I often use it when discussing It most certainly seems like a party. Does his participation lawsuits. I have taken great liberties with the analogy and negate the requirement that he be served? No! The Ohio am always expounding upon it. For instance, the summons Supreme Court affi rmed the foregoing authority regarding is the invitation. The answer is the defendant’s “R.S.V.P.” commencement of a civil lawsuit and gave additional and so on. clarity to the commencement requirement in Gliozzo v. The Ohio Rules of Civil Procedure contain several Univ. Urologists of Cleveland, Inc. , 114 Ohio St. 3d 141, requirements for any good party. Just like social graces, some 2007-Ohio-3762. In Gliozzo, the high court ruled that of the civil rules are well-known and never ignored. Other when the affi rmative defense of insuffi ciency of service of rules, however, are often forgotten despite their importance. process is properly raised and preserved, a party’s active The purpose of this article is to discuss one of those less participation in the litigation does not constitute a waiver of popular rules, the requirement that a plaintiff commence a that defense. Id. at ¶ 11-12. The Gliozzo defendants asserted civil action by obtaining proper service upon the defendant the affi rmative defense of failure of service in their answer within one year of fi ling the complaint. and then defended the lawsuit vigorously. Id. at ¶ 12. They To really have a party, the civil action must be commenced, conducted discovery and even served dispositive motions. Id. not just fi led. Ohio Rev. Code § 2305. 17 and Rule 3(A) of the The court recognized, “Appellants [defendants] were then Ohio Rules of Civil Procedure govern the commencement of free to seek dismissal of the case for insuffi ciency of service, a civil action. Ohio Rev. Code § 2305. 17 states: “An action even though they had also mounted a vigorous defense upon is commenced * * * by fi ling a petition in the offi ce of the the merits. Id. clerk of the proper court together with a praecipe demanding The Gliozzo decision highlights that the obligation that summons issue or an affi davit for service by publication, of commencing the suit is on the party’s host. Gliozzo if service is obtained within one year.” DiDomenico v. complained that the defendants waited until the time expired Valentino, 7th Dist. No. 11 MA 175, 2012-Ohio-5992, at for perfecting service to move for a dismissal. While that ¶ 9 (emphasis supplied). Similarly, Rule 3(A) provides, “A seems like a sneaky move, the Court responded, “The rules civil action is commenced by fi ling a complaint with the clearly declare that an action is commenced when service is court, if service is obtained within one year from such fi ling perfected. Civ. R. 3(A). * * * The obligation is upon plaintiffs upon a named defendant * * *.” An action is commenced to perfect service of process; defendants have no duty to only when effective service of process is obtained. Lash v. assist them in fulfi lling this obligation.” Id. at ¶16. Since Miller, 50 Ohio St. 2d 63, 65, 362 N. E. 2d 642 (1977). In the defense of improper service and/or service of process other words, the party is not really a party until the plaintiff was asserted and preserved, the Gliozzo court affi rmed the achieves service upon the defendant. dismissal for lack of suffi cient service. Id. at ¶ 18. Even with all the makings of a proper party, if you forget Therefore, when representing a plaintiff in a lawsuit, do to serve the cake, it is all for naught. You can hang the not forget the requirements of Rule 3 and Ohio Rev. Code streamers, blow up the balloons, and even open presents. § 2305. 17. If you fail to obtain service upon the defendant That does not mean you had a party. The Ohio Supreme within one year of fi ling the complaint, even if the defendant Court has held that, absent proper service of process upon a responds or actively participates in the defendant, a trial court lacks jurisdiction to enter a judgment lawsuit, the court lacks jurisdiction against that defendant, and if the court nevertheless renders over the matter. Any judgment a judgment, the judgment is a nullity and is void ab initio. rendered is a nullity. It matters not Lincoln Tavern, Inc. v. Snader, 165 Ohio St. 61, 64, 133 that the defendant came to the party N. E. 2d 606 (1956). See also Tuckosh v. Cummings, 7th and danced the hokey pokey. Simply Dist. No. 07HA9, 2008-Ohio-5819, ¶17. “Failure of proper put, if you “start the party,” be a service is not a minor, hypertechnical violation of the rules. good host; serve the cake! Such failure is in direct contravention of the Rules of Civil Procedure.” Cleveland v. Ohio Civil Rights Comm. , 43 Ohio App. 3d 153, 157, 540 N. E. 2d 278 (8th Dist. 1989) (emphasis supplied). A judgment rendered without proper Adam R. Todd jurisdiction over the action or the defendant is void. Patton [email protected]

Winter 2015 Columbus Bar Lawyers Quarterly 9 Never Fear, DR1 is HERE! Promoting Mediation in a Contentious World By Colleen P. Rosshirt

Contrary to popular belief, mediation is not actually about hours of time and our mediators have years of experience meeting in the middle. If every claim could be settled by a mediating in a variety of courts. Pre-filing mediations are splitting the difference we (attorneys and mediators alike) would scheduled on Thursday evenings. The evening schedule often be out of business. Rather, mediation in its purest form is about helps parties avoid taking a day off from work. communication, finding solutions that work, and, sometimes, quitting while you’re ahead. EFFECTIVE From the mediator’s seat, the most challenging issues are When parties participate in mediation at the Municipal Court, often not the money that needs to exchange hands; the most more than 60% reach a settlement agreement before they leave challenging issues are ensuring that everyone feels heard, that all the session. In the pre-filing mediation program, 61% of cases necessary concerns are discussed, and that when parties leave the are settled without ever filing a suit. Although a mediation mediation session, they understand what happens next. agreement is not the same as a judgment, it is rare for parties As an attorney employed by the Franklin County Municipal who have agreed to a resolution to later default on the agreement Court (FCMC), I regularly answer questions from attorneys and or create the need for future litigation. pro-se litigants about the Court’s mediation programs. Most The opportunity to craft an agreement that works for all callers are seeking information about how they can avoid the parties who come to the table is considerably less stressful than courtroom. Most pro-se callers are nervous about the entire waiting for a pre-trial date, then waiting for a court trial date, process. Many have never been to court and are fearful. They or preparing a summary judgment motion (or responding to are intimidated by judges and attorneys alike. Others don’t like one), then waiting on the ruling of the judge. By keeping control the downtown traffic and don’t know where to park, still others of the outcome through a mediated agreement, parties own just want to talk until they feel comfortable that they understand the agreement and, in turn, are more motivated to reach an what will happen inside the mediation room. The goal of each agreement that resolves the dispute. conversation is to encourage parties to come prepared and ready The court’s mediation programs could not boast its tremendous to work hard to reach an agreement. Most of the time this goal success without support from Central Ohio attorneys. Attorneys can be met with empathetic and honest answers to the caller’s who represent parties in mediation help set the tone for successful concerns. resolutions. Our office is grateful to the attorneys who refer The information most often disseminated by the mediation clients to the pre-filing program and ask the Court for referrals department can be boiled down to a few very important selling points. Please use what I have learned to help your clients obtain to mediation in filed cases. the maximum benefit from the Court’s mediation programs. If you’re interested in learning more about the dispute resolution services offered by the FCMC, or if you’re looking FREE for an opportunity to practice your mediation skills, please give Franklin County Municipal Court mediation services are free! me a call or send an email to: [email protected]. There is no charge to parties who either request mediation on a filed case or have been referred to mediation by a judge or Topics for civil case mediation we see the most: magistrate. Mediators are paid by the court or donate their time debt collection and expertise to the court. personal injury Did you know the court has offered free, pre-suit mediation eviction second cause of action cases and rent escrow cases. services since 1984? Pre-filing mediation appointments are held on Thursday evenings to meet the needs of the people who In our pre-filing program we see: most often use the program. Any dispute, except those alleging Pro-se clients seeking resolution of situations that are highly criminal activity or that fall under the jurisdiction of the Domestic personal and often emotional. Relations Court, is eligible for mediation in this program. Forms to request mediations are available online and can be submitted The next time you have a person in your office who wants via email, fax, or U.S. Mail. For more information, see: http:// something you know the Court cannot smallclaims.fcmcclerk.com/home/mediation provide, or the claim is much smaller than a Small Claim that you can’t in FLEXIBLE good conscience file a suit, or you’ve Our office works closely with firms and pro-se parties to been asked to help a friend to deal with schedule appointment times that are convenient for all parties. “un-neighborly” neighbors, or you We pride ourselves on providing excellent customer service; anticipate more crying than you’d like when you leave a message we will return your call! Although to handle, please refer these types of mediation works best when all parties are physically sitting in disputes to mediation! the same room, when parties are outside of the state of Ohio, our office has the flexibility to offer a telephonic appearance. Colleen P. Rosshirt FOCUSED Franklin County Municipal Court Mediation Programs Our mediation services are tailored to the needs of particular Supervisor • 614-645-8611 case types. In the Municipal Court, civil cases are allotted two [email protected]

10 Winter 2015 Columbus Bar Lawyers Quarterly Monkey Business By Lloyd E. Fisher, Jr.

Litigation concerning religious symbols on public property and teaching creationism in schools are only the latest cases in the history of government-church confl icts. The State of Tennessee vs. John Thomas Scopes is one of the most noted cases. In 1925, Tennessee passed the Butler Act, which prohibited the teaching of evolution in public schools. The ACLU offered to defend anyone who was charged under the law. John Thomas Scopes, a young teacher in Dayton, Tennessee, was charged and the resulting trial was a dramatic spectacle that drew national interest. A local Baptist preacher contacted William Jennings Bryan to become part of the prosecution team. Bryan was a three- time Democratic presidential nominee and a former U. S. Secretary of State but had not tried a case in 36 years. Bryan declared that as a fundamentalist, he was more interested “in the Rock of Ages than age of rocks.” Clarence Darrow, a nationally known defense attorney, volunteered to represent Scopes. The trial, one of the fi rst to be broadcast on American fundamentalist’s ideas of religion and Bryan “twisted and radio, turned into a legal circus. The Dayton courthouse fl oundered.” The next morning, because of the heat, Judge was jammed with spectators and representatives of the press Raulston convened court outside on the lawn. He ruled that from around the country and foreign lands. There were signs Bryan’s testimony was irrelevant and should be stricken, as and banners reading; “Come to Jesus” and “Read your Bible should the proposed expert testimony of the defense. daily.” Hot dog vendors and ice cream stands surrounded Darrow waived closing argument. This precluded Bryan the court house. H. L. Mencken, the crusty correspondent from delivering his planned oration and stopped distribution from the Baltimore Sun, called the spectacle: “The Monkey of the copies prepared for the press. After a nine-minute Trial.” There was no air conditioning in the courthouse and deliberation, the jury brought in a “guilty” verdict and the building fans gave little comfort to the crowds. Darrow Judge Raulston sentenced John Scopes to the maximum later claimed that the fans were always turned away from punishment--a $100 fi ne! the defense. On appeal, the Tennessee Supreme Court found the statute On the fi rst day of the trial, the presiding judge, John T. to be constitutional but set aside the conviction on the Raulston, ordered the doors closed and, according to Darrow’s grounds that existing Tennessee law authorized only juries autobiography, “. . with great solemnity and all the dignity to set fi nes above $50. possible, announced that Brother Twitchell would invoke the The Scopes trial is the inspiration for the play Inherit Divine Blessing.” Darrow had practiced law for more than the Wind, written by two Ohioans, Jerome Lawrence and forty years and had never before “heard God called in to Robert Lee. It debuted on Broadway in 1955 and ran for referee a trial.” After the fi rst day’s adjournment, Darrow 806 performances. The fi rst fi lm version came out in 1960 suggested to the judge that an opening prayer was unfair, and there have been several revivals on both stage and especially considering the nature of the case. When Judge screen. In 1995, attorneys and friends of the Columbus Bar Raulston took the bench on the second day, Darrow moved Association performed a stage version of “Inherit the Wind” to eliminate the opening prayer. His motion was overruled that was directed by Greg Patterson. The cast included: Doug and Darrow later learned that the court had appointed a Browell, Jeff Ayres, Bill Friedman, committee of church members to assure a supply of opening Kay Lias, Pete Mihaly, Jim Rook and prayers. others. According to Darrow: “The State brought in a number of bright little boys who were students of the school taught by Mr. John T. Scopes.” They said that Mr. Scopes had told them that life began in the sea from a single cell that gradually developed into different structures. During the lunch break, Darrow heard one of the boys say to another: “Don’t you think Mr. Bryan is a little narrow-minded?” Darrow created an uproar by calling Bryan as an expert on the meaning of the word “religion.” When Bryan agreed Lloyd E. Fisher, Jr. to testify, Darrow presented questions that brought out the [email protected]

Winter 2015 Columbus Bar Lawyers Quarterly 11 Honoring the Sacrifice of a Civil War Ancestor By the Hon. James L. Graham

Foreword The sesquicentennial of the American Civil War has generated renewed interest in this decisive time in the nation’s history. When the war began, the population of the United States was 32 million. When the war ended, the total dead on both sides was somewhere between 600,000 and 850,000. This is about twice the total deaths in the next bloodiest conflict, World War II, when the nation’s total population was 132 million. Every American family suffered a personal loss during the Civil War. All present-day Americans whose family was here just four generations ago would have one or more ancestors who were somehow involved in the conflict. In many, like mine, regretfully, the recollection of their exploits and sacrifices have dimmed or disappeared.

Lewis Graham, Private, 91st Ohio Volunteer Infantry Several years ago my interest in the American Civil War led to the discovery that copies of the military records of nearly all Civil War soldiers, North and South, are available at modest cost from the Bureau of Archives in Washington. I knew that my great-great-grandfather Lewis Graham had been killed in action during the Civil War but that is about all anyone in the family knew. The nature of his service, circumstances of his death and disposition of his remains were unknown. So I sent for his records and that was the beginning of an adventure of discovery that has spanned a quarter of a century. The following narrative recounts much of what I have learned from the study of records, 19th-century articles and books, genealogical research and plain old on-the-scene detective work a century and a half after the fact. Lewis was a tenant farmer. He and his wife Rebecca and their children Joseph and Amanda, lived near Lucasville in Scioto County, Ohio. He enlisted in the Ohio 91st volunteer infantry in August 1862, part of a new wave of recruits that responded to Lincoln’s desperate call for 300,000 more soldiers after Confederate General Robert E. Lee’s invasion of the North destroyed the hope that Union victories in the spring of 1862 would soon bring the war to an end. These new volunteers committed to serve for three years or the duration of the conflict, unlike the original 90 day enlistments. The nation faced nearly 2 more years of bloody warfare at a new and even higher level of ferocity. The 91st was recruited in Scioto, Lawrence and Gallia counties. It was led by Colonel J. A. Turley, a prominent citizen of Portsmouth. Lewis was enrolled as a Private in Company C, which was captained by his neighbor Jacob Caldwell. The regiment spent its first year and a half occupying and defending the river valleys southeast of Charleston, West Virginia with a camp at Gauley Bridge and a fort at Fayetteville. In May 1864 the regiment marched into Virginia in order to link up with a larger Union Army which would move on Lynchburg, the main supply depot of Lee’s Army of Northern Virginia. They soon encountered Confederate resistance and fought a pitched battle at Cloyd Mountain near Dublin, Virginia, the site of a strategically important railroad bridge

12 Winter 2015 Columbus Bar Lawyers Quarterly spanning the New River. The Confederates came within Northern communities began a tradition of decorating the an inch of victory when the 91st turned the tide of battle graves of fallen Union soldiers annually. This gave birth to in a daring maneuver orchestrated by Colonel Turley. The the national holiday called Memorial Day. Lewis’s family quartermaster of the 91st was given the honor of lighting the was unable to accord him this honor because the site of his match to the New River Bridge and Colonel Turley received burial was unknown. a brevet promotion to the rank of General. Sometime in the second half of the 20th century, the site The Ohio troops moved on to Lexington, Virginia where of the ruin of the old Quaker church in Lynchburg was they were assailed by cadets of the Virginia Military Institute acquired by a congregation of the Presbyterian Church. who fired on them from the roof of their dormitory. These They proceeded to build a beautiful new church which they same cadets had been instrumental in the defeat of a Union named Quaker Memorial Presbyterian Church. They also Army at the Battle of New Market just a few weeks before. reconstructed the old Quaker meeting house on its original The soldiers of the 91st returned their fire and proceeded site using the original stones that had remained undisturbed to burn their school to the ground. They also appropriated since the Civil War. In 2007 the Sons of Union Veterans of the school’s bronze statue of George Washington on the the Civil War placed a monument at the site honoring the grounds that traitors had no right to display the image of men of the 91st who died there, referring to them as the the Father of the country. “bloody Buckeye boys in blue.” The 91st proceeded on to Lynchburg, now part of an Last June 17, on the 150th anniversary of Lewis’ death, army under the command of General David Hunter. They my son James, my oldest daughter Elizabeth and my brother arrived at Lynchburg on the afternoon of June 17 and the David joined me in placing a wreath at the old Quaker 91st was in the front lines. The Confederate defenders, cemetery in Lynchburg, thus bringing a measure of closure under the command of General Jubal Early, were putting to an important part of our family’s history. The wreath up a stiff resistance. The rebels had established a strong was inscribed with Lewis’s name and regiment and the phrase “He died to set men free. ” point at the ruin of a stone Quaker church on top of a ridge which bisected the main route into Lynchburg. The 91st Afterword was ordered to dislodge them and it succeeded, but at a Lewis’s son Joseph grew up and fathered a son who he terrible cost. Nine of its members, including Lewis, were named Leroy (my grandfather, pictured on the cover in his law killed outright and many were injured, including Colonel office in 1913). Joseph left the boy to be raised by Rebecca Turley and Captain Caldwell, who would later succumb to when his wife died. Leroy attended school in Lucasville, his wounds. After scattering the Confederate defenders, the became a schoolteacher himself and ultimately made his 91st found itself alone on the battlefield and was forced to way to Columbus, where he enrolled in Ohio’s first night retire. Lewis and those who fell with him were buried by law school, which their comrades in arms at the wall of the Quaker cemetery met in the YMCA. behind the church ruins. Leroy was admitted General Hunter, having failed to capitalize on the success to the Ohio bar in of the 91st’s charge, decided to call a halt to the battle and 1907 and practiced finish the job in the morning. Unfortunately, however, law in Columbus for Confederate reinforcements arrived in Lynchburg by train the next 35 years. throughout the night and Hunter faced a much stronger His law partner was force at daybreak. He chose to retreat instead of pressing William Schneider the attack. The battle of Lynchburg was over and the war Sr., grandfather of would last another year. Keith Schneider, When the war ended in April 1865, many families retrieved current president of the remains of their loved ones and returned them home for the Columbus Bar burial. This was not an option for Rebecca, who had two Association. Hon. James L. Graham young children to raise with few resources other than her U.S. District Court widow’s pension. Within a year of the war’s end, many [email protected]

Winter 2015 Columbus Bar Lawyers Quarterly 1133 LEGAL WRITING 101: PRIMER FOR NEW LAWYERS By Trent P. Stechschulte

Young lawyers entering the profession today are expected outline as completely as you can. And because most legal to have polished writing skills. One of the most important documents are broken into sections and subsections, day-to-day exercises of practicing law is communicating and outlining before you start writing can save you time. writing clearly. Whether you are writing a memorandum Favor brevity. Refine your document and only include for your supervisor or emailing a prospective client, my necessary points, and present them with short, crisp hope is that this short article will refresh you on some sentences. Concise writing exudes confidence. It makes your writing principles you may have forgotten. arguments more persuasive and ideas more convincing. Consider your audience. Your writing should guide the The average sentence should be under 20 words and reader – whomever that may be. Keep in mind, you are your average paragraph should be 4-8 sentences long. Of not writing for yourself, but for your audience. Make it course, “average” does not mean “every.” You may still easy for your reader to understand what you are saying. write longer sentences and paragraphs when necessary. If your audience is a court, know the local rules, the Longer sentences are sometimes necessary to adequately judge’s preferences and experience, and be exhaustive in explain an idea. But when you can, trim your sentences, your research. If you are drafting a memorandum for your only leaving the essential. Prefer writing in the active voice. One way to increase supervisor, fully analyze the issues and provide an answer brevity is to write in the active voice. This usually that is supported by your research. requires fewer words, and your writing is more lively Outline and organize your ideas before you begin. One and authoritative. The easiest way to distinguish between way to clarify your message is to outline your ideas before active and passive voice is: you are doing the action in you begin. That way you can avoid missing any key points. active voice. In passive voice, the actions are done to you. If you are not ready to outline, “brain dump” by writing It is the difference between: “Testimony was heard from down every incomplete thought, note, or idea you have. the plaintiff” and “The plaintiff testified.” Doing this can help you generate ideas and envision how However, depending on the situation, it may be more to organize the content. Once you have that structure, advantageous to use passive voice. Regardless, find passive

14 Winter 2015 Columbus Bar Lawyers Quarterly voice constructions in your writing and decide whether in writing. You can improve your use of quotations if you converting to active voice can strengthen your message. make a persuasive assertion before the quotation. For Do not forget to use topic sentences or transitions. Begin instance, “The Ohio Supreme Court has held numerous each paragraph with either a strong topic sentence stating times that Tort Reform is constitutional: (quote)” or “In the controlling idea of what is to come, or a connection that fact, the 6th Circuit noted such patient communication is links paragraphs together or separates them into discrete not privileged: (quote)”. Paraphrasing an idea before your parts. Readers assume that a new paragraph substantiates quote reinforces your message and makes your reader’s job a separate, distinct idea or strengthens your previous easier. paragraph. Give your readers that. Readers skimming your Continue improving. Read great writing examples writing should be able to grasp the ideas you are promoting from exceptional authors. Purchase any book written by by simply reading your topic sentences and transitions. Bryan A. Garner or regularly read opinions written by Avoid legalese. In law school, we were asked to read cases Chief Justice John Roberts. Edit your writing and re-write from centuries ago, written by judges in a style that does sentences to improve clarity and style. Some people copy not represent modern prose expectations. Unlike centuries and paste each topic sentence in a ago, concise, clear writing is encouraged. Do not imitate separate document to determine the writing of judges from centuries ago. Avoid using whether the organization works. phrases like herein, herewith, aforementioned, arguendo, Others use writing guide checklists. the case at bar, or sua sponte. It is your goal to promote Whatever works for you, stick with clarity. Using these abstract, dense legal terms makes your it and you will see improvements in writing vague. Stick with plain, readable English. Doing so your writing. will help you better convey what you truly wish to say, and your readers will appreciate it. Remove “of” and nominalizations when you can. Many times using “of” or a nominalization (words ending in - tion, -ment, or -ence) indicates you are using several Trent P. Stechschulte words when one will do. For instance, “the majority of” [email protected] can be changed to “most” and “an adequate number of” can be changed to “enough.” Likewise, nominalizations like “in conformity with” can be changed to “conform” and “make reference to” can be changed to “refer.” These principles seem simple enough, but many writers fail to Sometimes, the peanut butter, as well intentioned as catch them. Circle every “of” and nominalization in your it may be, is just unwilling to meet the jelly half way. next memo and see whether your sentences can be re-styled That’s where I come in. and improved. Name parties. Traditionally, we are taught to identify the parties as Defendant, Plaintiff, Appellant, or Appellee. Feel free to identify the parties when doing so adds to your content. Referring to your client as Defendant throughout your brief can be dull. Depending on what the brief is about, bring your characters to life by referring to them by their names. Of course, if there are multiple parties in a case, this is not possible. Moreover, make sure that it is clear who the named party happens to be in the case, whether it be the “victim,” “store owner,” or other appropriate characterization. Quote effectively. To write fluidly, do not overuse quotations. If you overuse quotations you risk that your readers will stop reading them. Also, your writing can become disjointed if you use quotations from different authors. Hi I’m Bob Palmer. Mediation. Litigation. Arbitration. Nevertheless, you should use quotations, but when you do, try to use them as an integration into your own style and with context about the topic that you are writing about. Many young lawyers do not synthesize or paraphrase the idea, rule, or fact before quoting a line. “The court stated: A unique combination of law and humanity. (quote)” and “Ohio Rules of Civil Procedure states that: Robert Gray Palmer Co., LPA 614.484.1200 rgpalmerlaw.com (quote)” are some typical examples of quotations found

Winter 2015 Columbus Bar Lawyers Quarterly 15

RGP_TDR_quarterpg_ads_3.38x4.63_FA.indd 1 8/6/13 10:44 AM SIMPLE PRACTICES CAN RESULT IN GREAT VALUE TO YOUR CLIENT By Emily M. Vincent

Having recently transitioned from hand, when a practitioner has prepared can go a long way to help the parties a role as a staff attorney with a court, in accordance to the court’s practices, move forward. I had daily opportunities to observe judges notice and appreciate the ease counsel at their best, or unfortunately, of working with that attorney, and will Context is key. their worst.1 likely give him or her the benefi t of the One of the biggest mistakes attorneys This article aims to provide a doubt in their future interactions. make is failing to provide the court broad overview of best practices to with enough context to decide the use before a court, as observed from Be professional and respectful matter pending before it. The best rule the perspective of a staff attorney. to judges and members of their of thumb is to approach your task as if When lawyers consistently keep these staff alike. this is the fi rst time the court is learning practices in mind, they help the court Of course, the importance of of your matter. At a status conference, work effi ciently, ultimately building a courteous treatment towards a court attorneys should fi rst give the court a rapport with the court and its staff that and its staff should go without saying. factual summary of the case or the issue results in value to your clients. Your reputation with the court is one leading up to the conference as opposed of the most valuable assets you have. to jumping in to explain their respective Know your judge. The Professional Rules of Conduct positions. Similarly, unless there has Across all genres and practices, require lawyers to demonstrate respect been an active motion practice, include knowing your audience is always the for those who serve the legal system, a fact section in a brief. Judges and fi rst step to crafting any successful including judges, other lawyers, and their staff work hard to prepare for presentation or writing. Similarly, public offi cials.2 Practicing with civility each meeting and to understand the the most successful practitioners are enhances your credibility with the backgrounds of cases. But, let’s face aware that each judge is an individual, judge and engenders confi dence in your it, yours is just one of approximately with distinct judicial philosophy and representations to the court. All of 650 cases assigned to that judge (if in procedural preferences, and they this will ultimately translate into good Franklin County). Providing context conform their behavior accordingly. will with the court, your client, and the will help the court more quickly and opposition.3 correctly understand the implications If a judge’s preference is to hold all of its decision on the particular issue conferences in-person, for example, a Practitioners should endeavor to before it. request to appear via telephone without use the same level of decorum when a reason will not be well taken. Other Choose your battles and speaking with the court’s staff attorney procedural areas where judges might consider alternatives to fi ling a or bailiff, as they would when speaking have differing preferences include: (1) motion. to a judicial offi cer. Raised voices, the use of courtesy copies and proposed In today’s e-fi ling world, courts interruptions, complaints, or negative orders/entries; (2) whether the judge are faced with more fi lings than will consider motions to extend the comments about aspects of the case, ever. It’s important to remember that page limitation; (3) time limits on including the judge, unfortunately, are fl ooding your opponent with motions oral arguments or opening/closing not uncommon for some attorneys or arguments also fl oods the court arguments at trial; and (4) courtroom when not in the presence of the judge. with additional work. Practitioners decorum, such as standing when Such behavior refl ects poorly upon should avoid using motion practice objecting. the attorney, and vicariously their as superfi cial attorney gamesmanship client, and will be reported by the staff that has no bearing on your client’s Do your homework about the judge member to their judge. substantive position with the court.4 before your fi rst fi ling or in-person appearance. This means researching Be proactive. On the other hand, there are times online, and talking to other lawyers The case schedule’s deadlines are when fi ling a motion is appropriate, but who have practiced before that there for a reason: to guide practitioner’s doing so may not be the most effi cient particular judge. Not following the expectations and to enable the court use of your client’s money and the court’s judge’s preferences—particularly when to effi ciently manage its docket. time. For example: during discovery he or she has shared them publicly, Scheduling confl icts are bound to arise disputes, one motion to compel online for example—evidences a lack of from time to time, but courteous and typically invites an opposing motion to preparation to the court. On the other timely communication with the court compel, each of which involves its own

16 Winter 2015 Columbus Bar Lawyers Quarterly briefi ng schedule. Before you know it, about the status of a motion, however, there are dual motions for sanctions borders on harassment (and yes, this and, of course, motions to continue the does happen). Similarly, calling the discovery deadline. Asking the court court to ask if there has been a ruling for an in-person conference instead of on a matter when there is a publicly fi ling a motion relieves the strain on the viewable docket is an ineffi cient use of court’s docket and will undoubtedly the court’s time. To determine whether result in a faster resolution for you and it is appropriate to call on a motion, your client. fi rst look at the docket for a decision and then consider how long the matter When possible, provide has been ripe for a decision; if it has alternative resolutions for the been less than ninety days and there are court’s consideration. no upcoming dates, then you may want In circumstances where the court to hold off on calling. has discretion, the best practice is to provide the court with alternatives for Regardless of why you or your fi rm its consideration. Providing alternative places a call to the court, the person resolutions, for instance, in discovery calling should have enough knowledge or case scheduling related issues, helps of the matter to answer general the court discern its options effi ciently questions. If it is a scheduling request, and at the same time increases the keep in mind that the fi rst question likelihood of an end result to your, and asked by the court will likely be whether your client’s, liking. For example, if you you have spoken to opposing counsel. only argue for dismissal of or judgment If the request is for a conference, the on some or all claims as a discovery court will also need to know the reason sanction, you may be left with a result behind the request, so that it can that you were not hoping for, or worse, determine whether one is really needed one that your client was not expecting. and/or what the court needs to do to prepare. Attach evidence and supporting Instilling intelligent and reasonable materials to each motion, even practices within your fi rm can provide if the materials are in the record its own benefi ts, as well as earning a elsewhere. positive reputation with the court. In Even where attachment is not markets like Columbus, where word of required under the local or civil rules, mouth gets around pretty fast, the goal attorneys should include a copy of their of any practitioner should be to conduct supporting exhibits with their motion. themselves in such a way that garners This includes cited material contained trust and respect, which helps to win elsewhere within the record. Your cases and in turn, develop business. ultimate goal should be in ensuring that the court can easily determine that your 1. Emily worked as staff attorney to argument is properly supported. Also, Judge Timothy S. Horton at the the impact of your argument is reduced Franklin County Court of Common if the court has to take time out of its Pleas, General Division from May review to search elsewhere in the docket 2012 until September 2014. for a deposition or court order cited 2. Preamble to the Ohio Rules of in your brief. Practically speaking, Professional Conduct, ¶5; see Rules not attaching materials to the instant 3.5(a)(5) and (6). motion also invites the opportunity 3. See also, “Consider Courtly Manners for human error and the potential that … ‘please’ and ‘thank you’ go a your supporting materials are missed. long way.” Luke A. Gilchrist (Staff Attorney to Judge David Cain), Carefully plan any phone calls to Columbus Bar Lawyers Quarterly, the Court. Summer 2014. There are many circumstances where 4. “The reference to acting ‘with zeal a phone call to the court is appropriate, in advocacy’” was deleted from the particularly if an unreasonable amount Ohio Rules of Professional Conduct Emily M.Vincent of time has passed without a decision. because “‘zeal’ is often invoked as an Carpenter Lipps & Leland LLP Calling multiple times in one week to ask excuse for unprofessional behavior.” [email protected]

Winter 2015 Columbus Bar Lawyers Quarterly 17 Information Security, Leaking Data and the Duty of Confidentiality

By David J. Fetters

All attorneys owe clients a duty to their client information confidential.

A colleague and close friend called vulnerability. A quick search revealed secure than a short sequence of random me in a panic a few months ago. A that the other computer sharing the file symbols. Using different passwords confidential memo from one of his was using one of the IP addresses listed for email services and support services previous cases had shown up in a Google as being vulnerable. CNET had picked like PACER or Franklin County’s search. Not just the name of the file, a up on the obscure post and published a eFiling program compartmentalizes link to the actual file. It was a letter more comprehensive explanation of the the potential damage if one of those between a group of attorneys discussing breach. The problem affected nearly a services suffers a data breach. settlement, and understandably my dozen models of ASUS brand routers Another simple practice is friend was concerned that the contents sold for home or small office use. remembering to use passwords on of his computer might be showing up The affected routers could accidentally everything. Attorneys regularly deal publicly on the internet. Social security be configured to share publicly the with confidential client information numbers, bank account numbers, and contents of any USB memory card or whenever they pick up or interact with confidential business information external storage plugged into it. Any a digital device. Password protecting potentially shared with the world. owners who turned on one of ASUS’s all manner of electronic devices, from All attorneys owe clients a duty to AiCloud services on their router would personal cellphone and work computer their client information confidential. The inadvertently enable global access to to thumb drive or home computer, is an Ohio Rules of Professional Conduct, the files. Originally discovered in June easy way to decrease the likelihood of at Rule 1.6, prohibits lawyers from 2013 by security researcher named revealing confidential information. “reveal[ing] information relating to Kyle Lovett, ASUS did not resolve the Consider the serious threat posed by the representation of a client, including problem until sometime in 2014 when the humble, omnipresent USB thumb information protected by the attorney- it released a firmware patch for the drive. Commonly available USB storage client privilege under applicable law,” affected routers. Owners of vulnerable devices can easily hold whole libraries of without informed consent from the routers need to go to ASUS’s website, documents or years of confidential State client or the occurrence one of several and then download and install the Department cables. Get in the practice other specified circumstances. The patch to resolve the issue. of using only one thumb drive for client usual remedy to a known or potential The incident served to remind my materials, and regularly remove files inadvertent disclosure is notifying any very relieved colleague and I that that are not actively needed to limit the clients or former clients who may have information security is at least as potential damage of loss or theft. The been affected. I gasped over the phone important as physical security. As the prices for thumb drives are so low that thinking of the sheer number of clients practice of law continues its inevitable it is well worth it to invest in one with and former clients he would need to march toward the paperless future, encryption capabilities. While losing notify if it was true. attorneys will need to remain vigilant of one will still be a frustrating event, After one or two quick jokes at my the ever changing nature of the threats encryption can prevent it from being a friend’s expense, I offered to help him to protected information. Major law costly and embarrassing event. figure out why we could both search firms have already been the targets for his confidential memo on Google. of foreign hacker attacks. Small to We determined fairly quickly that the medium sized firms, while arguably less file was being shared from a computer likely to be the target of international with a different internet protocol (“IP”) espionage, can still improve their address, a different service provider, and information security programs without was located across town from his office. investing much financially. Moreover, none of his other clients’ files Developing a consistent password turned up when he searched specifically use policy is one of the easiest and for them. We had determined that it most effective methods of improving was not his computer that was sharing security. Passwords do not need to be the file, but we still had no clue as to a mix of random letters and symbols why it was showing up in Google. to be secure. Long but ordinary I stumbled onto a website post with sounding passwords, say your three a list of thousands of IP addresses that favorite ADAs on Law and Order or a David J. Fetters were noted as having one of several ASUS series of words that evoke a comically Barney DeBrosse, LLC brand routers with a massive security memorable visual, are ultimately more [email protected]

18 Winter 2015 Columbus Bar Lawyers Quarterly A Morality System - It Isn’t Just a Game By Luke A. Gilchrist You are trapped in quarantined city. on just yourself, things go a little bit as that in Infamous. Lawyers are, however, A mysterious plague has broken out and differently. Posters of you still will be constantly faced with decisions that have the government has sealed the borders. plastered around the city; however, long-term and sometimes unforeseen Medical supplies and food are scarce, instead of being portrayed as a hero, you ramifications for others. Therefore, a but a supply drop from the government are a tyrant. Instead of showering you in lawyer needs to have a strong moral is imminent. You travel to the designated praise and cheers, the people throw rocks foundation. Lawyers who don’t take the location and find it mobbed with people. and cans at you. The police shoot at you time for self-examination might one day Some are just average people, scared and on sight, and only the criminal element find themselves staring down an ethics desperate for food. Others, however, are seeks your help. violation. organized thugs who want to hog all of I use games to blow off steam, but In case you’re curious, I chose to give the lifesaving supplies for themselves. another side benefit is that I’ve found away the food. My wife and I often joke Through a series of heroic maneuvers, that, through games like Infamous, I have that I am impeccably moral in video games. you are able to secure the cache. tested and reaffirmed my moral stance Even when I swear I’m going to go back So what do you do here? Do you toward others. Even more than books and and play a game over again as the villain, distribute the supplies or, knowing that movies, today’s high-budget video games I find myself feeling bad and returning to the quarantine could last a long time, – with their breathtaking artistry and being Mr. Nice Guy. I’m certainly no saint hoard the food for yourself? hours-long plots that rival Hollywood and I’ve got my character flaws, but for Now, this is a scenario from a video -- insert someone directly into the story. the most part, I always try to care for and game. You and all those around you You can feel kinship with characters you help others. I believe that we all should be are just bytes of information. Does your befriend, and loss when a comrade is charitable and seek to lift others up. answer change based upon the fact that it’s harmed or killed. It feels as real as fake I encourage everyone to try out a game fictional, with no real-life consequences? life can feel. that employs a morality system and see The above scene happens in the popular I know what you’re thinking: where you end up. You’ll probably be game Infamous. It and some other modern interesting, but does this have a point? reassured by what you find out, but if video games employ what is known as a Just stick with me a while longer. evil beckons and tempts you, maybe you morality system. Throughout the plot, I believe that a strong moral foundation should engage the game presents you with choices. Your is the basis upon which a caring and in some self- decisions affect how the rest of the game empathetic life is built. It is through that reflection. Until plays out. lens that we view situations and make our we know where If you choose to be good to others, decisions. And it is these decisions upon we stand, we things will start to get better for you: You which we are judged as lawyers. A well- will never know might notice posters of yourself showing calibrated moral compass pointed toward where we are to up around town portraying you as a hero. an immovable north of decency brings a go. People will applaud as you walk by and strong sense of duty to others, leading try to take photos with you. The police to decisions that best serve others (read: begin to ask for your help in keeping clients) rather than yourself. A hazy or order in the city and new opportunities malleable morality system tends to lead will open up. to the opposite. Luke A. Gilchrist If you choose to be selfish and focus We are not often put in a position such [email protected]

You don’t literally have to jump for joy But you may want to when you realize who your marketing will be reaching.

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Winter 2015 Columbus Bar Lawyers Quarterly 19 WHAT YOU DON’T KNOW WILL HURT YOUR CLIENTS: QUICK TIPS ON THE NEW FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) AND ITS IMPACT ON YOUR CLIENTS

By Katherine Dodson

All businesses that have global enter into Intergovernmental Agreements (IGA) with the United States for purposes of sharing of information on business operations, maintain offshore U.S. taxpayers with offshore accounts and assets. In these accounts/assets, or who make payments agreements, foreign governments basically agree to assist the IRS in obtaining information regarding these types of to offshore individuals or entities should U.S. taxpayers. Quite surprisingly, the United States’ foreign have a working knowledge of FATCA diplomacy efforts to obtain agreements from many foreign governments have been very fruitful. To date, the United and its general requirements. States successfully obtained agreements from 34 countries under the Model 1 IGA and 5 countries under the Model 2 IGA. Is your client FATCA compliant? Since July 1, 2014, the The final area of regulation requires certain foreign entities IRS has been authorized to assess substantial penalties against to register with the IRS and enter into agreements to provide U.S. businesses that are not in compliance with the new information related to U.S. accountholders or foreign Foreign Account Tax Compliance Act. This Act, known as entities that are owned by U.S. taxpayers. FATCA forces this FATCA, was implemented to attempt to curb tax evasion by compliance on foreign entities by requiring this registration requiring and encouraging the voluntary reporting of foreign in order to avoid a 30% withholding on their U.S. sourced financial assets by U.S. taxpayers, foreign and domestic payments. Specifically, FATCA requires any U.S. business financial institutions, and foreign governments. The most (i.e., withholding agent) making these types of payments to a startling aspect of this new tax law is its reach to virtually all U.S. businesses making payments overseas. The penalties for foreign entity to first ensure that the foreign entity is FATCA failing to comply with these new provisions under FATCA compliant. If FATCA compliance cannot be confirmed, the can be very punitive and substantial. Accordingly, with this U.S. withholding agent is required to withhold the 30% from law now in effect, all businesses that have global business the payment. If the U.S. withholding agent fails to withhold operations, maintain offshore accounts/assets, or who make the required 30% from the payment, it will be responsible for payments to offshore individuals or entities should have a this withholding amount plus potential penalties for failure working knowledge of FATCA and its general requirements. to withhold. Accordingly, the burden for ensuring FATCA In addition to the impact on U.S. businesses, FATCA also compliance lies with the payors of the U.S. sourced income. imposes additional disclosure/reporting obligations on A U.S. business making this type of payment overseas individual U.S. taxpayers who maintain foreign bank is required to engage in 30% withholding if the following accounts and other foreign assets (including ownership apply: interests in foreign entities). Suffice it to say, the reach of the FATCA is vast. The payor is a withholding agent obligated to withhold There are three general areas of enforcement and regulation under FATCA; under FATCA. The first area of compliance imposes an The payment being made is a “withholdable payment”; additional filing requirement (i.e., the IRS Form 8938) on The payment is being made to a payee who is a foreign taxpayers with specified foreign assets over $50,000. This financial institution (FFI) and the FFI is not FATCA new form is in addition to the annual FBAR filing obligation compliant or compliance cannot be verified. for similar foreign accounts. Unlike the FBAR reports, this The payment is being made to a payee who is a non- new form and filing obligation requires the disclosure of accepted non-financial foreign entity (NFFE) and the more than just financial bank accounts. Specifically, this new NFFE has not properly disclosed its substantial U.S. form, which is appended to the taxpayer’s annual income owners. tax return, discloses all foreign financial accounts in addition to certain other foreign investment assets. Like the FBAR, Most important of these factors is whether the entity there are substantial penalties that can be imposed against receiving the payment is a FFI or NFFE. In general, a FFI taxpayers who fail to include the Form 8938 with their includes (but is not limited to) depository institutions (i.e., income tax return. The failure to report could result in a banks), custodial institutions (i.e., mutual funds), investment minimum penalty of $10,000 and a maximum penalty of entities (i.e., hedge funds, private equity funds), and certain $50,000 for each reporting failure. There are also related types of insurance companies. In addition to determining criminal penalties that can be imposed for willful failures to whether the payee is a FFI, there are also potential file this disclosure form. withholding obligations on payments to non-foreign financial The second area of regulation and compliance under entities (NFFE). If the payment is being made to a FFI, or a FATCA is designed to encourage worldwide financial non-exempt, 30% withholding will apply UNLESS FATCA transparency by encouraging foreign governments to compliance can be established.

20 Winter 2015 Columbus Bar Lawyers Quarterly FATCA compliance can be established through obtaining a withholding certificate from the payee. BEING HEALTHY This withholding certificate is generally provided on some variation of the is not good for my health IRS Form W-8 (foreign entities and individuals) or the W-9 (for US entities By Michael A. Corey and individuals). There are complex record retention requirements with A standing desk seemed like a good idea at the time. I was a little over a year respect to these withholding certificates into my practice, and it had become clear that sitting for the majority of the day that must be implemented by U.S. was not the most effective way to pursue a healthier me. Research had begun to businesses. bear this out, in the way that research often validates the obvious: Of course, Many experts, in reviewing the it’s not good for you to sit on your derriere all day. So as part of my elusive goal requirements under FATCA, estimate of being healthier, I set out to find an elegant standing desk solution that would that the overall compliance costs to also not render me a laughingstock at the firm. U.S. businesses will be substantial. At this point I should have known that my effort was bound to be snake- These substantial costs arise due to bitten, given my fledgling attempts elsewhere to avoid Work Life Imbalance the enormous reach of FATCA on (“WLI”). A new Downtown condo-dweller, I took a stab at combating WLI by virtually all U.S. sourced payments pursuing urban gardening. Vertical hangers seemed an excellent choice for my made overseas. In addition, FATCA concrete-walled patio, and the herbs I planted flourished. It wasn’t exactly the compliance is even more complicated Babylonian Gardens, but I was proud of the success of this new hobby. A week by the ever changing and evolving later, improper care or improper sunlight or something else—I was never really IRS notices, the voluminous not sure what the culprit was, which was surely part of the problem—led to the Treasury Regulations, the dozens of demise of my basil, rosemary and thyme. Intergovernmental Agreements, and I had also taken a stab at cooking, only to slice through my left ring finger the newly released IRS forms. These rather than the vegetable I had been attempting to chop. Surgery, physical substantial compliance costs, however, therapy, and post-traumatic-knife-syndrome resulted, along with a giant blue can quickly be out paced by the punitive cast that earned me plenty of guffaws at work, along with the nickname Smurf, monetary penalties that can be imposed Esq. against taxpayers who fail to properly But despite these setbacks to my pride and my pocketbook, I was committed withhold under FATCA. As such, to finding a way to stand while I worked. After all, before the rise of the service most American businesses with global economy, most Americans spent their workdays on their feet anyway. Just not operations will be forced to stomach in our office. So here was an opportunity to be a pioneer, and to be a little more these compliance costs in order to avoid health-conscious while conducting legal research. the IRS’s examination and penalties. My initial search led me to a pair of very different options: It seemed I could In order to ensure FATCA either purchase a brand-new desk, at a hefty price tag, that would require me compliance, U.S. businesses should to stand all day; or I could purchase what looked like TV dinner trays that obtain a FATCA impact assessment were designed to be placed on top of your traditional desk. The former seemed that analyzes the regulatory impact excessively expensive, and the notion of standing all day was not inviting either. of FATCA on business operations. A So I purchased one of the desk trays in the hopes that my days of being an comprehensive compliance plan should armchair lawyer were done for good. also be put in place to ensure that the And then it arrived. A single one of these was not only too small to hold more accounts payable departments are than a single item at a time—an elevated keyboard wouldn’t do much good— properly verifying FATCA compliance it was also too low, which for the first time in my life made me think being before making overseas payments. 5’10 qualified as tall. But I tried to make it work, and stacked a Black’s Legal Additionally, document collection Dictionary and a few old textbooks to hoist up the keyboard to a proper height, and retention policies need to be and reams of paper to raise my monitor. It looked absurd, and anyone and established to ensure that the proper everyone that walked by my office assured me that my desk appeared to have FATCA withholding certificates and been decorated by a child building a fort with paper products. Aesthetics aside, it was also impractical, for whenever I did want to sit, I would have to dismantle verifications are properly maintained. this makeshift apparatus. So after two weeks—at least I beat the longevity of my garden!—I gave up, and resumed my chair-bound legal practice. A month ago, however, I saw yet another article about the hazards of a sedentary workday, and resolved to remedy this situation once and for all. This time, I found a perfect hybrid: a stand-up desk add on. Rather than a new desk altogether, and rather than the teeny risers, this was a two-level platform that could be raised and lowered with the press of a button, and more importantly, could simply be placed on top of my traditional desk. I was jubilant. It is, after all, the little things. So I stand before you now the proud owner of a “Varidesk,” which has Katherine Dodson made the hours of practicing law more of an enjoyable Terrence A. Grady & exercise than it was before. Associates Co., LPA Michael Corey, Bricker & Eckler [email protected] [email protected]

Winter 2015 Columbus Bar Lawyers Quarterly 21 Sunny Ski Resort is Spectacular All Year

By the Hon. David E. Cain

A good time to visit a ski resort is before the snow flies and Spangled Banner while a horse trotted out onto the ice with all the crazy skiers come to town. the rider waving a large American flag. Go before summer’s end. Avoid the frigid temperatures and broken bones, before anyone expects you to slide down On day three, we did some pistol shooting at a private a mountainside at 50 miles an hour on a couple skinny sticks club before driving 13 miles south to Hailey where the attached to your feet. And don’t worry about finding enough Hailey Rodeo Arena was hosting the two-day Intermountain to do. Pro Rodeo Association Championship Finals. Events We went to Sun Valley, Idaho, to visit friends with whom included bareback bronc riding, saddle bronc, bull riding, we traveled in Africa a couple years ago. The fact that it steer wrestling, barrel racing, breakaway roping, tie-down was the Wagon Days festival weekend added a few activities roping and team roping. Most of the participants were semi- to the agenda. But there would have been plenty to do in professionals. They have day jobs, too. Children as young any event. With Sun Valley being the first ski resort in the as 6 years old entertained between the competitive events. West and the site of the first chair lift in the whole world, its Some had a hard time getting up after being thrown to the rich history of being a celebrity playground at the end of a ground by a bucking pony, and I wondered if Idaho has a railroad line gave a fascinating spin to what would otherwise section in its criminal code prohibiting child endangerment. still be a great place for simply looking at the beautiful During the rest of our stay, we took a road trip about 50 natural surroundings. Mountains tower over rivers, lakes miles north to Redfish Lake on the edge of the Sawtooth and golf courses. Large blooming flowers are everywhere Wilderness. The Sawtooth Mountain Range is so named – in landscaping, pots, crocks and boxes – flourishing in the because the pointed mountaintops look like the teeth on a mild summer temperatures. saw. They make great views, whether overlooking the valley The first day, we rode first a gondola and then a chair lift to along the way or reflecting off the waters of Redfish. the top of the 9200-foot Bald Mountain and enjoyed lunch at the Roundhouse Restaurant with breathtaking overlooks of We also went trap shooting at the Sun Valley Gun Club ski trails winding through stands of Douglas Firs seemingly where my wife, Mary Ann, hit 18 out of 25. (I have treated right up to the edge of the barely visible city. her really nice since then). Day two featured the Big Hitch Parade, the largest non- On our last night, we went to the highly recommended motorized parade in the Northwest and a highlight of the Knob Hill Restaurant on the northwest edge of Ketchum. Wagon Days Festival. The parade went up Sun Valley Rd. We went early so we could visit a small cemetery nearby. and down Main St. in Ketchum, the small city that sits about Within minutes, Mary Ann spotted the grave we wanted to a mile west of the Sun Valley Resort. Many of the parade find. No head stone. Just a granite slab on the ground that entrants were riding horses (some bareback). A couple simply stated: “Ernest Miller Hemingway. July 21, 1899 -- political participants were on camels. A cowboy was riding a July 2, 1961.” Maybe it was the “Absente” wine bottle on bull. Others were in museum quality carriages, carts, buggies the grave that caught her eye. Or the red onion. Or the fairly and wagons being pulled by horses, ponies or mules. Young fresh long stemmed artificial roses. Or the mounds of small men on roller blades carried coal shovels and quickly scooped coins that had been tossed like into a wishing well. I didn’t up any excrement dropped by the animals. understand the significance of any of this. My favorite commercial was presented by Boot Hill Under Hemingway had first visited Sun Valley in the summer Taking. The undertaker was riding a miniature paint horse of 1939. He came back to live after World War II with his and pulling a low-level wagon, more like a rectangular fourth and final wife, Mary Welsh, who is buried beside trunk about the size of a coffin, with glass sides and the him. A nearby elementary school is named after him and corpse’s booted feet and lower legs hanging out the back. a Hemingway Memorial sits along Trail Creek a few miles The “hearse” was followed by the grieving widow, a young south of town. woman dressed in a black dress, hat and veil and riding a pinto. Another one of the some 70 entrants was the Spirit of We went to Sun Valley with our frequent traveling Ketchum Iditarod (dog) Team that will for the second year in companions, Dr. Jerry and Jay Gilroy of Lansing, who were a row be the official Ketchum entry in the Alaskan Iditarod longtime customers and later friends of Brenda and David race. Norton who own the Sheepskin Coat Shop on Sun Valley Per tradition, the grand finale was the Big Hitch itself: Rd. in Ketchum. The store originally featured sheepskins Six tall, skinny, wood-covered wagons that were originally – David did his own tanning – but it now offers a wide used to transport lead and silver ore from the mountains variety of exotic furs. Brenda planned much of our African surrounding the valley during the mining boom in the late trip with contacts she developed at trade shows. Brenda’s 1800s. A 20-draft-mule jerkline pulled the wagons. sister and her husband, Kari and Jack Regan, recently moved That night were attended “Sun Valley on Ice,” a sensational from Connecticut to a house they built in the mountains near skating show starring Evan Lysacek, Olympic Gold medalist, Hailey. Jack is a retired Marine aviator, but met Kari when World Champion and two-time U.S. gold medalist. In true they were heading computer research for the marketing Western style, the event began with the playing of the Star operations of a large corporation, Jack on the East Coast

22 Winter 2015 Columbus Bar Lawyers Quarterly and Kari on the West. The four of them planned a full agenda for our visit. The idea of a ski resort in the Western United States came to Averell Harriman, who was board chairman of the Union Pacifi c Railroad, while visiting ski resorts in Europe. He thought a ski resort at the end of a railroad line would turn snow from a headache to an asset. With the help of a European ski expert (an Austrian count) in 1935, he discovered the area around the small mining town of Ketchum to be perfect: Mountains the right height, open slopes, wide valley approaches, sunny blue skies, dry powder snow and mountain ranges that help break the cold winds. Harriman quickly arrived in the area and purchased a 3400-acre ranch a mile east of Ketchum for $39,000. The railroad pitched in another $3 million for construction of a lodge, a heated outdoor pool, an ice skating rink and the world’s fi rst chair lift (from the redesign by railroad engineers of a conveyor belt used to load bananas onto freighters).

The Sun Valley Lodge opened in December, 1936. The Challenger Inn, offering rooms at a more modest price, soon followed. By the late 1930s, the Sun Valley winter playground became the place to be and to be seen for movie stars and other celebrities such as Tyrone Power, Clark Gable, Gary Cooper, Claudette Colbert, June Allyson and John Wayne. Many of them are in the pictures that still line the hallways in the lodge. Glenn Miller’s theme song, “It Happened in Sun Valley,” added to the glamour. Sun Valley also became the setting for numerous movies (that were supposedly shot in the Alps, Africa or elsewhere). Sun Valley Resorts, which includes about 25 restaurants and stores, has 1835 employees in the winter and 1300 in the summer, according to a woman on our shuttle bus back to the airport who said she works in human resources for the company. Most of them are foreign students with working visas, she said. Sun Valley actually sends a recruiter to South America and Europe. Other activities in the resort area include trout fi shing, hiking, rafting, kayaking and parasailing. If you are feeling adventurous, rent a bicycle and take it on a ski lift. Many of the ski trails are approved for mountain bikes.

Hon. David E. Cain [email protected] The Rape Case A Young Lawyer’s Struggle for Justice in the 1950s

(By Irving Morris, University of Delaware Press, 2011) Reviewed By Janyce C. Katz, Esq.

A short man, his head crowned with only a scattering of not try to reargue the case, but it is clear from the manner in white hairs, sat across from me and seven other people at a which he sets out the facts that he believes the men did not table in the dining area of a Palm Beach synagogue on April rape the woman. He sees blatant due process violations that 24, 2014. We were enjoying an early morning breakfast destroyed any chance of a fair trial. The blatant destruction where fresh bagels, cream cheese and hot coffee were by the police of the first statements of the men, the lies on the plentiful. The man across from me listened intently, saying stand under oath about those statements and rejection of the nothing and seemingly focused on something elsewhere. possibility of other witnesses destroyed the men’s chances to With the Atlantic Ocean only one block away from where have a fair trial. The testimony of the allegedly raped woman we were sitting, I thought perhaps his mind had wandered and the men’s credibility was destroyed in the eyes of the jury away from bagels and light conversation to the powerful members. Finally, the end goal of the attorney general and ocean, pounding gently on the beach that morning. his chief deputy – to win big – made them overlook, not The conversation at the table turned to law, legal issues look hard, at the evidence presented by the police. All the and Florida legal scandals, some of which were so absurd, evidence of the prosecution was not shared with the defense I could only laugh. Then, the man sitting across from me, lawyers. who turned out be named Irving Morris, began talking about The jury returned with a verdict of “guilty.” Luckily, a long-ago-ended rape case that he had argued up and down an attorney for one of the accused polled the jury, and it the court system in Delaware over a seven year period, finally then came out that the jury’s verdict really was “guilty with winning the freedom of the three accused men. He quietly mercy,” meaning life in prison instead of hanging under summed up the 1947 case, in which the police witnesses lied Delaware law as written in 1947. Without money to pay attorneys to appeal the verdict and without knowledge that about destroying statements taken from the defendants; and, evidence had been deliberately destroyed, the men did not to get the death penalty for the men, the attorney general and appeal the verdict. his chief deputy coached the alleged rape victim on how to The three men would have died in prison, but for the efforts distort her testimony during the trial. of their family members to find legal help. A Philadelphia Needing a good book to review, I perked up when Mr. lawyer, Herbert Maris, had left the practice of corporate law Morris said he had published a book on the case and it had to help those already convicted of a crime. After reading been reviewed favorably by former Supreme Court Justice the hearing transcript of the rape trial, Maris thought the John Paul Stevens in the April 5, 2012 The New York Review men had not had a fair trial and decided to take the case and of Books. I asked him if he knew where I could get a book, needed to find a Delaware licensed attorney who could file and he invited me to meet his daughter and son-in-law in his pleadings in the Delaware court system. condo and to take a copy of the book. Several years after the verdict, a fluke, a stroke of luck In Mr. Morris’s art-filled condo overlooking the ocean, led the three men to Irving Morris, then the law clerk for the I sipped another cup of coffee, watching the ocean out of chief judge of the United States District Court in Delaware. In the corner of my eye, and listened to a little of the history 1952, the judge was a patient in a hospital where two sisters of this remarkably modest gentleman. Quietly, without of one of the convicted men worked. Mr. Morris was aggrandizing himself, he and his daughter described his life. first appointed as a local counsel and then became He had attended Yale Law School at a time when a quota the attorney fighting to get the men a new trial. against admissions limited the number of Jews accepted The Rape Case details Morris’s legal battles into Ivy League schools to the superior students. A founder and the obstacles he overcame to win the of a Wilmington-Delaware-based law firm, Morris and men’s right for another trial, one in Morris, with a national law practice representing plaintiffs which all evidence would be presented in corporate litigation, he also had litigated many civil rights truthfully. But, the prosecution cases, expecting to improve society, but not making money decided it did not want another in his efforts. He had been president of the Delaware State trial. As a result, the men were Bar Association and had held other state-wide offices in the freed from jail, but never cleared association. He handed me a copy of his book, dedicated to their names or reputations. The his late wife. I took it home. detailed descriptions of the steps The well-written book first lays out the story of a trial that taken to achieve victory makes ruined the lives of three men by failing to provide them with the book a useful learning tool the legal protections, due process and honesty, that should for both the law student and the be the foundation of our justice system. Mr. Morris does seasoned attorney.

24 Winter 2015 Columbus Bar Lawyers Quarterly Interesting to me was Mr. Morris’s ability to gain and to retain control of the case for seven years. When he started Not verifying information is like out, it was a time during which a young, extremely bright but unseasoned attorney could take a case, eventually becoming walking a tightrope without a safety net. the main attorney, even though he suffered some defeats and admitted making mistakes a more experienced attorney might not have made. Eventually, Morris found evidence that the police had lied and had known about the lie and cover- up. He persisted in the face of huge road blocks and clients Each day, The Daily Reporter with little to no money. Finally, he was able to persuade offers staff-written local a very reluctant legal system that it needed to provide the business and legal articles, three men an opportunity for a new trial. How many legal as well as national articles environments today give a new attorney the opportunity from various news service. to grow professionally and tolerate losses similar to those We also offer legal and public notice fi les that provide a Morris suffered before he fi nally won? wealth of information for We who practice law hope that no one in 2014 practices law business leads and for as did that Delaware attorney general and his chief deputy, protecting your company. whose desire to win the death penalty led them to overlook certain facts and procedural requirements that today’s ethics Don’t miss and criminal procedure laws make mandatory. We hope our another issue. police do not deliberately change witness statements, destroy Subscribe today! evidence, or lie. We hope that judges, when presented with evidence of blatant destruction of evidence, have the courage to overturn decisions. But, unfortunately, the biblical statement “justice, justice, justice shall you pursue” still is not always what occurs. A recent book, Matt Taibbi’s The Divide: American Injustice in the Age of the Wealth Gap (Spiegel & Grau, 2014) depicts some individuals of limited means whose access to justice is basically denied. Tabbi argues that the growing gap between T the manner in which justice is administered to the poor and to 614-228-NEWS (6397) the more powerful and wealthier individuals harms our society thedailyreporteronline.com as well as our legal system. Obtaining effective legal counsel for many individuals in 2014 continues to be expensive and out of reach for many, just as it was for the three men about whom Mr. Morris wrote. But, unfortunately, it seems that some individuals may be given more opportunities to obtain justice than others. So, we still need to work towards the The Columbus Medical legal system we should have, one that offers each individual due process and an equal opportunity Association Foundation for justice. As for me, I look forward to the A unique 501(c)(3) partnership of physicians next synagogue breakfast where I can and the community that can assist your clients share bagels and coffee with a man who dedicated much of his life to in fulfilling their charitable interest in the fi ghting for a just legal system. medical and health and wellness arena.

For more information on the Foundation, it’s charitable options and services, contact

Katz Rape Case review Weldon E. Milbourne Janyce C. Katz [email protected] 1390 Dublin Road, Columbus Ohio 43215 614.240.7420

[email protected] Learn more at www.goodhealthcolumbus.org/cmaf

Winter 2015 Columbus Bar Lawyers Quarterly 25 “Fringe” Benefits By Jameson C. Rehm

Soccer’s now 18-team league. The league is growing by leaps and bounds, I love “fringe” sports. Variety is the spice of and with foreign soccer becoming more prevalent on American television, this is life, or so they say, and with the warm weather your chance to learn about the beautiful game while enjoying cool summer finally upon us, allow me to encourage you to evenings in friendly surroundings. The season runs from March -October, with partake of a few of the “fringe” sports teams Dollar Dog and Beer Nights (again not the animal, and I agree, this joke is Columbus has to offer. now lame), fireworks and, while not mentioned on the schedule, the Irish punk band Flogging Molly has been known to put on a concert after a game. Prices are a bit more expensive, ranging I’ll admit it. I’m that guy who shows gorgeous place to catch a game. The from $29-$35. off his sports knowledge not just by ticket prices are more than fair ($4.75 The final team is the ultimate in naming the Buckeyes starting offensive for lawn seats to $15.50 for lower level “fringe” sports, but is worth a look. line, but by explaining the differences sideline seats), and the level of baseball The Ohio Roller Girls compete in the between Aussie Rules football and is actually pretty good for you snobs Ohio Expo Center’s Lausche Building in rugby at the same time. I love “fringe” out there. If you need a bit more than roller derby, that sport you’ve probably sports. Variety is the spice of life, or so the game to get you in the seats, they heard about, but didn’t know actually they say, and with the warm weather offer multiple Dime-a-Dog nights (the existed. Tickets are only $14, and the behind us, allow me to encourage you food, not the animal), fireworks and season runs from March - August. look forward to warmer days and something only known as the break That’s all I know about roller derby, partake of a few of the “fringe” sports dancing bat boy. I don’t know either. but I’ll see you there. teams Columbus has to offer. The season runs from April - September If you’d rather partake in a fringe The first team to check out is the and is a cheap, great way to get outside sporting event, as opposed to just baseball team, the Columbus Clippers. to enjoy the weather, while enjoying watch, Columbus offers the number Now I understand that baseball isn’t America’s national pastime. one sport of the Winter Olympics, exactly a “fringe” sport. But, minor Before I mention this second team, curling. Think shuffleboard on ice. league baseball is absolutely “fringe.” allow me to be completely forthcoming. Held in the numerous ice rinks around The Clippers are the AAA affiliate I’m a soccer fanatic. I took days off to Columbus, the Columbus Curling for the Cleveland Indians, which watch the World Cup. It’s an illness. Club offers lessons, leagues, and single basically means their team is stocked Therefore, I highly recommend driving event opportunities to become your with guys almost good enough to play to that stadium you pass all the time favorite Olympians and curl with your in the major leagues. The ballpark, on Route 71, with the picture of some friends. You can contact the Columbus Huntington Park, is located right worker guy in yellow, and check out Curling Club through their website behind Nationwide Arena and is a the Columbus Crew. The Crew is one (www.columbuscurling.com) for more of the original teams in Major League information.

Jameson C. Rehm [email protected]

26 Winter 2015 Columbus Bar Lawyers Quarterly Lawyers With Artistic License

By Heather G. Sowald

“Their selections are often sung in other languages, including Latin, German, French, Hebrew, Italian and Russian.”

they have one daughter, Elizabeth – “Liz,” who is an attorney with a local fi rm. Gretchen began practicing law in 1978 at the Ohio Department of Insurance, followed by a stint in a civil litigation law fi rm. She has been a claims attorney, and now is the director of loss prevention for the Ohio Bar Liability Insurance Company. To those who know Gretchen, she Gretchen Koehler Mote, weekly three-hour rehearsals, is a is one of the most organized people on a recent weekend night, was on welcome respite no matter what else around, with a vast knowledge enhanced the Ohio Theater stage, singing with is occurring in her life. She fi nds their by a near-photographic memory and the Columbus Symphony Orchestra stage performances, all the voices a thirst for reading everything and Chorus. She has been a member of this blending together in perfect pitch, to be anything. In addition to choral singing, choir as a mezzo soprano ever since personally uplifting and inspiring. Gretchen’s hobbies include camping her successful audition in 1978, when Gretchen is the daughter of a and hiking, and gardening. She has she was asked to sing scales and music Lutheran minister and a school teacher. dabbled in artistic endeavors at a local patterns, followed by her prepared During her formative years, she lived in mosaic studio, and hopes one day to piece, and then a “sight-singing” piece. Hamler, and later in Anna, Ohio. Both take painting classes. For Gretchen, Gretchen and the other 120 chorus parents sang, and there was always there is still so much more to learn, to members still have to periodically re- music in their household. She recalls enjoy, and to create! audition in order to retain their place her fi rst solo singing performance in in this elite performance group. the fi rst grade Christmas program, The chorus rehearses every Tuesday uncomfortably costumed as Little Bo evening, September through May, and Peep. In high school, she began taking more frequently during performance private lessons for proper singing and weeks. They generally perform four breathing techniques and continued times a year, including the annual studying through college. She was in Holiday Pops event. Their selections are high school and college choral groups, often sung in other languages, including and she played the fl ute and piccolo in Latin, German, French, Hebrew, Italian, concert band. and Russian. The chorus has a diction Gretchen met her husband, Scott, coach and a taped version to assist the who is now the Executive Director of singers with the lyrics. the Ohio Lawyer’s Assistance Program, Heather G. Sowald To Gretchen, concentrating on the while they were both attending Capital Sowald Sowald Anderson & Hawley tones, music, and lyrics during their U. Law School. Married since 1977, Hsowald@ sowaldlaw.com

Winter 2015 Columbus Bar Lawyers Quarterly 27 Civil Jury Trials FRANKLIN COUNTY COMMON PLEAS COURT By Monica L. Waller

Verdict: $549,307.77. Employment Discrimination. found in favor of Mr. Smith on all claims and awarded him Plaintiff Don O. Smith was employed by Defendant Superior $266,900.00 for back pay, $100,000.00 for compensatory Production, LLC from the early 1980’s through 2008 when damages, $41,870.40 for front pay, $0 for emotional he was laid off and not called back. Superior Production distress and $200,000.00 for punitive damages. $49,972.63 is a manufacturing company that produces automotive was subtracted for mitigating wages and $9,490.00 was parts. Mr. Smith worked as a production supervisor. subtracted for unemployment benefits received. Neither side According to Mr. Smith, out of 30 production supervisors called any experts. Last Settlement Demand: $75,000.00. employed by Superior Production, he was one of only two Last Settlement Offer: $10,000.00. Length of Trial: 5 days. African-American supervisors. Mr. Smith claimed that, Counsel for Plaintiff: Greg Mansell, Derek J. Walden and from approximately 1997 through 2008, he endured an Danny Caudill. Counsel for Defendant: Jan E. Hensel and intimidating and racially divided work environment, racial Anjali Chavan. Judge Richard Sheward. Case Caption: Don slurs and disparate treatment. Mr. Smith worked under the O. Smith v. Superior Production, LLC, Case No. 11 CV direct supervision of Duane Holstein, the manufacturing 15815 (2013). Note: Following the verdict, Superior moved manager and part owner. The Holstein family owned for in the alternative for a judgment notwithstanding the Superior Production. Duane Holstein’s father, Roger verdict or a new trial. The trial court granted the motion Holstein is a vice president of the company and his uncle, and Plaintiff appealed. The Tenth District Court of Appeals Richard Holstein was the company president. According to reversed the trial court’s decision in part and remanded the Mr. Smith, Duane Holstein made racial slurs directed at Mr. case for reinstatement of the jury verdict on liability and Smith, intimidated him by cocking a gun and laying it on his a new trial on damages. The parties settled the case upon desk when Mr. Smith was called in to Mr. Holstein’s office remand. See, Smith v. Superior, 10th Dist. Franklin No. and singled him and other African-American employees out 13AP-690, 2014-Ohio-1961. for discipline. Mr. Smith reported the discrimination to the plant manager and stated that he could no longer work with Verdict: $198,105.60. ($48,105.60 for Economic Duane Holstein. In response, Superior transferred Mr. Smith, Damages; $150,000.00 for Non-Economic Damages; $0 for demoted him to assistant production supervisor and cut his Loss of Consortium) Medical Malpractice. On April 6, 2009, pay. Mr. Smith was laid off a month later. Superior laid off Defendant William P. Gianakopolous, M.D. performed a employees in phases and tried to retain employees who could lithotripsy procedure on Plaintiff Richard Hunter (57-years- perform multiple jobs. During his long tenure at Superior, old) to remove kidney stones. Mr. Hunter returned to the Mr. Smith had performed every job in the facility. However, emergency room the following day with severe abdominal Mr. Smith was the eighth employee laid off overall. None pain. He was diagnosed with a ruptured spleen which of the production supervisors were laid off. Mr. Smith was required an emergency splenectomy. Mr. Hunter asserted that the only assistant production supervisor laid off. Mr. Smith the damage to his spleen was caused by Dr. Gianakopolous’s believed that he was laid off before Caucasian employees negligent performance of the lithotripsy procedure. Dr. with less seniority and lesser skill sets. Mr. Smith signed a Gianakopolous denied negligence and argued that spleen statement indicating that he would be willing to accept any injury is a known risk of lithotripsy that can occur despite other position in the company to avoid the lay off. Superior proper performance of the procedure and that the risk was later called back many of its laid off employees, but not Mr. disclosed to Mr. Hunter. Medical Specials: $48,105.60 Smith. Superior also re-hired some employees terminated reduced to $14,415.19 after write-offs. Lost Wages: None. for cause. Superior later hired from outside the company to Plaintiff’s Expert: Louis Liou, M.D. (urology). Defendant’s fill Mr. Smith’s former production supervisor position. Mr. Experts: David Neal, M.D. (radiology); Joseph Dankoff, Smith sued Superior alleging that he was subjected to a hostile M.D. (urology). Last Settlement Demand: $150,000.00. Last work environment, terminated based on race and retaliated Settlement Offer: None. Length of Trial: 4 days. Counsel for against for reporting the hostile work environment. Superior Plaintiffs: Curtis M. Fifner. Counsel for Defendant: Thomas argued that Mr. Smith’s termination was not motivated by Dillon. Magistrate Ed Skeens. Case Caption: Richard race, but rather part of a downsizing that resulted from the Hunter, et al. v. William Gianakopolous, et al. Case No. 10 poor economy. Superior explained that Mr. Smith was not CV 14046 (2013). rehired because rehiring decisions were dictated by the need for laborers with a certain skill set. Mr. Smith’s skill set was Verdict: $80,000.00. (Breach of Contract) On January most in line with the press bay area which was under the 22, 2011, Plaintiff Hassan Nour entered into a sublease supervision of Duane Holstein. Since Mr. Smith did not want agreement with Defendant Jamal Shiwar for a property to work for Duane Holstein, he was not rehired. The jury located on Morse Road. The property was to be used as a

28 Winter 2015 Columbus Bar Lawyers Quarterly daycare facility by Kids Zone Day Care, Inc. Pursuant to the Messenger. Counsel for Defendant: Kevin Foley. Judge agreement, Mr. Shiwar was to make certain improvements to Patrick Sheeran. Case Caption: Ashley Adams v. HD Supply the property by May of 2011. The improvements included Management, Inc., et al. Case No. 12CV-10255 (2013). new parking spaces, a grass playground area, a fi re wall and an HVAC system. According to Mr. Nour, Mr. Shiwar Verdict: $4,570.53. Automobile Accident. On February did not complete the improvements and, despite repeated 14, 2012 Plaintiff Stacey Carr was headed eastbound on requests, the improvements remained incomplete as of Schrock Road approaching Cleveland Avenue when her October of 2011. Mr. Nour discontinued rent payments vehicle was rearended by a vehicle driven by Joyce Jester. after November 2011. He alleged that he spent in excess of Ms. Jester’s vehicle had been rearended by Defendant Kim $30,000 in construction costs and hired a daycare consultant Glaser and pushed into Ms. Carr. Ms. Carr claimed severe to get the daycare facility up to code. Mr. Shiwar asserted that and debilitating injuries to her neck and back. She went to the improvements were made with the exception of the fi re the emergency room on the day of the accident and began wall. The fi re wall was not constructed because the parties physical therapy the following week. After approximately 6 discovered after the agreement was signed that a fi rewall weeks of physical therapy, she began chiropractic therapy was not necessary. Mr. Shiwar fi led a counterclaim against which continued for another 3 months. Ms. Glaser stipulated Mr. Nour for unpaid rent. The jury found in favor of Mr. liability and the case proceeded to trial on damages only. Nour on both his claim and the counterclaim. Neither side Ms. Glaser argued that Ms. Carr was not injured in the called any experts. No settlement negotiation information accident. She pointed out that the collision was low impact was provided. Length of Trial: 4 days. Counsel for Plaintiff: with minimal property damage and that Ms. Carr did not Troy J. Doucet. Counsel for Defendant: Joseph C. Lucas. strike the interior of the vehicle and was not transported by Magistrate Pamela Browning. Case Caption: Hassan Nour v. ambulance from the scene. She also argued that Ms. Carr Jamal Shiwar Case No. 12 CV 26 (2013). Note: Following had a pre-existing permanent back injury. Medical Specials: the judgment, Plaintiff moved for an award of attorneys fees $6,830.00 (reduced to $4,103.89). Lost Wages: None. pursuant to an indemnity provision in the sublease agreement. Plaintiff’s Expert: Jill Gardner, DC. Defendant’s Expert: The Court denied the motion and Plaintiff appealed. The None. Last Settlement Demand: $8,000.00. Last Settlement Tenth District affi rmed the decision in Nour v. Shawar, 10th Offer: $1,498.00. Length of Trial: 2 days. Counsel for Dist. Franklin No. 13AP-1090, 2014-Ohio-3016. Plaintiff: Jay Hurlbert. Counsel for Defendant: Jonathan Preston. Magistrate Ed Skeens. Case Caption: Stacey Carr v. Verdict: $5,670.53 ($3,970.53 for Economic Damages; Kimberly Glaser, Case No. 12CV-011883 (2013). $1,700.00 for Non-Economic Damages). Automobile Accident. On September 9, 2010, Plaintiff Ashley Adams Defense Verdict. Breach of Contract. In 2008, Defendant was traveling eastbound on I-270 when her vehicle was rear- Plaza Properties, Inc. announced plans for the development ended by a vehicle driven by Defendant Lowell Jolley. At the of real estate located in the Arena District in Columbus. At time of the collision, Mr. Jolley was in the course and scope the time, Plaza Properties served as the asset manager for of his employment for Defendant HD Supply Waterworks, the real estate to be developed. From 2004 through 2008, Ltd and driving a vehicle owned by Defendant Penske Truck Milligan Communications, lead by Ruth Milligan, worked Leasing. Ms. Adams sued Mr. Jolley for negligence and as an independent consultant for Plaza Properties providing asserted a claim against Penske for negligent entrustment public relations, marketing and some “corporate match- and against HD Supply based on respondeat superior. Ms. making” services. In late 2008, Milligan Communications Adams claimed that she injured her neck in the accident was approached by political consultants driving the ballot and developed bursitis in her shoulder. Mr. Jolley disputed initiative for the development of a casino in Columbus. the extent of the injury. Medical Specials: $3,970.53. Lost The consultants inquired about Milligan’s contacts with Wages: None. Plaintiff’s Expert: Gayan Poovendran, M.D. management companies, developers or property owners (family practice). Defendant’s Expert: None. Last Settlement who would be interested in the development of a casino. Demand: $20,000.00. Last Settlement Offer: $5,000.00. On November 28, 2008, Ruth Milligan met with the Length of Trial: 2 days. Counsel for Plaintiff: Walter chief development offi cer for Plaza and disclosed that she

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Winter 2015 Columbus Bar Lawyers Quarterly 29 had contacts interested in casino Communications did not receive a Caption: Milligan Communications, development. Plaza expressed an interest fi nder’s fee. Milligan Communications LLC v. Plaza Properties, Inc., et al. Case and, on December 9, 2008, entered sued Plaza for breach of contract and No. 10 CV 1471 (2013). YOU WORK FIVE DAYS A WEEK into a “Finder’s Fee Agreement” with unjust enrichment. It also sued Laurence Milligan Communications. According Ruben for tortious interference and Defense Verdict. Premises Liability. to the terms of the agreement, Plaza unjust enrichment and Ruben’s realty Plaintiff Victoria Sue Meadows (53- authorized Milligan to introduce Plaza company, LGR Realty, Inc., for civil years-old) sublet an apartment at 417 to potential investors and/or developers theft. The Court granted summary E. 15th Avenue owned by Defendant for the Arena District property and, judgment in favor of defendants on T&E Rentals I, LLC. The apartment if an investor and/or developer that Milligan’s unjust enrichment claims and had a front porch with poured concrete Milligan introduced Plaza to made converted the civil theft claim into a steps and a wrought iron handrail. an investment in that site or any claim for conversion, but the remaining On March 10, 2009, Ms. Meadows related projects, Milligan was entitled claims survived summary judgment. left her apartment and placed her to a fi nder’s fee. The same day that According to the jury interrogatories, right hand on the handrail to steady the agreement was signed, Milligan the jury found that Plaza did not herself as she descended the steps. The arranged a meeting between the breach its agreement with Milligan handrail collapsed and Ms. Meadows political consultants and various Plaza and that the information Milligan fell, landing on top of the handrail on executives. The political consultants provided to Plaza was not confi dential the ground. She sustained fractures of thereafter put the Plaza executives in information for which Milligan held an her right pinky fi nger, vascular damage contact with Penn National Gaming, ownership or property interest. Plaintiff to her right tibia from a contusion, a Inc. Milligan Communications was claimed $274,700.00 in damages. broken upper denture and multiple not involved in Plaza’s negotiations No information regarding experts or other contusions and abrasions. Ms. with Penn National. The negotiations settlement negotiations was provided. Meadows sued T&E claiming that the were handled by the president of Length of Trial: 7 days. Counsel for wrought iron handrail was corroded, Plaza Properties, Laurence Ruben, Plaintiff: Shawn J. Organ and Douglas unstable, in disrepair and dangerous who was also a real estate broker. In R. Cole. Counsel for Defendants Plaza and that T&E failed to inspect and 2009, Plaza and Penn National entered Properties, Inc. and Laurence Ruben: maintain the property. T&E argued into a Purchase Agreement for the James C. Frooman and Katherine M. that it had no notice that the handrail Arena District property. The Purchase Klingelhafer. Counsel for Defendant had deteriorated. Ms. Meadows was Agreement included a 4% commission LGR Realty, Inc.: Michael Carpenter, not working at the time of the accident, to Plaza President, Laurence Ruben, Katheryn M. Lloyd and Jeffrey R. having been disabled by pre-existing as the seller’s agent. Milligan Corcoran. Judge Kim Brown. Case unrelated conditions. She had some deformity in her little fi nger from the fracture that was permanent and interfered with her ability to play guitar, which she had previously enjoyed as a hobby. She also had skin discoloration and vascular complications from the tibia contusion that were still present at the time of trial. The parties stipulated on the medical bills and proceeded to trial on liability and non-economic damages. Plaintiff’s Expert: James Rutherford, M.D. Defendant’s Expert: None. Last Settlement Demand: $25,000.00. Last Settlement Offer: $20,000.00. Length of Trial: 2 days. Counsel for Plaintiff: Ronald Plymale. Counsel for Defendant: Benjamin Ritterspach. Magistrate Mark Petrucci. Case Caption: Victoria Sue Meadows v. T&E Rentals Case No. 12 CV 9136 (2013).

Monica L. Waller, Lane Alton & Horst [email protected] T

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