F ALL 2008

On Insults To Sausage Makers By David W. Hardymon ...... 6

A Federal “Drug Court” That Works – And How It Works By The Honorable Terence P. Kemp ...... 12

Mediation – A New Kind Of Federal Offense By Robert S. Kaiser ...... 13

When Johnny Or Joanie Comes Marching Home By Duncan O. Aukland ...... 14

Win A Bet? When Is It Legal To Give An Underage Person A Drink? By Timothy J. Bechtold ...... 16

Better Lawyer ...... 21

Elevator And Escalator Injury Claims By Glen R. Pritchard ...... 33

Women’s Journey Through Addiction By Candace Hartzler ...... 37

E-Discovery – Small Steps Can Yield Great Savings By Christopher F. Shiflet ...... 40

Ten Years After: The Columbus Blue Jackets, The NHL And Free Tickets By Greg Kirstein...... 45

A Baltic Blast By The Honorable David E. Cain ...... 47

*A SUPPLEMENT TO THE DAILY REPORTER* *CONTENT PROVIDED BY THE COLUMBUS BAR ASSOCIATION* Better Lawyer Interiors I Am A Lawyer, Now What? Understanding Addiction – Part II COLUMBUS BAR ASSOCIATION By Matthew D. Austin ...... Page 21 By Brad Lander ...... Page 36 OFFICERS President: Kathleen M. Trafford Practicing Law In An Electronic World Women’s Journey Through Addiction President-Elect: Elizabeth J. Watters By Lisa Kathumbi ...... Page 22 By Candace Hartzler ...... Page 37 Secretary/Treasurer: Hon. Stephen L. McIntosh F ALL 2008 Immediate Past President: Nelson E Genshaft The Truth About What Clients Really Want Hepatitis C – A Silent Epidemic By Mark Kafantaris ...... Page 23 By Rosemary Eustace and Nikki Rogers . . . . .Page 38 BOARD OF GOVERNORS President’s Page Always Consider Jury Instructions Technolawgy David S. Bloomfield, Jr. By Nicole VanderDoes ...... Page 24 Kenneth R. Cookson From The President E-Discovery – Small Steps Can Yield Great Savings Dawn Rae Grauel By Kathleen M. Trafford ...... Page 4 Legal Writing Tip By Christopher F. Shiflet ...... Page 40 Marie-Joëlle C. Khouzam By Jameel S. Turner ...... Page 25 David T. Patterson Elections Employment Law Mark C. Petrucci How Do Young Lawyers Rate Communication? James E. Phillips On Insults To Sausage Makers By Janica Pierce ...... Page 26 Wage Payment – What Could Be Simpler? Rosemary Ebner Pomeroy By David W. Hardymon ...... Page 6 By Felix C. Wade ...... Page 41 Anthony M. Sharett In Court Draw The Line On Casual Dress Keith W. Schneider By Bree Brown ...... Page 27 Disclosures Bradley B. Wrightsel

Civil Jury Trials Thoughts On Lawyer Retirement Book Review OSBA District Representative: David C. Patterson Franklin County Common Pleas Court By Bert Kram ...... Page 43 By Belinda S. Barnes and Monica L. Waller . . . .Page 8 By J. H. Huebert ...... Page 28 ABA Delegate: Sally W. Bloomfield Executive Director: Alexander Lagusch News From Nameless The Lighter Side Of Law Communications Director: Jill Snitcher McQuain Collaborative Divorce – An Oxymoron? By Lloyd E. Fisher Jr...... Page 44 By Robert H. Snedaker III ...... Page 10 By Mark Kafantaris ...... Page 29 Editor: David W. Hardymon Sports and Entertainment Managing Editor: Esther Kash Federal Court It's As Easy As Riding A Bike Production: The Daily Reporter By Paul G. Rozelle ...... Page 30 Ten Years After: The Columbus Blue Jackets, Making A Federal Case With More And Less The NHL And Free Tickets Columbus Bar Lawyers Quarterly is published by The Holiday Party Navigation By The Honorable Mark R. Abel ...... Page 11 By Greg Kirstein...... Page 45 Daily Reporter for the Columbus Bar Association, 175 By Michael E. Heintz ...... Page 31 South Third Street, Columbus, Ohio 43215, A Federal “Drug Court” That Works – And How It Works Travel 614/221.4112, four times a year — Winter, Spring, By The Honorable Terence P. Kemp ...... Page 12 Introduction To Downtown Living Summer and Fall. Statements or opinions expressed By Jameel S. Turner ...... Page 32 A Baltic Blast herein are those of the authors and do not necessarily Mediation – A New Kind Of Federal Offense By The Honorable David E. Cain ...... Page 47 reflect those of the Columbus Bar Association, its By Robert S. Kaiser ...... Page 13 Written Rules officers, board, or staff. —— Elevator And Escalator Injury Claims Written Rules NOTICE Up And Down Traffic Liabilities Any statements pertaining to the law contained in this By Glen R. Pritchard ...... Page 33 When Johnny Or Joanie Comes Marching Home magazine are intended solely to provide broad, general Demobilization Legal Issues For Citizen-Soldiers information, not legal advice. Readers should seek By Duncan O. Aukland ...... Page 14 Ethics advice from a licensed attorney with regard to any specific legal issues. Professionalism In Public Sector Lawyering Win A Bet? When Is It Legal To Give An Underage By Christopher B. McNeil ...... Page 34 Person A Drink? By Timothy J. Bechtold ...... Page 16 What A Lawyer Should Do If The Client Complains To The Bar The Construction Contract Contains A Mediation Provision By Alvin E. Mathews Jr...... Page 35 — What Now? By Donald W. Gregory ...... Page 17

Anti-Counterfeiting Strategies For Brand Owners By Jay A. Yurkiw ...... Page 19

2 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 3 President’s Page President’s Page

children still living in Africa who also were eligible to come to the United States but she could not find a way through the complicated immigration process on her own. It took us the better part of a year to work through the process, making calls or timely, accurate legal news and writing letters on her behalf. After the F every business day... From The children finally arrived here, our client brought them to our office to thank us for our efforts on their behalf. The language barrier prevented any verbal communication, but we saw the “thank Subscribe today at 614-228-NEWS (6397). you” in their smiles. I don’t tell this story President to boast; I know others have taken on By Kathleen M. Trafford many more or more difficult cases than I. I tell this little story because it showed me how “doing the right thing even when no attended the annual meeting of the resources available to meet those needs issued its “Statement Regarding the one is looking” can be reward enough. We American Bar Association in New continues to grow. Part of the reason is Provision of Pro Bono Legal Services by don’t really need a carrot nor should we Westlaw Practitioner: York in August to participate in the that while there are many national Ohio Lawyers.”1 Some lawyers passionate wait for a stick. gateway to research sessions offered by the National advocacy groups devoted, and more about pro bono service frankly were The Pro Bono Committee is launching I important well-funded, to pursue and disappointed because the Court stopped its own “Just Take One” challenge to all Association of Bar Executives/Presidents. tools for your specialty, Prominently displayed throughout the defend specific liberty interests – the short of requiring Ohio lawyers to provide Columbus Bar members. The challenge is meeting rooms and on the materials was American Civil Liberties Union, the a set number of hours of pro bono service simple. Each lawyer agrees to take just one your jurisdiction. the ABA’s tagline “Defending Liberty . . . National Rifle Association, Alliance each year and/or to report their hours of pro bono case a year. You pick the type of Pursuing Justice.” The line, of course, Defense Fund, Lambda Legal – there is not pro bono service. There are, however, good case that falls within your practice area or references the crescendo of our national equivalent private institutional advocacy reasons why a mandatory approach may comfort zone and pick your client. Let the pledge of allegiance “with liberty and for the pursuit of civil justice for the poor not be the best approach, not the least of committee know when you take on the justice for all.” Its prevalence at the and working poor. Mustering resources to which is that a reluctant advocate is not engagement and report back the hours you meeting caused me to ponder just how provide basic legal services for those who always an effective advocate. The Court’s contributed when the matter is complete. If successful are we in meeting our national cannot afford to secure those services on pro bono statement is aspirational only. It you do not want to go it alone or need help 3 pledge of liberty and justice for all. their own still tends to be viewed as a encourages all Ohio lawyers to seek to getting started, the Columbus Bar website We seem to be fairly strong on the public sector responsibility and public engage in new or additional pro bono has a special section on pro bono liberty promise. The freedom of religion dollars spent on the pursuit of justice have opportunities. Reporting pro bono hours opportunities that you can use to find ways flourishes. Our communities are sprinkled not grown proportionately to the need. or contributions is not mandatory, but to fulfill your personal pro bono goals. with diverse churches and evangelical That means private resources (read private starting in January 2009, Ohio attorneys Don’t be afraid to get in the water; some of centers. We openly display religiously attorneys) must step in to fill the gap. By will be able to voluntarily and these programs come with life jackets for symbols through the jewelry we wear, on virtue of our training, skill and license, we anonymously report their pro bono hours the inexperienced pro bono lawyer. If you the cars we drive, and even in tattoos. are the ones who must step up and deliver and financial support for legal aid are too afraid to jump in, please consider a Freedom of speech also flourishes. I on the national pledge of justice for all. programs through an external website, financial contribution to the Denis Murphy witnessed a boisterous parade by There is no question that a significant “Justice in Action,” supported by the Ohio Fund at the Columbus Bar Foundation. Dominican Republic Nationals that number of Columbus Bar members are Legal Assistance Foundation.2 What does Your contribution will help support the brought commerce on New York’s Sixth already doing their part to provide pro this mean? Some will say this means there continuing efforts of the many fine lawyers Avenue to a standstill for several hours. bono representation and augment the is no stick, not even a carrot, to entice new in Columbus who have dedicated their careers to providing legal services to the One-screen access! Columbus’s Do-Dah and Gay Pride services offered by public or quasi-public and additional pro bono service in Ohio. I Now a single screen brings you access to a wide variety parades also are exuberant celebrations of legal services organizations. Over the years say it means that the Court is challenging poor and working poor. Whether your contribution is time or money, it will help of practice tools – all thoughtfully selected to meet your the freedom of speech. Constitutional members have generously supported the us all “to do the right thing, even though ® make the pledge “justice for all” specialized information needs. Westlaw Practitioner is a protection for some personal freedoms – efforts of Lawyers for Justice, the Interfaith no one is looking,” which is the definition meaningful. tightlytightly focused, workflow-based practice aid designed to privacy, the right to bear arms, and Legal Services Clinic, the Low Income of character and integrity, or in this case, deliver everyday resources to the busy lawyer. reproductive choice – is now established, Taxpayer Clinic and the Homeless Project, the definition of professionalism. Choose your Practitioner from twelve topical areas. All will save you time and money, although one or more of these freedoms among others. An inspiring number of I hope all Columbus Bar members will 1. www.sconet.state.oh.us/publications/ with unlimited access to included materials at a fixed monthly rate. still may be at risk. Constitutional local attorneys responded to the call this step up to the challenge. The opportunities proIdeals.pdf Westlaw Practitioner is currently available for these practice areas: protection for other personal freedoms – year to participate in the Legal Assistance for pro bono service are many. The 2. www.olaf.org/probonoresources/ most notably the freedom of same sex Initiative of Save the Dream and provide rewards are great. I know one of the justiceinaction.shtml •• BankruptcyBankruptcy • Estate Planning • Municipal Law couples to have their partnerships assistance to homeowners facing proudest days of my career was the result 3. www.cbalaw.org/probono/programs/ •• BusinessBusiness Law • Family Law • Patent Law recognized – has not been clearly foreclosure. The probate lawyers also are of taking advantage of one such •• BusinessBusiness Transactions • Immigration Law • Real Property established but is on the docket in some to be commended for their participation in opportunity. I accepted a case through the •• EmploymentEmployment • Insurance Defense • Securities courts. Overall our efforts to secure the the Wills for Heroes program. But much Interfaith Clinic and immediately sought Call 1-800-762-5272 toto scheduleschedule a consultation in your office, at your convenience. promise of liberty get high, although not more still needs to be done. Even with all and graciously received the assistance of [email protected] perfect, marks. the volunteers presently engaged, only my partner Rob Cohen because it dealt Sadly, however, we lag behind, and may about one in five of the low income with immigration, something I knew little InIn stepstep withwith youryour practice.practice. be falling further behind, in achieving the individuals in need of legal advocacy finds about. Rob and I represented a young promise of justice for all. The gap between an advocate. Columbus woman in this country on a Kathleen M. Trafford, the legal needs of the poor and the A year ago the Ohio Supreme Court grant of political asylum. She had four Porter Wright Morris & Arthur ©© 2006 2006 West,West, aa ThomsonThomson business L-324331/8-06 Visit west.thomson.com

4 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 5 Elections Elections

Supreme Court and the commission felt Tennessee’s judges will take office by Standing Committee on Federal it would be unconstitutional to allow a way of a general election. For some, the Judicial Improvements, Report to the candidate’s race to factor into the demise of the plan “means less influence House of Delegates, August 2008. On Insults To 6 3. Law.com supra: selection process. The sub-text was that from the coterie of lawyers’ groups that 4. The Wall Street Journal, Review & the commission was so incensed over the had controlled the Judicial Selection Outlook, August 14, 2008. governor’s rejection of one of the trial Commission” and manipulated the 5. AOL news.com, Reduce partisan fight bar’s favorite lawyers that it was appointment of appeals court judges in over judges, lawyers urge, August 10, Sausage Makers 8 2008. determined to give him a slate he did not Tennessee. want.7 Ultimately the last Supreme Court Whether or not one agrees with that 6. Viewpoint, The Memphis Commercial Appeal, July 1, 2007. vacancy was filled from the commission’s assessment, Tennessee’s experience with that are being poured into state court President is likely to be confirmed by the 7. Id. By David W. Hardymon recommended slate, but the spectacle of the kind of judicial selection commission judicial elections by interest groups who Senate if he or she is not the product of 8. The Wall Street Journal, Review & the ugly fight between the governor and proposed by the ABA cannot be ignored. are then perceived as having some the Senate’s “merit selection” process. In Outlook, May 27, 2008. the commission, and the perception of The fact is that “merit” selection of uring its annual meeting in influence over the winner.3 The ABA’s this regard, the ABA’s plan arguably closed door maneuvering by lawyers and judges by blue-ribbon commissions is as August, the American Bar proposal is being warmly received by would result in a transfer of power from politicians to fill Supreme Court prone to partisan politics as general Association House of Delegates proponents of merit selection and the Executive to the Legislative branch of vacancies, hardly inspired public elections or presidential appointments. In adopted recommendations to various lawyer groups, but not everyone government, giving the Senate far more D confidence. The Governor vowed to the public’s eye, judicial selection [email protected] Congress and the states for revising the is enamored of merit selection in general authority than is contemplated by its make reform an issue when the merit commissions have the additional faults or the ABA’s proposal in particular. Constitutional mandate to provide manner in which candidates for judicial selection plan came up for renewal by of being secretive and populated by In an opinion page headline reading “advice and consent” on Presidential office are chosen. Incoming ABA the legislature in 2008, starting with lawyers, who simply are not as trusted as appointments. president H. Thomas Wells Jr. declared “The ABA Plots a Judicial Coup,” the bringing transparency to the they once were. Whatever the merits of Mr. Wells advocates the ABA proposal that comparing the present methods of Wall Street Journal characterized the commission’s deliberations. merit selection, I suspect we’re going to by saying that states now using selecting judges to making sausage would ABA proposal as a “lawyer-led attempt Opposition to the plan within the be making sausage for some time to 1 nominating commissions as a component be “an insult to sausage makers.” to strip judicial selection from future legislature grew to the point that despite come. In place of the presidential presidents.”4 Noting the ABA judicial of a merit selection system “almost never extensive lobbying by the Tennessee Bar appointment of federal judges and the review panel’s arguably partisan have bitter confirmation fights.”5 Association and others, Tennessee direct election of state court judges, the positions on some past Supreme Court Perhaps, but when such fights occur they allowed its version of the Missouri Plan 1. Law.com: New ABA President Speaks David W. Hardymon, ABA proposes a form of merit selection, nominees, the Journal makes the point are noteworthy and instructive. to expire this year. After a one year Out on Judiciary, August 11, 2008. Vorys Sater Seymour whereby judicial candidates would be that the use of blue-ribbon commissions Tennessee is one of approximately 30 winding-up period under the plan, all of 2. Report to House of Delegates ABA and Pease nominated in the first instance by non- to recommend judicial candidates doesn’t states that has adopted some form of partisan commissions. On the federal necessarily result in the selection of the merit selection to eliminate politics from level, those commissions would be best candidate. On the contrary, one or the process of choosing judges. Like the composed of “lawyers and other leaders” the other of two things is likely to occur: ABA proposal, Tennessee’s plan featured impaneled by each state’s senators to The commissions become dominated by a judicial selection commission charged recommend nominees for judicial office.2 special interests who nominate with the responsibility of identifying a Mr. Wells also promises to convene a candidates who will serve a particular slate of nominees from which the summit in May 2009 to examine the agenda, or the commissions produce governor filled appellate court positions, challenge of preserving the impartiality compromise candidates whose only merit including those on the Supreme Court. of state courts. is that they are not particularly offensive Tennessee’s 17-member commission was The point of all this, according to Mr. to the majority of the commission selected by legislative leaders from the Wells, is to end the delay and bitter members. Either way, the Journal opines membership of various lawyer- partisan debate surrounding the the public’s interest is not served. More dominated groups, such as the Tennessee appointment of federal judges and to important, no candidate for federal Bar Association, the Tennessee Trial reduce the “obscene” amounts of money judicial office nominated by the Lawyers Association and the Tennessee Defense Lawyers Association, although a law degree was not a prerequisite to A Community For Life service and three of the commission members were not lawyers. After Wesley Glen and Wesley Ridge appointment by the Governor, appeals Retirement Communities offer the court judges ran in thumbs-up or thumbs-down retention elections. location, lifestyle, convenience and In 2006, Governor Phil Bredesen peace of mind you have been looking balked at the choices being offered by for. Stop by for a tour and see for the commission to fill vacancies created yourself . . . you have found by the retirement of two Supreme Court a community for life. Justices. One candidate in particular appeared repeatedly on the commission’s three candidate slate, despite his having Wesley Glen Wesley Ridge been rejected twice by Governor 5155 North High Street, Columbus 2225 State Route 256, Reynoldsburg Bredesen. According to press reports, the (614) 888-7492 www.methodisteldercare.com (614) 759-0023 Governor wanted to appoint an African- American to fill the last spot on the

6 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 7

Columbus Bar Lawyers Quarterly

Summer 2008 In Court In Court

Center. Medical bills: approximately $40,000. Plaintiff’s expert: Center as the site of her previously scheduled outpatient surgery CIVIL JURY TRIALS Gorang Patel, R.Ph., BCPS, Rush University Medical Center, and the decedent had notice and knowledge that Defendant Chicago. Defendants’ expert: Carl Gainor, R.Ph., J.D. No CRNA was an independent contractor working at the Surgery settlement demand. No settlement offer. Four day trial. Plaintiff’s Center. Loss of future earnings: $449,736. Replacement cost of Franklin County Common Pleas Court attorneys: Daniel Volkema and Jeff Maloon. Defendants’ attorney: services: $267,604. Plaintiff’s experts: Jeffrey Breall, M.D., Ph.D. Mary Barley-McBride (Kroger Pharmacy). Judge: Sheeran. Kristi and Martin Dauber, M.D. Defense experts: Martin Tobin, M.D., Tyson, et al. v. The Kroger Company, et al., Case No. 05CVC-09- Roger S. Meca, M.D., Thomas Renter, CRNA, George J. Taylor, 9864 (2007). IV, M.D. and David Rothenberg, M.D. Settlement demand: $1.5 By Belinda S. Barnes and Monica L. Waller Inc. v. Ohio Public Employees Retirement System Case No. 04 million. Settlement offer: $800,000. Nine day trial. Plaintiff’s CVH10-11144 (2007). (Both parties appealed. The Court of Verdict: Defense Verdict. Medical Malpractice. Liability Only. attorneys: William S. Jacobson and Amy Sue Taylor. Defendant’s Appeals affirmed the judgment on April 8, 2008 in Cleveland Plaintiff George E. Zola, Administrator of the Estate of Jodi A. attorneys: Mark L. Schumacher and Sandra McIntosh (Brothag Construction, Inc. v. Ohio Public Employees Retirement System, erdict: $640,298. Construction Breach of Contract. Slutsky, alleged that Defendant Cynthia S. Curl, D.O. breached and Doctors Anesthesia Services of Columbus); Warren M. Enders 2008 Ohio 1630.) Cleveland Construction was a prime contractor hired by the standard of care in treating Ms. Slutsky for abdominal and and Paul N. Garinger (Columbus Surgical Center). Judge: Visiting OPERS to work on building renovation and expansion intestinal distention resulting in Ms. Slutsky’s death. The parties Judge Nodine Miller. Stephanie Swogger, Admin. E/O Roberta at 277 East Town Street. OPERS hired Gilbane Building Verdict $15,206.07. Subrogation. Plaintiff Joseph Cunningham, Jr. stipulated economic damages of $1,182,703 and proceeded to Swogger v. Columbus Surgical Center, LLC, et al., Case No. V and Grange, his insurer, sued Kenneth Harrison and Nathaniel 05CVA-10-12047 (2008). Company to act as the construction manager. Cleveland trial on liability only. The jury concluded that Dr. Curl’s care did Construction claimed that, pursuant to its contract with OPERS, Watson based on an auto accident that occurred on March 24, not fall below the standard of care. Plaintiff’s experts: Dean the construction manager had a duty to coordinate the work of 2003. The parties stipulated that Grange paid $13,608.97 to or on Dobkin, M.D., Michael Drew, M.D. and Marc Cooperman, M.D. Verdict: Defense Verdict. Contract. Defendant, Peter Vitt entered the various contractors and keep the project on schedule. behalf of the insured for collision and rental coverage and Defendants’ experts: Ron M. Walls, M.D., Anthony Senagor, into an agreement with Plaintiff Halmaghi to purchase 80% of the Cleveland Construction claimed that Gilbane Building Company $1,097.10 in medical payment to the driver. With the $500 M.D. and Charles L. Emerman, M.D. Settlement demand: $1.8 common stock of The Nicholae Gallery Juice Bar Company. failed to perform these duties resulting in labor inefficiencies for deductible, Plaintiffs’ total damages were $15,206.07. The jury Million. Settlement offer: None. Eight day trial. Plaintiff’s Plaintiff contended that Defendant breached the terms of this Cleveland Construction. OPERS argued that the claim should be found in Plaintiffs’ favor in that amount against Nathaniel Watson attorney: Daniel Abraham and Eleni A. Drakatos. Defendants’ purchase contract. Defendant counterclaimed against Plaintiff, dismissed because, under the terms of the contract, Cleveland but found no liability on behalf of Kenneth Harrison and his attorney: Maryellen C. Spirito. And Peter VanLighten. Judge: contending that Plaintiff had breached the terms of the Purchase Construction waived its right to collect damages. OPERS moved employer USF Holland, Inc. No settlement offer was made before Schneider. George E. Zola, Administrator of the Estate of Jodi A. Contract by failing to pay certain taxes. At trial, Defendant for a directed verdict which the trial court denied. Plaintiff’s trial. Neither party presented an expert. Two day trial. Plaintiffs’ Slutsky v. St. Ann’s Hospital, et al., Case No. 03CVA-10-10993 dismissed his counterclaim. The jury returned a verdict for Expert: Theodore Needham. Defendant’s Experts: Kelly Roeschke Attorney Alessandro Sabatino. Defendants’ Attorneys: Robert J. (2006). Defendant. No plaintiff’s expert. No defense expert. One day trial. and Robert Biehl. Three week trial. Plaintiff’s Attorneys: Daniel Cochran (Kenneth Harrison and USF Holland, Inc.), Jill K. Plaintiff’s attorney: Douglas S. Roberts. Defendant’s attorney: Wireman and James Ludwig. Defendant’s Attorneys: Don Gregory Mercer (Nathaniel Watson). Judge: Tommy Thompson as visiting Verdict: Defense Verdict. Medical Malpractice. Eight weeks after David Orlandini. Judge: Sheward. Nicolae Halmaghi v. Peter Vitt, and Michael Madigan. Judge Schneider. Cleveland Construction, judge for Judge Holbrook. Joseph Cunningham, Jr., et al. v. undergoing a laminectomy of the lumbar spine, Plaintiff presented Case No. 05CV-02-1368 (2006). Kenneth W. Harrison, et al., Case No: 05CVC01-607 (2006) to Defendant Athletic Advantage, Inc. for physical therapy secondary to complaints of weakness in her left leg. During his Verdict: Defense Verdict. Personal Injury. Plaintiff was sitting in Verdict: $12,539.90. Personal Injury/Auto-Pedestrian Accident. initial evaluation, physical therapist Mark Reed isolated Plaintiff’s traffic when Defendant rear-ended his vehicle. Medical bills On April 26, 2004, Plaintiff, a 20-year-old Columbus State hip and turned her in a clockwise position while she was lying on totaled $3,266.52 plus an additional $25,000 for a future surgery. student, was walking to her car in the Columbus State parking her side. There was an immediate and audible pop and Plaintiff Plaintiff claimed to have lost his truck, home and construction garage when she was struck from behind by Defendant. Plaintiff experienced an extreme amount of pain. Images taken at Mount business as a result of the accident. Plaintiff’s expert: Dr. Won alleged that Defendant was negligent in failing to maintain a Carmel East later that day confirmed that Plaintiff had sustained a Song. Defendant expert: Dr. Joseph Schlonsky. Settlement demand proper lookout. Defendant alleged Plaintiff negligently walked in spondylolisthesis. Plaintiff had to undergo spinal fusion of the $100,000. Settlement offer: $15,000. Three day trial. Plaintiff’s the path of an oncoming car. Plaintiff sustained soft tissue injuries lumbar spine as a result of the spondylolisthesis. Plaintiff claimed attorney: Neil Roberts. Defendant’s attorney: Scott Norman. to her back and treated with a chiropractor for four months. that the spondylolisthesis was the result of undue pressure applied Judge Hogan. Larry Scott Knapp v. Steven McMillian, Case No: Medical bills: $5,039.90. No lost wages. Plaintiff’s expert: Roy by the physical therapist and an improper evaluation technique. 04CV04-3844 (2005). Plaintiff’s motion for a new trial was Korth, D.C. No defense expert. Settlement demand: $15,500. Defendant claimed that Plaintiff’s injury was a result of the pre- denied. No appeal was taken. Settlement offer: $8,500. Two day trial. Plaintiff’s attorney: existing and chronic condition caused by horseback riding and Douglas J. Blue. Defendant’s attorney: Jason Founds. Judge: horse training. Plaintiff’s Expert: Derek Snook, M.D. Defendant’s Holbrook; O’Grady (Judge sitting by assignment). Yana Expert: James D. Kang, M.D. Settlement Demand: $1,000,000. Adamenko v. Rudolph Gunad, Case No. 04CVC-09-9138 (2005). Settlement Offer: $20,000. Three day trial. Plaintiff’s Attorney: [email protected] Christopher R. Pettit. Defendant’s Attorney: Mark L. Schumacher [email protected] Verdict: Defense Verdict. Pharmacy Negligence. Plaintiff alleged and Jennifer L. Hill. Judge Pfeiffer; Magistrate Edwin Skeen. that she was given an inappropriate dosage of the drug Cytoxan. Susan Provenzano v. Athletic Advantage, Inc. 05 CV 1440 (2006) Dr. Lee Hebert of OSU Medical Center prescribed the drug for the treatment of Lupus. The prescription was filled by the Kroger Verdict: Defense Verdict. Medical Malpractice/Wrongful Death. Company. The pharmacist claimed that she verified the dosage On February 11, 2005, Plaintiff’s decedent underwent an with Dr. Hebert’s office and Plaintiff confirmed the dosage with outpatient arthroscopic shoulder surgery at Defendant Columbus Dr. Hebert’s office staff. She began to feel ill shortly after taking Surgical Center, LLC. During the procedure, complications arose the medication, developing nausea, vomiting and fatigue. She was and Plaintiff suffered heart failure, was resuscitated and hospitalized for an extended period of time and given a PEG tube transferred to the hospital, where she later died. Plaintiff claimed for feeding. She claimed injuries that were both temporary and that Defendant CRNA breached the standard of care in the permanent. She claimed that she was unable to return to work and administration of certain medications and that the alleged breach took an early retirement. The issues of liability and damages were proximately caused the decedent’s death. Plaintiff claimed bifurcated. Dr. Hebert, as an employee of the State of Ohio, was Defendant CRNA’s employer was liable under direct agency and immune from suit and the case proceeded to trial against the Defendant Columbus Surgical Center was liable under the theory Kroger Pharmacy only. Kroger requested and was given a jury of agency by estoppel. Defendant asserted the CRNA did not instruction seeking a jury determination of liability against OSU breach the standard of care and any alleged breach did not Medical Center. The jury unanimously found for Defendant proximately cause the decedent’s death. Defendant Columbus Belinda S. Barnes and Monica L. Waller, Kroger Company and apportioned 100% liability to OSU Medical Surgical Center asserted that the decedent only viewed the Surgery Lane Alton & Horst

8 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 9 In Court Federal Court Collaborative Divorce Making A Federal Case – AN OXYMORON? With More And Less By Robert H. Snedaker III each of them. Fair enough, right? Had mom contested. These professionals are also asked the girls what their interest was with trained in collaborative principals. There is respect to the orange, she would have found no reason that a collaborative case should By The Honorable Mark R. Abel another. An appeal is pending. Plaintiffs in remains committed to getting his decisions ou may have heard the term that one girl wanted the rind for a recipe and not survive the threat of litigation with all of the lethal injection protocol case argue that out timely, but research and drafts from his “collaborative divorce” and the other wanted the pulp for juice. Had she the available talent. Ohio’s method of execution subjects the law clerks and more time to devote to each wondered how in the world that known that, each of the girls could have had In all fairness to my skeptical colleagues, his spring Judge Gregory L. Frost convicted defendant to cruel and unusual case makes it easier for him to meet his goal of issuing high quality decisions. could ever happen. After all, 100% of the part of the orange she each sometimes it is difficult to fully appreciate the marked five years on the district punishment because the death-sentenced Y wanted. That is a better result for everybody, personality of your client. Some people are court bench. He came to the defendant consciously experiences pain Trials take longer in federal court. Judge divorce is, by its very nature, contentious and before dying. As of this writing, a decision Frost’s criminal trials average 7-10 a breeding ground for scorched earth a win-win. Isn’t that the ultimate service to not candidates for this process. Sociopaths, federal trial bench after 20 years T is expected soon. working days and his civil trials 10-14 litigation, isn’t it? In many cases, that is true. your client? . child abusers and thieves belong in litigation. as a state court judge, the first seven on the Despite his years of experience as a state days. When he mentioned the length of his In fact, litigation is the only process that will And so it goes in the collaborative process. Beyond that, the challenges that come up Licking County Municipal Court and the court judge, Frost said that when he trials to Magistrate Judge Norah King, she effectively enable some spouses with the The lawyers, financial experts and mental during the collaborative process are met with last 13 on the Common Pleas Court. became a federal judge he faced a pretty responded, “You mean they make a coercion and protection they need against an health professionals are trained to shift the creative problem solving by the spouses, the Recently I talked with him about the attorneys, the certified divorce planners, big learning curve. In criminal cases, he ‘federal case’ of it?” Federal court litigators unscrupulous adversary who is hiding assets paradigm from position based negotiations differences between state and federal court to interest based discussions aimed at accountants and/or the psychologists. and his reflections on five years on the had to learn the elements of the federal tend to leave no stone unturned. or is physically abusive. But what about the creating the best solution possible for each The other concern that I hear, which has federal trial court bench. statutes. The Christopher Paul terrorism The federal courthouse itself has better cases where the parties are content with their spouse. been addressed by the American Bar In some ways, the transition has been case – arising out of Paul’s travels to security and nicer accommodations. But decision to terminate the marriage, but The process of collaborative divorce Association1 as well as many state bar seamless. While a Licking County Pakistan and Afghanistan to meet members Frost came from a state court bench where simply cannot agree on who gets what? actually begins with the execution of the associations, is that the process creates ethical Common Pleas Court judge, Frost had a of Al Qaeda – introduced Frost to the he enjoyed close personal relationships Collaborative divorce is the newest kid on participation agreement by the parties and issues because of the limited scope of the number of high profile cases. These special procedures to access national with his fellow judges, and he wasn’t sure the block when it comes to alternative their respective attorneys. The agreement representation and the creation of a non- included Dardinger v. Anthem, where the security information in criminal what he’d find on the federal bench. He dispute resolution. Mediation and arbitration says (paraphrasing) that there will be full waivable conflict of interest. The ABA insurer discontinued intra-arterial prosecutions. In federal death penalty was pleasantly surprised by the have been around for years and have disclosure of all financial information with opinion specifically rejects the notion that chemotherapy for brain cancer on the cases, the law is very different from Ohio’s. camaraderie here. All the judges are very provided alternatives to the litigation process. supporting documentation, good faith there is a non-waivable conflict. The limited grounds that the treatment was On the civil side, there are many federal collegial. Additionally, lawyers engage in principled participation and that if either party chooses scope of representation is not an issue experimental. The jury awarded the estate law statutory claims that are rarely Judge Frost’s staff includes two law negotiations every day at the court house, to litigate the matter, then both attorneys provided “that the lawyer communicate $1,350 for breach of contract, $2.5 million adjudicated in state court. Greg Frost had clerks. Shawn Judge has been with the often resulting in the complete resolution of must withdraw and the parties have to retain adequate information and explanation about on a bad faith claim, and $49 million in to dig in and get up to speed on ERISA Judge for five years. Penny Barrack has all issues. Principled negotiation is position new counsel to litigate the matter. Then the the material risks of and reasonably available punitive damages. And there was a verdict employee benefits law, intellectual property been with the Judge for a year. She oriented where the parties seek to attain the parties, and their collaborative team, meet to alternatives to the limited representation.”2 of over $19 million in Seelke v. Buckeye law, social security, bankruptcy, and the previously clerked with Judge Ed Sargus position they want (i.e. custody of the discuss the issues and resolve them. As the public becomes aware of this Egg Farm for injuries suffered by the egg like. and Judge Norah King. Both Shawn and children, the most child support you can get, The most frequent objection I hear from alternative dispute resolution, you may be farm’s next door neighbors when ammonia Another big difference between federal Penny are career law clerks. Kristin Norcia the big screen television, etc.). So, you may attorneys about this process is that they fear asked if you offer that service. You may find leaked into one creek and manure into and state court was the large docket Frost is Judge Frost’s administrative assistant. ask yourself, “what does collaborative losing the client if the process is not that the client leaves because you do not another. Frost has continued to preside handled on the common pleas court bench. She was his bailiff at the Common Pleas divorce offer that the others don’t or that I successful. That is a very valid concern participate in the collaborative process, and over big cases in federal court. In Newark There was a constant run of trials and Court. am not already doing myself?” because that is exactly what will happen. not because s/he has decided to litigate. Group v. Sonoco, the jury returned a $3.75 decision on motions. His federal docket is Scott Miller is Judge Frost’s courtroom In mediation, the mediator cannot give Where is the faith? The local practice group, million verdict for misappropriation of smaller, and there are far fewer criminal deputy and winter walking companion in legal advice to either party nor may s/he and most others, require members to take a trade secrets. He is currently winding cases. Judge Frost’s docket is about 85% the courthouse basement. Denise Errett is prepare documents. If one of the parties in two-day basic training to help “shift the 1. American Bar Association, Standing down a multi-district litigation case, In Re: civil and 15% criminal cases. Judge Frost’s court reporter. mediation is a stronger negotiator or paradigm” from positions to interests. The Committee on Ethics and Professional Foundry Resins Antitrust Litigation. It Although Judge Frost has fewer cases in intimidates the other party in some way, the local practice group for central Ohio is Responsibility, Formal Opinion 07-447. combined 10 cases from three district federal court, he has a larger staff. In state 2. Id. playing field is not balanced and meaningful Collaborative Divorce Professionals, Inc. The courts. After class certification and some court he had no paid law clerks, and in negotiations are difficult. Arbitration is a trial website is www.winwindivorce.org. The discovery, all but one case settled. The federal court he has two. The court also to a disinterested third party. international organization is the International remaining case is proceeding to trial. has three staff attorneys who work on [email protected] Collaborative divorce is based on the Academy of Collaborative Professionals. The On the state court bench, Judge Frost habeas corpus cases, two of whom work interests of the parties as opposed to their website is www.collaborativepractice.com. [email protected] had three death penalty cases. He has had on death penalty habeas corpus cases. positions. A position is what you have The local group used to be known as the a federal death penalty case, a terrorism Magistrate judges handle the discovery decided upon. Your interest is what caused Collaborative Family Law Council of Central case, and a civil lawsuit in which 29 death stages of civil cases and routine motions. you to make that decision. The result is not Ohio because it was limited to attorneys. convicted defendants are challenging Discovery was a never ending battle in always the same. Consider the following Most of the collaborative practice groups Ohio’s lethal injection protocol. In the state court, but Frost seldom sees a illustration. Two sisters ask their mother to were exclusively lawyers when they started. death penalty trial, Daryl M. Lawrence discovery dispute in federal court. decide which one of them should get the last The trend now is to open the membership in was convicted of killing Columbus Police The smaller docket and bigger staff orange, as each took the position that each the practice groups to financial and Officer Bryan Hurst. Judge Frost set aside mean that Judge Frost has more time to gets the entire orange. Mom, being the psychological experts because of the routine Robert H. Snedaker III, the jury’s death sentence because it study the briefs and think through Honorable consummate peacekeeper, cuts the orange need for those services in almost every Doughery Hanneman inconsistently imposed the death penalty decisions. There was always a crush in Mark R. Abel, into precisely equal halves and gives one to divorce, whether it is collaborative or & Snedaker LLC on one count of the indictment but not on state court to get decisions out. Judge Frost U.S. District Court

10 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 11 Federal Court Federal Court

wrong with what the other guy wants, rather than on what is right for them. A Federal “Drug Court” That Works Think hard before and during the mediation about what it is you and your client want to – and have a chance to – – And How It Works Mediation accomplish in the litigation. Compare that to the settlement alternatives that are – A NEW KIND OF generated at the mediation. That is the best By The Honorable Terence P. Kemp be significantly enhanced. Those courts part, to the group setting and to the way to have productive mediations and have instituted a type of drug court concept that there are people who care FEDERAL OFFENSE satisfied clients. program for high-risk offenders on about their success or failure and are any criminal defendants who supervised release that has shown great willing to devote their time and energy into How The Federal Court Program Works promise in allowing offenders to achieve helping the participants succeed, rather appear in the federal courts settled at only a slightly lower rate than the Mediation is literally a phone call or and maintain sobriety, to maintain than simply cataloging their failures and By Robert S. Kaiser have a long history of overall settlement rate. email away. Contact the Mediation employment, and to avoid new criminal punishing them with more jail time. substance abuse. Some are Perseverance pays. Mediation is not Administrator, Teresa Mack M behavior. The United States District Court for the charged with drug-related offenses, but ([email protected] or (513) Southern District of Ohio, following the he U.S. District Court for the necessarily a one-day, isolated event. many others commit different types of Impasse is obvious in some cases, but a 564-7330). Judges, lawyers, and the The program begins with the lead of District Courts from Oregon, New Southern District of Ohio has offenses that are related in some way to little more time and effort can pay off. mediator can initiate a referral. identification of persons on supervised York, and Massachusetts, has decided to added a new tool to resolve substance abuse. Often, incarceration does Rather than declaring an impasse at the It is never too early or too late to release who are at risk to resume substance implement this program for persons on federal lawsuits — a full-time not adequately address the issues that have T end of the first day, thought should be schedule mediation. Some mediation dates mediator. Lawyers, litigants and judges led these offenders into substance abuse, abuse or commit new crimes even with supervised release. The Court is taking are set in the preliminary pretrial order, so have taken full advantage of the option, given to additional information or input and the continuation of that behavior after intensive supervision. Those persons are materials and procedures from those courts there are already mediations scheduled in which have had success with the program with over 100 cases referred in nine that might help the parties toward release from prison presents a substantial given the option to participate in the drug resolution. About fifty percent of the cases 2009. At the same time, last minute obstacle to their successful re-integration court program and offered a reduction in and adapting them for use here. The months. The results? Settlements in about requests can usually be accommodated. United States Attorney’s office, the Federal two-thirds of the cases mediated. And where the parties agreed to continue their into the community. their supervised release sentence if they efforts for a limited time beyond the first Mediations have been arranged on twenty- Some state courts have developed and successfully complete the program. If they Public Defender, and the Probation Officer some insights that lawyers might find four hours’ (and less) notice. have all endorsed the program and are useful in making mediation even more day ended in settlement. Considering the implemented diversion programs for drug choose the program, they consent to alternative would have been impasse in The sessions are scheduled for a full day. offenders designed to treat the underlying summary adjudication and punishment of committed to this effort. Hopefully, the effective. Lead trial counsel, a client representative first group of participants will be identified The program is unique in the federal each of these cases, the additional effort substance abuse and provide an alternative violations of supervised release without the seems worthwhile. Generally, the extra with settlement authority and the ability to to incarceration. Such programs recognize need for formal hearings, and also agree to soon and at least two ten-member groups trial court system. Those courts that have bind the party, and insurance will be created in Columbus within the time was used for consideration of that if the substance abuse issue is abide by the rules of the program. mediation programs use local volunteers or representatives, if applicable, must attend. next few months. If experience indicates additional information, time to research a successfully addressed, and the offender is The three goals of the program are: (1) force the parties to pay for private that the program is successful, more proposal on the table, or submission of a able to maintain sobriety, stability, and maintaining sobriety for a year; (2) mediators. The Southern District of Ohio, groups may be created. mediator’s proposal. employment for a significant period of obtaining employment; and (3) refraining led by Chief Judge Sandra S. Beckwith, 1. Only cases in which the mediator was Substance abuse is both a societal Better late than never. A large time, the likelihood of recidivism is from new criminal behavior. Participants in decided to take a different approach. Last actively involved in the negotiations that problem and an individual affliction. Drug percentage of cases were referred to led to settlement are included in these substantially decreased. These programs the program meet in groups with the Court August it hired a full-time, professional court programs recognize that, by mediation with trial looming. In these statistics. Cases that settled before the are often administered by judges serving in (there are usually ten in each group) on a mediator. The court believed that this was providing support to the individual and cases, discovery was closed, summary mediation conference, or after the a designated “drug court”. In the federal regular basis – sometimes as often as a service that should be provided by the giving him or her the tools to succeed, the judgment motions were decided, and trial mediator’s efforts ended are not system, many offenders (including the vast weekly – to report on their progress in “dispute resolution” branch of the federal included. societal impact of drug use and criminal preparation was in full gear. To make majority of drug offenders) are facing meeting these goals. The court sessions are government. The initial statistics from the behavior can be lessened. The Southern settlement seem even less likely, many of mandatory prison time because of conducted by a District or Magistrate program1 shed some new light on how to District of Ohio is confident that it can the cases were referred after the parties Judge and attended by representatives of make the mediation process work better statutorily-prescribed minimum sentences, create and implement a program that will rejected a judge’s settlement efforts at the the United States Attorney’s office, the for lawyers and their clients. or will likely serve prison time due to the achieve these goals. final pretrial conference. Despite this, operation of the federal sentencing Federal Public Defender’s office, and the slightly more than two-thirds of these “end guidelines. For them, pretrial diversion is Probation Office. The members of the Lessons Learned stage” cases settled. not a viable option. group reinforce each other’s efforts. The earlier the better. Early mediation is Subject matter matters. Certain types of Several federal courts have recognized, Successes are rewarded, and lapses are most effective. Cases mediated before full- cases appear to be more amenable to blown discovery got under way settled however, that after an offender is released dealt with by a variety of sanctions, which [email protected] settlement than others. Employment and from incarceration and begins serving a may include brief periods of jail time. more than eighty percent of the time. Once tort cases settled nearly eighty percent of term of supervised release (which is, again, Substantial non-compliance is met with the parties got past initial written discovery the time. Commercial disputes followed at mandatory for most federal criminal termination from the program and formal and a few key depositions, the settlement about a two-thirds settlement rate. The defendants), there is an opportunity to proceedings to address supervised release rate fell to about fifty percent. It appears hardest cases? Intellectual property cases, apply the same principles which underlie violations. Those who complete the that the financial and emotional settling about half of the time. Before state diversion programs. Because the goal requirements of the program participate in investment of the discovery process serves giving up on the tough cases, though, of supervised release is to provide the a graduation ceremony. to further alienate the parties and make consider that even a fifty-percent defendant with supervision and guidance According to the courts that have resolution more difficult. But, it is not settlement rate isn’t bad compared to the to facilitate re-entry into the community, instituted this program, it has shown impossible. Cases mediated from the time alternative of years and years of litigation and that goal is undermined by continued remarkable promise in reducing supervised discovery starts in earnest through the and appeals. substance abuse, if the substance abuse release violations and allowing offenders to summary judgment process still settled Mind your own business. This advice problem can be brought under control, the rejoin society as sober, employed, and law- more than fifty percent of the time. cannot be demonstrated with statistics. Robert S. Kaiser defendant’s chances of successful abiding citizens. In other words, it works. If at first you don’t succeed, try again. But, experience proves it to be true. A case United States District completion of supervised release – and his Many participants have been able to Honorable An unsuccessful mediation does not mean will settle if each party’s interests can be Court Mediator, or her chance of staying clear of the maintain sobriety for the first time in Terence P. Kemp, mediation will never work in a case. Cases adequately addressed. That is hard to Southern District criminal justice system in the future – can years. They attribute the success, at least in U.S. District Court mediated after a previous failed effort accomplish if the parties focus on what is of Ohio

12 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 13 Written Rules Written Rules

In Ohio, service members activated while Disorder (PTSD) or other mental illness administrative proceedings) can extend WHEN JOHNNY OR JOANIE COMES MARCHING HOME attending career colleges or state on their return. Once discharged from the stay for good cause, the stay as a institutions of higher education are active duty, service members must deal matter of law is only 90 days. Faced with afforded military leaves of absence and, if with and obtain needed care from the the demands of the non-military parent withdrawn from school by the “withdraw Department of Veterans’ Affairs. Veterans for an immediate decision, courts often Demobilization Legal Issues date,” entitled to a refund of tuition and should get help from the Department of proceed over the service member’s objection to adjudicate custody in the fees. No academic penalty may be Veterans’ Services created by Am. Sub. S.B. No. 289, 127th Ohio General service member parent’s absence. Hearings imposed by either type of institution and Assembly, in obtaining these services. The in absentia do not favor the service returning students are to be restored to Ohio Adjutant General’s Department also member. Congress’s sole attempt so far to For Citizen-Soldiers the status quo ante. RC 3332.20, employs a contractor to assist service address this matter resulted only in 3345.53. members in applying for and obtaining express inclusion of custody proceedings Claims of Taxation and the Defense Finance and By Duncan O. Aukland the benefits due them. within the above cited stay section of the Active Duty (AD) can be hard on the Accounting Service (DFAS) to resolve this Small Business Assistance SCRA and the default judgment section of service member’s personal property and issue; but according to recent emails from As any attorney who advises small Child Custody the SCRA, 50 USC App. Section 521. Reemployment Rights other possessions. The best hope is to file DFAS, Ohio’s partial exemption of business owners knows, the small Perhaps the most glaring, if not most Legislation that would stay custody ervice members have a right to with service claims service under the military pay from State taxation is more business owner is the business. Often the prevalent, legal problem faced by changes in Ohio until the return of the reemployment following periods of Military Personnel Claims Act or other difficult to implement than if that business struggles in his/her absence. The returning service members is losing service member is currently pending military or uniformed service. applicable law. All such claims are exemption were total. Small Business Administration has debt custody of their child or children while before the 127th Ohio General Assembly Some employers are unfamiliar processed and paid under claims Naturally, service members in combat forgiveness available to deployed business mobilized. This is an unintended as H.B. No. 61. S regulations found in Title 32, Code of zones get their pay free of Federal income owners’ businesses at www.sba.gov/ with this right while others assume they consequence of the amendment of the can discharge an at-will employee for any Federal Regulations, Parts 536, 751 and taxation; and so also free of Ohio income aboutsba/sbaprograms/reservists. stay provision of the former Soldiers’ and reason following a period of military 842. taxation. If they will be going overseas in Military business owners may also obtain Sailors’ Civil Relief Act when it became service. Employers’ counsel should be the first quarter of the year, they are loans from the SBA. the Servicemembers’ Civil Relief Act aware that service members who return Power of Attorney Revocations urged to file a return (or to authorize (SCRA) in 2003. Congress amended 50 [email protected] from a period of military service are Many service members obtain powers someone to do so) before they deploy so Veterans’ Benefits and Rights USC App. Section 522 to limit the service of attorney before deploying. Many are entitled to have their jobs back upon they’re entitled to the refund of any Many service members are wounded or member’s entitlement to 90 days. While general and some are special. Of the timely and proper application for overpaid taxes. Otherwise, if they are injured while on active duty. Others the court or agency (the amendment also special powers of attorney, many are reemployment. Details may be found in absent from the country on April 15 due suffer from Post-Traumatic Stress extended coverage under the statute to governmental powers of attorney like IRS the materials explaining the Uniformed to military or naval service, they do not Form 2848, Power of Attorney and Services Employment and Reemployment have to file a return until two months Declaration of Representative. Rights Act (USERRA), 38 USC Section after they return to the United States. Sometimes, the choice of attorney-in-fact Since members of the National Guard 4301 et seq., on the Veterans’ is less than ideal. A need then arises to and Reserves don’t have access to tax YOU WORK FIVE DAYS A WEEK Employment and Training Service (VETS) revoke the power of attorney and in some preparation services after they website operated by the United States instances, the attorney in fact will not demobilize, some will inevitably neglect Department of Labor, give the original back to be destroyed. to file a return. Help is available through www.dol.gov/elaws/userra.htm; or the WE WORK This leaves the service member with the Ohio Society of Certified Public site operated by the National Committee needing to revoke the power of attorney Accountants however if the non-filer is for Employer Support of the Guard and and to communicate the revocation to deployed. Members of the OSCPA will Reserve (NCESGR). those who have relied on the original assist deployed service members in filing with little help from the attorney in fact their returns under Operation CPA, five Life Insurance Coverage in determining who’s seen the power of Student Loan Relief/Readmission/Tuition Some life insurance policies contain attorney. At this point, the service Refunds “war clauses,” or exclusions from member may recall being advised that the days While federally-guaranteed student benefits resulting from injuries or general power of attorney is a license to loans aren’t subject to the 6% cap on A WEEK illnesses sustained or contracted in a war steal and that he probably could have annual interest prescribed under the zone. Some soldiers don’t subscribe to arranged his affairs to avoid needing to Servicemembers’ Civil Relief Act, other Who can afford to wait a week, or even a month, for the Service members Government Life prepare one; but for now, that’s of no options such as forbearance and payment Insurance (SGLI), 38 USC Chap 18, comfort to the service member or to the of interest only are often available. latest local business news? Local business leaders know which contains no war clause, in the Judge Advocate trying to assist him. the value of accurate, timely news — available in print belief they have enough commercial and online every business day through The Daily insurance. Returning military personnel Income Taxes Reporter. Subscribe today to Central Ohio’s only daily may be gravely wounded, yet still alive; Getting one’s income tax free doesn’t business and legal newspaper. and their families may get no death initially appear to be a problem. So far benefit if a war clause excludes the cause however there has been difficulty with of death. The 125th Ohio General consistent application of the exemption Assembly, in amending RC 3915.05 by from State taxation of military pay enacting H.B. No. 426 to keep insurance earned while “permanently” stationed Duncan O. Aukland,

policies of activated Reserve Component outside Ohio. Service members are State of Ohio 580 S. High St., Suite 316, Columbus, OH 43215 • 614-228-NEWS (6397) • www.sourcenews.com (RC) personnel in effect, left war clauses working with their finance offices, which Adjutant General’s intact. are working with the Ohio Department Department

14 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 15 Written Rules Written Rules

Win A Bet? When Is It Legal To The Construction Contract Contains Give An Underage Person A Drink? A Mediation Provision — What Now? By Donald W. Gregory conferences. First, mediation can result parties are not yet ready to resolve the dispute. This can lead to unnecessary By Timothy J. Bechtold My professional interest in Ohio’s Liquor alcoholic beverages. Both of these sections in more flexible remedies, whereas Control Law (Title 43 of the Ohio Revised also contain the relevant exemptions judicial remedies are typically limited to delays while a fruitless mediation is 3 Code) began as a law clerk at the then- discussed above in Sections (A) and (B). oth the American Institute of money damages. Second, parties may be conducted, which can lead to a more candid with mediators than with hardening of settlement positions. or as long as human beings have Department of Liquor Control in the late The bottom line is that a parent, spouse of Architects (AIA) and Furthermore, mediation is a bad fit for made and consumed alcoholic 1970’s. I have always been impressed by two legal drinking age or legal guardian can ConsensusDOCS have created settlement judges because there is no fear some cases. When the outcome of a case beverages, there have been customs, aspects of the work the legal scholars and provide alcoholic beverages to an underage standard construction contracts that the information will bias a later B turns on a new legal question, mediation social mores and laws that have draftspersons that crafted the statutes in person in Ohio. that make mediation a prerequisite to trial. Third, parties in mediation share F Ohio achieved: (1) what the General In response to questions from restaurant litigation and arbitration.1 As a result, facts cooperatively, saving time and may not be appropriate.7 Likewise, attempted to influence their consumption in a positive way. Jim Koch, the founder and Assembly adopted in the first couple of operators, tavern owners and other liquor attorneys handling construction disputes money compared to expensive pre-trial fundamental factual disputes — like the president of Samuel Adams Brewery (and a decades after Prohibition is pretty much permit holders, I have advised them that, are increasingly involved in mediation, discovery. credibility of key witnesses — may also native Ohioan and attorney) has a what we have on the books today, and (2) while the law allows for such conduct, it is its advantages and disadvantages. Parties who seek to save time and cause mediation to fail. Finally, wonderfully entertaining presentation about no matter how odd or antiquated some up to them to decide if they want to permit AIA and ConsensusDOCS money often choose mediation. The AAA mediation may be impossible when the how the history of civilization is really the particular provision may seem, there was a patrons to do so at their establishments as construction contracts mandate says that mediated claims are typically parties have lost all trust and ability to history of beer. His basic premise is that: (1) good reason for it at one time. The lesson I they could be cited for underage sale or American Arbitration Association resolved in under two months.4 By find common ground. Such cases, furnishing if it would turn out that the early humans settled down so that they have taken away from this is that you need mediation as the first step in resolving contrast, the organization cites federal however, are rare. Typically each party person providing the beverage to the could grow the crops needed to make beer, to know why a liquor law provision was disputes. The AAA has created well- court statistics putting the median length has an interest in maintaining a business underage person was not, in fact, their (2) those that did this had something to originally adopted if you want to change it of construction trials at just under two relationship, and in resolving the dispute parent, guardian or spouse of legal drinking defined procedures for construction drink that was healthy and didn’t make in a way that is going to be beneficial and mediation.2 Mediation is initiated when years. Even an average mediated case quickly. Mediation is an effective tool at lasting from a public policy perspective. age. them sick (like drinking water did), and (3) one of the parties makes a request to the with claims above $500,000 is resolved achieving both. Which brings us to the question at hand: In checking the legislative history of these these early brewers prospered and mankind AAA and notifies the other party. Next, nine months sooner than that. In my When is it legal to give an underage person a provisions, the physician, parent and legal Some issues to consider when entering has continued to follow in their footsteps the parties select a mediator. The AAA experience, more than 80% of ever since. drink? The answer can be found in O.R.C guardian language has been in the statute at mediation least since the 1960s, the spousal exemption maintains a roster of professionals construction disputes are resolved in Whether you are ready to embrace Jim’s Section 4301.69 (A). “Except as otherwise A key to successful mediation is was first enacted in 1987 and was further (including the author) that is browsable mediation. admittedly biased views on the cause and provided in this chapter, no person shall sell recognizing the ways it is unlike other qualified in 1989 with the “who is not an online. Parties may select a mediator, or Federal court statistics also reveal the effect relationship between alcohol and beer or intoxicating liquor to an underage forms of dispute resolution. Because underage person” provision. Perhaps man’s cultural evolution or not, there is no person, shall buy beer or intoxicating liquor have one appointed. Many experienced advantages of mediation over litigation. surprisingly, there does not appear to be mediation is non-binding and need not question that there have always been laws for an underage person, or shall furnish it to construction law practitioners are In 2006, the U.S. District Court for the much case law interpreting these sections of end in resolution, parties must approach and rules related to its use. That interesting an underage person, unless given by a interested in avoiding AAA District of Nebraska polled its attorneys the Revised Code. The parental supervision mediation with a different mind-set than social experiment known as Prohibition in physician in the regular line of the administration and its attendant costs and parties regarding their mediation 8 aspect of the exception in O.R.C. Section that of litigation or arbitration. They the early part of the 20th century in the physician’s practice or given for established and will agree to select a mediator on and litigation experiences.5 That year, 4301.69 (E) was essentially affirmed in a should avoid overzealous advocacy, and United States is an example of a period of religious purposes or unless the underage their own in lieu of the process set forth attorneys who resolved disputes in 2006 case, State v. Pelfrey, 167 Ohio App. instead come to the table with the goal time where there were fairly clear laws on person is supervised by a parent, spouse who in the contract. mediation reported saving an average of 3d 388, 855 N.E 2d 501, 2006 Ohio 1416. of solving problems creatively. A the books regulating the consumption of is not an underage person, or legal The mediator’s role is somewhat 104 hours per case, and attorneys and In this case, the court stated that the parent’s collaborative approach not only helps alcohol but also a significant degree of non- guardian….” (emphasis added) different than that of an arbitrator or a parties estimated that they saved almost presence in the home where an underage ensure the mediation’s success; it also compliance with those laws. When the 21st person consumed alcohol was sufficient to judge in a settlement conference. First, $60,000 per case. The respondents also helps clients maintain their business Amendment to the United States Further, O.R.C. Section 4301.69 (B) satisfy, as a matter of law, the the mediator’s goal is not to force a answered questions aimed at measuring relationships with adverse parties.9 Constitution was adopted in 1933, it provides, “No person who is the owner or “accompanying” requirement of O.R.C. settlement. The mediator seeks to more qualitative advantages to Parties should also carefully consider marked the beginning of the current period occupant of any public or private place shall Section 4301.69 (E). facilitate the flow of information, and to mediation, like whether parties felt they the type of mediator they want to hire. of primarily state-based alcohol beverage knowingly allow any underage person to The common sense public policy behind foster a satisfactory resolution. Second, had been treated fairly, and whether they While every mediator has a unique style, regulation in our country. One of the main remain in or on the place while possessing or these exemptions is, I believe, evidenced by the mediator maintains the parties’ felt involved in the process. Mediation they generally break down into two reasons for state-based regulation was so consuming beer or intoxicating liquor, unless the length of time they have been in effect confidentiality. He or she agrees to scored well in all of these qualitative the intoxicating liquor or beer is given to the categories: facilitators and evaluators. that the laws of a state could be tailored to and the relative lack of controversy refrain from testifying in subsequent categories. address the concerns of that particular state person possessing or consuming it by that Facilitators use diplomacy to help parties surrounding them and I salute the drafters of proceedings, to restrict access to However, mediation is not without in a way that was consistent with the views person’s parent, spouse who is not an communicate and find common ground. these provisions for their wisdom and mediation sessions, and to keep no disadvantages. Clients and attorneys of, and generally accepted by, the citizens of underage person, or legal guardian and the Evaluators provide analysis of strengths foresight. stenographic record of the mediation. accustomed to adversarial judicial that state. Such considerations are not parent, spouse who is not an underage and weaknesses of each side. To ensure There is no filing fee for initiating inconsequential in terms of matching public person, or legal guardian is present at the proceedings may bring their expectations are met, parties should 6 policy with the wishes of residents of a state. time of the person’s possession or mediation, but each mediator has an counterproductive habits to the table. investigate potential mediators’ styles. One need only look at the controversies consumption of the beer or intoxicating hourly rate listed on the AAA roster, They may put more effort into Given the thorny nature of complex with a four-hour minimum charge. The persuading the mediator than the construction disputes and the surrounding the enforcement of Ohio’s open liquor….” (emphasis added). Finally, O.R. [email protected] container law in conjunction with tailgating C. Section 4301.69 (D) (1) relates to the parties pay equal shares of the mediation opposing party, or withhold information personalities associated with such a activities at OSU football games in recent engagement of accommodations at a hotel expenses unless they agree otherwise. that could encourage settlement. “rough and tumble” industry, most years as an example of the difficult challenge that involves underage consumption and As contract documents often mandate experienced practitioners favor a that faces public officials in coordinating O.R.C. Section 4301.69 (E) (1) contains the Timothy J. Bechtold, Advantages and disadvantages? mediation as a condition precedent to mediator with an evaluative approach. public policy with the desires of local language which permits the underage Vorys Sater Seymour Mediation has several advantages over litigation or arbitration, parties can be residents on alcohol policy matters. persons themselves to consume or possess and Pease litigation and pre-trial settlement forced into mediation when one or more Continued on Page 18

16 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 17 Written Rules Written Rules

Continued from Page 17 the American Arbitration Association. 9. Richard P. Flake and Susan G. Perin, Available online at http://www.adr.org/ Mediating Construction Disputes: It is rare to encounter a significant sp.asp?id=22004#MedProcedures. What Works and What Doesn’t, construction dispute that is not mediated 3. Paul M. Lurie, Factors Influencing a Dispute Resolution Journal, May/July Anti-Counterfeiting at some point during the course of a Successful Mediation, Construction issue, at p. 1. Available online at lawyer’s representation, so competent Lawyer, Volume 22, No. 3, Summer http://www.adr.org/si.asp?id=2540 mediation advocacy should be an 2002, at p. 18. important skill set in any practitioner’s 4. American Arbitration Association white Strategies For Brand Owners toolbox. paper entitled, “Construction Industry Arbitration vs. Litigation: The Lines Aren’t Drawn Where You May Think,” [email protected]. This article was prepared with the at p. 2. Available online at By Jay A. Yurkiw right to use the mark with the goods and government has had shutting down and assistance of summer associate Pete http://www.adr.org/si.asp?id=4538. services listed in their registration. prosecuting counterfeiters in Ohio. Applegate. 5. United States District Court for the Having a registered trademark allows an Given the government’s increasing District of Nebraska 2006 Report on ounterfeiting costs U.S. owner to record the mark with the U.S. interest in intellectual property crimes, Mediation, at p. 6. Available online at businesses billions of dollars Customs and Border Protection (CBP), brand owners should consider referring 1. ConsensusDOCS press release entitled, http://www.ned.uscourts.gov/mediation/ every year. Counterfeit goods which can seize counterfeit goods at the violations of their rights to law “Consensus Contract Documents medweb/report-06.pdf. endanger the public’s health and border. enforcement officials for criminal Readies for Release” (sic). Available C Registration with the U.S. Copyright enforcement. This sends a strong message 6. Factors Influencing a Successful safety, cause the loss of tax revenue and online at http://www.consensusdocs. Mediation, supra, note 14, at p. 20. jobs, and undermine consumer Office constitutes prima facie evidence of to the public about the owner’s org/news/200707-enr.html; 7. Thomas J. Stipanowich and Douglas A. confidence in brand names. Counterfeit the validity of a copyright and is a commitment to protecting rights. It not Donald W. Gregory, A New Age of Henderson, Settling Construction goods also have been linked to terrorist prerequisite to bringing a copyright only shuts down current counterfeiters Consensus? Alignment Shattered by Disputes by Mediation, Mini-Trial and groups and organized crime. While the infringement action. Registration also but deters others. Although a New Contract Documents, USGlass, Other Processes — The ABA Forum counterfeiting problem impacts nearly enables a copyright holder to seek counterfeiter may not be concerned about Volume 43, Issue 2, February 2008. Survey, Construction Lawyer, Volume everyone, the recent high profile statutory damages and attorney fees and civil liability because it is judgment proof Available online at http://www.usglass 12, No. 2, April 1992, at p. 7. counterfeiting case between Tiffany and permits recordation of the copyright or it can change the goods it is mag.com/USGlass/2008/February/cons 8. James M. Bowie, Ethical Issues in eBay reaffirmed that brand owners bear with the CBP. counterfeiting, the threat of ensus.htm. Construction Mediation: Are There Any Donald W. Gregory, the primary responsibility for protecting Over the last 10 years, the federal imprisonment and criminal fines changes 1 2. Construction Industry Arbitration Rules?, Construction Lawyer, Volume Kegler Brown their rights in the U.S. government has increased its efforts to the cost-benefit analysis. A first offense Rules and Mediation Procedures, from 24, No. 2, Spring 2004, at p. 33. Hill & Ritter In the eBay case, “the heart of this protect intellectual property rights and for an individual who traffics in dispute” was “who should bear the prosecute intellectual property crimes. counterfeit trademarks can result in up to burden of policing Tiffany’s valuable Congress enacted the Stop ten years imprisonment and a $2 million trademarks in Internet commerce.”2 Counterfeiting in Manufactured Goods fine.4 Tiffany presented evidence that sellers on Act in 2006 to broaden the protection of On the other hand, a brand owner may values are no eBay’s website sold thousands of the criminal counterfeiting statute, 18 decide against pursuing criminal counterfeit Tiffany merchandise from U.S.C. § 2320, and to help owners violations because a referral may result in 2003 through 2006, and argued that obtain restitution from counterfeiters. a loss of control over the enforcement of mystery ... eBay had the obligation to control the The Bush administration announced the its rights, as the government may want to counterfeiting activities of the sellers Strategy Targeting Organized Piracy delay acting or move the investigation in because eBay knew a problem existed (STOP!) initiative in 2004 to help a different direction. The government and profited from the sales. The coordinate the efforts of federal agencies also may request that further private Southern District of New York rejected to fight global counterfeiting and piracy. investigation be stopped while it is Tiffany’s argument and held that “under Last year, the Office of the U.S. Trade investigating the case or it may seek to the law as it currently stands, it does not Representative began negotiating the stay any civil proceedings while the overover matter whether eBay or Tiffany could Anti-Counterfeiting Trade Agreement criminal case is proceeding. All of this more efficiently bear the burden of with key trading partners to establish can turn into a problem if the policing the eBay website for Tiffany new global standards for the government ultimately decides not to 5500 counterfeits,” the law places the burden enforcement of intellectual property pursue a case. years!years! on the mark holder.3 Thus, it is Tiffany’s rights. If a brand owner does decide to refer a burden to monitor the eBay website for Earlier this year, the U.S. Chamber of case to law enforcement, the Department counterfeiting and bring specific items to Commerce, Department of Justice, and of Justice recommends that the owner eBay’s attention which Tiffany believes Federal Bar Association sponsored a one- create a record of all investigative steps to be counterfeits. The court’s holding day conference in Columbus during taken, preserve any physical, ANTHONY F. MOLLICA & ASSOCIATES illustrates the diligence that brand which representatives from the documentary, or digital evidence acquired Forensic Appraisal Services Department of Justice, U.S. Attorney’s in the course of the owner’s investigation, Real Estate and Business Appraisal owners must exercise to protect their rights. Offices in the Northern and Southern and contact law enforcement soon after 1601 Bethel Road, Suite 220 Columbus, OH 43220 Ph: 614-459-1140 Fax: 614-459-1227 The first step is to register. Brand Districts of Ohio, Immigrations and acquiring information about suspected E-mail: [email protected] or forensicappraiser.com owners who register their trademark Customs Enforcement, Food and Drug violations. Early communication ensures rights with the U.S. Patent and Administration, U.S. Postal Inspection that evidence of an intellectual property Anthony F. Mollica, MAI, ASA, CRE, CBA Member, Appraisal Insitute; Trademark Office (USPTO) gain Service, CBP, and a county prosecuting crime is properly gathered and secured, Senior Member, American Society of Appraisers; advantages in the fight against attorney’s office spoke about federal and and it allows owners to discuss and Counselors of Real Estate; Certified Business Appraiser counterfeit goods. These advantages local efforts to criminally enforce coordinate possible criminal enforcement Sandra K. Martin-Mollica, CPA, ASA include a legal presumption that they intellectual property rights. They with parallel civil proceedings. E-mail: [email protected] Ohio Certified Public Accountant; own the mark, constructive notice to discussed the resources available to Senior Member, American Society of Appraisers others of their mark, and an exclusive brand owners and successes the Continued on Page 20

18 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 19 Written Rules

Continued from Page 19 coalitions like the CACP and trade shows, and flea markets to check for the organizations such as the Recording sale of counterfeit goods. I AM A LAWYER, NOW WHAT? 21 Industry groups and intellectual Industry Association of America and the Also, brand owners also can design PRACTICING LAW IN AN ELECTRONIC WORLD 22 property organizations actively lobby Motion Picture Association of America. and integrate anti-counterfeiting controls THE TRUTH ABOUT WHAT CLIENTS REALLY WANT 23 federal and state government to You may have seen anti-piracy public into their products. Layered strengthen existing intellectual property announcements in movie trailers. authentication controls such as radio ALWAYS CONSIDER JURY INSTRUCTIONS 24 protection. In 2005 the U.S. Chamber of Companies such as Abercrombie & frequency identification (RFID) tags, LEGAL WRITING TIP 25 Commerce launched the Coalition Fitch, Motorola, and ACDelco encourage multiple logo locations, holograms, and HOW DO YOUNG LAWYERS RATE COMMUNICATION? 26 Against Counterfeiting and Piracy consumers to report suspected nanotechnology-based markers can make DRAW THE LINE ON CASUAL DRESS 27 (CACP) to address the global problem of counterfeit goods through their websites it easier to identify counterfeit goods. counterfeiting and piracy. On behalf of and 1-800 hot lines. When counterfeit goods are identified, BOOK REVIEW 28 over 500 members in various sectors Brand owners can help protect brand owners should seek to enforce THE LIGHTER SIDE OF LAW 29 ranging from automotive parts to luxury themselves against counterfeiting by their rights through civil litigation. IT'S AS EASY AS RIDING A BIKE 30 goods, the CACP has launched a better securing their supply chains. Pursuing legal action in large and small comprehensive legislative campaign to Suppliers may produce unauthorized cases demonstrates that counterfeiting HOLIDAY PARTY NAVIGATION 31 improve U.S. intellectual property laws. merchandise for illegitimate distribution will not be tolerated and that anyone INTRODUCTION TO DOWNTOWN LIVING 32 As part of the Campaign to Protect channels, and counterfeiters often will selling counterfeit goods is at risk. A America, the CACP is working with purchase authentic goods to mix them in court may order the ex parte seizure of various state legislatures to enact the with fake goods. Written contracts with goods if the brand owner satisfies the defense matter in the morning, attend a Model State Anti-Counterfeiting Bill and suppliers should include provisions statutory requirements set forth in 15 probate hearing in the afternoon, and prepare with Senate and House staff to help push permitting audits of manufacturing U.S.C. § 1116(d), including registration I AM A LAWYER a partner’s outline for an environmental through Congress bills like H.R. 4279, facilities, requiring suppliers to ensure of the trademark with the USPTO and deposition in the evening, this method should the Prioritizing Resources and that genuine goods are not diverted to notification to the appropriate U.S. be lauded as a way for associates to learn Organization for Intellectual Property unauthorized sellers, and prescribing Attorney. A brand owner must quickly, – NOW WHAT? what type of law they want to practice and Act of 2007 (PRO-IP Act), and H.R. how to handle unsold goods, excess quietly, and accurately gather as much with whom they want to practice. 6530, the Trade Enforcement Act of labels, and goods rejected for quality information as possible about the By Matthew D. Austin practice they just want to practice law” is the Although it has taken awhile to get to it, 2008. reasons. Brand owners also should counterfeiter’s activities. The court likely mantra of how most law firms and hiring my point is quite simple: because most of us Many brand owners work to educate closely monitor distribution channels will deny a request for a seizure order if “So what do you want be when you attorneys view rookie associates. don’t know what type of lawyer we will be the public about the harms of such as on-line auction sites (eBay, the brand owner has waited too long to grow up?” is a question that all kids, and As such, third year law students, like until years after we graduate law school, it is counterfeiting and piracy through Yahoo! Auctions, Craig’s List, etc.), trade assert rights, and the defendant may some adults, are asked repeatedly. Kids cattle, go from one on-campus interview to imperative that we learn to practice a type of destroy or hide goods and related typically answer with the usual stock of another and spam the legal market with their law from someone we respect as a good business records if it learns of the broad occupations like a firefighter, clown, resumes and transcripts looking for a practitioner and teacher, and in an impending action. astronaut, doctor, professional wrestler, permanent position. Those same people environment where we feel comfortable. The protection of intellectual property movie star, and even the socially generally accept positions at firms that will Too often young associates graduate law school declaring a subject matter they rights from counterfeiting has received underappreciated garbage man. pay them the most money – and then leave Should a child actually answer that he that firm within five years of graduating law did not like in school (usually because of the increased attention from the public and professor) is not the area of law that they are federal and state government. However, a or she wants to enter the profession that has school (but the inability of firms to retain top chosen us—yes, I say “chosen us” because if talent is a topic for another article). going to practice. Others decide early on in brand owner still bears the ultimate many attorneys knew how the rest of their After accepting a position with the firm their career that litigation is not for them, or responsibility. life will be before graduating law school, that pays the most money, the associate that transactional work is not exciting they likely would have never attended—the quickly learns that practicing commercial enough – usually because of a partner in that answer usually just ends at, “I want to be a mortgage backed securities law for a firm firm. 1. Tiffany (NJ) Inc. v. eBay, Inc., No. 04 lawyer.” Content with that answer, the with over 300 lawyers is a whole lot different Conversely, attorneys stick with an area Civ. 4607, slip op. at p. 2, 56 (S.D.N.Y. questioner typically smiles, says “oh, that than taking Real Property Law from their of law because they admire the lawyer who July 14, 2008). sounds nice” and changes the subject instead school’s most lovable professor. And the is teaching them how to succeed in their 2. Id. at p. 2. of pressing the child to identify what type of reason why it is so much different usually practice. I firmly believe that any area of law 3. Id. lawyer the child wants to become – real boils down to the fact that the associate’s can be fun and exciting with the right people. 4. 18 U.S.C. § 2320(a). estate, divorce, criminal, tax, medical mentors and/or peers at that firm, along with Don’t pigeonhole yourself as a certain type malpractice, nanotechnology, or even a the firm’s culture, support staff, and of attorney because that is the area in which management-side labor and employment expectations are not aligned with those of the you first practiced. attorney. fresh-faced attorney. Rather, find legal mentors (whether The truth is that very few of us No other advanced degree program through a formal bar mentoring program, an [email protected] attorneys actually had any idea of what type follows this progression. Medical schools acquaintance or friend, or an attorney on the of lawyer we wanted to be, even after have physicians perform residencies before other side of a case) who are or can help graduating law school. While specializing in deciding if they want to practice identify great lawyers and great people. Then an area of law in school is a rarity, actually neurosurgery or orthopedics. After taking meet and learn from finding a job in that area is certainly a path general courses, MBA programs have their those lawyers. Their least taken for all except those who have students decide on intensive study specialties passion for what they do prior educational experience (i.e. an advance like finance or marketing. Even PhD is contagious and you, degree in a certain field) or prior working programs expose their students to broader too, will be on your way experience (i.e. a nurse who then goes to law courses before narrowing the field of study to a rewarding legal school is typically highly sought after by down to their chosen focus. career – even if it is as medical malpractice firms). Many progressive law firms now an offshore asset protection trust attorney. Jay A. Yurkiw, Rather than choose the type of law you simply hire warm bodies and have those Porter Wright practice, your main concern after graduating associates be at the beck and call of all austin@ Morris & Arthur law school was getting a job so you could attorneys in all departments of that firm. maslawfirm.com begin to repay your law school loans. “New While typically not spoken highly of by Matthew D. Austin lawyers don’t care what type of law they associates who must work on an insurance Mason Law Firm Co., LPA 20 Fall 2008 Columbus Bar Lawyers Quarterly 22 Fall 2008 23

June 23, 2008) (court orders default judgment after finding discovery violations, PRACTICING LAW IN AN ELECTRONIC WORLD including spoliation). 3. David R. Cohen and Lynn Reilly, E- The Truth Discovery: A Survival Guide for New By Lisa Kathumbi order,” “suspension order,” “freeze 31 billion e-mails are sent out each day 5 Attorneys, Part 2 (July 2008), available at notice,” “hold order,” or “hold notice.” in the United States. However, ESI also http://www.abanet.org/yld/tyl/july08/cohen As recent law school graduates, many of • Metadata. Metadata is data about data. includes spreadsheets, power point 2.html. About What Clients Really Want us had the ability to download bar study The term refers to both innocuous, presentations, and other data in 4. For a more comprehensive list of E- 1 materials to our iPods, completed law school objective information, such as authors, electronic format. By Mark Kafantaris there was no basis to pay the plaintiff because Discovery terms see, The Sedona she could not establish liability. A subsequent examinations, and perhaps even the bar exam dates, and recipients, and “hidden” 3. A gigabyte of data always equals 50,000 Conference Glossary, E-Discovery & from our lap tops, and relied primarily on metadata that can reveal earlier versions, pages. FALSE. While it is possible to In dealing with the courts, we learned fax from the carrier coldly instructed the Digital Information Management, Second early on how to communicate effectively with defense lawyer to take the last offer and close computers and not books or printed materials notes, formulas, and other automatically quantify pieces of your paper, according Edition (December 2007) (available at judges, no matter what their attitude towards the file. He did, and more than a year went by to conduct legal research. Despite the tracked information that may not be to trial lawyer Craig Bell, you cannot http://www.thesedonaconference.org/public us, or the facts of the case. In appellate before his firm received any new files from significant technological advances of the last visible on the printed page. reliably equate a volume of data with a ations_html). argument, we similarly learned to stop dead in that carrier. ten years, few of us, however, left law school • Native Documents. Native documents number of pages unless you know the 5. Stephen D. Willinger and Robin M. Wilson, our tracks – not even finishing our sentence – In both of these examples, the lawyers 6 with an understanding (or even an interest for are documents in their original file composition of the data. Documents in Negotiating the Minefields of Electronic when a judge asks us a question. Indeed, this is acted with admirable diligence, industry, and that matter) in where the data we rely on formats, e.g., Word, Excel, and plain or rich text format or documents Discovery, 10 Rich. J.L. & Tech. 52, 58 our opportunity to engage the court through skill in furtherance of their client’s interests – might reside. PowerPoint. Production in native format saved in Microsoft Word require less (2004). our point of view and advance our client’s or so they thought. Unfortunately, the clients According to the Director of the Legal is not typically advisable because of the storage space than those documents that 6. Craig Bell. Expert Explodes Page position. The same is also true of voir dire had a different idea of what was best for them. Electronic Documents Institute, electronic tracking difficulties and alteration risk.3 are saved in either TIFF or PDF formats. Equivalency Myth, available at when we speak with the jurors and subtly And, as we all must remember, we work for discovery (“E- Discovery”) is “cutting across • Records Retention Period. The length 4. To understand E-Discovery, you need to http://www.law.com/jsp/legaltechnology/pu introduce them to the facts of our client’s case: the client and must abide by their wishes, all the legal demographics of firm size, case of time a given records series must be have a technical background. FALSE. bArticleLT.jsp?id=1186477613170. a theme that is later reinforced in our opening, period. values and attorneys but a significant number kept, expressed as either a time period While it certainly would not hurt, a 7. Brian A. Bender, Slow and Steady Wins the the evidence, and closing remarks. But how can we know what they really of lawyers are still unfamiliar with the (i.e. four years), an event or action (i.e. technical background is not a Race: The Sooner You Learn About In representing our clients, however, we want at any give time? Simply asking them requirements and characteristics of electronic audit) or a combination (i.e. six months prerequisite to learning and Electronic Discovery, the Better, available seem all too eager to take charge from the very would tell us. We spend plenty of time chit- discovery.”1 With only a handful of law after audit). understanding E-Discovery. at beginning in fashioning complex remedies, chatting with other lawyers while waiting for schools currently offering E-Discovery • Spoliation. The destruction of records 5. Even inactive business records must be http://www.harrisbeach.com/news/articlevi filing intricate pleadings, writing memos and our case to be called. Why not take a few correspondence, taking depositions and minutes to feel out the client on what he courses, new attorneys, in particular, may or properties, such as metadata, that may maintained for purposes of audit, ewer.cfm?aid=460. find themselves without much information be relevant to ongoing or anticipated analysis or future litigation. TRUE. 8. otherwise orchestrating a myriad of variables ultimately wants to see happen as well. If For an in-depth overview of the E- in prosecuting or defending their case. Being nothing else, it would show respect for his regarding the rules, specialized vocabulary litigation, government investigation or Although inactive records are closed, Discovery Amendments to the Ohio Rules and acronyms that surround E-Discovery. audit. Courts differ in their interpretation completed, or concluded activities thus in control of this entire production, it is wishes while also putting in check the “I know of Civil Procedure, see often easy to lose sight that the case in fact what’s best for you” attitude that so often gets Failing to gain at least a basic of the level of intent required before which are no longer routinely www.bricker.com/publications/articles/123 understanding of E-Discovery can, however, sanctions may be warranted. referenced, they must still be maintained belongs to the client – whose ear we must in the way. 0.pdf. have, and whose changing wishes we must And if you have missed the opportunity TIFF. 9. have significant consequences. Evidence of • An acronym for “tagged image under records retention requirements for For more E-Discovery basics and monitor throughout our representation. to ask, do not assume to know the answer, no destruction or failure to produce file format,” a common format for reasonably anticipated litigation, resources, see the Electronic Discovery Take, for example, the young lawyer who matter how perceptive you may be on human electronically stored information (“ESI”) producing ESI. Native documents can government investigations and audits. Resource Center, available at was representing a housing complex in a behavior, or how well you know your client’s during E-Discovery can lead to costly be converted to TIFFs to standardize 6. The sanctions imposed for violating E- http://www.bricker.com/legalservices/practi mundane eviction case for nonpayment of rent. affairs. Clients’ priorities change, and penalties, sanctions, and loss of the lawsuit as them, allow automated numbering for Discovery production rules are minimal. ce/litigation/ediscotech/resources.aspx. As others before it, he diligently filed the sometimes they change overnight. As the a whole.2 control purposes, and reduce the risks of FALSE. In January 2008, a court complaint and the matter was set for an early mouthpiece for our client, we need to be in There is a lot to learn, but first, the alteration. Although there can be sanctioned Qualcomm in the amount of [email protected] morning hearing. The housing manager had tune to their needs and goals as they see them basics. benefits to reviewing in native format, $8.5 million for failing to find and not yet arrived when the magistrate called the Communication is the key. most productions occur in TIFF, or produce electronic documents requested case, but the tenant was there and explained ABA studies repeatedly show that the Common Terms. occasionally in PDF (portable document during discovery. The attorneys in this that she had just received her income tax chief complaint among dissatisfied clients is • Electronic Discovery or E-Discovery. format).4 case were initially sanctioned as well. refund and could now pay the entire arrearage, unreturned phone calls. Clients want a The process of collecting, preparing, a month’s advance rent, as well as court costs response within twenty-four hours. Call them reviewing, and producing electronically E-Discovery Myths and Truths. Five or ten years ago, a proficiency in and attorney’s fees. “What more could a and let them know you have been in court all stored information (“ESI”) in the 1. E-Discovery is only important to Excel or PowerPoint was “resume-worthy.” landlord want?” the young lawyer thought, and day, that you have been working on a brief or context of the legal process. litigators. FALSE. While learning the Now, it is assumed that most people have he advised the magistrate that case was memo, or that you have had a lousy day and • Forensic Copy. A forensic copy is an details and intricacies of E-Discovery these proficiencies.7 With the proliferation of resolved and entered the settlement on the need to go home to clear your head. Whatever exact copy of an entire physical storage may not be the best use of time for a technology and the ongoing development of record. As he was leaving the courthouse, the the circumstance, be sure to talk to them. media (hard drive, CD-ROM, DVD- transactional attorney, a peripheral new rules governing electronic information,8 housing manager was just walking in and the Clients can be very understanding and ROM, tape, etc.), including all active understanding of E-Discovery terms and the same is likely going to soon be true of E- young lawyer began to tell him of how he accommodating so long as they feel they are and residual data and unallocated or concepts will prove beneficial to any Discovery. Although learning E-Discovery settled the case. “I wanted her out,” the not being ignored. Even if you cannot talk to slack space on the media. Forensic attorney in this technologically information may appear to be a daunting task, manager said with a stone face. That was the the client yourself, have someone in the office copies are often called “images” or advanced information age. Lawyers who the reality is that as young attorneys we will last eviction case the young lawyer got from call and listen to them. Sometimes, explaining his client. what happened is enough to bring about a “image copies.” do not take the time to understand the be practicing in an electronic world for the 9 Even a seasoned litigator can miss the sense of closure to the matter that prompted • Gigabyte. A gigabyte (or Gb) of data is implications of E-Discovery cannot vast majority of our careers. “cue” in figuring out what the client wants. At them to call in the first place. As a last resort, a large quantity of data—a gigabyte of properly advise clients about their issue in the auto accident negligence case was write them a brief note and follow-up later “native” ESI can translate to document retention policies (which whether the defendant’s headlights were on at with an actual call. 50,000–75,000 pages, depending on the matter even absent pending litigation). 1. Tom O’Connor, Electronic Discovery the time of the collision. The defendant could Lack of frequent communication leads composition of the data, or about 20–30 Moreover, they cannot be sure that they Survey of Illinois Attorneys Shows a Few not remember, and plaintiff’s counsel claimed people to foolishly guess about another’s standard boxes. A gigabyte is 1,024 have carried out their own obligations, Surprises (May 1, 2008, available at that they were off. This experienced lawyer, wants, needs, or aspirations. With the mobile megabytes. A terabyte is 1,024 or guarantee that their own employers’ http://www.chicagolawyermagazine.com/2 therefore, had the bulb filaments examined, age of technology, there is no need to guess gigabytes. electronic data is maintained and 008/05/21/electronic-discovery-survey-of- which showed that the lights were on, and the anymore. Just call, talk, and listen. You will • Legal Hold. A legal hold is a disposed of properly. illinois-attorneys-shows-a-few-surprises/). defendant was not negligent in that regard. not only have more satisfied clients, but also communication issued as a result of 2. Email is the principal type of 2. See e.g., Qualcomm Inc. v. Broadcom Corp Elated with the good news, the lawyer wrote very loyal ones who will pass half a dozen current or reasonably anticipated electronically stored information 2008 U.S. Dist. Lexis 911 (S.D. Calif. the carrier a letter advising that they should other offices to come to yours. litigation, audit, government (“ESI”) offered into evidence in 2008). (court imposes steep penalties and only offer nuisance value to the plaintiff. The investigation, or other such matter that litigation. TRUE. This probably comes refers counsel to state bar for discipline for claims manager called back, however, and told suspends the normal disposition or as no surprise as email communications E-Discovery violations); The Southern the lawyer to accept the plaintiff’s last 1. Mark would like to thank the attorneys who processing of records. A legal hold may today, in virtually every industry, are New England Telephone Co. v. Global Lisa Kathumbi, demand. Believing this instruction to be in generously shared their experiences with also be called a “hold,” “preservation ubiquitous. One study has estimated that Naps, Inc., Case No. 04-2075 (D. Conn. Bricker & Eckler error, the defense lawyer wrote back insisting him. 24 Fall 2008 25

Instructions Included: Legal Writing Tip of the Month Always Consider Jury Instructions Aid Your Readers with Before Going To Trial Effective Document Design “reasonable doubt.” The best place to start is OJI. The Committee, which consists of By Jameel S. Turner • Use Plenty of White Space • Justifying judges and attorneys, updates OJI regularly to reflect statutory changes and intervening Many new lawyers spend endless hours White space is an important aid to Setting text “flush left, ragged right” legal opinions, while incorporating researching and writing important legibility. Use wide margins (at least increases a document’s readability impressive collective experience and documents and pleadings without spending 1.25 inches) and plenty of room at the because the space between words stays offering consistency across the judicial ample time giving thought to effective top and bottom of your page. even, and the reader knows system. Almost all Ohio judges expect you document design. The best-written legal immediately when he or she has come to start with OJI, but it is just the beginning. document, even if written in plain English • Use Bulleted and Numbered Vertical to the end of a line. Nevertheless, if ury instructions are not just a guide for the jury; they are Starting with OJI, and looking at the with no legalese, will not be effective – and Lists you like the look of full justification complaint, answer, and other pleadings, will perhaps will not even be read – if it is poorly (even vertical lines on each margin) Jthe one means of communication you have with the jury help you determine every instruction the designed. In law, effective document design Sometimes the best way to present then turn on the hyphenation function jury will need, from the basics (province of is almost as important to a reader as good information the reader can digest is to of your word processor to reduce the while it is deciding your case, and you want the jury to hear the jury, burden of proof, etc.) to the issues writing. No matter what message a writer is make a list. Bulleted and numbered odd gaps and spaces between words. specific to your case. For example, in a trying to convey, the message will come lists also add emphasis to the text.1 Your readers will appreciate it. your voice in the instructions. breach of contract case, the jury may need to across more effectively if it is delivered in a be instructed on offer and acceptance, partial properly designed document. • Choose a Typeface for Readability performance, material breach, affirmative The following tips highlight the role 1. Teri Mester, Workplace Writing. Gregg’s defenses, damages, and more. You don’t that document design plays in effective legal Typefaces with a serif (small strokes at Reference Manual, 2006. want to offer instructions that are not writing. the end of characters) are generally 2. Wayne Scheiss, Writing for the Legal relevant, but don’t forget to instruct the jury easier to read than sans-serif typefaces. Audience, Carolina on every issue that is critical to your case, • Give Visual Cues Using Times New Roman 12-point type Academic Press, and to define any words that are part of an may not be the ideal typeface for your 2003. By Nicole VanderDoes as the substantive law of the instructions. instruction. Conversely, once you start Let your reader know where to start document because it is so dense it However, it is imperative that you approach drafting your instructions, understand that reading, and where to continue reading. makes the text look crowded. Try a 12 Jameel.Turner@ You’re preparing for trial. You’ve jury instructions from the perspective of the OJI doesn’t provide every instruction you Headings, subheadings, initial capitals, point serif font, such as Georgia, and baileycavalieri.com practiced your opening statement, you can’t court. This means all instructions must need. For example, in a breach of contract and even numbered paragraphs can act note how much more readable your wait to impeach the other party, your accurately and objectively state the law, case, there may be an issue of contract as important signposts throughout the document becomes. Choose clear witnesses are prepared, you’ve thought while citing authority, not be argumentative, interpretation. OJI provides a general text. Visual cues must be consistent typefaces for your main text. Quirky or about voir dire questions, and you know and should be agreed upon if possible. In instruction on contract interpretation, but it throughout your document. Headings unusual typefaces can add character to how to admit your evidence. You’re ready to this way, you will have much greater success does not instruct the jury that any ambiguity and subheadings should be descriptive covers and headings, but should not be Jameel S. Turner, go. But you’ve forgotten something. obtaining agreement of the parties, or shall be construed strictly against the drafter, and detailed. used for main text.2 Bailey Cavalieri Without effective jury instructions, you have getting the court to adopt your instructions if which may be critical. Then, you will want forgotten the one element of trial preparation competing instructions are submitted to the to propose an instruction that accurately that will undoubtedly influence how the jury court. states the law and cites to proper authority decides the case. Don’t assume that the court will ask for concerning interpretation. Judge John Bender, Co-Chair of the your input or even mention jury instructions When it is time to submit your draft to Ohio Judicial Conference’s Jury Instructions prior to the time it starts reading them to the the judge for consideration, the court is more (OJI) Committee, says that jury instructions jury. Civil Rule 51 gives you the right to likely to adopt your instructions if they are are “the roadmap the jury follows when propose jury instructions, and you should submitted in a user-friendly format. This deciding the case.” So the jury instructions exercise this right. You should also object to means you should generally submit an ought to be your roadmap as well, and you any questionable instruction as the failure to electronic copy so the court can make need to know where you’re going from the object prior to the jury retiring waives the changes, and by drafting one instruction per outset, not on the eve of trial. When you are issue on appeal. While you have the right to page, the court can easily substitute thinking about filing a complaint, according propose jury instructions, there is no instructions, while using your proposed to Judge Bender, the very first action you guarantee that the court will adopt them, or instructions as the foundation. should take: “Go look at OJI!” This is the even truly consider them. However, Civil Finally, and most importantly, always only way to know exactly what you have to Rule 49 requires that the court submit ask what each judge’s preference is with prove and by what standard. Considering interrogatories to the jury upon the request regard to jury instructions, including timing, jury instructions early will allow you to of any party prior to argument. Not only can format, sources, prepare effectively throughout the process, interrogatories frame the issues for the jury, permitted argument, and provide the jury with the facts it needs but submitting interrogatories along with and when and how the to apply the law in your client’s favor. proposed jury instructions can encourage the judge will deliver the Jury instructions are not just a guide for court to seriously consider your jury instructions. the jury; they are the one means of instructions because it must consider your communication you have with the jury while interrogatories. nvanderdoes@ it is deciding your case, and you want the Jury instructions are a task that is often lnlattorneys.com jury to hear your voice in the instructions. delegated to new lawyers, and you may not This may include how you refer to the know much about jury instructions beyond a parties, the order of your proposed vague memory of the cases in law school Nicole VanderDoes, instructions, syntax and word choice, as well debating the proper instruction on Luper Neidenthal & Logan 26 Fall 2008 27

How Do Young Lawyers Rate Communication? Telecommuting and Flip-Flop Fridays: By Janica Pierce • “Topics that could offend or create a hostile working Where does an associate know to draw the environment relative to race, gender, religion, sexual preference, etc.” “One of the problems with communication . . . is the illusion (4) How do you feel about utilizing the open door policy? that it has been accomplished.”1 Communication is the act of Selected responses: line on casual dress and working from home? individuals speaking and listening to one another. In the workplace, we see communication through body language, demeanor, media, • “Completely comfortable.” • “Fine, though I have enough experience that I’m not easily By Bree Brown minimum, to the knee, and should not appointments, drive during off-peak such as e-mail, and written and verbal communication. 4 Communication differs in terms of what is the point of discussion. It intimidated.” reveal the thighs when sitting. hours to prevent wasted time. seems that with the increased use of emails and text messages, the • “It depends on the partner.” New lawyers face questions and Tops such as button-down cottons and 3. Pay attention, do it right, and do it way to communicate has taken on a whole new genre. The • “There is no confidentiality if you do utilize the policy.” concerns different from those from just a collared polo shirts are acceptable once: When discussing plans or • “I think it is essential to capitalize the resources and taking instructions, listen carefully Columbus Bar sent a survey to new lawyers (lawyers that have few years ago. With the increased use of business casual wear for both genders. T- experiences at the firm to have an open door policy.” and repeat them back to ensure that practiced zero to five years) to determine how they rate business casual days, and the availability shirts and apparel with logos are usually • “It depends on what the issue is. I feel fairly good about of telecommuting, new lawyers must not considered appropriate for the office, you understood each other. communication with partners, support staff, and respective open door communicating to the office manager about strictly business related 4. Stay organized and keep up with policies. balance both their wardrobes and home unless the shirt is branded with the issues, but am not comfortable discussing anything that could offices unlike their predecessors who had company name, and even then, such shirts filing: Establish a paper and potentially disrupt the office politics, which have been in play long a staple of three-piece suits and worked may be inappropriate for a law office. electronic system to prevent wasting As a new lawyer in a new place, communication with partners before I was hired on. I do not feel comfortable addressing sexual or time and to find things when you might be intimidating. However, it seems to be less stressful in only where their phone, typewriter, and Tank tops and cut-off shirts should be other inappropriate comments because they are so commonplace and assistant were. In both instances, we want avoided. Patterns and prints for business need them. organizations who implement an open door policy that allows young I don’t want to be singled out as being too serious or not a team to be respected and productive. What is a casual attire should be subdued; subtle 5. Improve efficiency through attorneys to communicate on all matters. player.” technology tools: Look for ways that • “I think it is a great tool. It provides great mentoring for new lawyer to do? stripes are acceptable, while vibrant “Business casual” dress code has tropical patterns are typically not.5 technology can increase your Ninety-one participants responded to the survey conducted by younger associates and gives a sense of equality among associates effectiveness, rather than thwart it. and partners.” become a staple of the office. However, An extension of relaxed dress codes the CBA. The results are as follows: 6. Set up an automatic follow-up • “Most partners are very willing at any time to sit down and the term is somewhat nebulous, and leads in the office is the increased use of system: Use this system for (1) How would you rate the level of communication between talk – it’s easy to ask.” to widespread confusion and a host of telecommuting. Beyond the occasional • “I would feel awkward if I were an associate, that is why I fashion faux pas. Fifty-five percent of dress code questions when visiting the commitments made by others, follow- you and partners who provide you with assignments? Very Good: up calls, proposals and letters, and 25.6% Good: 40.0% Fair: 27.8% Poor: 6.7% chose to start my own practice.” employees consider tank tops and exposed main office, telecommuters must also • “I would not use the ‘open door’ policy to discuss firm-wide undergarments the season’s top work-wear figure out how to maintain a daily ritual general reminders. issues such as the retention of women and minorities, the direction of 7. Be prudent and frugal with your time: (2) Does your employer have an open door policy? Yes: 96.7% mishap, according to an April, 2007 and set up a workspace at home to create a the firm, attrition, etc. I would use, and have used, the open door Allow enough time between No: 3.3% survey by Monster, an online career and professional environment. Some policy to discuss specific issues relating to projects and work recruitment resource. Nearly 30% cited companies, such as Merrill Lynch, have obligations and be prepared to say no assignments.” to activities outside your priority list. (3) Are there topics of conversation that are not appropriate for flip-flops, while just 8% were put off by specific training programs for • “Uncomfortable. Open door policies are generally smoke Hawaiian-print shirts.1 telecommuters.6 the workplace? If yes, please provide examples. No: 27.3% Yes: screens for good-ole boy networks. They tend to be useful/effective A photo of Northwestern University’s Merrill Lynch’s two-week program With the proper attire, resources, and 72.7% Selected examples: only in very large corporations, which create extensive paper trails national championship women’s lacrosse allows employees to work in a simulated time management plan, a new lawyer can for every conversation, etc.” team, taken during the athletes’ visit to the home-office environment. There, they be successful at home and on casual days • “Conversations that would make others feel uncomfortable – • “It is difficult to say what is on your mind to a superior even White House in July, 2005, shows four of interact as if actually working from home, at the office. i.e. about someone’s sex life, emotion/mental issues if they are though there is an ‘open door’ policy.” the nine women in the front row wearing providing opportunities for the company unrelated to work.” • “Our firm’s open door policy is a cornerstone of our culture. flip-flop sandals along with their dresses and employees to work out any kinks in • “Intimate details of relationships; the crazy drink you had on It promotes a team atmosphere, fosters productive working 1. http://www.usatoday.com/money/ and skirts. This photo sparked a the arrangement. vacation; foul language, etc. More importantly remembering that relationships, and makes our office a pleasant place to work.” workplace/2007-07-09-business-casual- nationwide controversy on “proper attire” Creating the ideal home work space going to lunch with co-workers is not all that different from being in attire_N.htm for work and special events. with the requisite equipment is very the workplace and the same common sense topic decency rules (5) How would you rate the level of communication between 2. http://humanresources.about.com/ A company’s objective in establishing important. Many companies provide should apply.” you and your support staff? Very Good: 42.2% Good: 37.8% Fair: od/workrelationships/a/dress_code.htm a business casual dress code is to allow computer equipment to the telecommuter • “Generally understood norms of decency, prejudice behavior 16.7% Poor: 3.3% 3. http://www.wisegeek.com/what-is-meant- employees to work comfortably in the in order to assure compatibility with the and statements.” by-business-casual-dress.htm workplace. Yet, employees still need to main office. Merrill Lynch spends • “Discussing politics – particularly who you are voting for; Based upon the survey results, the majority of new lawyers rate 4. Id. their communication with partners and support staff as “very good” project a professional image for approximately $7,000 per telecommuter providing too much personal information about yourself to a co- 5. Id. or “good.” The consensus is that open door policies are a benefit to customers, potential employees, and for equipment and the aforementioned 6. http://findarticles.com/p/articles/ worker.” the workplace. However, more than half of the respondents are 7 • “Compensation, bonuses, benefits, etc.” community visitors. Business casual dress training. mi_m1365/is_11_29/ai_54783779/pg_1?t reluctant to use it. Most of the respondents opined that despite the 2 is the standard for this dress code. At a minimum, most telecommuters ag=artBody;col1 benefits, an open door policy is not widely used because of the A general rule of thumb for business need a computer and printer, compatible 7. potential repercussions, such as breach of confidentiality as to what is Id. casual is that the individual should be software, a phone, an ergonomic desk and 8. http://career.jobboom.com/work-life/time- discussed or the possibility of the employer using the information in a neatly dressed, well put together and chair, and appropriate lighting. Fax manner that will jeopardize the attorney. management/2007/08/08/4403914- professional looking. If you are ever capabilities and Internet access are also sun.html unclear on company policy about business beneficial. Make a list of everything you In my opinion, an open door policy is one in which an employer casual dress, ask to see a dress code or need and identify what items you’re creates an environment where employees are encouraged to feel [email protected] comfortable to discuss any issues that affect their talk to a supervisor about acceptable office willing to provide. Many employers have work performance – from lack of understanding wear. surplus equipment that can be used for on a task given or a problem with a co-worker – For both men and women, clothing telecommuters, so don’t overlook this without repercussion or confidentiality concerns. should have a good fit. Clothing should option. A firm or organization that adopts an open door not be too tight or loose, and should not be Finally, a common issue for the policy embraces and believes in effective too revealing. In addition, clothing should telecommuter is proper time management. communication. be pressed and in good condition, meaning Some suggested tips from Telecommuting that it has no fading, holes, or dangling Success: A Practical Guide for Staying in threads, and is also wrinkle-free.3 the Loop While Working Away from the 1. George Bernard Shaw Slacks such as khakis are acceptable, Office, by Michael Dziak8 include: as are pants made from cotton, micro 1. Keep an active to-do list. [email protected] Janica Pierce, fiber, and summer weight wool. For 2. Don’t waste time in traffic: When you Bree Brown Chester Willcox & Saxbe women, all skirts should fall, at a go into the office or schedule State of Ohio Auditor’s Office 28 Fall 2008 29

Book Review: The Lighter Making Your Case: The Art of Persuading Judges, Side of Law by Antonin Scalia and Bryan Garner

Reviewed by J. H. Huebert

Let’s put the bottom line first: is the new book by Justice Scalia and Bryan Garner worth reading and owning? Yes. Scalia and Garner have created a unique work that is essential reading for any focused on what actually will persuade By Mark Kafantaris this type are so clearly within the inherent Productions was a case involving lawyer, young or experienced. In about 200 judges. power of the Court” that they are non- Hormel’s claim that a wild boar character pages, they offer guidance on virtually all Too much material on legal writing Our profession is a serious one, full controversial and require no specific legal named Spa’am featured on merchandise facets of written and oral advocacy. comes from an academic’s perspective, of lasting consequence and human authority. for the film Muppet Treasure Island had First, they cover “general principles of basing its recommendations on research complexity. Indeed, it is the very nature of The Ninth Circuit Court of Appeals the effect of diluting and infringing its argumentation.” Which arguments to put regarding which fonts, font sizes, font young lawyers to take ownership in the has also shown its lighter side on trademark for the notorious SPAM first, last, and in the middle? How much to combinations, and line spacings will allow a various problems facing our clients as if occasion, though it has a tendency of luncheon meat. The opinion was certain to concede? Should you call your opponent reader to get through a brief the fastest. Such “gender neutral” language. I strongly agree they were our very own, and we are hiding its humor carefully in footnotes. recount the countless jokes about SPAM’s “the Plaintiff” to depersonalize him? How guides overlook the fact that judges do not with Scalia – but put my personal preference oftentimes incapable of putting down a For instance, in Fair Housing Council vs. suspicious contents. The Court ultimately best to conclude? The authors address all want you to reinvent the wheel – and few aside when writing a brief, because one file after laboring over an issue for hours. Roomate.com, the Court was called to was confounded by the challenge, noting, this and much more, drawing on their own things are as likely to slow a judge down as never knows whether a judge will take Much to the chagrin of our friends and review de novo the district court’s “One might think Hormel would welcome offense at the use of “he” alone. A lawyer’s ideas and experience as well as ancient and a brief that looks different from every other families, these cases become inescapable decision finding that an on-line roommate the association with a genuine source of duty to his client requires using the language modern experts on rhetoric. brief he has ever seen. long after we leave the office for the day, match website did not fall within the pork.” The district court’s decision The next section discusses legal The difference between the academic that’s less likely to cause offense – even if denying Hormel’s request for a the offense is not intended or, in the and even tend to linger in our sleep on ambit of the Communications Decency reasoning – how to think syllogistically, and and practical perspectives on legal writing is occasion. The arrival of sophisticated cell Act. In sorting through the evidence, preliminary injunction was affirmed on how to establish your premises so judges evident at several points in the book where lawyer’s view, not warranted. appeal. Of course, judges are supposed to phones capable of sending and receiving Judge Alex Kozinski noted that in some will reach your desired conclusion. Scalia and Garner write separately because e-mails at all hours of the day certainly instances, “folks are just looking for Perhaps the most entertaining The section on briefing offers decide questions based on substance, not they disagree. have not ameliorated these concerns. As someone who will get along with their decisions have been authored by Ohio’s extensive advice on “architecture and style. And from my own experience as an One of their disputes concerns the we all can attest, it takes little convincing significant other,” with a footnote to one very own Judge Mark Painter, of the First strategy.” A sample: the authors suggest that appellate law clerk and attorney, I know that placement of citations: Garner holds the for the young lawyer to fully appreciate particular posting in the record stating District Court of Appeals. Judge Painter you always put a statement of the questions unconventional view that citations should be judges and their clerks ultimately look for the right answer – they don’t decide cases by the important nature of our work. “The female we are looking for hopefully had this to say in a case involving a presented at the very beginning of any brief placed in footnotes, but Scalia wants taxpayer’s lawsuit against Cincinnati unless the rules forbid it. You should also keeping score on stylistic points. These proclivities notwithstanding, wont [sic] mind having a little sexual citations where they’ve always been, in the Oscar Wilde may have been on to incounter [sic] with my boyfriend and I Reds, Cincinnati, and Hamilton County always include a summary of argument if body of the text. But style still matters, because you want to remove barriers to a judge something when he reminded us “life is [very sic].” (emphasis added). for failure to collect stadium rent: “It has the rules allow. And, of course, the authors Garner may be right about the twisted and turned, parties have been have much to say on writing style. understanding clearly why your position is far too important to be taken seriously.” The Georgia Court of Appeals has theoretical advantages of footnoted citations Judge Pendelton Gains, of the Arizona also made some interesting use of its thrown out and substituted, and none of The book covers all facets of oral (I am skeptical), but Scalia wins the the right position. Superior Court, no doubt understood this footnotes in Wright vs. State of Georgia the parties can agree on the rules of the argument: preparation, substance, the argument by pointing out that “the Yes, some of what’s in this book has as well in granting Plaintiff’s Counsel’s Dep’t. of Natural Resources, a case game. The Reds, Cincinnati, Hamilton manner of argument, how to handle conclusive reason not to accept Garner’s been covered elsewhere by Garner and others. But I’ve never seen the topic of how Motion to Compel Defendant’s Counsel to involving an alleged unconstitutional County, the taxpayer-plaintiff, and the trial questions, and what to do afterward. The novel suggestion is that it is novel.” Scalia court have become enmeshed in a series of authors address questions any advocate is reminds us that our focus must be on serving to persuade judges addressed so concisely Accept Lunch Invitation, ostensibly to taking of Georgia alligators by the newly and thoroughly in one place by figures of discuss “discovery and other matters.” enacted policy of Georgia’s Department of procedural and legal double plays and likely to have, and some questions you the client. As he puts it, “You should no errors. It is difficult to determine whom, if might not otherwise think of. What to take more try to convert the court to citation-free such great authority. I expect to return to it Though Defendant’s counsel initially Natural Resources. All too mindful of the often before preparing briefs and giving demurred, fearful that the lunch was a intense rivalry between the University of anyone, is on first. We resolve the case by with you to the lectern? (An empty manila text at your client’s expense than you should calling the plaintiff out.” folder, nothing more.) How to handle a try to convert it to colorful ties or casual- arguments, and I suspect you will, too. disguised attempt at settlement Florida Gators and University of Georgia negotiations, he eventually made an Bulldogs, Judge Smith explained in the difficult judge? (Politely.) What to wear? Friday attire at oral argument.” [email protected] (Not a sport jacket.) Their most important The authors’ dispute over the use of [email protected] “illusory acceptance by saying ‘We would first footnote that “several times in this piece of advice may be that your contractions in legal writing is similar. love to have lunch at Ruth’s Chris opinion, we refer to ‘Georgia alligators.’ “argument” should really be a conversation Garner favors it because it makes for easier with/on…’ Plaintiff’s counsel.” Of course, We do so reluctantly and solely for the with the judges, much like the conversation reading and a more natural style. Scalia the Court was confident that defendant’s sake of convenience and brevity. We you would have if you were explaining the opposes contractions because you have counsel could “withstand Plaintiff’s recognize that for literally millions of case to an intelligent senior partner at your nothing to gain, and much to lose, from counsel’s blandishments and to respond Georgians and Floridians, the term firm. using them. No judge will see a lack of sally for sally and barb for barb” to any ‘Georgia Gators,’ or any approximation The book stands out not only for its contractions as too formal, but some judges attempt at negotiations. The lunch was to thereof, is an inherently offensive comprehensive advice on all of the above, may view the use of contractions as too have been held not later than August 18, oxymoron. We apologize for any pain or but also for its own style – it’s a reference informal. 2006, the Court being fully aware of “the distress caused by this unfamiliar and work, but it’s also a pleasure to read straight Scalia comes out on the wrong side of penchant of Plaintiff’s counsel to take unfortunate juxtaposition.” through. one of these disputes, though, by his own extended cruises during the summer The late Judge Ellsworth Van Another great advantage of this book criteria. Scalia recommends using “he” as months.” Though the Court was unable to Graafeiland has proven that even over other works on legal writing and the “traditional, generic, unisex reference to J. H. Huebert find any support in either the Civil Rules intellectual property law can have a lighter Mark Kafantaris, appellate advocacy lies in its subtitle: it’s a human being,” while Garner insists upon Porter Wright Morris & Arthur or case law, it concluded that “motions of side. Hormel Foods Corp. v. Jim Henson Kafantaris Law Offices 30 Fall 2008 31

Getting to Work: It’s as Easy as Tis the Season: Riding a Bike A New Lawyer’s Guide to Holiday Party Navigation If you can’t keep your bike dry, at least be sure you keep it. Leaving your bike By Michael E. Heintz • DON’T: Underestimate your ability to jump into a conversation. outside is fine if you secure it properly. Find a It will be strange the first few times, but with practice, it will get solid object, a street sign, or a post. Lock up Office and client holiday parties are an excellent opportunity to easier. in a well-lit area with lots of pedestrian build your professional network, connect with the client you have traffic. Make your bike more difficult to steal been looking for an “in” with, and catch up with friends and • DON’T: Dominate the conversation. If someone wants to know than the other bikes around it: a U-lock plus a colleagues in the community. The parties are also a great training what you are working on, he or she will ask. Try to avoid “shop cable or chain lock will deter all but Harry ground for future marketing and business development work. The talk” at social functions; everyone needs a break from business Houdini. atmosphere is generally relaxed and open, with colleagues looking to now and again. Keep the conversation light and upbeat. Unless introduce the people they know. As attorneys, we are expected to the party is to celebrate your retirement, it is not about you. If Riding safely (and legally) operate well in social situations, and for those expected to develop you do not have anything to add to a particular conversation, just The safest way to travel by bicycle is as business in later years, the skill is critical. So how do you take hang back and wait for your moment. By Paul G. Rozelle COTA buses have bike racks), or drive to a if you were operating a car. Under R.C. § advantage of an opportunity presented on a silver platter complete park-and-ride lot and bike the rest. 4511, a bicycle has the same rights and with a few meatballs and a martini? • DO: Attend your departmental or office gathering. While adding Spiraling gas prices. Frustrating traffic responsibilities on the road as a motor You may just have your office’s party to focus on, where you are one more party to the calendar may be undesirable, your absence jams. Expanding waistlines. Environmental Carrying your stuff vehicle. The law requires that you to be as far hosting clients and other guests. Or, you may have several parties to from this one may be conspicuous. Your co-workers will degradation. There are many reasons to We attorneys carry lots of stuff: files, to the right as you consider necessary to attend throughout December. While each experience will be different, appreciate seeing another side of you, and you never know where consider cycling to work. It’s inexpensive, books, lunch, laptop, change of clothing, etc. operate your bike safely. If you see road your next project may come from. fun, healthy, and environmentally sustainable. There are two approaches to schlepping your debris, broken pavement, parked cars, another the following list of “do’s” and “don’ts” should help avoid an It’s also catching on: an increasing number of stuff: “messenger style” and “tourist style.” cyclist, or anything that makes you embarrassing mistake while taking advantage of excellent opportunities. • DO: Thank the person who invited you. Make your mother attorneys and business and community leaders Messengers keep their bikes light, uncomfortable, move to the left. Give proud, and leave a good impression. bicycle to work. Although you’re intrigued by carrying weight on their bodies in a backpack yourself a safety cushion around those the idea, the challenge is getting started and or a cycling-specific messenger bag. Riding hazards. Take as much of the lane as you • DO: Take your business cards and a pen. In repeating the networking theme, make sure people know who you are. While some of these “rules” may seem obvious, or in some cases sticking with it. Here are some tips: “messenger style” makes it quick to get your need to be safe. flippant, they underscore a larger issue for new lawyers. Early in your stuff on and off the bike. Timbuk2 Similarly, on the business cards you receive, write down the date and location where you met the person, and if they have a career, holiday parties are a “high risk-high reward” proposition. They The Bike (http://www.timbuk2.com) makes great Minimize risks by following four easy are an excellent resource to increase your network and generally You can commute on just about any messenger bags and backpacks. Locally, rules: nickname. Or, carry some note cards with you and do the same when a card is not forthcoming. You will be glad you did when practice meeting people on your own. On the other hand, they are an bicycle: mountain bike, road bike, hybrid, Seagull Bags (http://seagullbags.com) makes opportunity to embarrass yourself, your clients, fixed-gear track bike, or fat-tired cruiser. Most custom bags that are works of art and haul 1. Be visible. Wear bright clothing and you are trying to organize all the great contacts you made come January 2. your colleagues, and your office. As new importantly, get a bike that you feel your gear, too. position yourself in the lane where you lawyers, we need to be comfortable with the comfortable on. Visit your local bike shop, Bike tourists carry weight on their bikes can be seen. Use lights and reflectors if thought of socializing, and more importantly consult with the staff, and think about how instead of their bodies, using racks and riding at night. • DON’T: Say you will attend a party and then skip it—your nametag will look lonely on the table at the end of the night. As networking, with clients and co-workers. Holiday you will use the bike, how far you’ll be going, “panniers.” By going “tourist style,” you can parties are as much art as they are science. No clients and colleagues invite you, make every effort to attend and what you need to carry, and the conditions carry more stuff, more easily and comfortably, 2. Be predictable. Maintain a consistent, one set of rules works for everyone, and you need show your appreciation for the invitation. Especially with you’ll be riding in. Get a bike that fits you and over a longer distance than you could on your steady line of travel so that drivers can to develop your own style and method to enjoy clients, an in-person visit is always the best way to reinforce a your needs. body. There are even cycling-specific garment anticipate your course and pass safely. and profit from the opportunities. Good luck, and bags for carrying dress clothes. Check out Obey all traffic laws. Be attentive. relationship. happy holidays! The Route Two Wheel Gear Michael E. Heintz, As drivers, we get from here to there (http://www.twowheelgear.com) or Jandd 3. Communicate. Use hand signals to • DO: Meet your clients at the entrance. If you invited people to [email protected] Porter Wright Morris & Arthur quickest using roads with high-velocity traffic. Mountaineering (http://www.jandd.com) for indicate turns, make eye contact with your office party, make sure you are there to greet them. This Potholes? Rough pavement? Dangerous ideas. motorists, and wave when a motorist part is non-negotiable. At the same time, do introduce them to intersections? Not problems in your SUV, Whichever route you take, reduce your yields to you. your colleagues. Return the favor of being introduced to others. these are very real dangers to even the most load by storing dress clothes, shoes, seasoned cyclist. accessories, etc. at work. Bring clean shirts, 4. WEAR A HELMET! • DO: Strategically map out your holiday party schedule. You So, don’t think like a motorist; think like slacks, or skirts in your bag, or bring a supply may end up with multiple obligations in one night, or several in a cyclist. Use roads with slower — and thus of clean clothes to the office on non-riding Finally, one of the best ways to learn a week. Take a few minutes to develop your playbook, and less abundant — traffic, more trees, and days. about bicycle commuting is to ask one of us remember that your energy will fade through the month. Who interesting scenery. (These are roads you, and existing commuters for advice. We’re a needs more attention? Where are they located? Which one do your fellow drivers, never use to get to work!) Securing your ride friendly bunch, and whatever your dilemma, you need to be seen at and which can you breeze in for a few Check out Bikely (http://www.bikely.com) for Keep your bike safe from the elements we’ve faced it, too. I’m quick “hello’s?” cyclist-friendly route ideas, and seek advice at and thieves. If you’re lucky, your workplace glad to be a resource, so local bike shops and bike clubs. Consider will have a covered parking garage with a just holler with • DON’T: Drink too much. Rest assured, whatever you’re whether you can use multi-use paths on your dedicated area for locking bicycles. If not, questions. thinking, hilarity will not ensue. commute. The Ohio Department of perhaps you can leave your bike in a corner of Transportation has a list and map of local your office, in an empty office, closet, or Best of luck, and • DO: Meet people you do not know. This includes clients, but bikeways at storage area, or in a parking garage nearby. see you on the road! also co-workers whom you do not know well or at all. If http://www.dot.state.oh.us/bike/Central.htm. When I clerked in Boston, I locked up to the possible, review the invitation list in advance to see who is If your workplace is farther away than bars of a holding cell where inmates used to prozelle@ coming and do some homework on the people you would like to you want to ride, combine bicycling with be held pending trial. Long in disuse for its porterwright.com meet. Chances are they are talking with someone who will be transit to make your trip. Bike one way and original purpose, the jail was a very safe bike Paul G. Rozelle happy to introduce you. Or, ask a colleague in advance to take your bike on transit the other way (all storage area! Porter Wright Morris & Arthur arrange an introduction. 32 Written Rules Welcome To Columbus Introduction to Downtown Living Elevator And Escalator Injury Claims By Jameel S. Turner from $625 to $1400 per month. For more terrace on each unit. Owners have secured information, check out indoor parking and use of a rooftop terrace Whether you have relocated to http://www.arenacrossing.com. with spectacular views of Downtown, German UP AND DOWN TRAFFIC LIABILITIES Columbus, or are just growing out of your law Village, and the Discovery District. school apartment, Columbus offers several • The Seneca Luxury Apartments The condominium homes offered at this options, renting or buying, for downtown The Seneca Luxury Apartments are site are detailed and luxurious, and should be By Glen R. Pritchard Plaintiffs are often confronted with the Certificates of operation may not be issued living for younger lawyers. The City, in located downtown, inside the Historic considered by any new lawyer contemplating a challenge of having access to insufficient without the required inspections, and conjunction with several experienced Landmark Seneca Hotel. The Seneca Hotel, move closer to work. But, they are selling fast information to determine the cause of an inspectors must send their reports to the developers, has worked hard the past few years with its grand ballrooms and lavish suites, was and are subject to availability. Prices range levators and escalators are among elevator or escalator malfunction. For that superintendent of the division of industrial to transform old former warehouses and designed in 1917 to be one of the most upscale from $161,000 to $268,000. reason, the doctrine of res ipsa loquitur is compliance with a copy provided to the industrial buildings into luxurious apartments, gathering places for Columbus socialites. http://www.terracesongrant.com/. the safest modes of transportation. Nevertheless, according to the U.S. more readily applicable to cases involving owner. Elevator owners are also required to lofts, and condominiums. To help return the hotel to its former file a written report within 72 hours after The benefits of living downtown speak glory, it was recently restored and converted • EcleXtion Lofts Bureau of Labor Statistics and the injury or death caused by elevators and E escalators.3 The Ohio Supreme Court an incident causing bodily injury or death. for themselves given the convenience that into 76 luxury studio, one, and two-bedroom Located within one block the Arena Consumer Product Safety Commission, each downtown living provides for work and play. units. Standing at the southeast corner of District at 221 North Front Street, EcleXtion year 30 people are killed and 17,000 are summarized the doctrine as follows: Finally, any complaints about an elevator Just think how much you could save on gas Broad Street and Grant Avenue in the heart of Lofts offer unique floor plans combined with injured in incidents involving elevators and In Ohio, it is well established that the of or escalator may be submitted within 12 and cab rides from your favorite local downtown, the Seneca is a vibrant landmark the energy of the neighborhood. escalators. Here are highlights of some of res ipsa loquitur is rule of evidence which months of the event. OAC 1301:3-6-05. hangouts! for a community that is home to thousands of EcleXtion Lofts pride themselves in their the unique aspects of liability claims which permits trier of fact to draw inference of In many ways, claims for injuries caused Whether looking to rent or to buy, the young professionals. With several floor plans, unique floorplans. Each home can be may arise from such incidents. negligence on part of defendant from by elevators and escalators involve following list provides a number of downtown and prices ranging from $750 to $1300 per customized by arranging your walls around the Because elevators and escalators are used circumstances surrounding injury to standard negligence principles. However, living options young lawyers should consider month, the Seneca Luxury Apartments are core kitchen and bath areas, allowing you to for transportation of passengers, owners of plaintiff; weight of that inference, as well as the unique aspects of these claims discussed when thinking about relocating downtown. worth a look. New lawyers looking to rent in have more or less bedrooms, dens, or open these devices are considered “common weight of explanation offered to meet such here can mean the difference between the downtown area would be remiss not to spaces. There are only a few condominiums carriers.” As such, the duty owed by inference, is for determination of trier of success and failure for the plaintiff. give these apartments serious consideration. left for sale at EcleXtion Lofts, so if interested FOR RENT elevator owners is greater than the usual fact. * * * To warrant application of the • Arena Crossing Apartments http://www.campusapts.com/Home.aspx?Proj you need to act fast! Prices range from rule, however, there must be evidence =101&Name=Seneca. $165,000 to $380,000. duty of reasonable care. Common carriers Located in the Arena District, the Arena owe a duty to “exercise the highest degree which establishes that (1) the 1. May Department Stores Co. v. McBride http://www.eclextionlofts.com/ (1931), 124 Ohio St. 264; Welch v. Crossing Apartments provide luxury living in of care of which the situation was instrumentality causing the injury was Rollman & Sons Co., 70 Ohio App. 515 an urban setting. Arena Crossing is literally FOR SALE reasonably susceptible.”1 under the exclusive management and steps away from Nationwide Arena, the North The condominium homes described • Sixty Spring (1st. Dist. App., 1942) Conveniently located near the corner of Third parties contracted by the elevator control of the defendant, and (2) that the Market, Short North, Victorian Village, and below are by no means an exhaustive list of 2. Durham v. Warner Elevator Mfg. Co. Spring and Third Street, Sixty Spring features owner to service, inspect, and maintain the accident occurred under such circumstances acres of beautifully landscaped parks including options for downtown living; however, they (1956), 166 Ohio St. 31, syllabus para. 2. industrial lofts with six different floor plans. elevators are also often named as defendants that in the usual course of events it would McPherson Commons (the arch), North Bank appear to be the most convenient and 3. Norman v. Thomas Emery’s Sons, Inc., 7 These unique urban living spaces offer 16-foot when an elevator or escalator causes an not have occurred if ordinary care had been Park, and Goodale Park. Arena Crossing offers affordable for younger attorneys looking to Ohio App. 2d 41 (1st Dist. App., 1966) ceilings, a free gym membership, underground injury. The scope of the service company’s observed.4 31 floor plans, 24-hour controlled access, an relocate downtown. In addition, many of the 4. Walker v. Mobil Oil Corp. (1976), 45 parking, and a private landscaped courtyard for duties will be defined by the contract with The heightened duty owed by common on-site fitness center, and many other luxuries. homes below qualify for 10-year tax Ohio St. 2d 19, at 21 Arena Crossing offers 252 luxury apartments abatement from the City. Please contact the residents. In addition, many of the the owner. To the extent that the contract carriers combined with the doctrine of res 5. 1998 WL 140090 (Ohio App. 1 Dist.) property owners for more information. For a condominiums feature private balconies and requires the service company to inspect the ipsa loquitur may allow the plaintiff’s case 6. For purposes of the statutes and complete list of properties for sale in the terraces. Sixty Spring also includes an Urban machinery or repair any defects it finds, or to escape summary judgment. In Koepfler v. regulations, escalators are included in the downtown area, see Garden and Streetscape that were inspired by at least to report defects to the owner, the CRI,5 for example, the plaintiff fell when similar condominium amenities in the Chicago term “elevator”. See R.C. 4505.01(A). www.downtowncolumbus.com/living. service company may be held liable to third the escalator she was riding while leaving a area. 7. Pursuant to OAC 1301:3-6-04, “[a]t least parties for negligently performing those Cincinnati Reds baseball game suddenly Sixty Spring offers lease purchase one elevator inspection per year required • Lofts At 106 duties. As noted by the Ohio Supreme jerked. The premises owner and the programs for attorneys who may be seeking under section 4105.10 of the Revised Designed as an urban sanctuary in the Court, privity of contract is not a barrier to escalator service company were both some flexibility in their condominium Code shall be performed in conformity Editorial Board Members heart of downtown, the Lofts At 106 provide such claims. named as defendants. The trial court dramatic views of the Leveque Tower, Scioto purchase. Currently, Sixty Spring has only a with the provisions of the “Guide for Where one, under a written contract, granted both defendants’ motions for River, and the Arena District. The Lofts At 106 few units remaining, so anyone interested Inspection of Elevators, Escalators and Michael Heintz – Editor undertakes to service and examine the summary judgment because the plaintiff were the result of a renovation of a building should act now. Prices range from $170,000 to Moving Walks,” ASME A17.2-2004 Porter Wright Morris & $349,000. www.sixtyspring.com mechanical equipment of another and make could not explain, with expert testimony, built in 1910 that served as a JC Penney edition, approved by the American society Arthur As you can see, there are more than a few a report on the condition thereof, and the why the fall was caused by a defect or Department Store in the 1950’s and offices of mechanical engineers on July 22, 2004, affordable options for relocating downtown. equipment is of such a nature as to make it malfunction. The trial court reversed with from the 1970’s until recently. copyright 20056, and published on Brianne Brown Moreover, the City is continuing to design and reasonably certain that life and limb will be respect to the premises owner, noting its The Lofts provide many affordable, March 31, 2005.” State of Ohio Auditor’s Office unique, and open condominium floorplans, develop projects to revitalize the downtown endangered if such work is negligently heightened duty as a common carrier. The which are complemented by building area, including the construction of the new performed, he is chargeable with the duty of Court also observed that the doctrine of res Mark Kafantaris amenities such as a community recreation Huntington Park set to open next year. With all performing the work in a reasonably proper ipsa loquitur created an issue of fact of the revitalization Kafantaris Law Offices room, workout facility, and onsite parking and and efficient manner. And if such duty is because the escalator was in the owner’s projects currently under storage. Located at 106 N. High St., the lofts negligently or carelessly performed whereby exclusive possession and control. On the Lisa Kathumbi are just 1.5 blocks north of the Ohio State construction, as well as [email protected] the many opportunities injury occurs to a blameless person, not a other hand, the appellate court let stand the Bricker & Eckler House, 3 blocks from the Arena District, and 5 party to the contract and lawfully using judgment in favor of the service company blocks south of the Short North. Lofts are for tax abatements, there has never been a more such equipment, such injured person has a because the theory of liability against it was Janica Pierce available now, starting at $140,000. right of action directly against the offending ordinary negligence, and res ipsa loquitur www.theloftsat106.com. opportune time to Chester Willcox & Saxbe consider relocating to the contractor. Liability in such instance is not did not apply to the service company. • Terraces on Grant downtown area. based upon any contractual relation Finally, state regulation of elevators and Jameel Turner Located on South Grant Avenue near between the person injured and the escalators creates some opportunities for Bailey Cavalieri downtown, each detail of these condominium Jameel.Turner@ offending contractor, but upon the failure of the plaintiff to discover potentially helpful homes has been well designed, from European baileycavalieri.com Jameel S. Turner, such contractor to exercise due care in the evidence.6 The statutes require elevators to Glen R. Pritchard, Nicole Vanderdoes styling to window placement, to the private Bailey Cavalieri performance of his assumed obligations.2 be inspected “twice every twelve months.”7 Clark Perdue & List Luper Neidenthal & Logan Fall 2008 Columbus Bar Lawyers Quarterly 33 Ethics Ethics

Professionalism In Public What A Lawyer Should Do Sector Lawyering IF THE CLIENT COMPLAINS TO THE BAR

By Christopher B. McNeil arguments “ridiculous” constitutes a violation of a Disciplinary Rule. By Alvin E. Mathews Jr. you before you hire counsel. In the early investigative stage, At the same time, degrading your opponent (or in this case, degrading ethics counsel helps you avoid formal charges. In contrast, the licensee whose livelihood hung in the balance) seems to be the once formal charges are filed, ethics counsel’s job is to help you ast year the attorney general’s office sponsored a day-long kind of wrong that our Aspirational Ideals are designed to guard he grievance committee of your local bar association keep working or return to work as soon as possible. seminar on topics of interest to public sector lawyers. Owing against. The obligations of “civility [and] courtesy” adhere to us all, sends you the dreaded letter in that envelope marked Cooperate with the investigation; address the merits; and perhaps to the fact that it offered the elusive CLE triumvirate and there is an affirmative obligation to “[s]how respect by . . . “personal and confidential.” Your heart is pounding. seek review of your response by a colleague. By all means, of ethics, professionalism, and substance abuse, enrollment demeanor.” You rush to open the letter, which informs you that respond on time and do not ignore the grievance. Failure to L Recall the impetus behind the establishment of the Lawyer’s Creed T assist in the investigation is a disciplinary violation itself: for the conference was high with over 200 in attendance. There were your former client has filed a grievance against you. He claims in-house counsel to state agencies, assistant attorneys general, and and Aspirational Ideals, where the authors warned against “a you did not handle his case competently and diligently, that Many lawyers get themselves in trouble by failing to respond members of private bar whose practice includes representation of diminishing of courtesy and civility among lawyers in their dealings you sided with the opposing party and her counsel, and you to grievances that have no merit and which would undoubtedly regulated entities. with each other, a reduction in respect for the judiciary and our did not earn the “exorbitant” fee you charged. After you read be dismissed, if a proper response were submitted. If you find Among the topics being covered was a discussion about system of justice and a lessening of regard for others and commitment the allegations, your anxiety turns to pure frustration. that you feel paralyzed and cannot respond, consider speaking to the public good.” By the Creed, we pledge “[t]o my colleagues in professionalism in public sector law. Not everyone stuck around for You remember this is the same client you bent over with a mental health professional and contacting the Ohio the practice of law, I offer concern for your reputation and well-being. this segment, perhaps because it was scheduled for late in the day, or backwards to help. You were more like a social worker, taking Lawyers Assistance Program. Remember, it is not sensible to perhaps those who left didn’t need the CLE credit. But those who I shall extend to you the same courtesy, respect, candor, and dignity ignore a situation that can place your career in jeopardy. that I expect to be extended to me.” extra time to discuss the client’s problems that were unrelated remained became engaged in one of the livelier hour-long to the case. You know you should have never taken the case in When you respond, keep to the point. Those experienced in professionalism sessions we’ve seen in Ohio. The example presented to this group of public sector lawyers was the process know that you must focus on the substance of the useful because it was not so egregious as to garner a roomful of like- the first place – the facts were lousy, but you felt sorry for the What sparked the debate was a discussion about the tone of client. Against your better judgment, you took on the matter complaint and resist the temptation to attack the complainant. argument and rhetoric used in motions and memoranda presented minded opinions. Several lawyers spoke in support of the author, knowing you were the client’s third lawyer. You didn’t even Prove that by any objective standard you properly represented before state agencies. Over the course of the hour, the group engaged saying there was nothing wrong with calling the licensee’s arguments bother to ask why the other lawyers withdrew. You were the client’s interests. Prove you were cordial and professional in something that doesn’t seem to happen very often in our ridiculous. Some went further and complained that the hearing examiner (yours truly) should not have commented on this in the patient with the client’s eccentric behavior and even reduced to the other side, but put the client’s interests first. Prove your profession: we had a spirited exchange about what does and does not fees were reasonable and document that you earned them. conform to professional standards when presenting legal arguments in report issued in this case. The comment objected to was this: “This your fee. You did not withdraw, even though you should have. depiction of [the licensee’s] presentation to the Board ill-serves all It’s true that “no good deed goes unpunished.” If the facts are in dispute, tell your side of the story, but supporting memoranda. Collectively, we took the first steps in provide documents to prove your version is accurate. If you are defining what professionalism means for public sector lawyers, in the parties: it demeans the process, unfairly castigates [the licensee], and Given the foregoing, what can you do to save your diminishes respect the public might have for the author of the State’s reputation and avoid losing the law license? still representing the complainant, consider whether you can context of written argument. and should withdraw. If the client has been damaged in any This is important because unlike the ethical standards we find in brief.” Some in the audience said they thought this dressing-down was Carefully review the grievance and the rules. I know. It is too severe, that at most it should have been done privately, and that it difficult for you to have your integrity, let alone your way, consider how the client can be restored. If you speak with the code of professional responsibility, professionalism isn’t so much the complainant during the investigation, remain professional dictated by black-letter law, but exists through consensus. It’s true that was inappropriate and unprofessional in itself. livelihood, threatened. It is natural to become emotional. Yet, Others in the audience weren’t so sure. Several commented that no at all times and do not interfere with the investigation. there are some black-letter benchmarks we’re bound by, found not in you must remain composed and deliberately consider the one benefits from an ad hominem attack, and in emails afterwards at If you decide against counsel, have a law partner, mentor, or the Lawyer’s Creed but instead in the Code of Professional specific claims against you in the client’s allegations. Consider least one attorney, an in-house advisor to a state agency, expressed trusted colleague review your response for its tone and clarity. Responsibility. These include rules barring undignified and whether there is any truth to the client’s claims. Read the strong support for an effort to make more civil the style of discourse The truth is that lawyers too often shrug off client discourteous conduct that degrades a tribunal (DR 7-106(C)(6)), and applicable Ohio Rules of Professional Conduct prior to used in arguments before state agencies. So the example works complaints. They lose their objectivity and forget that conduct that adversely reflects on the attorney’s fitness to practice law attempting any response. Consider whether the facts support because it sheds light on what may be a fundamental principle about (DR 1-102(A)(6)). But there’s a wide range of behavior that an reputation and career are potentially at stake when a client professionalism: we get the profession we ask for and demand of any rule violation. attorney may be tempted to engage in that falls far short of complains. Lawyers must always be cognizant that practicing ourselves. This isn’t a part of the practice of law that is regulated by Read the relevant part of the Supreme Court Rules for the professionalism without actually violating the code of professional law is a privilege and not a right, and all client complaints edicts coming from on high. This is a feature of practicing law that Government of the Bar of Ohio, setting forth the procedure for responsibility. must be addressed promptly and with the utmost seriousness bubbles up from the bottom, by how we comport ourselves and by the grievance review and the process for adjudication of formal The focus of the group’s discussion at this conference was an and respect for the lawyer discipline system. engaging open discussions like the one sponsored by the attorney lawyer discipline cases. For those who do not routinely work in excerpt of an argument that had been presented on behalf of one of general last year. the lawyer discipline area, the process can seem complex, so the state occupational licensing boards. In a written closing argument, We set the tone of the profession we live in. For junior attorneys, think about seeking help from someone familiar with the the state’s representative was responding to a claim that had been supervising attorneys play an enormously important role in setting the process. made during the evidentiary hearing: during the hearing, the licensee tone of the arguments being advanced in litigation. Once an attorney Communicate with the investigating lawyer, and consider claimed he had been surprised when a domestic relations court judge [email protected] is beyond the need of such supervision, the sources of guidance hiring counsel. The letter will tell you to whom you must had the licensee jailed for failure to pay child support. The state’s diminish – no one wants to see judges chastising attorneys in reported respond. Do not be afraid to telephone that person with representative called the licensee’s claim “ridiculous,” and used the decisions. Group discussions like the one last same adjective a second time two paragraphs later, to cast aspersions questions about the process, including procedural steps. year are a good start, and should be I know it is difficult, but try to consider objectively the facts on the licensee’s claim that he didn’t know what the appropriate encouraged – not only for public sector standard of care was in a point relevant to the charges against the measured against the potential rule violations. If you find it practitioners, but for the entire spectrum of difficult to be objective or it is apparent that the former client’s licensee. those engaged in the practice of law. When I’m serving state agencies as an administrative hearing allegations have some merit, consider whether it is prudent to examiner, I tend to cringe when I see this kind of writing. It generally represent yourself in such a situation. Keep in mind the old betrays weakness in the argument – I find the more the invective and adage about a lawyer who represents himself or herself. ad hominem vitriol, the shakier the speaker’s case. For the purposes of Only proceed without ethics counsel if you can remain a discussion on professionalism, however, the example worked well. [email protected] Christopher B. McNeil, objective and it is clear the grievance is unfounded. You should Alvin E. Mathews Jr., Certainly no one would conclude that calling an opponent’s J.D., Ph.D. not wait until authorities decide to file formal charges against Bricker & Eckler

34 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 35 Interiors Interiors Understanding Addiction Women’s Journey – PART II Through Addiction By Brad Lander were dead. In the beginning, the rats nitrates (inhalants) and others. They would constantly press on the lever, make us “feel good.” Unfortunately, anything that stimulates this pathway continuing to do so to the exclusion of By Candace Hartzler She needs to be held responsible for her cradle, who began use of substances for n Part I, we looked at how all all other behavior until they would sets up the desire to do it again. OVI, possession or trafficking charge; reasons of self-comfort, is now hooked by behavior comes from our brain, that collapse. They didn’t eat, drink, engage Repeated enough times, we pass from needs to be bumped out of denial and her compulsive need for those substances. socially with the other rats or engage in desire to want, to drive, then to the brain is chemical, and that et it be heard; a woman’s jockeyed into position to receive the She may look good on the outside while compulsion. Once the desire progresses chemistry follows the laws of physics sexual behavior. They pressed the lever relationship with alcohol has mentoring and guidance needed for drowning in pathology on the inside. Her I to compulsion, it becomes consuming- and, therefore, mathematics. The insight until they died of malnutrition, always been fraught with effective change. While stopping her use of arrest could be the invitation needed for that, at least at one level, behavior can dehydration and exhaustion. dominating our thoughts and actions. problems. She clearly paid a price substances must come first, treatment for growth and healing to begin. She needs be reduced to mathematical equations It is frightening to think that we have When I become hungry (food deprived) L addiction and underlying issues must education about the physiological and in early Rome, where wives were deemed can seem demeaning or demoralizing. a mechanism in our brains that could thoughts of eating become a legal property of their husbands, no less follow, or else the woman is left without psychological components of addiction. However, it does explain a great deal of cause us to self-destruct. It leads us to preoccupation. It starts as, “Man, a than a horse or carriage. If she missed a support and after a brief respite will likely She needs to sit in circles of women— why we believe, feel and behave the way ask, “What is this pathway for?” “Why hamburger would taste good right now”; socially prescribed step (such as being return to what is familiar. gender specific treatment groups focused we do, and it especially helps explain do we have it?” To explore these but it eventually becomes, “I’ll bet if I caught with alcohol on her breath), her When representing a woman with on self-empowerment principles of what happens when our chemistry is questions, a group of researchers again just took that candy bar no one would husband could opt to have her killed on substance abuse problems, understand that recovery. She needs A.A. and/or Women changed through alcohol and drug use. implanted electrodes into the brains of notice.” The rule is, “lower order the spot. addictive waters flow deeply within her for Sobriety groups and a referral to a What this doesn’t tell us is how we can rats, but instead of using the electrodes deprivation overrides higher order Society no longer frowns or digs in its psyche. Depending on the degree of therapist skilled in treating both mental become addicted to alcohol or drugs. To to stimulate, they used them to measure. motivations.” This means if I “need” heels—women are given free license to pathology present (where her substance health and addiction issues as part of her understand this, we need to understand The researchers watched the rats’ something badly enough, like food or consume not only alcohol but a bevy of abuse fits along the continuum of harm to continuing care plan. self and others), a woman with An addicted woman knows she is two things, motivation and adaptation. behavior to see what actions caused the water, I will eventually do something overly prescribed opioid pain relievers drug/alcohol problems is also depressed swimming against the tides of her own Let’s looks at what motivates us to do reward pathway to “light up.” They desperate to get it. (Vicodin, Lortab, OxyContin, Percodan, and experiencing guilt and shame over well-being but feels powerless to change some actions repeatedly and found that the reward pathway became This is what happens in alcohol and Percocet, Darvocet), and benzodiazepines ways her use has begun impacting her her circumstances. Every arrest, every compulsively. (Part III will explore what active whenever the rat would eat, drink, drug addiction. Through repetition, the (Xanax, Librium, Ativan). Those social and familial relationships. crisis, is an invitation for her to begin brain’s reward pathway escalates the substances can easily grease the addictive happens when a behavior is repeated or engage in sexual behavior. A woman turns to substances for anew. Through suggestions or mandates, desire for a drink or drug into a “need” slide for women, leading to tolerance and over and over.) (Subsequent studies have shown that this reasons of comfort and self-medication and our legal system could be part of the for that substance. What is perceived as the search for “more and better” mood Early work in “brain mapping” pathway is also activated by finding so is often delivered into the hands of solution for women: tossing her the life uneasiness or discomfort is actually an alteration. Heroin use is on the rise, (finding out what the different parts of warmth when cold, safety when addiction through depression and anxiety. raft needed to carry her toward the “alcohol or drug deficiency,” and people particularly among teens. Cocaine, the brain do) was done by placing threatened, and other actions that bring Her attempt to alter physical and wellsprings of health and recovery. methadone, marijuana, over-the-counter electrodes into the brains of patients “relief.”) will take extraordinary risks with their psychological pain has also altered her undergoing brain surgery under local The importance of the reward health, reputation, relationships, safety, appetite and cold suppressants also provide brain chemistry and her body has created a ********************************* anesthesia, introducing a charge into a pathway to our survival can be and careers to ease this discomfort. An those euphoric feelings sought by women physiological need for more of the part of the brain, and then seeing what understood when we now look at the otherwise rational, principled person will with substance abuse problems. National substance. Low income and/or years of Candace Hartzler, MA/LICDC has happens. A bundle of nerve fibers was brains of animals. An animal, such as a embezzle money, lie about her Institute on Drug Abuse reports that in self-negating behaviors have become worked in the field of addictions 2005, more than 6 percent of females 12 discovered that, when stimulated, squirrel, does not have a brain capable whereabouts, or stay out until 3 a.m. on woven into the tapestry of her addictive counseling for 20 years and specializes in years and older were current illicit drug produced sensations of extreme pleasure. of comprehending concepts like nutrition a workday when the pain just gets too lifestyle and her self-esteem is thread bare. gender specific treatment for women with users and nearly 600,000 were admitted to This network of nerve cells became and procreation; this requires a bad. Devon Jersild, in Happy Hours: Alcohol substance abuse problems. She is currently drug treatment facilities in the United known as the “reward pathway.” Most developed prefrontal cortex found only in a Woman’s Life, discusses an addicted employed at University Hospitals East, States, representing more than 30 percent interesting (and most important) is that in humans. So what drives a squirrel to The next installment in this series will woman’s issues: she is four times more facilitating a Women’s Intentsive of total treatment admissions. eat or create little squirrels? The rule of look at how repeated alcohol and drug likely to have been abused by a partner, Outpatient Treatment group, has presented once the current was stopped, subjects A woman living within the confines of became irritable, many of them pleading thumb is “if it feels good, it must be use leads to addiction. nine times more likely to have been numerous workshops for professional addiction, that harbinger of familial, social slapped, five times more likely to have peers regarding Gender Specific treatment or demanding that the researchers turn good for me.” Any activity that and psychological harm, will face the been kicked or hit. She is five times more groups and is currently working on a book the current back on. stimulates the reward pathway complex task of learning how to live likely to have been beaten, and 75% to entitled, Heart of the Matter, a recovery To explore this pathway further, automatically creates a “drive” to repeat without dependency on substances. Not 90% of women reporting for treatment of guide for women with addictions. researchers implanted small electrodes it. The squirrel eats not because it only will her socially prescribed gender substance abuse have been victims of into the reward pathways of a group of understands that food is necessary for roles of empathic, self-effacing wife, incest, sexual abuse or other unresolved rats in a manner that allowed them to health; it eats because it feels good. mother, daughter allow society to excuse, trauma. Her initial experience with alcohol still move freely about their cage. A lever Certain groups of molecules pass even overlook, her growing dependency or other drugs is likely to occur within the was placed in the cage that stimulated through the filters that protect our brain thus impacting her readiness for change, so context of a romantic relationship and if the pathway whenever the rat pressed and stimulate the reward pathway. These will the court’s response to her years of her unhealthy relationship with males is down on the lever. Although one might are substances such as alcohol, maladaptive behaviors. An addicted not addressed, her chances for working a guess that after thirty days the rats tetrahydrocannabinol (THC) in woman is not bad, just addicted, and her personal program of growth and change would be constantly pressing the lever, in marijuana, sedatives, opiate pain killers, Brad Lander, healing process can be jumpstarted by an will be compromised. Candace Hartzler, truth, within thirty days, all the rats cocaine, amphetamines, hallucinogens, Ph.D., LICDC arrest. A woman, the hand that rocks society’s MA/LICDC

36 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 37 Interiors Interiors

Butt, A. A. (2005). Hepatitis C virus infection: the new global facilities. [28(1), 92–100.]. Preventive Medicine, 28(1), 92- epidemic. Expert Review of Anti-infective Therapy, 3(2), 100. 241-249. Stringari-Murray, S., Clayton, A., & Chang, J. (2003). A Model Deuffic-Burban, S., Poynard, T., Sulkowski, M. S., & Wong, J. for Integrating Hepatitis C Services into an HIV/AIDS Hepatitis C: B. (2007). Estimating the future health burden of chronic Program. Journal of Association of Nurses in AIDS Care, hepatitis C and human immunodeficiency virus infections in 14(5), 95S-107S. the United States. Journal of Viral Hepatitis, 14(2), 107-115. Waldrep, T. W., Summers, K. K., & & Chiliade, P. A. (2002). Fox, R. K., Currie, S. L., Evans, J., Wright, T. L., Tobler, L., Coinfection with HIV and HCV: More Questions than A Silent Epidemic Among Ohio’s Phelps, B., et al. (2005). Hepatitis C virus infection among Answers? Pharmacotherapy, 20 (12), 1499-1507. prisoners in the California state correctional system. Clinical Infectious Diseases : an Official Publication of the Infectious Diseases Society of America, 41(2), 177-186. Inmates And Re-entry Populations Lincoln, T., Tuthill, R. W., DePietro, S. L., Tocco, M. J., Keough, K., & & Conklin, T. J. (2006). Viral Hepatitis, Risk Behaviors, Aminotransferase Levels, and Screening Options By Rosemary Eustace and Nikki Rogers (Bica et al., 2001; Solomon, et al., 2004). Inmates with at a County Correctional Center. Journal of Correctional “chronic” HCV may have multiple physical and psychological Health Care, 12(4), 249-261. needs, thereby requiring a range of services that often include McGovern, B., Wurcel, A., Kim, A., Schulze zur Wiesch, J., ctober is designated as Ohio Hepatitis C Awareness drug abuse and mental health services. Bica, I., Zaman, M., et al. (2006). Acute hepatitis C virus Month, and it represents one approach to As with other infectious disease, the social implications of infection in incarcerated injection drug users. Clinical publicizing a looming health crisis of the American HCV disproportionately affects minorities, especially African Infectious Disease 42(12), 1663–1670. 21st century. Recent research findings suggest that Americans, and women who use drugs (Solomon et al., 2004). ODH. (2005). THe Ohio Plan: Hepatitis C Prevention and O Once diagnosed, African Americans experience lower rates of Control. Columbus, OH: Ohio Department of Health. Hepatitis C will surpass HIV as a major public health issue over the next two decades, largely because HIV is more likely effective control of the virus than Caucasians (26% versus Solomon, L., Flynn, C., Muck, K., & Vertefeuille, J. (2004). Prevalence of HIV, syphilis, hepatitis B, and hepatitis C to be diagnosed and is more controllable through medication 39%) (Butt, 2005). Services that expand HCV surveillance, among entrants to Maryland correctional facilities. Journal of than HCV (Deuffic-Burban, et al., 2007; Stringari-Murray, et diagnosis, prevention and treatment in criminal justice and Urban Health, 81(1), 25-37. al., 2003). In addition, the current world-wide rate of HCV community settings are needed. This includes both prevention Rosemary Eustace, Ph.D. and Nikki Rogers, Ph.D. Spaulding, A., Greene, C., Davidson, K., Schneidermann, M., Substance Abuse Resources and Disability Issues program, infection is estimated to be several times greater than HIV, with education for persons not infected so they can better avoid & & Rich, J. (1999). Hepatitis C in state correctional Boonshoft School of Medicine, Wright State University up to four million Americans living with HCV. Because it is infection, but also education for HCV positives in lifestyle often asymptomatic in its early stages, early treatment is rare. changes that minimize risks for medical crises. Since liver Infected individuals will likely enter the symptomatic stage of disease and severe complications take years to manifest, health their disease in middle and later life when other chronic education for persons already infected promises to be cost diseases such as heart disease, cancer, and diabetes further effective. Among other interventions, emphasizing the need to be abstinent from alcohol is critical. In fact, medication complicate medical interventions. This will mean additional protocols for persons with HCV identify alcohol users as not burden to the already strained health system by requiring more appropriate for HCV medications (Butt, 2005). A relatively intensive medical and social interventions. Don’t let lack of information cause you to misstep low cost rapid test for HCV has recently been approved by the Approximately 82% of persons with HCV have a previous FDA, and this is promoting more wide-spread screening for the incarceration history (McGovern et al., 2006), and HCV condition. prevalence is higher than that of HIV among US inmates as you climb the ladder of success. At the Substance Abuse Resources and Disability Issues (Lincoln et al., 2006). An Ohio Department of Health Report (SARDI) Program at Wright State University’s Boonshoft (ODH, 2005)indicated that 25.9 percent of 1,283 inmates School of Medicine in Dayton, we are cooperating with local tested were infected with HCV; however, it is unclear if this public health providers to screen for HVC, provide education, Each day, The Daily Reporter offers was a random sample of prisoners or persons identified as link clients to treatment, and develop culturally-sensitive staff-written local business and legal being at high risk and therefore were tested. The most outreach efforts for both the public at large and incarcerated articles, as well as national articles prevalent behavior associated with the acquisition of the populations. One of our projects, the Community Health disease is injection drug use (IDU), a primary behavior Initiative, serves high risk African Americans (persons released from various news service. We also associated with incarceration (Fox et al., 2005). The HCV rate from prison or jail, and women with other high risk factors) by offer legal and public notice files that among persons who use injection drugs can be as high as 80% providing a “One Stop” center in the Mt Olive Baptist Church. provide a wealth of information for (ODH, 2005). Other risk behaviors for the condition found in At this location, individuals with multiple health risks are inmate populations include unsafe needle sharing, multiple sex provided education, testing, food, clothing, and case business leads and for protecting your partners, prison tattoos, alcohol and non-injection drug use. management assistance. This project is currently funded by the company. Don’t miss another issue. The epidemiology of HCV among inmates has both cost- Center for Substance Abuse Treatment (CSAT/SAMHSA), the management and treatment implications. A 1999 report claims federal agency coordinating alcohol, drug, and mental health Subscribe today! an average cost of $14,000 per year to screen and treat inmates services nationwide. with HCV because HCV clients present multiple medical conditions requiring treatment (Spaulding, Greene, Davidson, Schneidermann, & & Rich, 1999). Without proper prevention References and treatment in jails and prisons, future health costs will be Bica, I., McGovern, B., Dhar, R., Stone, D., McGowan, K., far greater. Compounding this issue, there are high rates of Scheib, R., et al. (2001). Increasing Mortality Due to End- 614-228-NEWS (6397) HIV/HCV co-infection among the incarcerated (Waldrep, Stage Liver Disease in Patients with Human www.sourcenews.com Summers, & & Chiliade, 2002) that complicates the Immunodeficiency Virus Infection. Clinical Infectious management of HCV and burdens penal medical resources Diseases, 32, 492-497.

38 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 39 Employment Technolawgy Law E-DISCOVERY: Wage Payment Small Steps Can What Could Be Simpler?

Yield Great Savings By Felix C. Wade accomplishing their work are likely to be Waiting to begin work is usually considered independent contractors.2 compensable if it occurs during normal Another test was promulgated in a working hours.8 “On call” time is By Christopher F. Shiflet and fifty memos to others throughout the interprets its document retention policy. If, t hasn’t been so simple for the 1987 IRS revenue ruling. It contains generally not compensable if an day, but kept a copy of each memo sent as for example, there are a large number of world’s largest retailer. Since 2005, twenty factors to be considered in employee is required only to be well as copies of all memos received. Oh, by different retention periods, or it is difficult to Wal-Mart has lost three major determining a worker’s status.3 reachable by the employer. the way – these memos frequently have determine the retention period for a given ver the past few years, e-discovery “wage and hour” class action “Exempt” vs. “Non-Exempt” Employees Working “Off the Clock” document, do not be surprised if employees has grown from a little mentioned multiple page documents enclosed. I Many business people say, “I pay my Non-exempt employees work “off the lawsuits, with damages exceeding $256 often avoided aspect of litigation Sadly, this paper-based analogy is a fair simply place all documents in the storage million. In the most recent case, Wal- people on a salary, I don’t have to worry clock” when they work extra time in into a core component that can representation of the way ESI is managed location with the longest retention period, O within businesses today. The computer sitting making that longest retention period the de Mart was found liable for not providing about overtime.” This is a recipe for order to avoid paying straight time or make or break a case. It first gained 1 disaster. It is unusual for an individual to overtime.9 Employers should put systems widespread attention in the Zubulake and at each employee’s desk can store a facto retention period for all documents. Also its employees rest and lunch breaks. Morgan Stanley cases, and was thrust into phenomenal amount of information, far consider the frequent problem of an What can a lawyer do to help a business be exempt from the minimum wage but in place to spot and prohibit this the spotlight late in 2006 by changes to the greater than a bank of filing drawers. employee working under a very short email avoid the same or similar problems? it is possible based on business size or practice. Even if an employee works “off Federal Rules of Civil Procedure that Corporations often have personal network retention period, say one month. When an Every business knows that it have to industry. The more common exemptions the clock” without permission, the email in the employee’s mailbox is over a specifically targeted discovery of shares available to their employees as well. pay the employees. Often businesses turn relate to overtime. Federal regulations employer is still required to pay wages. month old, the email system purges it. The electronically stored information (ESI). Here Finally, it is not at all uncommon for an over wage payment to third party generally require a guaranteed salary of Deductions from Wages in Ohio, similar provisions were added to the employee to send and receive well over employee is annoyed that emails disappear $455 per week where the individual’s The FLSA states that employers may after a month, so the employee begins businesses specializing in payrolls. state rules of civil procedure that became twenty emails in a given day. It would not be primary duty is managerial, professional, take deductions from employees’ wages archiving his email on his work computer. Unfortunately, that does not put an end effective on July 1 of this year. Amid all these surprising if some readers handle ten times administrative, computer, outside sales for such things as damage to employer- that amount. Even taking into account all of What if most employees react to a one- to an employer’s need to think about and recent changes to the law, civil litigants have or involves otherwise “highly- owned equipment, provided the the foregoing ESI, a business may still have a month email retention policy in this manner? address wage payment issues. There has little precedent to guide them, and their compensated” employment.4 Employers employer gets written consent from the discovery problems are compounded by plethora of information on Web sites, It could result in a court determining that the been a dramatic increase in individual often fail to guarantee the salary and fail employee beforehand.10 State laws vary tremendous growth in the amount of databases, Wikis, forums, instant messaging de facto email retention period is indefinite. actions and class actions brought by This outcome, both practically and legally, is to perform the primary duty evaluation. widely in this area. information created. How can attorneys services, BlackBerry servers, and elsewhere. both employees and the U.S. Department in direct opposition to the purpose of Moreover, paying an employee a salary Employers may also deduct a help their clients cope? With so much information, it is vital to of Labor alleging claims for unpaid or defining a retention policy, failing completely does not, in and of itself, make the reasonable amount from an employee’s understand, organize, and control it so improperly paid wages. These claims are discovery can be approached systematically to reduce the universe of potentially employee exempt from overtime. wages for things like room, board, and The problem? crossing all industries. While some are While it is true that discovery requests are and accomplished efficiently. discoverable information. Meals and Rest Breaks company-furnished transportation to and A document retention policy must be frivolous, many have resulted in huge often broad and at times burdensome, no Ohio law does not require an from work.11 Be aware that the simple and lightweight if it is to accomplish single e-discovery is the problem. The real Document retention policies judgments and others in substantial its goal. Otherwise, employees are likely to employer to provide breaks (other than regulations may not agree with your problem is with the way information is One of the keys to organizing and settlements. make mistakes in their retention decisions, to minors) but many states do. Under clients’ view of reasonable. managed. Imagine a simple request for controlling business information is Wage payment mistakes are and even skirt the retention policy if they feel federal law, in order for a meal break not Recordkeeping production that involves only paper establishing a document retention policy that preventable, but even employment law it causes too great a hindrance to their work. to be compensated, it must be 30 Under Federal law, employers must documents from a business client. Most encompasses all of an enterprise’s When crafting your own policy, anticipate specialists struggle to keep up with all of minutes and “uninterrupted.”5 In order keep all payroll records for at least three attorneys are comfortable with this sort of information, including ESI. Any reduction in and discourage aberrant behaviors by talking the relevant federal and state regulations. 12 discovery. Custodians likely to possess the overall information a business retains to be “uninterrupted” employees should years, and all earnings records, with employees and modifying the policy Here are some of the common issues relevant documents are identified, along with decreases the universe of information that clock out and be encouraged not to eat including time cards, rate tables, and until it is both efficient and easy enough that where even the well intentioned business storage locations where other relevant may be responsive in a particular discovery. at their work station whether it is a desk work schedules, for at least two years.13 employees can follow it without complaint. can create significant liability. documents might be found. These sources are Consequently, information should be or a machine. The Ohio Constitution’s new An effective document retention policy will rounded up, reviewed, and produced. Simple, retained only as long as it remains useful. Minimum Wage Amendment goes be one that is also reasonable, and such a right? But what if this same company issued The useful life of different documents Employees vs. Independent Contractors policy will go a long way toward making e- Paid Time Off beyond federal record-keeping within an enterprise is driven largely by Employers must determine which of its 14 each employee a bank of filing drawers that discovery manageable in any business. Employers are not required to provide requirements in several ways. First, it filled their entire office as well as several business and regulatory requirements. workers are employees and which are paid vacation to employees. However, if applies to exempt and non-exempt filing drawers in a public filing room? What Regulated fields such as health care and independent contractors. State and an employee is entitled to vacation pay employees alike. For three years after the banking must comply with retention periods if employees routinely made copies of federal laws provide far more benefits under company policy, failure to pay the termination of employment, employers documents they received from their peers and specified in applicable laws. Beyond these and protection to employees. employee for vacation time, either when must keep records of an employee’s filed them haphazardly in their office filing, regulatory requirements, business needs will [email protected] Multiple tests exist to determine a the vacation is taken or upon public filing or both? What if “filing” a dictate how long a given document needs to name, address, occupation, pay rate, and worker’s status. Each state and federal document meant nothing more than placing be retained. termination, may be treated as daily log of hours worked. These records it in a drawer without any particular order? Equally important to determining agency has its own. Ohio courts apply nonpayment of wages.6 must also be provided to an employee Suddenly, discovery becomes vastly more document retention periods is ensuring that the common-law “right to control” test. Waiting and Travel Time upon request without charge. complicated. Next let’s assume that all of those retention periods are followed. A court Christopher F. Shiflet, Workers with the right to control the Time spent traveling back and forth to these employees also sent between twenty can look at a business’s actions when it Interhack Corporation time, means and manner of work is generally not compensable.7 Continued on Page 42

40 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 41 Employment Disclosures Law

Continued from Page 41 in print Wage payment laws and regulations affect every employer and worker. This article cannot deal with all the ways Thoughts On online businesses can create sizeable liabilities. We will leave it to another discussion to We are Central Ohio’s only daily business talk about paying people for getting and legal newspaper. Subscribe Today! dressed and undressed at work (labor and employment lawyers refer to these as “donning and doffing” cases, and they Lawyer Retirement have nothing to do with sexual 614-228-NEWS (6397) • www.sourcenews.com harassment claims). We also have not talked about bonuses, The Ohio Healthy By Bert Kram The lawyer’s daily schedule is usually doing or find most satisfying? It is an Families Act ballot initiative or a myriad dictated in large measure by the needs of individual matter. Do not worry about of other complex wage payment issues. others: clients, courts, opposing parties, what other people choose. Focus upon By knowing your client’s business and hether retirement from and many more Upon retirement your what matters to you. Pursing those being mindful of your client’s compliance your principal career is schedule suddenly is determined by you. interests or passions then becomes the in this area, you can enhance the level of close at hand or well off Oh sure, there are a surprising number focus of your next career and next service you provide. into the future, it is of routine items — shopping, doing period of life. W laundry, paying bills, and others that A word of caution: It is likely that the prudent to give thought to how that transition is likely to affect you. The heretofore passed largely unnoticed. But more substantive your choice for activity 1. Alison Frankel, “Wal-Mart Loses $6.5 temptation is to jump to the question of to a great extent you will determine how into the future, the more satisfying it will Million Wage-and-Hour Class Action,” whether you can afford to retire. As you spend your time. At first blush that be. In this context it is easy to confuse July 2, 2008, available at: essential as that issue is, there also are should be wonderfully freeing. Indeed, I recreation with career. One way to fail www.law.com/jsp/article.jsp?id=1202422 other significant matters to consider. highly recommend that all retirees give retirement is to do little that requires 711168 (last visited July 10, 2008). Here is a short list: themselves the freedom to do nothing at thought or purposeful contact with 2. Pusey v. Bator, 762 N.E.2d 968, 972 How will your changed status affect all for a period, using that time to relax, others. Nevertheless, what matters most (Ohio 2002). your family, most notably your spouse or to recover, and to give thought to the is that the activity lights your fire. 3. Rev. Rul. 87-41, 1987-1 C.B. 296. significant other? Many spouses future. The point here, however, is to For a more in-depth look at these 4. 29 C.F.R. § 541. enthusiastically support retirement and assess in advance how well you will retirement issues, you may wish to read 5. 29 C.F.R. §§ 785.18-785.19. look forward to having you relieved of adapt when there is little structure THE NUMBER, A Completely Different 6. See Van Barg v. Dixon Ticonderoga Co., work pressure. However, others fear the imposed by the outside world. If you Way to Think About the Rest of Your 789 N.E.2d 727, 728, 2003-Ohio-2531 upcoming change. Their fear may relate need outside structure to function, plan Life, by Lee Eisenburg, DON’T at ¶ 9 (6th Dist. Ct. Appeals). to the loss of regular income. It may be for that. RETIRE, REWIRE, 5 Steps to Fulfilling 7. 29 29 C.F.R. § 785.34; Bartlomain v. due to concern about whether, after Physicians know that when their Work That Fuels Your Passion, Suits U.S.P.S., 870 F.2d 657, (6th Cir., Ohio retirement, you will have focus and lawyer patients retire, weight gain will Your Personality, or Fills Your Pocket, 1989) (table case) purpose sufficient to stay healthy and almost certainly follow. It is sure proof, by Jeri Sadlar and Rick Miners. 8. Chao v. Akron Insulation and Supply, happy. Also, there is some truth to the had you otherwise needed it, that your Inc. 184 Fed Appx. 508 (6th Cir.,Ohio humorist’s line, “I married you for better occupation involves exercise. Without 2006) or worse, but not for lunch.” They may giving it great thought, each workday 9. See Reich v. Petroleum Sales, Inc., 30 simply not look forward to sharing the you move. Moreover, you are actively F.3d 654, 655 (6th Cir. Tenn. 1994). house – their “office” – with you all day involved, which in turn may keep your 10.29 C.F.R. § 778.304. every day. Candid conversations about mind away from whether you are 11. 29 U.S.C. § 203(m); 29 C.F.R. §§ 531.3, these subjects can expose and address hungry. With retirement you gratefully 531.6. those concerns. dispense with compelled activity. There 12.29 C.F.R. § 516.5. When you leave your principal career, is more leisure time, which also is time 13.29 C.F.R. § 516.6. some things about you will change. You available to think of food and eating. 14.See Ohio Const. Art. II, § 34a likely will cut loose from several long- That suggests that you must plan a time labels that may have been really sufficient exercise discipline to important to you, even though you compensate for the calories that you now rarely gave them thought. You will no burn or avoid in a normal working life. [email protected] longer be the Senior Partner of the firm Lastly, many like to tease that they or the company’s General Counsel. look forward to retirement as a thirty- Indeed, you soon may no longer be year vacation. A quick look at those who Attorney At Law! What’s that going to truly enjoy retirement reveals that the feel like? Will you have an identity apart better outlook is that it is a career from your place of employment or your transition. Those who capture happiness long-time profession? How important is into the future generally are those who that identity to how you feel about have a plan for their upcoming time. To Felix C. Wade, yourself? If it is a major issue, it is time develop that plan, they have made the Schottenstein Zox to give thought to finding other effort to identify their own passions. & Dunn meaningful objectives for the future. What is the activity that you most enjoy Bert Kram

42 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 43 Sports and Disclosures Entertainment News From Nameless TEN YEARS AFTER: By Lloyd E. Fisher Jr. church and began to rant about Ohio 6. The U.S. Bureau of Indian Affairs The Columbus Gestapo tactics. It seems that for several has been criticized repeatedly for its poor years she’s been buying cigarettes from record-keeping. It is likely that such ear Cousin Bud: I hope this an American Indian smoke shop in bookkeeping has affected Indian smoke reaches you before you hear Arizona and she fears that she will be in shops and thus any records of Maude’s from Maude Crabtree. You the next group of assessments. Maude purchases are suspect and inadmissible in Blue Jackets, might not remember her, but stopped at our office and tried to engage any action by the State of Ohio. D our assistant, Ethel Danzer, in a 7. Any crackdown on purchases of she’s the mother-in-law of Aunt Mable’s boy, Junior. Since Junior graduated from discussion about the problem but Ethel American Indian cigarettes could result in Ohioans crossing into Kentucky to LaSalle Internet Law School and started suggested that this matter was so The NHL And purchase cigarettes subject to the lower practicing with me, she keeps bothering important that it might warrant a class action by a big city firm like yours. Kentucky cigarette tax. This traffic him for free legal advice but this latest Maude is a strong believer in pre- would: (a) result in massive wear and episode may involve you. emptive strikes and she has begun the tear on the Ohio highways in the area; It all started when Maude read an compilation of what she believes are (b) require increased activity of the Ohio Free Tickets article in the Columbus Dispatch about perfect defenses to any action by the Highway Patrol; (c) raise constitutional the Ohio Department of Taxation issuing taxing authorities. A few of the ones that issues of search and seizure if the trunks By Greg Kirstein can get Blue Jackets’ Captain Rick Nash puck in our building, which caused a $300 tax assessment against a woman she has mentioned are listed below: of returning Ohio cars are opened and to their daughter’s Sweet 16 party.) hockey leagues worldwide to promptly who had purchased cigarettes from an 1. The Indian smoke shop is located (d) renew the old question of the exact Ten years after joining the Jackets, install nets in their arenas. out-of-state dealer. The newspaper stated on the tribal reservation and therefore it location of the boundary between Ohio irst, as much as I’m flattered by after a 16-year run mostly as a litigator that over 5,000 Ohioans were sent tax is in a sovereign nation. Any matters and Kentucky. the company hockey fans think I with a minor league sports Continued on Page 46 bills totaling more than $2,000,000 for concerning a sovereign nation are Cousin, these are just some of the keep, being General Counsel of a practice, I can sincerely tell you unpaid cigarette taxes. The following matters of international diplomacy and points Maude has been talking about. National Hockey League team it’s been a tremendous Sunday, Maude cornered Junior after F experience. For all of us are reserved to the federal government. Far be it from me to tell you how to run does not entail having morning coffee frustrated jocks (5’8’ = no The State of Ohio should bug out! a big city law firm, but, if you take on with Wayne Gretzky and Mario chance of a college basketball 2. Maude’s dealings with the Indian Maude’s case, it will be a class action Lemieux, or shootin’ the breeze with my career), working day-to-day in smoke shop are matters of her personal with the least class I can imagine. home boy, Rick Nash. I wish. a team setting makes you at privacy and those dealings cannot be It does entail though, much to my least think you’re still playing. disclosed to the state of Ohio. Especially See you at the family reunion. chagrin, some really boring leases for Even though the office morale retail space, an occasional tax return for since she’s a woman. shouldn’t rise-and-fall based Your Cousin the team’s foundation, and always, 3. The U.S. government and the State on how many rubber pucks of Ohio have made smoking a big health always telling fans they’re right — even younger men shoot into a net, issue, therefore any information about when I know they’re not. it predictably does. But the Maude’s smoking can be disclosed only if In all seriousness, the biggest next game always bring a new she has signed a HIPPA form authorizing attraction of the job is easily the variety. [email protected] sense of hope, and even the release of such information. And she From negotiating major deals with large though there’s little break in refuses to sign the form! sponsors, to run-of-the-mill slip-and-fall the flow of legal work, it 4. Maude’s cigarette transactions cases occurring in Nationwide Arena, to always seems likes involved an Indian tribe located in figuring out how to get the next Russian something’s missing during Arizona and a customer living in Ohio. or Czech player through the immigration the off-season. Under the U.S. Constitution, Article I, process, the constant variety is an elixir. We’ve had our share of Section 8, this clearly is “commerce” (Likewise, it helps that I don’t have to things I never would have among the several States and with an bill by the hour or win an auto accident expected when I said “yes” Indian Tribe. Regulation of such case to feed my family!) to the job in 1998: the 2004- commerce is reserved to Congress and And, I can unabashedly report, 10 05 NHL lockout, where all the Ohio General Assembly and the Ohio years into my dream job, I consistently of us somehow kept our Department of Taxation have no power get asked three questions. “Can you get jobs due to the unending to burden this commerce with taxes. me free hockey tickets?” “Can you get generosity of John H. 5. Some scientists (and Al Gore) have me tickets to that Rolling Stones/Billy McConnell and his son; suggested that cigarette smoking is Joel/Hannah Montana/NCAA Men’s watching the NHL and our contributing to the global warming Basketball event?” And, “Hey, those club spend beaucoup bucks crisis. However, since neither the United seats near the glass look good. My in legal fees when the States nor any American Indian tribe has [insert cousin/boss/kid/minister] would Russian Army declared that signed the Kyoto Protocol, Maude is really like to come to another game.” player Nikolai Zherdev under no international restriction on Lloyd E. Fisher Jr., (Unspoken translation: when can I give really belonged to them; smoking or purchasing cigarettes. So Porter Wright them free tickets again?!) and the tragic death of a there! Morris & Arthur (Honorable mention goes to whether I 13-year-old girl struck by a

44 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 45 Sports and Entertainment Travel A Baltic Blast By The Honorable David E. Cain were seated in the very last row at the hearing about ours and is fluent in English, opera.” German, Hebrew and Swedish. Our first stop was Stockholm, a city of We boarded the boat at Stockholm and it tour of the Baltic Region is a breathtaking charm, beauty and history. headed east across the Baltic Sea. The next surprisingly beautiful and Our traveling partners were my sister, Alice morning, we were at Tallinn, Estonia, a educational adventure into the Shooter of Fishers, Indiana; sister-in-law, former Soviet state. The main attraction was past and present. Joanne Wray of Cambridge; and Dr. Jerry Old Town, a walled area that still has 20 of A and Jay Gilroy of Lansing, Michigan. 46 original towers built in the Middle Ages. Nowadays, millions of people are doing it. And, the fellow travelers from Literally translated, Stockholm means “log When our ship’s staff had announced the around the world offer still more exposure island.” Actually, it covers 14 islands with night before that Tallinn is on daylight to cultural diversity. its space divided into one-third water, one- savings time and clocks needed to be Our trip was originally planned as a third green space (all public parklands) and advanced an hour, I realized that the lack of vacation, a chance to leisurely cruise from one-third for structures. The latter was sleep was posing a problem. We had lost a place to place and soak in the sights and a nearly all paved with chunks of marble whole night going from Chicago to chance for my wife, Mary Ann, to see the (roughly in 3-inch cubes) arranged in Stockholm when clocks were suddenly area where her paternal grandfather was curving patterns. Stockholm is the site of the advanced by six hours. We would enter still born and raised. It turned out to be an Nobel Prize and a place at center city called another time zone before arriving in Russia eight-day crash course through the rich Old Town. Spread over a hill with bending the next day and Tallinn had the nerve to history of the Baltic States with the use of narrow streets, shops and restaurants thrive swipe another hour by being on daylight buses, boats and planes. in Old Town where about 2,500 people savings time? It already stayed daylight till Many from Columbus have made such reside in buildings that date back to the almost midnight. And one could not quite a trip. The first in modern times was 1500s. Stockholm could be described as tell when the red on the horizon was the Columbus attorney Myron Shwartz who busy (pedestrians still crowd the streets at sunset or had become dawn. And they traveled to Moscow in 1968. It was the midnight) but relaxed. Even the ornate needed daylight savings time? first American tour allowed and most of soldier guarding the Royal Palace slouched the participants were reporters, he said. from time to time. “We’re relaxed because By the next morning, we had arrived in He has returned two or three times since. we haven’t been at war for 200 years, we’ve Russia, docking at St. Petersburg where “You could tell how our countries were had no natural disasters and the taxes are things were right off colder, damper and getting along by how we were personally only 108 percent,” according to our guide darker. “Our climate is nine months of treated,” Shwartz recalled. During our Aviva Cohen-Silber. She turned out to be anticipation and three months of first trip, relations were good. The our favorite of the entire trip because of her disappointment,” a guide would soon be Continued from Page 45 coaches, GM’s, broadcasters, scouts and most lawyers that I have the best law job Russians were proud of Sputnik. We went ability to eagerly and intelligently discuss telling us. But a six-man brass band greeted everything from health care to shipwrecks. trainers’ contracts; building lease, in the city. I’m fortunate to work for to the opera and sat in the front row. The us as we disembarked and it played a She loved her country, loved It’s also been intriguing to watch the sponsor deals, food and beverage people of character and to be part of next time, things were different. And we variety of Americana tunes to lighten our spirits. St. Petersburg was founded in 1703 to-and-fro of Columbus’s support for its agreements, merchandise deals and something that for many, finally put by Peter the First, aka Peter the Great, and first-ever team in a “Big Four” signage deals; radio, TV and cable TV Columbus on the national map. Thanks now has 4.5 million in its metropolitan to my brethren in the bar and their firms professional sport: unbelievable fandom deals. There’s a tort side, usually area. A bus ride through the city to Peterof’s for your support of the Jackets — and in the first few years, fewer casual fans stemming from injuries suffered at Arena Palace on the outskirts reveals block after every now-and-then, call me if you need post-lockout, and a renewed sense of events. There’s a licensing and block of massive marble block apartment a freebie or want to meet Mario, Wayne pride and excitement with the recent intellectual property side: logos, buildings, each one home to thousands of hiring of Stanley Cup-winning Coach trademarks, slogans, colors, Stinger, or Rick! residents. Many were built in the 1950s in Ken Hitchcock. Our club is steadfastly cannons and Hats for Heroes. There’s an the architectural style of the Stalin Empire, thankful for the fan support for a “non- immigration side, as typically only 15% or as some would say the “Stalin Vampire.” traditional” sport, and lawyers in of the NHL players are American. Post In 1995, “privatization” became a reality particular have been to our games in 9/11, unfettered travel for foreigners has and residents were thereafter authorized to [email protected] droves. We also humbly believe we’ve gotten tougher. There’s a football side buy apartments previously being rented by done something grand for the with the Columbus Destroyers, whom I the state. The advantages of private community. Without the team, there’s “loan” my services to. And lastly, there’s ownership are now readily apparent. St. Petersburg incorporates more than likely no Arena. Without the Arena, the part my friends think dominates my 100 islands and is crisscrossed by more there’s no Arena District, and without days: assisting on NHL player contracts, than 60 rivers and canals, sometimes the Arena District, Columbus is minus affiliation agreements with minor league drawing comparisons to Venice, Italy, a one of its top five developments in the clubs, and the occasional behind-the- place that Peter had visited and loved. past 50 years. (Thank you, Mr. Mac and scenes work when one of our players, Greg Kirstein, Even the city’s some 300 bridges show Nationwide.) although rare, gets (pause) Sr. VP & General architectural pride. So what do I really do? The job is rambunctious. Counsel, Columbus largely that of a contract lawyer: A decade in, I continue to be told by Blue Jackets Continued on Page 48

46 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 47 Travel Travel

Continued from Page 47 estate,” she added. An ordinary flat costs shapes but were actually originally The next day brought us to Visby, the Copenhagen has its share of attractions, about $5,800 per square meter, she said, conceived to resemble flaming candles. capital of Gotland. The city was founded but I was now too tired to take notes. The city was under seize for nearly 900 and banks charge about 15 percent interest in 700 A.D. by the Vikings but the first Instead, I simply enjoyed riding along Hans days during WWII. The Nazis occupied on purchase loans. Again, the apartment Our five-star lunch at the famous record of people living on Gotland dates to Christian Anderson Blvd. and watching the and trashed Peterof’s Palace to the west buildings are huge. Single family homes are Pushkin Café was another unforgettable. about 500 B.C. The Vikings became rich gondolas and kayaks on the nearby canals. and Catherine’s Palace in the village of virtually non-existent within Moscow and We arrived back at our ship in St. from the sale of silver and built a 3400- Pushkin about 18 miles to the south. some 10 miles beyond. “Downtown” Petersburg at nearly 11 p.m. and had an kilometer long sea wall around the city to Denmark has a population of five Approximately one million people starved would seem to include about everything 8:30 a.m. date with another guide the next protect their silver hoards from thieves. million people and four and half million to death and were buried in mass graves. inside the 100-kilometer highway that morning. Two miles of the wall – along with scores bicycles, the guide pointed out. The But the Nazis were never able to penetrate circles the city. Words such as “massive,” Construction of Catherine’s Palace of medieval houses, churches and towers – average income is taxed at 50 percent and the city limits. Thousands of art pieces, “powerful” and “unbelievable wealth” began in 1710 to give her a summer are still standing. One of the churches has the purchase of a car is taxed at 180 gilded chandeliers, furniture and countless keep popping into one’s head as the bus palace, a choice of where to stay. been in continuous use since 1225. The percent. invaluable antiques were individually continues inward. And the whole area is Restoration began 42 years ago and is still whole island is limestone and that provides With plenty of public transportation wrapped, padded in wooden crates and covered with permanent snow about six not quite complete. The palace has 32 the surface for ancient picture stones on (along with the bicycles) cars are not shipped to Siberia for safekeeping before months of each year. gilded rooms on the second level which display in the museum. needed, she added. the Nazis arrived. Now restoration of both The word “Kremlin” means fortress and serves as the main level. Nobody counted But most of all Visby looks like the As with all the Baltic cities (except palaces is nearly complete and the citadel. It is actually a walled city with the rooms on the other two floors because setting for a fairy tale with the ruins of Russia) bike paths at least half as wide as furnishings have been returned to create museums, churches and palaces as well as most of them were servants’ quarters. On fortifications and flower covered cottages car lanes were plentiful and well used. stunning sights into the opulence that top governmental offices. They sit behind the second level, ceilings were covered with lining cobbled lanes that meander over the Lutheran is practically the only religious surrounded the reigns of Peter and, then, fortress walls that have an overall length of painted tapestries from the 17th Century. hillsides. Thirty-five varieties of wild denomination in Scandinavian cities, but Catherine. 2235 meters. The Kremlin is situated on The walls in one room are totally covered orchids thrive in the glades and the town is hardly anyone goes to church except on Our second day in Russia created the high bank of the Moscow River at the with pieces of the precious stone Amber blanketed by hundreds of varieties of roses special occasions (perhaps something is in another life-long memory. This time we mouth of the Neglinnaya River. On the (indigenous to the Baltic) and in another that bloom even into November because of their blood from the religious persecution met our guide at 6:30 a.m. (instead of the other side of one of the walls is Red room the walls are papered with original the gentle climate. The Swedish island of their ancestors). Gasoline averages usual 8:30 a.m.) and headed for the St. Square, originally called fireplace in the portraits of young women. became known as the “island of roses and about $6 a gallon and Europeans think Petersburg’s airport to catch an aging 1500s and then Torg (Mart) Square in In the afternoon, we visited the State ruins” and is visited by botanists from all Americans are silly for worrying about $4 a gallon. jetliner for a one-hour flight to Moscow. 1700s and now so named to mean Hermitage, one of the finest art museums over the world. Today, it is known as a [email protected] And most noteworthy was cleanliness. “The most urgent problem in Moscow is beautiful (in Slavonic). With the towers of in the world. It occupies six magnificent photographers’ paradise. All of the cities, including those in Russia Honorable David E. Cain, transportation (despite nine train stations St. Basil’s Cathedral at one end and many buildings along the embankment of the Our last stop was Copenhagen, the are virtually litter free. Franklin County Common Pleas Court and four airports),” our guide commented towers inside the Kremlin all in one River Neva in the heart of St. Petersburg. cosmopolitan capital of Denmark. as the bus hit stop and go traffic several panoramic view and sporting their tops of Founded by Catherine II in 1762, the miles outside the city. Ford Focus is one of many tiered, colorful hipped roofs, the Hermitage has 1057 rooms and more than the most popular new cars and Russia has mammoth meeting place is breathtaking three million pieces of art. Other features several plants producing them. indeed. The tower tops, made of brick include a chandelier in the Central Hall “The most expensive thing is real covered with copper, look like onion that weighs more than a ton and in the early days had to be lowered every evening for the candles to be lighted. The building was not damaged by the Nazis because they never made it into the city. Estimates are that if a person stood in front of each work of art in the Hermitage for just one minute, the visit would take more than seven years. We spent only two or three hours but still got to see works by Vincent Van Gogh, Pablo Picasso, Leonardo da Vinci and Rembrandt – so close you could reach out and touch them (if you’re crazy). The Hermitage has 20,000 visitors a day. In all, the St. Petersburg area has more than three million a year. The next morning we were in Helsinki, Finland which was founded in 1550 to compete with Tallinn for Baltic Sea trade. Today, forestry is the biggest industry with 77 percent of the country covered with woodlands and paper being the chief export. Flat-bottomed, iron, ice-breaker boats keep the ports open in the winter. As our ship sailed away in the afternoon, sun-bathed bodies dotted the bare rock beaches of an island not far off the mainland. It was one of the best half dozen days of the year, we had been told. The temperature was 66º F.

48 Fall 2008 Columbus Bar Lawyers Quarterly Fall 2008 Columbus Bar Lawyers Quarterly 49 Classified Marketplace Classified Marketplace

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