COLUMBUSbriefsBAR

Summer 2006

Receivership By Michelle R. Dudley ...... 8

STAT! ASAP! PDQ! By Bruce A. Campbell ...... 9

Lawyer As Advisor By Alvin E. Mathews ...... 14

Supreme Court Watch By William A. Nolan & Julie B. Smith ...... 16

What The Blog? By Christopher R. Geidner ...... 17

The ART Of Birthing By Susan Garner Eisenman ...... 18

Appealability In Federal And Ohio Courts By Mary Beth Young ...... 22

The Wild West Could Get Wilder For Judges By The Honorable David E. Cain ...... 24

A Cornucopia Of Google Resources By Ken Kozlowski ...... 29

What Happens If Your Client’s Defense Triggers Immigration Issues? By Jay G. Perez ...... 34

Guidelines For Writing An Ohio Court Of Appeals Brief By Nancy Manougian ...... 38

Charitable Festivals In Ohio By Michael E. Zatezalo ...... 42

A SUPPLEMENT TO THE DAILY REPORTER

2 Mission: Possible: MPDI II By Patty Wise 4 And In Conclusion By Sally W. Bloomfield COLUMBUS BAR 5 Why Be A Member? By Belinda S. Barnes briefs 6 Destiny Carries A Briefcase By Patty Wise 8 Receivership By Michelle R. Dudley 9 STAT! ASAP! PDQ! Columbus Bar Association By Bruce A. Campbell Officers 10 At Will In Ohio By Deborah Pitluk Ecker President: President-Elect:Belinda S. Barnes 12 Notary Know Nos! Nelson E Genshaft By Leon Friedberg Secretary/Treasurer: Immediate Past President:Kathleen M. Trafford 14 Lawyer As Advisor Sally W. By Alvin E. Mathews Bloomfield 15 Uncovering Treasures By Janine Aquino Board of Governors 16 Supreme Court Watch By William A. Nolan & Julie B. Smith David S. Bloomfield, Jr. Hon. James L. Graham 17 What The Blog? Marie-Joëlle C. Khouzam By Christopher R. Geidner Stephen L. McIntosh Robert G. Palmer 18 The ART Of Birthing By Susan Garner Eisenman David T. Patterson Mark C. Petrucci 19 The Push To Ban Gay Adoptions Kristy J. Swope By Thomas N. Taneff Elizabeth J. Watters 20 Is It Really Equitable Distribution? Bradley B. Wrightsel By Gary A. Moll OSBA District Representative: Reginald W. 22 Appealability In Federal And Ohio Courts Jackson By Mary Beth Young ABA Delegate: Executive Director:Carl D. Smallwood 24 The Wild West Could Get Wilder For Judges Alexander Lagusch By The Honorable David E. Cain Communications Director: Editor: Emily Eastin 25 Hail And Farewell Hon. Mark R. Abel By The Honorable Mark R. Abel Managing Editor: Production: Esther Kash 26 Civil Jury Trials Editorial Staff:The Daily Reporter By Belinda S. Barnes & Joshua R. Bills Jessica Roberts 29 A Cornucopia Of Google Resources By Ken Kozlowski Columbus Bar briefs is published by The Daily 30 Out-Of-State Defendants By Daniel N. Jabe Reporter for the Columbus Bar Association, 175 South Third Street, Columbus, Ohio 43215, 32 Sovereign Immunity In Bankruptcy 614/221.4112, four times a year — Winter, By Tyson A. Crist Spring, Summer and Fall. Statements or opinions expressed herein are those of the authors and do 33 Guidepost To The Invisible Web By Ellen Smith not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff. 34 If Your Client’s Defense Triggers Immigration Issues? By Jay G. Perez —— 35 The Black Laws NOTICE By Stephen Middleton, Reviewed by Janice C. Katz Any statements pertaining to the law 36 “Mental Only” And The Constitution contained in this magazine are intended By John C. Barno solely to provide broad, general Find what you need to know in each issue of 37 Enhancing The Profession information, not legal advice. Readers By Trisha L. Balthaser should seek advice from a licensed attorney The Daily Reporter - from the fair, accurate with regard to any specific legal issues. reporting of general business issues and 38 Guidelines For Writing An Ohio Court Of Appeals Brief By Nancy Manougian articles of interest to legal professionals, 41 Permanent Spousal Support to our timely court summaries, to complete By Janice M. Flowers legal listings of trial assignments, judicial 42 Charitable Festivals In Ohio proceedings and public notices. By Michael E. Zatezalo 44 My French Connection By Janyce C. Katz 580 S. High St., Suite 316 • Columbus, OH 43215 (614) 228-NEWS (6397) • www.sourcenews.com

1 Summer 2006 briefs attention, does this mean the Diversity Y Initiative is “a 100 percent success,” hands

T MISSION: POSSIBLE: MPDI II shaken, case closed? I No. What it means, says Ms.

N Bloomfield, is that Columbus is starting Y Managing Partner’s Diversity Initiative charts 2010

U from a better place than five years ago. “This is the signal year we get to leverage T M By Patty Wise the passion of the original Managing I

M Partner’s Diversity Initiative with superior knowledge about how to improve in the O

N next five years, specifically, retention ew who were present will likely • Minority partners increased 100 percent, C efforts and continued changes in firm forget the moment six years ago from 14 to 28 culture.” U L when Carl Smallwood, taking office • Minority associates increased 119 F Adds George Hairston, managing A as the Columbus Bar’s first African percent, from 31 to 68; partner of Baker & Hostetler and current American president, issued a call to action • Minority summer associates increased G

M chairman of the Diversity Initiative at the organization’s annual meeting. 100 percent, from 19 to 38; Left: Carl D. Smallwood, past-president 2000-2001

E Advisory Board, “Minority representation “We have captured in this room • Minority attorneys overall increased 117 in our firms is clearly much better in 2006 Right: Alex Lagusch, Annette Hudson-Clay, George W. Hairston L energy we cannot waste. We have an percent, from 47 to 102; M Patty Wise than 2000, but the reality is we’ve also seen opportunity we cannot waste, to light the • Small firms increased minority attorney some excellent minority attorneys choose way for bar associations around the representation from 1.3 percent to 7 to leave this year. Recruitment is a vital country. percent, (3 to 27); O step, and we’ve gotten good at it. But PARTICIPANTS Right here. Right now.” generate the critical mass we clearly • Medium-sized firms from 5.8 percent to long-term diversity also requires building He continued: lacked,” Smallwood recalls. 7.12 percent, (16 to 22); in the 2006-2010 Managing Partners’ Diversity Initiative are: C an environment for success and “With your help, we will forge a So 2000 became a year of drafting, • Large law firms from 3.8 percent to 6.8 satisfaction that keeps minority attorneys • Bailey Cavalieri LLC • Luper Neidenthal & Logan LPA commitment to help our law firms become consensus building, redrafting – all to percent, (27 to 53). wanting to stay.” • Baker & Hostetler LLP • Maguire & Schneider LLP more inclusive. A commitment to do so create a signatory document that sought to • Of the 229 attorneys hired in Columbus L On May 23 of 2006, the participating • Benesch Friedlander Coplan & • Porter Wright Morris & Arthur LLP sooner, not later. A commitment in significantly change the face of the since 2000, 24 percent were lawyers of firms and organizations came together to Aronoff LLP • Reminger & Reminger Co., LPA writing, not merely in words. A Columbus legal community within five color.

A sign a new document, renewing their • Blaugrund Herbert & Martin • Schottenstein Zox & Dunn Co., LPA commitment directed to real change, not years. commitment to diversity and agreeing to Incorporated • Squire Sanders & Dempsey LLP token numbers.” In June of 2001, the Columbus “For five years the Columbus legal new action steps for the next five year • Bricker & Eckler LLP • Thompson Hine LLP G It was the year 2000, a new century, legal community came together to make community has powered a comprehensive period through 2010. The renewed • Buckingham Doolittle & Burroughs • Vorys Sater Seymour and Pease LLP a perfect turning point to address what a it official – an historic public pledge to effort to recruit, retain and promote initiative was created after extensive LLP • Wiles Boyle Burkholder & E national legal publication had recently increase the racial diversity of area law talented minority attorneys, an effort research, surveys and focus groups within • Carlile Patchen & Murphy LLP Bringarder Co., LPA pointed out in, well, black and white: firms. The effort was joined by twenty- reflected in firms of every size from twice the Columbus legal community. It sets • Carpenter & Lipps LLP L Columbus’s legal community came up two Columbus law firms (now 24), the the number of minority partners to twice forth a menu of best practices that • Chester Willcox & Saxbe LLP Additional participants woefully short in racial diversity, lacking John Mercer Langston Bar Association, the minority summer clerks,” said Sally emphasize four areas: retention, • Crabbe Brown & James LLP • Capital University Law School opportunities for talented men and comprised primarily of African Bloomfield, president of the Columbus Bar. recruitment, law firm culture and • Hahn Loeser + Parks LLP • The Ohio State University Moritz women of color that could be found American attorneys; the Ohio State Others have noticed. Since 2001, the infrastructure for inclusion. Each • Isaac Brant Ledman & Teetor LLP College of Law elsewhere. University Moritz College of Law; Bar’s effort has become a model program participating organization agrees to write a • Jones Day • John Mercer Langston Bar In truth, many Columbus law firms Capital University Law School; and the for bar associations across the country diversity plan with measurable results • Kegler Brown Hill & Ritter Association were strongly committed to becoming Columbus Bar. The initiative committed and has been recognized locally, based on the best practices that meet its • Lane Alton & Horst LLC • Columbus Bar Association more diverse and were already working each of the participating firms to statewide and nationally, including the specific needs. Those plans will be reported on it individually. The local law schools specific action steps designed to recruit, 2003 “Diversity Champion” award from to and supported by the Columbus Bar. were already fielding a diverse body of hire, train, retain and promote minority United Way, the 2005 “Achievement The participants also agree to create and students. The Columbus Bar had attorneys, to create an environment Award” from the Ohio Society of promote an image of Columbus as a augmented its minority clerkship conducive to success. Each participant Association Executives, and the 2003 “diverse community of lawyers.” Examples As any of the participants will report, Added Yvette McGee Brown, a program with many other efforts to create also agreed to share employment data “Partnership Award” from the American of best practices include: progress in increasing diversity is not a former judge and current president of and support a diverse community of every year so the Columbus Bar could Bar Association. straight line. Not all feedback is positive, the Center for Child and Family attorneys. evaluate and publish the results. In a satisfying echo, a national legal • Conduct “regretted loss” study but it is all incorporated into making Advocacy, who also advises one of the But clearly, it wasn’t enough, and the Zoom to 2006. The most recent publication featured the initiative on its (voluntary departures of associates the positive change. signatory firms, “I’ve been practicing law time to act was now. “If some type of Managing Partner’s Diversity Initiative cover last year, with the headline firm would have liked to retain) and “As well as we thought we were for 21 years. When I was interviewing in collaboration, some collective effort, would survey of participating firms, released in “Diversity in the Heartland: A Look at implement actions to reduce regretted doing, when we saw the survey results law school, I just felt those opportunities result in greater diversity for each of them May, compared current data to 2000 Efforts in Columbus, Ohio.” loss; from our minority attorneys – they thought weren’t available to me. I didn’t feel I and for all of them, maybe that would statistics and found: With all the approbation and • Create focused development plans for we weren’t doing that well,” said the would be comfortable, I didn’t think they high-performing attorneys of color on diversity coordinator at one of the original would want me. To see the pendulum partnership track; signatory firms. The message was clear. change...I think that is huge.” • Measure and analyze the utilization of “We still have work to do, and it’s very By all accounts, the commitment attorneys of color by designated clients; important to hear that,” he said. forged five years ago by the Columbus • Link effective mentor participation Others in the legal community agree. legal community strides into the next five to performance and incentive com- “I was encouraged when I saw where the years with success at its back, bolstered pensation; next five years is targeted. It is really with strong footing, a clear vision, and • Recruit attorneys of color to present at focused on retention, while maintaining continued passion for the work that lies CLEs (continuing legal education); its commitment to recruitment. We are ahead. To be sure, an opportunity not • Establish a winter clerkship position for beginning to see the legal market change wasted. law students of color; its landscape in terms of providing an • Develop marketing tools that highlight environment where all lawyers can Columbus’s “diverse community of flourish,” said Robert Solomon, assistant lawyers” for use by law schools and law dean for Admission and Financial Aid, Patty Wise is a freelance writer and public firms in recruitment efforts; and director of Minority Affairs at the relations consultant currently based in • Reward participation in leadership Moritz College of Law. Solomon noted California. She has worked with the roles in the firm’s ongoing diversity that the diversity initiative is a good selling Columbus Bar for a number of years. initiative with billable hour credit as point when recruiting talented law appropriate. students.

2 3 Summer 2006 briefs Summer 2006 briefs P R T E N P S

E AND IN CONCLUSION WHY BE A MEMBER? I R D T M

A Columbus Bar report card Opening statement E G E N N D T By Belinda S. Barnes S U

E By Sally W. Bloomfield I J I A D L Y M

R ervice is the polestar of our profession. As a guiding didn’t know I had a choice. It was like going to college. When I was a kid, my mother talked in terms of “when A

A principle, service informs our practice and enriches our E you go to college…” not “if you go ….” And after I took G

G society. This commitment to serve is embedded in the

M S I culture of this legal community and in the mission of the the Oath to observe and abide by the Code (and other E directives), the managing partner of the firm where I was N

Columbus Bar. It is reflected every day in your actions. N M D Our Bar is strong because so many of you step up and working told me to join the local Bar. He likened it to D U serve – often not by title or in the limelight, but in ways that Sally W. Bloomfield, being a member of my neighborhood homeowners’ T

S Belinda S. Barnes, A U matter. As your president this past year, I have been very association. Columbus Bar Immediate Past President President 2006-2007 proud and inspired by your efforts. It wasn’t until the year Steve Chappelear was president I J 2005-2006

Attending to the business of the Bar, I was lifted up again that I truly became an active member. Steve posted a notice in A and again by the generosity of our members. Your the Daily Reporter that he was looking for attorneys interested in being appointed to the Judicial Screening committee. As a Y contributions of time, expertise, and funds are unparalleled in Earning national acclaim, the Managing Partner’s L trial attorney, I felt that I could contribute something of value, their number and in the sprit in which they are offered. I committee, and the electronic publication, The Complete Diversity Initiative was started in 2000 (Carl Smallwood,

R since I was in court frequently. I wrote Steve expressing my deplore the disconnect between the popularized general Lawyer. president and spearhead) so managing partners of

interest and he appointed me to a three-year term, a A reputation of lawyers in our society and the reality of your • Initiated the Practice Handbook containing the court rules of Columbus law firms could collaborate with the Bar in an rewarding and fascinating experience. (It was Steve who, later A many selfless good works. Franklin and surrounding counties as well as information on effort to make Columbus a truly diverse legal community. Your Columbus Bar has implemented many activities and on, encouraged me to take over the courthouse beat, reporting the judges and court personnel in the counties. During the last five years, the number of associates and G “Civil Jury Verdicts.”) services and accomplished much this year. It has been a • Published Reflections of Life and the Law, Wisdom and Wit of partners of color has doubled in the firms that are

M The following year, then-President Sandy Anderson banner year. Members, committees, board of governors and Columbus Bar Attorneys, a compendium of entertaining and participants in the Initiative. There is a second five-year appointed me to chair the Screening committee, and I E staff worked exceptionally hard to continue to make our bar educational vignettes from prominent attorneys plan in the works for this Initiative which will shift its focus continued to chair it for a couple of years. It was such a association the very best in the nation. Here are just some of • Provided 110 CLE programs, including the sold-out to retention issues. N M positive experience that I joined the Admissions committee, the year’s highlights. seminars on the new bankruptcy law, a federal bar review, For decades, the Columbus Bar has conducted annual which screens applicants before they can take the Bar exam; and the probate institute, attended by more than 3,400 performance polls (a report card to Franklin County jurists on • Established and implemented a policy for defense of the then several terms on the Judicial Campaign Advertising U members. competency), and preference polls of attorneys to determine D committee, which assists candidates by screening their judiciary. We now have a committee to review issues when • Launched additional member benefits including discounts which candidates are preferred in each Franklin County S advertisements to make sure they comport with the law. our judiciary is unfairly attacked by the media and a special for Angie’s List, Office Depot and HeartWise Diagnostic judicial race. The Bar consistently works with the courts to

Eventually, I was invited to run for the Board of A panel of subject matter experts; consultants are on board to Center for vascular, heart scans and virtual colonoscopies. improve their operations and it responds publicly when our Governors and after serving four years, I was elected assure that the message is clear. • Increased calls (50,000 annually) and internet referrals (up courts are unjustly attacked. This is deemed essential outreach Secretary-Treasurer and this past year served as President- • Created a pro bono plan that will (i) establish the Columbus 30 percent) to the Lawyer Referral Service. to the community. elect. Bar as your one-stop shop to volunteer for meaningful, time • Improved the Columbus Bar’s secretarial placement Our Bar strongly supports pro bono services, Since working with the board, I have reaffirmed why I am limited pro bono projects, (ii) establish a uniform application program. partnering with the Columbus Bar Foundation to assist its a member, now nineteen years. I am constantly amazed by all and client tracking system among existing pro bono • Increased the number of clients served by the Lawyers for members in worthwhile works. The goal is to match of the things the Bar does to benefit its members. programs, and (iii) foster pro bono programs that address Justice program to 900, a 33 percent increase. members with projects that will provide legal services Through committees we receive substantive law updates the greatest unmet legal need in our community – family law • Secured the highest number of member sustainers ever – where most needed – and at the same time, satisfy the and practice pointers – and the chance to know lawyers we issues. 653. attorneys’ pro bono obligation. The menu of pro bono otherwise might never have met. Networking allows attorneys • Implemented phase two of the Diversity Initiative with a • Kept the favorable ratio of dues support at 27 percent so that opportunities and sign up for same is available for viewing, to do something related to the law that isn’t the actual practice new agreement, signed by 24 law firms, that emphasizes revenue generating income of 73 percent supports our www.cbalaw.org. of law. Once a member joins a committee, he or she will get retention of attorneys of color, promotes firm cultures that programs and operations. Along with outstanding live CLE at a reasonable cost and email notices of upcoming meetings identifying the topics and foster diversity, and promotes the Columbus legal • Renegotiated a favorable lease so that the Bar is paying a the chance for members to be presenters, the Bar has an speakers. (Of course, any member can attend any meeting community as one that embraces diversity. reduced rent for the next several years excellent Lawyer Referral program. Any given day LRS may even without signing up.) • Raised a net of $68,000 that was contributed to the receive as many as two hundred calls from people who want a New Lawyers is a fun and vibrant committee that focuses Columbus Bar Foundation to fund three domestic relations This year I have seen the many contributions that you, our competent and ethical attorney. The Referral Service does an on personal and professional development for attorneys in Legal Aid attorneys who work exclusively on domestic members, make every day to strengthen our system of justice initial intake identifying the person’s legal needs then refers their first decade of practice. The committee provides both violence cases. and our quality of life. him to one of the panel members who has been approved to social and service opportunities. • Contributed $10,000 to Katrina relief agencies within days participate in program. While my term vanished in the blink of an eye, the For the truly new lawyers, the Columbus Bar mentoring after the disaster and, with the Foundation donated $5,000 In addition to a myriad of professional benefits, the memories and relationships will last a lifetime. And, more program is a gem. New members are matched with more to help attorneys in Louisiana. The Columbus Bar also Columbus Bar has used its considerable clout to negotiate important, the quality, innovative programs and services experienced lawyers and encouraged to get together monthly. published an Ohio Disaster Relief Manual to be used in the favorable health insurance plans for its members, as well as delivered by the Bar this year continue an upward trajectory While mentors do not assist with substantive law issues, they event of a natural disaster in our state. discounts for its members on a variety of products and for the association. We have a more engaged membership. provide guidance with regard to practice concerns. • Increased significantly the number of members consistently services. We have strong leadership team in our new president Belinda Over the years, the Bar has regularly assembled task participating in committees. So why be a member? (I learned early in the game that Barnes and the other officers and of course, in our renowned forces to analyze issues for possible initiatives. There was an • Revised the Judicial Campaign Advertising rules and membership is indeed optional.) The Columbus Bar has executive director, Alex Lagusch. We have momentum. early study on discrimination of lawyers based upon sexual improved the process for the review of judicial campaign something of unique value to offer the local attorneys, a I thank each of you for your support and contributions. orientation, resulting in recommendations to the Bar to help literature and again garnered 100 percent of the judicial wonderful opportunity to be involved and stay involved in Your service is a beacon for us all and a standard that recognize and combat unfairness. candidates participation in the program. those things that directly impact the attorneys’ ability to illuminates our profession. I am grateful to be your colleague in The Columbus Bar has recently partnered with the • Engaged in ethics investigations that totaled the number of practice law effectively and with personal satisfaction. the other Ohio metro bars combined and equaled the the Columbus Bar. Women Lawyers of Franklin County to enhance the services number of investigations that the Office of Disciplinary and benefits each organization offers to its women members. Counsel conducted. Together, they will examine issues unique to women lawyers • Published several new periodicals or sections of Bar and develop ways to help with personal and professional Briefs: Better Lawyer, a publication of the New Lawyers [email protected] development. [email protected]

4 5 Summer 2006 briefs Summer 2006 briefs A of the Board and now steps up as the Managing Partner’s Diversity active children in the back seat. Family president, “a wonderful, exciting Initiative. time includes watching “American D opportunity,” she says. Another goal is to get more Idol” together, although her daughter

N As president, Belinda says she will attorneys to return to participation in chastises Belinda when she tries to sing A E focus on protecting the independence the Columbus Bar – particularly along. DESTINY CARRIES A BRIEFCASE: of the judiciary, continuing the women who stopped practicing when That’s OK. The woman who G excellent work of her predecessor Sally their law career seemed incompatible bought a briefcase when she was 12 D A Bloomfield. “For a litigator, an with raising children. “Until I had was clearly meant to be a lawyer, not a

S independent judiciary is very important children myself, I didn’t realize the singer. And the incoming president of ’

N Belinda S. Barnes for what I do on a daily basis. I need terrible pressures of being an attorney the Columbus Bar. T judges to be fair and impartial and and a parent. No wonder there are very N E apply the law.” few female litigators – your schedule is

E A big part of that focus will often not your own, and as a mom you t was 1987 when incoming Columbus Bar President debate events – a practice frowned upon by their debate involve educating the public about the need it to be.” Patty Wise is a freelance writer and D G

I Belinda Barnes walked into attorney Grey Jones’s office coach. nature and importance of an Learning to juggle career and public relations consultant.

S for a job interview. She was a slight 22-year-old with “Some of the whoppers we would tell during independent judiciary, explaining what small children was a sudden but

A I E a fresh law degree, cum laude, from The Ohio State competition,” Blair remembers. “Belinda had a real talent judges can and cannot properly do. welcome change for Belinda and her University, and she was seeking a trial attorney for extemporaneous speaking, when you get a topic at the

R “There are so many misconceptions husband, Tim, a bailiff for Judge David

S position at a firm that had no women trial event and have just a few minutes to create a about the law, and those Fais. (They met during settlement week P

’ attorneys. speech. She was better at it than I was, misconceptions are no longer benign, if years ago when a cancellation gave Jones recalls asking the young combining her natural abilities to speak they ever were. Educating the public is them an empty room and time to talk.)

T applicant the standard “why do you with the intelligent spark she’s always an important role we must embrace as Married for 12 years without children, want to be a lawyer” question, and had. She was always the talker in the attorneys.” they decided to adopt a baby girl from getting the standard answer. But he family,” he laughed. Belinda will also work to establish China. Three months after bringing N looked at her closely and for some With her success in speech the Columbus Bar’s new role as a their new daughter home, Belinda reason posed a question he’d and debate established and a central clearinghouse for pro bono discovered she was pregnant with her E never used before or since. career goal firmly in mind, work. “Sally has done a great job son. “In one year, we had two children. Belinda sped through her getting this effort off the ground. Everything worked out beautifully, and

D “When did you get higher education. She Whether or not you are in favor of the it is so much fun!” Belinda says. Marley attended OSU without a I your first briefcase?” expected OSSC guidelines, the and Chase are now three and a half asked Jones. break to complete her Columbus Bar has a great offering to and one and a half years old. S undergraduate degree at the help attorneys find meaningful, Fortunately, Belinda has mastered “When I was 12,” age of 19, a B.S. in Economics satisfying and convenient ways to do the art of delegating. Carpooling with E summa cum laude, followed Patty Wise came Belinda’s pro bono work.” She is also pleased to her husband also helps, even if she can by law school. She was lead the first year of the next phase of no longer do work dictation with two unlikely reply. R accepted into the Bar one month after her 23rd birthday,

P Probing, Jones and cut her teeth as a trial followed up. “Who attorney at Enz Jones & bought it?” LeGrand for the next eight years doing high volume insurance “I did,” she said. defense. In 1995 Belinda joined Lane Not only did Belinda get the job, her Alton & Horst and made partner a few successful performance quickly opened the years later. Always a litigator, her practice eyes of the other partners and opened doors for over the years has included business many more women hires at the firm. litigation, fire cases, medical malpractice defense “Because of Belinda, we just changed our entire and plaintiff personal injury, but currently consists mostly thinking – it was a realization,” Jones said. of insurance defense work. She practices in a variety of It was one more promising moment in a career that courts, from Franklin County Common Pleas and really started when Belinda was about 12, when she began Municipal Court to contiguous county courts as well as the U.S. District Court. saying she wanted to be a lawyer. “I thought it was cool to Since so much of Belinda’s work takes place in say that – my mom would get excited – and I said it so many courtrooms, it makes perfect sense that her Bar times I finally became one,” she says today, now a partner involvement over the last decade has focused on judicial at Lane Alton & Horst. committees and activities. In 1995 she accepted a request Her experience on the speech and debate team at to sit on the Judicial Screening Committee, which Marysville High School confirmed her choice. “Once interviews and rates candidates for judge, and chaired it I got on that team I was hooked. I couldn’t imagine not the following year and again in 2000. “So often people get doing this for a living.” soured on politics, but that committee is purely apolitical. In fact, both Belinda and her older brother Blair were We look at the judicial candidates solely for their forced to make a choice early on when the very active qualifications,” she said. speech and debate team, which competed statewide and Next up was the Judicial Campaign Advertising nationally, interfered with other high school activities. Committee, which monitors advertising during judicial Blair, a talented wrestler, chose speech and debate, to the campaigns. Belinda served on that committee from 1996 – surprise of his wrestling coach. A year later Belinda, who 2002, chairing it in 2000, and continues to serve as an held a much coveted spot on the cheerleading team, chose alternate when needed. “We’ve had a real impact keeping speech and debate, to the surprise of her cheerleading local races clean, and that is as important to the public as it coach. is to the candidates, even if they disagree in the heat of the It was a rollicking group of smart kids who tried to moment,” she said. Over the years she has also served on make the judges laugh when they could. With the same and chaired numerous additional committees, initials, Belinda and brother Blair both liked to write B.S. subcommittees and task forces. Barnes on the blackboard identifying themselves at Since 2000, Belinda has been a Columbus Bar member

6 7 Summer 2006 briefs Summer 2006 briefs M S A R T M E RECEIVERSHIP STAT! ASAP! T T S E T M A The business litigator’s friend R A R S PDQ! ore than T M & E

By Michelle R. Dudley T Y

ever, M

T By Bruce A. Campbell E E A N

T he term receivership reducing the stress placed on N R O often conjures up the business owner, who will s much as any other, these good people want to do N A images of failing no longer have to balance his brusque acronyms are the perfect

M T something meaningful and companies and selling off efforts between staving off emblems of our impatient era. S A E assets at rock-bottom prices the creditors and trying to Many who wield or receive these

lasting with their lives. R M – not too promising a keep the business afloat. snappish imperatives are unaware of & prospect in business If a statutory receiver- how they came into the vernacular To create a legacy. S litigation. Times have ship is appropriate for your much less what they were originally Bruce A. Campbell, Y changed, and receiverships client, there are a few rules intended to convey. “Stat” is from the Columbus Bar Counsel Many are looking to can be effective tools to to keep in mind. Most Latin “statim” meaning on the spot, at M E streamline business wind importantly, a case cannot be once, instantly. It was first used for memorialize a love one, downs, provide an alter- filed solely for the purpose of medical prescriptions to indicate a life-

native to foreclosure, and gain a tax advantage or unite A N threatening medical necessity. Now it applying for the appointment We are all being goaded and protect corporate assets is more commonly used to command a of a receiver. There must be a goading others to produce (goods, their family

where there are issues of factotum to produce a mocha latte N separate basis for filing suit, ideas, profits, piles of unreadable/ O waste, fraud or breaches of grande. ASAP is military slang which, with their philanthropic with the receivership being unread papers, etc.) by claims of fiduciary duty, as well as to used as a practical remedy.2 according to an on-line glossary of interests.

urgency not commensurate with need. N protect assets during the military jargon, arose during the Viet retaining those professionals. Third, the Your application must state We are being driven collectively nuts M pendency of an appeal and collect on the reasons for appointment of a receiver, Nam era. In current parlance, although 1 business can often continue operations and massively woebegone by the

judgments. the letters remain the same, their E with receiver oversight, thereby preserving demonstrate that the appointment is tempo set by the Maestro of Hustle For more than 20 years, The Receiverships are particularly meaning has morphed into “Well necessary to avoid irreparable loss or injury wielding a breakneck baton. At the effective tools to control both costs and whatever value may exist as a going Catholic Foundation has Before Humanly Possible (WBHP).” R concern and allowing a neutral third party to your client, and aver that there are no current acceleration rate, we will soon distrustful clients in caustic business The origins of PDQ are also military; to make decisions in the best interest of less harsh remedies to obtain relief. You be challenged to deliver the goods or helped hundreds of litigation that involves misappropriation will want to additionally explain to the the Q does not stand for “Quality.” services before the customers even S or waste (or imminent misappropriation the company. The receiver does not Nobody abides delay these days. individuals and families court what you anticipate will be the scope know they exist, much less forms a or waste) of corporate assets. First, as an enjoy unfettered authority, however, and Willingness to defer gratification, a of the receiver’s duties, and you should desire to have them (preemptive fulfill their charitable needs. arm of the court, the receiver is not the scope of his powers will be quality once thought to be a sign of submit one or more names and resumes of consumerism?). As Red Barber once beholden to either party but instead acts determined by the parties and, ultimately, maturity, is seen as listlessness if not proposed receivers. Once you have applied remarked (albeit in an entirely different as a neutral entity to protect and, where the court. As an added protection, the looniness. Immediacy incontestably for receivership, the court must notify the context) we are “running faster than We are here to work with appropriate, obtain the best value for the court typically requires the receiver to trumps worth. One’s value is measured other parties and hold a hearing unless country hogs after city slop.” Slop is business and its assets. With a receiver in submit periodic reports regarding against a welter of randomly-imposed you and your clients in you demonstrate that the time it will take pretty much what we are getting at the place, the conduct that jeopardized the performance of the business or the status deadlines. passing on their gift of faith. to provide notice and conduct a hearing finish line. corporate assets will presumably stop, and of asset liquidation and may require the Every day in every major city, will irreparably harm your client. Happily, lawyers are immune from the receiver can be vested with authority receiver to post a bond. kamikaze bicycle messengers risk In the event your client’s situation this malady. Renaissance individuals to recover any misappropriated assets. Finally, the amount charged by a appendages and brainpans darting Call us. does not warrant a statutory receivership that they are, they comprehend the Because the receiver is a disinterested receiver (and the receiver’s legal counsel) is about in traffic. According to a Harvard under R.C. 2735.01(A) through (E), but all larger meaning of things. They are third party, none of the litigants need go limited by statute. In Franklin County, the study conducted in Boston, these interested parties agree that a receivership secure in the certain knowledge that to the expense of hiring competing receiver may charge no more than $75 per modern Mercury types have a 90 would be in the best interests of the orderly, contemplative advancement is consultants, engaging in motions practice hour, and the receiver’s legal counsel may percent chance of on-the-job injury company, consider approaching the court always preferable to whip-induced to dispute the findings of the other side’s charge no more than $150 per hour. Both (for which two-thirds of them are not about authorizing a receivership under R.C. lurching. They do not offer their virgins consultants, or urging their attorneys to the receiver and his counsel must submit covered by insurance). All for what? To 2735.01(F), which is the “catch-all” (if any there be) in sacrifice to the God otherwise delay resolution for the their invoices to the court for review and move the instruments of commerce oh- provision that authorizes a receivership “in of Frenzy. And, as certain as I am about satisfaction of irking the opposing side. approval, further ensuring cost-effective so-slightly faster than conventional all other cases in which receivers have been these verities of my profession, I am Second, the receiver can be administration of the business. transmittal will allow. Does all that appointed by the usages of equity.” There equally convinced that my crazy Aunt empowered to retain all professionals Even where the receivership is the stuff “absolutely, positively” have to be is no guarantee that a court will grant the Daisy really could, as she claimed in necessary to carry out the purposes of the result of one or more under-secured ten-speeded to its destination? receivership, but it may be worth the effort her dotage, safely walk out of the creditors moving the court for Speaking of bikes, as a post-war receivership, such as accountants and real when the end result is a speedier and more window of her sixth-floor San kid (that would be WWII), I saved up estate agents, again saving the parties appointment of a receiver, business cost-effective resolution for your client. Francisco apartment and be supported paper route money to buy a Schwinn from the expenses associated with owners stand to benefit. The receiver will in the air by the radio waves. Black Phantom bicycle. As with almost disputing the identity and terms of make every effort to maximize recovery by Gotta go. My editor is pressing me everything of substance then, it had to the creditors and often possesses business 1 See, Ohio Revised Code Chapter 2735. For to meet another arbitrary deadline. Too THE CATHOLIC be ordered. I did not receive or expect connections as a result of previous further guidance, see Civ. R. 66 and Loc.R. bad; the column could be much better daily bulletins from the purveyor on its engagements that enable him to obtain a 93. – if I just had more time. FOUNDATION higher and better value for the assets. This 2 The exception to this rule is found at R.C. current whereabouts or its ETA as we in turn reduces personal liability of the 1701.86 and 1701.90, which expressly do now for web-ordered merchandise. business owner, who often has permits an action that is brought for the Weeks (seemed like years) passed 1071 S. High St. before the bike came, but the joy of undertaken personal liability for the purpose of winding up a business. [email protected] Columbus, OH 43206 obligation, to a greater extent than may getting it was intensified by the wait. I (614) 443-8893 have been possible if the business had don’t believe I was scarred by the pain Michelle R. Dudley, www.catholic-foundation.org been abandoned and left for the vultures. of anticipation – might even have Shayne & Greenwald A further benefit in this scenario is [email protected] benefited from it.

8 9 Summer 2006 briefs Summer 2006 briefs protects society’s interests.” In the

C case at bar, the majority found that I Ohio does not recognize a wrongful P AT WILL IN OHIO discharge cause of action premised

O solely on a discharge in violation of C

T the Family and Medical Leave Act.

I The employment doctrine The court distinguished its holding T in Kuich v. Structural Fibers. Inc.,8 P

O noting that the statute serving as By Deborah Pitluk Ecker the foundation for the public policy H claim in that case (Ohio’s O whistleblower statute) did not Central Ohio’s only daily business and legal newspaper. provide complete relief to the

T mployees who lose their jobs are typically hurt, angry, and on the plaintiff, and that the legislature did Elookout for legal redress of the not intend that statute’s remedies to T wrongs they perceive to have be the exclusive means of suffered. More often than not, they vindicating its embedded policy. Call today to subscribe. are confronted with the “at will” The Ohio Supreme Court At present, it remains to be seen (614) 228-NEWS (6397) • www.sourcenews.com O employment doctrine which has recognized an exception to whether Wiles will result in a more continues to thrive in Ohio. In fact, at conservative approach to the public will employment represents the the at will employment doctrine policy exception. Even if the H typical employment relationship. No when an employer discharges exception becomes more limited, written contract governs its terms; an employee for a reason that disgruntled employees will, no rather, either party maintains the contravenes clear public policy. doubt, continue to push the edges of discretion to end the relationship. In the at-will employment doctrine. light of this reality, what are the Therefore, given the time and boundaries to employer discretion? expense involved in defending With limited exception, Ohio courts wrongful discharge claims, em- have upheld the at will employment ployers are well-advised to carefully relationship. and consistently document employee As a general rule, absent an communications. In response, Practically speaking, an employee deficiencies and to consider limiting agreement to the contrary, an Ohio the employer will typically promulgate would bring an action based on the discharges to “for cause” situations. employer has the discretionary right an employee handbook with tort of wrongful discharge; a so-called to terminate an employee for any unambiguous disclaimers that the Greely claim. 1 1. reason not contrary to law. handbook contains only informational To prevail on a Greely claim a See Collins v. Rizkana, 73 Ohio St. Additionally, Ohio courts do not material and does not manifest an plaintiff must prove four elements: (1) 3d 65; Boden v. Anaconda Minerals recognize a requirement of good faith intention to create a contractual that a clear public policy is manifested Co., 757 F. Supp.848 (S.D. Ohio and fair dealing in the context of at relationship. Typically, handbooks in a state or federal constitution, 1990). 2 2. will employment. also contain language that expressly statute or administrative regulation, See Hundley v. Dayton Power & Employment is presumed to be at defines the employment relationship or in common law (clarity); (2) that Light Co., 148 Ohio App. 3d 556; will unless facts, circumstances or as “at will.” this public policy will be jeopardized Pyle v. Ledex, 49 Ohio App. 3d 139 sufficient evidence demonstrate that (1988). Turning to employer communi- by the dismissal of employees under 3. the employment agreement was for a cations, courts have limited the circumstances similar to those See Daup v. Tower Cellular. Inc., specified term (see Boden). An 136 Ohio App. 3d 555 (2000). ability of an employee to claim an involved in the plaintiff’s dismissal 4. employee may rebut this presumption implied contract based on employer (jeopardy); (3) that the employee’s See Helmick v. Cincinnati Word by showing that (1) the employer and communications. Courts have held dismissal was motivated by conduct Processing Inc., 45 Ohio St. 3d 131 employee agreed that discharge would (1989). that praise given to employees for job related to the public policy 5. occur only for cause, or (2) the performance does not alter the at will (causation); and (4) that there is no See Lawson v. AK Steel Corp., 121 employer made a promise to the 4 Ohio App. 3d 251 (1997). employment relationship. Similarly, a overriding legitimate business 6. employee, upon which the employee promise of future benefits without a justification for the dismissal by the See Root v. Pcc Airfoils, 1998 Ohio relied to his or her detriment specific promise of continued employer (justification). The first two App. LEXIS 4652 (1998), Clipson v. (invoking the doctrine of promissory employment does not alter the at of these elements are questions of law Schlessman, 89 Ohio App. 3d 230 3 estoppel). 5 (1993). will employment relationship. As to be determined by the court; the 7. Employees often endeavor to illustration, comments that an latter two elements are questions of See Greeley v. Miami Valley make these showings by referencing employer does not “just fire people fact for the trier-of-fact (see Rizkana). Maintenance Contractors, Inc., 49 provisions of employee Ohio St. 3d 228 (1990). for no good reason,” or that an In the wake of Greely, Ohio courts 8. handbooks and employee will “never have to worry have recognized public policy claims Kuich v. Structural Fibers. Inc., 78 other employer about [his/her] job,” did not based on age discrimination law, Ohio St. 3d 134 (1997). give rise to an implied Ohio’s Whistleblower Act, workers’ contract.6 compensation laws, and even a An employee may situation involving discharge for argue that his or serving jury duty. [email protected] her discharge violates In spite of these and other public policy. The Ohio actionable public policy claims, the Supreme Court has recent decision announced in Wiles v. recognized an exception Medina Auto Parts, 96 Ohio St. 3d 240 to the at will employ- (2002) indicates a potential shift in ment doctrine when approach to the public policy an employer dis- exception. In Wiles, a plurality of the charges an emplo- Ohio Supreme Court declined to Deborah Pitluk Ecker, yee for a reason recognize a wrongful discharge Luper Neidenthal that contravenes action “if there already exists a & Logan clear public policy.7 statutory remedy that adequately

10 11 Summer 2006 briefs Summer 2006 briefs Leslie’s6 client, Carolyn, was a party to a divorce. She failure was due to clerical error rather than his inattention. He S appeared at Leslie’s office to sign documents for filing with signed his own name as the affiant, signed the jurat using his E the court, but neglected to sign the affidavit in support of a secretary’s name as notary and then filed the affidavit with the T NOTARY KNOW NOS! motion for a restraining order. Carolyn wanted the papers court, “knowingly making a false statement of law or fact in S

O filed as soon as possible, so, trying to be helpful, Leslie called the representation of a client.” Carolyn at work and obtained her verbal permission to sign N Safeguards for signatures E her name to the affidavit. Leslie signed Carolyn’s name, then Notary Know “Nos.”

T notarized his own “signature,” certifying that Carolyn Trying to “help out a client” is something all lawyers do

T personally appeared before him and verified the facts (which every day, and properly so. However, with respect to notarial N By Leon Friedberg was true), but also that Carolyn “affixed her signature” (which duties, there really is no gray area. As lawyers who are also E was not true). Leslie filed the documents that day, and, notaries public, we especially must also know notary “Nos!” O

M obtained a temporary restraining order based on the affidavit. ost Ohio lawyers are also notaries public. Ohio Every lawyer should know an improper notarial act may Several days later, husband’s attorney noticed a discrepancy in U

N Revised Code Chapter 147 permits a lawyer to hold also constitute a violation of the CPR, (DR 102, Misconduct). Carolyn’s signatures in the documents filed. Although a C Mthe office of notary public so long as he or she is in Indeed, lawyers are regularly, severely and publicly, corrective affidavit was later filed and no one was harmed, 1. ORC 147.11 (up to $500 forfeiture for notarizing after expiration of commission); ORC 147.13 (removal for office for charging

O good standing with the Ohio Supreme Court. Other mortals sanctioned for improper notarial acts. How does this happen? Leslie’s notarial acts violated Disciplinary Rules (a lawyer shall

T must renew their commissions every five years. But lawyers Well, there are several easy ways to get it wrong. not engage in conduct prejudicial to the administration of excessive fees or unfaithful discharge of duties); ORC 147.14 D pay a price for being notaries, because our notarial acts justice). (removal from office for failing to administer oath/affirmation for come under scrutiny both under the notary laws and the The signer must sign a complete document. What if you ask your secretary to “sign” your client’s affidavit); ORC 147.99(additional up to $500 fine for notarizing N Ohio Supreme Court’s Code of Professional Responsibility Notaries are routinely warned to refuse to notarize name, then notarize that signature? No way, as Mary7 found after commission expired; additional up to $100 fine or 30 days (CPR). documents containing blanks, for obvious and good reasons. out. “Beyond the fact that these activities are a fraud on the imprisonment, or both, for failing to administer oath/affirmation E Ohio notaries are authorized to perform a number of Lawyers Sylvan and Bradley2 tested this notion “to the court where the documents are filed and on all those who rely for affidavit). important (and quite frequent) ministerial public duties, extreme” when they notarized totally blank documents. On a on such documents, this casual attitude [by a lawyer] toward 2. Cincinnati Bar Assn. v. Reisenfeld (Two cases.) 1998, 84 Ohio especially certifying acknowledgments and affidavits (a half-dozen occasions over several years, in what was described statutory requirements breeds disrespect for the law and for St.3d 30. M “jurat”). as “emergency situations,” Bradley dictated the contents of an the legal profession.” 3. Office of Disciplinary Counsel v. Heffner (2003), 98 Ohio St.3d An acknowledgment certification is the notary’s affidavit statement in the presence of his client but had his 320, 2003-Ohio-775. 4. U written declaration (properly written on the original client sign a blank sheet of paper. Later, he had the text (based The notary must sign her own name, too. Disciplinary Counsel v. Schumann (1994), 71 Ohio St.3d 101. document) that on a particular date a person (called a upon his dictation) printed on the blank sheets above his How about notarizing your own signature by signing your 5. Cleveland Bar Assn. v. Sterling (1998), 84 Ohio St.3d 268. 6. C “constituent”), known to (or adequately identified by) the client’s signature, notarized the signatures and filed the secretary’s name as the notary? Nope! James8 had served as a See Cincinnati Bar Assoc. v. Thomas (2001), 93 Ohio St.3d notary, appeared before the notary and acknowledged that affidavits with the court. Sylvan did the same thing a couple of federal judge’s clerk, assistant director and chief counsel for 402. the signature (either previously or then signed) on the times for his clients, but added an allegation in one of his the Ohio Department of Insurance, and was associated with 7. Lorain Cty. Bar Assn. v. Papcke (1998), 81 Ohio St.3d 91, 93-4. O document was the constituent’s signature for the purposes affidavits that the client later denied having made. These two prominent law firms. He was representing a judge as a 8. Lake Cty. Bar Assn. v. Speros (1995), 73 Ohio St.3d 101. of the document. Acknowledged documents are self- notarial acts by Sylvan and Bradley violated DR 1- party to an appeal which was dismissed, apparently due to

D authenticating. Some documents must be acknowledged 102(A)(4)(engaging in conduct involving dishonesty, fraud, James’s failure to timely file a brief. James filed a motion to properly to be effective; for example, deeds, mortgages, deceit, or misrepresentation). As a notary certifying an reinstate the appeal, and prepared an affidavit in support of certain leases and the like. acknowledgment or affidavit, you are authenticating the the motion which contained falsehoods suggesting that the [email protected] A jurat is the notary’s certification (properly written on document as you sign it; it should not be subject to inherent the original document) that the constituent, known to (or ambiguity or lack of completeness. adequately identified by) the notary, appeared before the notary, was administered the oath or affirmation (that the The signer must be present. statements in the document were true) by the notary, then Sarah3 was retained by Mom to probate an estate If you have a duly subscribed the document in the presence of the notary. involving the distribution of real estate to six heirs, two of project that’s An affidavit is more than a written statement of truth whom (Mom’s children) were minors. Someone else drafted starting to heat under penalty of perjury of similar pronouncement; it requires limited powers of attorney for the two minors so that Mom, up, we’ll come to the jurat certification by an appropriate officer, typically a Sarah’s client, could sign the minor’s names to deeds or other your rescue. notary public. Many administrative and judicial filings, from documents. In an effort to speed up the sale of the property, license applications, to property transfers, to mechanic’s liens Sarah notarized the LPOAs outside the presence of the must be affidavits. Importantly, numerous court-related minors. Even though there was no loss (damage) to anyone as documents, verified pleadings and support for various a result of the misconduct, Sarah’s notarial act violated DR 1- motions, must be in affidavit form. 102)(A)(4). Because the constituent must personally appear, a So, we know what notaries are supposed to do. By reverse notary cannot take an acknowledgment or administer an oath implication, then, we should know what notaries are not to over the phone or outside the presence of the constituent, do. You would think there was little room for discretion, much much less when they are never in contact with each other. less invention or imagination in the discharge of these basic, Whether performing an acknowledgment or a jurat well-defined and understood ministerial tasks? Wrong. certification, the signer must appear before the notary. Lawyers routinely perform obviously improper notarial acts, and you have to ask yourself: “Why?” The constituent must sign the document. 1 ORC Chapter 147 itself provides for civil and criminal William4 insisted he signed his client’s name to her penalties against all notaries public (whether lawyers or not) affidavit with her prior knowledge and consent. After signing What’s more, as your legal recruiting business partner, we’ll never for improper notarial acts. In addition, notaries are personally his client’s name, he notarized his own signature, and filed the liable for their negligent notarial acts. “But wait . . . there’s forget you don’t have money to burn. While satisfying any and all of affidavit with the court. William’s conduct violated DR 1- your legal professional needs with our highly skilled candidates, we’ll more!” 102(A)(4). be helping you contain costs and generate revenue with our business- Howard5 opposed a motion to dismiss his client’s tested ideas. And with 30 offices in North America, that means help complaint. He prepared an affidavit in support of his response, is always just a phone call away. based upon notes from his conversations with his client. Not only did the affidavit contain untrue allegations, but Howard forged his client’s signature on the affidavit before Columbus notarizing his own signature and filing it with the court. 614.221.1544 Howard’s notarial acts violated not only DR 1-102(A)(4), Specialized Legal Staffing SM but also DR 1?102(A)(5)(engaging in conduct prejudicial to Leon Friedberg, the administration of justice) and 1?102(A)(6)(engaging in attorneys paralegals legal support Carlile Patchen & Murphy any conduct adversely reflecting on his fitness to practice project teams roberthalflegal.com law). © Robert Half Legal. An Equal Opportunity Employer. 1204-5302

12 13 Summer 2006 briefs Summer 2006 briefs Findley’s defense strategy was very T A S risky for Potter. He also stressed that L C

he could not continue to take a T I LAWYER AS ADVISOR course of action that involved the UNCOVERING E H S S presentation of false testimony.3 He A T Giving the best advice stressed that, if he was going to & E C continue to represent her, Potter had REASURES L

T D to present Sawyer’s truthful I

testimony. He told Potter he would E By Alvin E. Mathews ask the court to withdraw from Are there valuables hiding in your home? E T H

representing her if Potter continued S to pursue the risky defense that A T would involve presenting false By Janine Aquino I

otter charged with L & insider trading testimony.4 After a period of soul S E Martha Potter faced trial for AINTAINING ROPER ALANCE searching, Potter agreed to present P M P B the truthful defense of Thomas highly valuable piece of artwork insider trading. Potter was innocent of the crime but she wanted to protect her In judicial elections Sawyer and to abandon the considered one man’s trash D long-time friend and business advisor, fraudulent Findley defense. A became a sought-after treasure for Huck Findley, who was the responsible many high bidders, including a celebrity. party in the stock sale transaction. Sound legal advice leads An elderly man enlisted the help of E Findley had received the stock tip and to the best result my estate settlement company to help him sort through his and his wife’s T had encouraged Potter to sell her stock. As the presentation of the Janine Aquino, However, he did not share the details defense’s case was set to begin, belongings. Over the years, the couple Estate Group A of the tip with Potter. Potter’s lawyer opened the had acquired several small collections of Findley had convinced Potter that proceedings by calling Sawyer to the art, jewelry, sports memorabilia and they would both be exonerated if they stand. Potter felt a sense of calm, as furniture; however, the husband was I put on a unified defense. Potter told she knew she made the correct more interested in determining the value owned other pieces created by the artist. L her lawyer that she wanted to align her decision. Findley felt shocked and of a particular piece of art that his wife Research is the key to obtaining the defense strategy with Findley to protect betrayed. Findley’s lawyer knew his had won at a raffle in 1977. most value for personal belongings or S him. Also, Potter’s lawyer was friends client was about to go down in The item was a three-dimensional collections. If you plan on taking with Findley’s lawyer. This friendship flames. Potter’s lawyer felt relieved woodcarving on a panel – typical of something to be sold by at auction, it is clouded his judgment and he advised that he led his client to a course of Columbus folk artist Elijah Pierce. A imperative to research a variety of growing interest in Pierce’s work has Potter to go along with Findley’s s the height of campaign Court of Ohio to request an advisory action that was based on sound auction houses before turning anything significantly increased its worth in recent defense plan. season approaches, we will opinion from the Board of ethical principles. over. Make sure that the house properly years; however there are still many pieces The plan of Findley and his lawyer be inundated with political Commissioners on Grievances and Sawyer testified that Potter photographs and advertises the item and was to refrain from cross-examining A knew nothing of the stock tip that in personal collections. Pierce often that it is listed individually, rather than in television and radio commercials, Discipline regarding the scope of donated his work to organizations for any of the prosecution’s witnesses and email, telephone messages, permitted judicial speech allowed by led to the improper sale transaction. a categorized group. When an item is to later tell their side of the story. The brochures and other advertisements. the Ohio Code of Judicial Conduct. Potter’s lawyer next called Potter as a raffles or simply gave them away. listed singly, it could generate more story they would tell protected Findley. With recent developments in the As the board pointed out, witness and she confirmed Sawyer’s Being familiar with Pierce’s art, I money. In my experience, I have learned This strategy was risky for Potter. If the law governing judicial campaigns, Ohio’s Code of Judicial Conduct, testimony that she did not know of noticed that this particular piece was that about 95 percent of people, unless jury did not believe their testimony, some legal ethics commentators which was amended effective July 1, the stock tip. Findley decided not to larger than most of his works and could they are astute collectors of a certain both Potter and Findley would be believe there is a temptation for 1995, does not contain the testify and was ultimately found be worth more than other pieces being item, are unaware of the full value of found guilty. judges to go to great lengths to “announce clause” that was struck guilty of insider trading by the jury. sold. I advised taking the piece to a their possessions – let alone know the As the trial played out, prosecution make the public aware of their down in the White case. Thus, so In the end, Potter’s lawyer was particular auction house. monetary value of a piece of art. witness after prosecution witness took positions on controversial political long as judicial candidates follow gratified that he fulfilled his ethical The man wrote a letter to the If you are unsure of the value of your the witness stand, but they were not questions. certain guidelines for their obligation to his client by providing auction house stating the item’s belongings or you are serving as executor cross-examined by Potter’s lawyer.1 In June 2002, United States campaign speech, they can avoid the best advice, so the truth would authenticity and origin and turned it over of an estate, employ someone with Supreme Court decision of Ohio’s disciplinary system. prevail. to be auctioned. Within four hours of the experience and expertise in identifying Potter’s lawyer reassesses Republican Party of Minnesota v. Ohio’s Code of Judicial auction house advertising the piece and valuables. An estate settlement company his advice to potter the date of the sale, over 1,100 hits came can help an executor ask the right White, 536 U.S. 765 (2002), the court Conduct Rules is effectively tailored 1. Potter’s lawyer squandered several held that individuals, (including to enhance the impartiality and See Mark Twain, Adventures of Tom through to its Web site including one questions in determining the value of an opportunities to make good points for Sawyer (1876). from a movie and television celebrity estate or a hidden treasure. sitting judges) running for judicial independence of the judiciary. Apart 2. Potter’s defense. As Potter’s lawyer office could not be barred from from maintaining this balance Ohio Code of Professional Responsi- who was interested in the piece. reflected upon these lost opportunities, bility, EC 7-5 When the bidding stopped, the work making the public aware of their sought by the rules, many believe 3. he began to question whether he gave positions on political questions the only way to solve the problem Ohio Code of Professional Responsi- of art that was hidden away in a brown Potter the best advice by presenting a bility, DR 7-102(B)(1) paper bag for over two decades sold Janine Aquino is president and CEO of about violating their First with judicial impartiality is to cease 4. unified defense. Potter’s lawyer learned Amendment rights. The White the practice of popularly electing Id for $8,000 to a Pierce collector who Estate Group. www.estate-group.com of a witness, Thomas Sawyer, whose decision prompted the Supreme judges. testimony was beneficial to Potter’s defense. Sawyer was a young Wall Street [email protected] stockbroker who had handled Potter’s investments. Sawyer possessed presenting its case, Potter determined Good lawyers do not important information that demon- who her trial witnesses would be. compromise ethical principles strated Potter knew nothing of the Potter’s lawyer met with her to finalize Potter’s lawyer advised her that stock tip. Sawyer knew that Findley Potter’s strategy. Potter’s lawyer the “unified defense” was a lie that was urged Potter to sell her stock but did advised her that they really needed to designed to protect Findley at the risk not tell her why. Findley’s lawyer call Sawyer as a witness because his of prejudicing Potter’s defense. Potter’s discouraged Potter from calling testimony exonerated Potter and lawyer told her that he had a Sawyer as a witness because his removed the risk of conviction. Potter professional obligation to give his testimony would be detrimental to responded that she did not want to opinion as to the likely outcome of the Findley. betray her friend, Findley and wanted course of action they were taking.2 Alvin E. Mathews, As the prosecution concluded to continue the unified defense. Potter’s lawyer advised her that Lane Alton & Horst

14 15 Summer 2006 briefs Summer 2006 briefs B L N O B O G I SUPREME COURT WATCH WHAT THE BLOG? L T O N

A Important employment litigation trends S

I Noun or verb O P L O H

A By William A. Nolan & Julie B. Smith I By Christopher R. Geidner G E T R E T O E R hile the addition of that the transfer constituted an hen I started blogging nearly three years ago, many A Justices Roberts and adverse action but differed on the people – primarily technology and political folks – were T & I S Alito has rightfully On June 5, the U.S. Supreme Court proper standard for determining blogging already and there were even several I

W W P taken center stage for U.S. determined that it had improvidently granted adverse action. Eight judges prominent legal blogs out there. At the time, though, most O P S L Supreme Court watchers, the certiorari in Mohawk Industries. The Court supported a standard that there mainstream media still hadn’t bought into the new technology, C docket includes several is an adverse action when there so blogs weren’t in the news. Most people didn’t know much, if I remanded the case to the Eleventh Circuit for H

A employment cases. Two of them further consideration in light of the Court’s is a materially adverse change in anything, about blogs or their mysterious authors. R in particular may have future decision the same day in Anza v. Ideal Steel the terms of her employment. Now, things have changed. Blogs are everywhere. Blogging Christopher R. Geidner, T ramifications for employment Supply Corp., Case No. 04-433. In Anza, the The other judges preferred a is “understood” well enough so I don’t cringe before I start trying Porter Wright Morris & Arthur LLP E lawyers because each is both Court held that a retail supply company could potentially more inclusive to explain to someone that I have a blog – “Law Dork” E reflective of and relevant to standard backed by two other R not sustain RICO claims against its (chrisgeidner.com/blog/) – where I discuss legal, political, and trends we are seeing in the cases circuits as well as the EEOC, competitor based on the competitor’s failure media issues. The only matter left to truly understanding legal blogs is R being filed in this area. which is that an employment E But what are blogs, really? And do they matter to practicing understanding where they are going next. It’s not just the to properly charge sales taxes and alleged action is adverse if it is resultant harm to the plaintiff’s business. The lawyers? academics, students, and judges promoting them. Law firms are Standard for “adverse reasonably likely to deter It’s perhaps best to think of a blog first as another form of plaintiff could not, as required under RICO, beginning to get in on the act. When U.S. Supreme Court employees from engaging in T action” in retaliation cases communication akin to cable TV. Much of the “blogosphere,” as litigator Tom Goldstein decided to leave his small practice and

& show “some direct relation between the The most widely watched protected conduct. it is called, may very well be a garble of niche topics that, at best, injury asserted and the injurious conduct join the D.C. office of Akin Gump, his highly respected and Perhaps needless to say, I employment case before the don’t interest most people or, at worst, is a bunch of trash. But, as heavily read “SCOTUSblog” moved with him and is now alleged.” In light of the increasing attention this discussion (which involves Court is Burlington Northern Santa with cable, although there are a seemingly overwhelming sponsored by the firm (www.scotusblog.com/). Davis Wright P to immigration compliance issues in recent still a third standard recognized O Fe Railway Co. v. White, No. 05- number of blogs, some of them are truly fantastic. The best blogs Tremaine has set up the Telecom Law Blog, presumably to make

weeks, the Eleventh Circuit’s application of in two other circuits but finding S 029, a Title VII case that will provide a unique viewpoint on a topic of interest to a significant the firm’s acumen in the area clear to any potential clients address what employer actions the Anza standard to Mohawk Industries no supporters on the Sixth number of people.

C searching the Internet for the latest FCC order or telecom case warrants continued scrutiny. Circuit) can seem rather constitute an “adverse action” The ways in which blogs can easily accommodate a niche (http://www.telecomlawblog.com/). I academic. However, it will likely sufficient to form the basis of a audience are particularly relevant to lawyers, who oftentimes In any event, no lawyer needs to take my word for it. Pay result in a standard that will retaliation claim. build an entire practice around one or a few niche areas of the heed to Justice Lanzinger’s advice, or even follow the lead of the R become a focal point of Retaliation claims are the law. Following a blog in an attorney’s area of practice can be law firms. Recent Ohio State Moritz Law graduate Ian Best this retaliation and other discrimi- fastest-growing group of claims in the area of employment law, invaluable in alerting that lawyer to a new case development or spring compiled “A Taxonomy of Legal Blogs,” which provides nation litigation arising from various job actions short of so any decision dealing with them is important and is likely to even to emerging trends across states or the federal courts. an outline-form categorization of more than 500 legal blogs obvious adverse actions like termination and demotion. become increasingly so as long as this trend continues. To take Howard Bashman has, for far longer than I, been operating (3lepiphany.typepad.com/3l_epiphany/2006/03/a_taxonomy_ The application of the resulting definition of adverse action just one piece of data as an example, U.S. Equal Employment “How Appealing,” which he notes is the “Web’s first blog of_l.html). The Legal Specialty section topics range from will likely not be limited to Title VII retaliation claims, but will Opportunity Commission statistics show that retaliation devoted to appellate litigation” (howappealing.law.com/). copyright law – “Copyfight,” is an excellent blog listed that fits also apply not only to “plain old” discrimination under Title VII charges filed with that agency have gone from 15.3 percent of Bashman provides up-to-the-minute updates on an almost the bill (copyfight.corante.com/) – to tax law, the University of but almost certainly be extended to cases under the other major all charges in 1992 to 29.5 percent in 2005. Retaliation claims incomprehensible number of appellate court cases across the Cincinnati College of Law Professor Paul Caron’s “TaxProf Blog” employment discrimination statutes. But the increasingly are a rapidly increasing part of the practice of employment law, country. Believe it or not, there’s also an excellent blog out there does the job (http://taxprof.typepad.com/) – to everything in commonly alleged retaliation fact pattern – complaint followed and it is increasingly common to see a discrimination or devoted entirely to development of the expert witness evidence between. by an alleged job action – and the increasing reliance on harassment claim dismissed on summary judgment while an rule: “Blog 702” (www.daubertontheweb.com/blog702.html). All practicing lawyers, or even those who have an interest in retaliation claims will make the decision particularly important accompanying retaliation claim, arising from some job action Here in Ohio, Professor Doug Berman at the Moritz College of the law, should take fifteen minutes out of their day to check out in that setting. taken against the employee after an earlier complaint of Law has established a criminal sentencing law blog so prominent the “Taxonomy” and look for a legal blog that could become a discrimination, proceeds to trial. that it is regularly cited in legal opinions (sentencing.typepad.com/). regular read as a great source of current, relevant legal information. The White case should establish a uniform standard for Availability of RICO action In fact, Ohio Supreme Court Justice Judith A. Lanzinger – in State v. Blogs won’t replace law reviews or good old-fashioned what constitutes an adverse action sufficient to be the basis of a In Mohawk Industries Inc. v. Williams, No. 05-465, the Foster, the Court’s recent sentencing decision – directed readers to research, just as they won’t replace newspapers – but a lawyer retaliation claim and will undoubtedly be widely cited in motion Court will address whether an employer and its third party Berman’s blog “for updates on Blakely [v. Washington] and current need not be a blogger to realize their value and use them as practice for years to come. This standard has been the subject of recruiters may form an enterprise so as to be sued under the source material on sentencing.” another helpful device in his or her research arsenal. significant disagreement among the federal courts of appeals. Racketeer Influenced and Corrupt Organizations Act (RICO). If Justice Lanzinger’s advice in a Supreme Court opinion In this case, several months after she had been hired, Plaintiffs are increasingly attempting to find ways to invoke the isn’t enough to convince practicing attorneys that blogs are Sheila White made a complaint of sexual harassment against broad reach of RICO in employment cases. Given this trend relevant to their practice, then this first-year attorney’s brief her supervisor. The company investigated and, as a result, and the many relationships employers maintain with third column certainly isn’t going to do so. [email protected] suspended the supervisor for ten days. At the same time, parties – recruiters, payroll agents, temporary and employee however, the company reassigned White to a standard laborer leasing agencies, etc. – this decision could have far reaching position because other (male) employees had complained that effects. she, a new employee, was getting to perform an easier job. In Williams, a class of current and former Mohawk She filed discrimination and retaliation charges with the Industries workers brought suit under RICO against the (Continued from Page 16) behalf are separate entities may have ramifications beyond EEOC. She was subsequently suspended for disciplinary employer and its recruiting company alleging that the two the narrow confines of this case and affect a number of other reasons and thereafter filed another retaliation charge. However, entities created an “enterprise” under RICO and conspired with Mohawk argued that the recruiters were its agents and relationships where a third party acts on behalf of an the company later reimbursed her for all pay lost during her the common purpose of recruiting illegal workers so Mohawk therefore not a separate enterprise as would be required to employer. suspension. In effect, then, she based her retaliation claim could reduce its labor costs. The workers alleged a form a conspiracy. The Eleventh Circuit rejected this position, solely on her transfer from the forklift driver job she was hired number of illegal practices designed to skirt immigration law though in a case decided in 2004 the Seventh Circuit has for to a more physically demanding position because she lost no requirements with respect to the workers, thereby bringing taken the contrary position and held that an employer and its pay or benefits. The claim proceeded to a jury and she down the cost of labor to the detriment of the plaintiffs. recruiters could not be sued under RICO. The decision to William A. Nolan & Julie B. Smith, Squire Sanders & Dempsey prevailed, leading to this appeal. resolve this circuit split and any tests it may set forth [email protected] An en banc panel of the Sixth Circuit unanimously held (Continued on Page 17) regarding when an employer and a third party working on its [email protected]

16 17 Summer 2006 briefs Summer 2006 briefs birth family pressures created by H E unintended quadruplets or serious O G H handicaps in a child. THE PUSH TO BAN T HE F IRTHING Increasingly, children conceived A T ART O B with donor gametes learn the facts of T T E O their conception and seek out their O N Technology and Ohio law donor parents. As genetics testing AY DOPTIONS P

E G A G becomes increasingly common, an ART T I R secret will be hard to keep. It is C By Susan Garner Eisenman A

A anticipated that ART children, like By Thomas N. Taneff P

adopted children before them, will T

T eventually demand the legal right to D

contained a specific exclusion of know their heritage. Ohio authorizes t was front page news when House O

E applicability to the surrogacy situation. the release of similar genetic and Bill 515 was introduced back in N

T These provisions also omitted the identity information to adoptees. February. The intent of the bill is

I P S gender-equal applicability language It is also anticipated that probate straight forward. H.B. No. 515 would E I present in the broader Ohio Uniform law may be impacted by ART. The ban homosexual, bisexual and S estate plans of former donors may need transgender people from adopting I S Unlike the Parentage Act. Thus, this law is not per R se applicable to ovum donation and to include a carefully drafted definition children or acting as foster parents. C A rapid evolution of the term “children” to limit it to Ohio is the first state this year to embryo donation situations. Thomas N. Taneff A of Assisted Unlike the rapid evolution of marital children and children adopted introduce a bill banning gay adoption, Assisted Reproductive Technology, by the testator. Likewise, ART children but at least eight other states might P Reproductive Ohio statutory law has been static. should be specifically named as introduce similar bills. Presently, Technology, Ohio Florida is the only state with such a Ohio courts have struggled valiantly to children in their intended parents’ ride on the coattails of Ohio’s ban. statutory law has rule on ART cases without legislative estate planning documents. successful anti-gay marriage D The issue of gay adoption in Ohio been static. Ohio guidance. An increasing number of There also may be issues amendment. Others worry such a was clarified by the courts in 1990. In individuals and couples have pursued concerning frozen embryos. Sometimes measure would remove a large group E courts have the case known as the “Adoption of their family-building dreams relying more embryos are created than the of people from the pool of potential Charles B,” the Ohio Supreme Court struggled valiantly upon a system of medical waivers and creating parents wish to use, or the parents, resulting in children having to T approved six to one the adoption of a to rule on ART releases similar to the releases creating parents disagree on the use of wait even longer for a permanent authorized for artificial insemination the stored embryos. Who ultimately disabled child by a gay man. The S home. cases without donor participants. decides? The property rights involved justices ruled that “non-marital sexual

I According to the National Center in frozen embryos are usually a matter conduct” including “homosexual legislative The use of waivers and consents to for Adoption Law and Policy, there are

S of contract law covered by an activity” must be shown to have a guidance. release and create legal relationships presently three thousand children on with ART children relies upon a agreement with the ART facility. direct adverse impact on the child

S adoption waiting lists statewide. The However, disputes do arise when the before it can be a basis for denying an contract law model. Generally, Ohio passage of House Bill 515, would affect courts have disfavored such models in intended father and mother cannot adoption petition. A agree or when circumstances occur The bill’s sponsor, Rep. Ron Hood these children. And undoubtedly such the field of family law. They have held a law would be challenged in the courts that parents cannot modify parental which were not covered by the (R-Ashville), calls the bill a child contract. protection act. Nine Ohio legislators as unconstitutional. Nationwide a rights by contracts between number of similar bills have been Susan Garner themselves, but rather have required Even as the initial test-tube babies who are among the most conservative introduced but none has passed. GOP Eisenman, Esq. and court intervention, either through a reach adulthood, the Ohio legislature Republicans in the General Assembly House Speaker Jon Husted has called “client” Ashley custody action or an adoption, to alter has failed to respond to the legal issues signed on as co-sponsors. Proponents the Ohio bill “divisive” and it is not parental rights. involved in ART. The Ohio judicial of the measure believe it is in the best expected to pass. But gay adoption Courts, notably California courts, system, left in charge without interest of children to assure placement remains a hot topic for state he world marveled at the news births. In approximately 30 percent of have endorsed “intent” based legislative guidance, has struggled to in a two-parent home that has a legislatures this year and those who that a baby, conceived in a petri the births, the pregnancy is a multiple outcomes and have relied upon the make hand-me-down laws and mother and a father, a husband and a advocate for Ohio families should keep dish and transferred to the birth. surrogacy contract to establish intent. presumptions “fit” new technologies. wife. T an eye on House Bill 515. mother’s uterus, had been born to an The technology has also evolved In contrast, in the leading case in Recently, the National Center for But critics see House Bill English woman. It was July, 1978. to allow separation of the genetic, Ohio, Belsito v. Clark, the Ohio court Adoption Law and Policy at Capital 515 as politically motivated and Since then, much has changed. gestational, and child-rearing aspects discouraged such reliance, relying University Law School sponsored a discriminatory. Some have charged A whole generation of children of parenthood. Egg donors, sperm instead on the medical consents and national moot court competition based that it is essentially a get-out-the vote conceived through Assisted donors, embryo donors, and waivers. The lack of state oversight of upon ART issues. This spring, the Ohio tactic for the right wing, an attempt to [email protected] Reproductive Technology (ART) has gestational surrogates often play a part the surrogacy arrangement has Supreme Court hosted a symposium on grown to young adulthood, including in these procedures. Many forms of troubled some children’s rights issues involved in ART. Louise Joy Brown, the first test-tube infertility once seen as incurable are advocates. Juxtaposed against these academic baby, who is now the mother of her now routinely handled with ART In addition to the determination of exercises, a real-life Ohio surrogacy own child. Almost a half million other procedures. The use of technology has legal parentage, other issues remain. case has made national headlines as a babies worldwide have been born empowered the increasing numbers of For example, the need/right to surrogate mother of test-tube triplets through Assisted Reproductive fertility-impaired individuals, including terminate an ART pregnancy can result fights to retain their custody against Technology (ART) procedures, over post-menopausal women and persons in a legal battle. As the technology has the intended sperm-producing dad. 150,000 babies in the United States without opposite gender partners, to become better, sometimes too many of The time has come for a new alone. Most major medical centers – create families. the embryos implant and an systematic approach and for the twelve here in Ohio – offer ART Ohio statutory law has not kept unintended triplet or quadruplet legislature to step bravely into this new services. pace with the rapid changes in ART pregnancy occurs, posing a health risk world to bring Ohio into the new The idea of ART has become part since 1978. The Ohio legislature in to the children and the surrogate. century. of culture and the American Heritage 1983 enacted provisions recognizing Other times, a prenatally-diagnosed Dictionary has adopted the term, “test- another form of Assisted Reproductive birth defect may result in a situation tube baby.” Technology has also Technology: artificial insemination where abortion is medically indicated. improved. While initially only 6 donor, the simplest and oldest ART The decision to terminate a pregnancy [email protected] percent of transferred embryos procedure. remains with the gestational resulted in live births, now 23 percent The Ohio law, which facilitated mother/carrier. Sometimes adoption of transferred embryos result in live artificial insemination donor, ends up being used to relieve the post-

18 19 Summer 2006 briefs Summer 2006 briefs

easy an asset can be converted to cash or some other marketable form. A Commitment to Excellence IS IT REALLY EQUITABLE DISTRIBUTION? From an economic and valuation standpoint, liquidity is a major factor in determining the fair market value of an When the Neville v. Neville asset. Even the owner of a closely held business can face liquidity issues as he is not able to call a securities broker, sell the “Simple” Probate By Gary A. Moll interest at a predetermined price and receive the cash proceeds of the sale in three business days. The owner of a closely Isn’t so Simple n order to equitably divide marital improper division of these Benefits, either held business who wishes to liquidate property, (Ohio law) directs the directly or through an offset. ownership interest generally faces the David E. Kauffman, Esq. Anymore... “I court to consider all relevant Second, some courts have found following transactional considerations: factors, including…the duration of the that Benefits may be considered only “Simple” probate and estate matters can suddenly become complex— • Uncertain time horizon to compete the VESTED INTERESTS marriage, the assets and liabilities of the when they are compared to other contested wills, estate tax audits, antenuptial agreement challenges, creditor parties and any other factor the court finds retirement benefits. In fact, the 5th Gary A. Moll, offering or sale. disputes, enforcement of spousal rights, or contested guardianships. relevant and equitable. Although a party’s District Court of Appeals in Neville had Director, Litigation • Cost to prepare for and execute the Social Security benefits cannot be divided reversed the trial court in ruling that Support Services, offering or sale. You do not have to handle these matters alone. Of course you want to as a marital asset, those benefits may be the Benefits could be offset only GBQ Consulting • Risk concerning eventual sales price. provide your client with superb legal representation. So, if you would like considered by the trial court under the against other defined-benefit retirement • Noncash and deferred transaction catchall category as a relevant and benefits. proceeds. assistance with a contested probate or estate matter, contact David equitable factor in making an equitable Lastly, some courts have taken a less ceedings. Section 3105.171(B) states that • Inability to hypothecate (borrow against Kauffman. David heads our Estate Planning and Probate practice group. distribution.”1 restrictive approach and held that a trial the court shall divide marital property value).7 With that conclusion, Neville v. court may consider such Benefits as one equitably between the spouses and Contingent fees and ethical fee sharing arrangements are often available. Neville became established law in Ohio. In factor in the overall scheme when making 3105.171(C) further provides that if an While valuation professionals, courts finding the trial court did not abuse its a property division. equal division of marital property would be and the Internal Revenue Service may discretion in considering the disparity in In holding that “a trial court, in inequitable, the court shall not divide the differ on the level of discounts that are Social Security benefits (the “Benefits”) as seeking to make an equitable distribution marital property equally but instead shall appropriate or available in a valuation CLARK, PERDUE, ARNOLD & SCOTT CO, LPA one factor among several others in of marital property, may consider the divide it between the spouses in the matter, the imposition of discounts is rarely arriving at an equitable property division, parties’ future Social Security benefits in manner the court determines equitable.4 a source of debate. Empirical data and 471 East Broad Street . Suite 1400 . Columbus, Ohio 43215-3853 the Ohio Supreme Court recognized and relation to all marital assets,” the Court In Neville, the trial court was presented published tax court cases support discount tel 614-469-1400 . free 800-647-7003 . [email protected] VESTED INTERESTS addressed three distinct divergent clearly ruled in favor of the last position with testimony and evidence related to the levels that can range to 30 percent or more. positions related to the treatment of the stated above in that “allowing difference in the present values of the Social While there are professionals available that www.cpaslaw.com Benefits:2 consideration of Social Security benefits Security interests earned by each spouse can provide practitioners and courts with First, some courts find it inappropriate in relation to all marital assets is the during the marriage. Factually, the Neville their opinion as to the present values of the to consider Benefits at all. These courts more reasoned approach.”3 marriage lasted approximately 30 years and marital portions of Social Security interests, have reasoned that even considering the While Neville has been much for much of that time, Mr. Neville was the it is uncertain as to what benefit that value of the Benefits contravenes federal discussed and presumably provides primary wage earner while Mrs. Neville provides if liquidity issues are not law since it essentially results in an guidance to practitioners and courts alike, stayed home and raised the couple’s three considered in equitable distribution. a question still remains as to children. It is not surprising then, that aside Not only is the liquidity of this asset whether the Court’s decision from the value of Mr. Neville’s 401(k) an issue, but there is also a certain amount provides for an economic account and vested benefit in his of speculation involved with the value of equitable distribution. employer’s ESOP account (benefits that these Benefits. As an extreme example, HRH is... Insurance Section 3105.171 of the Ohio Mrs. Neville would not be expected to have suppose the day after the Neville divorce, Revised Code provides the resulting from her employment situation), each of the parties were to die. Mrs. framework for an equitable that the present value of Mr. Neville’s Social Neville’s heirs are left with the former distribution in divorce pro- Security marital interest exceeded Mrs. couple’s residence that was appraised at Neville’s value by approximately $37,000 - $43,000 and can either be utilized by one of Dedicated to providing all insurance needs to $44,000. the heirs or converted into cash within a CBA members since 1989. Convenient for the trial court, the relatively reasonable period of time. But value of the marital residence was $43,000, what are Mr. Neville’s heirs left with? • Group Medical • Individual Disability Income and the trial court was able to offset the In light of liquidity and speculative excess value of Mr. Neville’s Social issues, can we really say that this case • Disability Overhead Expense • Group Disability Income Security interest with the value of the represents equitable distribution? marital residence. And while the Court • Group Life • Professional Liability ruled that the trial court had not abused its discretion and that it was reasonable that 1. www.sconet.state.oh.us/Communications • Health Savings Account (HSA) • Long Term Care the trial court may consider the value of _Office/summaries/2003/0723/021173.asp. the benefits in relation to all marital assets, 2. Neville v. Neville, 99 Ohio St.3d 275, did the Court’s decision represent 2003-Ohio-3624. economic equitable distribution? 3. Ibid. We provide service, experience and specialization. While the Court found that the trial 4. Ohio Revised Code, Section 3105.171. court had followed the mandates set forth 5. Neville v. Neville, 99 Ohio St.3d 275, in ORC 3105.171 (several factors including 2003-Ohio-3624. the length of the marriage, the status of 6. Ohio Revised Code, Section 3105.171. 2245 North Bank Drive • Columbus, the parties, their earnings capacities, work 7. Valuing a Business; Pratt, Reilly & Ohio 43220 history and other assets and liabilities),5 it Schweihs; 2000; p. 413. 614.457.7000 • Fax 614.457.1507 is uncertain whether the Court considered www.hrh.com the factor set forth in 3105.171(F)(4) which mentions “the liquidity of the property to [email protected] be distributed.”6 Liquidity deals with how

20 21 Summer 2006 briefs Summer 2006 briefs S

E The differences in the Ohio and federal frameworks for As these examples illustrate, the differences in APPEALABILITY IN FEDERAL assessing finality lead not only to different analyses, but, in appealability of orders in Ohio and federal courts can be M some instances, to different results. These differences significant and nonintuitive. I S represent potential pitfalls for the unwary practitioner who, T familiar with whether a particular type of order is treated as E AND OHIO COURTS 1. appealable in one court system, assumes a similar treatment See 28 U.S.C. § 1291; R.C. § 2501.02; R.C. § 2505.03. G in the other. Although the analyses for each type of order 2. See, e.g., Catlin v. United States, 324 U.S. 229, 233 (1945) (a N are necessarily more complex than can be reflected here, I M final decision “generally is one which ends the litigation on the Some key differences listed below are several examples of orders that may be

Y merits and leaves nothing for the court to do but execute the I subject to different treatment in the Ohio and federal

R judgment”); R.C. § 2505.03(A). systems. 3. T T By Mary Beth Young See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, • Order granting a new trial — appealable in Ohio courts 546 (1949). 4. pursuant to R.C. § 2505.02(B)(3); not appealable in federal Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). 9 5. Celebrezze v. Netzley, 51 Ohio St. 3d 89, 92 n.2 (1990). G courts. nowing which (allowing interlocu- 6. See generally Polikoff v. Adam, 67 Ohio St. 3d 100 (1993). trial court deci- tory appeal of, inter 7. See, e.g., Bell v. Mount Sinai Medical Ctr., 67 Ohio St. 3d 60,

N sions and orders alia, orders granting • Order granting or denying class certification – appealable in K Ohio courts pursuant to R.C. § 2505.02(B)(5); typically not 63 (1993).

I can be immediately or refusing an in- 10 8. See Celebrezze, 51 Ohio St. 3d at 92 n.2. appealed is critical to junction and orders appealable in federal courts, although discretionary appeal may be available under Rule of Civil Procedure 23(f) 9. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34

Y both trial and appellate appointing recei- practitioners. Failing to vers). and /or 28 U.S.C. § 1292(b). (1980). 10. See Coopers, 437 U.S. at 468-69 & n.12. R appeal an unfavorable In Ohio, the order when an appeal collateral order doct- • Order denying motion to dismiss based on double jeopardy – 11. See State v. Crago, 53 Ohio St. 3d 243 (1990); State v. 5 11 th T would be viable or rine is of “no effect,” not appealable in Ohio courts; appealable in federal Hubbard, 135 Ohio App. 3d 518 (7 Dist. 1999). attempting to appeal and the contours of courts.12 12. See Abney v. United States, 431 U.S. 651 (1977). an order for which what constitutes a 13. See also GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 immediate appeal is “final order” are • Order referring a case to arbitration – appealable in Ohio Ohio St. 2d 146 (1976). unavailable can lead to articulated primarily courts pursuant to R.C. § 2711.02; typically not appealable 14. See, e.g., MacEwen Petroleum v. Tarbell, 136 F.3d 263, 264 (2d unnecessary delay and by R.C. § 2505.02. An in federal courts, see 9 U.S.C. § 16. Cir. 1998). expense. The former impor-tant class of can also lead, in some orders added to this • Order setting aside a default judgment – appealable in Ohio instances, to waiver of provision in 1998 courts pursuant to R.C. § 2505.02(B)(3);13 typically not potentially available includes certain appealable in federal courts.14 [email protected] arguments. orders granting or Ohio practitioners denying a “provisio- should be conscious that the answer to the question “Is this nal remedy.” A provisional remedy is defined as “a order appealable?” may differ depending on whether the case proceeding ancillary to an action, including, but not limited is in state or federal court. In both Ohio and federal courts, the to, a proceeding for preliminary injunc-tion, attachment, intermediate courts of appeals have jurisdiction over appeals discovery of privileged matter, [or] suppression of from “final” decisions of trial courts.1 In both systems, this evidence.…” An order granting or denying a provisional review extends straightforwardly to final judgments or decrees remedy may be appealed if it “determines the action with values are no that adjudicate all claims as to all parties.2 In both systems, respect to the provisional remedy” and if there is no Civil Procedure Rule 54(b) allows a trial court to direct entry of “meaningful or effective remedy by an appeal after final mystery ... “final judgment” as to “fewer than all of the claims or parties” judgment.” With its focus on the ancillary nature of the upon an “express determination that there is no just reason proceeding and the effectiveness of later review, this /LWLJDWLRQ 6XSSRUW 6HUYLFHV for delay.” provision reflects considerations similar to the collateral order Beyond these basic similarities, however, the Ohio doctrine in federal court, although it may not always lead to and federal approaches for determining appealability the same results. diverge significantly. In federal courts, a primary Another important class of appealable orders in Ohio mechanism for assessing what constitutes a final, courts – and one with no direct parallel in the federal appealable order is the judicially-crafted “collateral order system – is the class of orders affecting a “substantial right” overover doctrine.”3 To come within the doctrine (and hence be and made in a “special proceeding.” What constitutes a treated as immediately appealable), an order “must “special proceeding” has been the subject of ongoing 5500 %CONOMIC $AMAGES conclusively determine the disputed question, resolve an development in the courts,6 and is now defined by statute years!years! &ORENSIC !CCOUNTING important issue completely separate from the merits of the as “an action or proceeding that is specially created by "USINESS )NTERRUPTIONS action, and be effectively unreviewable on appeal from a statute and that prior to 1853 was not denoted as an action final judgment.”4 In addition to the collateral order at law or a suit in equity.” As a practical matter, there is a !CCOUNTING )NVESTIGATIONS doctrine’s gloss on what is a “final” decision in federal heavy focus on the effectiveness of later review even in the ,OST 7AGE !NALYSIS court, statutes provide limited interlocutory appeal for “special proceedings” category – if later review would certain types of orders. See, e.g., 28 U.S.C. § 1292(a) suffice, courts typically conclude that no “substantial right” ANTHONY F. MOLLICA & ASSOCIATES "USINESS 6ALUATIONS is at issue.7 Forensic Appraisal Services )NSURANCE #LAIMS The availability of “discretionary” appeal is another key Real Estate and Business Appraisal !SSET 4RACING difference in the Ohio and federal systems. In the federal 1601 Bethel Road, Suite 220 Columbus, OH 43220 Ph: 614-459-1140 Fax: 614-459-1227 courts, 28 U.S.C. § 1292(b) permits discretionary review of E-mail: [email protected] or forensicappraiser.com otherwise unappealable orders in civil cases if the district court certifies that the order “involves a controlling question Anthony F. Mollica, MAI, ASA, CRE, CBA of law as to which there is substantial ground for difference Member, Appraisal Insitute; Senior Member, American Society of Appraisers; of opinion and that an immediate appeal from the order Counselors of Real Estate; Certified Business Appraiser may materially advance the ultimate termination of the 2EBEKAH ! 3MITH #0! #6! #&&! 'ARY ! -OLL -"! #0! !3! #"! Mary Beth Young, $IRECTOR OF ,ITIGATION 3UPPORT $IRECTOR ,ITIGATION 3UPPORT litigation.” There is no comparable mechanism in the Ohio Sandra K. Martin-Mollica, CPA, ASA Jones Day E-mail: [email protected]    RSMITH GBQCOM    GMOLL GBQCOM 8 system. Ohio Certified Public Accountant; Senior Member, American Society of Appraisers

22 23 Summer 2006 briefs Summer 2006 briefs U . T S R .

U D U HAIL I

T HE ILD EST OULD O T W W C . S S T C

R R S . I ET ILDER OR UDGES A G W F J ND AREWELL C

U A F D E T L

By The Honorable David E. Cain By The Honorable Mark R. Abel I C O P

S O N C T U

Bob, who is a vigorous, active 57, is “retiring” because he

O hen a judge makes an unpopular decision, a Special government officials were involved) because her sentence was udges honored Grand Jury may be convened to strip the offending too harsh for a person involved in a German Village home Senior Judge John D. Holschuh was honored with the has reached the mandatory retirement age for federal law R S R M W jurist of judicial immunity and commence a criminal invasion. The protestors were able to get the NAACP to J Capital University Law School’s 2006 Hayes Award for enforcement officers. While he hopes to spend more time T prosecution. commence an investigation. Outstanding Service to the Bench. Judge Holschuh has served with his wife and family, he plans to continue working in law M A Sound absurd? Better think twice. Such a proposal is on the Calls for use of the impeachment process to remove federal as a judge of the Southern District of Ohio since 1980. He is well enforcement. He will be missed by all of the district’s judges, I C O November statewide ballot in South Dakota in the form of a judges – or simply to wipe out their courts through the budget respected by lawyers who practice in the court for his scholarly who appreciate the high quality work Bob and the probation E

C proposed constitutional amendment. process – by prominent political and religious leaders seem to decisions and commitment to providing all litigants with a fair office perform day in and day out for the court. We all wish

Couldn’t happen here? Better think again, think back to have become more frequent in the past few years. and impartial hearing. him well as he leaves the court and embarks on a second T L earlier this year when a number of Ohio state officeholders If anyone wants any more help from the founding fathers Senior Judge George C. Smith received the 2005-2006 career.

called for the immediate impeachment of a local judge for let’s hope he checks out Alexander Hamilton in Federalist No. 78: Moritz William K. Thomas Distinguished Jurist Award. Judge John Dierna will assume the duties of Deputy Chief P placing an offender on highly conditioned probation after he Probation Officer upon Bob Mahler’s retirement. John earned a C

Smith has spent his entire legal career in public service. At age entered guilty pleas to two third-degree felonies. “The complete independence of the courts of justice is 26, he became the executive assistant to the mayor of B.A. in sociology from the University of Notre Dame and an

“JAIL 4 JUDGES” is the slogan being used by the peculiarly essential in a limited Constitution. . . . Columbus. In 1976, he was recognized as the Ohio Prosecuting M.A. in Social Service Administration from the University of O

N organization that placed the idea on the South Dakota ballot by Limitations of this kind can be preserved in practice no Attorneys Association’s “Prosecutor of the Year.” He became a Chicago. John joined our probation office in 1986. Three and initiative petition. other way than through the medium of courts of Franklin County Municipal Court judge in 1980 and a Common one-half years later, he was promoted to supervisor. John has JAIL is the acronym for Judicial Accountability Initiative justice, whose duty it must be to declare all acts Pleas Court judge in 1985. He was appointed to the federal worked most of his career in presentence investigation, but he U O AIN Law. On its website, the sponsoring group describes itself as “a contrary to the manifest tenor of the Constitution void. C bench in 1987. has spent the last three years managing the supervision of

single-issue national grassroots organization designed to end Without this, all the reservations of particular rights or offenders. So he has experience in all aspects of the Probation R the rampant and pervasive judicial corruption in the legal system privileges would amount to nothing.” Office. He is looking forward to the challenges of his new job as

M Changes at the Courthouse

of the United States.” It hopes South Dakota will be the first of Just as in family life, as the years turn the Joseph P. deputy chief. T many successful campaigns. And then think about how safe freedom is in countries Kinneary U.S. Courthouse welcomes new members to the In May, Pat Shaw retired after 30 years as court reporter to judges Robert M. Duncan and James L. Graham. Pat M Supporters believe judicial independence is a vice, not a around the world where an independent judiciary does not exist. community while others complete their service and turn to the virtue. “Independence can be trusted nowhere but with the new satisfactions of retirement. This year has been no exception. unobtrusively made the official record of courtroom people in mass,” they quote from Thomas Jefferson. Ohio Courts Summary In August, Robert Mahler, our Deputy Chief Probation proceedings. She is looking forward to retirement with her

O Accountability to the people in mass, they assert, will be The requirement for “written findings of fact and Officer, will retire after 31 years at the court. Bob’s family has a husband Jeff. They will spend more time with their church achieved by special grand juries dedicated to that purpose. conclusions of law in all actions and proceedings” might work long history of service to our system of justice. His father, ministries and visiting their seven grandchildren.

C Grand jurors will be drawn by lottery for limited terms and will fine in Deadwood, South Dakota, but it could put a serious Robert F. Mahler, Sr., served as the Columbus Bar’s In June, Mary Jones retired as Judge John D. Holschuh’s not be officers of any other branch of government or members of pinch on Franklin County if it ever became law here. ombudsman in the 1970s. His son Timothy is an associate at administrative assistant. No one calling or visiting the judge’s the bar. The special grand juries will have the power to The recently published Ohio Courts Summary for 2005 Rourke & Blumenthal. office remained a stranger. Her vibrant, outgoing personality investigate, indict, and initiate criminal prosecution of wayward reported the Franklin County Common Pleas Court handled Bob came to the court as a probation officer in September warms all who have been lucky enough to know and work with judges. nearly 30,000 cases last year – 28,731 new filings with 28,526 1975. After eight years as a line probation officer, he was her. Examples of “judicial malfeasance” that JAIL intends to terminations. That gave the court a clearance rate of 99 percent – promoted to supervisor. For the past thirteen years, he has Mary first came to the court in June 1971 as my secretary. prevent are: any deliberate violation of law, fraud or conspiracy, an average of 1,678 terminations per judge. been the Deputy Chief United States Probation Officer for the She has also worked as an administrative assistant to Chief intentional violation of due process of law, judicial acts without Last year was the court’s first full year with a 17th judge and & district. Judge Sandra Beckwith. jurisdiction; blocking of a lawful conclusion of a case, and so the first time in many years that the number of cases handled per & As deputy chief, Bob has been responsible for all aspects of Mary plans an active retirement. She will spend more time forth. “Once passed, the unconstitutional doctrine of judicial judge was not the highest in the state. Summit County with eight the department’s substance abuse and mental health programs with her mother, four grandchildren, and large family. Mary also immunity applied unconditionally will no longer shield a judge judges and half the population, terminated 1,797 cases per judge. for offenders. He has also led the office’s management team plans fulfilling a long-time dream of continuing her education guilty of any such misconduct.” Cuyahoga County has a population of 1,393,978 and a total responsible for hiring new probation officers. by monitoring classes at local universities. Because of her The JAIL initiative includes the requirements, among of 34 general division judges. (Franklin County’s population is Looking back on his career, Bob remembers the interest in travel, she’ll begin her studies by learning Spanish. BEL She is active in her church and sings in the choir. Of course, others, that judges submit written findings of fact and 1,068,978) They terminated 1,637 per judge. The only other A implementation of the 1984 Sentencing Guidelines as one of his conclusions of law in all actions and proceedings and bring cases county to come close was Hamilton (population 845,303) where biggest accomplishments. He worked with Sam Weiner and Mary plans frequent visits with friends and family around the to lawful conclusions in a timely fashion as specified by law. 16 judges terminated an average of 1,514 each. other members of the bar to introduce defense counsel to the country. Of course, the attack on judicial independence isn’t limited The breakdown in Franklin County was about 17,000 civil intricacies of the guidelines. He also provided education on the to reformers with initiative petitions. and 11,000 criminal. The latter is creeping up on the former and guidelines to judges and the court’s staff. Coming and going An Act of Congress was quickly forthcoming when a state accounting for more than twice as many jury trials. Chief Probation Officer Pat Crowley praised Bob’s vital In May, Tom McCormick finished his clerkship with Judge judge in Florida state court issued a ruling that was unpopular leadership role in the Columbus office and said, “His James L. Graham and returned to Vorys Sater. Kendall Verrett, a among some strong political and religious forces in the Terry dedication, professionalism and diligence while serving the graduate of the University of Cincinnati Law School who was an Shiavo case. Apparently, a majority in Congress felt the judge Court and the community will be missed.” associate at Porter Wright, is the judge’s new law clerk. was wayward regardless of whether the evidence actually [email protected] In August, Kelly Mihocik completes a two-year supported his decision. clerkship with me. She will begin a clerkship with Senior It didn’t take much stoking by a national talk show host last Circuit Judge Alan E. Norris. Amanda Klase, a 2006 March to get the most powerful (non-judicial) figures in state graduate of OSU’s Moritz College of Law, will begin her government to call for Judge John Connor’s head because of his clerkship with me in August. Amanda would like to work in decision in a case involving a defendant who pleaded guilty to public interest law. two sexual batteries, both third degree felonies. They backed off after actual facts about the case became known and Chief Justice Thomas Moyer urged caution behind the scenes. Ironically, a few weeks later Judge Julie Lynch’s resignation Hon. David E. Cain, Hon. Mark R. Abel, [email protected] was demanded by a group of courthouse protestors (no Franklin County Common Pleas Court U.S. District Court

24 Summer 2006 briefs Summer 2006 briefs 25 the intersection of Country Club and Livingston Avenue. She $2,997.80. Lost wages: $266.00. Plaintiff’s expert: Charles May, T brought her vehicle to a stop while attempting to make a right- D.O. No defense expert. At the end of trial, a judgment A hand turn in order to avoid hitting a pedestrian. Defendant notwithstanding the verdict and motion to tax litigation were

E CIVIL JURY TRIALS Nancy Jividen began rolling forward, was unable to stop in time filed but withdrawn based upon settlement. Plaintiff’s attorney:

B and struck plaintiff’s vehicle from behind. Plaintiff alleged soft Steven Mathless. Defendant’s attorney: Steven E. Herman. T tissue injuries to her neck and back. Medical bills: $4,049.00. Judge: Brunner. Majid Suliman v. Nurein Ali Abasheih, Case No.

E Franklin County Common Pleas Court Plaintiff’s expert: Michael Adamets, M.D. Defendant’s expert: 03CVC-05-5398 (2004). A S Kenneth A. Jenkins, D.C. Settlement demand: $12,500.00. U Settlement offer: $3,750.00. Three day trial. Plaintiff’s attorney: Verdict: $250.00. Auto Accident. ACDA. Plaintiff Craig C. E By Belinda S. Barnes & Joshua R. Bills

O David A. Goldstein. Defendant’s attorney: Matthew R. Planey. Derstine was involved in an accident on September 7, 2001,

B Judge: Sheward (Angel). Sharon Coate v. Nancy Jividen, Case No. with a vehicle driven by Jose Diaz. Mr. Diaz failed to maintain H

02CVC-07-7713 (2003). an assured clear distance ahead and struck the rear of plaintiff’s T erdict: $674,900.00. Medical Malpractice. Plaintiff, vehicle. Plaintiff claimed neck sprain/strain and a herniated R

E Sarah Barton, a minor child, began experiencing Verdict: $4,564.00. Auto Accident. On October 1, 2002, lumbar L4-5 disc, with laminectomy and diskectomy back

U developmental problems and right arm weakness. defendant Jennifer Brobst was operating her motor vehicle east surgery and future surgery anticipated. Shortly after that first S V Plaintiff was born at a weight of 8 lbs. 2 oz. pursuant to a 40- on West Broad Street at the Midland Avenue intersection and accident, a second accident occurred on December 1, 2001, O week gestation period. Plaintiff’s mother delivered with Apgar ran a red light. Plaintiff entered the intersection, northbound, when a different defendant broadsided plaintiff’s vehicle. Prior C U scores of 5 and 1 and 8 at 5 minutes. Examination after birth and was struck by Ms. Brobst. Plaintiff claimed soft tissue to trial, the allegations and issues related to the second accident found a right side brachial plexus palsy with an otherwise Belinda S. Barnes & injuries. Negligence was stipulated. Medical bills: $2,064. No settled. Therefore, the issues at trial related to only the first normal neurologic examination. Further examination revealed Joshua R. Bills, lost wages. Plaintiff’s expert: Glenn A. Iben, M.D. Defendant’s accident. Medical bills: $34,000 for past medicals, $15,000 for O an unbalanced translocation between chromosome 4 and 8, Lane Alton & Horst expert: Leslie A. Friedman, M.D. Settlement demand: $15,000 future medicals. Lost wages: $30,000 for past and future lost otherwise known as Erb’s Palsy, due to shoulder dystocia. per defendant’s counsel; $6,500 per plaintiff’s counsel. wages. Plaintiff’s experts: Bruce Kay, M.D. and James Lundeen,

H Defendant, Dr. Hackett, denied applying excessive lateral Settlement offer: $5,500 per defendant’s counsel; $4,880 per M.D. Defendant’s expert: Martin Gottesman, M.D. Settlement traction to the fetus at the time of delivery, thereby causing plaintiff’s counsel. Two day trial. Jury awarded $2,064 for demand: $175,000. Settlement offer: $4,095. Two day trial.

T the shoulder dystocia. Plaintiff alleges impairment of Verdict: $60,000.00. Auto Accident. Defendant Timothy A. medical bills and $2,500 for general damages. Plaintiff’s Plaintiff’s attorney: Donald P. Beck. Defendant’s attorney: educational functioning, not age-appropriate educational Snyder was driving a 1988 pickup truck at the intersection of attorney: Jacob A. Schlosser. Defendant’s attorney: Gregory Robin S. Richards. Judge: Crawford (Skeens). Craig C. Derstine

R level, chromosomal disorder and right brachial plexopathy East Main Street and Brice Road. Plaintiff Ann L. Leighton was Page. Judge: Cain (O’Grady). Rosella West v. Jennifer M. Brobst, v. Jose Diaz, Case No. 03CVC-08-8706 (2004). primarily upper compared to lower arm function. Plaintiffs’ driving a 1994 Toyota Tercel at the same intersection. Ms. Case No. 03CVC-02-1077 (2004). experts: Daniel Adler, M.D. and Stuart Edelberg, M.D. Verdict: $0.00. Medical Malpractice. Plaintiff Pamela U Leighton alleged she had a green light and Mr. Snyder turned Defendant’s experts: Robert Gherman, M.D. and defendant left in front of her, colliding with the front end of her vehicle. As Verdict: $3,997.80. Auto Accident. ACDA. On May 18, 2001, Maynard underwent a uterine artery embolization procedure. Hackett. Settlement demand: $200,000. Settlement offer: a result of the collision, plaintiff alleged bruised ribs, bruised defendant Nurein Ali Abasheih was proceeding on Cleveland Plaintiff alleged that defendant Roy Teng, D.O. failed to

O $0.00. The jury awarded a total of $674,900 for plaintiffs’ arm, left wrist fracture and right toe fracture. Medical bills: Avenue in a 1987 Volkswagen Jetta. Plaintiff Majid Suliman was disclose material risks associated with the UAE procedure. On damages: Past pain and suffering $30,000; Past loss of $21,502.34. Lost wages: $2,886.56. Plaintiff’s expert: Gary proceeding the same direction directly in front of defendant in a July 10, 2000, plaintiff underwent the UAE procedure on an enjoyment of life $30,000; Future suffering $266,250; Future C Millard. Defendant’s expert: Karl W. Kumler, M.D. Settlement 1994 Dodge Intrepid. Defendant Abasheih failed to maintain emergency basis. As a result of the UAE procedure, plaintiff loss of enjoyment of life $266,250; Future therapy $77,000; demand: $90,000. Settlement offer: $50,000. Two day trial. assured clear distance and struck the rear of plaintiff’s vehicle. Physical therapy by parents $5,400. Six day trial. Appeal filed Plaintiff’s attorney: Timothy L. Van Eman. Defendant’s attorney: Plaintiff alleged soft tissue injuries to the neck. Medical bills: (Continued on Page 28) and withdrawn upon settlement. Plaintiffs’ attorney: John K. Mitchell M. Tallan. Judge: Thompson (Crawford). Ann L. Fitch. Defendant’s attorneys: Thomas E. Hunter at trial and Leighton v. Timothy A. Snyder, Case No. 03CVC-06-6171 (2004). Stephen D. Jones and Eric S. Bravo for appeal (Dr. Hackett and Physician Women’s Health). Judge: Hogan. Sarah Barton, Verdict: $2,000 to Cynthia Meekins and $33,000 to James Minor Child, et al. v. Dr. Hackett, Case No. 01CVA-02-2098; Meekins. Auto Accident. ACDA. Plaintiff James Meekins on A world of information 03APE12-1236. September 23, 2000 was southbound on Hamilton Road and at your fingertips stopped at a traffic light. Defendant Ball Abdaulaye was also Verdict: $170,000.00. Auto Accident. ACDA. As a result of driving south on Hamilton Road and failed to maintain an a collision which occurred October 20, 2001, plaintiff Otis assured clear distance ahead. As a result, plaintiff struck the Simmons, age 46, claimed a left shoulder injury requiring vehicle driven by Meekins, causing soft tissue injuries to the two surgeries. Plaintiff Lisa Simmons claimed a loss of neck and back. The jury returned a verdict of $33,000 to James consortium. The jury awarded plaintiff Otis Simmons Meekins and $2,000 to Cynthia Meekins for her loss of $150,000 and plaintiff Lisa Simmons $20,000. Medical bills: consortium claim. Plaintiff’s expert: Timothy P. Duffey, D.O. $28,000. No lost wages. No plaintiff’s expert. Defendant’s Defendants’ expert: Joseph Schlonsky, M.D. Two day trial. expert: Grant Jones, M.D. Settlement demand: $100,000. Plaintiff’s attorney: David I. Shroyer. Defendants’ attorneys: A. Settlement offer: $57,500. Two day trial. Plaintiff’s attorney: Scott Norman for Ball Abdaulaye and Jane Wichman for Craig P. Scott. Defendant’s attorney: Lisa Weekley Coulter. Allstate. Meekins, et al. v. Abdaulaye, Case No. 02CVC-09-10258 Judge: Bender (Browning). Otis Lee Simmons, Jr. et al. v. (2003). United Ohio Insurance Company, et al., Case No. 03CVC-10- 11375 (2004). Verdict: $27,537.70. Auto Accident. ACDA. On November 13, 2001, plaintiff Geric A. Bennett was proceeding in his vehicle Verdict: Sale of Property for $150,000. Contract. Plaintiff on South Hamilton Road at Refugee Road. Defendant Cynthia Thomas Hawkins alleged that he had an agreement with M. Ross was also proceeding in the same direction and struck defendant Jeannett Semones to purchase a piece of property the rear of plaintiff’s vehicle. Prior to trial, defendant admitted known as 8221 Flint Road for $150,000. Additional terms liability and the jury heard only the issues of proximate cause included that Ms. Semones would finance said purchase with and damages. Plaintiff alleged a shoulder injury (partial payments to begin July 1997 and last for seven years based thickness tear of rotator cuff); surgery was performed by Dr. upon a 20-year amortization. The contract would be at a 7% Rosenberg. Medical bills: $22,537.70. No lost wages. Plaintiff’s “We are one of a kind.” interest rate, as well. In 1998, plaintiff alleged there was a expert: Gerald M. Rosenberg, M.D. Defendant’s expert: Karl change in the interest rate from 7% to 5%. Defendant alleged Kumler, M.D. Settlement demand: $50,000. Settlement offer: SUBSCRIBE TODAY! there was, in fact, no contract and that this was simply a $6,000. Two day trial. Plaintiff’s attorney: Jacob A. Schlosser. month-to-month tenancy with no agreement to sell or option Defendant’s attorney: Mark C. Petrucci. Judge: Connor to purchase. Defendant, as a result, was trying to evict plaintiff (O’Grady). Geric A. Bennett v. Cynthia M. Ross, Case No. from the property. Three day trial. Plaintiff’s attorney: Dennis L. 03CVC-08-9333 (2004). 580 S. High St., Suite 316, Columbus, OH 43215 Pergram. Defendant’s attorney: Eric P. Rotondo. Judge: Brown (614) 228-NEWS (6397) • Fax (614) 224-8649 (Brunner). Thomas Hawkins v. Jeannett Semones, Case No. Verdict: $5,364.00. Auto Accident. ACDA. On December 14, www.sourcenews.com 03CVH-06-6947 (2004). 2001, plaintiff Sharon Coate was proceeding in her vehicle at

26 27 Summer 2006 briefs Summer 2006 briefs V (Continued from Page 27) Frederick A. Sewards. Judge Hogan. Liddie Rutherford, Minor v. I

Jean Atwood Nickell, M.D., et al., Case No. 02CVA-05-5417 A

sustained a burn injury to her buttocks. Plaintiff alleged under (2004). V ORNUCOPIA A C L the theories of res ipsa loquitor, negligence and informed

consent that Roy Teng, D.O. was negligent as he caused burns Verdict: $0.00. Auto Accident. Plaintiff Daud Obsiyeh was I I on plaintiff’s buttocks. Medical bills: $40,282.28. No lost wages. operating a motor vehicle eastbound on I-70 near the S.R. 315 B A Plaintiff’s expert: Allen Meglin, M.D. Defendant’s expert: ramp. Plaintiff Mary Jama was a passenger in that vehicle. OF GOOGLE RESOURCES R

Stephen Paul Johnson, M.D. Settlement demand: $325,000. No Defendant David Breden stopped his vehicle against the left A settlement offer. Five day trial. Plaintiff’s attorney: Eugene L. guardrail and it is alleged that the passenger side was R Matan. Defendant’s attorney: Patrick K. Adkinson. Judge: extending into the eastbound lanes of I-70. Defendant John By Ken Kozlowski L I

Crawford. Pamela Maynard v. Roy Teng, D.O., Case No. 03CVA- Meyers failed to maintain an assured clear distance and struck U 07-7466 (2004). the vehicle driven by David Breden. Defendant Meyers was I M driving a semi truck for DFT Trucking. As a result of the ack in the day, Google used to be just another catalogs or find products by subject. Froogle B Verdict: $0.00. Slip and Fall. Plaintiff Marjorie Vaccaro resided collision, Mr. Breden was forced into Mr. Obsiyeh’s vehicle. search engine with a name that was actually a searches for items that may be as a tenant in a property located at 569-571 Roys Avenue The parties bifurcated the case on the issue of liability and B misspelled version of the word “googol.” The purchased online or perhaps at local R owned by defendant Barbara Dygert. Plaintiff claimed that, damages and tried the case to the jury on liability only. Prior latter is a number that equates to 10100. See stores that also have a web

while walking down the stairs into the basement, she fell and to trial, the case against Mr. Meyers and DFT Trucking was www.en.wikipedia.org/wiki/Googol for more presence. A was injured due to lack of a handrail. A handrail was required settled, and the issue remained only of the negligence of information on the number. Google, now the

by the Columbus City Code. Plaintiff sustained a foot fracture defendant David Breden for stopping his vehicle against the search engine of choice for a vast amount of web GMail – Google’s email service R which required surgery (by Dr. Massa). The jury found lack of left guardrail. The jury found defendant Breden not liable for searchers, has become a public company that has offers over 2GB of space for all of your proximate cause. Medical bills: $13,468. Lost wages: $10,180. the accident and defendant Meyers 100% at fault. As this was made millions for its founders and early

communication needs. Another use of I Plaintiff’s expert: Eric Massa, D.P.M. Defendant’s expert: Joseph liability only, damages and injuries were not presented. No investors. That’s all well and good for them. For this service is that you can make it a Schlonsky, M.D. Settlement demand: $50,000. Settlement offer: plaintiffs’ expert. No defense expert. Settlement demand: us, however, what does Google really offer virtual hard drive by either attaching U $12,090. Two day trial. Plaintiff’s attorney: Jacob A. Schlosser. Policy limits ($100,000). No settlement offer. Three day trial. other than their main search engine? files to messages that you can then mail Defendant’s attorney: Edwin J. Hollern. Judge: Crawford Plaintiff’s attorneys: Craig P. Scott and Warner M. Thomas, Jr. Quite frankly, there’s an abundance of to your GMail account or use one of the M (Magistrate Skeens). Marjorie Vaccaro v. Barbara Dygert, Case Defendant’s attorney: Gregory Page. Judge: O’Grady (Fais). tools, and I’ll highlight some of freely available pieces of non-Google No. 03CVC-07-7514 (2004). Mary Jama, et al. v. David Breden, Case No. 03CVC-03-2847 them within the words of this software to automate that process a bit. (2004). article. Let’s get started. An adjunct service that can be used along Verdict: $0.00. Medical Malpractice. Plaintiff Liddie To get to the Google with a GMail account is Google Talk. The Rutherford, a minor, brought a claim against Jean Atwood, Verdict: $0.00. Medical Malpractice. Plaintiff’s decedent, page that offers information latter allows users to avail themselves of M.D. and Dr. Atwood’s employer, the Women’s Care Center. Annie Mary Conningham, a 61-year-old female, was seen in on each of their services, instant messaging or perhaps voice calls Minor plaintiff’s mother, Audra Rutherford, became a patient at the emergency department with complaints of headache. The click on over to here: www. over computer. You will need a microphone of the Women’s Care Center on or about September 14, 1996 for patient underwent a CT scan of the brain, which was google.com/intl/en/options/. For some sort to accomplish the phone calls. the purposes of obstetrical and gynecological care. On or about interpreted as normal. She was diagnosed with cephalgia and information on software that can be November 24, 1996, Audra Rutherford was pregnant. In discharged home. The patient returned to the hospital by squad downloaded, go here: www.pack.google.com/ Google Calendar – a web-based calendar that can used December 1996 she began receiving prenatal care from Dr. four days later and was diagnosed with a subarachnoid pack_installer_all.html. Here are a few that should be by anyone you wish to share it with. I have set up one for my Atwood and the Women’s Care Center. On August 1, 1997, hemorrhage. She underwent an aneurysm clipping and of particular interest to researchers of both the legal and non- work-related appointments, and one for my family that can be defendant admitted Audra to Mt. Carmel East where labor was ventriculostomy, but unfortunately expired after a second legal variety: updated from anywhere there is an internet connection. No induced and Liddie was born on August 2, 1997. Plaintiff surgery to evacuate an intraventricular hemorrhage and software is necessary for this service, just a Google account. alleges that Dr. Atwood negligently managed the labor and hematoma. No medical bills. No lost wages. Plaintiff’s experts: Google Book Search - In December 2004, Google delivery including: (1) failure to properly determine fetal size; Bruce Ammerman, M.D. (neurosurgeon); Richard Krause, M.D. announced the beginning of the “Google Print” Library Google Toolbar – this was one of the first inroads Google (2) failure to perform C-section rather than vaginal delivery due (ER physician); and Richard Karsch, M.D. (radiology). Project, made possible by partnerships with Harvard, the made in trying to integrate its services within your web browser. to alleged arrest of labor and large fetal size; (3) and failure to Defendants’ experts: Gayle Ann Galen, M.D. (ER physician); University of Michigan, the New York Public Library, Oxford It is available for both the Internet Explorer and Firefox properly perform the delivery itself by applying excess traction Thomas Leipzig, M.D. (neurosurgeon); and Michael Potchen, and Stanford. The combined collections of the libraries are browsers. If you use Google a lot, this toolbar is a must. to the fetal head in the face of shoulder dystocia. Defendants M.D. (imaging/neurology). Settlement demand: $500,000. No estimated to exceed fifteen million volumes. Google is denied all allegations of negligence. Plaintiff presented a settlement offer. Nine day trial. Plaintiff’s attorneys: Timothy scanning the books and offering the ability to search the Blogger – this was not a Google creation, but one that they videotape of the delivery and both sides disputed what was Van Eman and Kathy A. Dougherty. Defendants’ attorneys: materials. Currently, one can click a book title and see a represented on the tape. Plaintiff alleged that Liddie suffered a have bought and now offer via their own web site. Blogger Gayle E. Arnold and Kevin W. Popham (Columbus Radiology “Snippet View” which shows information about the book plus allows one to easily set up a web log. I’d be willing to bet non-displaced fracture of her mid left clavicle and a permanent Corp. and Jay Helgason, M.D.); and Peter Van Ligten (Acute a few sentences of your search term in context. A “Sample brachial plexus injury to her left upper extremity with anyone could set up his own blog in five minutes or less using Care Specialists and Stephen D. Waite, M.D.). Judge: Frye. Pages View” may be available if the publisher or author has the tools offered at Blogger. disfigurement. Medical bills: $358.00 for the broken clavicle. No Sheila Jacobs, Administrator of the Estate of Annie Mary given permission or the “Full Book View” if the book is out of lost wages. Plaintiff’s experts: Paul Gatewood, M.D. (OB/GYN); Conningham, Deceased v. Jay Helgason, M.D., et al., Case No. copyright. You will also see a “Buy this Book” link that leads That’s about all of the space I have this issue for Google Shu Huang, M.D. (physical medicine and rehabilitation); and 02CVA-12-13572 (2005). directly to online bookstores. William H. Burke, Ph.D. (vocational rehabilitation). tools. If you’re interested in finding out more, use the two web sites mentioned above to get to the Google pages that offer Defendant’s experts: Mark Landon, M.D. (OB/GYN) and Google Maps – A great way to find places of business, Gerald Steiman, M.D. (pediatric neurology). Settlement more information about the services and opportunities to directions, and contact information. Your search can be as download the software for various other applications. demand: $350,000.00. No settlement offer. Five-day trial. [email protected] simple as a zip code and the word pizza if you’re hungry, or Plaintiff’s attorney: Kathy A. Dougherty. Defendants’ attorney: [email protected] perhaps a zip code and the term “court reporter” if you need to hold a deposition. [email protected] Google Scholar – This service provides a way to search for scholarly literature. You can search across many disciplines and WWW.CBALAW.ORG sources: peer-reviewed papers, theses, books, abstracts and articles, from academic publishers, professional societies, preprint repositories, universities and other scholarly organizations. It is a good way to find complete texts or perhaps The Columbus Bar website has a fresh look ... Not only is the gain information on the key papers in an area of research. Columbus Bar site new, but we have developed two additional websites, Google Catalogs and Froogle – Either of these two one for the Columbus Bar Foundation (www.columbusbarfoundation.org) resources will allow you to find the hardware or software that might be needed in your work environment. People have also Ken Kozlowski, and one for the public: the People’s Bar (www.peoplesbar.org). been known to avail themselves of the utilities to find items for Director of the Law Library, personal use. Google Catalogs allows one to browse mail order Supreme Court of Ohio

28 29 Summer 2006 briefs Summer 2006 briefs M defense counsel served with a notice for out-of-state deposition should

O OUT-OF-STATE DEFENDANTS A CommunityForLife consider whether less burdensome

O methods of examination might be appropriate under the circumstances. Wesley Glen Wesley Ridge M And traveling options R The court, for example, may order the An Accredited Retirement A Retirement Community T parties to discuss the possibility of Community in N. Columbus in Reynoldsburg R O conducting telephonic depositions, ~ Independent Living ~ Independent Living

U By Daniel N. Jabe which, although rarely used, are Patio Homes Ridge Homes specifically authorized by the Ohio ~ Independent Living Apts ~ Parkside Independent Apts O O Rules of Civil Procedure. If a ~ Assisted Living ~ Assisted Living C ~ Special Care for Alzheimer’s ~ ut-of-state individuals and stipulation for a telephonic deposition Special Care for Alzheimer’s

R ~ Assisted Living Plus ~ Life Center Adult Day E corporations defending them- cannot be obtained, the deponent may Affiliates of ~ The Health Center selves in lawsuits in Ohio courts make a motion for one. “To prevail on Methodist ElderCare Services at four community H ~ Dementia-Specific Day Care Services T O With respect to based locations face a number of logistical difficulties, that motion the movant needs to T

which location is fairest, demonstrate a legitimate reason particularly during discovery. One (614) 888-7492 www.wesleyglen.com (614) 759-0023 R justifying the procedure.” Then, “the E common issue relates to where the “the practicalities of 5155 N. High St., Columbus www.wesleyridge.com 2225 St. Rte. 256, Reynoldsburg depositions of the defendants (or their burden shifts to the respondent to

D the circumstances . . . demonstrate why a telephonic U I representatives) should take place. must be considered in S Although rarely utilized, defense deposition will not suffice.” balancing rights, Legitimate reasons might include time T counsel actually have a number of

O options to help make depositions easier apportioning hardships, and cost savings. However, the U for clients. and attempting to avoid reasons may be outweighed by the O C The location of depositions can be extreme impositions.” complexity of the case, the likelihood an important issue. In many cases, of witness and counsel confusion, and clients will prefer to have depositions the number of documents at issue.

E taken close to home. Depending on the Instead, a court may order the nature of the client’s business and the examination first by interrogatories or responsibilities of those to be deposed, written questions, followed by an oral H it may be more cost-effective for deposition only if necessary. Combo ad corporate counsel to travel to the If defendants do end up traveling The Daily Reporter T to Ohio, there is no rigid formula for

deponents’ location than to have the Columbus Bar Briefs deponents travel to Ohio. Ohio-based allocating costs. Rather, “[t]he OHIO question of who should bear the

E plaintiffs, however, often prefer to take depositions locally, and some will try to expense of discovery is within the compel out-of-state defendants to come court’s discretion.” (Muntz v Muntz,

D to Ohio. No. 38811, 1979 Ohio App. LEXIS 9915,

I According to the Ohio Rules #9) For example, the court might of Civil Procedure, “[a]fter commence- require parties to each advance one-

S the court to order either plaintiffs or half of the costs of bringing the party ment of the action, any party may take defendants who reside out of state to the testimony of any person, including to the forum, with the full cost to be

T appear in the forum county for a party, by deposition upon oral borne eventually by the non- depositions under Ohio law is well prevailing party. Alternatively, the examination.” Securing the attendance Failure to attend may result in established.” Although a defendant U of a party does not require a subpoena entry of a default judgment against the court may decide the costs should be generally will be deposed where he borne by the non-traveling party, in but instead, may be compelled by the defendant. resides, the plaintiff may give notice use of a notice of examination. Proper A defendant may move for a order to balance other indirect O that the deposition will take place in the expenses the traveling party may incur notice must be in writing and contain, protective order to attempt to avoid forum, and the defendant’s attendance among other things, information appearing in the forum. “If the (such as lost earnings). Courts have there may be compelled. also required the traveling party to regarding the time and place for the scheduled time and place are With respect to which location is deposition. inconvenient or present unreasonable bear its costs. Before allocating costs, fairest, “[t]he practicalities of the the court may prefer to explore An defendant can be compelled to burdens on the party to be deposed, or circumstances . . . must be considered attend a deposition in the forum where should the party have any other alternative methods of discovery that in balancing rights, apportioning might avoid unnecessary expenses. An the case is pending. As one Ohio objections to the taking of his hardships, and attempting to avoid appellate court has explained: “Under deposition, his remedy is to obtain a out-of-state defendant hoping to extreme impositions.” The more recover expenses should consider THAT’S WHAT WE DO, EVERY DAY.® Let Special Counsel, Civ. R. 30(A), a party defendant may be protective order under Civ. R. 26(C).” inconvenient it would be for the compelled to appear in this forum for At least one Ohio court has granted a asking the court to consider less costly the leading provider of legal staffing services nationwide, ease defendant, the more willing the court alternatives before incurring expenses. (614) 766-3694 the purpose of being deposed, protective order requiring the might be to consider issuing the stress that staffing issues can cause. Whether you need regardless of residency or domicile, deposition of a non-resident defendant Defense counsel faced with a attorneys, paralegals, or other resources, we provide the most (800) 737-3436 a protective order requiring the deposition notice for an out-of-state simply by serving the party with to be taken outside of Ohio. qualified professionals — from general workload management specialcounsel.com deposition to take place where the client should carefully consider the notice.” According to one Ohio court, defendant resides. However, “the and litigation support to project management for e-discovery whether a protective order should be options available before agreeing to go threshold of acceptable inconvenience forward. By reviewing options with and document review projects. Combined with our specialized granted turns on two considerations: (1) is different for a party than a witness the client, defense counsel will ensure services of medical document review, deposition digesting, and whether the party deponent is a deponent. In litigation all parties are that the client’s litigation needs are plaintiff or defendant, and (2) which inconvenienced and annoyed to some court reporting, Special Counsel is the single place for all of appropriately addressed and may be location is fairest. With respect to the degree.” Generally, “the threshold of your legal staffing needs — whether on a contract or direct hire able to find a creative solution distinction between plaintiffs and inconvenience to be tolerated by a party basis. Restore the focus to your core business. Call us today. agreeable to all parties. defendants, the court explained that, to trigger the protection of the court in because defendants are not before the a discovery matter is higher than that of court by choice, plaintiffs normally a nonparty witness, since the party has cannot complain if they are required to a higher stake in the outcome of the [email protected] Daniel N. Jabe, take discovery at great distances from litigation.” ©2006 Special Counsel, Inc. All rights reserved. A member of the MPS Group Jones Day the forum. However, “the authority of Prior to seeking a protective order,

30 31 Summer 2006 briefs Summer 2006 briefs S M Y A T

UIDEPOST O HE NVISIBLE EB S I OVEREIGN MMUNITY G T T I W

S I R L M T Y

A Databases via CML

C

N N ANKRUPTCY T I B A O I O By Ellen Smith I Can states be sued for preferences? N R T L N R

e can be proud of our library heritage in Ohio. From the Infotrac OneFile is a database of approximately 8,500 T By Tyson A. Crist E

A “Coonskin Library” (www.ohiohistory central.org/entry) magazines, academic journals and newspapers, many available in O C

purchased by Ohio settlers in 1804 to modern libraries full text. This is a good starting place for doing general research P T

W C of today, Ohioans have valued access to reading, research and on a topic, and the ability to obtain the full text of a magazine N O an a bankruptcy trustee sue a state entity to recover a information. Our local libraries achieve a consistently high article is a bonus. I 1 O R C preference? Yes. ranking on the annual “Hennen’s American Public Library The Oxford English Dictionary is probably one of the most O N P Why? Because they acquiesced to a subordination of Ratings” best library list. exhaustive sources for information on the English language and O sovereign immunity by ratifying the Bankruptcy Clause of the Allow me to introduce you to some of the lesser known the joy of word nerds everywhere. You can search for the I N

& Constitution. information resources available compliments of your public library. definition of a word, but you also get the detailed etymology with Back in 2004, we thought the Supreme Court would address For the purposes of illustration, and the historical development of meaning T E sovereign immunity in Tennessee Student Assistance Corp. v. Hood, because I possess a library card for illustrated with time lines and N

C but it did not. The Court has since tackled the issue in Central Tyson A. Crist, CML, I’m going to focus on the quotations. The new edition of the R Virginia Community College v. Katz. Schottenstein Zox & Dunn Columbus Metropolitan Library. OED is available here as a work in N

Principally, Katz holds that the states surrendered sovereign However, many of the resources I progress, although the second edition E E immunity within bankruptcy proceedings by ratifying the mention are available at most local can be searched by itself. O U Bankruptcy Clause. But dig further and you will find Katz, in a trustee filed a letter indicating his intent not to further pursue public libraries thanks to the PriceMiner is a comprehensive C R P broader perspective, is one more in a long line of sovereign proceedings to collect accounts receivable against the state coordinating efforts of the Ohio Public pricing tool for art and antiques. It

immunity opinions decided by a 5-4 majority, along political lines Library Information Network (OPLIN) collects information from major auction T

G entities – actions that may have fallen outside the abrogation of – pre-Justice Alito; one of Justice O’Connor’s last marks. sovereign immunity. Similarly, the Court notes that “[w]e do not and the State Library of Ohio. houses, eBay and similar websites to N O Combine this with the pro-state’s rights dissent by Justice mean to suggest that every law labeled a ‘bankruptcy’ law could, Databases are the largess of what provide information for appraisal and I information specialists refer to as “the valuation of antiques and collectibles.

O Thomas (joined in dissent by the Chief Justice and Justices Scalia consistent with the Bankruptcy Clause, properly impinge upon O

R and Kennedy), along with Justice Stevens’s reminder on state sovereign immunity.”7 invisible web.” Typically proprietary in This database will give you a ballpark C disregarding dicta – to toss aside the prior Seminole Tribe decision On the other side of the coin, Justice Thomas retorts that nature or subscription based (e.g. on the value of an object, but you will P (in which Justice Stevens dissented) – and you may be left with history only confirms we agreed to have national, uniform laws Westlaw or Lexis/Nexis), databases have to register with PriceMiner to N the firm perception that the Court’s rulings on sovereign on bankruptcy, not that the States waived sovereign immunity. simply by their very nature cannot be obtain comparison information. immunity swing like a pendulum in tune with the prevailing Justice Thomas points out that in Hood the Court partly justified “crawled” by the web spiders and Sandborn Fire Insurance Maps is political view. its holding that sovereign immunity did not apply to in rem robots that collect information for a product of the OhioLINK Digital & Technically speaking, Katz addresses the Sixth Circuit’s Internet search engines (e.g. Google, Media Center and provides a

discharge proceedings by explicitly distinguishing in personam ruling that Section 106 of the Bankruptcy Code is a constitutional preference proceedings which seek to recover property in the MSN, Yahoo). Yet databases contain searchable interface for locating abrogation of state sovereign immunity, the question earlier hands of a State. Apparently, this language soon became dicta the most valuable and authoritative historical maps of Ohio towns and E dodged in Hood. Section 106, in short, states that “sovereign that could be cast aside. information; cataloging and indexing a cities. The date range is from the early immunity is abrogated as to a governmental unit” with respect to At its base level, Katz is a debate on whether the framers wide variety of resources in many 1880’s to the mid-twentieth century C certain other Sections of the Bankruptcy Code, including Sections implicitly waived the states’ sovereign immunity to ensure a formats. and you can search by city or county 547 and 550, which permit the avoidance and recovery of national, uniform bankruptcy law. Much ink is spilled between Let’s begin at the Columbus Metropolitan Library (CML) and even keyword, though I’m unclear exactly how the last one

N preferences. Both Katz and Hood were Sixth Circuit cases; the the majority and dissent about the historical background of our home page, www.cml.lib.oh.us. If you look on the lower right works. lone Circuit to rule Section 106 is constitutional. country’s bankruptcy laws, but, in the end, we will probably hand side of the page you’ll see a brown box titled The Columbus Metropolitan Libraries also have thirteen in-

E Justice Stevens writes “[t]he relevant ‘abrogation’ is the one never know for certain what was or was not intended. The “Reference.” Click on the “Electronic Resources” and you’ll be house databases that provide access to a wealth of local effected in the plan of the Constitution, not by statute.”2 majority’s reliance on the “historical backdrop” of cases and able to review a list of the fifty-nine subscription based information. The URL for this page is www.cml.lib.oh.us/ According to the majority, through the Constitutional general concerns that preceded the Bankruptcy Clause shows services available to CML patrons. Many of these may be ebranch/reference/sta_subjects1.cfm. There are a wide variety of U Convention the states surrendered sovereign immunity in favor that its extrapolation of the Framers’ understanding and intent is searched from your home or work computer provided useful tools here including a database of digitized images of of a national, uniform bankruptcy law. openly tenuous. But, the majority may well be the most practical you have internet access and a card for Discovery Place Columbus historic photographs, a directory of central Ohio R This ruling dispenses with much-relied upon dicta in the of the two opinions because preference actions are so integral to Libraries. organizations and indexes to the plays, songs and science fair Court’s 1996 Seminole Tribe opinion (decided 5-4, the other way), the modern day concept of bankruptcy – equitable distribution of These resources fall into a variety of categories. Represented projects contained as collected works in books owned by CML. here are encyclopedias, dictionaries, directories, indexes to So if you haven’t taken the time to really explore the G which assumed that sovereign immunity could never be assets. abrogated under Article I: “Careful study and reflection have From Katz only two things are certain: (1) States can be sued magazines, newspapers and trade publications along with resources available to you at your public library, I hope that this convinced us, however, that the assumption was erroneous.”3 To for preferences; and (2) Supreme Court opinions on sovereign biographical and genealogical sources, plus homework tools, brief overview will encourage you to do so. And remember, if you N justify this reversal, the Court reminds us that it is not bound to immunity will continue to change with the prevailing political visual images and pricing information. I do not have space can’t find what you’re looking for, don’t forget to use that most follow “dicta in a prior case in which the point now at issue was view. enough to go into most of these in depth so I’ll focus on a user friendly of search engines, the librarian, who is always not fully debated.”4 So, the states’ sovereign immunity defense, handful that I’ve found of general interest that are accessible available to assist you. O to at least preference actions, is now dead and gone. from your home or office computer. The Court partly relies on in rem jurisdictional reasoning: 1. U.S. Const. art. I, § 8, cl. 4 (empowering Congress to establish Associations Unlimited is the online version of the C “In ratifying the Bankruptcy Clause, the States acquiesced in a “uniform Laws on the subject of Bankruptcies throughout the United “Encyclopedia of Associations,” which will assist you in locating subordination of whatever sovereign immunity they might States”). national, international, regional and state trade, craft and [email protected] otherwise have asserted in proceedings necessary to effectuate 2. Katz, 126 S.Ct. at 1005. professional organizations. Each entry provides a detailed the in rem jurisdiction of the bankruptcy courts.”5 In the same 3. Id. at 996. description of the organization, contact address, phone number breath, however, the Court notes that a bankruptcy trustee will 4. Id. (citing Cohens v. Virginia, 6 Wheat. 264 (1821). and website, if applicable. You can search by name, keyword, sometimes need to recover a preference from a state, rather than 5. Id. at 1005. subject or geographic region. just avoid it, which involves in personam process. Nevertheless, 6. Id. at 1001-2. The Health and Wellness Resource Center is a resource the Court tells us, “those who crafted the Bankruptcy Clause 7. Id. at 1005, n.15. for medical information and consumer health concerns. You would have understood it to give Congress the power to can search a medical encyclopedia, look up prescription drug authorize courts to avoid preferential transfers and to recover the information and read health related newspaper articles. There Ellen Smith, transferred property.”6 is also a listing of authoritative web sites related to health and Librarian, U.S. Courts Library But preferences may be the limit. The Court notes that the [email protected] medicine such as CancerNet and PubMed.

32 33 Summer 2006 briefs Summer 2006 briefs B S O R

HAT APPENS F OUR LIENT S O W H I Y C ’ THE BLACK LAWS: B O K S O T

EFENSE RIGGERS MMIGRATION SSUES S C D T I I ?

RACE AND THE LEGAL PROCESS IN EARLY OHIO H R A O E F

By Jay G. Perez By Stephen Middleton, Ohio University Press (2005) L O N F K G T Reviewed by Janyce C. Katz I f you’re a criminal defense attorney and naturalization process. A permanent

E think you don’t need to know about resident is permitted to live and work S C immigration law, think again. Many legally in the U. S. permanently (often R

I H attorneys find out too late that what they referred to as “greencard” holders), but is his is a hard book to read. Not slaveholding immigrants. St. Clair had immigration and testimony laws and A O didn’t know got their clients deported. For not a U. S. citizen. because of style, which is brought slaves into the territory and establishing a black school system.

F attorneys who don’t practice immigration Refugee or asylee status refers to

extremely readable, but because favored enforcement of Article VI. (Samuel Chase was elected to the U.S. E F T

law, it would rarely occur to them to ask individuals who have established to the of its content. Others wanted it totally abolished. Senate by the General Assembly.) Not for their client’s immigration status. Often, this government that they have a well-

Born in Ohio, we like to fantasize Even more malevolent than the until 1886 were the laws totally L it is virtually impossible to tell who is a founded fear of persecution or have Jay G. Perez that treatment of non-white Protestants interpretations of Article VI were the abolished and their end did not bring N United States citizen and who is not. suffered persecution in their home was always humane and just. We like to Black Laws. Ohio had the dubious full equality of opportunity and justice F In today’s society we can’t assume country. A refugee is an individual who think that those who supported slavery distinction of being the first state to to non-white men.3 suspended, the defendant for immigration

G that an individual speaking broken English has been processed abroad by a U.S. lived on the other side of the river. develop laws restricting free blacks. Some argue that to study the ugly is a non-citizen and one who speaks consulate and has been afforded refugee purposes will be considered to have But, that isn’t true. We had our When its sister states entered the parts of American law or history is to I perfect English is. Many individuals with status to relocate to the United States. received a sentence of 365 days. Therefore share of folks who thought that a Union, they based their own restrictive undercut the greatness of this nation. broken English and ethnic clothing are Asylees are individuals once here have the defendant would be deemed an aggra- particular form of cheap labor would laws on Ohio’s. However, learning that law has not E United States citizens through requested protection. Refugees and vated felon under INA Sec. 101(a)(43)(G). encourage the growth of Ohio The Black Laws, passed in 1803, always been applied justly and equally naturalization. Asylees are entitled to apply for permanent However, if the same individual received a economy. Property was, after all, mandated evidence of freedom from a is essential. R One of the most important issues resident status after they have held the 364 day sentence, he would not be property. Not permitting slavery court in another state for any black or It has been argued that books facing non-citizen defendants is whether refugee/asylee status for one year. considered an aggravated felon. restricted movement of property, went mulatto who wanted to reside in Ohio. depicting some of the more Regardless of whether a defendant is the argument. With this evidence, the individual unpleasant aspects of American

O the conviction and sentence they receive A non-immigrant visa holder refers to will trigger certain provisions under the an individual who has obtained a visa convicted, enters a plea of guilty, or pleads We also had those who advocated could obtain a “certificate of freedom” history should be ignored because

F Immigration and Nationality Act (INA) allowing them to enter and remain here no contest, it is considered a conviction for for a non-slave state but wanted attested to by the clerk of courts in the reading them could lead to resulting in their deportation. Often non- legally for a specific period of time under immigration purposes under INA Sec. restrictions on the movement of area in which the individual lived. misconceptions about the overall citizen defendants don’t realize just how specific conditions. Examples are tourist 101(a)(48)(i). Section 2943.031 of the Ohio blacks, their ability to move to Ohio Without a certificate, the person could positive philosophy and contributions important this is, until it’s too late. and student visas. Revise Code addresses an advisement that and to participate in this society. While not be employed. of the U.S. to the world. That problem What you may find surprising is that a Undocumented persons, commonly is to be given regarding possible they opposed slavery, these individuals Each person (including children) should be remedied by making certain non-citizen convicted of certain criminal referred to as “illegal aliens” are deportation, exclusion or denial of were not interested in living side by had to be registered at the clerk of that individuals are well educated, offenses is subject to severe consequences individuals who do not have legal status naturalization upon guilty or no contest side with non whites on an equal courts office, evidence that he or she able to understand the complexity of including deportation, which can be under the immigration laws. These pleas: “If you are not a citizen of the basis. was not someone’s property, a factor our society and will never again enforced regardless of how long the individuals either entered the United United States you are hereby advised that The laws creating this second which was important because it was permit harmful legislation. individual has resided in the U.S. or the States illegally or have allowed their lawful conviction of the offense to which you are class labor group were called the Black forbidden “to harbour or secret any family situation and circumstance. status to expire. pleading guilty (or no contest, when Laws. Stephen Middleton traces their Black or Mulatto person,” the I recently had a middle-aged couple in Under current provisions of applicable) may have the consequences of development and enforcement in “property” of another. There was a 1. Slaves, of course, had a different reality. my office and the wife cried uncontrollably immigration law, the consequences for deportation, exclusion from admission to Ohio. fine for those found hiding slaves. The Poor Laws in Ohio and the as her husband explained the situation. He obtaining criminal convictions can be the United States, or denial of Middleton, a Constitutional Law In 1807, the laws became more restrictions on women’s rights to own said he moved here twenty years ago with severe. Non-citizens who plead guilty to a naturalization pursuant to the laws of the Professor at North Carolina State stringent. Someone wanting to settle property and participate fully in society his wife and their four-year-old son. The seemingly low-level misdemeanor offense United States.” University, points out the conflict in Ohio had to post a $500 bond with are also evidence of a contradiction son, now twenty four, recently applied for can face serious consequences. It must be noted that courts have long between the core values of “natural signatures from two freeholders. There between what was said about “justice” citizenship. Upon being fingerprinted, Immigration laws are very strict regarding recognized that non-citizens have the Fifth rights” in the Declaration of were new restrictions against helping and reality for many people. standard procedure for this application, he crimes of moral turpitude: firearms and Amendment right to remain silent with Independence, the establishment of runaway slaves. 2. Page 121 – quoting a resolution of the was taken into custody by Immigration and aggravated felonies. However, crimes that regard to questions relating to their justice under the law in the U.S. The revised laws also prohibited anti abolitionists. Customs Enforcement and placed in fall under these categories may not be immigration status. When judges inquire Constitution’s preamble and the reality the testimony of a black or mulatto in 3. Forget opportunities for women – there deportation proceedings. Two years prior, those you think of as aggravated felonies – as to a defendant’s status a conflict arises of restriction for those deemed black court against a white; thus, no legal was a Black lawyer and state legislator he had had a relatively minor brush with murder, rape, sexual abuse of a minor, etc. which could be avoided if the advisement or mulatto who were not enslaved.1 recourse and crimes witnessed only by long before a woman of any color or the law. The family hired an attorney and Under the INA aggravated felonies refer to was given automatically to all defendants. The Northwest Ordinance had a non-white could go unpunished. religion could become a lawyer or run the matter was resolved. What they didn’t these crimes, but it also refers to those Many non-citizens, even if they written a provision implying there Laws were passed to “protect” for a seat in the General Assembly. realize was that the plea worked out had such as theft or burglary offense for which understand the advisement, do not would be equality in Ohio for peoples labor and society, strictly enforced with triggered a provision in the INA which the term of imprisonment is at least one understand the severity of the of all races. Middleton argues that protests from few individuals until the made their son deportable. He was being year. The one-year sentence prevails consequences. Simply put, they cannot provision, known as Article VI, was 1830s, when their popularity began to deported to a country he has no memory regardless of any other suspensions. fathom how a relatively minor sentence or written not for moral objections to erode. [email protected] of, where he has no family or support Crimes involving moral turpitude are crime could have such drastic results and slavery but as a compromise between Those against the laws (the Ohio structure and does not speak the language. questionable as well. For example, courts therefore do not understand that the those who wished to protect the labor Anti-Slavery Society) were met by the This is a scenario I see quite often. have consistently held that murder, rape advisement applies to them. of free men and those who wanted to Anti-Abolition Society, asserting that it The term “immigration status” refers and burglary are crimes involving moral The area of criminal conviction can be strengthen the economy of southern had always been state policy “to to a person’s classification under U. S. turpitude. However, criminal trespass, complicated and this article is abbreviated states. exclude Negroes and mulattos from her immigration laws. A few examples of malicious mischief and DUI are not. – only a fraction of what there is to know; In contrast to the abolitionist territory.”2 immigration status would be a U. S. Sentences are often the critical factor but it is hoped the information illustrates argument that Article VI instantly A coalition between the Free Soil citizen; permanent resident; refugee/asylee; in determining the immigration consequ- the importance of immigration law for outlawed slavery in what was to Party and the Democrats led to a nonimmigrant visa holder and one ences that a defendant may face. For criminal defense attorneys. become Ohio, Arthur St. Clair, significant modification of the Black undocumented. Citizens are classified as example, if a defendant pleads guilty to governor of the Northwest Territory Laws in 1849. Trumbull County such because they were either born in the theft and receives a 365 day sentence, issued an edict declaring the anti representative John F. Beaver submitted Janyce C. Katz, U. S. or obtained citizenship through the regardless of how much of the time is [email protected] slavery provision enforceable only on a bill calling for the repeal of the OAG Tax Section

34 35 Summer 2006 briefs Summer 2006 briefs P A H C P C “MENTAL ONLY” NHANCING HE ROFESSION O T E T P A A H W Continuing education for paralegals C AND THE CONSTITUTION C T O R T BWC claim disallowed By Trisha L. Balthaser U A O

C By John C. Barno his has been a good year for the paralegal in Central Ohio. Wright);The FairPay Regulations: Exempt or Nonexempt? That’s

W With the help of our continued partnership with the Still the Question (Dawn Rae Grauel, Hahn Loeser + Parks); E T Columbus Bar, both our organization (PACO) and our Alternative Dispute Resolution (Marya Kolman, Mediation M he Supreme Court of Ohio last December upheld the profession have gained greater visibility and our membership has Services, Franklin County Domestic Relations Court); Bankruptcy 1 T

E constitutionality of the Ohio Revised Code which grown to almost 400 strong. We have been updating our bylaws, Update (Judith M. McInturff). excludes “mental only” claims – those claims that revitalizing committee work, participating in pro bono projects Paralegals were grouped together by practice area for R T R include psychological injuries and do not involve any physical and visiting with students from several area paralegal programs. roundtable discussions. This provided an excellent opportunity for P injuries – from coverage under Ohio’s workers’ compensation In May, we celebrated Paralegal Day with a luncheon at the the attendees to interact with their peers, discussing how the U statute. The plaintiff in this case, Kimberly McCrone, alleged Westin Great Southern Hotel. Colleen Marshall from NBC 4 and topics covered in the breakout sessions would impact their practice U S that this portion of the workers’ compensation statute violated Porter Wright Morris & Arthur served as our emcee. Our areas. An exhibition hall was open for attendes to learn about new equal protection by excluding psychological or psychiatric John C. Barno, speakers were Auditor of State Betty Montgomery and Jill developments from area vendors, such as document management Lane Alton & Horst O injuries from workers’ compensation coverage. Snitcher-McQuain, executive director of the Ohio Academy of companies, technology firms, and legal placement services. In a five to two decision written by Justice Judith Ann Trial Lawyers. Proceeds from the luncheon and silent auction The paralegal summit was well received and well attended. Lanzinger, the Supreme Court disagreed with McCrone and According to Delores Moore, “The speakers were exceptional and C benefited PACO’s Student Scholarship Fund. Perhaps most

determined that the legislature’s exclusion of “mental only” notable, however, was the full-day continuing education seminar very informative. The fact that the speakers were able to share workers’ compensation claims under the Revised Code was basis for denying benefits to one class of mentally injured we co-sponsored with the Columbus Bar in April. their real life experiences greatly enhanced the sessions.” Jennifer

E constitutional. The Court reversed the decision of the Stark workers. While continuing education is an important aspect of almost Radcliffe, secretary of the PACO executive board for the 2005- County Court of Appeals and the Stark County Common The decision also noted that Ohio’s General Assembly is any career, it is an especially important component of careers in 2006 term, said, “The speakers were both informative and fun.” Pleas Court that both determined the language in R.C. the branch of state government charged by the Ohio the legal field which is constantly changing and evolving. As There are many opportunities in Central Ohio for paralegals

M 4123.01(C)(1) violated the equal protection clauses of the U.S. Constitution to make public policy choices for the Workers’ legal professionals, paralegals must adapt to these changes and to enroll in continuing education coursework. Many of the and Ohio Constitutions. Compensation Fund, and it is not within the Court’s purview keep abreast of new developments. While it is widely known that seminars offered by the Columbus Bar and other area entities

E McCrone v. Bank One Corp. involved a bank teller, to override the legislation when R.C. 4123.01(C)(1) does not attorneys must comply with stringent continuing education feature discounted enrollment fees for paralegals. PACO also McCrone, who in August 2001 was robbed at gunpoint while violate the Equal Protection Clauses of the United States and requirements, many are not aware of the strides that paralegals offers a monthly “High Noon at the Bar” seminar. These Ohio Constitutions. Chief Justice Thomas J. Moyer and R working at Bank One. McCrone was not physically injured in have been making to stay current in their knowledge of the law. seminars cover a wide range of topics and admission is free. For the course of the hold up, however, she was diagnosed with Justices Evelyn Lundberg Stratton, Maureen O’Connor, and According to the National Federation of Paralegal Associations more information about the High Noon series, please visit

P adjustment reaction and post-traumatic stress disorder Terrence O’Donnell concurred with Lanzinger’s opinion and (NFPA), the only jurisdiction currently mandating continuing PACO’s website at www.pacoparalegals.org. stemming from the incident. agreed that McCrone had not met her burden to show that the legal education for paralegals is California.1 However, paralegals Another option for paralegals seeking to continue their The McCrone requested workers’ compensation benefits state’s reasons for the statutory exclusion are invalid, and in many other jurisdictions have made it a priority to participate education would be to contact one of the area paralegal U as a result of these psychological diagnoses, and Bank One that R.C. 4123.01(C)(1) rationally advances legitimate regularly in continuing education programs. In fact, CLE credit programs. Practicing paralegals can enroll in courses to brush up

S did not dispute the legitimacy of the bank teller’s governmental interests. for paralegals is available through both NFPA and the National on their knowledge in specific substantive areas of the law. These diagnosed mental condition, and did not deny that her Justices Alice Robie Resnick and Paul Pfeifer both wrote Association of Legal Assistants (NALA). “It is essential and great programs sometimes allow individuals to enroll on a non-credit condition arose in the course of her employment. Bank dissenting opinions. Resnick disputed that the difficulty of to stay current in the ever changing legal world,” said Leslie or audit basis. One did dispute the validity of the claim based upon the verifying psychological injuries and the protection of the BWC DeMarco, a Columbus paralegal. With a series of successful events and the achievement of language contained in R.C. 4123.01(C)(1), which explicitly fund provided a rational basis for denying mental only claims. The Paralegal Association of Central Ohio and the many of our organizational goals, 2006 has been an incredibly excludes psychological conditions from the scope of Pfeifer wrote a separate dissent and cited the same concerns Columbus Bar co-sponsored the Columbus Paralegal Education successful year for PACO. We hope to continue this growth and injuries eligible for workers’ compensation unless the brought up in Resnick’s opinion. Summit titled “Timely Topics for the Legal Professional.” Justice success in the coming months and years. If you, or someone you psychological condition stems from a job-related physical So, for now in Ohio, if an employee alleges an on-the- Evelyn Lundberg Stratton of the Ohio Supreme Court presented know, is interested in learning more about continuing education injury or occupational disease. job mental only injury, not accompanied by a physical injury, the keynote address. She spoke briefly about issues relating to for paralegals, please note that PACO, the Columbus Bar, and The claim was denied by the Industrial Commission of the BWC claim will be disallowed. This may change in the the unauthorized practice of law and common violations of the area paralegal programs are excellent resources. Ohio and McCrone filed the claim into the Stark County future, as Justices Stratton, O’Connor and O’Donnell urged notary public duties. She also spoke about mental illness in the Common Pleas Court. The trial court found that the exclusion Ohio’s General Assembly to consider amending R.C. courts, mental health suspension and mitigation, and the of purely psychological injuries from workers’ compensation 4123.01(C)(1) to make mental only claims allowable in Ohio. paralegal’s role in identifying and addressing potential problems. 1. Chapter 439, §6450(d), California Business and Professions Code, was unconstitutional and found an equal protection violation This is good news for Ohio employers as they need not be Breakout sessions included: What’s New in the Electronic as cited at www.paralegals.org/. under the 14th Amendment of the U.S. Constitution and concerned that these types of claims will affect their BWC World- Tools for the Paralegal (Paul J. Unger, Henley March & Article 1, Section 2 of the Ohio Constitution. This decision premiums any time soon. Unger); Identity Theft and the Law (Dave Stewart, Columbus was affirmed by the 5th District Court of Appeals and further State); The Hot Internet: Helpful Sites for Use in Your Law Trisha L. Balthaser, State Auditor’s Office, Legal Division added that the state had no “rational basis” for denying BWC Practice Pat Christian, Squire Sanders and Kelley Louis, Porter [email protected] claims to those who incurred psychological injuries without 1. R.C. 4123.01(C) states, in part: “Injury” includes any injury, being physically injured, but approved benefits to workers whether caused by external accidental means or accidental in who suffer from the same types of psychological injuries character and result, received in the course of, and arising out of, arising from a physical injury. the injured employee’s employment. “Injury” does not include: (1) Bank One and the BWC appealed the appellate court’s Psychiatric conditions except where the claimant’s psychiatric WWW.CBALAW.ORG decision to the Supreme Court of Ohio, which found there conditions have arisen from an injury or occupational disease was a rational reason for the statute in question. Justice sustained by that claimant or where the claimant’s psychiatric Lanzinger wrote in her decision that it was reasonable for the conditions have arisen from sexual conduct in which the claimant The Columbus Bar website has a fresh look ... Not only is the state of Ohio to classify psychological conditions differently was forced by threat of physical harm to engage or participate; from those accompanied by physical injury because it is often Columbus Bar site new, but we have developed two additional websites, difficult to prove the cause and existence of mental injuries. Lanzinger also found that the preservation the solvency of the one for the Columbus Bar Foundation (www.columbusbarfoundation.org) Workers’ Compensation Fund is a legitimate public policy [email protected] and one for the public: the People’s Bar (www.peoplesbar.org).

36 37 Summer 2006 briefs Summer 2006 briefs closely-held corporation. The S minority shareholder claims that R GUIDELINES FOR WRITING the majority shareholder E breached his fiduciary duty by T S using corporate funds for his

T personal benefit rather than for a A R AN OHIO COURT OF APPEALS BRIEF legitimate business purpose. M

E When preparing the “course of By Nancy Manougian proceedings and disposition below” G

T subsection of the statement of the case,

N begin by identifying the parties and briefly I

T ou’ve completed your research, and statement of facts, (7) argument, and (8) describing the claims and defenses that L that fateful day has come — the day conclusion. were asserted in the case. Then detail A A you will begin to draft your what happened in the court below in an

E Y appellate brief. You sit at your desk 2. Framing Assignments of Error orderly, chronological fashion. End with a

P surrounded by neatly highlighted copies Rule 16 requires “[a] statement of the sentence that assures the appellate court M P of pertinent cases, a blank legal pad, and assignments of error presented for review, you are entitled to prevail on appeal and

A a sharp pencil. You’re ready to write. And with references to the place in the record briefly explains why. Try to keep this personal benefit, a majority they make the structure of the even if you’re not, you just can’t put it off where the error is reflected.” Ohio R. Nancy Manougian, subsection of your brief short, simple, and any longer. You put the pencil to the Bailey Cavalieri shareholder is not entitled to “argument” section of your brief readily G App. P. 16(A)(3). to the point. In other words, if a claim or judgment as a matter of law. apparent. For example: paper, but the pencil doesn’t move. No Rule 16 does not specify how an defense or something that happened in thoughts come to glide it across the page assignment of error should be framed, but the court below has no bearing on the N — no thoughts except maybe those of some local rules do. Generally, an tion (and its understanding) by presenting 5. Reciting the Facts V. Argument appeal, there is no need to clutter up your A. Summary judgment is not I fishing or golfing or being anywhere assignment of error should provide a the court with a concrete legal issue that brief by telling the court of appeals about Rule 16 requires “[a] statement of except at your desk writing a brief. So you specific, argumentative contention has factual context. A good rule-of-thumb facts relevant to the assignments of error appropriately granted to a it. For example: majority shareholder on a L draw a picture of a largemouth bass or a through which you inform the appellate for drafting an issue is a specific factual presented for review.” Ohio R. App. P. minority shareholder’s claim for golf ball on the first sheet of your legal court exactly how and why the trial court statement or two to put the issue in Jones, a minority shareholder in 16(A)(6). pad. This portion of the brief is your breach of fiduciary duty where a A erred. Try to avoid drafting a vague factual context followed by a The Big Shoe Company, genuine issue of material fact Tear off that sheet, throw it away assignment of error such as: “The trial straightforward question for the court to commenced this action against opportunity to tell the appellate court a (unless your drawing of the bass looks story. Try to use vivid words to bring the exists concerning the majority E court erred in granting summary answer. For example: Smith, the majority share- really good), and go get another cup of judgment to the plaintiff.” A more specific facts to life. And try to present the facts in shareholder’s use of corporate holder, in 2002. Jones claimed funds. P coffee. Then read on for a few guidelines assignment of error is preferable. For Smith, as the majority that Smith had breached an interesting way, while keeping three about brief writing that may help you example: shareholder of a closely-held things in mind: (1) be organized, (2) be fiduciary duties he owned Jones Second, discuss the law after you P enjoy — well, if not enjoy, then at least corporation, owed Jones, the by using corporate funds for his concise, and (3) be correct. not dread — the task that lies ahead. The trial court erred in granting minority shareholder, a fiduciary On being organized, some cases lend have stated your argument briefly. Try to personal benefit. Smith denied keep the discussion clear and simple. In

A summary judgment to a majority duty to use corporate funds only themselves to a chronological recitation of that he had breached his other words, try to make the reader feel 1. Outlining the Brief shareholder on a minority for a legitimate business fiduciary duties, asserting that he the facts, but others do not. Think about Before starting to write, get out your shareholder’s claim for breach of purpose. While Smith contends the facts of your case and the best way to smart. Do not get bogged down reciting in had used the funds for a detail the facts of the cases you cite unless rule book. First check Rule 16 of the Ohio fiduciary duty, because a that a $200,000 company check legitimate business purpose. organize them for the clearest Rules of Appellate Procedure, which genuine issue of material fact he wrote to himself was presentation. a particular case is right on point or is crucial to the appeal. But it is helpful to addresses the form and content of an exists concerning whether the reimbursement for company Smith filed a motion for On being concise, do not give the appellate brief. Then review the local rules majority shareholder used expenses he had personally court more facts than it needs to decide use short parentheticals following case- summary judgment in 2003. law citations that provide either the of appellate procedure for the district in corporate funds for a legitimate paid, the deposition of Smith contended that no the appeal. Try to keep the recitation of which your brief will be filed. Some local business purpose or for his own the company’s accountant the facts short, simple, and to the point. holding of the case or a pertinent quote. genuine issue of material fact For example: rules follow the form and content personal benefit. contradicts that contention. existed regarding his use of the On being correct, do not overstate or requirements of Rule 16, but some contain May summary judgment corporate funds and that they mischaracterize the facts, and do not additional requirements. 3. Drafting the Issue for Review be granted to a majority ignore any “bad” facts. Present all A majority shareholder owes a had been used for a legitimate minority shareholder a fiduciary Rule 16 provides you with a rough Rule 16 requires “[a] statement of the shareholder on a minority pertinent facts in a straightforward, business purpose. Smith claimed duty. Crosby v. Beam, 47 Ohio outline for your brief. It states that a brief issues presented for review, with shareholder’s claim for breach of “matter-of-fact” manner rather than in an that he was therefore entitled to St. 3d 105 (1989). That duty is should contain (1) table of contents, (2) references to the assignments of error to fiduciary duty where a genuine argumentative way. The time for arguing judgment as a matter of law breached where a majority table of authorities, (3) assignments of which each issue relates.” Ohio R. App. P. issue of material fact exists comes later. because, according to Crosby v. shareholder, absent a legitimate error, (4) issues presented 16(A)(4). concerning whether the majority Beam, 47 Ohio St. 3d 105 (1989), business purpose, uses his for review, (5) state- Once again, try to avoid shareholder used corporate a majority shareholder’s 6. Crafting an Organized, Winning control of the corporation for his ment of the drafting a vague issue such as: funds for a legitimate business fiduciary duty is not breached Argument own advantage, such as where case, (6) “Did the trial court err in purpose or for his personal where his actions have a Rule 16 requires “an argument he uses corporate funds for his granting summary judg- benefit? legitimate business purpose. containing the contentions of the personal benefit. Id. ment to the plaintiff?” appellant with respect to each assignment Rather, try to grab 4. Preparing the Statement ror The trial court granted Smith’s of error presented for review and the Summary judgment may not be nes ief Er eli Br of view the court’s atten- of the Case uid the ents Re motion in 2004, concluding that reasons in support of the contentions.” granted where a genuine issue G ing gnm for Rule 16 requires a “statement of the utlin ssi ue of no genuine issues of material Ohio R. App. P. 16(A)(7). Here are three of material fact exists. Ohio R. • O g A Iss ent min he tem case” that briefly describes (1) the nature Fra g t Sta fact existed and that Smith was guidelines for crafting an organized and Civ. P. 56. Thus, where a • ftin the Dra ng of the case and (2) the course of • pari entitled to judgment as a matter understandable argument. genuine issue of material fact Pre se cts d, proceedings and disposition in the court • Ca e Fa nize of law based on Crosby. First, begin by stating the argument exists concerning a majority the th rga iting n O below. Ohio R. App. P. 16(A)(5). Rec g a ent briefly. A good place to do so is in a shareholder’s use of corporate • ftin gum sion When preparing the “nature of the Cra Ar clu hes This court should reverse the subheading under the “argument” funds — whether the funds • ing Con Touc Winn the ing case” subsection of the statement of the ing nish trial court’s grant of summary heading of your brief. If your brief were used for a legitimate rit e Fi case, try not to be too detailed. Simply • W th judgment to Smith. Where, as contains more than one assignment of business purpose or for the dding • A give the court a generic, nutshell view of here, genuine issues of material error (or more than one argument for a majority shareholder’s personal the case in a sentence or two. For example: fact exist concerning whether single assignment of error), use separate benefit — summary judgment is corporate funds have been used subheadings. Subheadings in which you not appropriate. This case involves a dispute for a legitimate business purpose state each of your arguments briefly between two shareholders of a or for the majority shareholder’s provide a “road map” for the reader. And (Continued on Page 40)

38 39 Summer 2006 briefs Summer 2006 briefs P (Continued from Page 39) personal benefit, such conduct funds. But the company would constitute breach of accountant’s deposition testi- O S

Third, apply the law to the facts of fiduciary duty under Crosby. mony establishes that the P your case and argue. Show the court that, PERMANENT SPOUSAL SUPPORT T company had no such salary or -

based on the law as applied to the facts of O A genuine issue of material fact rent expenses during the time M your case, it can and should rule in your exists in this case concerning period when Smith purported

client’s favor. For example: Smith’s use of the corporate paid those expenses and Reality or illusion? A S

funds, and that fact issue should “reimbursed” himself. R Smith, as the majority share- I have precluded the grant of T

holder of The Big Shoe Company, summary judgment to Smith on Because a genuine issue of By Janice M. Flowers T A owed fiduciary duties to Jones, Jones’ fiduciary-duty claim. material fact exists concerning - M the minority shareholder. As the Specifically, the company’s the use of the corporate funds, L company’s majority shareholder check ledger states that the the trial court erred in granting ere’s the scenario. ability to pay becomes a factor for the and general manager, Smith $200,000 check Smith wrote to Smith’s motion for summary Your client was awarded court to consider. This is an illusion. D A wrote a company check for himself was “reimbursement” judgment. “permanent” spousal support The reality of this situation is that I $200,000 to himself. If Smith did to Smith for $75,000 in H the balance of power regarding post S four years ago. She was married for 25 A not have a legitimate business “employee salaries” and 7. Writing the Conclusion years. She met her husband in college. The reality is, even if a decree spousal support actions is tipped R purpose for writing that check $125,000 for “rent” that Smith Unless your brief is quite lengthy They married shortly after graduation. in the payor’s favor. In a number of high- G

and used corporate funds for his court awards indefinite or R purportedly paid using his own (hopefully it is not, because most of the Your client worked while her husband dollar spousal support cases, the payor I runs a closely held business and typically

completed an advanced degree and built E time shorter is better), the conclusion “permanent” spousal T should not summarize or restate the his career. After the couple’s first child has the ability to control and/or manage E

issues and arguments contained in your was born, she stopped working to raise support, the payor’s his income prior to initiating a post A M brief. Just ask the court for what you want. children while her husband continued to obligation will generally decree action – I’ve never seen a motion

build his career. filed to increase support during the E L

8. Adding the Finishing Touches Fast forward twenty years. Although terminate if the payee “good” years! N she has an undergraduate degree, your The spousal support recipient When you are finished drafting, read remarries or upon death of T

the brief a few more times, keeping these client’s skills are outdated and obsolete generally does not have access to her D questions in mind: because she has not worked outside the either party. former spouses’ financial information S home. Her full-time job for the last until after the motion has been filed – by • Does the brief conform in form and twenty years has been helping to build then it’s too late. I content to the applicable rules? her husband’s career and caring for the To add insult to injury, the payor will S children. Her sacrifice paid off, so to often stop making spousal support

• Are the assignments of error framed as A specific argumentative contentions in speak. Her husband is successful in his payments until the matter is resolved. In which you inform the court how and chosen career and your client enjoys a the amount of a “permanent” support certain Ohio jurisdictions, this will take why the trial court erred? lifestyle consistent with his success. order. well over a year – all the while the G Carl: 10 hours,11 sources, 6 bathroom breaks • Is the issue for review placed in factual Unfortunately, your client and her spouse If the court has retained jurisdiction recipient is not receiving any money –

context and presented as an have nothing in common anymore. He to modify spousal support, it may only do with no access to unemployment or other R understandable, straightforward begins having an affair with the cute little so where it determines that there has financial benefits to compensate for the loss in support income, or more question for the court to answer? assistant in his office. A highly contested, been a material or substantial change in E • Does the statement of the case (1) give “ugly” divorce ensues and the judge the circumstances of either party that important, to finance her defense awards your client “permanent” spousal litigation. Although she will promptly file the court a generic, nutshell view of the could not reasonably have been E nature of the case and (2) detail the support. anticipated at the time of the original a civil contempt action for the payor’s You receive a frantic call from your failure to pay; this action is rarely course of proceedings and disposition decree. A change in circumstance M below in an orderly, chronological client four years later. She has not includes: successful in providing financial relief fashion? received this month’s spousal support prior to trial. Also, the current penalties associated with civil contempt would not • Are the facts recited in an organized, payment (her only source of income) and • Altered economic conditions (i.e. an E serve as a deterrent to violating a court concise, and factually correct her ex-husband has filed a motion to involuntary decrease in income); order to pay support. This creates a manner? terminate his obligation. Is your client’s • Remarriage of the recipient; N situation where the payor has little if any • Do the subheadings in the “argument” “permanent” spousal support order • Death; incentive to resolve this matter section of the brief briefly state each reality or an illusion? • Entering into a relationship in another Ohio law allows a judge to award state that would constitute a valid expeditiously. At the end, your client’s T argument and provide a “road map” for initial spousal support award will likely the reader? spousal support under certain marriage in Ohio; ® be reduced. She may receive a lump sum S • Is the discussion of the law clear and circumstances. Ohio’s current law • Post-decree cohabitation in certain defines spousal support as “the payment for missed payments; however, the lump You: One click on ResultsPlus understandable? situations; or payments to be made to a spouse or sum payment will typically be based on • Have you applied the law to the facts of • Payor’s increased ability to pay; ® former spouse that is both for the lower spousal support amount and ResultsPlus puts a powerful law library behind your Westlaw search, suggesting your case? • Retirement; and other circumstances sustenance and for support of the (the catchall). also may be includible as taxable income. analytical materials relevant to your search topic. One click and your research may • Does your argument show the court spouse or former spouse.” If the court Is permanent spousal support reality that it can and should rule in favor of already be done! Get the right answer faster with ResultsPlus, exclusively on determines that permanent support is It is important to note that any or an illusion? You be the judge. ® your client? westlaw.com. Maybe someone should tell Carl. warranted, when determining the change in circumstance relied upon by a • Does the conclusion tell the court what amount of the award, the court must party seeking modification of a support you want? Now for individual cases, too! Visit westlawresultsplus.com or call the consider a party’s ability to pay and the order must be involuntary. • How does the brief read as a whole? [email protected] West Reference Attorneys at 1-800-207-9378 and enter 68121. needs of the party to whom the support In making an application to modify a Are the sentences clear, and do the is to be paid. support obligation, the party seeking paragraphs flow? Spousal support can be for a modification bears the burden of specified length of time or may be showing the existence of changed If the answers to these questions are ordered to continue indefinitely. The circumstances. The party seeking “yes,” your brief is ready for filing. reality is, even if a court awards indefinite modification must make full disclosure of © 2006 West, a Thomson business L-320662/2-06 or “permanent” spousal support, the financial status, including tax returns, payor’s obligation will generally before the other spouse’s financial status Differences that matter. terminate if the payee remarries or upon Nancy Manougian is a member of Bailey becomes an issue. Once the moving death of either party. Also, the court will Cavalieri LLC. party has made a prima-facie showing of Janice M. Flowers typically maintain jurisdiction to modify [email protected] changed circumstances, the respondent’s

40 41 Summer 2006 briefs Summer 2006 briefs S the legality of the festivals being sections of charitable organizations opinion and does not have the force of G conducted in their respective set forth in the Code. In this case, the law, but local law enforcement officials E CHARITABLE FESTIVALS IN OHIO jurisdictions. charity does not appear to meet any of have been using the policy as a S R To be considered a charitable the definitions of a charitable guideline. It remains to be seen as to organization, an organization must be a organization. In making such a whether the guidelines in the policy &

G And the games people play religious, educational, veteran’s, determination, it is advisable to will be challenged.

S fraternal, sporting, service, non-profit review the charity’s organizational When advising clients with

E medical, volunteer rescue service, documents, as well as any materials respect to charitable gaming activities, E volunteer firefighter, senior citizen’s, describing their program services and carefully review their qualification as a L By Michael E. Zatezalo historic railroad educational, youth mission. charitable organization, make sure R U

athletic, amateur athletic or youth park Save the World also wants to there are no additional policies or

R athletic organization (see ORC Section conduct its festival at a local catering procedures promulgated by the s. Smith and conducting of the 2915.01(H)). hall which is privately owned. attorney general’s office and, to be Mr. Jones are games.

& As described above, Save the However, as stated above, a festival can completely safe, give local law members of the • A veteran’s or M World does not appear to meet any of only be held at premises leased from a enforcement agencies a briefing on the board of trustees of fraternal organization these definitions. There are many well governmental unit, a veteran’s proposed event. S “Save the World,” a cannot lease its recognized and respected charitable organization or a fraternal organi- local charitable organi- premises to a works in Ohio that do not meet any of zation. Therefore, the festival cannot be E zation. Your firm has charitable organization these definitions and therefore cannot held at a privately owned party hall or represented Save the for a festival if it has conduct games of chance. Moreover, catering facility. [email protected] L World for many years. already leased the the broader the charitable purposes of With respect to the payment of a The organization has premises four times the organization, the less likely it is that supervisor, no person can be

U had difficulty raising during the preceding it will fall within one of the ORC compensated directly or indirectly for monies to support its year to charitable definitions. operating or assisting in any games of programs which include organizations for that R In the hypothetical set of facts set chance. Therefore, whoever supervises meals for the homeless, purpose. forth above, the first issue to consider the tournament cannot be paid. after school tutoring for • All of the money or is whether Save the World qualifies as Finally, in Policy 201 the Ohio disadvantaged students, assets received from a charitable organization under attorney general’s office has taken the and counseling and the games of chance Section 2915.01 of the ORC. Not only position that in order to be considered rehab services for re- after the deduction does an organization have to be tax a festival, the charitable organization covering alcoholics and only of prizes paid out exempt under Section 501(c)(3) of the must offer two activities in addition to drug abusers. must be donated or Internal Revenue Code in order to games of chance and serving Michael E. Zatezalo, Save the World is a tax exempt has remained substantially the same as transferred to an organization which conduct games of chance, it also has refreshments. The policy is not the Kegler Brown organization under Section 501(c)(3) of it was prior to December 2002. is a govern-mental unit that is tax to fit within one of the definitional equivalent of an attorney general’s Hill & Ritter the Internal Revenue Code. After much Section 2915.02(D)(1) of the Code exempt under subsection 501(c)(3) of discussion at the most recent board permits charitable organizations as the Internal Revenue Code. meeting, a suggestion was made that defined to conduct games of chance • The games of chance cannot be the organization conduct a Texas Hold providing they comply with the conducted during or within ten hours ‘em poker tournament and/or a Las following requirements: of a bingo game conducted for Vegas night as a means to raise funds. amusement purposes only. The board unanimously endorsed the • The games of chance are not craps • No person can receive commission, idea and appointed Ms. Smith and Mr. for money or roulette for money. wage, salary, reward, tip, donation, Jones as the co-chairs of the event. • The charitable organization meets gratuity, or other form of com- “Building Ms. Smith and Mr. Jones are now the definition of a charitable pensation, directly or indirectly, for in your offices asking for advice with organization contained in ORC operating or assisting in any games respect to the legality of conducting Section 2915.01. of chance. Towards the Future” such an event. In addition, they are • The charitable organization is and interested in holding the event at a has received from the Internal Since a license is not required to well-known local hall which is privately Revenue Service a determination operate games, as a practical matter Addington Manor Assisted Living owned and paying a supervisor to letter currently in effect stating that the enforcement of Ohio’s laws with oversee the operation of the the organization is tax exempt from respect to festivals lays primarily with tournament. federal taxation under subsection local law enforcement authorities. In 1976, voters passed a 501(c)(3) of the Internal Revenue However, due to the recent national constitutional amendment permitting Code. popularity of poker, Texas Hold-Em charitable gaming in Ohio (ORC • The games of chance are conducted poker tournaments are being Section 2915.01). While charitable at festivals of the charitable advertised and conducted all around organizations have been permitted to organization for a period of four the state of Ohio, most under the The Hospice Center operate games of chance at festivals in days or less, and not more than guise of a charitable festival. As a Ohio since the ‘70s, the exploding twice a year or for a period of five result of the proliferation of these popularity of poker tournaments days or more, not more than once poker tournaments (many of which (poker defined as a game of chance in per year. were in clear violation of the ORC), Section 2915.01) has caused law • The festival must be held on the Ohio Attorney General’s enforcement officials to take a closer premises owned by the charitable Charitable Law Section promulgated look at what constitutes a festival organization for a period of no less Policy 201, setting forth guidelines for under Ohio law. than one year preceding the conducting games of chance at Lutheran Village of Columbus Although Chapter 2915 of the conducting of the games of chance; festivals. Policy 201 and the guidelines The Lutheran Village of Columbus 935 N. Cassady Ave. on premises leased from a are on the attorney general’s website. Columbus, OH 43219 Code was completely revised by House Campus Development Plan (614) 252-4987 www.lssco.org Bill 512 in late December 2002 and governmental unit; or on premises While not legally binding and not further revised in HB 95 (effective July that are leased from a veteran’s or equivalent to an official attorney 1, 2003) and HB 325 and Senate Bill fraternal organization and owned general’s opinion, local law “Call 614-228-5200 for more information or 146 (effective September 30, 2004), the by the organization for one enforcement officials are using the philanthropic opportunities” language regarding games of chance year immediately preceding the guidelines as a basis for determining

42 43 Summer 2006 briefs Summer 2006 briefs The next day, after a long walk through Paris, we picked We traveled the country side on small roads until we

G up our rented car and headed out to the Loire Valley. found the castle Chambord. It was built by 1800 workmen – A word to the wise – memorize the map and all in all probability designed by Leonardo da Vinci, then living N

I streets you will need before getting in the car. It is so easy in nearby Amboise. It has 440 rooms, four round towers, and

L to get on the wrong street and sit a long time in a Paris a staircase constructed as a double helix so one person going G

E traffic jam. The country roads have small signs, few and up on his horse could never see others with horses going far between. down. V If you find your French fails you and you absolutely From Chambord, we drove to Blois, center of strawberries N A must find someone who has some English to help you, be and of art and history. Thibauld I was the first Count of Blois I R sure to point to emphasize right and left. We were twenty and his family remained in power until approximately 1230. T kilometers the wrong way when we decided to ask He built the first castle to protect the town. L directions again. At a minimum, make certain you are able One of the counts of Blois married the daughter of to understand the answers as well as ask the questions. William the Conqueror and became King of England in 1135. E It is a straight shot down a major highway and by While he may have been England’s monarch, Stephen driving the same speed as everyone else, the Loire Valley can remained subject to the King of France, having sworn an V be reached in about an hour and a half. But, there are oath of fealty to him. (At that time, loyalty to the superior interesting sights off the main road, so once out of Paris we was sworn by oath indicating reciprocal promises of defense A meandered slowly, exploring along the way. and protection of the estate.) The Loire Valley has a second name, “Chateaux-de-la- Joan d’Arc came to the castle at Blois in 1429 to be R Loire,” because of the many spectacular, fairy-tale castles blessed by the Archbishop of Reims before departing to drive nestled in thick forests. (There are two regions: Pays-de-la- the English out of Orleans. T Loire and Centre-Val-de-la-Loire). The French nobility who The castle at Blois reflects architectural styles from built the chateaux when not waging war enjoyed hunting. Medieval to Classical. For example, the Foix tower and hall are Some wild animals and some nobility can still be found reminiscent of the time when the castle was used for defense. living in the areas around the Loire River and its tributaries. In contrast, the Gaston d’Orleans wing, constructed in the The area is a center of agriculture with fields packed with 17th Century, represents the Classical style. The Francis I wing huge sunflowers. is considered to be a masterpiece of the Renaissance. The A10 from Paris, or one of the slower roads which Further down the Loire River is Amboise, said to parallel it, goes through Eure et Loire, and the city Chartres epitomize the early years of the Renaissance in France. Chambord with its magnificent Notre Dame Cathedral. We could see Located in Indre-et-Loire, Amboise was first the property of Notre Dame long before we came to the city. There has been the counts of Anjou and then of the powerful Amboise a church on that hill since the early years of Christianity. family. The castle became the property of the crown in 1431; The Cathedral, last of the buildings on the hilltop, was King Charles VIII and Anne of Brittany enlarged it and made completed in the late thirteenth century and is one of the it a royal residence. Kings settled their wives and children in best preserved examples of Gothic Architecture, designated a the castle and lived elsewhere with their mistresses. It was MY FRENCH CONNECTION world heritage site. The medieval town surrounding the described by Gustave Flaubert as dominating the whole Cathedral is also worth visiting. There are wooden houses, a town. house built with pottery inside and outside, and several Chateaux de la Loire museums. (Continued on Page 46)

By Janyce C. Katz

ast summer, on our way to the airport, followed by easy a wedding, my husband luggage rolling from the Gare de Land I rented a car and Lyon. The Loire Valley has a second name, traveled from Paris through It must be noted that the term “Chateaux-de-la-Loire,” because of the Chartres in Eure-et-Loire to my We traveled the country side “inexpensive” is relative when it pen pal’s family home, La comes to Paris. For example, the many spectacular, fairy-tale castles Grande Land – and on our way on small roads until we found Vendome suite at the Ritz goes for nestled in thick forests. we learned the lore of the Loire the castle Chambord. It was built a mere 5300 euros a night – Valley. by 1800 workmen – in all classified as first class plus. It is We had a tip from a French- rumored that one can swim in the born friend to rent a car via the probability designed by Leonardo Ritz’s pool for 250 euros a day. internet before leaving da Vinci, then living in nearby Our hotel was clean, Columbus; the auto rental at comfortable, with friendly staff, air Gare de Lyon (a train station) Amboise. conditioning, a two-star rating, was a little less expensive than at considered to be a relative bargain the airport where there were at 85 euros a night (about $100 extra fees and taxes. And the last summer). A very good station location would be an boulange (special licensed bakery) Above: Blois easier one to pick up the road to was just across the street and the Loire Valley. down a bit – a short walk for a tasty fresh croissant with coffee. Right: Chaumont Given our tortured French, it would have been easier to Viator Hotel, 1, Rue Parrot, is not to be confused with the visit the castles by train and tour, but we would have missed youth hostel Hotel Viator at 61 Rue des Manes which offers the fields of sunflowers and the ability to stop when we single rooms for 28 euros and is called a “budget” hotel. wanted, to pick up a fresh croissant or the goat cheese of the From our hotel, we could walk to the Opera, the place region to munch along the way. where the Bastille used to be, the Seine and near the Left Our friend gave us the name of an inexpensive hotel in a Bank where the Parisians were enjoying the “beach” – safe area in Paris located just around the corner from Gare temporary imported sand and palm trees, musicians and de Lyon. The Viator Hotel, a mere eight euro by train from jugglers.

44 45 Summer 2006 briefs Summer 2006 briefs (Continued from Page 45) the towns and castles in the Loire. Where to stay is again based upon budget, location and fantasy. Francis I brought Leonardo da Vinci to Chateau You could rent a castle, like the Chateau de La Classified Marketplace Amboise, where he spent the last years of his life nearby in Guillonniere, dating from before 1560 but recently Clos Luce, now a museum. modernized (resting place of the lover of King Francoise and Mary Stuart, child Queen of Scotland who had been centuries later, George Sand), a true bargain for you and ARE YOUR CLIENTS FACING... promised to the future French King Francois II, grew up in nineteen friends for a mere 2,800 euros a week. This price Legal and public notices the castle with the children of Catherine de Medici and includes water, gas, electricity, use of the castle grounds and, • The Sale of Real provide Henry II. when needed, heat. Or, you can rent an apartment in the Property Amboise played a major part in the religious wars of the information same castle for between 100 to 150 euros a night. • Settling an Estate that benefits 16th century. Close to 1500 Huguenots took part in what has Using the Internet, we found a hotel in a quiet village • Considering Housing local been called the Amboise Conspiracy. When they lost to the about ten minutes drive from Chambord in the heart of the Options businesses. Catholics hundreds of their bodies hung for weeks on the Solonge forest. I used my rather poor French to • Down Sizing south wall of the Hall of States. communicate at Hotel de La Ferte-Saint-Cyr because the • Need Additional Between Blois and Amboise is Chaumont-sur-Loire, owners, who were hosts, cooks, and cleaners of this small Income construction begun in 1466. It originally belonged to hotel, spoke zero English. For 45 euros a night, we had a Bankruptcies, mechanics’ liens, new corpora- Catherine de Medici. Every year there is an international comfortable, two-star room. We tried the home-made WE CAN HELP!! tion filings, real estate transfers, properties garden festival held on the grounds of Chaumont. It is dinner one night – several courses, dessert and white wine “Looking to buy or sell being sold at sheriff’s sales — knowing what’s alleged that Thomas Becket owned the chateau before he – a tasty meal for 20 euros each. And for breakfast we Real Estate. . . happening in the community could prevent was murdered. found croissant and coffee a five-minute walk down the Call M.O.M.! you from making costly mistakes. Chenonceau, considered the most beautiful of castles, road. Subscribe today! perhaps the model for Sleeping Beauty, was built in 1521 As for the wedding, we stayed at La Lande – along with Masters Of Marketing (614) 228-NEWS (6397) • www.sourcenews.com by Thomas Bohier, a tax collector under Charles VIII, eighteen other primarily English speaking people, the bride Louis XII and Francois I. His wife oversaw its (pen pal’s daughter), my pen friend, her husband and their Jody White, SRES, e-PRO construction. other children. Michelle Weber, ABR After his death, Bohier’s son had to cede the chateau to The August ceremony took place at the Saint Martin 741-2486 Francois I in payment of his father’s debt to the treasury. Church in Ardents (a 14th century Romanesque church in Francois bequeathed it to Henry II who gave it to his Indre) followed by a reception in the Bouges le Chateau – the mistress, Diane de Potiers, purported to also have been the local castle. Our adventures at the wedding and the picnic Harold Paddock, Esq. mistress of his father. Henry’s wife drilled a hole in the the next day make up a story for another time. Private Mediation. bedroom hoping to see why her husband preferred Diane. Business, Construction, Employment, A Real After Henry was killed in a tournament, Catherine de Corporate, Malpractice, Land Use, R Living Medici took over the castle and changed anything touched Personal Injury by Diane. Janyce C. Katz, OAG Tax Section This is just a bit of history and a description of a few of [email protected] B 2600 Corporate Exchange Drive Suite 112 I Columbus, Ohio 43231 Valuation & Litigation T Consulting Experts Voice: (614) 839-0400 Looking for your new home? Fax: (614) 839-0821 By Trial Tested Experts R Call today for the best selection! Web: www.settlementweek.com Our professionals have been qualified as A • New build and re-sale properties experts in Federal courts and numerous county courts throughout Ohio. Mediation, Arbitration, • Mortgage and title services Dispute Resolution Consulting & Training T Brian A. Russel, CPA/ABV, CVA John M. Afek, CPA/PFS, CVA Flexible Scheduling I Christine Cummins Linda Johnson CPA, CVA Any Jurisdiction (614) 825-8886 (614) 336-1950 Worthington Office “Where Every Week is Settlement Week” O [email protected] [email protected] www.valuation-analysts.com MEDIATION

OFFICE SPACE AVAILABLE

t QUALIFIED.EXPERIENCED.INNOVATIVE.

n REAL ESTATE BROKERAGE e

m Development Land & Farms

p DIANNA M. ANELLI o

l Commercial Real Estate

e Ethics and Professional Responsibility Practioner v

e Retail • Multi-Family D

e

t Former Assistant Disciplinary a

t REAL ESTATE DEVELOPMENT

s Counsel for the Supreme Court E

Consultants

l of Ohio a

e Construction Management R

• Site Selection • Estate • Workouts Available for:

ONE AMERICANA e

g GREAT FOR ATTORNEYS • Consultation and formal a

r ethics opinions e • Modern Offices • Exercise room w/saunas k

o • On-Site Parking and swimming pool • Defense against ethics r

B • Convenient to I 70/71 available charges

e REAL ESTATE COMPANY

t • Walk to Courthouse • Up to 5,700 sq. ft

a • Expert witness on standard t • 2 Story Skylit Atrium contiguous s LARRY CLARKE

E of care issues

l 1335 Dublin Rd., Suite 201D, Columbus, OH 43215

a Contact: Randy Palmer e 614-228-0027/1-888-309-3595 Phone: 614-228-7710/216-615-7000

R Colonial American Development Chenonceau (fax) 614-487-8404 [email protected] 614-224-2083 www.ethicalmysterycures.com

46 47 Summer 2006 briefs Summer 2006 briefs Classified Marketplace Classified Marketplace

EQUITABLE Mediation /A rbitration Locate your office in the Short North! MORTGAGE Office suites available at 27 East Russell Street 193 Bombay Ave. Westerville, OH 43081 CORPORATION Readey Office: (614) 890-7653 Ext. 56 Fax: (614) 901-9243 Specializing in VM/Mobile: (614) 206-3355 Tony Yacoub mortgages for divorcees Patterson B.S., EET www.OHcommercialrealestate.com Broker [email protected] James A. Readey, Esq. u 100% financing u Cash out/debt consolidation David C. Patterson, Esq. $7.6MM in contract year to date u No employment, income or asset programs AVAILABLE PROPERTIES Combined& Experience: u Interest only • Up to 400,000 sq. ft available Free refinance program 19 Years Mediation warehouse leasing u 66 Years Civil Litigation go to • Neighborhood center leasing up JOHN STAMOLIS Estate Settlement • Auctions • Organizing to 15,000 Sq Donations • Trash Removal • Appraisals www.metro-rentals.com/27Russell - Serving Ohio - for detailed information, or call • Redevelopment land In Westerville Work: (614) 764-5078 • Purchase of Real Estate • 614-464-4000 • Available Build to suite office in Cell: (614) 582-0051 37 West Broad Street, Suite 420 “We maximize the value and ease the burden of Westerville up to 7,500 sq ft. [email protected] Columbus, OH 43215 Estate Administration” • 154 Acres of rolling ground in professional, discrete, Helping owners lease their unique properties. 614-844-4406 Helping tenants find great space. Utica, Ohio confidential 614-221-4799 www.estate-group.com

COLLISION RESEARCH AND GRAPHICS BUSINESS 25 Walnut St. #7 Did you miss Lexington, OH 44904 LIQUIDATIONS 419-884-2005 Jeff Turner G RANVILLE • Certified Personal Property Appraisals something? TIMOTHY J. TUTTLE • CAGA - Certified Appraisers Guild of America Distinctive Historic Property Certified Traffic Accident • Nationwide Service Reconstructionist (ACTAR # 704) Located within walking distance to the village & • Specializing in Multiple Branch Closing adjacent to the bike trails. Tastefully renovated and • Repossession of Business Assets • 100% Financing If you’re not receiving The Daily • 3D Collision Simulations restored, this home has truly wonderful interior • Sale and Removal of Business Assets • No Mortgage Insurance (HVE, EDCRASH, EDSMAC, EDVSM) spaces along with beautiful terraces and landscapes. • Storage Facilities • 1 Day Out of Bankruptcy Reporter five days a week, See more on www.kierhouse.com. • Site Surveys-Full Color • All Credit Diagrams (any size) chances are you have. • Auto, Heavy Truck, Pedestrian, Motorcycle Crash Analysis Doug Green & Lu Klaiber Ph: (614) 561-4222 • Fax: (866) 468-7974 For recorded info, 614-437-2600 Code 1529 [email protected] • Night/Daytime Visibility Evaluations www.ColumbusExecutiveHomes.com 614-899-1000 • 888-346-8600 Central Ohio’s source for daily [email protected] • www.SellUsed.com www.altfinancing.com business and legal information

COLUMBUS’ FIRST AND National Lender with MOST EXPERIENCED LEGAL Local Offices to Serve Your Aah, just right.... SEARCH FIRM Clients Home Financing Needs When you decorate your home with 580 W Schrock Rd., Westerville, OH Project Lawyers provides clients with qualified candidates to Your Home Loan Solutions Source fill temporary, temp-to-hire and * permanent positions. Lawyers 100% Financing and paralegals of all experience Primary levels and practice areas are Westerville 614.895.0402 encouraged to contact Project Second Homes 580 W Schrock Rd Lawyers. Please mail, fax or Investment Properties e-mail, as Word attachment, your resume to: 1 Day out of Bankruptcy Powell 614.764.5459 Subscribe today! 3969 Powell Rd Stated Income Everyone has different decorating needs. PROJECT LAWYERS No Ratio Lancaster 740.654.6397 We listen. And we get it. 2931 E. Dublin-Granville Rd. #140 116 Starett Street Columbus, OH 43231 No DOC LIZ CAJACOB 614.839.0555 Equal Housing Lender. © 2006 Licensed or Authorized Mortgage Lender in (614) 485-0917 (614) 228-NEWS (6397) fax: 614.839.7768 *Subject to credit approval. Equal Housing Lender. © 2006 Licensed or Authorized e-mail: [email protected] the Fifty States and The District of Columbia. Licensed Mortgage Banker DBA www.decorandyou.com/ecajacob Mortgage Lender in the Fifty States and The District of Columbia. Licensed Mortgage American Home Mortgage, Mortgageselect, American Brokers Conduit www.sourcenews.com Banker DBA American Home Mortgage, Mortgageselect, American Brokers Conduit License No.,Powell: SM 10765, Westerville: MB 5380, SM 198, SM 547, License No., Westerville: MB 5380, SM 198, SM 547. AHMLR-06020033 Lancaster: MB 5605, SM 197, SM 545. AHMLR-06020033

48 49 Summer 2006 briefs Summer 2006 briefs Powerful Client Development resources …

Such as Martindale-Hubbell®, the #1 service for identifying expert counsel exclusive Research Solutions …

Including Shepard’s® and The Wall Street Journal Online in association with LexisNexis® customizable Practice Management tools …

Fully integrated services to drive productivity and profitability

the only NITA® endorsed Litigation Services …

Covering the litigation process in the way that litigators work Where do you find them?

Introducing … LexisNexis® Total Practice Solutions

lexisnexis.com/tps

LexisNexis, the Knowledge Burst logo, Martindale-Hubbell and Shepard’s are registered trademarks of Reed Elsevier Properties Inc., used under license. Other products or services may be trademarks or registered trademarks of their respective companies. © 2006 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. AL8852