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THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE
January/February 2016 VOL 30 , NO. 1 www.ohiobar.org
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4 | President’s Perspective Unbundling legal services: A win for attorneys, a win for litigants, and a win for the courts
5 | In Brief The right to offend; Minority associate percentages drop; Wasting work time; Mentors trump family members
18 | Beyond the Courtroom Features Ohio lawyer provides musical solace 6 | Drones and the law: 20 | Counsel Comments What you need to know Client files: What should (or must) be given to by Robert L. Ellis the client With the popularity of drones swiftly growing, the FAA confirms drone regulations for businesses and hobbyists. 22 | In My Opinion October 6, 1987: A day that changed the Supreme Court – and America 12 | Daily fantasy sports firestorm by Kevin P. Braig 24 | Practice Tips DFS businesses gamble with legal intricacies that will Tips for lawyers who want to get good results ultimately decide their futures (or lack thereof). for clients and make money
27 | Foundation News #Giving(Tuesday) for Access to Justice
28 | Inside OSBA All-Ohio Legal Forum save-the-date; Mock trial volunteers needed; Interested in free CLE?; Randall Comer announces candidacy for next OSBA President-Elect
29 | Member News Awards and community involvement of OSBA members
30 | Books & Bytes Go Set a Watchman book review
32 | CLE Calendar January, February and March programs
www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 1 TITLEOhio Lawyer THOMAS TANEFF Ohio Lawyer is published bimonthly CO., LPA by the Ohio State Bar Association. Ohio Lawyer Staff Editor: Nina Corbut Graphic Designer: Chris Lochinski Editorial: Andrew Hartzell, Advertising: Terry Henson Dan Beckley, Tori Metzger Website Editor: Dan Beckley Board of Editors Judge David Hejmanowski, Chair, William Kaufman, Lebanon Delaware Alan J. Lehenbauer, Swanton Steve Bolton, Youngstown Kris Long, Columbus J. Kristin Burkett, Newark Joseph L. Ludovici, East Liverpool Hilary Ruth Damaser, Columbus Kevin P. Murphy, Warren Thomas L. Guillozet, Versailles Stephen L. Smith, New Bremen Paul Hervey, New Philadelphia Judge James Stevenson, Sidney Judge James Jensen, Toledo OSBA Officers President: Executive Director: John D. Holschuh Jr., Cincinnati Mary Amos Augsburger President-elect: Ronald S. Kopp, Akron “Adoption/Surrogacy. I know this stuff!" Advertising Sales and Editorial Offices Ohio State Bar Association Advertising: [email protected] Thomas Taneff P.O. Box 16562 Editorial: [email protected] Columbus, Ohio 43216-6562 Printing: Hopkins Printing (614) 241-2181 (800) 282-6556; (614) 487-2050 www.tanefflaw.com Editorial Offices Ohio Lawyer (issn 1097-6493) is published bimonthly by the Ohio State Bar Association, P.O. Box 16562, Columbus, Ohio 43216-6562. Phone: (800) 282-6556 or (614) 487- 2050. Periodicals postage paid at Columbus, Ohio and additional offices. Ten dollars of dues pays your required subscription to Ohio Lawyer. Ohio Lawyer is published as a service to members of the Ohio State Bar Association through Landex Research, Inc. their dues and is not available to nonmember attorneys. Governmental agencies and PROBATE RESEARCH educational and legal research organizations may subscribe annually for $35. Single copies to members and qualified subscribers are $7. ©Copyright 2016 by the Ohio State Bar Association. All rights reserved. Any copying of materials herein, in whole or in part, and by any means, without written permission, is pro- hibited. Requests for reprint permission should be sent to the Ohio Lawyer editorial offices. Editor reserves the right to reject any advertising submitted for publication. While advertis- ing copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication in Ohio Lawyer. Statements or expressions of opinion herein are those of the author and not necessarily those of the Ohio State Bar Association, its officers, staff or the board of editors. Manuscript Submission Missing and Unknown Heirs OSBA members are encouraged to submit manuscripts to the editor for possible publication in Ohio Lawyer. Articles submitted should not exceed 10 typewritten, double-spaced pages. Located Manuscripts are not purchased, and those submitted become the property of the Ohio State Bar Association. Editorial policies can be obtained by calling (800) 282-6556 or (614) No Expense to the Estate 487-2050 or visiting www.ohiobar.org/editorial policy. Postmaster (usps 016-304): Send address changes to Ohio Lawyer, P.O. Box 16562, Domestic and International Service for: Columbus, Ohio 43216-6562. Courts Lawyers Photography credits © Shutterstock.com/g/EugenioMarongiu: Cover © Shutterstock.com/g/Belovodchenko Anton: 1, 12,14 Trust Officers © Shutterstock.com/g/cigdem: Cover © SparkleStock: 12 Administrators/Executors © Shutterstock.com/g/guteksk7: Cover © Shutterstock.com/g/rubchikovaa: 18 © Shutterstock.com/g/wavebreakmedia: Cover, 1, 14 © Shutterstock.com/g/ SteveHeap: 23 © Shutterstock.com/g/Beresnev: 6, 8, 9 © Shutterstock.com/g/Blend Images: 25 1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 © Shutterstock.com/g/lenoleum: 6 © Shutterstock.com/g/Rawpixel.com: 32 Telephone: 847-519-3600 Fax: 800-946-6990 © deviantart.com/g/macrovector: 9 Toll-free: 800-844-6778
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2 Ohio Lawyer January/February 2016 www.ohiobar.org Get the most out of your OSBA membership
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Thank you for your membership. www.ohiobar.org President’s Perspective
Unbundling legal services: A win for attorneys, a win for litigants, and a win for the courts
I admit I had never heard the term Is unbundling allowed to the litigants is obvious—they “unbundling of legal services” until I under Ohio law? get the help they need in what may served on the Ohio Supreme Court Yes. Rule 1.2(c) of the Ohio Rules of be a complex area of litigation and Access to Justice Task Force. Over Professional Conduct provides, “A avoid making what may be a very the past year, I have learned what lawyer may limit the scope of a new or costly and devastating mistake. “unbundling” involves, and how many existing representation if the limitation lawyers and judges are not familiar is reasonable under the circumstances What is the reaction with the concept. In use, it can be a and communicated to the client, from the courts? great financial resource for lawyers preferably in writing.” However, as Interestingly, every judge I have talked while increasing access to legal services a word of caution, neither this rule to is in favor of unbundling once the for those litigants who choose to nor any other rule defines what is concept is explained to them. Many represent themselves. At the same “reasonable under the circumstances.” judges have told me they weren’t aware time, trial courts avoid having pro se One of the recommendations from of unbundling and have not seen it used litigants try to handle complex legal the Task Force Report on Access in their courts. When we discuss the issues that often delay proceedings. to Justice is to ask the Board of concept, the judges start talking about Professional Conduct to provide how unbundling could really help their What are unbundled comments or guidance that address dockets. Judges tell me more and more legal services? common questions about when a lawyer folks are proceeding pro se, and when a When a client hires a lawyer, it is may provide limited representation. complex legal issue arises, many do not normally from the beginning to the Hopefully that will be done soon. know where to go or how to handle the end of the case. However, in today’s matter, delaying the proceedings and world, more people are representing Where is the benefit for making matters worse for everyone. themselves. Often it is because folks lawyers and pro se litigants? If there was legal representation think they do not need or cannot Today more folks are deciding to just for that one issue, time, money afford a lawyer. With unbundling, a represent themselves, or are hiring and effort could all be saved. client hires the lawyer only for tasks lawyers at discounted rates from that are agreed to in advance. To date, AVVO, LegalZoom, RocketLawyer Tips for unbundling unbundling has been used largely in and so on. While talking to lawyers 1. Make sure you and the client family courts. For example, a lawyer around the state at district meetings, make it clear at the beginning, could write the divorce petition and I have found many complaining that in writing, what your role as a allow the party to file on his/her they don’t have the work they used lawyer will be in the litigation, own; or one could hire the lawyer to to, and they are hurting financially. and what the fee will be. review settlement agreements; or the Yet virtually every such lawyer I talk lawyer could help complete financial to has never heard of unbundling. 2. Perhaps most importantly, documents, including complex When we explain the concept at our advise the trial judge at the very matters such as a qualified domestic meetings, eyes open up and lawyers beginning of the case that you relations order. But there is absolutely start talking about how they can are only representing the litigant no reason unbundling could not be benefit financially by offering affordable on certain particular matters, applied to other types of litigation legal representation of limited areas and make sure the judge is in where litigants are proceeding pro se. of the case. And of course the benefit agreement. You should also make
4 Ohio Lawyer January/February 2016 www.ohiobar.org In Brief
The right to offend a record at the first appearance Forty percent of Millennials believe that government should restrict people’s ability of your limited representation. to offend minorities through speech. Meanwhile, the Silent generation, the Boomer generation and Generation X believe in the freedom of offensive speech by 80 3. When you are finished, stop. percent, 71 percent and 70 percent, respectively. With the majority ruling, most Inevitably the client, and perhaps Americans stated that the government should not have the power to restrict offensive even the judge, will want you speech while only 35 percent of the other 38 countries polled claimed the same. to continue in representation. If you do, you will regret it. -Pew Research Center End representation when your task is completed. SHOULD THE GOVERNMENT RESTRICT OFFENSIVE SPEECH? Resources for help with unbundling 20% 29% 30% 40% The Institute for the Advancement of SILENT BABY the American Legal System (IAALS) GEN X MILLENIALS GENERATION BOOMERS along with the Association of Family and Conciliation Courts (AFCC) has 80% 71% 70% 60% developed a series of guides and tool kits that provide families, lawyers, non-legal professionals and courts Not right to restrict offense speech Right to restrict offensive speech with the information and resources they need to ensure that everyone can take advantage of unbundled legal services. These resources are Minority associate top three culprits for wasting time at available for download from both percentages drop work are personal email, news and IAALS and AFCC. In the near In 2015, law firms saw the female Facebook. The root of the problem future, OSBA will also have a library associate percentage drop to 44.68 was due to these top three reasons: of Ohio-specific resources for you. I percent while Black/African bored or avoiding work, not wanting encourage you to read these materials. American associates’ percentage fell to wait until after work and better They may well give your practice to 3.95 percent. However, minorities Internet connection at work. While at a new and financially worthwhile and women have gained ground work, though, the computer is allowed boost—and improve access to justice. on achieving jobs as partners. to be monitored by the employer, Minorities account for 7.5 percent which may reflect poorly upon you The IAALS materials contain a quote of partners while women are at if your time is spent unwisely. from Chief Judge Janice Davidson 21.46 percent. These numbers are a (Ret.) of the Colorado Court of slow, but steady, increase from years -Thompson Reuters Appeals: “People who don’t have a past. Minority women partners in lawyer to represent them can often large firms, those over 700 people, Mentors trump feel adrift in our complex and nuanced maintain a 3.12 percent and minority family members legal system. By allowing these court lawyers overall increased their Twenty-four percent of lawyers users to get help for a lawyer on certain representation to 13.97 percent. With claim that mentors have been their tasks in their cases, such as writing a few decreases in representation of “single best source of career advice” a document needed for court or minorities on the associate front, with coworkers and peers ranking making a court appearance, everyone the trend is on the positive side in second place with 23 percent. benefits; a family can save time and with slight increases each year. Parents and other family members resources, lawyers can represent a or relatives merely have a vote of wider array of clients, and courts -NALP 13 percent. This information was can concentrate on providing critical found through an independent services.” Well said, Your Honor. Wasting work time survey which called 350 lawyers in Fifty percent of Americans in the the United States and Canada. By John D. Holschuh Jr., President work force confess to checking the of the Ohio State Bar Association. Internet for personal reasons while -Robert Half Legal on the job says FindLaw.com. The www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 5 TITLE
6 Ohio Lawyer January/February 2016 www.ohiobar.org TITLE
Drones and the Law What you need to know By Robert L. Ellis
No, you can’t legally 1 RC aircraft never presented much of a insurance adjustment, rapid blood shoot one down. safety issue to other airspace users, but and transplant organ delivery and That answers the most frequently the sudden appearance of numerous high-definition 3-D mapping. Drones asked question, but drones, or small consumer-product drones that can fly can be programmed to fly the same Unmanned Aerial Systems (UAS), for thousands of feet in any direction ultra-precise route repeatedly, enabling are beginning to appear everywhere, (including up) while being virtually automated up-close inspection of raising more questions and unique impossible for pilots to see, is creating power lines, bridges, pipelines and legal challenges.2 Enacting state or a flight safety nightmare. The risk of wind turbines, as well as real-time, local regulations regarding these new catastrophic accident is real. As the multi-sensor mapping of farms right devices, or advising clients regarding FAA points out, “we have witnessed down to individual plants. In the not- them, requires an understanding a huge influx of casual users, people too-distant future, drones will have of the complex mix of federal, who fly UAS for entertainment or two-way communications capability, state and common law that applies recreation…. The vast majority of enabling restaurants to take lunch whenever aviation is involved, and these operators do not have the basic orders from workers—and then deliver how the law is changing to adapt. aviation training or experience required the lunches. Police will be able to patrol for pilots of traditional aircraft. They neighborhoods, remotely investigate The new high-tech drones have no knowledge that they may be crime scenes, question suspects Until recently, the only small pilot- flying in controlled airspace. Some may and pursue them if necessary, and less aircraft in private hands were have no recognition that their actions journalists will be able to conduct live radio-controlled (RC) models flown could have serious consequences. They on-scene interviews moments after an by hobbyists, generally within a few are simply having fun with a toy.”4 event occurs. The FAA classifies a UAS hundred feet of the person with as “small” (sUAS) if it weighs up to 55 the transmitter. Nonetheless, the Drones are here to stay—not as toys, pounds—far larger than the typical Federal Aviation Administration but as remarkably useful devices photography drone—and companies (FAA) recognized early that even capable of performing tasks that are eager to put these “small” drones to “model aircraft can at times have been prohibitively expensive or work.5 The FAA has already received pose a hazard to full-scale impossible. Almost everyone has seen numerous applications for permission aircraft in flight and to examples of stunning drone-based, to start drone-based package delivery. persons and property on high-definition videos. News reports the surface,” and in 1981 regularly describe creative new ways Federal aspects of drone law issued model aircraft drones are being used: search and The laws and regulations applicable to operating standards.3 rescue, accident investigation and drone flights are almost entirely federal. www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 7 The federal government “has Section 333 petition. If the exclusive sovereignty of airspace in operator will never fly the drone the United States”6 and the FAA more than 200 feet above the sets all standards for flight safety,7 ground, no separate COA “preempting the entire field from application is needed since state and local regulation.”8 every 333 exemption comes with an automatic COA for Despite its exclusive responsibility flights up to that altitude. for air safety, the FAA was
“In the not-too-distant future, drones will have two-way communications capability, enabling restaurants to take lunch orders from workers—and then deliver the lunches.”
blindsided by the advent of small implemented a two-tier approach to As a practical matter, any commercial drones; its attempts to address UAS enable drone owners to obtain that organization or individual who owns flight safety issues had been focused “specific authority” to fly until the a drone must obtain an N-number, a on large remotely-piloted aircraft comprehensive regulations are issued.15 Section 333 exemption and a COA that would be in contact with air in order to legally fly it—with one traffic controllers.9 Nonetheless, The first tier is for commercial curious exception:20 The FAA is since the FAA’s job is “to provide UAS operations—anything that is statutorily prohibited from regulating the safest, most efficient aerospace even slightly business-related—and “model aircraft” flown for “hobby or system in the world,”10 it has is a three-step process. First the recreational use.”21 This carve-out was enthusiastically embraced the task owner must apply for and receive intended to protect RC hobbyists, but of integrating small drones into the an “N-number” aircraft registration instead created confusion: The term mix, and readily acknowledges that for the drone, just as if it were a “model aircraft” is defined so broadly it has some catching up to do.11 full-size aircraft.16 Since full-size that any drone can qualify, but whether passenger aircraft are subject to a drone constitutes a “model aircraft” Current federal stringent airworthiness and inspection depends on how it is being flown.22 regulation of drones requirements that are unnecessary The exact same drone flown along the The primary federal regulation for drones, the second step is for the exact same route, minutes apart, might regarding UAS operations was issued owner to obtain a special Section 333 be an exempt, unregulated “model in 2007 and is still in force today: exemption from those requirements.17 aircraft” that can be legally flown “[N]o person may operate a UAS in by a child for one flight, and a non- the National Airspace without specific A Section 333 petition is not a mere exempt sUAS requiring full compliance authority.”12 In 2012 Congress passed formality; it is exacting and requires with registration, exemption, and the “FAA Modernization and Reform detailed information about both the pilot requirements for the other. Act” (FMRA)13 requiring the FAA specific drone to be used and the pilots to come up with comprehensive drone who will fly it. Only licensed pilots are Amazingly, while the FAA routinely regulations by September 2015; the permitted to fly drones for commercial imposes altitude restrictions for flights FAA deliberately missed that deadline purposes.18 Each petition is carefully under a COA,23 it is statutorily barred in order to take into account the new scrutinized. Turnaround time is about from imposing altitude restrictions for small drones, as well as the large six months. The third step is to obtain a “recreational” flights.24 Nonetheless, number of comments and suggestions “certificate of authorization or waiver” because the FAA is permitted to from the public regarding them. In the (COA) to fly in specifically-described pursue enforcement actions against meantime the FAA, using its right14 airspace.19 The COA application can anyone, even hobbyists, who create to grant exemptions and waivers, has be submitted at the same time as the a danger to flight safety,25 the FAA
8 Ohio Lawyer January/February 2016 www.ohiobar.org can impose flight restrictions on regulations do not preclude state They could do likewise for drone recreational drone operators,26 and has and local regulation of non-federal owners. State laws not directly related imposed a de facto altitude restriction aspects of aviation—a principle that to aviation such as those prohibiting of 400 feet for recreational flights.27 also applies to drones. As long as the voyeurism, stalking and harassment focus of a law or regulation is not continue to have full applicability The “recreational use” exception an aspect of aviation that the FAA regarding drone operations. makes little sense from a flight safety actively controls (and not an aviation- perspective. For business owners it also related area specifically pre-empted Common law principles can also creates a strong incentive to pretend by federal statute such as noise limits), apply in areas such as private property that a flight is for “recreational use.” there is plenty of room for state and rights, nuisance and product liability. It is likely that the “recreational use” local exercise of police powers.32 In Regarding private property, caution is exception and the FAA’s inability to one case, a company that had obtained in order. The old notion that ownership regulate drone recreational flights FAA authorization to tow advertising of land entails ownership of all the will be substantially changed. In the banners filed a lawsuit challenging a air above it was long ago abrogated by meantime, all the FAA can do is try to state law that banned aerial advertising. statute,37 and all navigable airspace scrutinize flights, and if a “recreational” The court viewed the FAA permit is legally in the public domain.38 flight is really business-related, the as pertaining solely to flight safety, Navigable airspace is any airspace in FAA will treat it as an “operation of a not to advertising regulation, and which flight can take place, in some UAS in the National Airspace without upheld the law, finding that exclusive cases right down to inches above the specific authority.” In such cases, the federal sovereignty over airspace “does ground.39 Many cases have confirmed FAA will usually send a warning not in and of itself exclude any state that a property owner does not have letter, but in egregious cases it will regulation of aerial advertising.”33 a cause of action for trespass where a institute an enforcement action. The flight is conducted in airspace above FAA has already fined one company Using this reasoning, a city could the property in compliance with federal $1.9 million for 65 unauthorized legitimately prohibit advertising by regulations. Where a helicopter hovered flights over densely populated areas.28 drone within its borders. Even in low over a homeowner’s property while areas where the FAA is active, states the crew shot video for a news story, Since the FAA is prohibited from and localities may be able to exercise the court rejected a trespass claim.40 regulating recreational sUAS flights, it concurrent powers. Aircraft titles has instead issued numerous guidelines and registrations are federal, yet state The same is true for claims that and launched a publicity campaign mechanic’s lien laws apply to aircraft the mere creation or recognition called “B4UFLY” —including a and can impair title, and many states of navigable airspace over private smartphone app—to try to educate the impose state-level aircraft registration property, or some flights through such thousands of new drone operators on requirements as well.34 Thus, the federal airspace, constitute a “taking” for how to fly safely in the national airspace UAS registration mandate would not which compensation must be paid.41 system.29 It has also decided that a preclude a similar state or even local Moreover, the FAA has a statutory simplified, non-N-number registration registration requirement. The FAA mandate42 to regulate the safety of of all recreational-use drones other has imposed insurance requirements “air commerce,” an authority “clearly than low-end toys is necessary to “help on air carriers35 but not on privately not restricted to the utilization of build a culture of accountability and owned aircraft, so the field is not pre- ‘navigable airspace.’”43 Thus, any responsibility, especially with new empted, and some states require private trespass suit regarding drone overflights users who have no experience operating aircraft owners to carry insurance.36 would be difficult to win without a in the U.S. aviation showing of actual damages. system.”30 This is the Any purported ban on second tier of the FAA’s overflights by a private approach toward UAS company or educational regulation. Registration institution, or any local is mandatory; it costs $5 ordinance attempting to and can be done online.31 ban drones from delivering packages, would likely be The role of overturned if challenged.44 state law and common law What about nuisance suits? Federal sovereignty A century ago, a court over American airspace expressed what might and federal preemption be called the “noises of of aviation safety progress” principle when www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 9 dismissing a property owner’s nuisance manufacturers will be required to no reported federal prosecution of claim against a railroad: “A material equip their products with hard-coded anyone for interfering with a drone. amount of noise is produced […] by transponders to enable identification Some drone operators whose craft modern civilization.”45 In another and location while in flight, keys or have been shot down or otherwise early case, the court refused to enjoin biometrics to ensure that a drone is attacked have sued for damages. a business from staying open late and operated only by an authorized person, 2 Official FAA terminology: “The term attracting traffic, pointing out that GPS-based “geo-fencing” with real- ‘unmanned aircraft system’ means an the recent appearance of automobiles time updates to prevent flight into unmanned aircraft and associated on the roads, including at night, had unauthorized areas, and see-and-avoid elements (including communication become normal “but would some technology and automatic flight- links and the components that control years ago have been considered a logging. Many of these features are the unmanned aircraft) that are nuisance.”46 Just as courts in the early already available in some drones. required for the pilot in command 20th century accepted trains and to operate safely and efficiently in automobiles as the price of progress, Staying legal, for now the national airspace system.” FAA it seems likely that courts in the early Anyone who owns a drone must Modernization and Reform Act of 21st will accept drones. And just as register it with the FAA, and thereafter 2012 (FMRA), P.L. 112-95, §331(8). nuisance lawsuits are still possible can fly it without getting in trouble as 3 FAA Advisory Circular (AC) against individual automobile owners, long as the flight takes place during 91-57, “Model Aircraft Operating so too are they available for use against the day and in good weather, as long Standards” (June 9, 1981), p.1. drone owners, but for a nuisance as the drone stays at least five miles These standards were updated in claim to succeed, the injury must be from airports, doesn’t fly higher than Sept. 2015 by AC 91-57A to reflect “real, material, and substantial.” 47 400 feet, doesn’t fly over crowds or the FMRA’s new definitions of endanger anyone, and as long as the “model aircraft operation.” Regarding product liability, the “federal flight is just for fun. Anyone who 4 Deputy FAA Administrator Michael government’s regulatory presence… wants to fly a drone for commercial Whitaker, statement before the while extensive, leaves room for the purposes must apply for and receive an House Committee on Transportation States’ traditional role of compensating N-number, a Section 333 exemption, and Infrastructure, Committee injuries based on common law and a COA and must comply with on Aviation, Oct. 7, 2015, p. 2. products liability standards.”48 federal aviation safety regulations. 5 FMRA §331(6). 6 49 U.S.C. §40103(a)(1). Potential for misuse Author bio 7 The FAA’s statutory mandate is to As has been the case for every Robert L. Ellis “develop plans and policy for the use new technology, drone technology is a partner at of the navigable airspace and assign can be misused. There are already Hennis, Rothstein by regulation or order the use of the reports of small drones being used & Ellis LLP in airspace necessary to ensure the safety to drop contraband into prisons, Columbus. He of aircraft and the efficient use of and there is concern about their is a long-time airspace.” 49 U.S.C. §40103(b)(1). potential use to commit a variety of pilot and aircraft 8 Abdullah v. American Airlines, Inc., 181 crimes.49 For this and other reasons, owner, and a F.3d. 363, 367 (3d Cir. 1999). (State the more that drones are used, the short-time drone and local regulation of aviation would more they will be regulated. owner. [email protected]. create a patchwork of rules that would make a national air transportation The future of drone Endnotes system impossible); Command regulation 1 Notwithstanding a few judges who Helicopters, Inc. v City of Chicago, 691 The registration requirement is the have acquitted defendants charged F.Supp. 1148, 1151 (N.D. Ill. 1988)(city first step in bringing order to the under state or local law (usually ordinance imposing helicopter safety chaos that currently reigns when it destruction of property) with shooting regulations invalid); Allegheny Airlines comes to integration of UAS into the down drones, destroying or disabling v. Village of Cedarhurst, 132 F.Supp. national airspace. Future requirements an aircraft is a federal crime pursuant 871 (1955)(village ordinance banning will likely rely heavily on technology to 20 U.S.C. §32 – and a drone flights below 1000 feet invalid). rather than operator training since it is unquestionably an “aircraft” as 9 As recently as two years ago, the FAA is unlikely that many hobbyist drone defined in 49 U.S.C. §40102 and 14 still had not noticed small drones: operators will receive adequate training CFR 1.1 (a device that is “invented, “UAS cannot comply with certain air regarding airspace classifications used, or designed to navigate, or fly traffic control clearances, and alternate or flight safety rules. Drone in, the air”). To date there has been means may need to be considered (e.g.,
10 Ohio Lawyer January/February 2016 www.ohiobar.org use of visual clearances); UAS present in Section 333 for operations to not 28 “FAA Proposes $1.9 Million Civil air traffic controllers with a different pose a threat to national security.” Penalty Against SkyPan International range of platform sizes and operational FAA, “Public Guidance for Petitions for Allegedly Unauthorized capabilities.... [a]nd some UAS . . . for Exemption Filed under Section Unmanned Aircraft Operations,” require manual placement and removal 333,” Sept. 25, 2014, p.4. FAA Press Release, Oct. 6, 2015. from runways....” FAA, “Integration 19 The process is described at www. 29 See www.faa.gov/uas/b4ufly/. of Civil Unmanned Aircraft Systems faa.gov/uas/legislative_programs/ 30 U.S. Transportation Secretary (UAS) in the National Airspace section_333/how_to_file_a_petition/. Anthony Foxx, speech and System (NAS) Roadmap,” 1st The process can be initiated online press release, Oct. 19, 2015. Ed. (Nov. 7, 2013) sec. 2.2.3. at https://ioeaaa.faa.gov/oeaaa/ 31 All UAS weighing more than 250 10 www.faa.gov/about/mission/. Welcome.jsp (account required). grams must be registered at www. 11 “[I]ntroducing sUAS] into the 20 Two other ways to get “specific faa.gov/uas/registration. The $5 nation’s airspace is an opportunity and authority” exist. One is to obtain a fee is waived until Jan. 20, 2016. a challenge for both the FAA and the Special Airworthiness Certificate FAA, “Registration and Marking aviation community. FAA rules and pursuant to 14 CFR 21.75(b); another Requirements for Small Unmanned policies must provide flexibility to is to obtain a “Restricted Category” Aircraft,” RIN 2120-AK82 (Interim accommodate this integration while type and airworthiness certificate final rule, Dec. 21, 2015). This 211- ensuring the safety of the National pursuant to 14 CFR 21.25(a)(2) page rule is available at www.faa.gov/ Airspace System (NAS).” FAA Notice and 21.185. These alternatives are news/updates/media/20151213_IFR. 8900.291 (Mar. 24, 2015), par.4. not practical for most operators. pdf. The registration requirement 12 FAA, “Unmanned Aircraft 21 FMRA §336(a). is explained in Unmanned Aircraft Operations in the National 22 FMRA §336(c) defines “model Systems (UAS) Registration Task Airspace System,” 72 Fed. aircraft” as “an unmanned aircraft Force (RTF) Aviation Rulemaking Reg. 6689 (Feb. 13, 2007). that is (1) capable of sustained flight Committee (ARC), “Task 13 P.L. 112-95. in the atmosphere; (2) flown within Force Recommendations Final 14 49 U.S.C. §44704. visual line of sight of the person Report” (Nov. 21, 2015), www. 15 FMRA §332 required the FAA operating the aircraft; and (3) flown faa.gov/uas/publications/media/ to promulgate new UAS regulations for hobby or recreational purposes.” rtfarcfinalreport_11-21-15.pdf. by Sept. 30, 2015. The FAA intends 23 Anyone who receives a COA 32 The Federal Noise Control Act of to issue the new regulations, which is automatically permitted to fly 1972, 42 U.S.C. §4901, pre-empts the will be found at 14 C.F.R. Part an sUAS up to 200 feet above the entire field of aircraft noise regulation. 107, sometime in 2016. See 80 ground. This “blanket exemption” See City of Burbank v. Lockheed Air Fed. Reg. 9544 (Feb. 13, 2015). is described at www.faa.gov/ Terminal Inc., 411 U.S. 624 (1973). 16 49 U.S.C. 44711 and 14 CFR Part news/updates/?newsId=82245. 33 Skysign International, Inc. v. 47 require all non-recreational UAS 24 FMRA §336, which prohibits the City and County of Honolulu, 276 operators to register their aircraft via FAA from regulating recreational F.3d 1109, 1116 (9th Cir. 2002). form AC Form 8050-1. See www. flights, contains no exceptions 34 The Federal Aviation Act, 49 U.S.C. faa.gov/licenses_certificates/aircraft_ for altitude restrictions. §§ 1301(2) and 1404(c), requires that certification/aircraft_registry/UA/. 25 FMRA §336(b); 41 CFR §91.13. all aircraft title documents be federal, 17 FMRA §333, “Special Rules 26 For example, the FAA and preempts state laws permitting for Certain Unmanned Aircraft prohibited all flights, specifically aircraft ownership transfer without Systems”; 14 C.F.R. §11.81. The including recreational drone documentation. Philko Aviation, petition process is described at www. flights, from operating within a Inc. v. Shacket, 462 U.S. 406 (1983). faa.gov/uas/legislative_programs/ temporary flight restriction (TFR) Federal law, 49 U.S.C. §44107, and section_333/how_to_file_a_petition/. area during the Pope’s visit to federal regulations, 47 C.F.R. Part Governmental entities are not Philadelphia in Sept. 2015. 47, require federal registration of required to obtain a §333 exemption. 27 The FAA advises recreational all aircraft as well. Nonetheless, 18 Any type of pilot’s license other operators to “follow best practices state aircraft registration laws for than a student license is sufficient. including limiting operations to 400 purposes of taxation (to support The reason: “UAS operations feet above ground level,” FAA AC non-federal aviation infrastructure authorized under Section 333 will 91-57A (Sept. 2, 2015), p. 3, but such as airport access roads) are not only be conducted by airmen with seems intent on enforcing this limit. viewed as preempted, nor are state valid airmen certificates, which As one FAA official put it: “Watch mechanics’ lien laws. See Aeronautical have been screened by TSA, thereby what happens if we see a recreational meeting the statutory requirement flight that goes above 400 feet.” continued on page 17 www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 11 TITLE
By Kevin P. Braig
12 Ohio Lawyer January/February 2016 www.ohiobar.org DFS businesses gamble with legal intricacies that will ultimately decide their futures (or lack thereof).
Prior to 2006, daily fantasy sports According to multiple media reports, Investors fund sharks and fish or “DFS” did not exist. Online the UIGEA restrictions on poker In July 2015, Forbes and other news fantasy sports consisted solely of an and sports betting gave birth to sources reported that both FanDuel illiquid season-long game in which a DFS—which matches fantasy sports and DraftKings were poised to receive participant paid an entry fee on the participants in contests on a daily new blockbuster funding rounds. First opening day of the season; selected or weekly basis—when FanDuel FanDuel announced it had secured a roster of players subject to a fixed CEO Nigel Eccles discovered an $275 million from investors. Two salary cap; managed, traded and cut exemption in the law for “skill- weeks later, DraftKings announced the selected players like a real general based” fantasy sports during a it had secured $300 million from manager over the entire course of trans-Atlantic flight in 2009. Fox Sports and other investors in the sport’s full season; and captured a deal that included a multi-year a typically small monetary prize six Importantly, the UIGEA provided only commitment from DraftKings to months later if that management was an exemption for, not an authorization spend an additional $250 million for better than the management of the or regulation of, fantasy sports. If advertising on the Fox Networks. other participants in the league. the UIGEA had truly authorized and comprehensively regulated When the venture capital dust Those seeking liquid action online and DFS, then the DFS platforms could settled, NBC Sports Ventures, Turner 24-hour payouts prior to 2006 played safely offer DFS in all states because Sports and the National Basketball online poker or patronized off-shore the Supremacy Clause of the U.S. Association held equity interests online sports books. Traditional Constitution likely would pre-empt in FanDuel. On the DraftKings season-long fantasy sports was not any contradictory state law. But the platform, Fox, Major League Baseball, intended or structured to be an UIGEA expressly and clearly did not the National Hockey League and appealing and satisfactory option for provide such pre-emption of state law. Major League Soccer held equity. “action seekers” because traditional fantasy sports, like the real sports being At the time Congress passed From the moment investors sank mimicked, did not offer liquid action. the UIGEA, Eccles had secured more than a half billion dollars into approximately $1 million in venture DFS, the odds that their investments A change in gaming law capital and was operating a news would quickly pay off in profits The online gaming status quo changed “prediction market” game under the began to grow exponentially. significantly on Oct. 13, 2006, when name Hubdub. Soon after Hubdub President George W. Bush signed pivoted into FanDuel, the platform On July 15, 2015, one of the original the Unlawful Internet Gambling began to attract more investment investors in a now-defunct DFS Enforcement Act of 2006 (UIGEA) and copy-cat DFS platforms platform published a blog post that into federal law. The UIGEA restricted began to appear. In April 2012, stated the DFS business model—like online gaming by making it illegal DraftKings obtained $1.4 million the pre-2006 online poker model—is for banks and other financial service in venture capital seed funding to calculated to attract sophisticated, providers to process online poker launch its own DFS platform. high-volume participants known and sports betting transactions. as “sharks,” who glide across DFS
www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 13 platforms in search participants may be able to briefly of plentiful schools take advantage of new information, of unsophisticated but the market quickly returns to participants known an efficient state as knowledge of as “fish.” the new information “spills over” to others. Efficiency does not require On July 27, 2015, the that the prices be equal to true value Sports Business Journal at every point in time. All efficiency published the research requires is random deviations from of Ed Miller and Daniel true value. If deviations are random, Singer which found then no individual participant or “DFS affords a huge small group of participants will be advantage to skilled able to dominate the market. players.” Miller and Singer found that in the In other words, an efficient market first half of the 2015 is a self-correcting mechanism, Major League Baseball where inefficiencies appear, but Season, 91 percent of all disappear quickly as participants DFS profits were won find them and act on them. by just 1.3 percent of the DFS participants. For example, quantitative data has proven that the traditional sports Similarly, in a Sept. 10, betting market in Nevada is an efficient 2015, article “You Are market. In 2015, UNLV’s Center for Not Good Enough to Gaming Research found that during Win Money Playing the 30-year period between 1984 and Daily Fantasy Football”, 2014, Nevada sports books held on to Joshua Brustein and Ira 4.5 percent of over $52.7 billion bet Boudway stated that an on football, basketball and baseball. analysis for Bloomberg Business found that the The 4.5 percentage is equal to the top 10 DFS participants theoretical hold percentage on a in the study group standard single game sports bet. On entered 873 winning a standard single game sports bet, a lineups per day, the top participant risks $110 to win $100. 100 DFS participants When the casino’s action is balanced on entered 330 winning the game, its sports book takes in $220 lineups per day, and (the “handle”), pays out $210 to the the remaining 20,000 winning side after the game and keeps participants entered 13 $10 or 4.5 percent ($10/$220 = 0.45) of winning lineups per day. the losing side’s $110 as its commission (known as the “hold” or the “vigorish”). Sharks thoroughly dominate fish because In other words, over the past 30 the DFS market is years, Nevada sports book customers inefficiently structured. collectively lost exactly—not more, and not less—what one would expect Efficient markets them to lose in light of the odds are self-correcting that slightly favor the sports book. mechanisms An efficient market Liquid vs. illiquid is one in which prices “Sports betting has thrived despite a incorporate all available large skill gap between the average information about value. sports fan and the sharp bettor,” In an efficient market, Miller and Singer wrote in the Sports
14 Ohio Lawyer January/February 2016 www.ohiobar.org Business Journal. “The reason is that market, DFS is more of a “game of DFS might economically implode if the lines are set by a large, liquid chance” than traditional sports betting a chain of events is set in motion that market. You can walk up to a betting because—for the overwhelming sparks the public or regulators to find window in Las Vegas, select a team majority of persons—participating the small subset of sharks unfairly at random and still win almost 50 in DFS is a much riskier bet than possess information edges that the percent of the time. Betting randomly, making a standard bet with a licensed large subset of fish do not possess. you will lose money over time, but and regulated Nevada sports book. your average loss will only be slightly On Oct. 5, 2015, New York Times over the 4.5 percent vigorish.” Because DFS is a more inefficient reporters Joe Drape and Jacqueline and riskier game than traditional Williams revealed that DraftKings DFS action, on the other hand, is not sports betting, DFS not only employee Ethan Haskell crossed to the subject to liquid pricing. Rather than creates many small fish who lose FanDuel platform and won $350,000 a sports book’s continuously updated small amounts of money, but also on the same day that he mistakenly lines, the DFS action is priced based creates a significant school of big released aggregate ownership data on a fixed “salary” that applies to each fish that lose at “staggering rates,” on the DraftKings platform. NFL, MLB or NBA player that a according to Miller and Singer. participant selects for his or her DFS Public revelation of Ethan Haskell’s team. In other words, on the DFS “[T]he DFS economy depends heavily cross-platform score immediately
Because DFS is a more inefficient and riskier game than traditional “sports betting, DFS not only creates many small fish who lose small amounts of money, but also creates a significant school of big fish that lose at ‘ ’ staggering rates ”
platform, the action is liquid, but on retaining the big fish,” Miller and transformed DFS operators from the pricing of the action is illiquid. Singer wrote. “They had a staggering fishermen seeking to net as many loss rate of 31 percent of what they sharks and fish as possible into a DFS is riskier than paid in entry fees and accounted for hunted species struggling to stay traditional sports betting 75 percent of all losses. Each minnow out of a plethora of legal nets. Clearly, “DFS skill” and “traditional loses less than $10 per month and may sports betting skill” are the exact happily continue to play forever, but Nevada Attorney General same skill: Identifying and exploiting each big fish loses more than $4,000 opines DFS legalities inefficiencies in the market. It is per year. The entire DFS economy Most significantly, on Oct. 16, the the exact same skill a speculator in depends on these few players.” Nevada Attorney General made clear the stock market, the commodity that the argument that DFS is a “skill markets or any other regulated This business model creates not based” game will not be the platforms’ market needs to be successful. only ever increasing risk to new life preserver when he issued a well- players, but also ever increasing reasoned, formal opinion stating “the The only difference between risk to the DFS platform itself. determination of whether an activity traditional sports betting and DFS constitutes a gambling game or a sports is the structural difference between Legal nets catch pool under Nevada law does not require an efficient market and an inefficient DFS operators analysis of the skill level involved.” market, not a pedantic distinction As the DFS platforms have grown over between the respective roles of chance the past few years, their dependence on In interpreting the definitions of and skill in the games. Indeed, big fish losing big money has grown. “gambling game” and “sports pool” because DFS is the more inefficient Consequently, the risk has grown that in sections 463.0152 and 460.0193 www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 15 of the Nevada Revised Statutes, Gaming Law Review and Economics, Evaluating the risks the Attorney General stated: Martin Lycka and Justin Hubble stated: Clearly, the DFS platforms that operate in Ohio are facilitating the hazarding [A] gambling game is (1) any game Online exchange betting is a of value upon the contingent results played with cards, dice, equipment market-driven gambling system of player performances in football, or any device or machine for any which enables customers to request basketball, baseball and other sports. representative value; (2) any banking bets on either side of the market…. game; (3) any percentage game; At the end of every match, the “You are putting money at risk,” NBA or (4) any other game or device exchange betting provider matches Commissioner Adam Silver said in approved by the Nevada Gaming the two sides of the market and discussing DFS on ESPN’s Mike & Commission. The broad definition pays out the winnings to the Mike radio show on Oct. 27. “People makes no distinction between winning customers, having first should know what percent of the pool games of skill and games of chance. deducted a commission in the form money is paid out in the same way you Therefore, while a determination of a percentage of the winning would at a track or at any other event that an activity is a game of skill bet. In this sense, an exchange where wagering is involved,” Silver said. is relevant to determining whether operator is indistinguishable from that activity is a lottery, it is not a traditional bookmaker (except In addition, the DFS market does relevant to determining whether it perfectly manages its risk) not include “a bona fide business that activity constitutes a gambling or a pari-mutuel tote operator risk” because no underlying game. Similarly, NRS 463.0193, (except that fixed odd bets can commercial contracts exist in the which defines “sports pool” as the be secured on the exchange). DFS markets. Underlying commercial business of accepting wagers on contracts exist in the commodities sporting events or other events by Ohio gaming law is consistent and stock markets, which create any system or method of wagering, with Nevada and New York a need for farmers, commodity makes no distinction between On Nov. 10, 2015, the New York processors and public companies to games of skill and games of chance. Attorney General likewise issued engage in bona fide hedging, price Indeed, it has long been noted that an opinion finding DFS to be discovery and capital financing. there is a strong element of skill illegal gambling under New York involved in sports wagering. law, according to which, “a person For example, the U.S. Securities engages in gambling when he stakes Exchange Commission (SEC) has The Attorney General then applied the or risks something of value upon the approved Fantex Brokerage Services Nevada definition of “gambling game” outcome of a contest of chance or a (Fantex) to provide a platform for the to the DFS platforms in a common future contingent event not under trading of unique investments tied to sense, straight-forward manner: his control or influence.” Based on athlete income—playing contracts, that finding, the New York Attorney endorsements, speaking fees etc. With some exceptions, the daily General concluded that DFS is fantasy sports owners pay money illegal bookmaking in New York and The Fantex platform offers athletes— to play the simulated games and ordered the DFS platforms to cease- including the Cincinnati Bengals’ compete with each other based and-desist offering their matching Mohamed Sanu and former Ohio on their total scores. If an owner services to New York residents. State Buckeye Jack Mewhort—a wins, the owner gets money back. financial tool to hedge their underlying If an owner loses, the owner loses Ohio gaming law, as well as the law of commercial relationships by providing the bet made. When owners play many other states, is virtually identical a platform that offers investing against each other, some will to Nevada and New York law. speculators the opportunity to invest win and some will lose. Thus, in stocks linked to the cash flows because owners risk money on an Section 2915.01(B) of the Ohio generated by pro athlete contracts. occurrence for which the outcome Revised Code defines a “bet” as “the is uncertain, wagers are present. hazarding of anything of value upon Unlike such underlying bona fide the result of an event, undertaking business risk, DFS risk is derived The Nevada Attorney General’s opinion or contingency, but does not include from 100 percent pure speculation. is perfectly consistent with the position a bona fide business risk.” Section Thus, it appears clear that DFS set forth in 2013 by the legal advisor 2915.01(A) defines “bookmaking” platforms operating in Ohio are and the compliance officer of Betfair, as “the business of receiving or engaging in illegal bookmaking. the world’s largest online peer-to-peer paying off bets.” Section 2915.02(A) betting exchange platform. In “The (1) states no person shall “engage in The future of DFS Prohibition of Betting Exchanges is bookmaking, or knowingly engage in As the Nevada Attorney General in Breach of EU Law” published in conduct that facilitates bookmaking.” pointed out in his opinion, the CEO
16 Ohio Lawyer January/February 2016 www.ohiobar.org of the DraftKings, Jason Robins, of the members of the Ohio bar enforcement actions, and has described play on the DFS platform who practice gaming law. drafted statutory gaming language as “a mashup between poker and for proposed state gaming laws. fantasy sports. Basically, you pick Author bio your team, deposit your wager, and Kevin P. Braig Kevin received his J.D., from the if your team wins, you get the pot.” is a partner in University of Cincinnati College Shumaker, Loop of Law, and his B.S., summa cum In contrast, in the traditional & Kendrick, laude, from Ohio University. fantasy sports games, 100 percent LLP’s Columbus of the consideration at risk is paid office. He is to the participants in the game, experienced in which qualifies the traditional the gaming season-long fantasy business arena with a model as a “pool not conducted for particular focus profit” under section 2915.01(XX) on charitable of the Ohio Revised Code. gaming, software development and daily fantasy sports betting. Kevin With all of this in mind, advises clients on issues including what does the future hold registration, record-keeping, licensing for the DFS industry? and compliance with state and federal The odds are good that whatever law, including the Unlawful Internet is on the horizon, the future Gambling Enforcement Act. He will include more involvement also has defended governmental
Drones and the law continued from page 11 328 U.S. 256, 250-261 (1946). v. City of Lake Angelus, 76 F.3d 778 39 “Navigable airspace” is defined in (6th Cir. 1996). However, if a local Center Counsel opinion letter, 46 49 U.S.C. §40102(a)(32) as “airspace ordinance has the effect of directly Fed. Reg. 61,528 (1981). Federal law above the minimum altitudes of regulating flight operations, federal also grants states and localities the flight prescribed by regulations [but law will preempt it. City of Cleveland right to “collect a tax on or related to also] including airspace needed to v. City of Brook Park, 893 F. Supp. a flight of a commercial aircraft . . . ensure safety in the takeoff and 742, 750-751 (N.D. Ohio 1995). if the aircraft takes off or lands in the landing of aircraft.” More simply 45 Dean v. Southern Rwy. Co. State or political subdivision as part put: “The FAA is responsible for in Mississippi, 112 Miss. 333, of the flight.” 49 U.S.C. §40116(c). the safety of U.S. airspace from the 73 So. 55, 56 (Miss. 1916). 35 49 U.S.C. §41112(a). ground up.” FAA, “Busting Myths 46 Thoenebe v. Mosby,257 Pa. 36 Eleven states have some type of about the FAA and Unmanned 1, 101 A. 98 (1917). small aircraft insurance requirement. Aircraft” (Feb. 26, 2015), www.faa. 47 Elmer v. S.H. Bell Co., ___F. U.S. Gov’t Accountability Office, gov/news/updates/?newsId=76240. Supp.3d____ 2015 WL 5102707 “General Aviation: Observations 40 Bevers v. Gaylord Broadcasting Co. *9 (N.D. Ohio 2015)(citing Eller v. Related to Liability Insurance L.P., No. 05-01-00895-CV, 2002 Koehler, 68 Ohio St. 51 (1903). Requirements and Coverage for WL 1582286 (Ct. App. Tex. 2002). 48 Morris v. Cessna Aircraft Co., 833 Aircraft Owners” (Sept. 2015). 41 To constitute a “taking,” there F.Supp.2d 622, 634 (N.D. Tex. 37 The Air Commerce Act of 1926, 44 must be “direct, immediate, and 2011) (relating to federal standards Stat. 568, established the principle, now substantial interference” with the use for aircraft design and manufacture). codified at 49 U.S.C. §40103(a)(1). of land. See, e.g. Breneman v. United There is a diversity of views on 38 “It is ancient doctrine that at States, 57 Fed. Cl. 571, 580 (2003). this issue among the circuits. common law ownership of the land 42 49 U.S.C. §44701(a). 49 Here too, federal law does not extended to the periphery of the 43 Hill v. National Transportation preempt state law. See, e.g. the universe . . . has no place in the Safety Board, 886 F.2d 1275, Florida Contraband Forfeiture Act, modern world. The air is a public 1279 (10th Cir. 1989). F.S.A. §932.701, which defines highway . . . . Were that not true, 44 If the FAA does not issue uniform “contraband” to include “Any . . . every transcontinental flight would regulations regarding particular types aircraft . . . used or attempted to be subject the operator to countless of flights, local communities can enact used as an instrumentality” of crime. trespass suits.” U.S. v. Causby, ordinances regarding them. Gustafson www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 17 Beyond the Courtroom Ohio lawyer provides musical solace
By Cat Dismukes
When music played in the restaurant, selections. The client became relaxed, he noticed changes in the hectic actually smiled and showed better atmosphere among restaurant concentration in the conversation. personnel. The chefs and waiters interacted in a calmer, smoother After these and other similar events, he manner, and the attendees were more followed with research on publications relaxed and conversational than prior to about the benefits of music. Kass was the music starting. Kass realized there convinced that music was an important could be a great potential benefit of part of assisting people who need this type of music for people suffering comfort and assistance. He observed from stress and injuries affecting a noticeably greater relaxation with mood and cognitive performance. improvement in concentration during Probate and personal injury lawyer Fred and immediately following the music. Kass grew up playing and composing Kass followed up on this experience, classical, jazz, the great standards providing the music from “Songs for Kass had been performing on the and popular music. His passion for the Soul” and a second CD, “A Voice piano for the past 15 years at nursing music always seemed separate from from Heaven,” for certain clients who homes and assisted living facilities. his legal career that began in 1972. dealt with life-altering events and With these recent experiences and injuries affecting mood and expression. further research on the role of music However, beginning in 2012, He gave “A Voice from Heaven” to in assisting the elderly with various experiences led him to the a client who had lost her husband cognitive and emotional challenges, connection between the benefits of and to another who had lost a child. he began in the last three years to music and the needs of clients. Both expressed that the CD was focus on providing music to senior very helpful and most comforting. citizens as often as possible. In that year, Kass was invited by an employee to bring his CD of original Another client was suffering from Kass has formed with his business compositions, “Songs for the Soul,” to the effects of a mild traumatic partner, Stephanie Martin, sell at a fundraiser for the employee’s brain injury. He was very upset the organization and website, relative who was suffering from cancer. and had difficulty focusing on his “SeniorsSongs,” as part of Martin During the fundraiser, he gave the thoughts and in his speech. Kass Kass World-Wide Media and CD to the host restaurant manager played the music in his office with Entertainment Company. to play over the sound system. some of its vocal and instrumental
18 Ohio Lawyer January/February 2016 www.ohiobar.org He provides entertainment in retirement communities such as assisted living, nursing homes, and independent living situations for seniors. You can learn more about his musical services to seniors and how to contact and book musical services, which are also available in conjunction with music therapy. In his performance, Kass plays 25-30 songs from standards, jazz, swing and Latin, including some of his original compositions.
Kass suggests that providing music entertainment and therapy to seniors is a central part of providing the services necessary to care for seniors and improve their quality of life. He can attest from experience that even the most severely impaired person receives joy and benefits from music. For those who wish to get involved with bettering the lives of those with cognitive disorders, “you can visit your veteran’s facilities and nursing homes and provide your musical contribution.” Your help could have a lasting effect on those who listen.
Author bio Cat Dismukes is an intern in the publications department of the Ohio State Bar Association. She is a junior at The Ohio State University studying communications with minors in professional writing and creative writing.
How does music therapy work?
As you may understand, music tends the University of Toronto’s Music and Novotney also notes that music boosts to be associated with memories; Health Research Collaboratory along the creation of antibodies, cells that songs easily induce flashbacks of with the Sun Life Financial Movement strengthen immunity and the hormone moments past. With that in mind, the Disorders Research and Rehabilitation cortisol which is released in response Alzheimer’s Foundation of America Centre are researching the required to stress. In findings from a JAMA (AFA) supports music therapy as dosage of music required to produce a Pediatrics study, children who listened an aid for patients lacking quality positive reaction within the patient.2 to music while receiving an IV recorded memory recall or dealing with stress. With certain hertz presented to the feeling less stress and pain than those This is because the “rhythmic… patient in one-minute intervals, who did not; those administering the responses require little to no cognitive patients begin to show positive effects. IVs stated that the patients listening or mental processing.”1 Due to the Patients have shown faster recollection to music were easier to give an IV. lack of cognitive processing required and an improved overall condition. Music noticeably improved the patients’ while listening to music, patients hospital experience in this instance. can absorb the music and allow it Not only has this helped those with to produce responses that aid in Alzheimer’s, but also those with Endnotes: their relaxation or memory recall. Parkinson’s disease have shown 1 www.alzfdn.org/EducationandCare/ decreased stiffness and tremors musictherapy.html Enhancing the AFA’s support of while promoting an improvement 2 http://www.apa.org/ music therapy, “Music as Medicine” in patients’ walking abilities. monitor/2013/11/music.aspx by Amy Novotney acknowledges that
www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 19 Counsel Comments Client files: What should (or must) be given to the client By J. Desiree Blankenship, General Counsel
One of the practical benefits of the client and other materials that Significantly, the obligation to return a membership on a certified grievance might prove beneficial to the client client’s file is not limited to contingent committee is the opportunity to should be returned [promptly fee cases. A lawyer has been disciplined attend the annual seminar presented by the lawyer]. These materials for, in part, failing to return a client’s by the Miller-Becker Center include, but are not limited to, file in a non-contingent fee case.6 In for Professional Responsibility, all significant correspondence, Kubyn, the Court found that failure to one of whose co-sponsors is the investigatory documents and return the file contravened Prof. Con. Ohio State Bar Association. reports the client has paid for, R. 1.16 (d)—“failure to take steps, filed or unfiled but prepared to the extent reasonably practicable, The topics discussed at the seminar pleadings and briefs, and all to protect a client’s interest.” are typically of interest to practicing materials supplied by the client.” lawyers as well as those involved in What is the client’s file? attorney discipline. At the most recent The opinion permits the attorney to Opinion 2010-2 partially addresses seminar, one such topic involved retain a copy but not to charge the the question of what client papers and client files and myriad questions that client for the costs of copying the file. property must be delivered to the client. may arise concerning them—and This restriction is now embodied in The beginning point of the analysis how guidance is forthcoming. Comment [8A] to Prof. Con. R. 1.6. is Prof. Con. R. 1.6 (d), which states that client papers and property “may Among the questions that The opinion also recognized that, “[t]he include correspondence, pleadings, have been raised: common law right to assert a retaining deposition transcripts, exhibits, physical lien is embodied within [DR5-103(A) evidence, expert reports and other • What is the client file? and Model Rule 1.8j];” however, the items reasonably necessary to the Board discouraged the assertion of client’s representation.” The question • How long must it be held such a lien and further qualifies that presented for resolution by this opinion after a matter is over? assertion of the lien must not result in was “whether a lawyer’s notes of an foreseeable prejudice to the client.2 interview with a current or former • What if the client cannot client are considered papers to which be located when it is time While some may argue to the contrary, the… client is entitled upon request….” to destroy the file? the Ohio Supreme Court’s opinion The opinion offers no bright line test, in Reid, Johnson, Downes, Andrachik but does provide some observations The Board of Commissioners & Webster v. Lansberry settled the and guidance on how to proceed with on Grievances and Discipline matter of retaining liens, at least respect to the lawyer’s notes where such addressed some issues relating to for disciplinary authorities:3 “[a] notes include both items “reasonably client files in two opinions—92-8 long with the mandatory obligation necessary” and those which are not. The and 2010-2.1 More recently the to withdraw from a case when clearest expression of what notes should ABA issued Formal Opinion 471. discharged, an attorney who is be included in the file relates to notes discharged must yield the case file.”4 regarding facts about the case—these In Op. 92-8, the representation will most likely be an item reasonably had concluded seven years prior This position is reinforced in Board necessary to a client’s representation. to the request for the file and the Op. 2010-2. “[I]n Ohio there is attorney had been fully compensated. no common law lien on a client’s Client may or may not be entitled to entire file at The opinion advises that files in a contingent fee case [citing 7 Reid]. And, in Ohio, there is no end of representation “[m]aterials acquired or prepared statutory lien on client files.”5 In Formal Opinion 471, the ABA for the purposes of representing opined on the interplay between
20 Ohio Lawyer January/February 2016 www.ohiobar.org Rules 1.15 (Safekeeping Funds and • Drafts of legal instruments; engagement letter/agreement the client Property) and 1.16 (d) (Declining or signs; with the engagement letter, one Terminating Representation). The • Internal legal memoranda is confident that the client is aware of opinion is of limited utility in that and research materials; the provision and has acknowledged it deals with the situation where understanding of it and, perhaps the lawyer has been paid in full and • Internal conflict checks; equally important, can be found. adopts the position of a minority of jurisdictions on what constitutes • Personal notes; For those old, old files that many the “file.” Likewise, the ABA has lawyers have, the Board’s guidance chosen not to include guidance on • Hourly billing statements; should also prove instructive. In that how long a file should be retained. regard, however, if a retiring lawyer • Firm assignments; asks if you would like her or his client The opinion does provide two will or other files, a polite “no, thank lists — one of materials the • Notes regarding an you” may be the best response.8 lawyer must surrender: ethics consultation; Author bio • Any materials provided to the • A general assessment of the J. Desiree Blankenship serves the lawyer by the municipality [client]; municipality [client] or the Ohio State Bar Association as General municipality’s [client’s] matter; and Counsel and Assistant Executive Di- • Legal documents filed with a rector of Legal and Business Affairs. tribunal - or those completed, • Documents that might reveal the She provides counsel to the Executive ready to be filed, but not yet filed; confidences of other clients. Director and her staff, as well as to the OSBA Board of Governors. • Executed instruments Board to provide guidance Prior to joining the OSBA team, like contracts; Questions related to client files are Ms. Blankenship served the Ohio some of the more frequently posed Department of Commerce as chief • Orders or other records inquiries to ethics authorities. Based legal counsel and as assistant director. of a tribunal; on a presentation at the Miller-Becker Blankenship earned her bachelor’s seminar, the Board of Professional degree in English from The Ohio State • Correspondence issued or received Conduct will issue guidance in University and received her law degree by the lawyer in connection the near future to address some of from Capital University Law School. with the representation of the these questions. The guidance will municipality [client] on relevant be non-binding, but will provide a Endnotes issues, including email and other helpful starting point for lawyers 1 Now the Board of Professional Conduct. electronic correspondence that in addressing the myriad of issues 2 Currently Prof. Con. R. 1.8(i) has been retained according to the surrounding client files including how 3 68 Ohio St. 3d 570 (1994). firm’s document retention policy; long files should be retained, what to 4 68 Ohio St. 3d at 574. do with “old” files and, hopefully, a 5 The Board noted also that, “[t]he • Discovery or evidentiary exhibits, discussion of whether the lawyer must legality of a lien is a question of law including interrogatories and their deliver the files in the format in which outside this Board’s advisory authority.” answers, deposition transcripts, they are retained, either electronic 6 Lake Co. Bar Ass’n v. Kubyn, expert witness reports and or paper, or must the lawyer accede 121 Ohio St. 3d 121 (2009). witness statements and exhibits; to a client’s request that the file be 7 Karen Rubin’s blog, The Law for returned in a particular medium. Lawyers Today: Ethics, Professional • Legal opinions issued at the Responsibility and More is a wonderful request of the municipality; and Exercise sound judgment resource for lawyers interested in When dealing with client files, in recent developments in legal ethics. • Third party assessments, particular how long and what should 8 Gov. Bar R. V, Section 26(c) allows evaluations or records paid for by be retained, fundamentally, the lawyer recovery of the fees and expenses incurred the municipality [client]. must exercise sound professional in connection with the inventory of an judgment. The presenters I have heard attorney’s files, including filing a claim And ones that the lawyer advise that the closing letter to the against the estate of a deceased attorney – need not provide: client should address the issue of file even more reason to consider a surrogate retention, length and disposition. lawyer – see e.g., “Protecting Your • Drafts or mark-ups of documents Consideration should also be given Clients,” Ohio Lawyer (May/June 2013). to be filed with a tribunal; to including this information in the www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 21 In My Opinion October 6, 1987: A day that changed the Supreme Court – and America By Judge Frank Forchione
In October 1987, America became Anthony Kennedy runs the Court. • The Court decided in Texas riveted by the fireworks unleashed at Even the late Judge Robert Bork Department of Housing and the contentious confirmation hearing concurred, “now it’s a funny situation Community Affairs v. Inclusive for Judge Robert Bork. The ferocity and in which the moral life of a nation Communities Project Inc. that breathtaking pace of the opposition is, in effect, decided by one Judge, plaintiffs suing under the captivated the general public. The fight because you have four liberal votes, Fair Housing Act of 1968 over Bork’s Supreme Court nomination four solid original list votes, and one could prove discrimination redefined the Senate confirmation vote you can’t predict too accurately using statistics to show that process while Americans witnessed in advance.”2 To borrow President the challenged practice had a public grilling by U.S. Senators George Bush’s self-description, “he’s produced a “disparate impact.”7 clearly looking for Bork’s scalp. Most the decider.”3 Most legal scholars find of the arrows shot by the committee Anthony Kennedy one of the most • The Court decided in three chaired by then Senator Joe Biden enigmatic swing votes on the bench. environmental regulation were directed at Bork’s opposition to Through the tenure of Justice Lewis, cases that the Environmental the rights not firmly provided in the Powell and Sandra O’Connor, we Protection Agency violated text of the Constitution and criticism have learned the swing vote justice the Clean Air Act by failing to of affirmative action and abortion. on the Supreme Court has the most undertake a cost benefit analysis Judge Bork often suggested that the influence on the ideological direction in deciding whether to set Supreme Court erred in finding a of the Court—and America. limits on emissions of mercury “Right to Privacy” in the Constitution. and other toxic pollutants. In the 2015 term there were 16 This created anxiety and fear among major Supreme Court decisions Justice Kennedy’s majority opinion civil rights activists. In the end, Bork with nine of them decided 5 – 4. granting a Constitutional right to was rejected by a 58 to 42 vote. After Not surprisingly, Kennedy voted same-sex marriage across the United a recent string of groundbreaking with the majority in eight. More States is historic, and arguably the Supreme Court decisions in June importantly, in just five days in June, gold standard for American civil 2015, legal scholars now debate how Kennedy was the “swing vote” on rights. His rhetoric has secured an different American law may be if the five different landmark decisions. unexpected place in the history books Senate had confirmed Judge Robert as the champion of same-sex marriage. Bork to the Supreme Court.1 Instead, • The Court decided in President Reagan nominated the Obergefell v. Hodges that the Civil rights advocates had more reason safest, most conservative Republican Constitution guarantees a to cheer when Justice Kennedy’s vote possible when he elevated Judge right to same-sex marriage.4 rescued the 1968 Fair Housing Act as Anthony Kennedy to the U.S. Supreme the Supreme Court stood tall against Court. Currently, Justice Kennedy • The Court decided in Glossip v. housing discrimination. In Texas this is the Court’s most moderate vote. Gross that states may use a drug act became a symbol for civil rights linked to botched executions being passed by Congress after the As the perennial “swing vote,” Justice to carry out death sentences.5 death of Martin Luther King and Kennedy has decided many of the the turbulent demonstrations and Court’s most controversial decisions. • The Court decided in Arizona race riots that followed. Civil rights Though generally only 20 percent of State Legislature v. Arizona groups claimed that the distribution cases each term are decided by one Independent Redistricting by Texas of federal tax credits vote, litigants craft their arguments Commission that voters have the kept African-Americans in high- to capture that one vote—Anthony power to strip lawmakers of their minority Dallas neighborhoods and Kennedy’s—at oral arguments. right to draw district lines.6 away from housing opportunities According to conventional wisdom, in mainly white, suburban areas.
22 Ohio Lawyer January/February 2016 www.ohiobar.org Civil rights activists received an even It is unfathomable to believe that Judge “Understanding more welcome response when Justice Robert Bork would have “leaned left” Ohio’s New Kennedy provided the nation a much and ruled with the majority in any of Domestic needed wake-up call on solitary these momentous decisions. The public Violence Law” confinement. In Davis v. Ayala, the sentiment in 1987 was starving for a (January/ Supreme Court found itself focused on Supreme Court willing to recognize February 1997) the denial of a Batson challenge in the important fundamental rights. Judge and “The jury selection of a capital punishment Bork’s Constitutional vision was based Quagmire of case.8 Kennedy denounced solitary on a simple concept—judicial restraint, Medical Write- confinement in a scathing, concurring a concept he called “Interpretivism.”9 Offs and Bills” opinion on an issue that had “no direct It is obvious that Robert Bork would (September/October 2012). He is the bearing on the case.” Justice Kennedy be unwilling to embrace the social Chairman of the Stark County Stop supplied a litany of possible side effects change that the public demands Heroin from Killing Committee. to prolonged isolation, including today. Judge Bork’s opinions left a panic, withdrawal, hallucinations, well-documented trail, suggesting the Endnotes and self-mutilation. Kennedy focused Supreme Court had erred in finding a 1 www.abovethelaw.com/2015/06/ on the fact that the defendant had “right of privacy” in the Constitution. robert-bork-wouldnt-have-changed- been held in solitary confinement history-not-so-sure-about-that/ for the bulk of his 25 years. Although Justice Kennedy is generally 2 www.cnsnews.com/news/article/ conservative, it is obvious he is tilting terence-p-jeffrey/flashback-qa- Although it was a 6 - 3 decision, toward the left. He will continue to judge-robert-bork-moral-life- Justice Kennedy’s prints were be the most influential member of nation-could-be-decided-one certainly visible on the Court’s the Supreme Court and will hold the 3 www.washingtonpost.com/wp- upholding of the Affordable Health balance of power in the upcoming dyn/content/article/2007/05/12/ Care Act. Prior to this, there was years as the Supreme Court attempts AR2007051201586.html speculation that Justice Kennedy’s to navigate the social changes that 4 Obergefell v. Hodges, 135 vote was crucial, and the only one affect family, relationships, procreation, S.Ct. 2584 (2015). that could save President Obama’s freedom of speech and capital 5 Glossip v. Gross, 135 S.Ct. 2726 (2015). dream of National Health Care. punishment. With recent decisions, it is 6 Arizona State Legislature v. clear that Justice Kennedy has secured Arizona Independent Redistricting Health Care opponents were his place in history as the voice of the Commission, 135 S.Ct. 2652 (2015) banking on a Kennedy vote after he Supreme Court on modern America’s 7 Texas Department of Housing signed a lengthy dissent finding that most decisive issues. In turn, it is and Community Affairs v. Congress had exceeded its authority in clear that the day Judge Robert Bork Inclusive Communities Project mandating that Americans buy health was defeated in the Senate, America Inc., 135 S.Ct. 2507 (2015). insurance or pay a penalty. Meanwhile, took a fundamental turn on a path 8 Davis v. Ayala, 135 S.Ct. 2187 (2015). 16 million Americans pondered that would reshape America. 9 www.slate.com/articles/news_ whether Kennedy could somehow save and_politics/politics/2015/06/ Obamacare only after a few years of Author bio fair_housing_act_supreme_court_ attempting to sink it. In the end, Justice The Honorable Frank Forchione is ruling_anthony_kennedy_and_ Kennedy joined Chief Roberts and the currently serving is second term as a the_court_acknowledge.html majority who decreed that the Federal member of the Stark County Common Obamacare subsidies were here to stay Pleas Court. He has two previous and that Obamacare was alive and well. articles published in Ohio Lawyer, www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 23 Practice Tips Tips for lawyers who want to get good results for clients and make money By John Lande
After retiring from the University and win at trial. You are likely to feel from mentors and mental health of Missouri School of Law, I good if you can make arguments that services when needed. You can also compiled some tips for lawyers. persuade others and win trials; that’s reduce stress by managing your cases Here are the highlights. often how lawyers measure success and cooperatively when appropriate. get good reputations. It’s certainly fine Understand your to take pride in your work and want to Get to know your clients’ interests get recognition for it, but remember counterpart lawyer Lawyers often assume that they know that your first priority should be your Lawyers often assume that their what their clients want, and while clients’ interests, not yours. Winning “opposing counsel” will be hard to clients usually are very concerned about is a means to achieving your clients’ work with. This can be a self-fulfilling their bottom lines, they often have ends and it shouldn’t be the end in prophecy. Sometimes your counterparts additional interests. In most cases, itself. Don’t “win the battle and lose will be a pain in the neck, but often parties want lawyers to treat them the war.” Since clients are likely to they just want to be reasonable while with respect and fairness, minimize have multiple interests, your job should protecting their clients’ interests. If the cost and length of the process, free be to help them achieve their goals. you have a good relationship with time to focus on matters other than your counterparts, you can work out the dispute, reduce the emotional wear Recognize the importance of problems pretty easily. If you have and tear caused by continued disputing, emotions—especially yours a bad relationship, your cases can and protect privacy and reputations. Many lawyers seem afraid of emotions. become your own “private hell.” If you They assume that the law is only about have a case with a lawyer you have Plaintiffs may be interested in rational analysis of the law and the never worked with before, consider obtaining favorable tax consequences, facts. To them, emotions are messy getting to know each other over getting non-monetary opportunities and get in the way of good legal coffee, lunch or even just a phone and receiving explanations or apologies. representation and decision-making. call. If you do, when problems arise Defendants may want to receive They wish that people—especially their in a case, your counterparts are more acknowledgments about the lack of clients—would put their emotions aside likely to call you and less likely to fire merit of the charges, make payments and be more rational, but people can’t off a nasty email or file a motion. in kind, stretch payments over time, avoid emotions and it’s foolish to try. share liability with other defendants, Resolve matters at the prevent ancillary harm (such as loss of Emotions provide valuable information, earliest appropriate time credit rating or business opportunities), such as what is important. Lawyers Although there are good reasons receive favorable tax consequences, should focus on their own fears, which why lawyers delay moving ahead obtain non-disclosure agreements typically permeate legal practice. in some cases, you should generally and avoid future lawsuits. If you Lawyers fear many things, including avoid procrastinating. Lawyers satisfy your clients’ interests, they actions by law firm partners, clients, know that the vast majority of cases are more likely to pay you, hire you adversaries and judges.1 Although settle without going to trial, but again and refer other clients to you. fear is a normal—and often helpful— they often feel powerless to steer emotion, it can lead to serious clients toward negotiation. Trapped Pay attention problems including mental health and in the “prison of fear,” lawyers may Lawyers generally want to make the substance abuse problems. Develop worry about harming their clients best possible argument and win in strategies to deal with stress such if they settle before completing all litigation or transactional negotiations. as meditation, diligent preparation, possible discovery (even though most Typically, it’s good to show the law is mental rehearsals, practice in simulated of it won’t make any difference).2 “on your side,” get favorable agreements settings, positive self-talk, advice
24 Ohio Lawyer January/February 2016 www.ohiobar.org Lawyers (and their clients) often worry deadlines, scheduling of depositions interest to settle. Mediators can help that merely suggesting negotiation and discovery disputes. They also identify and overcome the barriers would make them look weak, leading regularly negotiate with many other to settlement. These barriers may be the other side to try to take advantage. people as they handle their cases. poor communication, strong emotions, Confident lawyers can “escape” from unrealistic expectations, pressure the prison of fear. As retired Judge Of course, they agree with clients from others (such as superiors in their Robert Alsdorf says, “Being willing about fee arrangements and how to business, colleagues or spouses) or to negotiate doesn’t make you look handle cases. They reach agreements need for reassurance from a neutral weak. Being afraid to negotiate with co-workers in their firms, professional. Sometimes, parties makes you look weak.”3 One lawyer process servers, investigators, court won’t accept your advice but will be I interviewed said, “Sooner or later, reporters, technical experts, financial persuaded by the same analysis from you will need to negotiate. You need professionals and mediators. They a mediator. Using a mediator can save to get out in front, get the facts, get also reach agreements with judges everyone a lot of money and grief. the client on board. Try to prepare about case management issues such as a settlement letter… This drives the discovery plans and schedules, referral Advocate hard and smart case in the right direction. If you to ADR procedures and ultimate issues Professor Stephen Easton advises that wait, you just get sucked into a pile during judicial settlement conferences. if you determine an issue is important of mud. If the other lawyer sends the Indeed, litigation is a continuing to fight about, you should “fight hard, letter, then you have to catch up.”4 stream of agreements. If you treat fight smart, fight with conviction, people respectfully and understand passion, and perseverance, and fight to Be prepared to negotiate their interests, you can reach good win.”5 I generally agree with this advice more than you might expect agreements that satisfy your clients’ with two qualifications. First, even In addition to negotiating final interests without unnecessary disputes. if you determine that an issue is very resolution of disputes, lawyers also important to your client, it is important negotiate with one another about Get help from mediators to fight about it only after you have substantive and procedural issues when needed unsuccessfully explored ways to satisfy during litigation. For example, lawyers Sometimes, despite your best your client’s interests without fighting. regularly negotiate about acceptance efforts, you can’t reach a settlement of service of process, extension of when it would be in both parties’ Second, I suggest using the word www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 25 “advocate” instead of “fight” because Negotiation: How You Can Get Good Unsolicited Advice for Future and people often think that lawyers Results for Clients and Make Money, a Current Lawyers, 56 S.C. L. Rev. fight in unnecessarily nasty ways. detailed practice guide published by 229, 237 (2004), available at www. Lawyers need to advocate effectively, the American Bar Association. He can innsofcourt.org/uploaded/global/ sometimes exercising power both in be reached at [email protected]. files/2004_winning_essay.pdf. negotiation and court. If you convey your willingness and ability to advocate Endnotes effectively, your counterparts may act 1 John Lande. Escaping from Lawyers’ more reasonably. If you give them the Prison of Fear, 82 UMKC L. Rev. choice of handling the case the easy 485, 485-91 (2014), available at way or the hard way and they believe http://papers.ssrn.com/sol3/papers. you are ready to do it the hard way, cfm?abstract_id=2416839. they may prefer the easier way. 2 John Lande. Lawyering with Planned Negotiation: How You Can Author bio Get Good Results for Clients and John Lande is Make Money. 6-12. (2d ed. 2015). the Isidor Loeb 3 John Lande. Good Pretrial Lawyering: Professor Emeritus Planning to Get to Yes Sooner, Cheaper, of the University and Better, 16, 63, 94 (2014), of Missouri School available at papers.ssrn.com/sol3/ of Law. He is the papers.cfm?abstract_id=2405625. author Lawyering 4 Id. at 74. with Planned Early 5 Stephen D. Easton, My Last Lecture: JIC-336_OhioLawyer_ 7.5” w x 4.754_P1a_Print.pdf 1 6/12/14 10:46 AM
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26 Ohio Lawyer January/February 2016 www.ohiobar.org Foundation News #Giving(Tuesday) for Access to Justice #GivingTuesday is an HONOR. REMEMBER. CELEBRATE. international day of giving Tribute gifts are a simple and meaningful way to say “Thank You,” “I Remember” fueled by the power of social or “Congratulations.” To recognize your esteemed colleagues, friends or family by media in which donors and dedicating your tax-deductible gift, call Tammy Savage at 614-487-4477 or visit charities join together to make osbf.net and click “Donate Now.” an impact in their communities, large or small. Taking place IN HONOR OF annually on the Tuesday after (Gifts received from Sept. 15 to Nov. 15) Thanksgiving, 71 countries Lee E. Belardo William McCarty William Lane around the world participated Stephen F. Tilson in this year’s event on Dec. 1, Herman J. Weber J. Kevin West 2015, raising $116.7 million. C. Lynne Day Sarah K. Skow William K. Weisenberg Beth A. Gillespie To celebrate #GivingTuesday, Catherine Garcia-Feehan Beatrice E. Wolper the Ohio State Bar Foundation Nicole I. Khoury Shirley A. Cochran (OSBF) family worked together Maurice Heller, Esq. Arlene Singer J. Richard Emens to support people who turn to Louis R. Bertrand James L. Hoover the law for guidance, safety John W. Weaner and resolution. Members of Velda Hofacker & Karl H. Weaner Eugene P. Whetzel the OSBF community donated Stephen F. Tilson James K. Weaner Jack L. Neuenschwander more than $8,000 throughout the day for several initiatives, IN MEMORY OF one being Access to Justice. (Gifts received from Sept. 15 to Nov. 15) Edward S. Noble Kathy Weisenberg Carole S. Dougherty In response to the findings of Ohio State Bar Jack L. Neuenschwander Ronald W. Dougherty the Access to Justice Summit Association that took place on April 29, Stephen L. Smith Hon. John B. Tracy Ret. Hon. Thomas 2015, the OSBF Board of Louis Tracy Unverferth Trustees established the Access Professor Ron Raitt Estelle M. Tracy From the Heringhaus, to Justice Fund. With this fund, Randall C. Dixon Schmenk, and OSBF’s goal is to provide grant Kersh families support for research, educational programming, pilot programming, convening constituents, and other efforts that will enhance the Thanks to the generosity of OSBF’s pursuit of justice. In fact, OSBF donors, support for Access to awarded a grant to the Ohio Justice and other initiatives during State Legal Services Association #GivingTuesday enables OSBF to for a pilot program in July that help more people who rely on the establishes a self-help computer- law to protect their rights. OSBF based kiosk inside the Fairfield appreciates everyone who powered County courthouse. Individuals this event by contributing and sharing using this kiosk will have the their support on social media. The opportunity to find resources, more we work together to address Debby Cooper, OSBA Manager of Public court forms and “live chat” with a need, the more we can empower Content Strategies, shared her support for an attorney on the other end legally vulnerable Ohioans. Access to Justice on #GivingTuesday by taking of an internet connection. an #unselfie and posting it on social media. Twitter: @_OSBF_ Connect Facebook: facebook.com/OhioStateBarFoundation with OSBF LinkedIn: linkedin.com/company/ohio-state-bar-foundation
www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 27 Inside OSBA SAVE THE DATE
Formerly known as the OSBA Convention, the All-Ohio Legal Forum and this year’s annual meeting will be held April 27-29 in Cincinnati. A formal invitation with more information will arrive soon. A mail-in registration form is located on the back cover. We hope you will join us!
a member of the Clark County Mock trial Bar, Comer chairs the Common volunteers needed Pleas Court Committee and Attorneys are needed to judge the serves on the Program/CLE and Ohio Mock Trial State Competition Special Projects Committees. on Thursday, March 10, 2016. Volunteer attorneys provide an He is actively involved in his authentic educational experience for community serving as the chair high school students who argue an of the Clark County Mental original case at the Franklin County Springfield attorney Health Foundation, secretary of Courthouse. Volunteers are needed announces candidacy for the Springfield Foundation, and from 1 p.m. to 4 p.m., and/or from 2016 OSBA president-elect trustee of the Community Health 5 p.m. to 8 p.m. If interested, please Randall M. Comer announced his Foundation. He also serves on complete the volunteer application candidacy for president-elect of the Selective Service Board. at oclre.org/volunteer-opportunities, the Ohio State Bar Association. or contact Caitlyn Smith at (614) The election will take place at the Comer is a partner of the Springfield 485-3507 or [email protected]. Association’s Annual Convention firm of Martin, Browne, Hull & in Cincinnati in April 2016. Harper, P.L.L., where he takes an active role in firm leadership. He Interested in free CLE? Comer graduated cum laude from the is a civil trial attorney specializing Sign up to be a CLE moderator for College of Charleston in 1993 with a in labor and employment, workers’ the Ohio State Bar Association. The B.S. in psychology and then obtained compensation, and contract disputes. Supreme Court of Ohio requires his law degree in 2000 from the Comer was selected for the Ohio Super providers of CLE to have a moderator University of Cincinnati College of Lawyers, Rising Stars, in 2005 and for anytime a video replay of a live CLE Law. At the College of Law, he was the Ohio Super Lawyers, 2010-2013. program is scheduled for a location. the Editor-in-Chief of the Law Review. The moderator is there to keep the Counting his family as his greatest day on schedule and answer questions Comer has been an active member blessing, Randall enjoys spending from the audience about what was of the OSBA since admission to the time with his wife Tamara and three just viewed. The moderator does bar in 2000 and currently serves on children, Grace, Grant and Matthew. NOT have any technical or registrar the OSBA Board of Governors as duties. We are looking for moderators its District 6 Representative. He “If elected, I will continue to in the Cleveland, Columbus, Akron, is the vice-chair of the Budget and build upon the great work started Fairfield, Perrysburg and Dayton areas. Headquarters Committee and the chair by others and strive tirelessly to You will earn free CLE and the OSBA of the Non-Dues Revenue Committee. ensure that the OSBA retains its will reimburse for lunch and mileage. Comer serves on the Advisory proper place as the number one bar Council on Diversity Initiatives and association in the country.” Your name will be put on a list and is a member of the OSBA Labor and you will be contacted with future Employment Law Section. Comer video replay program dates and is presently in the 2015 fellows’ class locations as they become available. If of the Ohio State Bar Foundation. interested, please send your contact information and a short bio to Betsy He is a member of the Clark County Metzger at [email protected]. and Dayton Bar Associations. As
28 Ohio Lawyer January/February 2016 www.ohiobar.org Member News Cleveland Edward Chyun, Littler, was appointed James D. Hapner 86 Russell H. Booth, Jr 86 co-chair of the National Asian Lynchburg April 20, 2015 Cambridge Sept. 15, 2015 Pacific American Bar Association Labor & Employee Committee. Arthur M. Ney, Jr. 88 Joseph A. Pitocco 64 Cincinnati May 11, 2015 Villa Hills, K Sept. 15, 2015 James. N. Kline, Ulmer & Berne, was elected secretary of Jeffrey H. Verwohlt 56 Donald W. Wiper, Jr. 84 the Ohio Association of Civil Upper Arlington May 13, 2015 Granville Sept. 24, 2015 Trial Attorneys (OACTA). Carl J. Rose 55 Mark S. Totten 58 In Memoriam Elyria July 8, 2015 Grove City Sept. 28, 2015
2014 Robert E. Mohler 102 William M. Kraus 92 George C. Economus 77 Akron July 10, 2015 University Hts. Sept. 29, 2015 Akron June 5, 2014 Paul W. Schuch 87 Gary C. Johnson 74 John P. McDonough 85 Cincinnati July 14, 2015 Cleveland Sept. 30, 2015 Springfield Oct. 5, 2014 David A. Baker 37 James P. McAndrews 86 Robert A. Goodman 79 Holland July 20, 2015 Fairfax, VA Oct. 11, 2015 Pepper Pike Oct. 24, 2014 Gregory D. Cox 50 Eugene K. Purdy 86 William F. Aigler 98 Springfield July 20, 2015 Greenhills Oct. 12, 2015 Bellevue Nov. 19, 2014 William D. Moore 85 Keith McNamara 87 2015 Garfield Hts. July 22, 2015 Columbus Oct. 26, 2015 Mark A. Poland 44 Cincinnati Jan. 27, 2015 Ralph D. Dye, Jr. 83 Dennis M. Whalen 77 McConnelsville Aug. 22, 2015 Ocala, FL Oct. 29, 2015 B. Eugene Gilbert 66 Dayton Jan. 28, 2015 Robert T. O’Brien 86 Columbus Aug. 27, 2015 Stanley S. Keller 81 Beachwood Feb. 17 2015 Judge Fred J. Cartolano 88 Cincinnati Sept. 2, 2015 Terry A. Landis 65 Cleveland Feb. 20, 2015 Terrence D. J. Durica 65 Parma Sept. 2, 2015 Jack C. Kerbe 70 Columbus March 3, 2015 I. Joseph Berger 89 correction Cleveland Sept. 3, 2015
Victor M. Javitch 77 John S. Mengle 63 Cleveland March 9, 2015 Lebanon Sept. 10, 2015
OSBA Member News in Ohio Lawyer magazine is limited to awards and civic duties. The news listed above is edited from press releases that are sent to the OSBA. Other submitted member news, such as promotions and new positions, is featured on the OSBA website.
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To submit an announcement for consideration in Member News, please email it to the editor at [email protected]. www.ohiobar.org www.ohiobar.org January/February 2016 Ohio Lawyer 29 Books & Bytes Book review [spoiler alert]
failing eyesight. His physical demise the second book. The rape trial of also torments his daughter with the Tom Robinson, a black man with knowledge that he was a member of the an arm mangled from a piece of KKK. Aghast at learning of Atticus’s farm machinery convicted of raping previous association with the notorious a white woman, dominates To Kill racist organization, a friend explained a Mockingbird. But in the sequel’s to her, “You know why he joined? To version of the crime, the unnamed find out exactly what men in town were defendant is acquitted, the victim behind the masks. What men, what is a minor, and the defendant’s
Go Set a Watchman seems unfinished, with sporadic vignettes that didn’t quite fit within Go Set A Watchman, by Harper Lee. 278 pages. New York, NY: Harper the tight chronology of To Kill a Mockingbird. Collins Publishers. 2015. $27.99.
Go Set a Watchman is the belated sequel to the 1960 classic of American people. He went to one meeting, and arm was amputated in a sawmill literature, To Kill a Mockingbird. The that was enough. The Wizard happened accident. Go Set a Watchman seems reclusive author Harper Lee actually to be the Methodist preacher.” unfinished, with sporadic vignettes wrote Go Set a Watchman before To that didn’t quite fit within the tight Kill a Mockingbird, but the manuscript Lee, a law school dropout, makes chronology of To Kill a Mockingbird. reportedly languished for years in a several allusions to the Warren Court safe deposit box before finally being decisions issued during the Eisenhower Harper Lee is one of those rare writers published and surfacing to the top years and their impact on the culture who can cause the reader to burst out of the best-seller lists in 2015. of the Deep South, but Jean Louise’s laughing or cringe at her prose, yet contemporary observations as an emerge on the best-seller lists half a One of the most striking differences adult lack much of the same quaint century apart between her first two between the two novels is the shift in naivety and subtle humor of her books. Go Set a Watchman, pieced narrative voices. To Kill a Mockingbird Depression-era schoolgirl years. together with To Kill a Mockingbird, is narrated in the autobiographical could have been a sprawling novel, voice of Jean Louise “Scout” Finch, the Atticus, despite his ever growing litany spanning three decades from the 1930s smart-alecky eight-year-old daughter of of faults, still offers some pearls of through the 1950s, but waiting for both Atticus Finch, a middle-aged, widowed wisdom and advice: “Her father said books to be published together would lawyer. Go Set a Watchman is told in it took at least five years to learn law have caused us to miss a great modern the third person, related largely from after one left law school: one practiced American novel and a great film. the viewpoint of the now 26-year- economy for two years, learned old Jean Louise during the midst of Alabama Pleading for two more, By Bradley S. Le Boeuf, Akron. the Eisenhower administration. reread the Bible and Shakespeare for the fifth. Then one was fully equipped Jean Louise seems aimless, torn to hold on under any conditions.” between staying in New York City or returning to the home of her youth, It is clear that Go Set a Watchman is Maycomb, Ala., to become a caregiver an early draft of To Kill a Mockingbird. for her elderly father. Atticus, the Many of the same characters resurface lawyer father who spoke with “last- in the sequel, but in less prominent will-and-testament diction” has roles, while minor characters in the grown old, arthritic and afflicted with first book garner more attention in
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