THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

May/June 2016 VOL. 30, NO. 3 www.ohiobar.org

Ohio courts apply Cleveland attorney case-within-a-case Access to justice: grants wishes doctrine A one-year report Support Staff Errors Subpoenas Advertising Errors Pro se complaints Claims filed in other states Poor client selection Lost client file Failure to supervise Lost/sto- len client data Cyber extortion Cyber terrorism Damage to reputation Miscalculations Failures to communicate Poor case selection Wrong advice Conflicts of -in terest Privacy breach Inattention to detail Failure to appear Poor results Client dissatisfaction Second-guessing Settle and sue Frivolous claims Fee dis- pute-turned-malpractice claims Malpractice claims Client complaints Grievances Disciplinary complaints Missed deadlines Non-client claims Negligent acts Breaches of fiduciary duty Potential claims Poor advice No knowledge of the law Incorrect application of the law Cyber breach Damages Libel Slander Defama- tion Copyright or trademark infringement Invasion of privacy Piracy or mis- appropriation of an idea Support Staff Errors Subpoenas Advertising Errors Pro se complaints Claims filed in other states Lost/stolen client data Cyber extortion Cyber terrorism Damage to reputation Miscalcula- tions Failures to communicate Poor case selection Wrong advice Conflicts of interest Privacy breach Inattention to detail Failure to appear Poor results Client dissatisfaction Second-guessing Settle and sue Frivolous claims Fee dispute-turned-malprac- tice claims Support Staff Errors Subpoenas Advertising Errors Pro se complaints Claims filed in other states Poor client se- lection Lost client file Failure to supervise Lost/stolen cli- ent data Cyber extortion Cyber terrorism Negligent acts Breaches of fiduciary duty Potential claims Poor advice No knowledge of the law Incorrect application of the law Cy- ber breach Damages Libel Slander Defamation Copy- right or trademark infringement Invasion of privac Sec- ond-guessing Settle and sue Frivolous claims Fee dis- pute-turned-malpractice claims Malpractice claims Client complaints Grievances Disciplinary complaints Missed deadlines Support Staff Errors Subpoenas Advertising Er- rors Pro se complaints Claims filed in other states Poor client selection Lost client file Failure to supervise Lost/stolen cli- ent data Cyber extortion Cyber terrorism No knowledge of the law Incorrect applica- tion of the law Cyber Protecting Ohio lawyer reputations breach Damages Libel Slander Defama- tion Copyright or trademark infringe- from more threats than they know ment Failures to communicate Poor case selection Wrong advice Conflicts of in- terest Privacy breach Inattention to detail You may not ailure to appear Poor results Client dissat- isfaction Sec- ond-guessing Settle and sue Frivolous claims Client complaints Grievances Disciplinary complaints notice our work, Missed deadlines Non-cli- ent claims Negligent acts Breaches of fi- but we’re there duciary duty Potential claims Poor ad- vice No knowledge of the law Incorrect appli- cation of the law Cyber breach protecting your Damages Libel Slan- der Defa- ma- tion Copyright or trademark infringe- ment Invasion of privacy Piracy reputation and or misappropria- tion of an idea Sup- port Staff Errors Subpoenas Ad- vertising Er- rors Pro se complaints practice because Claims filed in other states Lost/stolen client data Cyber your reputation extortion Cyber terrorism Potential claims Poor advice No knowl- edge of the law Incor- rect ap- matters. Trust plication of the law Cyber breach OBLIC, Ohio’s Damages Libel Slan- dered dead- lines Non-cli- premier provider ent claims Negligent acts of professional Breaches of fi- duciary duty Po- tential claims Poor advice No knowledge of the liability insurance law Incorrect applica- tion of the law Cyber breach Damagesport Staff Er- rors Subpoenas Advertising Errors Pro se complaints Claims filed in other states Poor client selection Lost in Ohio since 1979. client file Failure to supervise Lost/stolen client data Cyber ex- tortion Cyber terrorism Damage to reputation Miscalculations Failures to communicate Poor case selection Wrong advice Conflicts of interest Privacy breach Inattention to detail Failure to appear Poor results Client dissatisfaction Second-guessing Settle and sue Frivolous claims Fee dispute-turned-malpractice claims Malpractice claims Client complaints Grievances Disci- plinary complaints Missed deadlines Non-client claims Negli- gent acts Breaches of fiduciary duty Potential claims Poor ad- vice No knowledge of the law Incorrect application of the law Cyber breach Damages Libel Slander Defamation Copyright or trademark infringement Invasion of privacy Piracy or misappropriation of an idea Support Staff Errors Subpoe- nas Advertising Errors Pro se complaints Claims filed in other states Lost/stolen client data Cyber extortion Cyber terrorism Damage to reputation Frivo- lous claims Fee dis- pute-turned-malprac- Owned and endorsed To learn more visit: tice claims Support Staff Errors Subpoenas by the Ohio State Bar Association www.oblic.com Advertising Errors Pro se complaints Claims filed in other states Poor client selection #ReputationMatters Lost client file Failure to supervise Lost/sto- len client data Cyber extortion Cyber terrorism Negligent acts Breaches of fiduciary duty Potential claims Poor advice No knowledge of the law Incorrect application of the law Cyber breach Damages Libel Slander Defamation Copyright or trademark infringement Invasion of privac Second-guessing Settle and sue Frivolous claims Fee dis- pute-turned-malpractice claims Malpractice claims Client complaints Grievances Disciplinary complaints Missed deadlines reaches of fiduciary duty Potential claims Poor advice No knowledge of the law Incorrect application of the law Cyber breach Damages Libel Slander Defamation Copyright or trademark infringe- www.ohiobar.org ment Invasion of privacy Piracy or misappropriation of an idea Support Staff Errors Support Staff Errors Subpoenas Advertising Errors Pro se complaints Claims filed in other states Poor client selection Lost client file Failure to supervise Lost/stolen client data Cyber extortion Cyber terrorism Damage to reputation Miscal- culations Failures to communicate Poor case selection Wrong advice Conflicts of interest Privacy breach Inattention to detail Failure to appear Poor results Client dissatisfaction Second-guessing Settle and sue Frivolous claims Fee dispute-turned-malpractice claims Malpractice claims OhioLawyer Vol. 30 No. 3 Departments

3 | Letters to the Editor Readers respond to recent articles

5 | In Brief 2 in 10 attorneys have drinking problems; New rules bring changes to lawyer status; Court adopts rules to increase pro hac vice attorney Features fees and add a voluntary fee; Local courts to adopt rules for juvenile shackling under new 8 | Permissible scope of an interrogatory statewide rule by Timothy J. Puin 6 | President's Perspective Without a uniform standard for the permissible scope of an interrogatory, reviewing Ohio and Outgoing thoughts and updates federal court decisions is valuable in addressing disputes cases. 22 | Practice Tips Improvidently accepted: An overlooked appellate tool 12 | What qualifies as a “permanent and substantial physical deformity” 24 | Counsel Comments exception to Ohio’s cap on Ohio Ethics Guide on File Retention noneconomic losses? 25 | Beyond the Courtroom by Mark M. Biggerman Lawyer by day, wish-granter by night Ohio law does not explicitly define “permanent and substantial physical deformities,” yet interpretation 26 | Member News of the phrase is essential as a potential exception to Awards and community involvement of OSBA limits on noneconomic losses. members 16 | Laws & safety tips for Ohio’s road runners 27 | Inside OSBA by Elizabeth Mote Save the date for the 2017 All-Ohio Legal An infographic exploring the rules of the road for Forum; Moot Court seeking competition Ohio runners. judges; OSBA Leadership Academy graduates class of 2016

18 | Malpractice? Prove it! 28 | Foundation News by David J. Oberly New Fellows invest in impact Ohio courts continue the trend of applying case- 30 | Books & Bytes within-a-case doctrine to reject legal malpractice Book reviews of January 1973: Watergate, cases. Roe v. Wade, Vietnam, and the Month that Changed America Forever and Think Like an Entrepreneur, Act Like a CEO

32 | CLE Calendar May and June programs

www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 1 OhioLawyer Ohio Lawyer is published bimonthly by the Ohio State Bar Association. Ohio Lawyer Staff OHIO CHAPTER Editor: Nina Corbut Graphic Designer: Chris Lochinski Editorial: Andrew Hartzell, Website Editor: Dan Beckley Dan Beckley, Tori Metzger Check preferred available dates Board of Editors or schedule appointments online Judge David Hejmanowski, Chair, William Kaufman, Lebanon Delaware Alan J. Lehenbauer, Swanton directly with Ohio’s Top-Rated Neutrals Steve Bolton, Youngstown Kris Long, Columbus J. Kristin Burkett, Newark Joseph L. Ludovici, East Liverpool This service is free, funded by our Ohio members 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 Advertising Sales and Editorial Offices Ohio State Bar Association Advertising: [email protected] P.O. Box 16562 Editorial: [email protected] Columbus, Ohio 43216-6562 Printing: Hopkins Printing (800) 282-6556; (614) 487-2050 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 their dues and is not available to nonmember attorneys. Governmental agencies and Landex Research, Inc. educational and legal research organizations may subscribe annually for $35. Single copies to PROBATE RESEARCH 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 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. Missing and Unknown Heirs 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) Located 487-2050 or visiting www.ohiobar.org/editorial policy. No Expense to the Estate Postmaster (usps 016-304): Send address changes to Ohio Lawyer, P.O. Box 16562, Columbus, Ohio 43216-6562. Domestic and International Service for: Artwork credits Courts © Shutterstock.com/g/pinkbadger: Cover © Shutterstock.com/g/ivector: 16-17 Lawyers © Shutterstock.com/g/ra2studio: 1,18-19 © deviantart.com/g/flynt: 21 © Shutterstock.com/g/Sashkin: 8-9 © Shutterstock.com/g/sebra: 23 Trust Officers © Shutterstock.com/g/gow27: 11 © Shutterstock.com/g/kasto80: 32 © Shutterstock.com/g/stockdevil: 12-14 Administrators/Executors

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2 Ohio Lawyer May/June 2016 www.ohiobar.org Letters to the Editor

Unbundling legal services Let the people ride amend the Constitution in the way it Recently I read an article authored Bravo! The article “Let the People was expressly designed to be amended, by OSBA President John Holschuh Ride” in the March/April 2016 rather than doing an end run around titled “Unbundling legal services.” It issue makes all Ohio lawyers the Constitution using judges who saddened me greatly to see the head proud. Ellis Jacobs and ABLE simply create law out of whole cloth. of our association openly advocating proved once again that doing the for the continued dumbing down of right thing makes the right thing Those on the left insist that the our already beleaguered profession. happen. There can be no tolerance Constitution is a “living, breathing for discrimination accomplished document,” which means that it is As an old sole practitioner with an through suburban parochialism. whatever five justices on the Supreme emphasis in real estate and landlord Court say it is. Conservatives believe tenant matters, I am constantly Particular praise goes to the editorial that if that is the case, you don’t contacted by pro se landlords. They board and staff for prominently really have a Constitution. Judge often have initiated an eviction or a and courageously featuring this Forchione noted that the day Judge foreclosure action only to be confronted article. It is a direction needed Bork was defeated in the Senate, by a zealous legal aid attorney ready which has been urged for many “America took a fundamental turn on to beat them in court. The out-of- years. The appearance of this article a path that would reshape America.” date forms these landlords obtained signals a welcomed inclusiveness Whether that “reshaping” was good for from the internet don’t pass muster in this statewide organization. America is debatable, but it certainly in most courtrooms. They want me to was not good for the judiciary. put the toothpaste back in the tube. Gary J. Leppla, Dayton Dale E. Creech, Jr., Dayton My standard answer is that I do not have the time to cure their foundational (or jurisdictional) problem, and I A day that changed the refer them to the bar association. Supreme Court – and America The collateral effects I read with great interest Judge of addiction Your article ignores the hard financial Forchione’s article about the As an attorney in recovery, I read realities all lawyers are now facing. Senate’s rejection of Judge Robert with interest recent articles about By attempting to “limit” what aspect Bork’s nomination for the U.S. opiate abuse. Our organization is to we become involved in, we are Supreme Court, which resulted in be commended for addressing the further marginalizing what we do. the confirmation of Justice Edward issue. Like many of us, I have clients When it blows up under your theory, Kennedy and a change in the who deal daily with the collateral no agreement will “limit” the bar philosophical balance of the Court. effects of addiction: loss of custody, complaint engendered by a client Judge Forchione noted that “the public unemployment, no driver’s license and who blames you for their mistakes. sentiment in 1987 was starving for a a cycle of unpayable fines and costs. That the OSBA President authors an Supreme Court willing to recognize Many give up trying and relapse. article which has the practical effect important fundamental rights.” of further cutting down on a lawyer’s However, Judge Bork was not rejected Without hope, there is no recovery. billable time is shocking and will because he would not recognize such I know: when my license was ultimately hurt the client and delay rights; he was rejected because he suspended, I worked over six years the positive outcome they desire. would neither create nor invent them toward reinstatement. I received help from a Constitution that was silent from the Ohio Lawyers’ Assistance Perhaps this issue needs about them, like the Court did with Program (OLAP) and many inside to be rethought. abortion and homosexual marriage. and outside our profession. Sober since 2002 and restored to practice in Laurence A. Lasky, Dayton Judge Forchione noted that Bork 2008, I feel an obligation to help. “would be unwilling to embrace the social change that the public demands Here are some things to consider: today.” Left unstated was whether that should be the work of a judge, First, loss of custody due to addiction as opposed to elected legislators. If should be temporary, not “permanent indeed, society is actually clamoring in nature.” Under current law, for such changes, it should be a temporary custody may be terminated relatively simple matter to actually when a parent has significantly www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 3 corrected problems that led to loss As a result, the addict sees treatment Editor’s Note: The Ohio Lawyers of custody. People awarded custody as a right or a rescue and addiction Assistance Program is a private, are reluctant to return children and becomes a profitable enterprise. non-profit organization dedicated to are skeptical of recovery. They were helping Ohio’s judges, attorneys and injured by the addict’s behavior. Addicts should be responsible for and law students obtain treatment for Courts should consider these cases and should value their recovery. Cost of substance abuse, chemical dependency, favor temporary over legal custody. treatment should be repaid through addiction and mental health issues. service or employment and not a For more information, visit the OLAP Second, treatment shouldn’t be a never-ending well. Fines and fees for website at www.ohiolap.org. revolving door based on Medicaid people maintaining sobriety could coverage. I have seen defendants sent be reduced, not as a free pass, but in to residential treatment eight or more recognition of addiction as a disease, times, usually women for whom there not a crime. Public housing might are more beds. That more men are sent also consider amnesty for recovery. to a greater number of prisons may be a violation of equal protection. If we These and issues previously bemoan men lacking parenting skills, addressed are a start. As attorneys, we need facilities that allow men to we are in a unique position to turn care for their children and learn those the collateral effects of addiction child-care skills. Addiction favors from punitive to positive. neither gender, nor should the law. The treatment industry, with no better rate Richard E. Wolfson, Portsmouth of recidivism than other programs, is seen as anJIC-336_OhioLawyer_ arm of the drug courts.7.5” w x 4.754_P1a_Print.pdf 1 6/12/14 10:46 AM

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4 Ohio Lawyer May/June 2016 www.ohiobar.org In Brief

2 in 10 attorneys have treatment for substance abuse, chemical Government of the Bar of Ohio drinking problems dependency, addiction and mental health that will increase attorney fees A new study conducted by the Hazelden issues. Your confidentiality and the to help fund legal aid services. It Betty Ford Foundation and the American confidentiality of anyone about whom becomes effective on July 1. Bar Association Commission on Lawyer you express concerns will be protected. ​ Assistance Programs reveals substantial —www.prnewswire.com Pro hac vice registration fees, which and widespread levels of problem out-of-state attorneys pay if they want drinking and other behavioral health New rules bring changes to appear in an Ohio court proceeding, problems in the U.S. legal profession. to lawyer status will increase from $150 to $300. The Ohio Supreme Court announced The study reports that 21 percent of new rules that will allow non-active The new rules also implement a licensed, employed attorneys qualify as attorneys to engage in limited legal $50 voluntary “add-on” fee to the problem drinkers, 28 percent struggle practice to provide pro bono service. biennial attorney registration. with some level of depression and 19 The $350 registration fee hasn’t percent demonstrate symptoms of anxiety. The changes to Rule VI of the been raised since 2007. The study found that younger attorneys Rules for the Government of in the first 10 years of practice exhibit the Bar of Ohio include: The Supreme Court will use the money the highest incidence of these problems. collected from these two fees to help • Eliminating the requirement fund civil legal aid services for low- The findings of the national study, the that an attorney be 65 years or income or disadvantaged Ohioans. The most comprehensive ever, represent older to qualify for emeritus Court’s Task Force on Access to Justice a reversal of previous research that status and instead only require recommended the fee increases in 2015. indicated rates of problem drinking that he or she have practiced increased as individuals spent more for a minimum of 15 years; Local courts to adopt rules time in the legal profession. When for juvenile shackling under focusing solely on the volume and • Adding a biennial registration new statewide rule frequency of alcohol consumed, more requirement and a $75 An amendment to the Rules of than 1 in 3 practicing attorneys are registration fee; and Superintendence for the Courts of Ohio problem drinkers, the study found. will mandate that local courts adopt • Requiring an emeritus pro rules to regulate the shackling of youth Attorneys compared to other bono attorney, upon expiration appearing in court proceedings. The professionals, including doctors, or revocation of the attorney’s Ohio Supreme Court adopted Sup. R. experience alcohol use disorders at a status, to file for either active 5.01, which will take effect July 1. far higher rate than other professional or inactive attorney status. populations. Mental health distress Under Sup. R. 5.01, local restraint rules is also more significant. The study The emeritus pro bono status will be would create a presumption against found that the most common barriers available to an attorney admitted to shackling. However, local courts can for attorneys to seek help were fear practice law in Ohio and associated restrain children on a case-by-case of others finding out and general with a law school clinic, legal aid, basis if a judge or magistrate finds on concerns about confidentiality. approved legal services organization, the record it is necessary because the public defender’s office or other legal juvenile’s behavior is a significant threat The collaborative research project marks services organization. The attorney will or the juvenile is at risk of fleeing. The the first nationwide attempt to capture be required to have supervision from an judge or magistrate must also find such data about legal professionals. active-status attorney to appear before that restraint is necessary because no Approximately 15,000 attorneys from a court, administrative board or agency. less restrictive alternatives exist. 19 states and across all regions of the Routine legal services won’t require country participated in the study. supervision. The emeritus attorney won’t The Ohio Judicial College is working be allowed to receive compensation to embed research within the training If you or a colleague you know beyond reimbursement for expenses it offers to juvenile court judges, needs help, contact the Ohio from the pro bono organization. magistrates and employees concerning Lawyers Assistance Program best practices for handling juvenile (OLAP) at (800) 348-4343. Court adopts rules to increase offenders in court proceedings. pro hac vice attorney fees —courtnewsohio.gov OLAP is a private, non-profit 501(c)(3) and add a voluntary fee organization dedicated to helping Ohio’s The Ohio Supreme Court adopted judges, attorneys and law students obtain amendments to the Rules for the www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 5 President’s Perspective

Outgoing thoughts and updates

One-year report on the Ohio Supreme Court this year interested in supporting legal aid Access to Justice increased attorney fees in two areas: services for veterans, so he spearheaded With this being my last “President’s the effort to get the general Perspective” article, I wanted to follow Pro hac vice registration fees will appropriation passed in the biennium up on my first article from last year increase from $150 to $300, with budget,” Lloyd said. “We awarded detailing Access to Justice and the the additional $150 that out-of- him our first annual Voice of Justice OSBA. A lot has happened since then, state attorneys pay being directed Award this past fall at Legal Aid Day and all for the better! Let me start to civil legal aid services; and on Oct. 13 in recognition of his work. by saying that I was very fortunate to be in the right spot at the right time biennial attorney registration fees will "As a result of the appropriation, we a year and a half ago. It was when I now include a voluntary $50 add-on are able to report that Ohio has an was president-elect that Chief Justice to support civil legal aid services. active Veterans Legal Corps working Maureen O’Connor formed the task around the state to handle low-income force on Access to Justice, chaired by It is anticipated that these two increases veterans’ issues with federal veterans Yvette McGee-Brown, who asked me will generate somewhere between benefits, housing, medical access and to serve, along with Bill Weisenberg, $500,000 to $700,000 annually for consumer issues. There is at least one Angie Lloyd, Dick Pogue, Justice civil legal aid services. The funds Veterans’ Legal Corps advocate at French and others. A year ago the will be collected and administered each of our seven legal aid locations. OSBA held the Summit on Access by the Supreme Court to provide Equally important, though, is that by to Justice at the annual meeting additional funding for civil legal aid housing one at each of our locations, resulting in a report I delivered to in Ohio. While certainly not solving the full range of legal services and the Chief Justice. Since then, OSBA all the legal aid problems in Ohio, expertise is available across the state for Executive Director Mary Augsburger it is a start, and thanks to the Ohio our vulnerable veterans to address the and I have met on numerous occasions Supreme Court for all its work! legal issues with which they struggle.” with the Chief Justice on ATJ. Now the results are coming through. Legislative funding for legal Again, another great step in providing aid services for veterans legal services to those most in need, Increase funding for Unlike other states, the Ohio and may I say, who deserve it for legal aid services legislature has never appropriated their service to our country. The tremendous drop in funding for funds for civil legal aid services until legal aid, largely due to the virtual now. House Bill 64, the budget bill, New emeritus pro loss of interest on IOLTA accounts was signed into law by the governor on bono attorney rule ($22.3 million in 2007 to $2.5 million June 30, 2015, and provided $750,000 Another recommendation of the in 2014), has resulted in the layoff of per year for two years beginning July Supreme Court Task Force was one-third of the legal aid lawyers in 1, 2015, and ending June 30, 2017, to “The Supreme Court should explore Ohio and the closing of four offices, assist veterans who need legal services. I adopting an ‘emeritus rule’ that while the demand has only risen. reached out to Angie Lloyd, Executive would permit senior attorneys who The need for increased funding was Director of the Ohio Legal Assistance are no longer actively engaged in the key recommendation in both the Foundation (OLAF), to ask her how the practice of law to provide pro Supreme Court Task Force report and the program is going. “Rep. Kirk bono legal services.” And indeed, the the OSBA Summit report. As a result, Schuring, Dist. 48, was particularly Supreme Court has followed through

6 Ohio Lawyer May/June 2016 www.ohiobar.org by amending Gov. Bar R. VI dealing organization. There is a $75 emeritus with the registration of attorneys. pro bono attorney registration fee and Personal note application and the attorney must stay With this being my last President’s Under the new emeritus pro bono current with CLE requirements. Perspective, I want to thank everyone attorney rule, an attorney admitted for all they have done to help me during to practice law in Ohio who is By adopting these changes, it is my term as President of the greatest bar associated with a law school clinic, anticipated that lawyers with as little association in the country: your Ohio legal aid, approved legal services as 15 years of experience will now State Bar Association! I cannot begin organization or public defender’s volunteer their time to help those in to tell you what an honor it has been office may file for emeritus pro bono need without having to fully register to represent the OSBA and the great attorney status if he or she meets as an attorney and without having to attorneys I have met across the state of the following requirements: obtain malpractice insurance. Senior Ohio. I must give special thanks to a lawyers, lawyers who have left the few who have helped, and I apologize • Is admitted to the practice profession to raise a family or lawyers to those I do not mention but have been of law in Ohio; not otherwise engaged in the active with me throughout my term. First, practice of law, who want to do pro Mary Augsburger, the best executive • Has been engaged in the bono work can now become emeritus director in the country! Not only is practice of law, as defined in pro bono attorneys. This can be a win- Mary on top of every issue facing the Gov. Bar R. I, Section 9(B), win by allowing attorneys to continue OSBA, but also she is proactive and for a minimum of 15 years; in the profession while helping those does her job with a smile. And my in need of legal representation. dear friend Bill Weisenberg, who is the • Is in good standing with source of guidance and wisdom at the the Supreme Court; More work to be done OSBA. His knowledge and leadership While we have made great strides have been invaluable to me in dealing • Has not resigned from the to improve Ohio’s Access to Justice, with issues facing the OSBA. And practice of law in Ohio, resigned much work remains. Several other Marty Mohler, with whom I have from the practice of law in recommendations of the Supreme had the pleasure of working with for Ohio with discipline pending, Court Task Force include: the past two years. We have become or permanently retired from close friends, and I look forward to the practice of law in Ohio; • Create a Supreme Court Access continuing our relationship. And Ron to Justice Director position; Kopp, who takes over for me when my • Has not voluntarily or involuntarily term is over and who is a fellow Miami relinquished the attorney’s • Development of an Access to Redhawk. I can assure everyone that license to practice law in another Justice impact statement; the OSBA will be in excellent hands jurisdiction to avoid discipline or under Ron’s leadership, provided he as a result of discipline imposed • Use technology, including the doesn’t appoint me to any task forces. by a relevant authority; and internet, to improve ATJ; And finally, to my wife Wendy, who has been with me every step of the • Has not been disciplined for • Create self-help centers for way. I don’t know what else to say professional misconduct within pro se litigants; and except I love you more than anything, the past 10 years or been disbarred and I couldn’t have done it without by another jurisdiction. • Create standardized forms you. Thanks again to everyone. for use by pro se litigants. The emeritus pro bono status allows the attorney to appear before any court The accomplishments that have been or administrative board or agency on achieved thus far are due to the hard behalf of the organization, provided work of many, including the Chief there is written consent from the client Justice, the members of the Supreme and the supervising attorney. The Court Task Force, the folks at OLAF written consent is to be filed in the including Angie Lloyd and Jane record and brought to the attention of Taylor, and the committed staff at the the judge or presiding officer. Routine OSBA, including Bill Weisenberg and legal services do not require supervision Mary Augsburger! Thanks to all. and the attorney is not allowed to be compensated except for reimbursement of expenses from the legal services www.ohiobar.org Permissible scope of an interrogatory by Timothy Puin

Without a uniform standard for the permissible scope of an interrogatory, reviewing Ohio and federal court decisions is valuable in addressing discovery disputes.

Forty-five years after the adoption of description of documents relied on space” requirement in favor of the Ohio Rules of Civil Procedure by the adversary, or a chronology of a requirement that the party in 1970, courts addressing discovery interactions between the parties. propounding interrogatories disputes still have not enforced a provide the responding party uniform standard for the permissible A brief review of Ohio and federal with an electronic copy of the scope of an interrogatory.1 court decisions discussing the interrogatories for use in preparing permissible scope of an interrogatory a new computer-generated Rule 33(B), Scope and use at trial, may be helpful in addressing document containing both the provides that “[i]nterrogatories may discovery disputes over perceived questions and the answers. relate to any matters that can be requests for a “narrative response.” inquired into under Civ. R. 26(B)” That is, prior to 2004, the propounding and are not “objectionable merely The one-inch rule party was required to leave at least because an answer to the interrogatory According to the Staff Note to Rule one inch of white space on the page involves an opinion, contention 33 (July 1, 2009, Amendment): between interrogatories to provide or legal conclusion.” Rule 33 does sufficient room for the responding not, however, address whether an Recognizing that computer party to type in the answer.2 interrogatory may ask for the factual word processors have replaced background of a claim or whether its the typewriter, Rule 33 was One inch did not leave much room scope is limited to narrower questions, amended in 2004 to delete the for detailed responses and objections, such as the identity of witnesses, a former “minimum one-inch strongly suggesting that interrogatories

8 Ohio Lawyer May/June 2016 www.ohiobar.org were intended to be limited in scope. that calls for a “narrative” response Federal Court decisions is objectionable in its scope, while Given that Penn Central is still Penn Central Judge McBride in Turner confirmed good law, although controversial, This view was promulgated by Penn that interrogatories must call for a federal court decisions discussing the Central Transportation Co. v. Armco “categorical” response. The dictionary permissible scope of interrogatories are Steel Corp.,3 which was authored definition of “narrative” is something instructive. It is well-settled that Ohio by Judge Robert L. McBride4 of that is narrated, i.e., a story or account; courts may look to interpretations of the Montgomery County Court and, the definition of “categorical” is the corresponding rule in the Federal of Common Pleas in 1971, shortly something absolute and unqualified.7 Rules of Civil Procedure.14 The majority after adoption of the Ohio Rules. view about the scope of Fed. R. Civ. Judge McBride opined: Disagreement with P. 33 appears to be more liberal than Penn Central the view articulated in Penn Central. A direction or command to another If Penn Central had been uniformly party to set forth a picture or history adopted, it might be understood Cases disfavoring a broad scope, and with particulars or a narrative today that interrogatories basically thus in the spirit of Penn Central, of events by words or drawings call for “name, rank, and serial include Gregg v. Local 305 IBEW,15 is not an interrogatory. … If an number.” However, litigants have Hendricks v. Mirabilis Ventures, interrogatory commands the other pushed back against objections based Inc.,16 quoting Middle District party to spew out all the intricate on Penn Central, in part because Discovery handbook, and Williams details of a complicated situation, of the expense of depositions.8 v. Sprint/United Management Co.17 the limit of acceptable use of this form of discovery has been violated. Ohio courts have resisted wholesale Cases favoring a broader scope adoption of Penn Central, as early include Smith v. Montgomery Cty. Two generations of lawyers have as 1983, in Stai v. The Kroger Co.9 In Sheriff’s Office,18 citing Babcock Swine, employed the standard objection to Stai, the defendants were asked to Inc. v. Shelbco, Inc.,19 Laserdynamics, interrogatories— “Objection. Calls describe in two interrogatories exactly Inc. v. Asus Computer Int’l,20 and for a narrative response. Penn Central what a security guard employee saw Chodkowski v. Cuno Incorporated.21 v. Armco Steel”—and, indeed, Penn or heard that created the suspicion Central is persuasive authority.5 that the plaintiff was a shoplifter. A decision from the U.S. Bankruptcy The defendants objected, citing Penn Court for the Northern District of Judge McBride offered further Central. On appeal, the Ohio Court of Ohio is helpful in noting that the Penn guidance after joining the Ohio Court Appeals for the Tenth District held: Central objection—“calls for a narrative of Appeals for the Second District, response”—while “nowhere stated in in Turner v. Greenline Equip. Inc.,6 Although we would concur [with the rules themselves” is “another way wherein he suggested interrogatories Judge McBride] that depositions of objecting that an interrogatory is may be broader in scope than those are a more satisfactory form of overbroad or unduly burdensome.”22 calling for a “yes” or “no” response, discovery by which information although they still should be of the nature sought here should Along these lines, other federal courts “susceptible to a categorical response:” be elicited, we are not prepared have noted that the real issue is not to say that questions of this whether an interrogatory calls for It should be noted that adequate nature are per se improper when a narrative response, but whether space was afforded plaintiff to posed by an interrogatory.10 it is extreme in its request.23 answer the interrogatories in accordance with Civil R. 33(D). Other cases disagreeing with In Brassell, the U.S. District Moreover, a continuation sheet Penn Central are Dauterman v. Court for the Southern District of was provided should plaintiff Toledo Hospital,11 and Hudson v. Mississippi noted that overly expansive require additional space to answer. United Services Automobile Assoc. “blockbuster” interrogatories are … Most of the interrogatories Insurance Co.,12 citing Stai. improper, but an interrogatory calling complained of are prefaced by the for a lengthy narrative response word “identify.” Such questions are Even a decision from Judge McBride’s may be proper if the need for the susceptible to a categorical response home court, the Montgomery County information outweighs the burden and are, therefore, entirely proper. Court of Common Pleas, mildly in producing it. “Moreover, the fact dissented from the Penn Central view.13 that the information could also be Thus, Penn Central stands for the sought by way of a deposition is not proposition that an interrogatory grounds for refusing to answer an www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 9 interrogatory, so long as the answer can discovery objections, along with for answer to the interrogatories”). be made without imposing an undue “plaintiffs are on a fishing expedition” 3 27 Ohio Misc. 76, 271 N.E.2d 877, 879 burden on the responsive party."24 and “defendants are stonewalling.” (Montgomery Cty. Com. Pl. 1971). The decision will continue to resonate 4 Judge McBride, who passed away in 1997 Penn Central is still good law given the overlapping purposes of at age 97, was instrumental in the adoption Penn Central, decided the year after interrogatories and depositions. Until of the Ohio Rules of Civil Procedure, the adoption of the Ohio Rules of Civil there is a less expensive way of taking creation of the Ohio Judicial Conference, and Procedure, and authored by a noted depositions and greater risk for parties the writing of Ohio’s original jury instructions. jurist, is still good law; however, who essentially ignore interrogatories, Former Chief Justice Thomas J. Moyer noted, Ohio courts have dissented from plaintiffs will continue to challenge “He was recognized statewide as a judicial what is perceived to be Penn Central’s the view articulated in Penn Central. scholar.” www.supremecourt.ohio.gov/PIP/ overly restrictive view of the scope Meanwhile, defendants will resist being news/2007 (last visited Dec. 22, 2015). of interrogatories, and litigants have unfairly locked into a factual narrative 5 E.g., Schwartz, 2009 WL 8706449 (“The also expressed frustration. Parties or a theory of the case before discovery oft-cited case of Penn Central … authored by seeking discovery can cite federal and their own internal investigations the late Judge McBride of this court, appears court decisions favoring a more are complete. The best possible solution to provide the most cogent direction for this expansive view. Federal cases are would be an amendment to Rule 33 court’s determination of the latest Gordian instructive in pointing out that the to clarify the permissible scope of knot that exists between the parties”); 36 key issue is whether an interrogatory interrogatories; absent that clarity, Ohio Jur. 3d Discovery and Depositions §112 is objectionable because it is Penn Central will continue to be a (“An interrogatory…does not contemplate overbroad, burdensome or seeking controversial but necessary reference an array of details or outlines of evidence, to exceed the permissible number for litigators—and one of the most a function reserved for depositions. … It of interrogatories—not because it influential Court of Common Pleas should be a narrow question that is capable calls for a narrative response. decisions in Ohio jurisprudence. of being answered by a categorical statement without a lengthy explanation such as can The day is past when a responding be explored on deposition”), citing Penn party rolled the original interrogatories, Author bio Central; Cully v. St. Augustine Manor, 1995 page by page, into a typewriter, and Timothy J. Puin, a 1995 WL 237129, *14 (8th Dist. 1995) (“A review typed the responses into a one-inch cum laude graduate of appellant’s motion to compel reveals space; thus, it is less compelling to of Case Western that appellant largely sought information argue today that a narrative response Reserve University which was irrelevant; i.e. … information is uncalled for. Indeed, a narrative School of Law, is a from non-party witnesses in the form of response may benefit both parties sole practitioner in interrogatories which were designed to take the by narrowing the issues and possibly Hudson. He has place of depositions”), citing Penn Central. limiting or even avoiding depositions, contributed articles to the OSBA’s 6 1980 WL 352524, *6 (2nd Dist. 1980). consistent with the purpose of the Civil Law You Can Use and recently 7 Merriam-Webster.com (last Rules in promoting efficient discovery.25 presented at a CLE on the Affordable visited Dec. 22, 2015). Care Act’s employer mandate. 8 E.g., Mark B. Smith & Lori S. Blackford, In light of these considerations, “Penn Central v. Armco Steel: What’s So Wrong parties propounding interrogatories Endnotes With A Narrative Response?,” Ohio Trial would be well-advised to include 1 E.g., Schwartz v. Maguire, 2009 WL 8706449 (Ohio Assoc. for Justice, 2010) (“Despite a clause in the instructions to the (Montgomery Cty. Com. Pl. 2009) (“This court the fact that it resides among the Ohio effect of, “these interrogatories do not attempted to consult the relevant authority to Miscellaneous Reports, Penn Central has been call for an impermissible narrative assist in resolving the latest conflict that exists allowed to frustrate Ohio civil discovery to response, but instead seek a brief but between the parties and has, sadly, learned that an amazing degree”). The author respectfully reasonably complete statement of the there is an absolute dearth of authority on the acknowledges the work of Mr. Smith and Ms. facts requested.” Conversely, parties subject of the appropriate extent of the scope Blackford as contributing to this analysis. objecting to interrogatories would of inquiry contained in an interrogatory”). 9 1983 WL 3593 (10th Dist. 1983). be well-served to avoid the familiar, 2 Early v. The Toledo Blade, 130 Ohio App.3d 10 Id., 1983 WL 3593 at *4. Again, in 1994, “calls for a narrative response,” and 302, 315 (6th Dist. 1998) (appellant’s counsel the Tenth District minimized the importance instead to object on the basis the should have sought a remedy from the trial of Penn Central, in Bratka Interiors, Ltd. v. interrogatory is overbroad, burdensome court for “the failure of the Blade to provide The Homewood Corp., 1994 WL 85635, *2 or in excess of the number permitted. at least one inch of space for each answer”); (10th Dist. 1994) (referring to Penn Central Mills v. Mills, 1983 WL 4491, *2 (12th Dist. as “a trial court decision from Montgomery Decades ago, Penn Central took 1983) (“The trial court erred in failing to County,” in rejecting the appellant’s its place in the pantheon of classic measure the space allowed by the appellant objections to answering on the basis “that

10 Ohio Lawyer May/June 2016 www.ohiobar.org interrogatories are merely ‘simple questions’ of the case management order limiting the response to an interrogatory comports with and that appellees must take depositions if number of interrogatories to fifty”). the Federal Rules of Civil Procedure”). they wish to acquire more information”). 16 2008 WL 423566, *1 (M.D. Fla. 2008) 22 In re Continental Capital Investment Services, 11 2010 WL 7096593 (Lucas Cty. Com. (“Interrogatories that purport to require a Inc., 2009 WL 1661918, *5 (Bkrtcy.N.D. Ohio Pl. 2010) (“Dr. Dodd objected to these detailed narrative response of the opposing 2009) (“nothing in the Federal Rules of Civil interrogatories on the basis that they parties’ case are generally improper because Procedure prescribes any specific form for require ‘a narrative answer that can be more they are overbroad and oppressive”) interrogatories and courts, including courts in properly obtained through other discovery 17 235 F.R.D. 494, 502 (D. Kan. 2006) (“As this circuit, have found that narrative answers mechanisms.’ … This court finds that a general rule in this District, the court to interrogatories are not only acceptable, Interrogatory Nos. 16 and 21 can be answered will find interrogatories overly broad and but in some cases required”; while “[c]ourts without too lengthy of an explanation”). unduly burdensome to the extent that they have found interrogatories overly broad to the 12 150 Ohio Misc.2d 23, 902 N.E.2d 101, 111 ask for ‘every fact’ which supports identified extent that they ask for ‘all facts’ or ‘every fact’ (Greene Cty. Com. Pl. 2008) (“McBride gave allegations or defenses. Interrogatories that supports an allegation or claim,” there a very narrow construction of what was proper should not require the answering party to is “no question” a party is “entitled to inquire in an interrogatory. … other Ohio courts have provide a narrative account of its case”). as to the factual basis” of a claim “as such rejected the narrow use of interrogatories Judge 18 2012 WL 871255, *1 (S.D. Ohio 2012) inquiry goes to the very heart of the case”). McBride felt was proper. The Court declines to (“Plaintiff does not ask for a detailed 23 Slabaugh v. State Farm Fire & Cas. Co., follow the narrow construction of Penn Cent.”) narrative of ‘the opposing parties’ case,’ but 2013 WL 4777206, *3 (S.D. Ind. 2013) (“An 13 McDonald v. Burton, 2008 WL 4461041 rather for a chronology of this Defendant’s interrogatory might improperly call for a (Montgomery Cty. Com. Pl. 2008) actions. In routine discovery with counsel, narrative response when it is used as an attempt (“Interrogatories 2 and 3 do call for an this would be the sort of question asked on to exceed the interrogatory limit. … However, [sic] narrative response, which, despite deposition, but Plaintiff’s circumstances an interrogatory that merely ‘seeks to discover the Penn Central case, are not per se do not allow that approach”). who has knowledge relating to the case, and to objectionable. However, the depositions 19 126 F.R.D. 43, 44-45 (S.D. Ohio 1989) learn what it is that they know’ is not improper are scheduled and these questions lend (“With all respect to Judge McBride’s opinion, as calling for a narrative”); Brassell v. Turner, themselves better for that format”). this Court does not believe that the Penn Central 2006 WL 1806465, *2 (S.D. Miss. 2006) (“the 14 E.g., State ex rel. Wright v. Ohio Adult Parole decision accurately reflects federal discovery proper analysis is not whether the question Auth., 75 Ohio St.3d 82, 86, 661 N.E.2d law. … The fact that a party has a choice seeks a response in a narrative form (which 728, 732 (1996) (“we look for guidance to between using interrogatories and depositions is, ordinarily, the proper manner in which to authorities interpreting the federal rule”). does not bar the use of interrogatories. … respond to an interrogatory), but consideration 15 2009 WL 1325103, *3 (N.D. Ind. 2009) There is no need to insist rigidly a priori of the extent of the response required”). (“what Gregg is requesting essentially that interrogatories cannot be commands or 24 Citing 2006 WL 1806465 at *2. Fed.R.Civ.P. amounts to a narrative response to each of the seek narrative or other expansive detail”); 26(d) (discovery may occur in any sequence).” complaints and arguments in his six letters. 20 2009 WL 153161, *1 (E.D. Tex. 2009) 25 See Smith & Blackford (“Civil Rule 1(B) Thus, Gregg is effectively gathering a slew (“The court orders the defendants to provide [Scope of rules; applicability; construction; of imprecise discovery requests about the a narrative response to this interrogatory”). exceptions] makes clear that the rules should facts of his allegations under the umbrella 21 2006 WL 1062115, *5 (D. Conn. 2006) be interpreted to promote, not frustrate, of a single interrogatory, amounting to an (“As other cases from within this circuit and the efficient exchange of information”). inappropriate attempt to avoid the requirements this district have held, only a full narrative www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 11 What qualifies as a “permanent and substantial physical deformity” exception to Ohio’s cap on noneconomic losses?

By Mark W. Biggerman

12 Ohio Lawyer May/June 2016 www.ohiobar.org Since the enactment of R.C. 2315.18 testimony of the substantial The Northern Division District Court in 2005, Ohio plaintiffs have been nature of her injuries to both her addressed the issue again in 2011. limited in the amount they can recover hands, photographs of her injuries, In Weldon v. Presley,16 the plaintiff for noneconomic losses in personal and the objective permanency claimed that, as a result of a motor injury actions.1 Generally, those thereof in appearance and vehicle accident, she had sustained damages are capped at $250,000.2 function, we find the trial court’s injuries to her head, neck, shoulders determination of damages does and back.17 Consequently, she There are four limited exceptions, not exceed the statutory limits underwent surgery “to ‘relieve extensive however. They are found in R.C. for noneconomic damages.9 compression of her spinal cord to 2315.18(B) and include situations stabilize the vertebrae in her spine.’”18 where a plaintiff suffers a permanent Beyond that, Ohio courts have As a result of the operation, she was and substantial physical deformity, not provided any guidance. left with a four centimeter incisional a loss of use of a limb, the loss Fortunately, however, there are a scar.19 The plaintiff also claimed of a bodily organ system3 or a few decisions by federal district to have “permanent damage, pain, permanent physical functional courts in Ohio that do provide and suffering and that the pain and injury that permanently prevents the some assistance for practitioners. suffering will continue in the future.”20 injured person from being able to Five, to be exact, with four of them independently care for him/herself and rendered by the U.S. District Court, The defendants filed a motion for perform life-sustaining activities.4 Northern Division of Ohio. summary judgment, arguing that the injuries were not a permanent Of the four, “permanent and substantial The first, Bransteter v. Moore, was and substantial physical deformity physical deformity” is the least specific actually decided in 2009, a year because the plaintiff had “suffered no and, therefore, the most open for before White.10 That case involved anatomical or structural alteration of interpretation. Unfortunately, R.C. a plaintiff who had sustained a her spine” and her “chief complaints 2315.18 does not define the term. perforated bowel and a resulting were ‘aching, stiffness and burning Moreover, interpretive Ohio case law is scar after several surgeries. The about the posterior aspect of her neck, scarce. There is only one Ohio decision defendants sought to limit the bilateral trapezius and interscapular addressing the meaning of the term: the noneconomic damages she could areas.’”21 In response, the plaintiff 2010 Fifth District Court of Appeals recover, pursuant to R.C. 2315.18.11 submitted evidence to validate opinion in White v. Bannerman.5 her injuries and cited Bransteter The Northern Division District for support that her surgical scar In that case, the plaintiff alleged that, Court noted the lack of legislative raised a genuine issue of material due to the defendant’s negligence, the history or Ohio case law to assist it fact as to whether her injuries were tendons in her hands had been severed, in determining whether the scar was permanent and substantial.22 both her face and hands were scarred, a permanent and substantial physical and her fingers suffered permanent deformity. The plaintiffs argued The court explained that, despite numbness.6 After the defendant failed that a scar is a disfigurement. The the lack of a specific definition for to respond to the complaint, the trial defendants contended that scarring “permanent and substantial physical court granted default judgment, held did not fall within the definition of deformity,” the injuries listed in a bench hearing on damages and then permanent and substantial physical R.C. 2315.18(B)(3)(a) “help qualify awarded the plaintiff $750,000.7 deformity because it is not specifically the level of injury suffered.”23 Thus, mentioned in the statute and the two “[g]iven the extreme qualifications The defendant appealed, arguing that categories are mutually exclusive.12 required for the other injuries listed, the damages exceeded the noneconomic it seems clear that permanent and statutory limit in R.C. 2315.18.8 The The court disagreed with the substantial physical deformity court of appeals disagreed, holding: defendants and held that “scarring must be severe and objective.”24 may be so severe as to qualify as a Ashley suffered objective injuries serious disfigurement.”13 However, The court then concluded that the to her hands and face in the form because it also found that “not every plaintiff’s injuries did not rise to of severe scarring and limited scar would qualify as a substantial that level. In doing so, however, it mobility, with the permanency physical deformity,” the court decided focused specifically on her scar: of those injuries being obvious. to wait to resolve the issue following trial testimony.14 In doing so, it advised Reasonable minds could not ——— that the defendants could move for conclude that such a small single Upon review of the evidence a directed verdict and the plaintiffs scar, merely four cm long, amounts presented, including Ashley’s could request a jury interrogatory.15 to a severe disfigurement. Common www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 13 experience readily teaches that motions regarding the applicability some exposed bone in her mouth.40 many people have some type of scar, of Ohio’s noneconomic damages cap After surgery, her jaw had been fused from childhood roughhousing or have been treated as ones for summary and she no longer had any exposed surgery. Such incidental scars do judgment. Therefore, “whether a bone. However, she maintained that not rise to the level of “substantial deformity is sufficiently permanent and her jaw would never be perfect and physical deformities” as required by substantial should, once the plaintiff that she still suffered some jaw pain.41 Ohio Revised Code § 2315.18.25 crosses an evidentiary threshold, be for the jury, not the court, to decide.”31 The court cited Ohle and the rule that The court distinguished Bransteter whether a deformity is sufficiently by pointing out that it held only that In support, the court referenced permanent and substantial is a question scarring may be so severe as to qualify Ohio’s Pattern Jury Instructions for the jury once a plaintiff crosses as a serious disfigurement.26 The court and interrogatories, which had been an evidentiary threshold.42 However, also contrasted the facts in that case republished just shortly after enactment the court held that a permanent and and White by explaining that the of the noneconomic damages cap. They substantial physical deformity must plaintiff’s scar was not “equivalent require jurors to determine whether be severe and objective.43 In this case, to the multiple scarring at issue in a plaintiff has been permanently and it found that the plaintiff’s injury Bransteter or the disfigurement of substantially physically deformed.32 was “not the type of catastrophic hands and face noted in White.”27 The court also cited the decisions in ‘permanent and substantial physical Bransteter,33 White,34 Weldon,35 and deformity’ contemplated by R.C. About a year later, in 2012, the Williams v. Bausch & Lomb Co.,36 for 2315.18(3)(a).”44 Therefore, the injury Northern Division District Court the proposition that determining was “insufficient, as a matter of law, handed down its third decision on the the nature of a plaintiff’s injuries to defeat the statutory caps on non- economic damages.”45

The District Court in the Northern Division weighed in a final time in Cawley v. Eastman Outdoors, Inc.46 In this case, the plaintiff was allegedly injured when a defective arrow shattered upon release, piercing his left-hand thumb. In addition to suffering lasting injuries to his hand, including a scar, he had issue in Ohle v. DJO Inc.28 There, the should be left to the trier of fact.37 decreased range of motion, diminished plaintiff’s injuries included the loss of grip strength, ongoing pain and the most or all of her shoulder cartilage. As to the facts before it, the court possibility of future ailments, such as Her shoulder bone had also been held that the plaintiff had reached arthritis. Further, because the surgeon replaced with a metal prosthesis and the necessary evidentiary threshold was unable to remove all the minuscule she now had a large raised keloid scar by providing enough evidence of carbon fiber fragments from the hand, from her collar bone to her armpit the lasting and permanent effects of they would sometimes migrate to the and two smaller keloid scars on the the surgeries and whether they left surface and extrude through the skin.47 front of her shoulder.29 According a permanent substantial deformity. to the plaintiff, the combination Accordingly, the jury was in the best The defendant moved for summary of these injuries qualified as a position to determine whether the judgment, seeking imposition of the permanent and substantial physical nature and location of scarring, removal noneconomic damages cap.48 The deformity. The defendants disagreed, of a portion of a bone or total loss of plaintiff argued that a jury could arguing that internal modifications cartilage deforms an individual.38 find that his scar and his external of a person’s body structure and and internal deformities, which surgical scars did not satisfy that The next decision, Sheffer v. Novartis resulted from subsequent surgeries, exception under R.C. 2315.18(B).30 Pharmaceuticals Corp., was decided by qualified as a permanent and the District Court in Ohio’s Southern substantial physical deformity.49 The court explained that, in light of Division in 2014.39 The plaintiff there R.C. 2315.18(E)(2), which permits claimed that a prescription drug caused The court denied the defendant’s parties to seek summary judgment her to develop osteonecrosis of the jaw, motion, holding that the issue on the nature of a plaintiff’s injury, which led to a broken jaw bone and of “whether Plaintiff’s injury is a

14 Ohio Lawyer May/June 2016 www.ohiobar.org ‘permanent and substantial physical courts as to how the term should be 18 Id. at *7. deformity’ that is exempted from the defined. The best way to do that is 19 Id. statutory damages cap is a question to familiarize themselves with the 20 Id. at *1. for the jury.”50 However, the decision applicable precedent on the subject. 21 Id. seemed to be based primarily on the 22 Id. at *3, 7. plaintiff’s scar. After citing Bransteter Author bio 23 Id. at *6. for the proposition that scarring may Mark Biggerman is 24 Id. be so severe as to qualify as a serious a solo practitioner 25 Id. at *7. disfigurement,51 the court held: in Cleveland. He 26 Id., citing Bransteter, 2009 WL 152317 at *2. “Although Plaintiff and Defendant has over 21 years of 27 Id. disagree about the severity of Plaintiff’s experience representing 28 N.D. Ohio No. 1:09-cv-02794, 2012 WL scar, that is a question for the jury.”52 both plaintiffs and 4505846. defendants at all levels of the Ohio 29 Id. at *2. So what collective guidance do these six and federal judicial systems, including 30 Id. at *4. opinions provide? With only six cases to cases before the U.S. Supreme Court 31 Id. at *3. work from, it is difficult to draw many and Ohio Supreme Court. His practice 32 Id. at *4, citing OJI Civil 315.01(6). expansive conclusions; however, at least areas include employment law, personal 33 2009 WL 152317. two things do seem to be evident. injury, product liability, appeals, civil 34 2010 WL 3852354. 2011 WL 3749469. The rights and complex litigation. Visit court pointed out that, although the court in First, procedurally, R.C. 2315.18(E) his website at www.mblegal.com or White made the factual finding that the scarring (2) all but encourages the filing of a email him at [email protected]. qualified as a deformity, it was nevertheless a motion for summary judgment on bench trial in which the court properly acted as the issue. As such, any other pretrial Endnotes the trier of fact. Ohle, 2012 WL 4505846 at *3. motions related to that topic will 1“Noneconomic loss” is defined as “nonpecuniary 35 2011 WL 3749469. most likely be treated as if they were harm that results from an injury or loss to person 36 S.D. Ohio, No. 2:08-cv-910, 2010 WL motions for summary judgment. or property that is a subject of a tort action, 2521753. The opinion in Williams addressed the including but not limited to, pain and suffering, exceptions for “loss of a bodily organ system,” in Second, scarring (especially multiple loss of society, consortium, companionship, R.C. 2315.18(B)(3)(a), and “permanent physical scarring) appears to be generally care, assistance, attention, protection, advice, functional injury,” in R.C. 2315.18(B)(3)(b), as sufficient to at least survive summary guidance, counsel, instruction, training, or opposed to “permanent and substantial physical judgment. Four out of the five opinions education, disfigurement, mental anguish and deformity.” addressing this question agree. The only any other intangible loss.” R.C. 2315.18(A)(4). 37 Ohle, 2012 WL 4505846 at *4. court concluding otherwise made it a 2 R.C. 2315.18(B)(2). More precisely, the statute 38 Id. point to emphasize that, in that case, caps damages for noneconomic loss at the greater 39 S.D. Ohio, No. 3:12-cv-238, 2014 WL the plaintiff had only a small, single of $250,000 or three times the amount of the 10293816. scar, merely four centimeters long. plaintiff’s economic loss. Furthermore, each 40 Osteonecrosis is “a condition that occurs plaintiff may not recover more than $350,000 when there is loss of blood to the bone. Because As for other commonalities in the or a maximum of $500,000 for each occurrence bone is living tissue that requires blood, an opinions, three courts held that, to that is the basis of the tort action. Id. interruption to the blood supply causes bone to qualify as a permanent and substantial 3 R.C. 2315.18(B)(3)(a). die. If not stopped, this process eventually causes physical deformity, the injury must 4 R.C. 2315.18(B)(3)(b). the bone to collapse.” WebMd, www.webmd. be severe and objective. Two held 5 5th Dist. Nos. 2009CA00221, com/arthritis/avascular-necrosis-osteonecrosis- that whether internal deformities 20090CA00245, 2009CA00268, 2010-Ohio- symptoms-treatments. fall under the exception was a jury 4846, 2010 WL 3852354. 41 Id. at*1-2. question. Two more ruled that 6 Id. at ¶ 2, 7-9. 42 Id. at *2, citing Ohle, 2012 WL 4505846 at *3. decreased mobility and range of 7 Id. 43 Id. at *2. motion may qualify as permanent and 8 Id. at ¶ 77. 44 Sheffer, 2014 WL 10293816 at *2. substantial physical deformities. Yet, 9 Id. at ¶ 76, 87. 45 Id. at *3. ongoing pain may not be enough. 10 N.D. Ohio No. 3:09 CV 2, 2009 WL 152317. 46 N.D. Ohio No. 1:14-CV-00310, 2014 WL 11 Id. at *2. 5325223. Although the body of case law on 12 Id. 47 Id. at *1. this issue is small, it is beginning 13 Id. (Emphasis in original). 48 Id. at *1, 7. to take shape; however, it is still 14 Id. 49 Id. at *7. malleable. Counsel representing 15 Id. 50 Id. at *2. clients in cases where an injury 16 N.D. Ohio No. 1:10 CV 1077, 2011 WL 51 Id. at *7, citing Bransteter, 2009 WL 152317 is potentially a permanent and 3749469, report and recommendation adopted, at *2. substantial physical deformity 2011 WL 3754661. 52 Id. are still in a position to persuade 17 Id. at *1. www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 15 Running USA reports that U.S. running event finishers have increased 300 percent from 1990 to 2013,1 and since 1990 there has been more than a 140 percent increase in U.S. marathon finishers LAWS & SAFETY TIPS FOR (224,000 vs. 541,000).2 With the popularity of running and the “sweet spot” of event participation between the ages of 25 and 44, OHIO’S ROAD RUNNERS there’s a good chance you or someone you know regularly runs on by Elizabeth Mote Ohio’s roadways. But do you know the rules of the road?

If you can, use the sidewalk. Runners are considered pedestrians 1 in Ohio.3 As a result, where a sidewalk is provided and “its use is practicable,” it’s unlawful to walk or run in the street.4

If there’s no sidewalk or you can’t, use the shoulder. Where there’s 2 no sidewalk, you must walk or run only on a shoulder, “as far as 1 practicable” from the roadway.5 Face traffic. Where there’s no sidewalk or shoulder, you must walk or run “as near as practicable” to the outside edge of the 3 roadway, and if it’s a two-way street, only on the left side, i.e. facing oncoming traffic.6

Don’t run on freeways. Ohio law defines a “freeway” as “a divided multi-lane highway for through traffic with all crossroads 4 separated in grade and with full control of access.”7 Pedestrians are prohibited on freeways except in situations that likely don’t apply to going for a run.8

If there’s a marked crosswalk, use it. Between adjacent 5 intersections with traffic control signals in operation, you can’t lawfully cross anywhere except in a marked crosswalk.9

Drivers must exercise due care, but you don’t always have the right-of-way. Although drivers must yield the right-of-way to any 6 pedestrian on a sidewalk, at any point other than within a marked crosswalk or within an unmarked crosswalk you must yield the right of way to “all vehicles, trackless trolleys, or streetcars.”10

Don’t dart. Don’t cut across intersections. Ohio law prohibits pedestrians from suddenly leaving a curb or “other place of safety” to walk or run into the path of a vehicle which is “so close 7 as to constitute an immediate hazard.”13 You’re also not allowed to cross an intersection diagonally unless authorized by an official traffic control device.14

16 Ohio Lawyer May/June 2016 www.ohiobar.org It goes without saying you must obey traffic signals.11 Although it’s tempting to violate these laws to avoid curbs or However, when traffic control signals are not in place, waiting at intersections, consider running at a park or on a not in operation or aren’t clearly assigning the right-of- trail if you simply refuse to stop or try stretching so you’re 6 way, drivers are only required to yield, slow down or stop not standing still.15 Plus, if you’ve read this, you can’t say you for a pedestrian crossing within a crosswalk when the don’t know the rules. pedestrian is on the half of the roadway where the vehicle By following these laws and safety tips, we can contribute to is traveling, or when the pedestrian is approaching so safer roads for Ohio drivers and runners. closely from the other side “as to be in danger.”12

7

3 2 5

Endnotes 1 2015 State of the Sport – U.S. Race Trends, July 13, 2015 www.runningusa.org/2015-state-of-sport-us-trends?return- To=annual-reports (last accessed 07/24/2015). 2 Running USA’s Annual Marathon Report, March 23, 2014 www. runningusa.org/index.cfm?fuseaction=news.details&Arti- cleId=332 (last accessed 07/24/2015). 3 R.C. 4511.01(X) (pedestrian means “any natural person afoot”). 4 R.C. 4511.50(A). Liz is an associate attorney at Kitrick, Lewis & Harris Co., 5 R.C. 4511.50(B). 6 LPA, and has experience in a variety of legal matters, from R.C. 4511.50(C). 7 R.C. 4511.50(YY). complex civil litigation and foreclosure to employment 8 R.C. 4511.051. law. She focuses her practice on serious personal injury, 9 R.C. 4511.48(C). wrongful death claims and other consumer matters. Liz 4 10 R.C. 4511.48(E); R.C. 4511.441; R.C. 4511.48(A). earned her law degree from Capital University Law 11 R.C. 4511.12. School. She has been a member of national and local bar associations since law 12 R.C. 4511.47(A). school, is an avid runner and enjoys being outdoors as much as possible. 13 R.C. 4511.46(B). 14 R.C. 4511.48(D). 15 Whether it’s acceptable to run in place, run in circles or dance around at a stop light/sign is surprisingly a highly debated issue and perhaps a topic for another article or blog post.

www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 17 MALPRACTICE? PROVE IT! Ohio courts continue trend of applying case-within-a-case doctrine to reject legal malpractice cases

By David J. Oberly

Litigating a legal malpractice case generally encompasses a wide variety of unique complexities not seen in other types of lawsuits. One of the most daunting challenges of a legal malpractice lawsuit concerns the “case-within-a-case” requirement that is sometimes—but not always—triggered in connection with proximate causation. When applicable, the rule requires the plaintiff to prove that it would have prevailed in the underlying lawsuit. Oftentimes, the case-within-a-case requirement by itself is sufficient to derail an otherwise meritorious legal malpractice claim. Importantly, two recent Ohio appellate decisions exemplify the current trend of Ohio courts in routinely applying the case-within-a- case requirement where a plaintiff places the merits of the underlying litigation directly at issue to preclude legal malpractice actions in their entirety. As a result of the increasing prevalence of the doctrine in legal malpractice litigation, both plaintiff’s attorneys and defense practitioners are well advised to take note of the potential advantages and pitfalls of this game-changing rule. Overview of the case-within-a-case requirement To establish a cause of action for legal malpractice, a claimant must demonstrate the existence of an attorney-client relationship giving rise to a duty, a breach of that duty and damages proximately caused by that breach. If a plaintiff fails to establish a genuine issue of material fact as to any of the elements, the attorney is entitled to summary judgment.

18 Ohio Lawyer May/June 2016 www.ohiobar.org MALPRACTICE? PROVE IT!

As a general rule, the requirement of causation often dictates that the merits of the malpractice action depend on the merits of an underlying case. As such, a plaintiff in a legal malpractice action may be required to demonstrate the merits of the underlying claim. Nonetheless, the Ohio Supreme Court has rejected universal application of the case-within- a-case doctrine, concluding that the element of causation cannot be replaced or supplemented with a rule of thumb requiring that a plaintiff, to establish damage or loss, prove in every instance that he or she would have been successful in the underlying matter(s) giving rise to the complaint.

In holding that not every legal malpractice case will require the plaintiff to establish that he or she would have succeeded in the underlying matter, the Ohio Supreme Court necessarily implied that there are some cases in which the plaintiff must so establish. This type of legal malpractice action involves the case-within-a-case doctrine, which means the plaintiff must establish that he or she would have been successful in the underlying matter. Here it is insufficient for the plaintiff to present simply “some evidence” of the merits of the underlying claim.

The less-stringent "some evidence" standard applies in cases in which a plaintiff’s damage or loss has been suffered regardless of the fact that the plaintiff may be unable to prove that he or she would have been successful in the underlying matter(s) in question. In such a case, the plaintiff need provide only some evidence of the merits of the underlying claim. The case-within-a-case doctrine, however, applies if the theory www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 19 of the malpractice case places the merits restraining order hearing on the the court continued, the jury could not of the underlying litigation directly president’s motion for a temporary properly evaluate the evidence on the at issue. To prove causation in these restraining order, which was not element of proximate cause without cases, the plaintiff must prove that attended by Cordell. A temporary the benefit of expert testimony on the but for the attorney’s negligence, the restraining order was granted that question of whether the outcome of plaintiff would have obtained a better day. Approximately a month later, the the underlying case would have been outcome in the underlying case. In three individuals settled the litigation, different, but for the negligence of this way, all the issues that would have and the lawsuit was dismissed. their former attorney; however, David been litigated in the previous action and Michael had failed to disclose are litigated between the plaintiff and David and Michael Passerell an expert on this issue, which barred the plaintiff’s former lawyer, with the subsequently filed a complaint for legal them from presenting any expert latter taking the place and bearing the malpractice against attorney Cordell. testimony on the issue of proximate burdens that properly would have fallen Importantly, while Cordell engaged the causation. Without expert testimony on the defendant in the original action. services of an expert who opined that on causation, David and Michael could he had not breached any duty of care not satisfy the case-within-a-case Recent applications of toward his former clients, David and causation requirement. As a result, the case-within-a-case Michael believed otherwise but did not the plaintiffs were precluded from doctrine by Ohio courts engage an expert because they thought establishing the essential elements that the breach was so obvious and the of their legal malpractice claim, thus Passerell v. Cordell harm so evident that an expert was mandating judgment in favor of the In Passerell v. Cordell, 2015 Ohio unnecessary to prove legal malpractice. defendant attorney as matter of law. 1767 (11th Dist.), the court ruled The court found that the case-within- that the case-within-a-case doctrine a-case doctrine applied to bar the Skoda Minotti Co. v. Novak, estopped a plaintiff from asserting a brothers’ legal malpractice claim Pavlik & Deliberato, L.L.P. legal malpractice claim in the absence because the plaintiffs could not succeed A very similar result was also seen of expert testimony establishing that on the element of proximate cause recently in Skoda Minotti Co. v. Novak, the claimant would have fared better in the absence of expert testimony. Pavlik & Deliberato, L.L.P., 2015 in the underlying litigation but for Ohio 2043 (8th Dist.), where the the defendant attorneys’ malpractice. In reaching that conclusion, the court court invoked the case-within-a-case The legal malpractice claim in that noted that the plaintiffs were arguing doctrine to bar a legal malpractice case arose out of Stuart Cordell’s that but for the alleged malpractice of claim that arose out of a taxpayer representation of David and Michael Cordell, they would have prevailed in mandamus action filed against the city Passerell—both part owners of the underlying litigation. Accordingly, of Akron. In that case, Robert Smith AllPass Corporation—in a business their case relied entirely on success retained Novak, Pavlik & Deliberato, dispute over the family-run company. on the merits of the underlying case, L.L.P. and Scott Perlmuter for the Shortly after the company’s recently thus triggering the case-within-a-case purpose of compelling the production terminated president and co-owner doctrine. To do so, the court found, of travel records, receipts and credit filed a complaint for declaratory and required them to establish that the card statements from the mayor of injunctive relief for damages against entire result of the case would have Akron and other city personnel whom the two owners and AllPass, the been different by demonstrating how he believed improperly destroyed Passerell brothers sought out Cordell they would have prevailed in the these records, which established to enter an appearance on their behalf underlying litigation—that if Cordell that they “traveled the world, stayed and represent their interests in the had attended the hearing, the judge in four-star hotels, and wined and litigation. At that time, Cordell would not have granted the restraining dined” on the taxpayer’s dime. informed David and Michael of the order, and if the judge had not granted Smith also sought damages for the potential conflict of interest that the restraining order, they would have estimated 1,000 documents that were existed as a result of Cordell’s prior had a better outcome in the case and destroyed. Eventually, Smith’s case representation of the company’s former would not have incurred the claimed was voluntarily dismissed without president. Less than a month after damage or loss. To prevail, then, the prejudice. Thereafter, Smith terminated undertaking the representation, it brothers were required to establish a the attorney-client relationship with became apparent to Cordell that there proximate causal connection requiring Perlmuter and Novak. After the case was, in fact, a conflict of interest. them to address complex business was dismissed, Smith did not refile Accordingly, he sought to withdraw litigation, various procedural issues and his claims against the city of Akron. as counsel for David and Michael, corporate law, which would require which was later granted by the court. them to prove the case-within-a-case. Smith subsequently asserted a claim However, before he withdrew, the Given these complex issues and the for legal malpractice against Perlmuter, court held an ex parte temporary particular circumstances of the case, alleging that his former attorney was

20 Ohio Lawyer May/June 2016 www.ohiobar.org negligent for failing to present evidence unique requirement not seen in other legal malpractice plaintiff can testify at an evidentiary hearing, hiring an types of litigation that essentially credibly and put forth reliable evidence expert against Smith’s wishes and requires the plaintiff to try two cases— concerning the underlying events that then later claiming an expert was not the underlying case and the malpractice establish a prima facie basis for the needed, and dismissing a case that was case—in one action. The defendant only defendant’s liability in the underlying worth approximately $985,000. The needs to defeat one of the two cases to litigation, then the plaintiff has an court found that the case-within-a- avoid liability altogether. Obviously, advantage over his former lawyer, who case doctrine applied to bar the claim then, defense practitioners must must seek and obtain testimony and because Smith’s failure to refile the carefully analyze the issue of causation other evidence from both the defendant action after it was voluntarily dismissed at the outset of any legal malpractice and frequently other individuals and without prejudice and litigate the merits lawsuit to determine both whether the entities who were not involved in that of the city case was fatal to his claim case-within-a-case rule applies and, prior litigation. Where the doctrine that any alleged negligence caused him if so, whether the requirement can does apply, counsel on both sides of to incur damages. Because he alleged be wielded to completely shield the the table are well advised to devote that he would have obtained a better defendant from liability. On the flip a considerable amount of time and outcome in the case—the recovery of side, plaintiff’s counsel must also make effort toward mapping out an effective $985,000—but for the negligence of his a tough judgment call on the same strategy to prove or defeat the case- former attorney, Smith was alleging a issues at the initial client intake stage. within-a-case requirement at trial, legal malpractice action that involved including determining the optimal the case-within-a-case doctrine, which Where the potential pitfalls to course of action in structuring the required him to establish that he would causation can be avoided, the case- trial-within-a-trial and analyzing have been successful in the underlying within-a-case doctrine may present the need for expert testimony, matter. Smith failed to do so when several advantages for a plaintiff, as which is frequently, but not always, he had the opportunity to litigate the the rule can pose thorny issues for required on the issue of causation merits of his claims by refiling his the defendant lawyer with regards in legal malpractice lawsuits. complaint after the first dismissal, to his or her task of establishing that and chose not to. As a result, Smith his or her former client would not Author bio failed to establish proximate cause have succeeded in the underlying David J. Oberly is when he did not refile and litigate litigation. For example, the defendant an associate in the the merits of the city case. Thus, lawyer may have made statements Cincinnati office of Smith was unable to put forth a set of advocating for the plaintiff’s position Marshall Dennehey facts which, if true, would establish in the underlying matter. If so, and Warner Coleman Novak’s and Perlmuter’s liability. such evidence were deemed relevant & Goggin. A Accordingly, his legal malpractice and otherwise admissible in the member of the firm’s claim failed as a matter of law. legal malpractice action, the lawyer Professional Liability Department, will be at a disadvantage in the legal he focuses his practice on the defense Causation is an essential element in malpractice action, and may come of employment law, civil rights any legal malpractice lawsuit. Without across as disingenuous in the eyes of a and commercial litigation question, the case-within-a-case jury in attempting to argue the opposite matters. He may be reached requirement favors the defense in legal position from what was taken in the at [email protected]. malpractice litigation. It is a stringent, original lawsuit. In addition, if the www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 21 Practice Tips Improvidently accepted:

An overlooked appellate tool By Mike Hendershot

The Ohio Supreme Court, like most the earlier precedent as controlling. certified conflicts may be dismissed courts of discretionary review, does Much like instances where a court as improvidently accepted. In another not decide all cases it agrees to hear declines to answer a certified question improv-ed case, four Justices did not on the merits. In the Ohio Supreme of state law,7 the silent majority may view the dismissal as problematic, but Court, the Justices call that outcome have been of the view that existing three Justices dissented and opined dismissing as improvidently accepted precedent already provided an answer.8 that the conflict “compel[led]” the (or allowed). In shorthand at argument, Court to exercise its “constitutional the Justices may ask whether the case A dissent from a merits case can also duty” to review the case.18 should be “improv-ed.” The chance explain why some Justices would have to win a case as appellee after the dismissed the case.9 An example is The divide in that case breaks along Court has already agreed to review it Justice Kennedy’s opinion in Infinite seniority. The dissenters all joined the is an often-overlooked opportunity. Security Solutions.10 That dissent Court in or after December 2012; This article draws lessons about the would have dismissed the certified the Justices favoring dismissal have improv tool—another chance to win conflict (disagreement between two all been on the Court more than a a case—by looking at recent cases appellate districts) on the belief that decade. A third possible argument where the Court or some Justices the supposedly conflicting cases did not invokes a broad question about both discussed that kind of dismissal. “squarely present” a conflict because the Court’s jurisdiction as well as the record did not “definitely” show improvs. Two Justices have expressed The Supreme Court accepts roughly the critical fact that would have put the view that the Court should exercise four to seven percent of discretionary the appellate opinions at odds.11 “caution” when “announcing a new appeals per year.1 That translates rule” in a case decided “on summary to about 55-100 cases.2 Of those Arguments for improv judgment.”19 In an age where trials cases, four to seven percent might One is perhaps the most familiar: The are rare, that view could dramatically be dismissed through improv in a Ohio Supreme Court “sits to settle increase the odds of improv dismissals given year. If you are an appellee the law, not to settle cases.”12 That (and the kinds of cases the Court who is on the losing end of the odds principle may be expressed in various accepts at the jurisdiction stage). for a grant of jurisdiction, you have ways. A case might be described about the same odds of winning by as being “highly fact specific,”13 Opposing an attempt convincing the Court to improv the seeking “mere error correction,”14 to improv granted case. You can increase those or embracing a rule for a “single The recent cases offer some lessons odds by paying attention to what case.”15 But all those formulations here as well. First, amici matter. They the Court is saying about the cases get at the core problem that some will not be dispositive, but they may it decides are not worth deciding. appeals do not “qualify as a ‘case[ ] help fend off a motion to improv.20 of public or great general interest.’”16 Second, an argument that the case That is not always easy to do; improvs That is the terra firma of improvs. gives the Court a chance to “lead” on are sometimes silent,3 even when a new issue, rather than wait for full several dissenting Justices would More off the beaten path are several percolation in the intermediate courts, have decided the case on the merits.4 arguments for improv that are less might fend off a suggestion to improv.21 Other times, though, a dissenting firmly settled. On each of these Third, some Justices object to improvs voice sheds light on the improv.5 arguments, the Court appears divided. where the appellate court has “failed to For example, Justice Pfeifer’s three- One argument is that an improv follow the clear guidance” of the Ohio Justice dissent in Wilkins v. Sha’ste does not speak to the validity of the Supreme Court.22 Fourth, resisting begins by explaining that the Court underlying judgment. In one improv- an improv might mean redoubling the had previously spoken on the issue, ed case, three Justices dissented and arguments that secured jurisdiction but the dissent disagreed with the worried that the improv “implicitly” in the first place. The Court generally conclusion that the prior statement endorsed the lower court’s view, wants to avoid leaving unanswered resolved the newer case.6 The other but four Justices did not share that “important questions” that the lower (silent) Justices may well have viewed concern.17 Another is that even courts regularly face.23 Finally, be

22 Ohio Lawyer May/June 2016 www.ohiobar.org prepared for the question at oral The dismissal as improvidently Dep’t of Ins., 144 Ohio St. 3d 56, 2015-Ohio- argument. The Justices may ask openly allowed is a long shot, but it succeeds 2926 (Kennedy, French, and O’Neill, JJ., whether a case should be improv-ed, several times a year. It is a tool that all dissenting); Kuhn v. Kuhn, 143 Ohio St. 3d or may ask indirectly whether a case appellate lawyers should know well, 457, 2015-Ohio-2806 (French, J., dissenting); has broad significance or is more akin and a tool they should consider at each A.S. v. Watts, 142 Ohio St. 3d 527, 2015-Ohio- to error correction. The oral argument step of Supreme Court litigation. 1518 (Kennedy and French, JJ., dissenting); in one of the recent dismissals featured Jodka v. City of Cleveland, 143 Ohio St. 3d no less than four exchanges with Author bio 1201, 2015-Ohio-861 (Pfeifer and O’Neill, three different Justices about “error Mike Hendershot JJ., dissenting); State v. Laber, 140 Ohio St. correction” and other suggestions is the Chief Deputy 3d 65, 2014-Ohio-3154 (O’Connor, C.J., that an improv was on the table.24 Solicitor for Ohio and Lanzinger and French, JJ., dissenting). Attorney General 5 Kuhn, 2015-Ohio-2806 (Kennedy, J., When are arguments Mike DeWine. He dissenting); State v. Clemons, 142 Ohio St. to improv made? is an OSBA certified 3d 423, 2015-Ohio-1491 ¶ 2 (French and Any time after the Court accepts specialist in appellate O’Neill, JJ., dissenting); Wilkins v. Sha’ste, jurisdiction. The argument might be law and has argued 16 cases before 2015-Ohio-477 (Pfeifer, French, and O’Neill, pressed in a brief on the merits,25 at oral the Ohio Supreme Court. JJ., dissenting); Fondessy v. Simon, 142 argument26 or possibly in a stand-alone Ohio St. 3d 147, 2014-Ohio-4638 (Kennedy, motion to dismiss.27 Or the arguments Endnotes French, and O’Neill, JJ., dissenting); State v. might be advanced at each step. The 1 See Supreme Court of Ohio: Annual Report Belew, 140 Ohio St. 3d 221, 2014-Ohio-2964 substance of the argument might also 2013 at 20 (available at www.sconet.state.oh.us/ (O’Connor, C.J., and Lanzinger and O’Neill, affect its timing. Sometimes the reason Publications/annual_reports/annualreport2013. JJ., dissenting); see also State v. Leak, ___ Ohio to improv is a twist on a theme offered pdf) (last visited April 14, 2016). St. 3d ___, 2016-Ohio-154 ¶ 36 (O’Connor, in the brief opposing jurisdiction, but 2 Id. C.J., and Pfeifer and O’Donnell, JJ., dissenting in other cases a post-grant development 3 See, e.g., State ex rel. DeWine v. GMAC without opinion); Stewart v. Lockland Sch. may spark the argument in favor Mtge., L.L.C., 2016-Ohio-985 ¶ 1 Dist. Bd. of Educ., 144 Ohio St. 3d 292, of improv. An example is Jodka v. (certified question of state law) (unanimous); 2015-Ohio-3839 (O’Donnell, J., dissenting City of Cleveland, a certified-conflict State v. Rosario, ___ Ohio St. 3d ___, without opinion); In re J.T., 143 Ohio St. 3d case.28 After the case was accepted, 2015-Ohio-4536 (unanimous); SRMOF 516, 2015-Ohio-3654 (Pfeifer, J., dissenting the Court reversed the conflict case, 2009-1 Trust v. Lewis, 142 Ohio St. 3d without opinion); State v. Straley, 139 Ohio thereby erasing the conflict.29 The 369, 2015-Ohio-1494 (unanimous). St. 3d 339, 2014-Ohio-2139 (O’Donnell, J., result: The certified-conflict appeal 4 State v. Shaffer, 144 Ohio St. 3d 428, 2016- dissenting without opinion); Sauer v. Crews, was dismissed. That is a rather obvious Ohio-52 (Kennedy, J., dissenting); State v. 140 Ohio St. 3d 314, 2014-Ohio-3655 basis for an improv, but the same result Williams, 144 Ohio St. 3d 247, 2015-Ohio- (Pfeifer, J., dissenting without opinion). might well follow from a change in 4537 (Kennedy, J., dissenting); Ohio Bureau 6 141 Ohio St. 3d 548, 2015-Ohio-477 ¶ 2 federal law, a change in statute or of Workers’ Comp. v. McKinley, 143 Ohio (Pfeiffer, French, and O’Neill, JJ., dissenting). regulation, or a change of precedent St. 3d 370, 2015-Ohio-2927 (Kennedy and in one of the appellate courts.30 French, JJ., dissenting); Akron v. Ohio St. continued on page 24 www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 23 Counsel Comments Ohio Ethics Guide on File Retention By Desiree Blankenship

Client files. The phrase brings up a Guide on File Retention in March. to you as an insert. This insert can myriad of questions and has long left This non-binding guidance, authored easily be removed to serve as a desk practicing lawyers wondering just what by D. Allan Asbury, Senior Counsel reference to guide you through client to do and when. We addressed a few to the Board of Professional Conduct, file retention moving forward. of these questions in the last edition and Heidi Wagner Dorn, Counsel to of Counsel Comments. Specifically, the Board of Professional Conduct, Author bio we touched on the makeup of client provides an excellent reference for J. Desiree Blankenship serves the files and what the client is entitled attorneys as they face the issues that Ohio State Bar Association as General to at the end of representation. I surround client files and the retention Counsel and Assistant Executive received several follow-up questions of such. Additionally, the Ethics Guide Director of Legal and Business Affairs. and comments from a number of delves into the topic of digital media She provides counsel to the Executive readers and those blossomed into some and cloud storage, providing a number Director and her staff, as well as interesting (and fun!) conversations. of helpful tips to support attorneys as to the OSBA Board of Governors. they transition into digital storage. Prior to joining the OSBA team, In that last article, we also referenced Ms. Blankenship served the Ohio guidance that was to be forthcoming Rather than summarize the Board’s Department of Commerce as chief from the Board of Professional guidance, we opted to use this legal counsel and as assistant director. Conduct. Our timing proved spot-on, edition of Counsel Comments to Blankenship earned her law degree as the Board released its Ohio Ethics provide a full copy of the publication from Capital University Law School. continued from page 23 C.J., and Lanzinger, J., dissenting) (arguing 24 Oral Argument in No. 2014-727 at 1:15, that majority “redefine[s]” statutory term 12:20, 26:00, 27:10 (March 25, 2015) (available 7 See, e.g., Luckey v. Butler Cnty., 112 to reverse this case); see also Hayward v. at www.ohiochannel.org/MediaLibrary/ Media. Ohio St. 3d 1467, 2007-Ohio-388. Summa Health Sys./Akron City Hosp., aspx?fileId=146160) (last visited April 14, 2016). 8 Western Helicopter Servs. v. Rogerson Aircraft 139 Ohio St. 3d 238, 2014-Ohio-1913 ¶ 25 E.g., Appellee Br. in No. 2013-1591 at Corp., 811 P. 2d 627, 630-31, 635 (Or. 1991). 34 (Pfeifer, J., dissenting) (opining that the 4 (April 29, 2014) (available at http://goo. 9 State v. Shabazz, ___ Ohio St. 3d ___, 2016- appeal was about “this case only” and did gl/eUSJLv) (last visited April 14, 2016). Ohio-1055 ¶ 2 (O’Donnell and Kennedy, JJ., not involve anyone’s “personal liberty”). 26 E.g., Oral argument in No. 2014-738 at dissenting) (opining that case raised “significant 16 State Auto. Ins. Co. v. Pasquale, 113 25:45, 26:25 (June 9, 2015) (available at www. issues” about the “proper role of an appellate Ohio St. 3d 11, 2007-Ohio-970 ¶ 46 ohiochannel.org/MediaLibrary/ Media. court”); Infinite Sec. Solutions, LLC v. Karam (2007) (Pfeifer, J., dissenting). aspx?fileId=146664) (last visited April 14, 2016). Prop., II, Ltd, 143 Ohio St. 3d 346, 2015-Ohio- 17 Wilkins, 2015-Ohio-477 ¶ 5 (Pfeiffer, 27 E.g., State ex rel. Walgate v. Kasich, 140 1101 ¶ 35 (Kennedy J., dissenting); Daniel v. French, and O’Neill, JJ., dissenting). Ohio St. 3d 1412, 2014-Ohio-3785 (granting Daniel, 139 Ohio St. 3d 275, 2014-Ohio-1161 18 Fondessy, 2014-Ohio-4638 (Kennedy, French, motion in part); Mot. in No. 2012- 665 (Jan. (Lanzinger, J., and O’Connor, C.J., dissenting); and O’Neill, JJ., dissenting) (noting that all 12 14, 2013) (available at http://goo.gl/7D1iBQ ) State v. McGlothan, 138 Ohio St. 3d 146, appellate districts had addressed the question). (last visited April 14, 2016) (granted, see 2014-Ohio-85 ¶ 23 (Lanzinger, J., dissenting). 19 Friebel v. Visiting Nurse Ass’n of Mid- 134 Ohio St. 3d 1481, 2013-Ohio-902). 10 2015-Ohio-1101. Ohio, 142 Ohio St. 3d 425, 2014-Ohio-4531 28 143 Ohio St. 3d 1201, 2015-Ohio-861. 11 Id. ¶ 35 (Kennedy, J., dissenting). ¶ 35 (Pfeifer and O’Neill, JJ., dissenting). 29 Walker v. Toledo, 143 Ohio St. 12 Baughman v. State Farm Mut. Auto. Ins. Co., 20 Belew, 2014-Ohio-2964 ¶ 2 (O’Connor, 3d 420, 2014-Ohio-5461. 88 Ohio St. 3d 480, 492, 2000-Ohio-397 (2000) C.J., and Lanzinger, J., dissenting) 30 Pasquale, 2007-Ohio-970 ¶ 46 (Pfeifer, J., (Cook and Lundberg Stratton, JJ., concurring). 21 Belew, 2014-Ohio-2964 ¶ 35 dissenting) (“[T]his case and the issue before 13 Lee v. Cardington, 142 Ohio St. 3d (O’Neill, J., dissenting). us would be moot under current law.”). 488, 2014-Ohio-5458 ¶ 33 (Pfeifer 22 Clemons, 2015-Ohio-1491 ¶ 2 (French and O’Neill, JJ., dissenting). and O’Neill, JJ., dissenting). 14 McGlothan, 2014-Ohio-85 ¶ 23 23 Kuhn, 2015-Ohio-2806 (Lanzinger, J., dissenting). (Kennedy, J., dissenting) (French, 15 Daniel, 2014-Ohio-1161 ¶ 25 (O’Connor, J., dissenting without opinion).

24 Ohio Lawyer May/June 2016 www.ohiobar.org Beyond the Courtroom Lawyer by day, wish-granter by night

By Josia Klein

For children who have been diagnosed visits. All children dream of meeting with a life-threatening illness, daily their heroes, and meeting a favorite life can be full of pain and uncertainty. sports star, entertainment figure or Thankfully, organizations like A government leader can be sure to boost Joseph Special Wish Foundation (ASW) morale for someone battling an. Ritzler, are dedicated to diverting their co-founder of attention from the world of hospitals Large wishes entail visits to special Cleveland's and sickness. The Cleveland chapter locations, such as Disney World A Special of ASW is home to many volunteers or Hawaii. For these trips, the Wish with giving spirits, large hearts and foundation covers the complete costs Foundation. persistent enthusiasm. Among those of travel, lodging, meals and spending. staff members is Cleveland attorney Ritzler’s company has a direct effect and OSBA member Joseph Ritzler. on these special journeys: in 2015, it Being involved with ASW Cleveland is sponsored a trip to Disney World for a particularly rewarding experience for Ritzler has been involved with the a young girl living with epilepsy. its volunteers. One of Ritzler’s favorite Cleveland chapter of ASW since its experiences was when a local group of inception. When his close friend Jason But the company’s involvement Disney Princesses visited a Cleveland Beudert had a personal experience doesn’t end there: for Christmas hospital and he saw the pure joy on overcoming a life-threatening last year, the business was one of the faces of the children. Ritzler says condition, the pair saw the void for many donors that funded Christmas that his work with A Special Wish has a Cleveland-based wish granting presents for wish families. Ritzler taught him to appreciate his family and organization. With the help of many said it culminated with an amazing his two fantastic, healthy children. dedicated individuals, they founded experience for wish children and their A Special Wish Cleveland as a way to siblings: “The corporate community “Joe is a great friend, and without him use their connections to give back. was fantastic, and there’s a great there is no Special Wish Cleveland civic spirit within the city.” chapter,” says Jason Beudert. “In a As a full-time attorney and a founding day and age where people can be very member of Ritzler, Coughlin & For Ritzler, continuing to work with A selfish, to find a business owner and Paglia, Ritzler dedicates many of his Special Wish has been an easy decision family man who is so dedicated to A evenings and weekends to working because he was hooked after his first Special Wish’s success is incredible.” with ASW. Beudert credits Ritzler participation with a wish family. He for the organization’s success, saying is passionate about the mission of Ritzler takes satisfaction in being a that “Joe’s support on the front end, ASW Cleveland because of his unique leader in both the legal profession and whether it be financial, operational, bonds with the children and families the Cleveland community and intends or motivational” led them to be where he serves. “Illness is difficult on the to be involved with A Special Wish they are today, as an organization whole family,” notes Ritzler, “so we Cleveland for many years to come. As with more than 50 wish kids. grant wishes every day of the week.” an organization that has a lasting effect A Special Wish stays in touch with on children, families and volunteers There are many different types of families year-round, giving parents alike, A Special Wish Cleveland’s wishes that A Special Wish Cleveland special date nights, planning birthday mission is an important one. can grant to qualifying children parties at Dave and Buster’s or Chuck and adolescents, and with its focus E. Cheese or simply delivering cookies Author bio on hope for full recoveries, patients to the hospital. A life-threatening Josia Klein is an intern in the need not be considered terminally illness is not a death sentence, and publications department of the ill to receive a wish. In the past, Ritzler states that a goal of A Special Ohio State Bar Association. She is a the organization has provided gifts Wish is “to be at our wish kids’ junior at The Ohio State University, such as laptops or shopping sprees, college graduations and weddings.” where she studies English. and they can also arrange special www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 25 Member News

Akron In Memoriam Karen Adinolfi, Roetzel & Andress, 2016 was elected to Chair of the Board of Reuven J. Katz 91 Joseph G. Nauman 88 Trustees of the Akron Blind Center. Cincinnati Feb. 13, 2016 Kettering March 1, 2016

Cleveland Michael Distelhorst 67 Michael Baker Lange 80 Powell Feb. 17, 2016 Tiffin March 19, 2016 Patricia A. Shlonsky, Ulmer & Berne LLP, was named a 2016 Client Choice award recipient.

Edward Chyun, Littler, was selected to participate in the 2016 Leadership Council on Legal Diversity (LCLD) fellows program. Columbus

D. Brent Mulgrew, Ohio State Medical Association, received Columbus CEO's 2016 Healthcare Lifetime Achievement Award. I opened a phishing Alex Shumate, Squire Patton Boggs, Protect Your was named Chairman of The Ohio email that cost us State University Board of Trustees. $20,000. Business the Right Way. Findlay When it comes to your IT, Today. make sure you are covered. Elizabeth A. Behrendt, Oxley, Malone, Hollister, Warren & Spaeth, received the 12th Annual Jackson E. Betts Professionalism Award. SERVING 30+ LAW FIRMS

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26 Ohio Lawyer May/June 2016 www.ohiobar.org Inside OSBA

CLEVELAND AUGUST , 

A collective thank you to all who attended and participated in the 2016 All-Ohio Legal Forum and annual meeting. Mark your calendars to save the date for next year: Aug. 23-25, 2017, at the Cleveland Convention Center.

Moot Court seeking some of the preeminent practicing the Leadership Academy, I have competition judges lawyers and leadership experts in come to know bright young lawyers The Ohio Center for Law-Related Ohio. Among this year’s class members in many areas of practice. It has Education (OCLRE) is seeking are Pamela Leist of Cincinnati and been an amazing way to expand my attorneys to judge its high school Moot Jeremy Young of Columbus. professional network. The quality of Court State Competition on Friday, programming was also impressive. The May 20. As 2016 marks the 50th Pamela is an attorney with the firm of OSBA ensures that class members anniversary of the Miranda v. Arizona Ennis Britton Co., LPA and represents receive instruction not only on how to decision, judges will evaluate students’ public school districts across the state. be a better lawyer, but also on how to oral arguments about what Miranda develop and capitalize on your personal means today, and how the decision “The Leadership Academy has provided brand in the legal marketplace. translates to juveniles. Volunteers me with invaluable tools to help me I would highly recommend the are also needed to evaluate students’ grow professionally and further develop Leadership Academy to anyone.” written briefs. Please complete my practice,” Pamela said. “I have the volunteer application found at gained lifelong connections in the The Leadership Academy class of 2016 oclre.org/volunteer-opportunities, profession that I will leverage for years will graduate May 20. If you are a or contact Caitlyn Smith at (614) to come. I am thrilled to be a part of practicing attorney of five to 10 years 485-3507 or [email protected]. the program, and encourage colleagues and you’re interested in developing the to take advantage of the opportunity.” leadership skills that will take your OSBA Leadership Academy legal career to the next level, contact graduates class of 2016 Jeremy is a business and property the OSBA to learn about how you Each year the OSBA selects a class of litigator in the Columbus office can apply to join the class of 2017. 24 up-and-coming lawyers from across of Roetzel&Andress. the state to participate in the OSBA Leadership Academy. Participants “The Leadership Academy has receive instruction in areas of personal expanded my network, as well as my and professional development from horizons,” Jeremy said. “Through www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 27 Foundation News Recognizing New Fellows invest in impact law works for them. While new Fellows excellence The Ohio State Bar Foundation will will have the opportunity to volunteer for welcome a dedicated group of new a number of law-related projects, their Do you know an outstanding attorney Fellows at the 2016 Fellows Induction donations will fuel the Foundation’s grant or organization doing great work? Ceremony on June 14 at the Thomas making efforts. Because of the generosity J. Moyer Ohio Judicial Center. of Fellows, the Foundation has awarded Help us tell the world about them. President Thomas P. Moushey and more than $10.5 million in grants to The Ohio State Bar Foundation Chief Justice Maureen O’Connor programs and projects throughout Ohio. honors those who see it as their duty will preside over the program and to build a better justice system. officially welcome new members. To learn more about the Ohio State Bar Foundation, visit www.osbf.net or Awards nominations for 2016 are These Fellows will join the ranks of 1,033 contact Kristin Eckert at (614)487-4474 due June 1. For awards criteria civic-minded attorneys from across the or [email protected]. and a nomination form, visit state to promote the pursuit of justice and www.osbf.net/what-we-do/awards or to help the public understand how the contact Kristin Eckert at [email protected] or (614)487-4474.

Joyce Anagnos James C. Aranda Kacey S. Chappelear Susan A. Choe Michael L. Cioffi George L. Davis III Toledo Lancaster Columbus Columbus Cincinnati Portsmouth

J. Michael Debbeler Eleni A. Drakatos Lauren K. Epperley Jonathan E. Faulkner Gary F. Franke Bradley N. Frick Cincinnati Columbus Dayton Dayton Cincinnati Columbus

John C. Greiner Jeffry D. Harris Genevieve M. Hoffman Sunny L. Horacek Catherine A. Jopling Charles A. Kirby Cincinnati Gambier Columbus Dublin Columbus Portsmouth

Robert A. Klingler Amanda M. Leffler Clement H. Luken, Jr. J. Kevin Lundholm Mathias D. Manner Mag. Arvin S. Miller III Cincinnati Akron Cincinnati New Philadelphia Columbus Dayton

28 Ohio Lawyer May/June 2016 www.ohiobar.org Katheryn L. Munger Kevin P. Murphy Drew Odum Joseph C. Oehlers Tina T. Pecuszok Bradley D. Reed Delaware Warren Cleveland Dayton Toledo Cleveland

Brian M. Roberts Meghan A. Roth Marybeth W. Rutledge Alan B. Schaeffer Thomas R. Schuck Sen. William J. Seitz Dayton Toledo Kettering Dayton Cincinnati Cincinnati

Jeffrey S. Senney Hon. James F. Stevenson Matthew D. Stokely Frederick W. Stratmann Dean Andrew L. Strauss Courtney J. Trimacco Dayton Sidney Dayton Columbus Dayton Cleveland

Robert J. Wagoner Christopher A. Watkins Vicki R.A. Werneke Dennis V. Yacobozzi II Mechelle Zarou Columbus Lebanon Cleveland Columbus Toledo

HONOR. REMEMBER. CELEBRATE. Honor the exceptional, celebrate an occasion and recognize the significant people in your life with a charitable gift to OSBF. Tribute gifts are an easy way for you to support OSBF grantmaking initiatives and to ensure special colleagues, friends and family receive the statewide recognition they deserve. To dedicate your gift call 614/487/4477 or visit www.osbf.net and click “Donate Now”. IN HONOR OF IN MEMORY OF (Gifts received from Jan. 15, 2016, to March 31, 2016) (Gifts received from Jan. 15, 2016, to March 31, 2016) Beth Ann Gillespie Prof. Michael Distelhorst Elizabeth Charlotte “Betty” Moushey Thomas D. Lammers Lee E. Belardo Lee E. Belardo & Kimberly S. Lammers E. Terry Warren Neil Light Judge William Skow Mechelle Zarou Mechelle Zarou

CONNECT Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation WITH OSBF LinkedIn: linkedin.com/company/ohio-state-bar-foundation www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 29 Books & Bytes Book review

of interwoven events and people that “You should put it in the EOB too,” seems less coincidence than bound Nixon said. Haldeman agreed. by a common thread of fate. The “It should be in the EOB.” book focuses on a trio of issues— Watergate, reproductive rights and “I wouldn’t put it in other places, the cessation of the Vietnam War. like Camp David, because I make my own notes,” Nixon said. But Robenalt relies heavily on transcripts the EOB, they both agreed, was of numerous court proceedings and the different. “It would save me having Richard Nixon White House use of to recall some things,” he said. secret tape recordings, which give the reader an invisible presence in the taunt This same concept of knowing January 1973: Watergate, Roe v. chronology. The verbatim transcripts surveillance also caused Nixon to Wade, Vietnam, and the Month help propel the story at a frantic pace, be skeptical of some surreptitious that Changed America Forever, as Robenalt shifts scenes between recordings. When National Security by James Robenalt. 416 pages. the Supreme Court, Capitol Hill, Advisor Henry Kissinger gave the Chicago, Illinois: Chicago Review the White House, Camp David, the president an update on the South Press. 2015. Illus. $27.95. District of Columbia courtroom of the Vietnamese positions of cease-fire Watergate burglars, the Vietnam War talks divulged, in part, from CIA Sometimes, amidst the ruckus of peace talks in Paris, Southeast Asia and wiretaps, Nixon was leery of the American history, the stars align other venues, often in the same day. The accuracy of the information. themselves. Founding Fathers Thomas changing national and international Jefferson and John Adams both settings across simultaneous time Rarely does Robenalt lapse into died on the same day—July 4, 1826, zones put a global perspective on a editorial comments, which seem out exactly 50 years after they celebrated travelogue otherwise focused largely on of place in this unbiased and straight Independence Day. In Jay Winik’s the downtown D.C. political scene. forward history text. Robenalt recounts masterful book, April 1865, the month a conversation between Nixon and marked the end of the Civil War Nixon’s rationale for installation of White House Special Counsel Charles and the assassination of Abraham the taping system was simple: “We Colson involving the harsh criticism Lincoln. In Cleveland attorney James want it someday, if someone wants to by the CBS television network of Robenalt’s latest history book, as write a history.” (That “someone” now the administration’s handling of the the title suggests, the pivotal time is obviously includes Robenalt.) During a Vietnam War: “In a call on December January 1973, a period when “A war White House meeting between Nixon 27, 1972, the two spoke about the need would end, a new political movement and his chief of staff, H.R. Haldeman, for revenge against CBS, which had would get its start, a burglars’ trial Robenalt describes the scene: been scathing in its reporting about the would undo a presidency, the Supreme Christmas bombings. ‘Whatever we Court would establish a woman’s Then the two men said something that, can do to them, they deserve,’ Colson right to an abortion, and two ex- in hindsight, was fairly amazing. said. ‘That’s right,’ Nixon replied. ‘One presidents would drop dead.” (Putting Neither one seemed to know or thing we are going to do is go all out the month in additional perspective, remember that Nixon’s office in the for cable. I think cable hurts all the “Superstition” by Stevie Wonder and Executive Office Building had been networks. That’ll really stir them up.’” Carly Simon’s “You’re So Vain” topped bugged for as long as the Oval Office. Robenalt muses, with the benefit of the Billboard music charts, while The Nor did they know that Camp David hindsight and the omnipresent use of a Poseidon Adventure reigned in the had a recording system installed. TV remote control, “He had no idea.” movie theatres and Jonathan Livingston Seagull led the best-seller fiction list.) “It covers here [the Oval The historical significance of the deaths Office],” Haldeman said, “and it of Harry Truman and Lyndon Johnson This nutshell synopsis by Robenalt, covers the cabinet room, which within a month of each other did not a partner in the Cleveland law office adjoined the Oval Office.” go unnoticed, with Colson noting to of Thompson Hine, involves a series Nixon, just reelected to a second term,

30 Ohio Lawyer May/June 2016 www.ohiobar.org that no former president was still the role of Texas in the monumental before the U.S. Supreme Court.” living, an event that had not occurred events of January 1973. The plaintiff’s since Herbert Hoover was president lawyer, Sarah Weddington, was a Robenalt has a unique ability to relate after the death of Calvin Coolidge. recent law school graduate of the history in near breath-taking prose. University of Texas. Robenalt writes, The lively dialogue and the author’s Robenalt’s treatment of the Supreme “At twenty-six, Weddington’s total interviews with several of the era’s still Court decision in Roe v. Wade and the experience in a courtroom consisted living participants, makes a retelling case’s linkage with Texas politics has of the two-hour argument before a of contemporary history an enjoyable, so many interconnecting characters, three-judge panel in the proceedings if not a bewildering read. dates and coincidences that Robenalt below. Few lawyers with such meager could instead have focused the book on résumés find themselves arguing By Bradley S. Le Boeuf, Akron Book review

mentors professionals to help advance out as especially useful to attorneys their careers and works with leaders and other professionals. of various stripes in law, government, corporations and higher education. A The book features other journalist with a master’s degree and enthusiastic reviews. Here’s one a J.D., Jones has had a distinguished by Professor Tom Hodson: career at the SEC, in Washington law firms and at a Fortune 500 company. “Bev is the ideal career coach—full of ideas and inspiration. She encourages The book is packed with well-organized and educates people—sometimes with practical tips that are thought a gentle nudge and sometimes with provoking and attitude changing. Jones a firm hand. But either way, she gets writes with crystal clarity, efficiency people to where they want to go. She Think Like an Entrepreneur, and charm. Illustrative and relatable motivates them to be the best they can Act Like a CEO, by Beverly E. stories support the tips in each of the be at whatever career they choose. She Jones. 224 pages. Pub. 2016, The Career Press, Inc., $15.99. The book is packed with well-organized

Looking for practical and proven practical tips that are thought provoking career advice? Are you a fledgling attorney, or a seasoned professional and attitude changing. Jones writes with looking or perhaps needing to reinvent yourself, or a lawyer of any crystal clarity, efficiency and charm. age feeling unfulfilled or anxious in your job, or a leader seeking advice 50 short and targeted chapters. She also guides people seeking second and on how to inspire others? Well, have presents common sense advice on topics third careers in life. She works under I got a book for you. All of you. I ranging from self-discipline to attitudes the philosophy that it is never too late.” recommend Think Like an Entrepreneur, to managing the boss to harnessing Act Like a CEO, by Beverly E. Jones. social media for success. The book Well said. Let me add only this: is an easy read that can be revisited It is never too soon to focus on The subtitle sums it up well: whenever the reader needs a reminder enhancing your own career and “50 Indispensable Tips to Help about how to think and behave for personal satisfaction. This book You Stay Afloat, Bounce Back, the best chances of professional will help with that journey. and Get Ahead at Work.” success and personal happiness. By Sandra J. Anderson, Columbus The author is an executive coach based Among the plethora of self-help in Washington D.C. She leads retreats, books available, this one stands www.ohiobar.org www.ohiobar.org May/June 2016 Ohio Lawyer 31 CLE Calendar

To register or for more information, call (800) 232-7124 or (614) 487-8585, or visit our website at yourosba.ohiobar.org to view the full calendar and discover more courses.

Corporate/Business LGBT Diversity and Inclusion Hold the Applause: Handling Clients Liquor and Gaming Video Replay Conference and Ethical Considerations May 16 June 15 July 7

Business Law Conference Labor & Employment Other May 23 Advanced Employment Law Update Government Practice Institute and EEOC Initiatives May 13 Ticket Sales: Marketing and May 8 Generating Revenue Young Lawyer Connect June 8 Law Office Management June 8 Filling the Seats: Setting Up Your Criminal Office and Billing/Fees Real Property Death Penalty Defense: May 6 Titles to Real Estate Trials and Appeals June 7 May 5 & 6 Best in Law Firm Technology June 20 Workers Compensation Elder Law Follow the Yellow Brick Road of The 2016 Medicare \ Medicaid Forum Litigation Workers' Comp 102: June 29 Civil Litigation and Trial Skills (V) The Tin Man and The Scarecrow May 11 June 15 Estate Planning, Trust & Probate Law Trial Evidence for the Ohio Basics of Estate Administration Practitioner (V) June 22 May 12

27th Annual Conference on Wealth E-Discovery: From 50,000 Feet to Transfer Ground Level June 24 May 20

Family Law Taking and Defending Effective Ohio Family Law Institute Depositions June 9 & 10 June 16 & 28

32 Ohio Lawyer May/June 2016 www.ohiobar.org Engage with the OSBA on  ,  and . Connect with the public and lawyers in .

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www.ohiobar.org Dont get buried under the cost of case law. OSBA members enjoy free access to Casemaker, a $900 case law research tool. Over 10,000 OSBA members use Casemaker each month with more than 90,000 searches. Get out from under the cost of case law research, and discover what an OSBA membership can do for you.