S PRING 2011

KINDERGARTEN CREDOS OF PROFESSIONALISM By Lloyd E. Fisher Jr...... Page 7

Chronicles of An Old Building By The Honorable David E. Cain ...... Page 8

The unexpected letter By Rosemary Ebner Pomeroy ...... Page 12

Law Schools: Why Faculties Fight Change By Jason M. Dolin ...... Page 14

Better Lawyer ...... Page 21

TRIAL BY JURY By Frank A. Ray ...... Page 33

Look Before You Log! By Hasrat Rahamatalli ...... Page 38

Conversations for Solutions By Sandra Mendel Furman ...... Page 40

Mediation Goes Hollywood By Jay M. Patterson ...... Page 41

ADOLESCENT PRESCRIPTION OPIATE ABUSE 2011 By Brad Lander ...... Page 42

*A SUPPLEMENT TO THE DAILY REPORTER* *CONTENT PROVIDED BY THE COLUMBUS BAR ASSOCIATION* Combat Stress with Some Simple Nutritional Improvements By Stephanie R. Hanna ...... Page 26 Remedies ADOLESCENT PRESCRIPTION OPIATE ABUSE 2011 Year One in the Life of a Solo Practitioner By Brad Lander, PhD, LICDC ...... Page 42 By Tonya R. Coles ...... Page 27 COLUMBUS BAR ASSOCIATION OFFICERS Reflections Choosing Personal over Social Networking President: Hon. Stephen L. McIntosh President-Elect: David S. Bloomfield, Jr. By Matt Austin ...... Page 28 Happiness is Healthiness S PRING 2011 Secretary/Treasurer: Bradley B. Wrightsel By Robert Bailor, PC, CDCA ...... Page 44 Immediate Past President: Elizabeth J. Watters SPRINGTIME RESOLUTIONS FOR NEW LAWYERS By Janica A. Pierce Tucker ...... Page 30 REMEMBERING DOTTIE KETCHAM BOARD OF GOVERNORS By Stephanie A. Connor ...... Page 45 President’s Page Jennifer A. Adair Legal Writing Tip of the Month: Kenneth R. Cookson A MESSAGE FROM THE PRESIDENT Considering Tone as a Tool for Good Legal Writing Aaron L. Granger By The Honorable Stephen L. McIntosh ...... Page 4 By Jameel S. Turner ...... Page 31 Jack A. Guttenberg Sandra R. McIntosh To Be Early Is To Be On Time Jay E. Michael Corner Office Mark C. Petrucci By Mark G. Kafantaris ...... Page 32 Rosemary Ebner Pomeroy 20/20 Vision Keith W. Schneider By Jill Snitcher McQuain ...... Page 5 Summing Up Anthony M. Sharett Gregory M. Travalio Menners Matters TRIAL BY JURY How Did It Start And Where Will It End? OSBA District Representative: KINDERGARTEN CREDOS OF PROFESSIONALISM By Frank A. Ray ...... Page 33 David C. Patterson By Lloyd E. Fisher Jr...... Page 7 Qui Tam ABA Delegate: Sally W. Bloomfield Court Accounts Executive Director: Jill Snitcher McQuain COMPANIES BEWARE OF THE FEDERAL Communications Director: Kathy Wiesman Chronicles of An Old Building FALSE CLAIMS ACT Editor: David W. Hardymon By The Honorable David E. Cain ...... Page 8 By Whitney C. Gibson ...... Page 36 Managing Editor: Esther Kash Production: The Daily Reporter In Court Premium

Civil Jury Trials IS SCOTT–PONTZER BACK? Columbus Bar Lawyers Quarterly is published by The Franklin County Common Pleas Court Federal Insurance Co. v. Executive Coach Luxury Travel, Daily Reporter for the Columbus Bar Association, 175 By Monica L. Waller ...... Page 10 Inc. South Third Street, Columbus, Ohio 43215, By D. Wesley Newhouse ...... Page 37 614/221.4112, four times a year — Winter, Spring, Missives Summer and Fall. Statements or opinions expressed eString herein are those of the authors and do not necessarily The unexpected letter reflect those of the Columbus Bar Association, its By Rosemary Ebner Pomeroy ...... Page 12 Look Before You Log! officers, board, or staff. TECHNICAL AND PRACTICAL CONSIDERATIONS —— Report Card FOR LOGGING EMAIL CHAINS NOTICE By Hasrat Rahamatalli ...... Page 38 Law Schools: Why Faculties Fight Change Any statements pertaining to the law contained in this By Jason M. Dolin ...... Page 14 magazine are intended solely to provide broad, general ePolicy information, not legal advice. Readers should seek advice from a licensed attorney with regard to any Better Lawyer Concerted Activity and Social Media: specific legal issues. Billing 2k Failing to Hang Together May No Longer Mean Hanging The Effect of the Economic Downturn – Separately The Triumph of Alternative Fee Arrangements over the By Christopher Hogan ...... Page 39 Billable Hour By Jameel S. Turner ...... Page 21 Intercession Conversations for Solutions A Primer on Hot Topics in School Law By Sandra Mendel Furman ...... Page 40 By Edmund F. Brown ...... Page 23 Mediation Goes Hollywood The Basics on Ohio's Advertising and Solicitation Rules A Mediator’s Review of “Fairly Legal” By Rasheeda Khan ...... Page 24 By Jay M. Patterson ...... Page 41

2 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 3 President’s Page Corner Office

sexes and tongues, and colors and conditions, sacrifice unceasingly upon its A Message from the altars."4 Lincoln’s point is that our respect for law should be who we are. Justice Breyer 20/20 Vision wrote about the fact that we have a historical perspective as it relates to the President courts. Since Marbury v. Madison our institutions and the people have accepted By Jill Snitcher McQuain the decisions rendered by judges within our system of justice. Judges must never forget that people are more inclined to Still, the responsibility is upon the judges to adhere to the principles we all recently was invited to be part of a they should retain an attorney. They are respect their decisions when they look beyond the person hold high at our swearing-in ceremonies. panel discussion at the National researching whether there is in fact a legal and see the robe and all the qualities of justice, For citizens to trust the judge that they are Association of Bar Executives component to their experience; and, fairness and impartiality that the robe should represent. before, hopefully that judge does justly, Conference in Atlanta. Our charge assuming there is, they’re looking for loves mercy and walks humbly in carrying I information about their remedies. Unlike was to discuss the role and relevance of out their oath. In doing so confidence in bar associations in the year 2020. In in the medical arena, however, some reach the system is improved. preparing our presentation, I was the conclusion that they can handle their cautioned not to focus on the future of the legal situation themselves, whether in legal profession, but rather to concentrate whole or in part. By The Honorable Stephen L. McIntosh, A number of ancillary issues arise from Franklin County Common Pleas Court on the future of bar associations…as though the two were mutually exclusive. this development: more pro se parties, 1. John Wesley Explanatory notes which increases the demands on our 2. Seriously?! The two are so inextricably Chief Justice Thomas J. Moyer, Speech intertwined, I can’t imagine discussing the judicial system; the increased occurrence Oath of Office January 7, 2005 future of the Columbus Bar Association of the unauthorized practice of law; and 3. Making Our Democracy Work : A he beginning of a new year is the time when many The authority of the judicial branch is rooted in the without focusing on what our local legal the ethical implications of unbundled legal Judge’s View, by Stephen Breyer, Alfred judicial swearing in ceremonies take place. I had the expectations of citizens that we will use our powers with wisdom, community is experiencing. services. A. Knopf, publishing 2010 pleasure to attend many this year from Ohio Supreme fairness and restraint. In doing, so we protect the viability of the Our profession is going through so Set aside the philosophical debate about 2 4. January 27, 1838 Address before the Court Justices to Common Pleas and Appellate judges as system by respecting the confidence extended by the citizens.” many significant game changers, it’s hard the impact this has on driving down the T Young Men’s Lyceum of Springfield, to find a starting point. Not the least of value of legal services, I see this as an well as the Probate Judge. I listen intently as each new judge As judges we must appreciate that our power is not derived by Illinois opportunity for the Columbus Bar to step acknowledged the awesome responsibility that follows with who we are or the decisions we make but is derived by the which is the “self-help phenomena.” up on behalf of the legal profession. There putting on the robe. confidence and respect given us by the people we serve. Individuals today are far more inclined to are so many different ways we can help In most of the ceremonies I attended at least one person and educate themselves online about a variety A friend shared an article with me of a review of a book written improve the consumer’s experience, our many times two quoted from the Bible (Micah 6:8): “He hath of things, including legal matters. For by Justice Stephen Breyer. The book is titled, Making Our members’ practices, and the court’s shewed thee, O man, what is good; and what doth the LORD some, this feels like a threat to the Democracy Work: A Judge’s View. A couple of the points raised in [email protected] administration. require of thee, but to do justly, and to love mercy, and to walk profession. I tend to take a different view, the article that were pulled from the book should be instructive. We are uniquely situated to serve as an humbly with thy God?” In this passage to do justly means to however. Justice Breyer talks about the Bush v. Gore decision. He wrote information portal. We’re already doing render to everyone their due … superiors, equals, inferiors, to be Consider WebMD — a self-help medical that “he and three other justices thought Bush v. Gore “was very website where individuals can answer a this with ColumbusLawyerFinder.com, equal to all, and oppress none, in body, goods or name; … and do wrong [and] so did millions of Americans. For present purposes, series of questions and plug in a variety of and we know that it is a valuable service according to equity. To love mercy means to be kind, merciful and however, what is important is what happened next…The public, symptoms (real or imagined) to help come — to our members and to the public. We, compassionate to all, not using severity towards any. To walk Democrats as well as Republicans, followed the decision. They did up with a diagnosis of sorts. But, the as the bar association, have earned a humbly with thy God means to keep a constant fellowship with so peacefully.” 3 patient’s research doesn’t stop there. They reputation as a credible, reliable source for God, by humble holy faith.1 That many persons being sworn in as His point being, while the rule of law in so many nations can can then be directed to articles and other information. We can help point consumers judge recited this passage or someone on the program quoted it is only be enforced through the might of its military, there are only websites for additional information. This in the right direction. Once educated, we a clear indication that everyone understands the high expectation a few instances when it has been necessary to do so in the United doesn’t prevent the patient from seeing a can direct consumers to our attorneys to placed upon the office of judge. States. This case is a perfect example of people accepting and doctor. To the contrary. The patient still help them achieve their desired results — The standards should be high and it is an awesome following the rule of law even when they totally disagreed with needs to consult a physician, whether it’s whether proactive or reactive. responsibility indeed. Particularly now when the rule of law the decision. Obviously our system of justice is not perfect and to obtain an official medical diagnosis, appears to be challenged by those who would attack judges there are times when politics and personality makes its way into undergo tests, get treatment, or obtain a Online legal services have dramatically personally for the decisions they make. Judges must never forget court proceedings. What is remarkable and what we should be prescription. What has occurred is that the changed the legal landscape. Multi-million that people are more inclined to respect their decisions when they proud of is the fact that Americans, generally, can respect the patient went into the experience more dollar companies, with a national presence look beyond the person and see the robe and all the qualities of institution while disliking the predilections of certain jurist. informed about what’s going on with are delivering services which ostensibly justice, fairness and impartiality that the robe should represent. Respect for the judiciary and the court is important for our his/her body, causes, and a list of amount to practicing law without a Chief Justice Thomas J. Moyer once stated: system of justice. That respect should not be taken for granted. questions to ask his/her own skilled license. We have an obligation to protect ”In a democracy there is a more fundamental factor that is not Abraham Lincoln once said — "Let reverence for the laws, be physician it did not prevent the patient the public from bad advice or so clearly defined in law, one that draws a much broader circle in breathed by every American mother, to the lisping babe, that from seeking a doctor’s care. unscrupulous businesses — it’s not about defining the scope of judicial power. That is the question of prattles on her lap — let it be taught in schools, in seminaries, While there are certainly some boundaries or “turf.” We should assist in and in colleges; let it be written in Primers, spelling books, and in helping Ohio adapt to this changing judicial authority. distinctions, I would argue that this Almanacs; let it be preached from the pulpit, proclaimed in scenario isn’t terribly different than what dynamic. From our perspective, doing so If judges are bestowed with power upon election or legislative halls, and enforced in courts of justice. And, in short, is occurring in the legal profession. will require significant changes in the appointment to the bench, then the scope of judicial authority is let it become the political religion of the nation; and let the old Consumers of legal services are educating what we earn from citizens. and the young, the rich and the poor, the grave and the gay, of all themselves before determining whether Continued on page 6

4 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 5 Corner Office Manners Matters

Continued from page 5

in print manner in which UPL cases are handled, KINDERGARTEN CREDOS OF because these cases tend to bring greater risks to a voluntary membership online organization. PROFESSIONALISM The unbundling of legal services allows lawyers to limit their representation to We are Central Ohio’sonly daily business and legal newspaper. Subscribe specified components of a client matter, 1 By Lloyd E. Fisher Jr. Today! with certain limitations, of course. And, in dissecting legal matters, it is evident that certain aspects of a client matter can be 614-228-NEWS (6397) • thedailyreporteronline.com handled by the client without legal Bring your own crayons. udge James Graham’s excellent article about assistance. We should assist our members Don’t forget to include yourself on your schedule. Cultivate a in navigating the ethical implications of professionalism in the winter edition of the Lawyers passion outside the law; something that appeals to you – arts; unbundled legal services, while ensuring Quarterly stirred some personal thinking on the subject. sports; collecting; volunteering; reading; non-legal writing; your that clients get the best and most Defining professionalism is a difficult task that recalls U.S. religion; technology. Join a group that fosters the chosen activity affordable representation appropriate to JSupreme Court Justice Potter Stewart’s remarks about (it could also be a marketing tool!). Devoting some time to your their circumstances. pornography. He said he wouldn’t attempt to further define it, but outside interests will help you focus on legal problems. Events of This, of course, is just the tip of the he knew it when he saw it. I can’t give a precise definition of recent years have been grim reminders of the old T-shirt slogan: iceberg. The next few years promise professionalism but, like Judge Graham, I see professionalism in “Life is uncertain, eat dessert first.” dramatic changes — with economic many of our colleagues at all levels of the bar. pressures, the absence of geographic While I understand and respect the Ohio Supreme Court’s Be careful of words like “poop.” boundaries, multi-disciplinary practice, continuing legal education requirement for professionalism, I Words – the tools of our trade; the bane of our existence. Some and non-lawyer involvement in legal suspect that much of professionalism is “caught” rather than professions can tout shiny new technology like laser surgery and transactions, we certainly have some taught in a formal setting. In fact, I would suggest that some of digital imaging but law, even with iPhones, online research, unique opportunities and challenges ahead what becomes professionalism is part of our early lifetime learning computers and fax, still must deal with words. Words can help, of us. But, these issues are as much a part – let me propose (with due respect to Robert Fulghum and his hurt, heal and harass. We must constantly hone our word skills of the Columbus Bar Association as they book Everything I Need To Know I Learned In Kindergarten): and at the same time avoid “talking like a lawyer.” are our members’. Please — share your some “Kindergarten Credos of Professionalism.” Over 50 years ago I heard a famous estate planning lawyer experiences with me, and let me know make a statement that I’ve never forgotten. He said: “You can’t how we can help. It’s who we are. 1. It’s not pre-school anymore. call yourself an expert until you can explain a complex legal 2. Don’t get off the teeter-totter problem to a client in words he or she can understand and then without telling the kid at the other end. make an informed decision.” He urged us to take the time to 3. Bring your own crayons. draft documents with a minimum of “legalese.” Words – love’em; 4. Beware of words like “poop.” learn ‘em. 1. Ohio Rules of Professional Conduct, 1.2 5. Even though you’re toilet trained, accidents can happen. Even though you’re toilet trained, accidents can happen. It’s not pre-school any more. Let’s face it. You are an excellent, experienced, careful and Think back to that fateful day when you stood, raised your distinguished attorney, but – you are human and it is possible for hand and spoke the oath that made you an official member of the you to make a mistake. Do not blame it on the assistant or the [email protected] bar. At that moment, you were set apart; not as an elitist, but as a associate. Do not say the dog ate the pleading. “Fess” up, admit functioning individual in a self-disciplining body. You agreed not the error and take whatever steps are necessary to correct it. As a only to abide by a set of rules but also to report misconduct by professional, there may even be times when it is appropriate to other members. You promised to hold clients’ information in the take the blame for errors committed by others. highest confidentiality. You said that regardless of where you might work – large firm, corporate law department, solo practice Simple rules -- but not always easy to follow. or governmental agency – you would support all our sisters and You’ve learned the kindergarten credos – welcome to first brothers who bear battered briefcases in dingy courthouse grade! corridors in pursuit of an ideal – equal justice for all. The rule of law is a thin wall that protects all of our citizens from passion, prejudice, vengeance and injustice. Our job is to maintain that wall against all attacks and not simply admire our professional shadow on the wall. [email protected]

Don’t get off the teeter-totter without telling the kid at the other end. One aspect of living and working as a professional is taking responsibility in dealing with other people – clients, staff, courts, governmental agencies, colleagues and adversaries. Clients need to know that they can contact you or someone else in your office who can help them. Set reasonable deadlines and meet them. Find Jill Snitcher McQuain, a professional activity that fits your talents and interests and that Lloyd E. Fisher Jr., Columbus Bar Executive Director benefits the profession. Porter Wright Morris & Arthur

6 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 7 Court Accounts Court Accounts

of Appeals, and Wright, who had left the local common pleas building or the courtrooms. Now that it is closing, maybe bench two years earlier, and we were proud to have their Marshall can finally rest in peace. Chronicles of An Old Building involvement. Even the bust of Abraham Lincoln on my desk makes me After the program, the judges gathered for a group picture. nostalgic. Judge Frank Reda, long a Lincoln admirer, had obtained Now, the only survivors from that group are Tommy Thompson, it while he was still in the city attorney’s office. After his death in Dale Crawford, Smith, Deshler, and myself. Smith occupied the 1993, Thompson and the late Norma Mitchell, who had served as By The Honorable David E. Cain courtroom next to me the first several months, but was appointed Reda’s bailiff, turned it over to me with the condition that it never to the federal district court in late 1987. Thompson is the only one leave the courthouse and never be out of the hands of an incessant who sat on the bench at the old, old courthouse that was at the story teller (like Reda). southeast corner of Mound and High streets. He recently said he The building will be used again some day after asbestos removal would like to sit for one trial in the new building so he would be a and extensive renovations. But it won’t look anything like a veteran of all three. courthouse. While recently cleaning out another drawer – this one In 1973, the court had no staff attorneys to handle the work on full of business cards – I couldn’t help but notice how many of ontemplating the move of Common Pleas Court caused map shows Dublin and New Albany surrounded by white space motions. Nor did it have any magistrates – just four referees with them were given to me by persons who are now deceased. “Ain’t it more problems than just worry and work. out in the country. Hilliard wasn’t much more than a few streets between two railroad tracks. I-70 came in from the east but ended limited powers. The referees were later converted to magistrates – funny how times slips away.” Downtown. Michael Dorrian and Harold Cooper had joined a change in Supreme Court rules allows them to do criminal C Southwick as commissioners by the time the HOJ took form. arraignments in addition to their civil work. The court now has The idea of leaving the 38-year-old Hall of Justice (HOJ) – eight magistrates. while delightful for the most part – also brought on a spell of My earliest recollection of the HOJ was in the Fall of ’73 while The court had no metal detectors in the lobby then, either. If a melancholy nostalgia. still waiting for the results of the bar exam I took in July and still particular trial was drawing a rowdy crowd, judges would have to [email protected] We’re only moving a few hundred feet to the north. But we are whirling from my wife, Mary Ann, giving birth to twins in limit admission to the courtroom and/or ask deputies to use leaving a structure that has housed more drama than the Ohio September (what a year!). handheld detectors at the courtroom doorways. Theater and the Palace combined. George Tyack occupied Courtroom 7D the first 12 years, A place where rivers of tears have been shed by thousands of Co-defendants in a robbery/murder case had been granted having taken the bench the same year the building opened. I have victims reliving the horror of the vicious acts committed against separate trials. For the convenience of witnesses, including police been in it the last 24 years. I’ve been a judge so long that people to them. Where they have come eyeball to eyeball with their officers, County Prosecutor George C. Smith scheduled the trials whom I’ve give life sentences are getting out. attackers for ugly reunions. Where survivors – perhaps for the first for the same date and time in courtrooms on the same floor of the George Marshall was a senior judge in the early 70’s and is time ever – have described the losses of their loved ones because of HOJ. It was also an opportunity for Smith to test the value of a largely blamed for being the “architect” of the “Hall of Halls” The Honorable David E. Cain, needless and heinous crimes or stupid negligence. Where I’ve new position in his office, that of victim/witness assistant. That whenever someone wants to complain about the layout of the Franklin County Common Pleas Court watched hundreds of offenders head into the lockup on their way person was Gregory S. Lashutka whose job at that point was to to prison, many for the rest of their lives. Where people have said escort the witnesses to the right courtroom at the right time. the darndest things. And where suspense has reached a crescendo In those days, I was a reporter for The Columbus Dispatch every time a green light comes on outside a jury deliberation (January, 1967 to March, 1977), and our editor sent Ned Stout room. and me to cover the trials. The county commissioners late last year staged a ceremonial Mike Miller and James O’Grady were the prosecutors while 7EREWAYMORETHAN ribbon cutting for the new courthouse at the northwest corner of John P. Bessey and Richard Ferrell were defending the duo Mound and High streets. Maybe, we should say a few farewells to accused. All four later became judges. Miller also became the the old one on the southwest corner. The situation could remind county prosecutor after a stint on municipal court. Lashutka was JUSTALAWSCHOOL Downtowners of when the Neil House Hotel bit the dust across elected city attorney in 1977 (one of his promises was to start a High Street from the Statehouse in the early eighties. John W. victim/witness program in the city prosecutors office) and Wolfe held a party to end all parties after the building had been Columbus mayor in 1991. totally vacated. “I thought we should give her a decent burial,” he Both defendants were convicted of killing a young clerk at a S. commented in the lobby. High St. carryout – the one verdict coming in 62 minutes and the 7ERE A PARTNER The Hall of Justice and I share an anniversary. It opened the other in 65 minutes. Miller recently related that O’Grady has same year (1973) I graduated from Capital Law School and never stopped complaining about the verdict coming in quicker in gained admission to the bar. It had a cafeteria and barbershop in Miller’s case. I mentioned to Miller that I remember Ferrell the basement and ash trays and pay phones everywhere except in waiving closing argument and thought that to be unusual in a IN YOUR ONGOING the courtrooms. The Court of Appeals occupied the fourth floor, murder case. Miller said Ferrell had told him confidentially earlier the Prosecutor’s Office had the fifth floor and Probate Court was in the day that he was planning to do it to throw O’Grady off his on the eighth. An open escalator went from the first floor lobby to game. O’Grady had a habit of giving a short closing and saving SUCCESS the fourth floor. most of his ammunition for rebuttle. His jaw dropped, but he still Psychological Services For Workplace Issues Lawyers didn’t run back and forth from Common Pleas to got his verdict. Worker’s Compensation Municipal Court because the latter was on the other side of It seems hard to believe now, but the building was only 14 years Disability Downtown – on the third floor of City Hall, the second floor of old when I took a seat on the bench in January, 1987. The court Fitness for Duty 3TANDOUTINACOMPETITIVEJOBMARKET the Central Police Station across Gay Street and all three floors of got its 14th judge that year and Dana A. Deshler had been elected Risk Assessment %ARNYOUR,,-IN4AXATION "USINESS OR the City Hall Annex, an old bathtub warehouse on the northwest to the new seat. A third new common pleas judge to begin that "USINESSAND4AXATIONAT#APITAL5NIVERSITY corner of Gay and Front Streets. One had to go to all three year was C. Howard Johnson, former county prosecutor and Paul A. Deardorff, Ph.D., ABPP*, MBA, Director buildings to get the necessary signatures and file a continuance municipal court judge. We got together to plan a joint “swearing Nicole A. Leisgang, Psy.D., Associate Director ,AW3CHOOL in” ceremony and discovered that we all three were left handed. entry. It was faster to try a case than to get it continued. *Board Certified in Clinical Psychology Sorting through the remnants of bygone years, I found a map of What’s the odds?  %AST "ROAD 3TREET Franklin County in a drawer on the bench in the courtroom. The The County Auditorium did not exist back then, so Court www.4psych.net #OLUMBUS /HIO   county engineer was Guy Elbin and the commissioners were Administrator Duane Hays turned the sixth floor lobby into an 800.239.8886  Robert T. Southwick, Glenn L. Myers and Henry A. Koontz. That auditorium for the ceremonies. Participants included newly elected 25 years experience in forensic psychology was back when being a funeral director (Southwick and Myers) or Chief Justice Tom Moyer and Justice Craig Wright. It was a Office locations throughout Ohio and Indiana a pharmacist (Koontz) was a prerequisite for commissioners. The homecoming for Moyer, who had just left the 10th District Court WWWLAW#APITALEDUADVANCE

8 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 9 


 


 


  
In Court In Court

driven by Defendant Nicholas Gill. Plaintiff claimed soft tissue September 3, 2003 MRI and that Plaintiff’s presentation did not neck and back injuries. At the time of the accident, Plaintiff was support a diagnosis of cavernoma or surgical intervention. off work due to a work related injury to her shoulder. However, Defendant Dr. Boehmer argued that Plaintiff’s presentation in the she did not claim that her shoulder was injured in the accident. emergency room on September 18, 2003 also did not support a Medical Specials: $7,655.13. Lost Wages: $9,242.00. Plaintiff’s diagnosis of hemorrhage or an immediate neurological consult Civil Jury Trials and that surgical intervention on that date would not have Expert: Robert Bertani, D.O. (family physician) and Scott M. Otis, M.D. (physiatrist). Defendant’s Expert: None. Last changed Plaintiff’s outcome. Plaintiff’s Experts: Robert Bonfiglio, FRANKLIN COUNTY COMMON PLEAS COURT Settlement Offer: $25,000. Last Settlement Demand: $1,777. M.D. (physical medicine and rehabilitation), Allan Hamilton, Length of Trial: 2 days. Plaintiff’s Counsel: Michael F. Ryan and M.D. (neurosurgeon), Glen Tong, M.D. (radiologist), Samuel By Monica L. Waller Aaron M. Glasgow. Defendant’s Counsel: Edwin J. Hollern. Case Kiehl, M.D. (emergency medicine), Ann S. Veh (life care planner). Caption: Pamela J. Gilmon, et al. v. Nicholas T. Gill, et al. Case Experts for Defendant Yu: Douglas Orr, M.D. (orthopedic No. 07 CV 534 (2009). surgeon). Experts for Defendant Mason: Mark S. Younis, M.D. (radiologist). Expert for Defendant Boehmer: Charles A. erdict: $3,669,262.00. Product Liability. Plaintiff Mercer. Judge Richard A. Frye. Case Caption: Rosemary Phillips Defense Verdict. Medical Malpractice. In May 2003, Plaintiff Eckerline, Jr., M.D. (emergency medicine). Last Settlement Richard Carter, 42-years-old, filed suit against Anderson v. April M. Shaffer, et al. Case No. 07 CVC 8115 (2009). Demand: policy limits of $1,000,000 from each defendant. Last Concrete Corp. alleging that Anderson failed to provide Emily A. Dowell, then a 26 year-old female, began treating with Settlement Offer: Not provided. Length of Trial: 10 days. adequate warning on ready-mixed cement of the risk of Verdict: $48,138.40 (Reduced to $43,138.40 for offset of Defendant Emily Yu, M.D., a physical medicine, rehabilitation V payments made under Medical Payments coverage). Auto and interventional pain management specialist, for back pain. Dr. Plaintiff’s Counsel: Robert Gray Palmer. Counsel for Defendant injury when the product comes in contact with bare skin. A truck Dr. Yu: Gregory B. Foliano. Counsel for Defendant Dr. Mason: driver for Anderson Concrete delivered the product and observed Accident. Plaintiff Joanne Dominey (46-years-old) was driving Yu prescribed physical therapy and followed up with Plaintiff Patrick Smith. Counsel for Defendant Dr. Boehmer: Gregory D. Mr. Carter working with it in an attempt to install a back yard south on I-71 north of Weber Road when a tire came across the through September 4, 2003. During the September 4, 2003 visit, Rankin. Magistrate Edwin Skeens. Case Caption: Emily Dowell, cement patio. Mr. Carter had no prior experience with the freeway and struck the front of her car. A vehicle was later found Plaintiff reported that, over the weekend she experienced a et al. v. Emily Yu, M.D., et al. Case No. 08 CVA 8078 (2009). product. As he worked, the cement came in contact with his bare abandoned with three tires. The owner of that vehicle denied different intense pain for which she went to an ER. In addition to hands and his pants became saturated with it. Mr. Carter suffered liability. Plaintiff sued her insurer for UM/UIM coverage claiming her back pain, she was experiencing numbness and tingling in her Defense Verdict. Auto Accident. Plaintiff Shirley McKinney was severe third degree burns on both legs and on his arms and hands injury to her ankle, back and head with post-concussion foot and had bowel/bladder symptoms. Dr. Yu examined an MRI struck by an uninsured driver at the intersection of Champion requiring multiple skin graft surgeries. At the time of the injury, syndrome. Her ankle injury was surgically repaired. Defendant taken the preceding day by Defendant radiologist Thomas O. Avenue and Reinhard Avenue on August 4, 2006. Her daughter, Mr. Carter was the primary care giver for his wife who was in the denied causation. The jury found that the ankle and head injuries Mason, M.D. Dr. Mason’s impressions were small focal disc Plaintiff Clorissa McKinney was a passenger in her vehicle. The end stages of Multiple Sclerosis. He had quit his career as an were not caused by the accident, but found a causal connection profusion at L4-5 at the midline and spondylosis at L5 is collision caused minor property damage and police did not engineer to take care of his wife and was installing the patio to between the accident and Plaintiff’s claimed back injury. Medical associated with grade I spondylolisthesis of L5 on S1. Dr. Mason respond to the scene. Shirley McKinney went to the emergency earn extra money. His wife passed away while he was recovering. Specials: $42,176. Lost Wages: Initially claimed but not quantified did not report any hematoma, lesion or tumor. Dr. Yu concluded room four days after the accident complaining of neck and left Plaintiff alleged that the ready-mixed cement product changes the and withdrawn at trial. Last Settlement Demand: $250,000 at that this MRI was unchanged from a previous MRI of January shoulder pain. Neck x-rays revealed diffuse degenerative changes. pH of human skin causing severe chemical burns. As the burns mediation reduced to $75,000 just before trial. Last Settlement 2003 and that the findings did not explain Plaintiff’s complaints. On August 11, 2006, she began treating with Columbus Injury occur, they do not cause pain, but only a numb feeling which Offer: $35,000 at mediation. Length of Trial: 3 days. Plaintiff’s Dr. Yu did not refer Plaintiff to a specialist. On September 18, and Rehabilitation. She continued treating at Columbus Injury contributes to the deceptively dangerous nature of the product. Expert: Suellwyn Stewart, M.D. (family practice), Lee Howard, 2003 Plaintiff presented to the Emergency Department at and Rehabilitation through the end of September of 2006. Shirley Plaintiff presented evidence that the caustic effects of the product Ph.D. (psychologist). Defendant’s Expert: Joseph Schlonsky, M.D. Riverside Methodist Hospital in Columbus, Ohio, complaining of McKinney had been involved in several prior motor vehicle are well-known in the industry. Plaintiff presented further evidence (orthopedist), Jeffrey L. Smalldon, Ph.D. (psychologist). Plaintiff’s intense lower back pain. She reported that she had been accidents for which she had been treated by the same chiropractor. that he argued demonstrated that Anderson knew of the caustic Attorney: Frederick L. Berkemer. Defendant’s Attorney: John P. experiencing lower back pain for the past several years, but in the Clorissa McKinney treated with her pediatrician three times in effects of the product and that these dangers were not known by Mazza. Magistrate Christina Lippe. Case Caption: Joanne previous two weeks had noticed increasing weakness, numbness August of 2006 for complaints of pain. Liability was not disputed. Dominey v. Travelers Indemnity Co., et al. Case No. 08 CVC and tingling in both feet. Defendant emergency room physician many experienced and do-it-yourself users despite warnings on Medical Specials: For Shirley McKinney- $5183.75 reduced to delivery tickets. Anderson argued that the warnings on the 4551 (2009). David Boehmer, D.O. performed a physical examination which was unremarkable except for decreased strength to her extensor $3940.74 after write-offs. For Clorissa McKinney- $786.57 after delivery tickets were sufficient, that it was not required to provide write-offs. Lost Wages: Unknown. Plaintiff’s Expert: Kabin Carter, Verdict: $22,744.80. Breach of Contract. Plaintiff, Executor of the hallucis longis of the left lower extremity and diminished tendon any additional warning to users of the product and that Plaintiff D.C. Defendant’s Expert: None. Last Settlement Demand: Estate of Peggy Harrington, claimed that Peggy Harrington loaned reflexes. He consulted on a non-emergent basis with the on-call should have been aware of the dangers of the product. Last $10,000. Last Settlement Offer: $4,080 for Plaintiff Shirley money to Defendant Richard E. Hanley personally and neurologist. Plaintiff emergently saw another neurologist the next Settlement Demand: $4,000,000 on the day of trial. Last McKinney. $1,286.57 for Plaintiff Clorissa McKinney. Length of individually. Mr. Hanley maintained that the money was loaned to morning, who found Plaintiff to be paralyzed and transferred Settlement Offer: $200,000. Length of Trial: 5 days. Plaintiff’s Trial: 2 days. Plaintiff’s Counsel: Chanda Higgins. Defendant’s the corporation owned by Mr. Hanley which employed both Ms. Plaintiff by squad to Riverside Methodist Hospital. A thoracic Experts: James Madden, P.E. (failure to warn), Sidney Miller, Counsel: Rick Marsh. Judge Timothy Horton. Case Caption: Harrington and Mr. Hanley. Plaintiff claimed that Mr. Hanley spine MRI revealed a spinal cord mass with hemorrhage at T11- M.D. Defendant’s Experts: None. Plaintiff’s Counsel: Daniel R. Shirley McKinney, et al. v. Allstate Insurance Co., et al. Case No. personally promised to repay the loans by making monthly L1. She was admitted to the hospital where she remained for 8 Mordarski. Defendant’s Counsel: David J. Heinlein. Judge P. 07 CVC 14547 (2009). Randall Knece (by assignment). Case Caption: Richard Carter v. mortgage payments on her house until the house was paid off or days. She was discharged to a rehabilitation facility and was Anderson Concrete Co., et al. Case No. 08 CVH 24 (2009). sold. Mr. Hanley maintained that the corporation promised to diagnosed with incomplete paraplegia. She regained minimal use make the monthly mortgage payments until Peggy Harrington of her legs before suffering a subsequent bleed in April of 2006. Verdict: $100,000. Auto Accident. On June 25, 2005 Plaintiff died or the house was sold. After the corporate bankruptcy, Mr. She ultimately underwent surgery at OSU and was found to have a Hanley personally paid the mortgage payments until Peggy cavernoma lesion. Following the surgery, Plaintiff continued to Rosemary Phillips was driving on East Livingston Avenue when [email protected] she was rear-ended by Defendant April Shaffer. Plaintiff claimed Harrington died. The jury found that the contract was between suffer incomplete paraplegia of the lower extremities including injury to her neck, shoulder, arm and back and a herniated Peggy Harrington and Mr. Hanley individually and obligated Mr. bowel and bladder dysfunction resulting from the hemorrhagic cervical disk. She sued April Shaffer and asserted a claim against Hanley to make payments until the house was sold. Last myelopathy and spinal cord injury. Plaintiff alleged that Dr. Yu Nationwide Mutual Insurance for underinsured motorist benefits. Settlement Demand: $50,000. Last Settlement Offer: None. failed to perform a thorough workup and evaluation of Plaintiff Ms. Shaffer’s insurance limits were $12,500 which were offered Length of Trial: 2 days. Plaintiff’s Counsel: Steve J. Edwards. and failed to refer Plaintiff to a specialist for timely diagnosis of and accepted just prior to trial. Medical Specials: $4,866.22 (past Defendant’s Counsel: Gary W. Hammond. Magistrate Mark the lesion and hemorrhage that resulted in her paraplegia. She also medical specials). Plaintiff also sought compensation for the Petrucci. Case Caption: Estate of Peggy L. Harrington v. Richard alleged that Dr. Mason failed to diagnose the T11-L1 lesion based anticipated cost of future surgery which Plaintiff’s expert E. Hanley, et al. Case No. 08 CV 6261 (2009). on the September 3, 2003 MRI and by comparing it to the earlier estimated would be approximately $50,000. Lost Wages: Not MRI. Plaintiff alleged that Dr. Boehmer failed to recognize an provided. Plaintiff’s Expert: Derek Snook, M.D. Defendant’s Verdict: $2000. Auto Accident. Plaintiff Pamela Gilmon (48-years- acute neurologic emergency. Plaintiff’s experts opined that, had Expert: None. Last Settlement Demand: $37,500 above settlement old) was a front-seat passenger in a vehicle her husband was Plaintiff undergone surgical intervention earlier, Plaintiff’s with Ms. Shaffer’s insurer. Last Settlement Offer: $5,000. driving on South High Street near Great Southern Shopping paraplegia would have been avoided. Defendants Dr. Yu and Dr. Monica L. Waller, Plaintiff’s Counsel: David A. Bressman. Defendant’s Counsel: Jill Center. They stopped for traffic and were rear-ended by a vehicle Mason maintained that the hemorrhage was not evident on the Lane Alton & Horst

10 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 11 Missives Missives

on their cases with the ever changing technology. Yet I did learn About a week ago I got a call from a lawyer from this experience that the Disciplinary Counsel office is there for good reason, to protect practicing lawyers and to keep the at the Disciplinary Commission. I thought I members of the profession in good standing. I learned that it is a good idea to periodically review the Rules of Professional The unexpected letter was going to get sick, but he told me that the Conduct, just to make sure you understand them. I also learned complaint was goinga to be dropped and that the film Legally Blonde didn’t really cover trust accounts, which I guess is par for the course in Hollywood. I would also like By Rosemary Ebner Pomeroy that I was right with the Disciplinary to think that if Atticus Finch had a trust account, he would take Counsel. I wanted to get in my car and the time to understand how the account works, and make sure he was properly protecting and disbursing client funds. So I guess deliver a cookie bouquet to his office as another read of To Kill a Mockingbird wouldn’t hurt me. And y hearing is done. I’m back in my car and ready to get the court filing fee up front and get paid for my legal services since I have had my colors done, and I am an “autumn,” they head back to my office center to get my mail. All in at the time the adoption is finalized. On estate planning, I quickly as possible. He didn’t know it but for would probably give me a pink prison uniform in Danbury which all, it’s a pretty good day, another happy adoptive generally get paid when my clients sign off on their documents. So that day, that hour and that minute he was wouldn’t work very well for me! family headed home with their baby, and for once I utilize my trust account, but really on a limited basis. M In order to keep costs down I do my own bookkeeping and THE MAN! no voice mail messages on my cell. Yes, I’m not quite Atticus Finch, but I am also a little bit ahead of Elle Woods (Reese bills. About a month prior to the disciplinary counsel letter I had Witherspoon) the star of Legally Blonde. the following amounts in my trust account: a small retainer from a client for a trust litigation matter, about $20.00 of my own funds I think about my three favorite people and realize Mark is the complaint was going to be dropped and that I was right with [email protected] for bank fees; and in the interest of being organized about 10 happily negotiating contracts up at Chase, flying under the radar the Disciplinary Counsel. I wanted to get in my car and deliver a $85.00 checks for seminar fees for the Ohio Adoption Roundtable of life as a 50+ attorney. Sarah is hopefully studying away at cookie bouquet to his office as quickly as possible. He didn’t Seminar I was sponsoring. While taking care of paying fees for the Michigan State, while trying to find a summer internship. And know it but for that day, that hour and that minute he was THE seminar event, I realized I needed to transfer the money in my Michael is probably in AP Calculus at Bishop Watterson, MAN! He also told me that it had been quite a long time since trust account to my operating account to pay expenses for the hopefully not being texted by some pretty 17-year-old girl. Yes, I someone had produced that much detail so quickly and didn’t event. I had a column of numbers on a sheet of paper constituting thought, “Rose you’ve got a lot to be thankful for in terms of request an extension. A compliment from the Disciplinary amounts I was writing checks for, in my trust and operating career and family.” So on goes CD number 1 of my six Stevie Counsel, as the late Tim Russert would say – “what a country!” Wonder CD set, and I optimistically think all is right with the accounts. I got off the phone, and I didn’t know whether I should go to world. Again, I guess I really have never adjusted to trifocals as I Talbots to buy clothes, or head to the Clinique counter at Macy’s. Rosemary Ebner Pomeroy I get to the reception area of my office, and my receptionist picked up the wrong number in this column and wrote a check to All I can say is I was relieved, and though I didn’t get to either Freda hands me my mail. As I rifle through it, I am thinking, what my trust account that overdrew my account. Luckily, several days retail destination, I managed to buy a six-pack of Oreos on my do I do with another blasted coupon from Office Max, a later my bank called me and told me this check would overdraw way home from the office center as a reward for a job well done. catalogue for Cheryl’s Cookies (now there’s a way to NOT suction my account, so I told them to reverse the check, and I would When I think of the times Oreos have made my life better I guess I myself into a bathing suit this summer) and then I see a white review my records and determine the correct amount to transfer. should really buy some stock in Nabisco. I think after this article envelope with calligraphy type writing. Wow an invitation to a fun After that telephone call I thought all was right with the world, is published I will call my broker. attorney event, or party! Rose, you idiot – wait, wait, I adjust my and again went back to the lawyering duties we all do to keep our So what did I learn from this experience. I think I will bullet tri focal glasses and see it is a letter from the Office of Disciplinary clients happy. point the following items from the Ohio Rules of Professional Counsel. That was, until the letter from the Disciplinary Counsel arrived. Conduct effective February 1, 2007, regarding trust accounts. I quickly head out into the atrium area, where I stare at the I called Disciplinary Counsel’s office, and a kind-hearted admin • If you have the misfortune of overdrawing your trust account, envelope. I start to track through my clients in my mind, (the person was willing to give me an extension. I basically said no your banking institution automatically reports this error to the names have been changed to protect the innocent). Mrs. Smith – thanks, got off the phone, and realized I had about ten days to Office of Disciplinary Council she loved me, even gave me a honey baked ham this year for convince them I had done nothing wrong. • You can deposit your own funds in a client trust account for the Christmas. Mr. Brown – got his durable power of attorney done I also made a call to one of my favorite attorneys, Mark sole purpose of paying or obtaining a waiver of bank service in the nick of time. Various adoption agency finalizations – I think Pomeroy. Since both Mark and I worry about ending up in a charges on that account, but only in an amount necessary for that everyone still likes me and prospective adoptive parents continue minimum security prison in Danbury, Connecticut, his response purpose. Rule 1.15 (5) (b) After over drawing my trust account, I to call. Hey, okay it’s that crazy probate litigation, managed to was give them as much detail as possible. So, that was exactly was so concerned about doing it again that I deposited $1000 of settle out of court and everyone was thrilled and complimented what I decided I would do. my own funds to prevent future mishaps. However, I was required me a lot. No dueling ex-spouses fighting over the pop up camper. I spent the next five days, copying trust account statements, and to withdraw most of that deposit as it was beyond the amount What could this be about, for the life of me I just didn’t know. client billing records showing the detail of my trust account. I even necessary to cover any bank service charges. Okay Rose, open the envelope. I did. Quickly reading the letter explained my organizational system for the Ohio Adoption • A lawyer shall deposit into a client trust account legal fees and I realized the Disciplinary Counsel had filed a complaint against Roundtable group, and how I was taking the seminar fees for our expenses that have been paid in advance to be withdrawn by the me for overdrawing my trust account. November meeting on medical issues in adoption and placing the lawyer only as fees are earned or expenses incurred. Rule 1.15 (5) Mediator Ah the trust account! The IOLTA! It sounds so lawyer like, fees in my trust account. When all of my work was done, I had an (c) Therefore, I should not have deposited the seminar fee money almost harkening back to the days of Perry Mason and his capable impressive five page report with about 15 exhibits. It looked like for my adoption seminar into my trust account, as my fellow Preparation + Persistence + assistant Della Street! Yes, when you say IOLTA, people listen up, evidence of how I could have had a great career at Office Max or adoption practitioners are not my clients. respect is what you think of. Yes, you are almost Learned Hand, Staples. I again concluded that I had not stolen any client funds, Professional Temperament = the IOLTA. If you were single and at a bar, and you said IOLTA to and that I had proven I had nothing to hide. Again, in taking time to review the Rules of Professional Conduct RESOLUTION a good looking guy you might get an invitation to dinner and a I sent the whole package out by certified mail, and I was quite which are easily accessible through the Ohio Supreme Court movie. Yes, there is an acronym you can love. proud of the fact that I responded promptly without seeking an Office of Disciplinary Council web site, I reviewed the rules Okay, moving beyond my musings about trust accounts, I extension. I also decided that when something is as precious to a regarding trust accounts and they were helpful. generally use my trust account infrequently. I work in the areas of lawyer as his or her law license, I had to give that response to the I have been practicing in Ohio since 1988 and have been a sole 614.484.1200 probate and estate planning and adoption. For estate Disciplinary Counsel everything I had. practitioner since 1993. Things don’t always go my way in the administration or probate most of my clients pay me when the About a week ago I got a call from a lawyer at the Disciplinary practice, and I have to admit lately I have become a bit weary by [email protected] estate administration is completed. For adoption finalizations, I Commission. I thought I was going to get sick, but he told me that the day to day tasks of lawyering, and keeping clients up to date

12 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 13 Report Card Report Card

As if that weren’t bad enough, recent research by David Van Why Law Faculties Won’t Change Zandt, then the Dean of the Northwestern University Law School, I: Law School Makes Money Law Schools: found that as a purely financial investment, a graduating law Not the least of the reasons why law schools won’t change is student needs to make a starting salary of $65,000 per year to that by and large they are moneymaking enterprises. There is an make his or her financial investment in a legal education a break extensive literature showing that law schools are profitable even proposition.11Other research indicates that Van Zandt’s businesses.21 While perhaps not as profitable as they used to be, numbers are low and that the starting salary that a graduating law law schools are the financial envy of main campus. Unlike some Why Faculties Fight Change student needs to break even on the investment is actually much other main campus departments, they are required to at least be 22 higher than $65,000.12 self-supporting and many of them are required to spin off profit Today’s law students are in a bad spot13 and these dramatic dollars to support other money-losing departments of main campus.23 increases in the cost of attending law school and the unfortunate By Jason M. Dolin Even if only required to break even, their financial structure changes in the employment marketplace have further increased affords law school faculties and their deans salary levels, perks, their burdens. As a result, there is today a greater need than ever and a life style that are exceptional by both academic standards before to prepare law students for the practice world they will face I wish I could persuade you to overcome the difficulties, instead of gateway to our profession, we may be facing the very real and for most practitioners. It’s been so good for so long that it’s so they can serve the public competently, make a living, and repay just hard for law schools to move off of that model. merely entrenching yourself behind them. Winston Churchill – prospect that the condition of the legal profession today, with its their loans. It needn’t be this way. 1943 myriad problems and challenges, will be as good as it gets.7 With a tenured faculty cemented in place and with healthy finances, it is not surprising that law schools are change resistant Law school has shown that it can’t fix itself. To paraphrase The Carnegie Report aw school has never done a very good job of preparing Georges Clemenceau,8 legal education is too important to be left organizations. There is little reason for faculty or deans to rock This is an old story. For generations, law schools have resisted the boat. students to practice. In the old days when law school was only to the professors. It is up to us, the practicing bar and more well-reasoned calls for a more practice-based, integrated legal relatively inexpensive and jobs were more plentiful, the importantly the Ohio Supreme Court, to both propel and compel education14 as they continue to do now. Most recently the widely Why Law Faculties Won’t Change bench and the bar could look the other way. We the needed changes. L hailed Carnegie Report15 was issued in 2007. Authored by leading II: Law professors advance professionally and financially by practitioners knew that legal education was inefficient and ineffective at teaching you how to be a lawyer but, hey, at least legal and educational experts with unassailable credentials, publishing scholarly works, not by teaching or by writing The Cost of Law School curriculum there was work after graduation and you could “learn on your Carnegie called for a legal education that did more than simply Law school costs too much. In recent years we have seen Law schools place a heavy emphasis on scholarship. Too heavy. clients.” Until the clients caught on – and they usually didn’t – it add a clinic here and there, but rather one that provided students significant changes in law school cost and in the legal marketplace Over the years law schools have morphed into academic all worked just fine. with an integrated legal education that weaves doctrinal study, including dramatic increases in law student debt, dimming job institutions instead of professional training grounds. As noted by But for law graduates today and in the future, those days are practice skills, and professionalism into every course and prospects for graduates that pre-dated the Great Recession, and the Carnegie authors “…law schools are hybrid institutions. One over. They are entering a practice world significantly more throughout the entire curriculum, much like medical school and now research that shows the very real prospect that a legal parent is the historic community of practitioners…The other…is competitive and demanding than the one many of us faced when other professional schools.16 education is no longer a good financial investment. that of the modern research university…But as American law we broke in, and times will be tough for them even after the Great According to Carnegie, it is this integration of doctrine, practice To say that the cost of an American law school schools have developed, their academic genes have become Recession abates.1 The legal marketplace is overstocked with too skills, and professionalism that prepares students to practice.17 education has exploded in recent years is an dominant.”24 many lawyers and our clients will no longer pay us for the Carnegie followed a long line of blue ribbon ABA and other understatement. In the two decades ending in privilege of providing new attorneys with what law school didn’t: reports from the early 1900s through the 1990s – no fewer than 2007, for example, the American Bar As academic institutions, the tenure, promotion, and financial well meaningful practical education.2 five major ones – calling for a more practical and holistic legal Association (ABA) calculates that the average being of law professors is heavily dependent on publishing Times have changed dramatically, and law schools haven’t kept education. No informed educator, not even the most ardent annual cost of attending a private law school academic works. Indeed, all of the career incentives for law up.3 supporters of the law school status quo, questions that Carnegie (including tuition and fees) has increased professors favor research over teaching, and certainly over writing For generations, the changes needed to implement a meaningful almost fourfold, from $8,911 to presents a better way to train students as practicing lawyers. practice-based curricula. As stated by Edward Rubin, then Dean and practice-integrated legal education have been resisted by an $32,367…Expenses, book fees and other Unfortunately, like those of its forebears the recommendations of the Vanderbilt University Law School: immovable force: tenured law faculties.4 There are reasons why incidentals also add significantly to the average in the Carnegie Report have been largely ignored by legal …virtually all of the material rewards that faculties resist: law school student's burden, as does the academia. Ohio’s law schools by and large have not begun the tenured faculty members receive, other than (1) by and large, law schools make money and the current work of integrating their curricula as called for by Carnegie. They basic job security, depend on their research system has provided law faculty with outstanding compensation, opportunity cost of foregone employment during the three years of law school have talked the talk of Carnegie by adding clinics here and there production. The quality of their research, as working conditions, and other perks; but they have not walked the walk of Carnegie by creating an measured largely by the attention that it (2) law professors claim that moving to a more hands-on attendance…Not surprisingly, the average amount borrowed by law students seeking to integrated curriculum.18 attracts from other academics, determines their practical training is too costly (we’ll see below how it can be paid salary raises, their summer grants, their for); fund their law school education has seen an 9 Why Can’t the Dean Change the Curriculum? supplementary expense funding, and their (3) the structure of law school governance is built for stalemate increase no less dramatic. If faculty won’t change the curriculum, what about the dean? access to funds for organizing conferences…It and incapable of significant curricular change, and; The truth is that if the faculty doesn’t want to change the also determines whether they receive (4) current career and financial incentives for faculty favor the Indeed, according to the ABA: curriculum, the dean is powerless to force it because the real competing offers from other law schools, status quo. … for students who graduated in 2008, the which…generally include a salary increase, power in law schools is held by the tenured faculty, not the dean. average debt load for those who attended and even if not accepted, can be used to ABA regulations and law school practice make it clear that deans More than 100 years of law school history have shown that legal private schools was $91,506, while those who extract further salary increases form their do not have the power to change the curriculum without the education changes only around the margins, and never attended public law schools on average home institution.25 significantly. This is evidenced by the bald fact that the law school accumulated $59,324 in debt. These figures consent of the faculty.19 curriculum remains today much as it was over 140 years ago5 are substantially higher than those of even five Moreover, deans can be fired if they butt heads with an Too much of this scholarship is esoteric, is routinely ignored by despite repeated calls for change. years earlier, when debt loads were $72,893 unwilling faculty. Under ABA regulations, a dean cannot be hired the bench and bar, and has little impact on the law, the profession, The urgency of bringing meaningful change to law school for 2003 graduates of private schools and or rehired over the objection of the faculty. A dean who sets out the education of law students, or the lives of the public.26 education extends beyond the need to properly prepare new $45,763 for those from public schools. on a crusade to reform the curriculum against the will of the In addition to being largely ignored and of little impact, legal lawyers. Through the manner in which it trains – or doesn’t – new Current monthly repayment levels thus faculty will find him or herself in short order back in the scholarship is extremely expensive to produce, a significant issue attorneys, law school sets the course for our profession. What approach the amount required to carry a classroom or looking for a new deanship.20 in light of the increasingly crippling cost of law happens in law school is important.6 Without significant house mortgage for those who graduated a few In short, deans can’t do it and law faculties don’t want to. In improvements in the way we train students in law school, the years before.10 chess, it’s called stalemate. Continued on page 16

14 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 15 Report Card Report Card

Continued from page 15 “… there is evidence that law review articles have left terra firma the Carnegie Report.46 The work to create to soar into outer space.36 a truly integrated curriculum will be hard; SOME BUSINESS SOLUTIONS ARE school tuition. The scholarship produced by law professors So let’s be clear. Under the current system, law students go into within the academy, “law school consumes approximately 40% of their time, and their salaries, hock to subsidize the production of esoteric legal research of curriculum reform is seen as a ‘tedious and benefits and other costs represent an exceedingly high percentage limited impact that is read by only a few, disconnected from the often frustrating task’.”47 Under the Puzzling of a law school’s total budget. Hence, a hefty chunk – perhaps as issues faced by the bench and the bar, and that does nothing to present scholarship-driven academic and selecting the best source for much as a quarter to a third – of the money borrowed with prepare law students to practice law. This gigantic transfer of U.S. News reward structures, no law wealth benefits law professors but not the students who pay up-to-date information shouldn’t be. interest by law students to finance their legal educations is professor will advance his or her career by dearly for it. subsidizing faculty scholarship that provides them with no working to change the entrenched You need information, we provide information. discernable benefit.27 According to Vanderbilt’s Edward Rubin: Subscribe online at thedailyreporteronline.com How could such a system be allowed to continue? Behind doctrinal curriculum to an integrated, or by calling 614-228-NEWS (6397). Law schools are predominantly financed by everything that law schools do lurks the specter of the U.S. News practice-enhanced one. This important student tuition payments, yet a significant law school rankings, “the 800 pound gorilla of legal work simply won’t get done. proportion of their expenditures do not education…affect[ing] virtually all aspects of law school directly benefit the students, but rather operations.”37 As candidly stated by Paul Caron, Associate Dean Why Law Faculties Won’t Change support faculty research…the research that and Professor or Law at The University of Cincinnati Law School III: The Existing Law School Financial faculty members are conducting is increasingly “The U.S. News & World Report survey truly dominates our lives Structure Provides Law Professors with remote from their pedagogic role…students in ways you couldn’t imagine.”38 Exceptional Compensation, Benefits, are paying for something that does not benefit In order to move up the ladder, law schools fixate on complying and Lifestyle them, and they are being compelled to do so with what U.S. News values most in its rankings criteria.39 The As a rule, the law professors I’ve known by means of an intra-institutional transfer that largest single component of the U.S. News criteria, and therefore are intelligent, engaging, and have great they cannot control…one can say that this the component having the single largest impact on a law school’s scholarly minds. They also know when appears to correspond to most people's notion U.S. News ranking, is “Peer Assessment,” which U.S. News they have a good deal. And make no of unfairness.28 obtains by asking “law deans, deans of academic affairs, chairs of mistake about it, being a tenured law faculty appointments, and the most recently tenured faculty professor is a good – no, a great – deal. members” to rate other law schools on a 1 to 5 scale with 1 as Implementing the Carnegie    
According to Rubin: “marginal” and 5 as “outstanding.” The Assessment Score by recommendations will require a more At most research-oriented law schools, a Lawyers/Judges is also obtained from “hiring partners of law hands-on legal education. It may require    
category that probably includes more than half firms, state attorneys general, and selected federal and state smaller classes. It may require that research    the law schools in the country at the present judges” using the same 1 to 5 scale.40 stipends and other perks be diverted to time, the general rule is that faculty members Law schools routinely engage in the wasteful diversion of develop practical training. It will likely be   
are expected to spend 40% of their time on resources that could be used to train law students more effectively more expensive and hence, less profitable teaching, 40% on research, and 20% on to areas deemed important by U.S. News. This diversion is not for law schools. It might take law   professors out of their academic comfort service for the law school or the university...29 done to train law students better, but rather to increase a school’s zones. U.S. News rank.41 In short, it might make law schools less According to a Government Accountability Office study on Dean Rubin notes that the 40% of tuition dollars that support profitable, less comfortable, and limit or legal education published in 2009, one of the main drivers in the faculty research could be put to other uses and “…if faculty were reduce the growth of the compensation and increasing cost of legal education is competition for higher not expected to conduct research, they could teach twice as much, benefits enjoyed by tenured faculty under rankings.42 Moreover, a law school’s position in the U.S. News thus reducing the faculty cost of providing the same number of the existing order. courses by 40 to 50%. Alternatively, they could provide additional rankings has nothing at all to do with whether a law student at Certainly, there’s nothing wrong with instruction, either by preparing their existing classes more that school is getting a good education. The rankings do not wanting to advance your career and to be carefully, or by adding individually-supervised skills training, or measure the quality of teaching, the mode of instruction, or the better compensated for it. That’s the 43 by some other means.” 30 scope, depth, or organization of the curriculum. In addition “No American way of business. But law is more He is not alone among law deans in that view.31 “As a result, one has done a careful study…to validate the criteria by than a business. It is also a public scholarship and teaching have increasingly diverged. The sort of determining whether the available numbers are indeed indicators profession. Unlike business people, we are 44 licensed by the state and hold a public scholarship that establishes a faculty member’s reputation is now of the many dimensions of true quality.” Finally, the scholarship trust. As attorneys, we have obligations to far removed from common law curriculum in substance…”32 One produced by law professors appears to do little to enhance the the public and to the next generation of author put it more succinctly, saying there is “…little modern law classroom experience or training of law students. A study attorneys who will someday replace us. review scholarship [that] serves any meaningful pedagogical published in 2008 found that “(T)here is either no correlation or a slight positive correlation between teaching effectiveness and any Our fiduciary obligations require that we purpose with respect to training law students to become put the good of our clients over our own.                 33 of the …measures of research productivity.”45 competent lawyers.” Unfortunately, within the academy, “law The same should apply to law professors school curriculum reform is seen as a ‘tedious and often with their students.  
  


   
 
34 All of the professor time and student tuition dollars invested in the frustrating task’.” And for this high cost, what value is realized? While there is nothing wrong with 

 
  
 

  




 production of legal scholarship appear to have done little to A recent empirical study of all of the law wanting to advance, there is something 

  
  

 


  
   promote more effective training or practice preparation for law review articles contained in the Lexis-Nexis wrong when the desire for personal  


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 database found that 43% of them have never students. From a pedagogical standpoint, the use of student advancement and greater compensation    
 

 
   
  
been cited even once in other law review tuition wealth to satisfy the U.S. News criteria is unjustifiable. overrides the good of the next generation 

  


  


 
articles or reported cases. It seems, in the Despite this, because a school’s reputation as determined by its of attorneys who would significantly     
 
   
  
 


 
words of one critic, that many law professors academic scholarship is one of the things that U.S. News values benefit, and be better able to make a living,   

  

  
 


  “are not even talking to each other but to the most, the incentives and rewards drive law professors to appease by the integrated and practical training mirror.”35 the U.S. News rankings monster by churning out articles. proposed by the Carnegie Report. When 





  In a speech at NYU in 2008 Justice Breyer raised questions about Unfortunately, there is simply no career incentive for law the utility of much modern law review scholarship when he said professors to undertake the important changes recommended by Continued on page 18

16 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 17 Report Card Report Card

Continued from page 17 schools, faculty participate in the highly regarded TIAA-CREF of legal education in this state and that would represent a How to Pay for It retirement system. significant initiative to remedy this situation.61 The report, entitled There is always a strong case for doing you examine the compensation, benefits, and lifestyle of tenured Report of the Task Force on Legal Education Reform (“the nothing, especially for doing nothing yourself. It’s Better Than Being a Federal Judge law professors it becomes clear why no one enjoying their status Report”) was issued in December 2009 by an OSBA task force Winston Churchill - 1923 So law professors have it very good, and apparently, it has would want to mess with the status quo. consisting of 25 members including deans or representatives of Expect the law schools to tell the Supreme Court that always been so (except the pay is better now).55 Nancy Rapoport every Ohio law school plus the Salmon P. Chase Law School of implementing a meaningful mandatory clinical experience as part described the modern law professor’s job as follows: The Control Northern Kentucky University. of an integrated education can’t be done, that it’s just too There’s no question that life for a tenured Tenured law professors have a level of control over their In its recommendations to the Ohio Supreme Court, the Task expensive. Nonsense. How to pay for it? One way is to take the professor at a research university has to be one lifestyle and working conditions that practitioners can only dream Force explicitly “endorses and supports the recommendations of 40% of faculty time that goes toward the production of faculty of the all-time best deals in the world: as long of. Once tenured, they have lifetime job security. They don’t have the…Carnegie Report.” In addition, the Task Force’s report made research - that students pay for, that doesn’t benefit them, and that as the university can afford to keep running . . a number of outstanding recommendations to improve legal a boss (see “Why Can’t The Dean Change The Curriculum”). . the freedom that the professor has is few read - and turn it into clinical time. Cut the amount of writing They are free to choose their areas of scholarly research. They education, a large number of which could have been immediately required of faculty in half. This will cut by half the considerable unparalleled. No boss can dictate to the instituted by the law schools themselves and didn’t require the don’t have clients calling them at all hours, setting unrealistic professor what her field of research should be; slice of tuition dollars currently devoted to research. (Or reduce action of the Ohio Supreme Court. Importantly, the Task Force deadlines or delivering crises that keep them working late into the most of the time, the professor teaches in areas tuition inflation...). In all events, it would free up a significant urged greater involvement and coordination in the training of night or on weekends. They are not slaves to a litigation calendar that complement her research interests; and portion of tuition dollars for use in clinical/integrated education. lawyers by the practicing bar. they don’t control. Their teaching loads are light compared with the service components of the job are often In addition, faculty could be provided with incentives to But there was one recommendation in particular, that I believe other departments in the university.48 They rule their classrooms. interesting . . . Even another of the all-time produce practical research or training and to learn more about was most significant: a requirement that all law graduates have They don’t have to contend with the demands of judges. Unlike great jobs . . . federal judge . . . pales in law practice.65 Promotion and tenure policies can be changed to clinical training before they may sit for the Ohio Bar Exam. That many practitioners, their paychecks roll in like clockwork and comparison. The lifetime tenure is the same, encourage the preparation and teaching of integrated curricula, or recommendation read as follows: they never get stiffed on a fee. but the cases before the judge somewhat the development and teaching of practice-based courses. Instead of Resolved, that the Task force recommends that dictate the issues that the judge gets to law deans providing summer research stipends for the production the Supreme Court of Ohio adopt a rule that The Compensation consider . . . 56 of scholarly research with little impact, provide summer research requires, prior to taking the Ohio Bar Moreover, they are well compensated. According to the most stipends for faculty to write integrated curricula, or to observe and recent salary data collected by the Ohio State Bar Association, the Examination, the completion of a performance Rapoport may be more correct than she suspected. Indeed, there experience consisting of either a clinic in law write about law practices at work, or to work at the public median income for a full time private practitioner in Ohio in 2009 defender’s or prosecutor’s office, or to work at a government th are more than a score of law professors at public law schools, school, a performance externship in law was $90,000, with those full time private practitioners in the 75 alone, in the State of Ohio who make more than the $174,000 agency. Faculty will return to their classes with a greater 49 school, or a practice experience through an percentile earning $140,000. Tenured law professors – both earned annually by U.S. District Court Judges, some considerably knowledge of practice and this will infuse their teaching and nationally and locally – have both of those beat. According to organized bar association program which more.57 For the period of 2008 through 2010 – in the teeth of the involves law school faculty and practicing provide context to their students. data from The National Jurist Magazine the average salary for full Great Recession when lawyer income was dropping and layoffs bar.62 law professors in the United States is $147,000, plus an additional were taking place – law professors at many law schools in Ohio Another way to pay for practical training is to cut back on the 27% in fringe benefits.50 58 continued to get regular pay increases On the other hand federal The goal, of course, as endorsed by the Task Force is for better dramatic increase in administrative staff hiring at law schools to Nationally, law professors’ salaries increased 45 percent from judges, including those in Ohio, were denied cost of living training through the integrated education recommended by run a leaner operation.66 In addition, savings can be realized and 1998 through 2008, while during that same period inflation increases let alone raises in 1994, 1995, 1996, 1997, 1999, 2007, Carnegie. A clinical/practice component of and by itself is not the devoted to integrated training through changes in faculty hiring increased by 31%.51 In rough comparison, in Ohio from 2000 to and 2010. According to the U.S. Courts’ website, “a district court end sought by Carnegie, but it is a critical first step to that end. practices. With the glut of attorneys on the market, many of 2009 median net income for all full time attorneys increased judge on the bench since 1993 failed to receive a total of $283,100 Any meaningful adoption of the Carnegie recommendations must whom would give their left arm for the prospect of lifetime tenure, 12.5% from $80,000 in 2000 to $90,000 in 2009, while median in statutorily authorized but denied pay. Appellate court judges of necessity include a significant clinical component towards the starting salaries could be lowered for the new faculty members have lost even more.”59 net income for all full time private practitioners increased 15.5% meaningful integration of practice and theory in law school. hired to teach. Over the course of a 20 to 30 year legal career the 52 from $82,000 to $94,750. Sadly, although this clinical/practice recommendation passed the savings realized through lower starting salaries could be hundreds When You’ve Been Dealt Good Cards, You Hold In general, the salaries of law professors are approximately Task Force, it was strongly opposed by many of the law school of thousands of dollars per professor. Trust me on this one, in this 52 Given the job security, the high level of control over working double those of the average college and university professor. The representatives. Indeed, the Carnegie Report itself makes clear glutted market – and the glutted lawyer markets to come for conditions, the high compensation, the outstanding benefits, the salary and benefits of Ohio’s law professors compare favorably how the lack of clinical requirements places law in a many, many years - there’d be no shortage of amply qualified opportunity to make additional income through speaking and with the national averages. For example, the most recent data companionless category all by itself in the world of professional attorneys to teach law school. Law schools have produced this writing, and the opportunity for significant amounts of time off, from the Society of American Law Teachers shows that in 2008 education. glut of lawyers. Having glutted the market, doesn’t simple market it’s no surprise that law professors don’t want to change anything. the median full law professor salary at Ohio State’s Law School economics tell you that they should at least benefit from that Who would? Compared with the centrality of supervised was $179,609 plus fringe benefits valued at an additional 26.5% marketplace by offering lower starting salaries? Given complete control of a law school, the practice, with mentoring and feedback, in the while the median salary for a full professor at Capital Law School This is not a question of lack of funds in law schools. Law faculty will tend to exercise their authority in education of physicians and nurses or the was $147,482 plus fringe benefits valued at an additional 22%.54 schools are bursting at the seams with tuition-paying students. It is ways that benefit them. Exceptions will exist; importance of supervised practice in the some selfless faculty may sacrifice additional preparation of teachers or social workers, the a question of lack of desire and lack of will by law faculties and The Fringe Benefits salary and benefits for the good of students or relative marginality of clinical training in law their deans. It is a question of lack of creativity. It is an Their fringe benefits are enviable, typically adding another 25 63 for the broader university. But in general, as in schools is striking. unwillingness to reallocate the resources they already have. It is a to 30 percent on top of salary to a law professor’s total other parts of the economy, faculty will refusal to redirect the “research tax” imposed on students to compensation package. Full-timers enjoy full health benefits, full exercise their power to further their own The Supreme Court of Ohio is not nor should it be in the business subsidize the production of little-used faculty research to practical or partial tuition remission for their children, holidays and interests.60 of controlling how subject matter is taught in the classroom. But it training. summers off (if they want), periodic sabbaticals with pay, and the Adopting the recommendations of the Carnegie Report might is in the business of controlling admission to its bar and of To the extent that law schools do recognize the ability to enhance their base salary with summer research stipends. require that professors engage in more, or different, types of work upgrading the quality of attorneys who are admitted to practice importance of skills training, therefore, they They can obtain visiting teaching positions at other law schools outside of their comfort zone. It might require the law school to here. Requiring a strong clinical component as a means to that still insist on “having their cake and eating it with the full security that their old jobs await them upon their spend more money on practical training and less on faculty salary end is a critical first step to that goal. too.” This addition of a skills curriculum return. They are allowed to supplement their salary with increases or scholarship. For law professors, such changes could There is important follow up work to be done in the without cuts elsewhere has been one of the honoraria, fees for speaking engagements, outside consulting and well disrupt the existing order and some of its comforts. implementation of the Task Force’s recommendations. This work major drivers of tuition increases at law for-profit publications. could be done by a follow-up body to be appointed by the schools over the last several decades.67 In addition, at the state law schools law professors participate How Do We Fix It? Supreme Court.64 Nonetheless, in my view the core component of in a retirement system that can provide them with financial The Ohio Supreme Court has sitting before it a the Task Force’s Report is its requirement of a meaningful practice security and a comfortable life well after they retire. At the private recommendation that could help dramatically improve the quality experience before sitting for the bar exam. Continued on page 20

18 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 19 RIHVVLRQD SU O UH S R U

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H Continued from page 19 public while simultaneously making a BILLING 2K 21 U

V living. This is particularly true for our five A PRIMER ON HOT TOPICS IN SCHOOL LAW 23

 There are a number of ways to make this (more than any state in the country)

L THE BASICS ON OHIO’S ADVERTISING AND SOLICITATION

Q work and somehow every other taxpayer supported public law schools. F professional school in this state has Professor Robert Schuwerk of the RULES 24 managed to find a way to provide clinical University of Houston Law Center perhaps COMBAT STRESS 26 or integrated education and to finance it. said it most succinctly: “Law schools are YEAR ONE IN THE LIFE OF A SOLO PRACTIONER 27 run primarily for the benefit of law If It’s To Be Done, We are the Ones professors—not for the benefit of law CHOOSING PERSONAL OVER SOCIAL NETWORKING 28 It is with a high degree of confidence, students, not for the benefit of the legal SPRINGTIME RESOLUTIONS FOR NEW LAWYERS 30 then, that law faculties can say to us “We community, and most certainly not for the LEGAL WRITING TIP OF THE MONTH 31 benefit of the public at large.”68 I hope   
   won’t change, and you can’t make us” TO BE EARLY IS TO BE ON TIME 32 because they’ve proven time and again that Schuwerk is wrong, but the evidence says $
 
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 they won’t (change) and because we’ve he’s not. What will we do about it? 
" 
#
proven time and again that we won’t (make them). So if the definition of ©2011 Jason M. Dolin 
  insanity is doing the same thing over and over again (ie: asking them over and over  
 

again) and expecting a different result, welcome to the asylum. & !

  If Carnegie is right, and there’s little [email protected] 
 doubt that it is, then it’s the job of the Billing 2k bench – particularly the Ohio Supreme $


 Court – and the organized bar associations (Endnotes begin on page 46.) to force the issue because law faculties and The Effect of the Economic Downturn – $
  their deans won’t. If we think law faculties $
 
 will change because we ask, history shows they haven’t and they won’t. If we think The Triumph of Alternative Fee Arrangements over 
  they’ll change because Carnegie’s recommendations are good pedagogy, they the Billable Hour $

 haven’t and they won’t. If we think law faculties will have the By Jameel S. Turner, Bailey Cavalieri epiphany they haven’t had for 100 years, then we do belong in the asylum. As lawyers we say we believe in evidence, not   
 As a lawyer entering my seventh year of practice, I am gaining comfort and confidence in speculation. Well, the evidence is my abilities with respect to the technical aspects of being a lawyer. Researching and interpreting $

#
 overwhelming, after multiple ABA and statutes and case law has become second nature. What has not become second nature, a glaring 
Carnegie reports calling for a more weakness in my professional development, is a firm grasp of the business side of my law practical education over almost 100 years, practice. I chose to be a corporate attorney; so how is it that I find myself spending a significant $


 
 after calls by practitioners to change, that percentage of my time being a collection attorney? law faculties will never voluntarily institute I’m sure I am not the only attorney who routinely asks himself or herself this question. &

# 
 the changes called for by Carnegie and its In today’s economic times, clients are looking to cut costs and balance budgets in more predecessors. If we believe law faculties ways than ever before. In the past, clients seemed to accept the “billable hour” as a $
!
 and their deans will change to an necessary evil essential to the viability and continued success of their businesses. But today’s economy has forced clients to speak out about the high costs for legal integrated education on their own, we’re $
 
 services. Company executives and general counsels are saying “no” to high legal just deluding ourselves. costs and choosing attorneys and firms that offer alternative billing $

# 
  Faculty are granted the special privilege arrangements (ABA). of tenure. The grant of that status carries Accordingly, like clockwork it seems, I get three to five calls at with it a virtual guarantee of lifetime the beginning of each month from clients requesting explanations income that can run into the millions of for items billed or just simply requesting a discount. In a business        dollars for some law professors and where all we have to offer is our time and expertise, this may guarantees them job security and a lifestyle appear to be the client’s attempt to “devalue” our services;      that most practicing attorneys can only however, in reality, it is likely the client’s way of opening the door to an ABA. dream of. With special rights come special The popularity of ABAs during economic crises is  
 responsibilities. Having been granted this nothing new. The difference in 2011 is that, even after the extraordinary privilege of lifetime tenure it economy rebounds, most legal experts believe ABAs    
  
  is not unreasonable to expect – no, it is not will remain viable as both law firms and clients begin to  
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 undertake special responsibilities. been much discussion in the legal community over the Woody Hayes called it paying forward. Jason M. Dolin last few years regarding the utility of ABAs, many    s

  The paying forward that law faculty owe has been an adjunct questions linger as to whether the trend toward ABAs to their students, the profession, and the professor at Capital in the last two years is just a fleeting reaction to the   current economy or a long-term solution. There are public is to properly train students to be University Law %%%  several reasons to believe that ABAs are here to stay. practicing lawyers who can serve the School since 1998. Continued on page 22 20 Spring 2011 Columbus Bar Lawyers Quarterly 22 Spring 2011 23

Continued from page 21 experienced lawyers at lower costs which is well because the firm also benefits from the an extreme benefit to clients strapped for predictability of the fee received as well as The recession has handed clients the cash. The era of clients paying to educate the client’s satisfaction with the arrangement. A Primer on Hot Topics in School Law leverage in determining billing inexperienced lawyers has come and gone. An attorney/client relationship devoid of arrangements. Clients that push back with Law firms have become increasingly willing wrangling over legal bills is one that is in a By Edmund F. Brown, Ulmer & Berne respect to bills, request discounts or ABAs to eliminate the perceived inefficiency of position to last over the course of the have become empowered because law firms overstaffing engagements at the behest of attorney’s career. have also suffered from the impact of the clients, which is unlikely to change once On more than one occasion, I have heard the elimination of all non-essential busing, the been given, it could have a substantial impact economic downturn. Firms are forced to clients become accustomed to it. fellow attorneys say that their law school reduction of elective courses such as foreign on the short term and long term operations of While ABAs are clearly increasing in Ohio’s public schools. School attorneys and make the Hobson’s choice between losing the curriculum didn’t reflect the realities of legal languages and music, and the institution of, or popularity, implementing them clearly creates practice. While I am more than pleased with increase of, pay-to-play fees for extracurricular administrators are working with their local client or considering lowering billable rates Big companies are putting pressure concerns for both the law firm and the client. the training I received in pursuit of my Juris activities. It is the role of the school law representatives and education stakeholders or an ABA. And that is really no choice at all. on executives and general counsel to cut The difficulty that ABAs present is the law Doctor, I tend to agree with that statement; attorney to help school district boards of such as the Ohio School Boards Association, costs and accurately forecast budgets for There are hundreds of firms waiting in line to firm’s ability to predict the amount of hours particularly because of the area of practice I education make strategic and difficult financial Buckeye Association of School Administrators serve the client at the ABA the client is legal fees. Most company executives and the engagement will require over the course have chosen. I have recently joined the School decisions in a manner that limits the potential and Ohio Association of School Business requesting at a moment’s notice. Clients are general counsels are under intense pressure to of the ABA. Thus, firms that offer deeply Law Group in the Columbus office of Ulmer negative impact of these financial hardships on Officials to make sure that our state unlikely to give back this leverage if and cut legal costs for outside counsel and make & Berne. Prior to joining Ulmer & Berne, I students, parents and employees alike. These officeholders are well apprised of the bill’s when the economy begins to perk up. legal budgets more predictable. Because of discounted ABAs in order to get work could suffer losses of profit in the long run. worked in a boutique labor & employment are particularly difficult decisions when it is potential impact. the increased leverage these companies have, firm and as a staff attorney for both the Ohio the goal of every school board district to Law firms in need of work are using general counsels are reaching out to outside Moreover, firms may also have difficulty Bed Bugs predicting what types of work are compatible School Boards Association and the Legislative improve educational outcomes and/or support lower billable rates and ABAs as a counsel to request flat-fee arrangements. Service Commission. While my professional the teachers and administrators as they all Yes, bed bugs! When I was a kid, my marketing tool to attract new business. Flat-fee arrangements for specific areas of with a fixed billing arrangement. From the experience has provided me with what I work to maximize opportunities for parents used to tell me “good night, sleep tight, In essence, law firms have shifted the legal work permit general counsels to predict client’s perspective, the client could be fearful consider to be a solid background for a school educational excellence. don’t let the bed bugs bite!” Little did I know dynamic of the attorney/client relationship to legal costs as well as determine up front the that the quality of the law firm’s work could law attorney, I do not remember “School Law” that a quarter century later, Ohio would act more as a partner than a vendor. Law parties’ agreed “value” for such service. As suffer in order to meet the demands of the being among the course offerings during my Administrative Compacts become a hot spot for the resurgence of these firms have been forced to be innovative in long as the flat-fee agreement is crafted to ABA. three years in law school. Another sign of the economic times is the household pests. In fact, Cleveland, Columbus, developing new fee and billing arrangements capture certain contingencies if a matter Accordingly, the growth of the ABA School Law, for those unfamiliar with it, emerging trend of school districts sharing Dayton and Cincinnati all rank in the top 15 in to get more of the clients work. Firms are enters full-blown litigation, the flat-fee may not mean the complete demise of the is a unique blend of multiple legal disciplines. administrators in an effort to save money. the nation in terms of worst cities for bed bugs agreeing to staff projects with more agreement can be a benefit to the law firm as billable hour, but it has clearly eroded some On any given day a school law attorney may Several districts around the state have entered according to a leading pest control company. of its power. Most legal experts opine that the be dealing with a labor and employment issue, into these so-called “administrative compacts” So it should be no surprise that the bed bugs future of law firm billing will continue to be a such as arbitrating an employee grievance or which allow districts to share the services of a are infiltrating Ohio’s schools on the backs of mixture of ABA and the billable hour; and the responding to the filing of a discrimination school superintendent and/or treasurer, while students and staff alike. School law attorneys are working with firms that seek to master the ability to find the charge with the Ohio Civil Rights splitting the cost of what are typically the most Commission. The next day might require highly compensated school employees. Some school administrators to deal with a myriad of hile ABAs are clearly increasing in popularity, implementing appropriate mix will continue to prosper. issues relating to bed bugs. For instance, how What does this all mean for me and the analyzing the constitutional issue of a student’s districts utilize the same theory internally by First Amendment right to free speech or the employing one administrator, such as an do schools identify whether a bug found in a them clearly creates concerns for both the law firm and the development of my understanding of the W right to due process in a disciplinary assistant principal, who serves multiple classroom or on a student is, in fact, a bed “business” side of my law practice? In the bug? Once identified, how does the school client. The difficulty that ABAs present is the law firm’s ability to proceeding. The day after that, the attorney buildings within the district. Governor Kasich end, I doubt that the popularity of ABAs will may be meeting with stakeholders and has voiced his support for the idea, which may notify the parents of the student on whom the bug was found, as well as the parents of other predict the amount of hours the engagement will require over the end my monthly billing debates, at least for lobbyists to explain the legal arguments related become far more common with state funding now. But a better understanding of the to support or opposition of legislation being to local governments projected to fall between students, that there is a potential problem? What steps must the school take to eradicate course of the ABA. motives driving the debate between the ABA introduced in the General Assembly which 10 and 20% over the next two years. and the billable hour has at least given me the directly impacts school districts, charter and the bugs once an infestation is found and what ability to discuss this issue with new clients community schools. Issues like these are what Legislation steps can school administrators take to prevent up front so that we can decide as “partners” make school/education law such an interesting The state and federal laws to which one student’s bed bug issue from spreading to the rest of the school population? These are all which billing model best fits the client’s area of specialization for me and the finite school districts are subject are constantly issues that schools, and the lawyers that situation. group of school law practitioners throughout changing. One of the more difficult and most the state. To further illustrate this point, here important roles of the school law practitioner represent them, are working through. [email protected] are a few hot topics in Ohio school law. is to stay abreast of the changing legislative landscape so as to keep their clients informed I would strongly encourage any hopeful Collective Bargaining of the legal and ethical standards they must or newly-minted attorney to consider this area Like many other public employers, adhere to. Examples of recent federal of practice. It provides you with the school districts have largely unionized work legislation that has impacted schools are the opportunity to get out from behind your desk forces. With many collective bargaining 2009 amendments to the Family and Medical and travel throughout the state; to have a hand agreements expiring in June, school law Leave Act and the Americans with Disabilities in developing and implementing laws and attorneys are preparing to negotiate successor Act. At the state level, bills have been adopted policies; allows you to gain experience in multiple areas of law all at once; and, most agreements on behalf of their clients. The in the past few years that changed the important, gives you the opportunity to make a current economic downturn has hit school background check requirements for teaching daily impact on children and communities districts particularly hard, as they rely heavily and non-teaching school employees, provided throughout Ohio. on local property taxes for operating revenue. for automatic removal from employment for As foreclosures increase and property values school employees guilty of committing certain [email protected] drop, school revenues decline as well. Add to disqualifying offenses and the repeal of Jarod’s that an $8 billion state budget deficit and a Law, which required local health departments newly-elected governor who has expressed a to inspect schools for certain potential hazards. commitment to balancing the budget, in part, Currently pending in the House by instituting across-the-board spending cuts, Education Committee is House Bill 30, which and it is clear that school districts across Ohio seeks to abolish much of the school funding face enormous economic challenges. plan established by former Governor School districts are seeking revenue- Strickland, eliminate state-mandated all-day neutral contracts and even concessions from kindergarten, eliminate the requirement that their employees. Districts are faced with few school district’s establish family and civic favorable options: wage freezes, increased engagement teams and reduce the period insurance costs, employee layoffs, and covered by school district financial forecasts Jameel S. Turner elimination of positions. The current economic from five years to three. While the bill was climate has forced school boards to consider only recently introduced and no testimony has Edmund F. Brown 24 Spring 2011 25

The Basics on Ohio's Advertising and Solicitation Rules

By Rasheeda Khan, Kegler Brown

We don’t want to admit it, but when it you move forward with your advertising, you misleading. The comments to Rule 7.1 comes to the advertising and solicitation will still want to read the rules, the exceptions provide helpful examples of what may be rules, most of us only retained what we to the rules, and the comments. The Supreme considered misleading. You should ask learned from law school. The "Big No-No" Court's Advisory Opinions are also an yourself two questions: Is the statement under Rule 7.3(a) is easy to remember: No excellent resource when you have a specific verifiable? and Could the statement give the soliciting via in-person, live telephone, or issue in mind. The Advisory Opinions can be client unjustified expectations about the real-time electronic contact. But what about easily searched on the Ohio Supreme Court's results of his case? If the answer to either of the exceptions to this "Big No-No"? And website: these questions is "yes," then the statement when do you need to include the www.supremecourt.ohio.gov/Boards/BOC/A may be in violation of Rule 7.1. "ADVERTISEMENT ONLY" disclosure? dvisory_Opinions. Unfortunately, understanding the Step 1 : Is the communication in response to a request from a prospective restrictions on legal advertising in Ohio Getting Started client? requires a thorough read of three separate Rules 7.1, 7.2, and 7.3 of the Ohio Rules rules (7.1, 7.2, and 7.3 of the Ohio Rules of This is the question that triggers the of Professional Conduct govern all rules on live-contact and disclosures. If a Professional Conduct), including the communications regarding a lawyer's prospective client initiates the contact, then comments. As a result, even the most services. This includes everything from good live contact is permitted and no disclosures motivated attorney with a new advertising old fashioned face-to-face contact to on your written or recorded materials are idea for soliciting legal work can wind up brochures, emails, websites, tweets, required. If the answer is "no" go to Step 2. overwhelmed and intimidated. By the time facebook, and so on. Moreover, regardless of you are finished reading the rules, the the type of communication, it must not be Step 2: Is the person you are comments, and researching the numerous false, misleading, or nonverifiable. This communicating with a lawyer or do you have Advisory Opinions, you may say to yourself, sounds simple, but even truthful a close personal, or prior professional "why risk getting in trouble?" Before you communications can be misleading. Classic relationship with that person? throw in the towel, consider taking a few examples of nonverifiable and/or misleading minutes and reading the rest of this article communications are statements such as If the answer to this question is "yes," and the easy, breezy, quick and dirty flow- claiming that you are the "best" or "most then live-contact is permitted and no chart below. respected," or have an 80% win rate at trial. disclosures on your written or recorded The chart should only serve as an easy Characterizing your fees as "lowest," "below materials are required. If the answer is "no" way to get started with your analysis. Before cost," "discount" or "special" is also go to Step 3.

Step 3: Is the communication "live"? or announcements, then your materials are If the answer to this question is "no," go If the answer to this question is "yes," "untargeted" and would not require any type of on to Step 6. If the answer to the question is then the communication is not permitted. disclosure. If you determine that your "yes," then you need to include the 3 Basic Soliciting professional employment from a materials are "targeted," review the basic Disclosure Requirements described in Step 4 prospective clients you do not know (there is disclosure requirements below and then go on above and the exact text entitled no close personal or prior professional to Step 5. "UNDERSTANDING YOUR RIGHTS" that relationship) is an easy way to get yourself in is included in Rule 7.3(e). big trouble. It is also important to understand Basic Disclosure Requirements: that this prohibition includes live, internet chat After you determine that your Step 6: Has the prospective client been rooms and telephone calls. communication is in fact "targeted," the named as a defendant in a civil action? If the communication is written communication, at a minimum, must include If the answer to this question is "no," then (including electronically) or recorded, then it is the following: you need only include the 3 Basic Disclosure permissible so long as it is in compliance with (1) Disclose accurately and fully the Requirements described in Step 4 above. If the the disclosure requirements set forth in Rule manner in which the lawyer or law firm answer to this question is "yes," then you must 7.3. Go to Step 4 to determine which became aware of the identity and specific legal first verify that the party has been served with disclosure requirements apply. need of the addressee; notice of the action before you send the (2) Conspicuously include in the text communication. After you have verified Step 4: Is the communication "targeted"? and on the outside of the envelope, if any, and service by consulting the docket, your Rule 7.3 includes a number of disclosure at the beginning and ending of any recorded or communication will need only include the 3 requirements that if applicable, must be Basic Disclosure Requirements. electronic communication the recital - included in your written or recorded advertising materials. The disclosure "ADVERTISING MATERIAL" or [email protected] requirements turn on whether the materials are ”ADVERTISEMENT ONLY"; and "targeted" or "untargeted." The test for (3) Disclaim or refrain from expressing "targeted" versus "untargeted" is whether the any predetermined evaluation of the merits of lawyer has a reasonable belief that the the addressee's case. prospective client is in need of legal services in a particular matter. For example, if you are To determine whether your sending letters to individuals who have communication will require additional recently been in a car accident or have a disclosures, go on to Steps 5 and 6. warrant for their arrest, then you are obviously aware that the prospective client is in need of Step 5: Is the communication being sent legal services in a particular matter, and within 30 days of an accident or disaster that therefore your letters are "targeted." If you are gives rise to a potential claim for personal merely sending out business cards, brochures, injury or wrongful death? Rasheeda Khan 26 Spring 2011 27

vitamins and minerals. Other options include eggs, low-fat waffles, cereal and low-fat milk, Combat Stress or an English muffin with some turkey and Year One in the Life of a Solo Practitioner cheese. Anything with a combination of protein, carbs and fiber should do the trick with Some Simple and give you the energy you need to make it By Tonya R. Coles, Law Office of Tonya R. Coles Nutritional through the morning. PACK IT: While eating lunch out is sometimes the only break we get during the “Solo” does not have to equal “isolated.” The best piece of Improvements day to catch up with colleagues and take a breather, eating lunch out every day can advice I received from experienced lawyers was to be wreak havoc on your health. You might think you’re saving time or getting a healthy lunch, careful not to isolate myself in my practice. I was but chances are taking five minutes the night before to pack will be quicker and much encouraged to maintain relationships with other lawyers, to healthier than eating out. Even if you can pack a few times a week, your health, and get involved in legal associations, and to find ways to wallet, will thank you for it. contribute to my community outside of the legal profession. By Stephanie R. Hanna, The Hanna Law Firm MAKE HAPPY HOUR HAPPIER: As attorneys, we drink a lot. Our waistlines don’t have to show it though. Alcohol is one of the sneakiest ways calories make their way I have been in solo practice for my to run, and what type of client I wanted to result for my clients. I value that experience into our bodies. Along with the calories in the entire three and a half year legal career. I truly attract. A budget would help me to get a good because it prepared me to take on more As attorneys, we know a thing or two allows you to take more frequent breaks alcohol, our judgment tends to slip a little, feel that I was created to be a solo handle on what my expenses would be and complex cases over time. I continue to make about being stressed. It has been known for throughout the day to keep energy levels up. resulting in eating things we otherwise practitioner. I enjoy solo practice most would serve as a guide as I set my hourly and pro bono and reduced fee legal work a years that this stress carries with it many wouldn’t. Just one ounce of distilled 80 proof because of all of the great people I meet. flat rates. This advice was invaluable because priority. I assist elderly clients on fixed mental and physical health risks. Some BE PREPARED: There’s nothing like vodka has over 70 calories, and that is on the Because I am a “one-woman show,” I it gave me a purpose. After creating the incomes through ProSeniors, Inc. and I reports label attorneys as having the highest waiting in court for your case to be called low end in terms of calories. A great default personally handle every aspect of my client business plan and budget, I could focus my continue to serve as a referral attorney for rates of depression and suicide of any while your stomach is talking up a storm. drink is a vodka soda with a slice of lime. If cases. I also enjoy that solo practice allows energy on putting the work into building what Legal Aid Society of Columbus. profession. Fifteen to eighteen percent of Keep easy non-perishable snacks like protein you’re feeling really crazy, skip the vodka me to be a small business expert, a marketing I had put on paper. Each year, I review my attorneys will have substance abuse problems bars, raisins, nuts, trail mix, and granola bars and no one will know the difference! guru and a counselor in addition to a lawyer. business plan and budget to make sure that I It is my hope that these lessons can versus just ten percent of the general handy so you always have a healthy option When I started my practice in 2007, am on target for meeting the goals I set for provide some insight for new lawyers, or handy. Since busy, stressed out attorneys are population. Among the results of being so IT’S OK TO SAY NO: While going however, I didn’t feel that I was created to be myself. anyone thinking about starting a practice. If likely to spend countless hours in the office, out, drinking and eating greasy food all the a solo practitioner. Quite the opposite in fact. you have a desire to start a practice, I stressed, poor nutrition habits and lack of investing in a small fridge (under $100) can exercise are usually at the top. As we get time is certainly fun, it can do some serious I felt that solo practice was thrust upon me “Solo” does not have to equal encourage you to go for it. You are not be a great investment so you can keep cold damage to your health, not to mention your guaranteed to have the same first year busier and, inevitably, more stressed, we tend snacks such as yogurt, hummus, string out of necessity to make a living. In May of “isolated.” The best piece of advice I received to make poor nutritional choices that can wallet. As new attorneys, we are always 2007, when I passed the bar exam, the from experienced lawyers was to be careful experience that I did, but you are guaranteed cheese, fruit and veggies handy. Another agreeing to go to a happy hour or dinner, and to learn a lot more about yourself in the actually further increase our stress levels and great idea is to take a grocery bag full of economy was suffering. There were few legal not to isolate myself in my practice. I was cause other problems. sometimes forget that we have the power to jobs available. Law firms were hiring few, if encouraged to maintain relationships with process of building your practice. And you healthy snacks to your office at the start of just might find life as a solo attorney as Even if you know you need to eat better say no. This certainly does not mean telling a any associates. I had an “Aha” moment other lawyers, to get involved in legal each week to make sure you’re fully stocked. rewarding as I do. and get more exercise, you’re likely so busy partner you have to go to the gym or go home (thanks Oprah!) during my New Lawyer associations, and to find ways to contribute to and eat some carrots, so you’ll be unable to Training workshops that summer. I learned my community outside of the legal with clients, court appearances, kids, and/or GET INFORMED: Nothing empowers [email protected] spouses that it seems virtually impossible to attend a client dinner; but being aware that there that just about everyone I knew was profession. I still value all of the relationships you to make smart choices like knowing what you can say no to a night of drinking or a undertake some major life changes. Luckily, you are putting in your body. Don’t be afraid applying for the same opportunities. I did not that I started building in that first year. I keep greasy dinner every once in a while has its know it that day, but that realization prepared in contact with law school friends, seek the you can see vast improvement in your mood, to read labels and get informed on what is in benefits. energy, stress level, and probably your the food you are eating. Websites like Calorie me for the phone call I received a few weeks counsel of mentors, and attend community waistline, with just a few simple adjustments. King (www.calorieking.com) make it easy to later from a law school friend. He told me events. In addition, I serve on the board of a HAVE APLAN: It is certainly not about an available office space in his building youth center and write a monthly legal article Now, I’m no doctor, but I have been a self type in a food and search their database of possible to plan every meal of each day, but proclaimed health and exercise nut for quite over 17,000 foods for nutritional info. and encouraged me to give solo practice a try. for my church magazine. I feel that I am a having a general plan in mind can be And so I did. much better lawyer because of these some time, and these tried and true tips have extremely helpful. Some people can stick to a yet to fail me. (However, I will still make the PORTIONS: After you’ve gotten My first year was full of excitement, activities. Talking through cases with clean eating diet Monday through Friday and challenges, successes, and failures – too colleagues helps me to approach legal matters ever famous disclaimer that you should information on the nutrition contents of food, use the weekends for splurges. Others need a always consult with a physician before trying the next thing to do is make sure you are many of each to share here. But, what I can from a different perspective. Participating in 100 calorie splurge every day. Whatever it is, share are a few of the most important lessons community events helps to enrich my any new diet or exercise program.) eating the right portion. A scale and coming up with a plan for your lifestyle will measuring cups can be some of your greatest I learned in that first year: practice by giving me non-legal skills that I help you stay on track. can bring to client meetings. WATER: Drinking plenty of water friends. While you don’t have to measure everything all the time, it is pretty eye Solo practice is as much about running a might be the single thing you can do to get [email protected] opening to measure your normal amount of business as it is about practicing law. I spent Supplement your paid cases with pro the most dramatic results. Keeping your body cereal and see how much more than 1 cup it my first two months as a solo practitioner bono work. In the beginning, when my client hydrated is crucial because it affects so many really is! Over time, you will get good and learning how to run a business, not learning base was nonexistent, many lawyers things. Your skin is your biggest organ, and eyeballing an appropriate portion. how to practice law. During those two suggested that I gain legal experience by keeping it hydrated is vital. Your hair and months, I talked to every solo lawyer and doing pro bono and reduced fee legal work. I nails will get stronger and healthier as well. EAT BREAKFAST: Yes, yes, it’s the small business owner I could find. I asked started out by taking pro bono and reduced Aim to drink about half of your body weight most important meal of the day; but, did you them what it took for them to build a business fee cases from Legal Aid Society of in ounces every day. know that eating breakfast is the number one and to sustain it long term. I heard a recurring Columbus. Those cases were some of the thing that healthy people do? Breakfast theme from all of them – be prepared. They most rewarding I have had. Through those EAT SMALLER MEALS, MORE breaks the fast your body was in the night all told me to create a five-year business plan cases, I gained my “sea legs” as a lawyer. I OFTEN: Aiming for 5-6 small meals about before and gets your metabolism going. and a budget. The five-year plan would help learned how to deal with sensitive client 2-3 hours apart is a great way to keep your Instant oatmeal has come a long way and me to focus in on what type of lawyer I issues, how to navigate the court system, and body and mind going all day long. Plus, it now many varieties are full of protein, fiber, Stephanie R. Hanna wanted to be, what type of practice I wanted the value of working hard to obtain a good Tonya R. Coles 28 Spring 2011 29

I’m writing this in the middle of January and, via that exposure, ultimately, increase when snow is on the ground and lingering your client base. Sounds easy, right? Christmas decorations still adorn rarely used Although the ease of achieving those goals is Choosing Personal portions of my house. A new year brings new individual, with the right dedication and do not expect to get clients at large networking events; I expect to meet people. I hopes and new goals. expectations, you can and will increase your Some people decide to eat healthier. For client base – regardless of whether the Ihave genuine conversations with several people and learn a little about them on a me, that goal lasts until college football bowl increase is from zero clients to a handful or season – when a dozen “must watch” games from several clients to so many that you need personal level. I am not there to shove a business card in their hands. over Social occur in the first week of January. My goal to your own associates to keep up with your exercise also dwindles a few weeks into the demand! new year because it’s just too cold, or too Young lawyers, who are overachievers dark, or the gym is too crowded, or there are by nature, frequently put the cart before the too many college football bowl games to horse. Especially in today’s society where we making romantic advances and some are just legal work she can or cannot immediately Networking watch, or … you get the idea. seek immediate gratification, attorneys often leery of actually meeting a stranger. shuttle your way. Law firms frequently use the beginning expect instantaneous results from networking. The people you’re meeting already One caveat to remember is that if the of the year to reflect on the past year’s clients, I created a LinkedIn profile, so I should have know you’re an attorney and can easily find person you want to meet with consistently By Matt Austin, Barnes & Thornburg cases, business contacts and marketing clients. I tweet, so I should have clients. I out that you specialize in commercial real cannot meet or cancels the meeting on endeavors. spoke at a trade association, so I should have estate. Instead of approaching a personal multiple occasions, does not offer other dates Well-intentioned lawyers determine clients. Unfortunately, the world of lawyering meeting with the goal of obtaining a client, he is available or is too busy to meet for the ways to increase all of the above; some seek does not work that way. approach the meeting with a genuine interest foreseeable few weeks, that person is not writing opportunities, or opportunities to Clients must be earned and networking in learning about the person on a personal interested in meeting with you. Don’t take it etworking at group functions, in my opinion, is extremely difficult personally, and don’t be a persistent pest. educate others through speaking at seminars is an art that very few have mastered. I have level; focus on commonalities such as Lastly, you will be an attorney for the for new lawyers. Many in the group already know each other, but or being quoted in publications. Some not mastered it, but I enjoy networking and friends, family, schools, churches, N next few decades. Your career is a marathon, lawyers join non-profit boards that provide will share what has and has not worked for communities, sports and restaurants. you don’t know anyone. You want to meet people, but don’t want to professional exposure as well as altruistically Networking at group functions, in my not a sprint, and with age comes wisdom, me in the past. respect and confidence. Whether writing, helping a cause dear to their hearts. Many opinion, is extremely difficult for new First, your expectations must be speaking or mingling, if you want to be intrude into a group of people already conversing, and you are leery of attorneys enthralled by social media have tempered. New lawyers are by definition lawyers. Many in the group already know LinkedIn, Twitter, Facebook and other successful, then you want to make marketing inexperienced, and who wants to spend each other, but you don’t know anyone. You a part of your weekly routine. being blindsided by the dreaded “I’ve got a situation…” question if you accounts that they diligently manage. Still money on an inexperienced attorney? want to meet people, but don’t want to others subscribe to the time honored tradition don’t know the answer. So hanging out by yourself or with others your Certainly not me. In fact, I don’t hire intrude into a group of people already [email protected] of networking through breakfasts, lunches, inexperienced doctors, bankers or repairmen conversing, and you are leery of being own age seems to be where most new lawyers find themselves. after work drinks and mingling at various and I don’t expect them to hire me. blindsided by the dreaded “I’ve got a trade association events. New lawyers are also typically young, situation…” question if you don’t know the Whether writing, speaking, joining perhaps even the age of their prospective answer. So hanging out by yourself or with boards, engaging in social media or mingling, clients’ children or grandchildren. And not others your own age seems to be where most the goal is the same: increase your exposure until wrinkles adorn your face or your hair is new lawyers find themselves. grey (or missing) will some people find you People like you aren’t hiring lawyers. worthy as an attorney. While your age and Even if you practice DUI defense or family physical features may make landing clients law, people hire their friends’ more challenging, you shouldn’t sit idle while recommendations over “the guy I met at the other baby-faced rookies network. silent auction.” Instead of giving up on trade Second, make personal connections with association events, with the right level of prospective clients. New lawyers are expectation, these functions are fertile incredibly efficient at social media, and grounds for practicing and succeeding at combining your Facebook friends with your networking. LinkedIn connections and your Twitter I do not expect to get clients at large followers, you are likely cyber-related to networking events; I expect to meet people. I hundreds or thousands of people. But lawyers have genuine conversations with several are not hired for our prowess at people and learn a little about them on a communicating in 160 characters or less. We personal level. I am not there to shove a are hired because our clients believe we are business card in their hands. competent at what we do, and for that, Still don’t buy into networking at trade potential clients must either know us association events? Start by finding the group personally, or trust a referral source who of insurance salesmen, bankers and tax knows us personally. advisers; they’re present for the same reason So get out from behind the keyboard and you are and are equally as uncomfortable. meet people. Meet them anywhere and at any Together you can all commiserate about not time. A very successful attorney who has knowing anyone and not wanting to break mastered the art of networking told me that into already formed cliques. By the end of the he sometimes has two breakfasts in the evening, you will have left with names and morning with two different prospective business cards of a handful of new potential clients. referral sources. These meetings are not for you to sell Because networking events are fluid yourself as a lawyer; they are to actually get where people pop into and out of to know the person behind the Internet conversations, follow-up meetings are profile. Just who is @MHJones? required in order to truly get to know a new Remember to temper your expectations, contact. The easiest way to arrange that “next though. As wonderful and intelligent as you step” meeting is to send her an email or offer think you are, not everyone will want to meet to connect with her on LinkedIn. From there, you – some will think you’re meeting to sell continue the genuine interest in getting to your legal services, others will think you’re know the person and not focusing on what Matt Austin 30 Spring 2011 31

SPRINGTIME RESOLUTIONS FOR NEW LAWYERS Legal Writing Tip of the Month: Considering Tone as a Tool for Good Legal Writing By Janica A. Pierce Tucker, Chester Willcox & Saxbe By Jameel S. Turner, Bailey Cavalieri

“Spend an hour day thinking about your to set goals to assist in your development of events a month – whether it is attending an practice and/or talking about it with a being a great attorney. event or taking a client to lunch. Legal disputes are often settled through that will make a reader decide whether the perceiving the merit of your arguments. A significant other or trusted colleague. Don’t Spring holds many promises, a promise • Do one thing every day that makes you soar. negotiation. Negotiation often takes place writer is credible. If the tone of a document is colloquial or journalistic tone may make the through written communications between the wrong, most readers will stop reading it. reader think you are not really taking the think about how to fix, repair, or commit to of new ideas, and promises that inspire • Take time each day to think and parties. Recently, in my practice, I have In legal writing, it is generally a good issue seriously or are not capable of taking remedial work. Instead, focus on what you’re success. With the changes in the economy, concentrate. observed the importance of the role that idea to adopt a tone of measured rationality, the issue seriously. A vague or ambivalent a already very good at and capitalize on that lawyers are faced with the challenge of doing • Experience the present fully. “tone” plays in legal memoranda and how the as if the author is saying “let us reason tone will cause the reader to doubt whether he strength. We all grow by building on things differently in order to be successful. • Create a clear vision – focus on the big absence of proper tone can cause a legal together on this issue.”3 Develop a tone that can gain anything from your document at all.4 strengths, not trying to metamorphose every The following are some tips to assist picture of your practice in order to successfully grow it. During uncertain document to fail to accomplish its intended addresses a reasonably intelligent audience On the other hand, a carefully weakness into idealized perfection. We’re all you achieve your Springtime Resolutions in purpose. who until now has had little or no exposure to considered and measured tone will aid the imperfect. Success trumps perfection.” – your practice: economic times, the urge to get back in the business rather than work on the business The importance of tone is often the issue on which you write but who is about author’s credibility even if his legal position Alan Weiss overlooked by novice legal writers and even to make an important decision on it. Assume is tenuous. A rational tone will cause the • Instead of making big changes once a year, is powerful. But thriving business is sustained when the owner drives the experienced legal writers can sometimes your audience has some serious reservations reader to think globally about the subject A resolution is a commitment that an making little changes on a regular basis. allow aloofness and condescension to creep about your legal position, but has not yet instead of focusing on minutia. Proper tone, individual makes to one or more personal • A Juris Doctor is a professional degree – be direction of the business allowing flexibility and transformation. into legal memoranda. Tone is a literary made up his or her mind on the subject. Your when strategically employed, can transform goals, projects, or the reforming of habits. nice and courteous to your opposing technique that is part of a composition, which job includes anticipating and meeting all of an inexperienced associate into a seasoned Whether you are a solo practitioner, an counsel. • Pay attention to your thoughts process which can inform why you acted in a encompasses the attitude toward the subject your audience’s objections and other senior partner in the audience’s eyes. Thus, associate in a law firm, or a government • Set realistic goals for your practice and toward the implied audience of a literary concerns. It is more effective to address your young lawyers should always consider tone attorney, it is always beneficial to your career development, such as three networking certain manner. • Concentrate on your clients; be authentic; work. Elements of tone include diction (word audience’s concerns head on, not in a as an important aspect of any legal document resist temptation to get distracted choice), syntax (the grammatical arrangement defensive or emotional way, but by when negotiating through written of words for effect) and detail (choosing what incorporating those considerations that seem communications. • Have more positive thoughts than negative; 1 pend time with family and friends – work towards a balanced life. maintain a 3:1 positivity ratio of positive facts to include or omit). Accordingly, tone, to cut against your position within the thoughts to negative emotions creates a if properly used, is a tool that a legal writer framework of your persuasive analysis of the [email protected] S tipping point between languishing and can employ to control his audience’s attitude controversial issues. 2 1. flourishing. toward the document. A forceful or emotional tone will make Black’s Law Dictionary, 5th Tone is closely related to purpose. The the reader feel attacked. This may Edition, 2010. • Create a business development plan; put it 2. in writing; put tasks and dates on your most common purposes of any legal not only make the reader Ober, Scott. calendar for your plan to make sure you are document are to inform and to persuade. To angry, but may also Contemporary Business accountable. decide what kind of tone your document distract him Communication. 2nd • Delve deeply into your chosen niche and should have, consider the audience you want from Edition. Boston: to persuade about the point you are making in Houghton Mifflin, 1995. become the expert. Begin to build your 3. own unique brand. the document. Keeping your audience in Samuelson, • Be thankful for the gifts you have received. mind throughout the preparation of your Pamela, Good Legal Appreciate others and say “thank you.” document will help you choose the Writing: of Orwell • Surround yourself with people who are proper tone and also keep the and Window open-minded and who are willing and able tone of the document Panes, 46 to help and support you to reach your consistent. University of goals. The tone of a Pittsburgh Law • Get involved in something that you are legal document is Review, 149 one of the (1984). passionate about. 1. • Take the time to learn something new. primary Id. • Spend time with family and friends – work things towards a balanced life. • Learn from the past and celebrate success.

There are plenty of ideas and ways to achieve your Resolutions – stay focused and committed.

[email protected]

Janica A. Pierce Tucker Jameel S. Turner 32 Summing Up To Be Early Is To Be On Time TRIAL BY JURY By Mark G. Kafantaris, Kafantaris Law Offices How Did It Start And Where Will It End?

The morning traffic was heavier than Fourth, if we are in a new or out-of- not budge much from his last offer. No matter By Frank A. Ray expected and the young lawyer was running town court, getting there early will help us how emphatically the plaintiff’s lawyer late for a hearing in federal district court. He get a feel for the hum and pace of the place threatened to try the case, there was no got there twenty minutes late. As soon as he and thus allow us to be more comfortable in movement from the other side. One walked into the courtroom, the bailiff the foreign setting. We will also have a explanation might be that in chatting with the The wisdom of our sages and the blood of our heroes Seventh Amendment that reads as follows: summoned him into the judge's chambers. chance to interact with the relevant court staff client, the adjuster figured that a trial was the has been devoted to the attainment of trial by jury. It “In suits at common law, where the value in controversy shall and take careful note about how others last thing that she wanted. exceed twenty dollars, the right of trial by jury shall be preserved, "Why weren’t you here at 9 o'clock?" the should be the creed of our political faith. and no fact tried by jury, shall be otherwise re-examined in any interact with them. judge belched out. "I am sorry, your Honor," — First Presidential Inaugural Address, Thomas Jefferson (1801) court of the United States, than according to the rules of the he began, "the traffic on I-480 was ..." "Tell "But you can do all this at your own Ethical considerations aside, this example shows that the early bird gets the common law.” that to the Marshal," the judge interrupted as leisure," another lawyer might tell us. "They The Ohio Constitution followed the example of our national the Marshal stepped forward and took the always run late in that court and the judge worm. If we are in court early, we can review documents. the case, note any items that may be missing, s lawyers, we find the essence of our professional lawyer by the arm and escorted him to the doesn’t The Ohio Constitution also established the judicial branch as jot down some notes, and even see the validation within state and federal constitutions. elevator. No sooner did the elevator door even one of the three branches of Ohio state government.2 The Ohio judge's reaction towards others. This extra Constitution instructs, “The right of trial by jury shall be inviolate close, the Marshal gave the lawyer a time permits us to fine tune our approach or quick jab with his elbow. It knocked A except that, in civil cases, laws may be passed to authorize the presentation accordingly. Who knows, we Our nation’s founders perceived an effective justice system as so rendering of a verdict by the concurrence of not less than three- the wind out of him and the lawyer might even establish a greater rapport with inherent to democracy that Article III of the United States fourths of the jury.”3 tried hard to remain standing. the staff that could prove helpful on that Constitution established the judiciary as one of three branches of While the United States has uniquely preserved the jury trial as "You'll be fine," the Marshal or another day. federal government. The Continental Congress declared in the an integral component of democracy, the concept of the jury trial yelled, "but don't you ever As such, we should strive to be Constitution, “The trial of all Crimes, except in Cases of probably finds roots in ancient Greek civilization. One historian be late for this judge early even if we know the court runs Impeachment, shall be by Jury.”1 Three years after ratification of traced the first written description of a process akin to trial by again." late. After all, what is another the U. S. Constitution in 1791, the states ratified the Bill of Rights, Later that morning, fifteen minutes to a half hour, or including a mandate for trial by jury in civil cases through the Continued on page 34 the door to the small even an hour? The early arrival room where the young might prove invaluable in lawyer was taken representing our client's interest, opened and he went while giving us another chance home. He vitally to talk to them and see what it recalls the experience is our clients actually want decades later and from the case. Moreover, with occasionally relates it today's cell phones, we might to others in his own even be able to oversee things chambers now as a at our office and home, or judge. maybe even catch up with Ours must be the current events. At bottom, we are only profession where more effective advocates if we are being late could lead to ready, prepared and in tune with our time in jail. Though this is case and surroundings so that we can motivation enough to be on easily spring into action as soon as the time, we should nevertheless matter is called. There are already strive to be early. "When I started enough obstacles in our path toward out, I made it a habit to be 15 effective representation over which we have minutes early," a seasoned insurance little or no control. Getting there early is defense lawyer once said. "And this has something over which we have control, and always served me well." take indeed might prove to be one of the best Let us reflect on why. First, when we are the bench habits we can make. Reinvent Join the Athletic Club early, we have a chance to calm down and until 10 o’clock." Even if this were true for your routine. of Columbus. collect ourselves after the drive or walk to the some courts, we should still try to be early – [email protected] courthouse. Second, we can take another look if for no other reason than because the other 136 East Broad Street | accolumbus.com | 614.221.3344 at the file and refresh our mind with the side might be there before us. issues of the case; review the points we need An experienced lawyer found the value to make; and consider how we should of this just recently. Even though he was on approach any last minute developments. time for the scheduled mediation, when he Third, when we get there early, we can arrived, he found his client already there and talk more with our client, as well as with engaged in intense conversation in a different opposing counsel. Are there indications from language with another woman whom he took either of them that we may have overlooked? to be his client's daughter. In fact, she was the What are they saying between the lines? Are claims adjuster for the opposing party’s there new developments that we should insurance carrier. The mediation went quickly take into account? forward but the defendant stubbornly would Mark G. Kafantaris

Spring 2011 Columbus Bar Lawyers Quarterly 33 Summing Up Summing Up

Continued from page 33 Virginia. The First Charter of Virginia Justice Statistics of the U.S. Department of the torch for advocacy of preservation of 6. Matthew Hale, The History and Analysis 13. Winston Churchill, A History of the guaranteed inhabitants of the colony with Justice published a survey of civil bench the right to trial by jury succeed or fail? of the Common Law of England, p. 264 English Speaking People, Vol. I, p. 217 jury to an Athenian Statesman named protection of the Magna Carta, which and jury trials conducted in state courts in We can trace history of the origins and (1713) [ Legal Classics Library, 1987]. (Dorset Press 1956). Solon, who lived between 638 and 558 provided for the right to trial by jury as 2005.17 The Department of Justice claims evolution of the American trial by jury. We 7. William Blackstone, Blackstone’s 14. Chief Justice Earl Warren, “Forward” in B.C.4 Other historians have attributed inherent to such protection. The charters that this study was “the first nationally can only ruminate and speculate about its Commentaries, Vol. 3, pp. 349-350 Joiner, Civil Justice and Jury, p. v-vi implementation of the Greeks’ vision of of the other twelve British colonies representative measure of general civil (i.e., future. Fortunately, constitutional (Prentice Hall, 1962). documents are emblazoned with language (1768). trial by jury to early Britons, who learned followed suit with Virginia. tort, contract, and real property) bench 15. Parklane Hosiery Co. v. Shore, 439 U.S. 5 for preservation of the right to trial by jury 8. Frank Stenton, Anglo-Saxon England, of the concept during Roman occupancy In 1689, the Bill of Rights of Great and jury trials in state courts of 322, 340, 343-344 (1979). or during occupancy by the Saxons.6 Britain guaranteed “the right of trial by an jurisdiction.”18 which even uninspired advocacy should Vol. 2, The Oxford History of England, 16. Gregory P. Joseph, et al., The Vanishing The vaunted eighteenth century English impartial jury to all English citizens.” The Justice survey concluded, “In the not disturb. pp. 510-511, 651-652 (Clarendon Press, Trial:” The College, The Profession, The legal scholar, William Blackstone, ascribed Enacted by the United States Congress nation’s 75 most populous counties 3rd Ed., 1971). Civil Justice System, American College creation of the concept of trial by jury to on July 13, 1787, the Ordinance of the [including Franklin County, Ohio], the The author gratefully acknowledges J. 9. James Thayer, A Preliminary Treatise on Alfred the Great during his rule of England Northwest Territory guaranteed the right number of civil trials decreased by 52% Kendall Few, Trial by Jury, American Jury of Trial Lawyers (2004). 17. within the time frame of 871-899 A.D.7 of trial by jury. Ironically, citizens of the from 1992 to 2005.”19 Trial Foundation (1993), as an invaluable Evidence at the Common Law, p. 66 Lynn Langton, et al., Civil Bench and Whatever the origins of the concept, thirteen original United States did not Perhaps there was good reason for resource for research on the history of trial (Little, Brown & Co., 1898). Jury Trials in State Courts, 2005, U. S. history’s recordings acknowledge secure this federal right until four years plaintiffs to seek alternative dispute by jury. 10. John Fortescue, In Praise of the Laws of Department of Justice, Office of Justice Programs, Bureau of Justice Statistics development of trial by jury in a form that later. resolution as compared to submission of England (1486), as reported by (2008). resembles modern American judicial On December 15, 1791, ratification by assessment of civil disputes to juries. Theodore Plucknett, A Concise History process to the English, dating from the states confirmed adoption of the Bill of Justice’s survey found the following: “The 18. Id. of the Common Law, pp. 133-134 approximately 1000 A.D.8 Rights and through the Seventh median final award in jury trial within the 19. Id. 1. th English historians often credit King Amendment, the right to trial by jury in nation’s 75 most populous counties also Article III, Section 2[3], U. S. (Little, Brown & Co., 5 Ed., 1956). 20. Id. Constitution (1788). 11. Alexis de Tocqueville, translation by 21. Henry II (1154-1189), the great-grandson civil disputes. Ratification of the Bill of decreased from 1992 to 2005. The median 2. Id. Article IV, Ohio Constitution (1802) 22. of William the Conqueror, as the “Father Rights and the Seventh Amendment jury trial award in the largest counties was 3. Article I, Section 5, Ohio Constitution Alfred A. Knopf, Democracy in America, Id. of the Modern Jury System.”9 King Henry fulfilled the aspiration of John Marshall, $43,000 in 2005, down 40% from 1992 in (1802). p. 265 (1838) [reprint, Legal Classics II’s laws provided an impetus to the the first Chief Justice of the United States. which the median award was $72,000. 4. Rene´ Wormser, The Law, pp. 52-58 Library, 1988]. process that reflects similarities to our Chief Justice Marshall wrote, “I hope that This trend was driven by decreases in (Simon & Schuster, 1949). 12. Bernard Schwartz, The Roots of the Bill current-day jury system. in this country where impartiality is so awards for motor vehicle tort trials, in 5. Maximus A. Lesser, The Historical [email protected] of Rights: An Illustrated Sourcebook of In events 26 years after the death of much to be admired, the laws will direct which the median jury awards declined Development of the Jury System, p. 171 King Henry II, English history offers the facts to be ascertained by a jury.”12 from $41,000 to $17,000.”20 (Lawyers Cooperative Publishing American Freedom, Vol. 4, p. 811 Frank A. Ray, most dramatic symbol of a populous’ In the historical work published by Yet, Justice’s survey determined that Company, 1894). (Chelsea House Publishers, 1980). Chester Willcox & Saxbe demand from freedom under law and for Winston Churchill about his beloved “product liability trials had median awards recognition of trial by jury as essential to country, Great Britain, he offered lavish at least five times higher in 2005 than in that freedom. In 1215 A.D., on the plain at praise for the civil jury system. He 1992, and in medical malpractice trials, Runnymede, on the banks of the Thames declared, “Plaintiff and defendant alike median awards more than doubled to River, a band of English rebels extracted have a safeguard from arbitrary perversion $682,000 in 2005 from $280,000 in from King John his agreement to a of the law.”13 1992.”21 constitutional government. That agreement High praise for the jury system became a In 2010 and today, if one were to check    
  produced the Magna Carta. In the 39th central theme in legal commentary offered activity of the federal trial bench at clause of the Magna Carta, the following by United States Supreme Court Chief Marconi Boulevard and Gay Street, language memorialized the right to trial by Justice Earl Warren. Chief Justice Warren Columbus, Ohio, the U. S. District Judges &( %)"
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+''&(* the English common law with such a right of trial by jury in civil cases at courts in 2005.22 Obviously, this degree of reverence that in 1468 Sir John common law is fundamental to our history percentage does not include an additionally Fortescue, Chief Justice of the King’s and jurisprudence. . . . The founders of our substantial number of tort cases resolved, Bench, declared: “Trial by jury is the most nation considered the right of trial by jury disposed, or abandoned without filing of rational and effective method of in civil cases an important bulwark against civil lawsuits. discovering the truth.”10 tyranny and corruption, a safeguard too With the significant decline in civil cases According to Alexis de Tocqueville, the precious to be left to the whim of the that proceed to juries for disposition, one noted nineteenth century French sovereign.”15 could expect a correlative decline in sociologist and political scientist, during Particularly in the last half of the opportunities for up-and-coming “trial the reigns of Henry VIII (1509-1545) and twentieth century, the lights in American lawyers” to secure essential experience in  

 

 
 

 Elizabeth I (1558-1603), “The civil jury state and federal courthouses regularly the courtroom. Has our laudable zeal for did in reality, at that period, save the illuminated courtrooms to accommodate alternative dispute resolution produced an liberties [of the English people].”11 jury trials on civil dockets. In 2004, the emerging unintended result – a largely 

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 government accorded the right to jury trial published a report on the diminishing perform as competent advocates in our   
   in England’s American colonies occurred in number of civil jury trials entitled “The American courtrooms? If this is true, will ,,,)!% " (&,%)&$ 1606 upon issuance of the First Charter of Vanishing Trial.”16 In 2008, the Bureau of those to whom the practicing bar passes

34 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 35 Qui Tam Premium

comes at a time when the federal Although Justice Lundberg Stratton does COMPANIES BEWARE OF THE government has distributed treasury funds IS SCOTT–PONTZER BACK? not overtly state it in her dissenting to countless companies in a number of opinion, it is readily evident that she is industries. Federal Insurance Co. v. Executive Coach Luxury Travel, Inc. referring to the very situation that arose in FEDERAL FALSE CLAIMS ACT Indeed, the Supreme Court explicitly the Scott-Pontzer cases. In the Scott- warned in its Allison Engine decision that Pontzer cases, third party drivers unknown By Whitney C. Gibson without the checks that FERA effectively to the insurers caused injuries to employees removed, the FCA would be “almost By D. Wesley Newhouse of the companies to whom the insurance boundless.” At oral argument in Allison had been issued. In the Federal Insurance Engine, Justice Roberts envisioned a scenario, a third party caused injury to members of an athletic team. In Scott- incentives. As a result, the once powerful scenario where the federal government charter company to transport the players hen President Obama signed he last decade’s boon for personal Pontzer, the accident victims or the instrument against would-be fraudfeasors gives money to a state to build a school. and had the authority to direct the driver the Fraud Enforcement and injury attorneys, on both sides, representatives of the accident victims’ The state then hires a contractor, who in to stop the bus for breaks and meals, the Recovery Act in May 2009, spent forty years collecting dust. was the case of Scott-Pontzer v. estates made claims against the turn pays a painter to paint the school. The bus driver was an “insured” under the he codified the most It was not until the 1980s, a decade Liberty Mut. Fire Ins. Co. (1999), underinsured motorist coverage, claiming marked by increases in Cold War defense painter uses the funds he receives from the T policy. W 85 Ohio St.3d 660. There, Christopher expansive amendments to the False Claims that the third party who caused the contractor to buy paint from a paint The insurers for Bluffton argued that the Act in over twenty years. For the spending, that the FCA regained Pontzer was killed while driving his wife’s accident was an insured, even though there company. Finally, the paint company buys baseball coach did not hire the bus driver Department of Justice and the growing momentum. Backed by a Reagan automobile. The tortfeaser had limited was no relationship between the insurer chemicals from another company to make or direct or control his operation of the number of putative whistleblowers, the administration eager to recoup portions of insurance. The surviving spouse made a and the driver. In the Federal Insurance its paint. Under the FCA, every single link bus. Instead, they claimed that the coach amendments warranted celebration, as its defense budget, Congress passed a claim against the underinsured motorist scenario, the accident victims or their in this chain – from the state government hired a transportation company which FERA eliminated legal elements that they second set of FCA amendments in 1986 coverage available from the insurer for her representatives made claims against the to the chemical company – is now subject selected the bus and the driver, and which that restored, and augmented, relators’ husband’s employer. The court found that, auto and excess insurance policies issued to had often struggled to demonstrate. For to FCA liability. had direction and control over them. As a government contractors and healthcare incentives. These amendments increased because the policies of insurance issued to the university, claiming that the third party the potential recovery by trebling damages, So what do these changes mean for the employer did not restrict underinsured result, the insurers contended, the bus providers already used to defending FCA driver did not operate the bus with the bus driver was an insured, even though raised relators’ shares, and offered relators businesses? Given the current climate of motorist coverage to employees acting in claims, the amendments meant that life “permission” of the baseball coach, and there was no relationship between the protection from retaliation. government spending, it is more important the scope and course of their employment, would be more difficult. the baseball coach did not “hire” the bus. insurer and the driver. It does not take a Over the next quarter century, the FCA than ever for companies to understand the surviving spouse could look to the But for everyone else, FERA meant The court found that the definition of an vivid imagination to see the potential for their potential liability and to take the employer’s insurance for underinsured something different: unprecedented blossomed into the government’s most “insured” was sufficiently ambiguous and another round of dramatic expansion of steps necessary to avoid FCA violations. motorist coverage. exposure. Conduct that had never potent – and lucrative – weapon against broad to encompass the bus driver. As a the scope of insurance coverage to include First, every company should determine This decision resulted in a flood of what previously been implicated under the FCA fraud. By 1999, the number of FCA cases consequence, the Ohio Supreme Court third parties who were never intended by whether it receives or has received any came to be known as Scott-Pontzer claims. became fodder for whistleblowers. Entities had rocketed to about 500 new lawsuits reversed the decisions of the lower courts insurers to be covered by the policies they each year. And while the number of new funds that originated from the government There were some lawyers for plaintiffs and have issued. with no direct link to the federal with the intent that they be spent or used that were in favor of the insurers, allowing cases eventually plateaued, annual defendants who, for several years, devoted In addition to opening the door to government found themselves the subjects on the government’s behalf in advance of a the families to seek recovery from the of DOJ investigations. And more recoveries kept pace with the country’s their time almost exclusively to the pursuit university’s insurers for the negligence of a another wave of unexpected litigation, the government program or interest. Second, or defense of the thousands of claims that important, companies that are still ever-escalating budget. In the first decade bus driver the insurers knew nothing court’s decision in Federal Insurance will any companies receiving such money were filed as a consequence of the court’s unaware of the FCA now face the serious of the twenty-first century, FCA cases about. likely result in an increase in premiums should consider implementing a decision. Not until the Supreme Court risk of liability. raked in close to $20 billion. The dissenting justices expressed paid by educational institutions, churches comprehensive program designed to avoid reversed itself on November 5, 2003, in To fully appreciate FERA’s impact on the Then, in 2009, Congress expanded the considerable concern that the breadth of and other not-for-profit organizations that FCA violations. For example, companies Westfield Insurance Company v. Galatis, scope of the FCA, though, one must scope of the FCA even further by passing the majority opinion might open the door regularly hire transportation companies, or should ensure their invoices are accurate 100 Ohio St. 3d 216, 797 N.E.2d 1256 understand the FCA’s history. Passed in FERA. Partly in response to the Supreme to a wave of claims by third parties for who operate their own buses and vans. We and that the companies are complying with (2003 Ohio LEXIS 2817), did this abate. 1863, the FCA was designed to deter war- Court’s unanimous decision in Allison insurance coverage issued to educational should also expect to see significant any applicable regulations and contract Chaos then reigned over the cottage legal profiteers looking to earn their fortune by Engine v. U.S. ex rel. Sanders, 553 U.S. institutions and other non-profit revisions in the definition of an “insured” terms. In short, everyone who receives industry that emerged as a result of Scott- in liability policies issued to such supplying the Union with shoddy products 662 (2008), FERA eased the FCA’s liability organizations. Justice Lundberg Stratton government money – everyone – must now Pontzer as these cases came to an abrupt organizations. such as boots with cardboard soles or requirements; after FERA, relators no noted that the following scenarios could consider potential FCA exposure. end. We can safely assume that the Supreme boats with porous hulls. To maximize the longer need to show that defendants result in a finding that there is insurance We may see a similar result from the coverage for those who employ Court did not intend to spark a new round statute’s enforceability, Congress utilized a presented a false claim to the government Whitney C. Gibson represents defendants Ohio Supreme Court’s decision of transportation services: of unanticipated lawsuits. As the legal qui tam provision – an ancient legal or made a false statement with the intent in complex civil litigation, and has December 28, 2010 in Federal Insurance An attorney hails a taxi and asks the community saw with Scott-Pontzer, mechanism that enabled private citizens to that it be used to get a claim paid by the extensive experience defending Co. v. Executive Coach Luxury Travel, driver to drive her to the airport. On the however, the unintended consequences of a government. Instead, liability now attaches sue on behalf of the government – and corporations for alleged violations of the Inc., Slip Opinion No. 2010-Ohio-6300. way, the driver loses control of the taxi and decision sometimes are the most whenever someone either knowingly offered successful whistleblowers (known False Claims Act. This case arises from the tragic accident negligently causes an accident that injures significant. submits a false claim to third parties as “relators”) half of any damages they where five players on the Bluffton numerous people. Where a bride and recovered. distributing government funds or University baseball team, the bus driver groom climb into a waiting limousine to Over time, cunning observers sought to knowingly makes a false statement that is and the bus driver’s wife were all killed get to their reception, the chauffer falls capable of influencing the payment of exploit this rich incentive. Instead of when the driver mistook an exit ramp for asleep at the wheel and causes an accident. [email protected] funds that originated from the government curtailing fraud and rewarding well- [email protected] another lane of the highway and was Finally, a church contracts with a bus intentioned insiders, the FCA operated as a and are spent or used on the government’s unable to stop at the top of the ramp. The company to transport its members to a cash cow for opportunistic relators who, behalf or to advance a government bus fell to the roadway below. The social event. The bus driver causes an hoping for a windfall, simply poached program or interest. representatives of the decedents sought to accident on the way. allegations from criminal indictments and The practical effect of this change is recover from the University’s policies of 2010-Ohio-6300, ¶19. Justice Lundberg spun them into civil complaints. that it substantially increases the number insurance which defined an “insured” to Stratton expressed concern that the drivers Congress responded to these parasitic of businesses that may be held liable under include “anyone else while using with your in these situations were not intended to be lawsuits in 1943 by passing the first major the FCA. Relators may now bring lawsuits permission a covered ‘auto’ you own, hire insured under the customers’ liability amendments to the FCA, barring claims against anyone who benefits, even Whitney C. Gibson, or borrow.” The representatives of the policies but could be regarded as insured D. Wesley Newhouse, based on allegations already known to the indirectly, from government spending. This Vorys Sater Seymour estates argued that, because the coach of due to the expansive definition adopted by Newhouse Prophater government and stripping away attractive development is particularly troubling as it and Pease the Bluffton University team contacted the the majority of the court. Letcher & Moots

36 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 37 eString ePolicy

email is then forwarded to another, e.g. protected activities may, on balance, be LOOK BEFORE YOU LOG! John Three, then there is an email advisable. Ultimately, as part of AMR’s sequence containing two emails (the Concerted Activity and Social Media: settlement with the NLRB, AMR agreed TECHNICAL AND PRACTICAL CONSIDERATIONS initial email and second email). John to significantly revise its social media FOR LOGGING EMAIL CHAINS Three may then forward the email he Failing to Hang Together May No policy. received to another, e.g. John Four, Policies may be amended with little resulting in a longer email chain. See difficulty. However, the settlement leaves generally Rhoads Indus., Inc. v. Bldg. Longer Mean Hanging Separately unanswered the larger question of whether By Hasrat Rahamatalli, Jones Day Materials Corp. of Am., 254 F.R.D. 238 the NLRB will continue its recent trend of (E.D. Pa. 2008). extending the NLRA’s protections to what 2. See In re Universal Serv. Fund Tel. some see as ad hominem attacks by angry Billing Practices Litig., 232 F.R.D. 669, “We must all hang together, employees on individual owners and 674 (D. Kan. 2005) (“In any event, the or assuredly we shall all hang separately.” supervisors. Last August the NLRB’s court strongly encourages counsel, in decision in Plaza Auto Center, Inc. lectronic discovery often poses top, last in time, or most recent email in the preparation of future privilege logs, — Ben Franklin conferred the NLRA’s protections upon an unique challenges for litigators. A an email chain to generate privilege logs. to list each e-mail within a strand as a employee who verbally attacked the owner classic example involves logging The “to,” “from,” “cc,” “bcc,” “date,” separate entry.”); Helm v. Alderwoods of a company in the most acidic and email chains a party claims are etc. will populate from the top email in the Group, Inc., 2010 WL 2951871, *2 By Christopher Hogan personal of terms. Not too long ago, such E 1 sequence. Inputting data from the earlier (N.D. Cal. July 27, 2010) (concluding an attack would have been found to be an privileged. Case law on logging email chains withheld as privileged is still emails in the sequence, however, can be “that the better approach in this case is interpersonal grievance rather than time consuming and expensive because it to require Alderwoods to supplement protected concerted activity for employees’ evolving, and much relevant technology According to the complaint filed by the is purely text and has no additional the log by itemizing each email within t the signing of the Declaration mutual aid and protection. The AMR case fails to address the issue of logging email NLRB’s Hartford Office, American metadata. As one court remarked, the strings . . . .”); In re Prosser, 2010 of Independence, the ever- was a missed opportunity for the NLRB to chains. Current document review Medical Response, an ambulance “requiring each e-mail within a strand to WL 2245012, *2 (Bankr. D.V.I. May quotable Ben Franklin clarify whether failing to hang together no technology is often not versatile enough to company, dismissed Dawnmarie Souza be listed separately on a privilege log is a 14, 2010) (requiring “a black-lined reportedly admonished his longer means hanging separately. Instead, handle potential court-mandated privilege A after she engaged in protected concerted laborious, time-intensive task for counsel. Amended Privilege Log identifying colleagues, “We must all hang together, or now we’re all hanging. log requirements. In cases involving activity on her Facebook page. The And, of course, that task adds individually all recipients of each e-mail assuredly we shall all hang separately.” volumes of documents, litigators can save complaint alleges generally that, after a considerable expense for the clients contained within an e-mail string . . . This quip nicely encapsulates a key their clients significant expense by customer complaint, AMR asked Souza to involved[.]”5 .”). planning ahead and having a solid rationale underpinning the protection complete an incident report, at which time In addition to researching where the 3. See Muro v. Target Corp., 250 F.R.D. understanding of both their jurisdiction’s afforded by federal and state labor laws she requested the presence of a union 350, 363 (N.D. Ill. 2007) (“Despite the [email protected] rules and available technology. relevant jurisdiction stands on this issue for what is often referred to as “protected representative. The complaint alleges existence of persuasive authority . . . the In federal practice, Rule 26(b)(5) of the and evaluating available technology, concerted activity.” A species of further that AMR then threatened Souza court respectfully disagrees that Rule Federal Rules of Civil Procedure requires a litigators should consider entering into a associational rights, the concept of with discipline because she had requested 26(b)(5)(A) requires separate party withholding information claimed to stipulation on the format and presentment protected concerted activity is derived union representation. After work Souza itemization.”). be privileged to describe the nature of the of privilege logs with opposing counsel. from labor laws, such as Section 7 of the logged onto her Facebook page and 4. See Chemtech Royalty Associates, L.P. information in a manner that will enable The parties may stipulate to providing no National Labor Relations Act, which scalded her supervisor with electronic v. United States, 2009 WL 854358, *5 other parties to assess the claim. A privilege logs, across the board modified provides in part that employees “shall invective. Members of Souza’s social (M.D. La. Mar. 30, 2009) (explaining recurring issue is whether an email chain privilege logs, modified privilege logs have the right to self-organization, to network, some of whom were also AMR that “the sufficiency of privilege log withheld as privileged should be treated as based on topics or requests for form, join, or assist labor employees, a key fact, responded with descriptions are decided on a case-by- a single message or multiple messages. In production, etc. Ideally, the stipulation organizations,...and to engage in other support and agreement. Sometime case basis,” but disfavoring “email other words, does Rule 26(b)(5) allow an should be included in a court order such concerted activities for the purpose of thereafter AMR discharged Souza, stating 6 strings without explanation as to each email chain to be logged as one entry or as the Rule 16 scheduling order. Of her dismissal was because of patient part . . . .”). See also FED. R. CIV. P. 26 collective bargaining or other mutual aid should it be further itemized to reflect course, attorneys overseeing discovery complaints. advisory committee’s notes to 1993 or protection[.]” Importantly, these multiple messages? should know the technology available Though AMR had attempted to frame amendments. protections extend to both unionized and Currently, the federal courts do not before entering into the stipulation. the debate in terms of “patient 5. In re Universal Serv. Fund Tel. Billing non-unionized workplaces. have a uniform rule on how to log email It is vital for attorneys overseeing complaints” rather than social media use, Practices Litig., 232 F.R.D. 669, 674. Recent events on the world political chains withheld as privileged under Rule discovery to have an understanding of the the NLRB’s complaint took square aim at 6. Rule 16(b)(3) provides that the stage leave little doubt that social media is 26(b)(5). One approach requires counsel limitations of available technology. This, AMR’s social media policy. Among other scheduling order may “include any a powerful tool of collective action, which to itemize emails within an email chain coupled with knowledge of the relevant things, AMR’s policy prohibits employees agreements the parties reach for is perhaps why the National Labor claimed to be privileged on the privilege jurisdiction’s rules, will allow the attorney from “disparaging” their “superiors.” asserting claims of privilege[.]” FED. R. Relations Board, now controlled by three log.2 A second approach permits counsel to make informed decisions and Such vague and stratifying language is not CIV. P. (16)(b)(3)(B)(iv). appointed union lawyers, has recently to log an email chain claimed to be stipulations, which could ultimately save likely to endear itself to an NLRB with a turned its attention to employers’ efforts privileged as just one entry.3 Yet another time and money. union orientation. It also provides approach involves a case-by-case to regulate employee social media use. The employers with a cautionary tale on how evaluation.4 settlement of a recent case out of the speaking in terms of “respecting Given the lack of consensus on logging Hartford Region represents a missed colleagues” may shield them from being email chains withheld as privileged, opportunity for the NLRB to address the considered low hanging fruit for test cases. attorneys overseeing discovery should be 1. An email chain is a sequence or series of role of social media in the context of In addition, though disclaimers are familiar with the relevant technology. emails. Several courts have protected concerted activity and to clarify generally clunky and of limited practical Many software applications are not conceptualized the idea in a manner whether employee action must any longer value, in uncharted waters such as these a capable of generating privilege logs to similar to the general layman be concerted or for mutual aid or policy provision that states that a reflect descriptions for individual emails understanding. For example, consider protection to be legally protected. The particular policy is not intended and will Christopher Hogan, within an email chain. Generally, most an initial email from John One to John Hasrat Rahamatalli, settlement provides several policy lessons not be applied to restrict or interfere with Newhouse Prophater applications utilize the metadata from the Two (“initial email”). If that initial Jones Day for employers. the right of employees to engage in legally- Letcher & Moots

38 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 39 Intercession Intercession

necessary tasks are divided up in a useful, Kate” by submitting a problem to “her” productive and efficient manner. Family which presumably results in advice for a Conversations for Solutions members unable to attend due to distance non-adversarial approach to the concern. take part by telephone or other electronic Mediation Goes While you’re at it, check out the means. Participants build a "this is my superficial but fun quiz to see if you have By Sandra Mendel Furman family" plan to suit their needs. the aptitude to be a mediator. Agreements reached in this fashion can be more easily changed as circumstances Hollywood In the end, I think this show, if require. successful, could provide a small but much The participants set the agenda by needed boost to the mediation profession. magine this dialog between two Strategies will evolve on an on-going basis stating the issues that need to be discussed. A Mediator’s Review of “Fairly Legal” As we know all too well, one of the siblings: to support the family elders. Communication and problem solving skills Likely topics include residence-sale of the critical missing links to our field on a sophisticated, effective basis need to existing house and where to relocate; is,legitimacy. In our case, this lack of I coincide. Elder care mediation is a rational communication by and between family legitimacy stems not so much from ill members; inheritance and estate matters; feelings about mediation but, in part, from John: “Mom wrecked the car again last first step. John and Marcia need to decide Let’s be honest if complete, real world mediation were to be powers of attorney (general and health simple unfamiliarity at the retail level, i.e. week. This is the third time in a year. if they will preserve the family ties or let care); roles and responsibilities; depicted, it probably wouldn’t be very entertaining. the general public. I think “Fairly Legal” When I asked her how it happened, she this situation – which will not remain static avoiding/establishing guardianship; takes a leap in making mediation a part of said that she got lost, pulled over to check – destroy the family. finances; personal property allocation; end the public’s everyday consciousness. her GPS but didn’t see the car approaching Elder care meditation provides an of life decisions (DNR; burial plots; means With luck, perhaps this show will help her on the right. She was on her way home efficient and sensitive solution to the of burial). As mediation is not static us start to approach the tipping point for from the grocery store and she got lost? complicated decision making process. By Jay M. Patterson, J.D. different topics may evolve as the sessions mediation’s more pervasive use as a means She really banged up her car. Luckily she Elder mediation is especially effective at continue. to improve quality of life. Now, if we was only shaken up, not hurt “ beginning of the decision-making process – when families are struggling with options Participants are actively encouraged to could only be as well paid as Kate appears seek legal advice as appropriate. No to be. Maybe someday we’ll see a She shouldn’t be driving and find that emotional baggage and past Marcia: “ agreements reached in mediation need to f you haven’t already, I recommend mention an appreciation for it. Unlike mediation show called, “Fairly anymore. I told you both that when I was relationships affect clear thinking. Family occur unless and until the participants have you check out the new television other shows in which I’ve seen mediation Compensated.” there last Thanksgiving. You need to deal members may have entirely differing an opportunity to review the agreements series on USA Network, “Fairly depicted, I did not find myself cringing with pulling her license, selling the car and visions of what it means to share in with counsel. The mediator may or may Legal” (Thursdays, 10 p.m.) The while watching. That’s owed in no small making arrangements to get her into responsibilities to the aging or frail parent. I part to the fact that Kate is eminently not be an attorney but will not provide show features the character, Kate Reed, a assisted living.” The mediation process allows the likeable, even as she sometimes annoys participants to discuss in a safe advice as to legal implications of the “recovering attorney” who still works for decisions. The mediator will not be her recently deceased father’s San those around her. Moreover, there is an [email protected] John: “How much time do you think I can environment their individual perspectives drafting powers of attorney, wills, doing Francisco law firm and who gave up the abundance of dialog about the virtues of afford to take off work to get this done? on “fairness.” A planning meeting before a sales of property or any necessary legal practice of law to become a successful mediation. Notwithstanding the show’s Her car needs to be fixed. She will never crisis may strengthen family ties. It work to effectuate these transitions. The mediator. Kate works alongside her aforementioned artistic license, there were willingly give up her car keys. Assisted provides an opportunity for all family mediator will highlight and red flag those sometimes rival, Lauren Reed, her late moments in the three episodes I’ve seen as living? Why doesn’t she come live in NY? members to deal with changed issues for the parties. A collaborative of this writing in which Kate asks really You have so much more time to deal with relationships and new realities. It allows father’s young second wife and fellow approach with counsel is a productive good questions that an actual mediator her than me and Susan. Besides, our twins family dynamics including sibling rivalries attorney at the firm. Kate has a somewhat outcome for the family in stress. This is a might ask. On one occasion, Kate asked are in college and we can’t afford to to be addressed at a time when everyone is uneasy and competitive relationship with win-win situation for one and all involved. an exact question that I was practically contribute much to her needs and calm. In this productive atmosphere Lauren who remains an unapologetic mouthing while watching the scene and maintenance.” thoughtful decision making is possible and advocate. The tension in their relationship likely to occur. is one tool used by the show to contrast that I’ve actually asked in mediation. Kate is smart, caring, and, yes, even Marcia: “Bye Bye. Have a nice day.” The mediator acts as a balancing force the differences between the adversarial against emotional, reactive and potentially and non-adversarial approach to conflict glamorous. She is irreverent but genuinely 1. Similar concerns exist for disabled family counter productive positions taken in the resolution. interested in good outcomes for all. (Those This conversation with myriad members who cannot live independently. variations is occurring daily across heat of the moment. The mediator serves Without question, the show is meant for adjectives can’t be bad for the public’s America. Baby boomers’ parents are living the function of promoting guided entertainment and, as such, takes perception of the mediation profession.) I longer than ever. Their ability to live discussion with a goal towards problem significant artistic license in its depiction think the fun of the show comes from independently is often impaired. solving. The mediator helps participants of mediation. To say the least, Kate’s watching the clever ways Kate finds to overcome obstacles that block resolution. mediation style is fairly far on the help the parties see a different perspective. Responsibilities must be assumed by the [email protected] next generation. As can be seen from this The mediator facilitates the decision directive and evaluative side of the Unconventional methods or not, the fictional dialogue, siblings often avoid the making process for the family. The spectrum and she can be a bit didactic at parties always end up gaining a necessary conversations about “what to do mediator keeps the family focused on times. She certainly has some perspective they would not have had but about Mom and Dad.” You can serve your priorities and opportunities for unconventional methods of helping the for Kate’s intervention. clients well by suggesting family or elder clarification. With no stake in the parties see a different perspective. But the It seems the producers of the show are care mediation. Mediation avoids the outcome, the mediation works to have the show’s artistic license is no more not only interested in fictional good conflict of interest issues inherent in family resolve its mostly non-legal pronounced than most other shows meant outcomes. Each episode refers, in on- advising multiple parties. strategies for caring for the parents. It is for entertainment. Let’s be honest — if screen text and during breaks, to socially As family members’ age and government end of life planning with the purpose of complete, real world mediation were to be redeemable features on the show’s website. resources are ever diminishing many preserving relationships and making the depicted, it probably wouldn’t be very For example, one can enter a sweepstakes difficult choices concerning elder family emotional stress more manageable. entertaining. on the site. They say, “For every entry, members will need to be made.1 Families Mediation brings family members closer On the other hand, the feel of the show $1.00 is donated to Peace First, an must undertake the difficult job of together to improve communication and Sandra Mendel leads me to believe the writers have some organization that teaches kids to talk it evaluating resources and options. work collaboratively. Finances and Furman level of understanding of mediation, not to out – not act out.” One can also “Ask Jay M. Patterson, J.D.

40 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 41 Remedies Remedies

Between 1997 and 2007 sales of standards had the unintended there are any safer, less-addictive Department Visits Involving ADOLESCENT oxycodone increased 866%; sales of consequences of shifting undo focus and medications you can take or alternative Nonmedical Use of Narcotic Pain fentanyl (another popular opiate analgesic) awareness on a patient’s sensations of pain, therapies you can use for your pain. Given, Relievers. Rockville MD. increased 525%. This is not just an thus resulting in more pain medications as mentioned above, that Americans 3. Manchikanti, L., Fellows, B., Ailinani, PRESCRIPTION increase in the number of people being being used and prescribed. It was, and still consume 80% of the world’s opiate H. & Pampati, V. 2010. Therapeutic prescribed these drugs, it is also a big is, common for people to be given large analgesic supply, the probability is you Use, Abuse, and Nonmedical Use of increase in the dosages being prescribed. prescriptions after doctor visits or medical don’t really need to take the amount of the Opioids: A ten year perspective. Pain The average daily dose of oxycodone procedures. Since most people will only use drug you’re been prescribed. Physician, 13:401-435. OPIATE ABUSE 2011 (mg/person) has increased 899% during an opiate — medication for one to three Finally, educate your children about 4. See note 1 above. this period while fentanyl dosages have days and then switch to a non-narcotic prescription medications and the dangers 5. See note 3 above. 6. increased 496%. Putting it into analgesic like acetaminophen, the extra of misuse. Talk to them about the ways Pharmaceutical Sales 2009: the top 200 perspective, the United States (constituting pills are often left on the shelf where they drugs are being portrayed on television and pharmaceutical drugs by retail sales in There are many factors that underlie this trend. 4.6% of the world’s population) now are easily taken by adolescents and in movies. Discuss the commercial you just 2009. Drugs.com Probably the most salient one is the ease that these drugs can be consumes 80% of the opiate analgesic drug children. This is the most common watched on the latest drug you are http://www.drugs.com/top200.html 5 7. supply. scenario reported by the adolescent encouraged to “ask your doctor about.” Partnership for a Drug-Free America and obtained. One in five teenagers reports being offered a prescription MetLife Foundation (March 2, 2010). There are a number of factors for this. patients in treatment for drug addiction at Help your children and adolescents 2009 Parents and Teens Attitude painkiller to get high, and 36% of high school seniors report these New and aggressive marketing strategies Talbot Hall. understand how drugs work in the body Tracking Study Report. for prescription drugs have increased All this paints a pretty frightening and the risks associated with taking drugs are “fairly easy” or “very easy” to get. http://www.drugfree.org/newsroom/resea demand and lowered perceived risks. picture. If you are a parent there are a medications$that are not prescribed for rch-publications. Purdue Pharma, maker of Oxycontin, was number of things you can do to reduce the them. Research consistently shows that successfully sued in 2001 for misbranding kids who learn about the risks of drugs at 8. See note 1 above. risk of your child getting involved in Oxycontin in order to convince doctors home are up to 50% less likely to use than 9. See note 1 above. By Brad Lander prescription drug abuse. Factors that affect and consumers to use it for purposes not those that do not.10 Great sources of 10. See note 7 above. whether an adolescent will engage in this approved by the FDA (Federal Food and information on alcohol and drugs for all behavior include, among other things, the Drug Administration.) In 2007 they were age groups, and tips on talking to your perceived likelihood of getting caught, again successfully sued because of children about drugs are the National perceived danger of use, peer approval or irst, the good news. Among “tolerated” and fatal doses, and marketing practices that encouraged Institute on Drug Abuse at disapproval, and availability. Unsupervised adolescents in the United States, the adolescents are poorly equipped to make people to take the pills more frequently www.nida.nih.gov, and Partnership For a and unstructured time is one key factor. use of alcohol, illicit drugs and that distinction. In addition, mixing opiate than the recommended twice a day. Drug-Free America at www.drugfree.org. Adolescents who participate in one or tobacco has dropped for the last medications with alcohol, amphetamines Oxycontin was ranked 51 in U.S. They can help you get started. F (like ADHD medications), anti-anxiety more extracurricular activities are 60% thirteen consecutive years. While this is prescription drug sales in 2006. By 2009 it 9 true across most substances, the declines in medications or antidepressants can cause had risen to number eight on the chart.6 less likely to use an illicit drug. Keeping use of alcohol, marijuana, tobacco, cocaine an exponential rather than additive effect. When potentially dangerous drugs are comfortably busy in activities where one and methamphetamine have been the most “Partying” with opiate drugs usually advertised on television with sunshine and has to be accountable is a deterrent to drug dramatic. In fact, binge drinking and involves mixing two or more substances. smiles it’s easy to not hear the litany of use. (The caveat is that being 1. Johnston, L. D., O’Malley, P. M., cigarette smoking are at the lowest levels The bottom line is that deaths from opiate potentially devastating side effects. These overscheduled with high expectations of Bachman, J. G., & Schulenberg, J. E. since the National Institute on Drug Abuse painkillers have risen roughly five-fold advertisements are effective. In a major achievement can bring about stress that (2010). Monitoring the Future National started monitoring adolescent use patterns since 1990. Interestingly, the accidental U.S. poll, 51% of adolescents surveyed can have the opposite effect.) Results on Adolescent Drug Use: in 1975.1 Given that alcohol, tobacco and overdose rate for boys doubled over this said that taking prescription painkillers Get rid of all unneeded and expired Overview of Key Findings, 2009 (NIH marijuana are by far the most used period of time while the rate for girls that were not prescribed to them was not medications and secure the ones you do Publication No. 10-7583). Bethesda, substances by this age group, this is good tripled.3 illegal; 35% said that these drugs are safer need. Be aware of the number of pills in MD: National Institute on Drug Abuse news indeed. There are many factors that underlie this than other drugs; and 33% said there is each bottle (adolescents often will take 2. Substance Abuse and Mental Health The bad news is that there is a notable trend. Probably the most salient one is the less shame attached to using painkillers only one or two pills because they think Services Administration, Office of Brad Lander, PhD, LICDC, exception to this trend. The abuse of ease that these drugs can be obtained. One than street drugs.7 It is also notable than you won’t notice). If you do need Applied Studies. (June 18,2010). The Clinic Director, OSU Department of prescription painkillers among adolescents in five teenagers reports being offered a among 12th graders, slightly more students painkilling medication, ask your doctor if DAWN Report: Trends in Emergency Addiction Medicine at Talbot Hall has taken a strong upturn. Since 1992 the prescription painkiller to get high, and reported that they used Vicodin in the past percentage of adolescents that report 36% of high school seniors report these 12 months (9.7%) than said they used having taken a narcotic drug that was not drugs are “fairly easy” or “very easy” to “any narcotic other than heroin” (9.2%), prescribed for them in the past year rose get. The most likely source or these pills is of which Vicodin is a subclass. It appears In these times . . . faith & values make all the difference. from 3.3% to the current rate of 9.5% a friend or relative. The usual scenario is then that some adolescent users of Vicodin What type of (nearly 1 in 10). The most common opiate medications are taken from the (unsecured) do not even recognize it as a narcotic medicine cabinet in the home and either drug.8 professionals Wesley Glen Wesley Ridge drugs taken are Vicodin (9.7% report read The Daily having taken it in the last year) and consumed or given away by an adolescent The Joint Commission has also been 5155 North High St. 2225 Taylor Park Drive Oxycontin (5.1%). Percocet and codeine without the parent or relative being aware. complicit in the increase in opiate analgesic Reporter? Columbus Reynoldsburg are also common. Seventy-three percent of adolescents that prescriptions. TJC is a private sector This is not a benign trend. Emergency have used non-prescribed opiate drugs got organization that accredits over 17,000 Only the best. (614) 888-7492 (614) 759-0023 department visits for opiate analgesic drug them in this manner. Sixteen percent health care organizations and programs in overdose in the United States rose 111% bought them from either a friend or a the United States. A majority of state between 2004 and 2008.2 For adolescents, dealer. Less than 1% got them through governments require Joint Commission Central Ohio’s only daily business the increase in hydrocodone (Vicadin and online pharmacies, probably for fear of accreditation as a condition of licensure and legal newspaper. Wesley Glen and Wesley Ridge Retirement Communities follow a like preparations) was 157%; for getting caught.4 and the receipt of Medicaid mission statement that has been guiding the organization for over oxycodone it was 147%. The vast majority There are more opiate pills in homes reimbursement. In 2001, pain management Call today to subscribe. 40 years. Remember, you can always put your faith in our values. of these ED visits were accidental now than in the past. Prescriptions written standards went into effect addressing the 614-228-NEWS (6397) overdoses. There is a fine line between for opiate drugs have risen dramatically. assessment and management of pain. The thedailyreporteronline.com check our website at: www.methodisteldercare.com

42 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 43

Columbus Bar Lawyers Quarterly

Winter 2010 Reflections Reflections

REMEMBERING DOTTIE KETCHAM Happiness is Healthiness By Stephanie A. Connor

t was a hot, sunny summer afternoon this past July, and my passenger nearby if it was hers, she began to verbally and By Robert Bailor husband and I had the honor of attending Dottie Ketcham's physically assault me as she departed the bus. Only one person on 95th birthday celebration. As we approached the party, it was the bus that day offered to assist me, and I believe, by Dottie's evident we were in the right place as 95 American flags stood description, it was Vic Ketcham! He offered me a seat next to him I for the rest of the ride. That meant a lot to a scared young lady waving in the breeze in the front yard! The backyard was brimming with the laughter of family and friends, and Dottie was that day. Dottie and I truly do believed that Vic was my knight in Editor’s note: This is the first of Professor Bailor’s articles on the tools for that process are already available with the notions, the center of attention in her red, white and blue outfit. Her sons shining armor. Our lives were forever cemented together. “Happiness” to be published in a series of four. strategies and disciplines of recovery. In other words, a chemical Randy and Rick were grilling out and preparing the backyard for dependency counselor (especially one that happens to also be a a good old-fashioned 4th of July picnic in honor of their mother's At last year's annual CBAA's special event fundraiser which hat is happiness? This question has haunted human philosophy professor) should be able to guide anyone to a lifestyle special day. includes a luncheon, silent auction, raffle and fashion show (this thought since there has been human thought. The of health and ultimately to happiness. Dottie and I had met in the fall of 2003, on our way to an year's event is April 14 at the Lakes Country Club), a gift problem is that this question is like a two-edged For the sake of simplicity and clarity I would like to talk about alpaca farm for a general meeting of the Columbus Bar certificate for Biddie's Tea Room was offered and my bid won. I sword. On the one hand “What is happiness?" seeks coming to sobriety by using the word "sobriety" as a mnemonic. Association Alliance. A mutual friend had been kind enough to had been saving it to share with Dottie so someday this spring my W Each letter introduces a topic: S-Serenity; O-Obligation as offer us a ride to the meeting as we all lived nearby in Upper mom and I will visit the tea room and raise our cups in Dottie's an intellectual definition of happiness; on the other hand the question seeks guidelines for attaining happiness. It is just the kind Offering; B-Being, not Having; R-Respect; 1-Inspiration; E-Ego; T- Arlington. The Blackmore's farmstead was a perfect place for the memory. She did enjoy a good cup of tea. of question that piques the interest of those who hope to live life Trust; Y-Yes. CBAA get-together. The meeting was interesting; the alpacas On December 20, 2010, Dottie passed away. Her son Randy to its fullest. Each topic lends itself to a reflection of what health/happiness adorable and my new purse made from alpaca wool was soft and reminded me that she was hardly sick a day in her life, and "she First off, happiness is not just a feeling. Happiness transcends requires and the specific strategies employed to attain both health fashionable. We had a pleasant ride home that day reminiscing did have 95 good years and just a few bad months — most of us feeling like love is more than romantic titillation. Happiness is a and happiness. about the day's activities. (Do you know that alpacas can cry would gladly take that!" It was a privilege to know Dottie. She state of existence. That is why we commonly speak of "being Certainly, just reading articles will not guarantee a successful when they are sad?) was a fine person and I will never forget her. happy" not just ''feeling good." Many of my chemical dependency result. This is magical thinking, and this type of thinking can itself Over the past seven years, it had been my pleasure having clients often feel good due to the influence of various substances, be a symptom of mental dysfunction. This series of articles will be Dottie as a traveling buddy as we visited member's homes and but in the end they discover that this feeling is illusory and offered as suggestions for practical applications. And, as Aristotle various locations for general meetings. Her hair was never out of actually masks the fact that they are in peril of losing not only noted, it is practice that makes perfect. place, her lipstick always on straight, and her posture was the best their possessions, relationships and achievements but also their There can be little if any harm in considering thoughts about of anyone I have ever known. Spending an afternoon with Dottie Stephanie A. Connor, very lives. how to structure and orient one's life the best way possible, made you want to stand a little taller and smile a lot wider! Columbus Bar Association Auxiliary It seems that if happiness means anything it is in contrast with especially in the midst of the stress that naturally accompanies life Since her 60s, Dottie had had issues with her eyes so driving Past-President (2009-10) unhappiness which clearly signifies conditions such as as a professional. Reflecting on how to be happy in terms of was out of the question. She would tell me how she felt like a dysfunction, disorder and harm. So, happiness must mean the sobriety is not just for those in recovery from addiction. It is prisoner trapped in her own home sometimes, but Dottie made state of being properly functional, appropriately ordered and appropriate for anyone who wants to make a sober, serious lemonade out of lemons. She was a wonderful gardener and AUXILIARY BEST FRIENDS: Dottie is on the far left and on oriented to thriving. When a person is aware of being happy, that critique of his or her own lifestyle. It is always helpful to consider enjoyed growing flowers in her backyard. She had dinners with the far right, author Stephanie Connor. person perceives him or herself as being attuned to the best way of one's own situation and, perhaps, try new notions and techniques her sons and close family friends frequently, and OSU football had for making that situation something to smile about rather than being human. This excellence of being human means that all is a close place in her heart. One day she told me that the boys regret. well with all the aspects of living. The venerable sage Aristotle had surprised her with a big screen television, and she called this virtue the power to live well; in common parlance we reasoned that they would probably be over even more call it physical, mental, emotional, social and spiritual health. In often to watch TV with her. She had a sense of humor. chemical dependency counseling we try to help our clients come to In 1964, Dottie became the CBAA's fifth president, health, and we could not guide them on the road to health and in 2009, 45 years later, on our 50th anniversary, without a sense of what health is. It is this sense of healthiness I became president of the organization too. She that I propose to be useful as a practical guide to being happy. counseled and encouraged me to accept the Every day chemical dependency counselors use a notion that nomination, and she was paramount in my decision appears to combine both the conception of happiness as excellence to do so. She reasoned that if you had a hard of existence and the understanding that this excellence is real only working board then leading the organization would as a healthy lifestyle. This notion is "sobriety." Sobriety is often be relatively easy. Wise words from a savvy lady. used in conjunction with "clean," as in "clean and sober." But Victor Ketcham was Dottie's husband and he these notions are very different from each other. Being clean died just as I was getting to know her. Once in means being void of a mood altering drug; being sober means awhile when we had lunch together, we would being mindful and devoted to a healthy lifestyle. A person can be mention our husbands and one day Dottie told me clean but not sober, but no one can be sober without being clean. about Vic, as she called him. She mentioned how Sobriety is the state of not needing a drug to get through life Vic never drove to the office and instead rode the and having the strength of character and motivation to work on #2 Cota bus to and from work. As it turned out, I thriving, not just surviving. Sobriety implies an ongoing devotion Robert Bailor, PC, CDCA too rode the same bus home from my downtown to the proper order of all the dimensions and dynamics of a Adjunct Professor of Philosophy, job. All of the sudden, an incident that had human life so that it can be inclined, not to dysfunction, disorder Columbus State Community College Counselor, happened nearly 30 years ago came to mind. It was and harm, but to proper functioning, self-harmony and joy. I Addiction Medicine at Talbot Hall, a cold, wintery day and I had noticed a knit cap on propose that to attain happiness one must strive to be sober, and he Ohio State University Medical Center the floor of the bus. As I held it up to ask a woman

44 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 45 Report Card Report Card

Continued from page 20 Clemenceau was reported as having said that “War is too important skills critical to lawyer competence.” In 1992, the American Bar without regard to price; they urge (and even may require) prices to to be left to the generals” or some variant thereof. Association's MacCrate Report recommended that law schools rise.”); Lawrence Ponoroff, Law School/Central University 1. See Professor William Henderson, a leading scholar on law firm 9. Michael C. Macchiarola and Arun Abraham, Options for Student teach ten “fundamental lawyering skills” including factual Relations. Sleeping with the Enemy, 34 U. TOL. L. REV. 147, 147 economics, of Indiana University Law School as quoted in Katy Borrowers: A Derivatives-Based Proposal to Protect Students and investigation, communication, counseling, negotiation, and (2002) (“There is a pervasive attitude among law faculty that . . . Hopkins, Law Professor: Legal Industry Has Fundamentally Control Debt-Fueled Inflation in the Higher Education Market, 20 litigation and ADR procedures.”) the central university is robbing the law school blind.”); Richard A. Changed, in U.S. News and World Report (September 9, 2010) at Cornell J.L. & Pub. Pol’y 67, 77-78 (2010). There is little hope that 15. See William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Posner, Legal Scholarship Today, 45 STAN. L. REV. 1647, 1655 http://articles.bestlawfirms.usnews.com/articles/law/2010/09/09/noth this increase in costs will abate. According to Dean Matasar, “Law Bond, and Lee S. Shulman, Educating Lawyers: Preparation for the (1993) (“Relative to most other departments in a university, law ing-fails-like-success.html?dbk. (“I see a fundamental change in schools will not voluntarily cut costs, as long as demand is sufficient Profession of Law, The Carnegie Foundation for the Advancement schools are awash in tuition income and in gifts from wealthy what’s happening. The recession just was the window that we to maintain their current operations.” Matasar, supra, at 22. of Teaching (“the Carnegie Report”) (2007). The Report, was a alums.”); Michael Hunter Schwartz, Teaching Law By Design: How needed to say that the rules have changed. We’re entering an area 10. Judith Welch Wegner, Response: More Complicated Than We multi-year study conducted by five recognized legal and education Learning Theory and Instructional Design Can Inform and Reform where law firms are going to have to do something that they haven’t Think,, 59 J. Legal Educ. 623, 627 (2010). experts, who visited and studied teaching at 19 law schools. Law Teaching, 38 SAN DIEGO L. REV. 347, 361 (2001) (“Law done for 60 years: compete for market share”). 11. As reported by Abovethelaw.com: “Van Zandt and some of his 16. Carnegie, supra, at 190 where the Carnegie authors found that the schools traditionally do well economically in large part because, 2. As stated by Richard A. Matasar, Dean of New York Law School Northwestern colleagues did a study to determine the added value of changes to the law curriculum “have been more piecemeal than unlike most graduate school classes . . . range in size from 50 to 120 “What is good for the lawyer – more time billed – is more expensive a J.D. degree. They concluded that the break-even starting salary comprehensive.” students.”); Randall T. Shepard, From Students to Lawyers: Joint to the client. What is good for the client – a clear price – is bad for for a law school graduate is $65,000. Put another way, going to a 17. Carnegie, supra, at 88 (“Movement toward a more integrated Ventures in Legal Learning for the Academy, Bench, and Bar, 31 the firm…However this delicate pricing problem is resolved, it seems law school with a median salary upon graduation that’s below curriculum would also make legal education more like preparation IND. L. REV. 445, 448-49 (1998) (“Until quite recently, for example, likely that clients are driving the bargain.” Richard A. Matasar, $65,000 is not a wise investment. Schools with median starting in a number of other professions.” Carnegie cites medical school, George Washington University siphoned off forty percent of its law Does the Current Economic Model of Legal Education Work for salaries under $65,000, which generally land somewhere in the 70s nursing school, and engineering as some examples of these other school’s revenue.”); George B. Shepherd & William G. Shepherd, Law Schools, Law Firms (or Anyone Else)?, New York State Bar in the U.S. News & World Report Rankings, are not good values. professions. Carnegie, id. Scholarly Restraints? ABA Accreditation and Legal Education, 19 Association Journal 20, 26 (October 2010) They need either to lower their cost to students and/or improve job 18. Carnegie specifically eschews the additive approach, in favor of the CARDOZO L. REV. 2091, 2106 (1998) (“[V]iewing the professional 3. Edward Rubin, What’s Wrong with Langdell’s Method, and What to opportunities for their graduates, according to Van Zandt.” See integrated approach. (“…simply adding more requirements to the school as a cash cow, the university might require that the Do About it, 60 Vand. L. Rev. 609, 611 (2007) (“The great irony of February 3, 2010 article Changes in Legal Education: Some student’s current curriculum fails to get at this problem, because it is professional school make payments to the university that far exceed modern legal education is that it is not only out of date, but it was Thoughts from Dean David Van Zandt precisely how to integrate the acquisition of conceptual knowledge the university’s overhead . . . . Some universities treat their law out of date one hundred years ago.” Dean Rubin served for four http://abovethelaw.com/2010/02/changes-in-legal-education-some- and competence with ethical intention that is in question” and schools in this manner, using revenue from law school students and years as the Dean of Vanderbilt Law School and prior to that taught thoughts-from-dean-david-van-zandt/. “…we believe legal education requires not simply more additions alumni to subsidize the university’s other programs.”); James P. at the law schools of the University of Pennsylvania and UC 12. Research done by Prof. Herwig Schlunk, a tax professor at but a truly integrative approach in order to provide students with a White, Legal Education in the Era of Change: Law School Berkeley. See http://law.vanderbilt.edu/faculty/faculty- Vanderbilt Law School, indicates that for a hypothetical average law broad-based yet coherent beginning for their legal careers.”) Autonomy, 1987 DUKE L. J. 292, 304 n.46 (1987) (“[M]any still detail/index.aspx?faculty_id=187. student at an average school, the break even starting salary to make Carnegie Report at 58-59. complain that the parent university siphons off too much of the [law 4. With lifetime tenure, a law professor can’t be fired for a legal education a worthwhile financial investment is actually 19. Under Standard 205(b) of the ABA Standards for the Approval of school’s] excess profits . . . .”); William A. Wines, Lawyer obstructionism, indolence, or a range of other misbehaviors that considerably more. See Herwig Schlunk, Mamas Don’t Let Your Law Schools (“the ABA Standards”): Proliferation and the Social Responsibility Model, 39 J. LEGAL private practitioners would consider offensive and that might well Babies Grow Up To Be…Lawyers, Vanderbilt University Law (b) The dean and the faculty shall formulate and administer the EDUC. 231, 237 (1989). constitute fireable offenses in the private sector. For all intents, once School Law and Economic Working Paper Number 09-29 at educational program of the law school including curriculum; 22. See Carnegie, supra, at 33 (“…schools face the demand that they tenured law professors are there for life, for good and for bad. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1497044 methods of instruction; admissions; and academic standards for recover their costs from tuition.”) Nancy B. Rapoport, Eating Our Cake and Having It, Too: Why 13. Many law students are contributorily negligent to their own dire retention, advancement, and graduation of students; and shall 23. Daniel J. Morrissey, Saving Legal Education, 56 J. Legal Educ. 254, Real Change is so Difficult in Law Schools, 81, Ind. L. J. 359, 372 financial straits. Way too many of them went to law school without recommend the selection, retention, promotion and tenure (or 263 (2006) (“Compounding this problem has been the proclivity for (“There is no remedy in academia for such disruptive behavior-at much thought, hoping to sit out the Great Recession, and granting of security of position) of the faculty. some financially strapped universities to use their law schools as least if the person engaging in that behavior is a tenured full unrealistically confident that they would beat the odds and find a See also Nancy B. Rapoport, “VENN” AND THE ART OF SHARED “cash cows.” One leading legal educator commented that the professor. Deans can't tell their faculty colleagues to cease and desist big firm job that could support their debt. Way too many avoided GOVERNANCE, U. Tol. L. Rev.169, 173-174 (2003) (“… deans overhead rate a parent university might charge its law school would any overly aggressive behavior, because the aggressor is likely to doing the sometimes difficult personal assessment as to whether they can propose curricular changes to the faculty, but the faculty is be realistic at between 9 and 12 percent. Some institutions, however, simply seek cover under the First Amendment (and justifiably so). really wanted to be a lawyer. They are now stuck with the wholly within its rights to reject those changes…The dean may try take between 20 to 30 percent of their law schools' tuition revenue We can ask our colleagues to be considerate, but we can't require consequences of their actions. Nonetheless, two wrongs don’t make to persuade the faculty regarding curricular issues; such persuasion to support other departments and functions.” See also comments by our colleagues to "play nice." At best, we can hope that the a right. Law schools know better. They are not – or should not be- behind the scenes is fine, as long as the dean accepts the faculty's former law professor Corinne Cooper in 35-FEB Mont. Law. 11, miscreant's peers can impress upon him the need to keep his in the business of leading the naïve and unsophisticated down the determination on curricular issues.”); See also See Frank T. Read, THE ‘CRITICAL ISSUES' NOW FACING ATTORNEYS, discourse on a professional level.”) and (“…the life of a tenured full primrose path into financial ruin. Many law students will pay The Unique Role of the American Law School Dean: Academic (February 2010) where she was quoted as saying “law school is a professor is a life without negative consequences for bad behavior, as dearly for their bad choice. Having received their students’ non- Leader or Embattled Juggler?, 31 U. Tol. L. Rev. 715, 717 (2000) cash cow for the university”. long as that behavior doesn't rise (sink?) to the level of malfeasance refundable tuition, will law schools pay the same devastating Reed, a career dean who served in that capacity at five different law 24. Carnegie, supra, at 4. See also James B. Levy, As a Last Resort, or nonfeasance. This lack of consequences can be, at its worst, a financial price? schools put it even more plainly: “Faculty curriculum committees Ask the Students: What They Say Makes Someone an Effective Law shelter for knaves and fools.”). 14. See John Lande and Jean R. Sternlight, THE POTENTIAL organize and control the curriculum.” Teacher, 58 Me. L. Rev. 49, 61 (“[S]cholarship, rather than 5. Michael Hunter Schwartz, Teaching Law By Design: How Learning CONTRIBUTION OF ADR TO AN INTEGRATED 20. Under Interpretation 206-1 of Section 206(d) of the ABA teaching, has paramount importance at most [law] schools.”) Theory and Instructional Design Can Inform and Reform Law CURRICULUM: PREPARING LAW STUDENTS FOR REAL Standards: “The faculty or a representative body of it should have 25. See Rubin, Should Law Schools Support Faculty Research?, fn. 28, Teaching, 38 San Diego L. Rev. 347, 360 (2001) (“[L]aw school WORLD LAWYERING, 25 Ohio St. J. on Disp. Resol. 247, at substantial involvement in the selection of a dean. Except in at 141-142. teaching has changed little in the past 130 years.”); See also Amy 256-257 (2010) for a history of these reports calling for reform in circumstances demonstrating good cause, a dean should not be 26. There are nearly 1,000 law reviews in the U.S. that annually Deen Westbrook, LEARNING FROM WALL STREET: A legal education. (“Experts have long recognized that lawyers need appointed or reappointed to a new term over the stated objection of publish between 150,000 and 190,000 pages. Despite the volume VENTURE IN TRANSACTIONAL LEGAL EDUCATION, 27 multiple competencies to be effective in practice and, for close to one a substantial majority of the faculty.” See also, George B. Shepherd of that production, however “…the majority of those pages--I Quinnipiac L. Rev. 227, 256 (2009) (“Contemporary U.S. legal hundred years, experts have been issuing reports calling for reforms and William G. Shepherd, Scholarly Restraints? ABA Accreditation submit the vast majority--provide little if any social utility (other education is still rightly dated from the 1870's.”) of legal education. A common theme in these reports is law schools' and Legal Education, 19 Cardozo Law Review 2091, 2112 (1997 – than to their authors) and represent a colossal amount of wasted 6. Jeffrey Evans Stake, The Interplay Between Law School Rankings, insufficient focus on the skills needed to practice law. For example, 1998) (“No dean may be appointed, or reappointed, without the resources and opportunity costs…relatively few members of the Reputations, and Resource Allocation: Ways Rankings Mislead, 81 in 1914, the Carnegie Foundation for the Advancement of Teaching faculty’s agreement. The faculty will fire a dean who fails to bench and bar or legal policymakers today rely on law review Ind. L. J. 229, 268 (2006) (“There are deep national interests in in its “Redlich Report” argued that the case method of instruction promote the faculty’s interests.”). scholarship in meeting the demands of their jobs…Even in the what happens in law schools.”); See also Bethany Rubin Henderson, should be supplemented by teaching law in a more holistic and 21. For example see Philip J. Closius, The Incredible Shrinking Law rarified intellectual atmosphere of the Supreme Court, law review Asking the Lost Question: What is the Purpose of Law School?, 53 practical manner. In 1921, the Carnegie Foundation-funded “Reed School, 31 U. TOL. L. REV. 581, 584 (2000) (“In many academic scholarship has fallen from grace. As noted by former Solicitor J. Legal Educ. 48, 49 (2003) (“…what happens in law schools Report” criticized the overemphasis on legal theory and settings, universities have utilized the law school as a ‘cash cow,’ General Seth Waxman, “at the Supreme Court, academic citations directly contributes to the much-discussed “crisis” in the legal underemphasis on practical training. In 1971, the Association of with ‘excess’ law income being used to fund other programs at the are viewed as largely irrelevant--only a true naif would blunder to profession.”); Stephen M. Siptroth, American Law Schools issued the “Carrington Report” urging that University.”); Stephen M. Feldman, The Transformation of an mention one at oral argument.” See Brent E. Newton, Preaching 7. Carnegie, supra, at 30 (“The question is clearly a matter of wide the traditional first- year curriculum be replaced with courses Academic Discipline: Law Professors in the Past and Future (or Toy What They Don’t Practice: Why Law Faculties’ Preoccupation with importance to American society, as well as to members of the teaching, inter alia, legal advocacy, legal decision making, and Story Too), 54 J. LEGAL EDUC. 471, 495 (2004) (“The economic Impractical Scholarship and Devaluation of Practical Competencies professions themselves. Any revitalization of professional mission planning. These courses would focus on the actual practice of law. profitability of law schools seems likely to induce universities to Obstruct Reform in the Legal Academy, 62 S.C. Law Rev. 105, must take into account what goes on in the professional schools – In 1979, the ABA's Cramton Report” made twenty-eight maintain them.”); Richard A. Matasar, The Rise and Fall of 114-115 (2010). Several noted judges have also criticized the one area in which the professions have significant leverage.”) recommendations to promote greater experimentation in legal American Legal Education, 49 N.Y.L. SCH. L. REV. 465, 482 (2004) limited value of law review articles. See, for example, Harry T. 8. Prime Minister of France during portions of World War I, education, including providing “instruction in those fundamental (“Universities come to appreciate that many law students will pay Edwards, The Growing Disjunction Between Legal Education and

46 Spring 2011 Columbus Bar Lawyers Quarterly Spring 2011 Columbus Bar Lawyers Quarterly 47 Report Card Report Card

the Legal Profession, 91 MICH. L. REV. 34 (1992); Richard A. in the late 1980s “set off a frenzied rivalry among law schools.”) 51. Id. 62. In order to provide some “breathing space” in the current law Posner, Legal Scholarship Today, 45 STAN. L. REV. 1647 (1993); 39. U.S News creates its law school rankings based upon four criteria: 52. See, The Economics of Law Practice in Ohio, supra, at 11. school curriculum for a clinical requirement, the Task Force also Concurring opinion in United States v. $639,558, 955 F.2d 712, 722 (1) Quality Assessment which is weighted at .40 of a school’s score 53. Maimon Schwarzschild, The Ethics and Economics of Legal recommended that “The Supreme Court of Ohio reduce or (D.C. Cir. 1992) (Silberman, J., concurring). and is comprised of a Peer Assessment Score of .25 and an Education Today, 17 J. Contemp. Legal Issues 3, 6 (2008) otherwise modify the subjects tested on the essay portion of the 27. Edward Rubin, Should Law Schools Support Faculty Research?, 17 Assessment Score by Lawyers/Judges of .15; (2) Selectivity, weighted 54. See Society of American Law Teachers 2009-2010 Salary Survey at Ohio Bar Exam to enable Ohio law schools to offer enhanced and J. Contemp. Legal Issues 139, 141-142. at .25 consisting of Median LSAT scores of .125, Median Undergrad http://www.saltlaw.org/userfiles/SALT%20salary%20survey%20201 increased clinical and externship opportunities.” 28. Edward Rubin, Should Law Schools Support Faculty Research?, 17 GPA of .10 and Acceptance Rate of .025; (3) Placement Success, 0%20--%20final.pdf. 63. Carnegie, at 25. J. Contemp. Legal Issues 139, at 139 (2008). Rubin goes on to weighted at .20 and (4) Faculty Resources, weighted at .15. . See 55. See William L. Prosser, Lighthouse No Good, 1 J. Legal Educ. 257, 64. For example, the clinical requirement before sitting for the Ohio argue in the article that law schools should support such research Robert Morse, The Law School Rankings Methodology, U.S. News 260-261 (1948), describing the many benefits of the law professors Bar would most likely need to be phased in over a period of years so and that it adds value. Along the way to that conclusion, however, and World Report, April 15, 2010, at life back in 1948. They are remarkably similar to the ones described that students who attend law school now would not be covered, or he provides some insights into the role played by research at law http://www.usnews.com/articles/ 60 years later by Nancy Rapoport. those who attend law school out of state but who wish to take the schools, how it is funded, and how it advances a professor’s career. education/best-law-schools/2010/04/15/the-law-school-rankings- 56. Nancy B. Rapoport, Eating Our Cake and Having It, Too: Why Ohio Bar Exam upon graduation, could plan their coursework 29. Rubin, supra, at 140-141. methodology.html. Real Change Is So Difficult in Law School, 81 IND. L.J. 359, 363 appropriately. 30. Rubin, id, at 142-143. 40. Robert Morse, id. About 65% of the academics surveyed (2006). SEE ALSO Donald J. Weidner, The Crises of Legal Education: 65. Statistically, law faculty have very little practice experience. A 31. See Steven R. Smith, Gresham’s Law in Legal Education, 17 J. responded, while only 21% of the lawyers/judges responded. In A Wake-Up Call for Faculty, 47 J. LEGAL EDUC. 92, 103 (1997) study that appeared in 1991 showed that over 20% of all law Contemp. Legal Issues 171, 206 (2008) where Smith, Dean of the addition, there are many other problems with the U.S. News (describing the job of law professor as “surely one of the greatest professors had no law practice experience prior to teaching and that, California Western School of Law, states that “Law schools are rankings. At the outset, the U.S. News law school rankings are jobs in the world”). Weidner was Dean at Florida State University overall, the length of time that they practiced prior to teaching was unusual among graduate and professional schools in that the vast College of Law at the time he wrote the article. 4.3 years. See Robert J. Borthwick & Jordan R. Schau, Note, most significantly, and perhaps, primarily relied upon by law school 57. majority of research and scholarship in law schools is funded by applicants who view the rankings as gospel. It is beyond a A number of such law professors earn more than the Chief Justice Gatekeepers of the Profession: An Empirical Profile of the Nation’s of the United States Supreme Court whocurrently earns $223,500. tuition…The tuition that is used to cover legal research is, for most reasonable doubt that law school applicants attend law school in Law Professors, 25 U. MICH. J.L. REFORM 191, 219 (1991). A later See U.S. Courts website at students, the equivalent of an involuntary fee that they must pay in the hope that they will find meaningful J.D.-required employment study showed that the average time that law professors practiced http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/JudgesJudgeshi order to obtain a law degree and law instruction. It is not obvious after graduation. As such, the U.S. News rankings have a key tie-in prior to becoming teachers had actually diminished to 3.7 years. ps/docs/JudicialSalarieschart.pdf , last visited January 13, 2011. that students are the ones who should be paying the cost of legal with the legal employment marketplace. Why it is, then, that U.S. Richard E. Redding, Where Did You Go to Law School? 58. This is based upon my review of records published by the Buckeye scholarship. They are generally borrowing the money to do this and News gives the peer assessment of other academics more weight Gatekeeping for the Professoriate and Its Implications for Legal Institute at http://www.buckeyeinstitute.org/higher-ed. For they are the least able of all those in the profession to pay for it.” than the assessment of lawyers and judges who control the Education example,during the 2008 – 2010 period law professors at Ohio State . 53 J. Legal Educ. 594, 601, 612 (2003). 32. Rubin, id, at 161. Dean Rubin is not alone in his assessment. 66. employment marketplace, and know more about it, is anyone’s and the University of Cincinnati, alone, who earned in excess of Data compiled by National Jurist Magazine showed not only a Irwin Chemerinsky, Dean at University of California, Irvine School guess. But in addition to that, as you can see, the percentage of $100,000 per year were granted regular pay raises that aggregated 40% increase in faculty from 1998 through 2008 but also a of Law concurs with Dean Rubin. “In the past two decades, elite lawyers and judges who return the survey is only 21%. As such, a more than $700,000 during this period of time. The aggregate dramatic increase in law school administrative staff. Jack law schools have emphasized theoretical, interdisciplinary significant component of a school’s overall ranking - the Assessment increase may actually be higher, as records were not available on the Crittenden, Why is tuition up? Look at all the profs, The National scholarship…A faculty member trying to move to an elite law Score by Lawyers/Judges that accounts for 15% - is controlled by a Buckeye Institute website for the salary increases at UC Law School Jurist, March 2010, at 40. See also Macchiarola and Abraham, school is more likely to attract attention and receive offers if he or small sliver of those surveyed. for the 2008 – 2009 academic year, as they were for the Ohio State supra, at 92-93. (“…in recent years, many law schools have also 41. she is engaged in theoretical, interdisciplinary work. Michael Sauder and Wendy Nelson Espeland, Strength in Numbers? Law School. added to their comforts by increasing the numbers and salaries of Additionally…it is obvious that there are a significant number of The Advantages of Multiple Rankings, 81 Ind. L. J. 205, 211 59. See U.S. Courts website at administrators and spending lavishly on technology and physical abstract articles being published that are unlikely to be useful to (“…the U.S. News ranking has clearly altered the distribution of http://www.uscourts.gov/JudgesAndJudgeships/JudicialCompensatio facilities”). judges or lawyers.” Dean Chemerinsky concludes that, while a resources-resources of time, money, and attention-within law n/JudicialPayIncreaseFact.aspx, last visited on January 13,, 2011. 67. Daniel Theis, Rethinking Legal Education in Hard Times: The generalization subject to exceptions, legal scholarship is “…even schools.”). 60. Shepherd and Shepherd, supra, at 2112. Recession, Practical Legal Education, and the Job Market, 59 J. 42. more disconnected from the issues that judges and lawyers face…” United States Government Accountability Office, Report GAO-1— 61. In order to provide some “breathing space” in the current law Legal Educ. 598, 612 (2010). See Robert P. Schuwerk, The Law and “… that overall, law faculty, in both their teaching and writing, 20, HIGHER EDUCATION: Issues Related to Law School Costs school curriculum for a clinical requirement, the Task Force also Professor as Fiduciary: What Duties Do We Owe to Our Students, are less connected to the profession and the issues it confronts.” See and Access, at 2 (October, 2009). The law schools told the GAO recommended that “The Supreme Court of Ohio reduce or 45 S. TEX. L. REV. 753 at 761 (2004). Erwin Chemerinsky, Why Write?, 107 Mich. L. Rev. 881, 885-886. that ABA accreditation requirements appear to play only a minor otherwise modify the subjects tested on the essay portion of the 68. See Robert P. Schuwerk, The Law Professor as Fiduciary: What 33. Newton, id, at 125. role in the increase in law school costs. See also Macchiarola and Ohio Bar Exam to enable Ohio law schools to offer enhanced and Duties Do We Owe to Our Students, 45 S. Tex. L. Rev. 753 at 761 34. Bennett, supra, at 105. Abraham, supra, at 89-90. One law dean described it this way: increased clinical and externship opportunities.” (2004). 35. See Newton, supra, at 118 citing a study appearing at Thomas A. “We compete on U.S. News & World Report's terms--offering more Smith, The Web of Law, 44 San Diego L. Rev. 3090, 336 (2007). high-end and fewer need-based scholarships; paying extraordinary 36. Stephen G. Breyer, Response of Justice Stephen G. Breyer, 64 salaries to star faculty and deans; spending huge sums on facilities, N.Y.U. Ann. Surv. Am. L. 33, 33 (2008). technology and brochures bragging about our accomplishments-- 37. Rachel F. Moran, Of Rankings and Regulation: Are the U.S. News raising the price of education for everyone.” and World Report Rankings Really a Subversive Force in Legal 43. Ronald A. Cass, SO, WHY DO YOU WANT TO BE A LAWYER? YOU WORK FIVE DAYS A WEEK Education, 81 Ind. L. J. 383, 383 (2006). WHAT THE ABA, THE AALS, AND U.S. NEWS DON'T KNOW 38. Quoted in the N.Y. Times, July 31, 2005 at THAT WE DO, 31 U. Tol. L. Rev. 573, 574 (2000). http://www.nytimes.com/2005/07/31/education/edlife/wellen31.html 44. Stake, supra, at 245. WE WORK . There are a legion of articles on the disproportionate impact of 45. Benjamin Barton, Is There a Correlation Between Law Professor the U.S. News rankings on the resource allocation and priorities of Publication Counts, Law Review Citation Counts, and Teaching law schools. For a small sampling of articles discussing the power Evaluations? An Empirical Study, 5 J. Empirical Legal Stud. 619, of the U.S. News rankings within the law school community see: 619 (2008). Vernellia R. Randall, THE MISUSE OF THE LSAT: 46. Chemerinsky, supra, at 881 (“…I don’t know that I have ever heard A WEEK DISCRIMINATION AGAINST BLACKS AND OTHER of an instance of a professor being recruited to a more prestigious five days MINORITIES IN LAW SCHOOL ADMISSIONS, 80 St. John's L. school because of his or her reputation as a teacher.”) Rev. 107, 134 (“Schools have become obsessed with their 47. See Steven C. Bennett, When Will Law School Change?, 89 Neb. L. Who can afford to wait a week, or even a month, for the latest local business rankings.”); David A. Thomas, THE LAW SCHOOL RANKINGS Rev. 87, 105 (2010). ARE HARMFUL DECEPTIONS: A RESPONSE TO THOSE 48. See Chemerinsky, supra, at 881 (“Teaching loads [for law news? Local business leaders know the value of accurate, timely news WHO PRAISE THE RANKINGS AND SUGGESTIONS FOR A professors] are light compared with many other departments in available in print and online every business day through The Daily Reporter. BETTER APPROACH TO EVALUATING LAW SCHOOLS, 40 universities.”) Subscribe today to Central Ohio’s only daily business and legal newspaper. Hous. L. Rev. 419, 420-421 (2003); (“Nothing has had a more 49. See Ohio State Bar Association, The Economics of Law Practice in profound impact on legal education in the past generation than the Ohio, Desktop Reference for 2020, at phenomenal prominence of law school rankings, especially the http://www.ohiobar.org/General%20Resources/pub/2010_Economic rankings published by U.S. News & World Report.”); Macchiarola, s_of_Law_Practice_Study.pdf at pages 6 and 17. 580 S. High St., Suite 316, Columbus, OH 43215 supra, at 87 (“Perhaps more than any other single factor, the debut 50. Jack Crittenden, Why is tuition up? Look at all the profs, The 614-228-NEWS (6397) • thedailyreporteronline.com of competitive law school rankings by U.S. News & World Report National Jurist, March 2010, at 40.

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