science is a verb. - columbus barbeen eviscerated in the classic travels into several remote nations...

2 Winter 2014 Columbus Bar Lawyers Quarterly

While S-E-A has an incredibly well-educated staff, our work is anything but academic. We apply our disciplines to the real world. The world where hands get dirty. In the real world, the answers to what happened are often hidden in a maze of twisted metal. Or buried in a mountain of dust and debris. The answer is there for those who know where to look and have the ability to recognize what they see.

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© 2013

Science is a verb.

Winter 2014 Columbus Bar Lawyers Quarterly 3

For most of my life I have been a non-joiner. I saw no benefi t in becoming part of a larger group on more than an ad hoc basis. I was not into team sports. I did not have extracurricular interests. I never had the desire to join school clubs or societies. An explanation for my lack of involvement boils down into four signifi cant reasons, and a lot of little ones not worthy of mention.

I was born with a pronounced Bradypus Osteotitus aka lazy bone. Joining something means taking an affi rmative step and it requires effort, and effort really troubles someone who suffers from this disorder. Moreover, there was/is no cure yet discovered that mitigates the condition.

The second hurtle was apathy. Apathy may not be the best word to use, but I could not fi nd one that better fi ts my complete lack of caring about any issue. Early in my life I decided that I knew what type of person I was. Some people claim they are optimists, – others, pessimists. I believe I am a romantic realist. I always want things to turn out right; I just assume that they will not. Hence, any issue general enough to have a group or organization that was accepting members just did not raise my blood or stir my passion. If an issue or cause did attract my attention, my earlier-mentioned condition helped seal the deal against getting involved. Furthermore, I believe that holding something too passionately is actually dangerous. A passionate belief is too close to fanatical belief, and I have never been fanatical about anything (including OSU football.)

My third roadblock came from my love of history. Reading about thousands of years of human confl ict helped to develop my inordinate distrust of all the ways in which humans organize themselves. Be it absolute monarchs, democracy or republics, people continue to make the same mistakes over and over. The only difference I saw in the modern/current world, was that the effects of our repeated mistakes are on a larger scale.

The fi nal reason was an off-the-cuff statement by my dad when I was a freshman in high school. We were stuck in traffi c behind a car that had a few bumper stickers. I do not remember what the bumper stickers said, but I do remember that if you read the message, you knew what the owner of the car felt about certain issues. My father said, “Why would someone want to label themselves?” Oddly, that struck me as a profound statement, and until I had kids, I never had a bumper sticker on my car. (I now have one associated with my child’s gymnastic team.)

Yet here I am - the president of the Columbus Bar. How is it possible that someone with all my baggage got here? Here’s my best explanation.

When I passed the bar, my father accepted me into his one- man practice and gave me, as he liked to put it, marching orders. The fi rst was to join the Columbus Bar. Since it was an order, I followed it without question – never asked him why. In the brief time I spent practicing law with him, I came to learn why.

At one point, my father said that membership in the CBA was the best way to meet your professional colleagues and a great way to “get your name out there.” I did not know it at the time, but that was, and remains, a truism. I was able to fi gure out on my own that he believed it is a duty to the profession to be a member of your local bar. He felt that way and so do I (but paying dues does not mean that I have a bar bumper sticker on my car.) Coincidentally, at the same time I received my marching

orders, there was a push by the Ohio Supreme Court to enhance/support/maintain the professionalism of the bar. A new professionalism creed was being discussed, and the CBA had a committee on the subject. The popular refrain at the time was that the “young lawyers” were ruining things and the profession needed to address the issue. I knew that the term “shyster” went back to the 1800s and the term “pettifog” was coined possible as early as the 1600s. Furthermore, the profession had already been eviscerated in the classic Travels into Several Remote Nations of the World; By Lemuel Gulliver, First a Surgeon, and then a Captain of several Ships, now more commonly referred to as Gulliver’s Travels by Jonathan Swift. That work of art was published in the early 1700s. Noting history, I was able to draw the conclusion that the fall of the profession’s good standing could not be attributed to just my generation.

On behalf of all young lawyers, I had a great desire to poke the established bar in the eye, so I decided to go to the next scheduled professionalism committee meeting. I showed up with a fi re in my belly and a hope that my romantic side would win out over my realist one. I am not sure I remember the meeting, but what I do remember – and always will, was that the committee was led by Frank Ray, who was its chair.

Working with Mr. Ray and meeting and working with Alex Lagusch shook my belief that all human organizations were destined for failure. To my eyes the CBA was, and still is, nimble and quite capable of addressing issues as if it has the heart of a startup business. It clearly has aged well. And my dad’s statement about meeting people was proven true. I met, discussed, debated and argued the issues that came before the committee with some of the leaders of our profession. It was truly heady stuff for me – a kid with no law fi rm behind him and just a couple of years of practice under his belt.

The years went by and like the proverbial camel’s nose under the tent, the CBA not only got my dues, it got my time and commitment. I was inside the tent. I had really bought in before I realized it. With each additional commitment I took on, I found more opportunities to broaden my prospects and to help my profession. The association brought into my life some of the most challenging and rewarding work I have ever performed. My work with the CBA, and the people I have met and befriended, have all enhanced my life. I had found the cure to my laziness and my apathy.

So, like many late-in-life converts, I have become and continue to be a fanatic supporter of the Bar. I have grown to personify the old saying: “in for a penny, in for a pound.” I got involved, and I am so glad I did. Take the opportunities that the Association gives you and make the Columbus Bar your professional alma mater. There is no better school out there.

[email protected]


Odd – for a non-joinerBy Mark Petrucci

Mark Petrucci, Franklin County

Common Pleas Court

5Winter 2014 Columbus Bar Lawyers Quarterly 5

By now, most of you have had a chance to visit the Columbus Bar since the completion of our recent renovations. The feedback has been positive, and we’re thrilled with the lighter, more modern look – not to mention the added functionality.

As anyone who has been through a remodel knows, the process was not easy and certainly was not without its headaches. But in the end, the result is a better, more useful space for our members.

Truth be told, fi ve years ago, I’m not sure we would have made the decision to stay at 175 on the Park. The surrounding area was somewhat blighted by an abandoned mall, lack of dining options, and some less-than-attractive “store fronts” on High Street. The building itself had become a bit dated. What a difference a few years can make.

The Columbus Bar now overlooks an urban park at the epicenter of some impressive urban living. From your neighborhood bar, you can see (and walk to) the Franklin County, Ohio Supreme, and Federal courthouses. We are conveniently situated among numerous inexpensive parking options, accessible to all major arteries and an entertainment destination. And, what’s not to like about all the new dining – not the least of which is a plethora of food trucks during the summer that the Solo/Small Firm Committee has worked into its meeting dates. Simply put…this place is happenin’!

Lease negotiations were complex, focusing largely on renovations to make our space more modern. We started with two goals in mind: (1) reducing overhead and (2) increasing our potential for additional revenue.

Reducing overhead meant trying to shrink our footprint by bringing Columbus Bar inc onto the 11th fl oor. The added benefi t of this move allowed our incubator participants additional exposure to Columbus Bar events and networking opportunities. It also allowed us to reduce the program’s overhead by over $30,000/year.

Increasing revenue meant making the space more versatile for today’s remote lawyer. With an increasing number of attorneys going solo, we wanted to be able to provide our members with space that could be used for depositions, mediations, arbitrations, training, and even a neutral site for client meetings should it be necessary for the lawyer otherwise working out of his/her home offi ce.

After months of research and negotiations, we settled on a design plan and lease structure that let us make improvements that achieved our goals: save money and position ourselves to generate revenue by “subletting” our space to members and businesses in need of affordable meeting space. All told, the new lease offered a generous tenant improvement allowance and a savings of approximately $70,000/year on rent.

I’m pretty sure we had the best negotiating team on the planet, and I would be remiss if I didn’t give them credit. (Although, I could never totally repay them.) The team was led by Steve Buchenroth (who, I might add, has helped us with every lease for longer than any of us can remember). Steve was joined by committee members Keith Schneider, Jameel Turner, and David Bloomfi eld Jr. through an 18-month process that started with evaluating our current needs, hiring a broker, shopping the area and securing an architect/design fi rm. After reviewing various sites and options,

with the assistance of our brokers, Paul Tingley and Collin Wheeler of Jones Lang LaSalle, we concluded that our current location made the most sense if we could negotiate the right terms.

It took four months of renovations in place, meaning we all kept working while walls were demolished, through intermittent power outages and loud noises that made the concerts in the park sound like crickets. We made the best of it. (Check out our Facebook page for photos and historical anecdotes we uncovered along the way.) We made fast friends with the electrician, foreman, wood workers, painters, and plaster guys. At one point, I mistakenly thought it might be fun to try on the stilts our painters were wearing….let’s just say that was a bad idea.

And, in case renovations to our physical space weren’t enough disruption, we thought it would also be a good idea to redesign our website, our magazine and implement new technology systems at the same time. We’ve had a total makeover. Tell us what you think. It’s all been done with you in mind.

If you haven’t already, please check us out, online and in person. If you ever fi nd yourself needing some extra space, I hope you’ll give us a try. Our prices are among the most affordable and convenient downtown. And, I can say with confi dence that our staff is the most friendly, helpful, customer-service orientated staff around.

So, come on over. Loitering is encouraged. We mean what we say when we call ourselves your Neighborhood Bar – where everybody knows your name.

[email protected]

Loitering EncouragedBy Jill Snitcher McQuain

By Jill Snitcher McQuain, Executive Director,

Columbus Bar

From your neighborhood bar, you can see (and walk to) the Franklin County, Ohio Supreme, and Federal courthouses. We

By now, most of you have had a chance to visit the Columbus Bar since the completion of our recent


So said Catherine Turner of the government watchdog group “Ohio Citizens Action” in a 2010 interview with the Cleveland Plain Dealer. She was describing a tool – voter initiatives, whereby the people circumvent a state’s respective general assembly, respectfully or not – that gives voters the opportunity to legislate on their own behalf.

In Ohio, we have seen such voter initiatives on issues as innocuous as establishing a Livestock Care Standards Board, and as controversial as prohibiting same-sex marriage. Indeed, whether it’s a referendum to establish casinos in Ohio’s four major cities, or it’s a referendum to undo a law that would have limited collective bargaining, voter initiatives tend to be driven by a powerful interest – supported by a mass of people and the mass of money that follows – that wants to see it passed.

In that state up north, one such powerful interest sought to use a voter initiative to prohibit the consideration of race in college admissions. The push to block affirmative action was known as Proposal 2, and it was launched in the wake of a pair of 2003 Supreme Court decisions – Gratz v. Bollinger and Grutter v. Bollinger – that had pitted the University of Michigan’s race-conscious admissions policies against the charge that affirmative action is unconstitutional. The Supreme Court, thanks to the unsheathed pen of now-retired Justice Sandra Day O’Connor, narrowed but upheld the constitutionality of considering race in college admissions. However, she included a qualifier: the Court did not believe such considerations would be necessary in 25 years.

At least two people did not want to wait that long. The first was Jennifer Gratz, the named petitioner in the 2003 Supreme Court ruling. The second was Ward Connerly, a businessman and political advocate who first made national headlines in 1996 when he spearheaded a successful voter initiative in California called Proposition 209, which prohibited the state from considering race in public education. Gratz had met Connerly at some point during the Supreme Court’s 2003 review of the challenges to affirmative action, and in the wake of that ruling, Gratz saw an opportunity to duplicate Connerly’s California proposition in Michigan.

So Gratz, who coincidentally had been living in California when Gratz and Grutter came down, picked up and moved to Michigan in 2004. She soon became the executive director of the “Michigan Civil Rights Initiative,” the appellation chosen to represent Proposal 2, which aimed to parallel Proposition 209’s success in Michigan. And that initiative’s most prominent financial backer was none other than Connerly, who gave $500,000 in support of the initiative. “When my toes turn up,” Connerly told the New York Times in 2006, “that’s when I’ll stop fighting this.”

And the fight did not end there, even after the initiative passed in 2006 with 58% of the vote. Legal sparring inevitably arose, and Gratz now finds herself in a familiar position: awaiting word from the judicial branch as to the constitutionality of Proposal 2.

The case, Schuette v. Coalition to Defend Affirmative Action, first wound through the 6th Circuit Court of Appeals, where the proposal was handed a pair of defeats from a three-judge panel, and en banc panel as well.

Unlike the Gratz and Grutter cases, the issue before the 6th Circuit was not specific to the consideration of race in higher education. Indeed, the 6th Circuit took pains to expressly

sidestep the issues presented in those cases. (As an aside, the Supreme Court will have the opportunity to revisit Gratz and Grutter soon nevertheless, in a case called Fisher v. University of Texas. The Court has already punted that case back to the lower courts, but it is sure to return, and with it the possibility that affirmative action will soon come to an end.)

The issue before the 6th Circuit was “whether Proposal 2 runs afoul of the constitutional guarantee of equal protection by removing the power of university officials to even consider using race as a factor in admissions decisions – something they are specifically allowed to do under Grutter.”

After a consideration of the arguments, the 6th Circuit held that Proposal 2 unconstitutionally skewed the political process by unfairly burdening racial minorities and their ability to effect change: a single avenue would remain open to them for countering Proposal 2, namely a similar alteration of the state constitution.

In grander terms, the issue strikes me as being of fundamental importance, an argument as old as the nation itself. Did direct democracy fail to meet that most terrific of challenges identified by James Madison in Federalist No. 10, that a republic must beware the danger that the majority may not respect the rights of the minority?

The 6th Circuit thought so, ruling that this unique change to the political process was unconstitutional.

The question was argued before the Supreme Court on October 15th. The key vote, as ever, will be that of Justice Anthony Kennedy, who has consistently been a theoretical supporter of race-conscious policies, but also an equally consistent critic of the means by which the state has sought to promote diversity. The focus for Kennedy, as indicated through the many questions he posed to the advocates before him, was in trying to identify the limits – or perhaps, limitations – of the political process theory articulated by the 6th Circuit. He asked, for example, whether it would be permissible if a law required a three-fourths vote in a legislature to pass any bill authorizing affirmative action.

The difficulty in answering this question underscores the ongoing challenges that states face in addressing race: Jennifer Gratz (with a nod to Chief Justice Roberts) would likely suggest that the best way to avoid issues on the basis of race is to stop legislating on the basis of race. Indeed, supporters of Proposal 2 argued that the referendum was not an attempt to skew anything, but to equalize the playing field in Michigan. Of course, the University of Michigan would surely suggest otherwise. They would likely frame the issue as one that impermissibly changed the political process to render the “last tool of ordinary people” the only tool for a minority of the population.

The Supreme Court’s ruling, due in the spring or summer of 2014, could have interesting implications for the future of voter referenda and direct democracy more broadly. Until then and well thereafter, the marketplace of ideas will churn on.

[email protected]

“It’s like the last tool of ordinary people.” By Michael Corey

Michael Corey, Bricker & Eckler

Science, loosely defi ned, encompasses the study of facts learned through experiments and observation. Art, in arguable contrast, embodies the use of skill and creative imagination in the production of an aesthetic object. Sound case management practices combine the two mediums to yield a fi ner work product for clients, comport with the ideals of justice and make life easier for everyone concerned.

This article aims to explain what drives a case from the time a client walks in the lawyer’s door to the time he or she departs the Courthouse steps. When judges and lawyers consistently keep these driving forces in mind, experience suggests the steps needed to manage a case unfold sequentially.

When it comes to litigation, the hard and fast science dictates that a trial date will set the dominoes. The trial date should translate in every sense of the term to judgment day. The Court expects the case to resolve, one way or another, by a date certain. In order to accomplish this, the Court issues a case schedule when the complaint is fi led. While it seems elementary to focus on this “docketing sheet,” experience has shown it warrants more than a passing glance. The Case Management Order sets forth the latest possible date certain responsibilities (such as the disclosure of witnesses) must be completed. When one of those deadlines is “overlooked” the rest of the deadlines are impacted.

At the risk of sounding more like the parent of a teenager than a lawyer, these deadlines, or “rules” if you will, are there for a reason; and fi rst among them is to protect you. When lawyers comply with the dictates of the case schedule, the case gets resolved, whether it is mediated, settled, dismissed, decided, or tried.

When this happens, everyone walks away satisfi ed – at least with the process. Judges can account to the Supreme Court for the timely disposition of their cases. That has the intentional effect of minimizing the case load, giving the judge more time to focus on the remaining cases. Likewise, when cases resolve, lawyers receive remuneration in exchange and perhaps even appreciation. Somewhere in that equation, judges and lawyers develop a mutual respect because each side receives what it needs to fulfi ll the respective responsibility And clients, can go on with their lives… which leads to the second driving force to effective case management.

Clients, not lawyers, represent the art in this equation. This is not to say clients sit in the driver’s seat. Again, to invoke the parent of a teenager analogy, no wise parent simply turns over the keys, but rather cautions the teen through every turn. Recognition fi rst, followed by constant consideration of the client’s objectives, should help determine the specific steps required to reach a resolution.

Identifying (sooner rather than later) exactly what your client wants out of the case should answer in the abstract what needs to be accomplished. For example, what your client wants, or has suffered, bears on whether mediation may be appropriate for the case. If it appears your client recognizes strengths and

weaknesses in the case, or

wants this over as quickly as possible,

then attorneys should start asking what they need to get

the case ready for a mediation rather than blindly rely on a case

schedule. Questions like, “who needs to be deposed, what medical records need

to be reviewed and what is truly contested in this case?” – all need to be considered long before the discovery period cut-off date. Alternatively, when the client comes to a lawyer for protection, be it a breach of contract claim, negligence or consumer sales practice violation, you are well served to dig into the defenses available and determine how those are best manifested e.g., by pleading, motion or trial.

When lawyers account for their clients’ concerns and adhere to the case schedule, true case management is achieved. To accomplish this, consider the driving forces early in the life of the case in order to allow time to complete the necessary steps. This minimizes the need for continuances and panic; it closes fi les and nets dismissals or judgments; and, it pays clients and lawyers. In closing, just as an architect combines logarithms with sketches to design a structure, so too does the lawyer combine the case schedule with his or her client’s objectives to manage the case.

[email protected]


Case Management – Art and Science

Amy Koorn, Franklin County Common Pleas Court

By Amy Koorn


What business does a doctor have asking his patients about guns? On July 30, state Sen. Kris Jordan, R-Powell, asked this question by introducing Sen. Bill 165, which would prohibit physicians from asking patients if there are guns in their home.

Not long ago, Florida passed a law similar to SB 165, which was declared unconstitutional last year in federal court. The case is on appeal. The Wisconsin State Journal reported on June 13, 2013, that a similar bill will be introduced in the Wisconsin legislature.

According to the American Academy of Pediatrics, the legislatures in Oklahoma, Tennessee, West Virginia and Virginia previously introduced bills that would restrict physicians from inquiring about fi rearms. Each bill failed to pass.

Wisconsin Rep. Michael Schraa stated, “Owning a fi rearm, or not owning a fi rearm, is a personal decision that has nothing to do with your physical health. Patients should not feel intimidated or harassed by their physicians over the exercise of a constitutional right.”

Is Schraa right? Pediatricians don’t think so. “For a child, curiosity can be lethal, and guns spark curiosity,” stated

Robert Murray, MD, a pediatrician and professor at The Ohio State University. “Pediatricians are trained to evaluate environmental risks for children and seek ways to minimize them. We help parents understand that some of the things they take for granted are real sources of danger for their children. Guns are a public health issue for children, no different than chemicals or electrical outlets.”

Guns are a leading killer of children. The Children’s Defense Fund reported that in 2008 and 2009, 5740 children and teens, including 299 children under age 10, were killed by guns, and 8162 children and teens, including 847 children under age 10, were injured by guns. In 2008 and 2009, gun homicide was the leading cause of death for black teens, ages 15 to 19; for white teens, ages 15 to 19, it was vehicular accidents followed by gun homicide in 2008 and gun suicide in 2009.

According to Jonathan Groner, MD, a pediatric surgeon and director of Nationwide Children’s Hospital trauma program, from 2008 through 2012, Children’s Hospital admitted 104 children for gunshot wounds, 29 of whom required care in the pediatric intensive care unit. Five of the injuries resulted in death. Seven injuries were self-infl icted,

GUNS and KIDS

—

By Jack D’Aurora

and Execution of a Constitutional Right

Guns are a leading killer of children. The Children’s Defense Fund reported that in 2008 and 2009, 5740 children and teens, including 299 children under age 10, were killed by guns, and 8162 children and

teens, including 847 children under age 10, were injured by guns. In 2008 and 2009, gun homicide was the leading cause of death for black teens, ages 15 to 19; for white teens, ages 15 to 19, it was vehicular accidents followed by gun homicide in 2008 and gun suicide in 2009.

seven victims knew the shooter, and 10 other victims were related to the shooter. Twenty-eight children were shot in their homes, and 11 were shot at another home.

A New York Times article published on Sept. 28, 2013, revealed that roughly half of the accidental children shootings that were reviewed took place in the child’s home, and a third occurred at a friend or relative’s home. Groner’s personal experience is consistent with the Times article: “I have been reviewing the records of injured children for over 20 years, and it is extremely rare for a child to sustain a fi rearm injury from a criminal. In the vast majority of cases the children are shot by someone they know.”

The Times article featured several examples of youngsters nationwide who were accidentally shot. A three-year old found a .45-caliber pistol that was hidden under a couch and shot himself in the eye. A 12-year old boy, mistakenly believing he had emptied all bullets from a pistol his father allowed him to use, shot his sister in the mouth. A nine-month old was killed when his two-year old brother grabbed a gun from a dresser drawer and squeezed the trigger.

The Times endeavored to identify every accidental gun death for children 14 and under in Georgia, Minnesota, North Carolina and Ohio dating to 1999 and in California to 2007. Cataloging 259 gun incidents, the Times “identifi ed roughly twice as many accidental killings as were tallied in the corresponding federal data.” The difference is attributed to inconsistencies in determining the cause of death. Circumstances characterized as accidental in one death may be characterized as homicide in another. The problem is that homicide is defi ned as the killing of another person, whether intentional or unintentional.

How deaths are characterized was the subject of a study conducted by the Harvard Injury Control Research Center (Injury Prevention 2002; 8:252-256.). The study concluded that statistics “almost certainly underestimate the number of accidental fi rearm fatalities that occur each year, at least with respect to other infl icted shootings.”

Lower estimates for accidental shootings provide the NRA with grounds for opposing safe storage laws and instead promoting “gun education.” The NRA maintains that the number of accidental deaths for children has “decreased 89% since 1975. Today, the odds are more than a million to one, against a child in the U.S. dying in a fi rearm accident.”

Groner disagrees. “The NRA numbers don’t include death classifi ed as homicides and suicides. The NRA does not count these children, but they matter. There is ample data to suggest that the availability of a fi rearm in the home greatly increases the risk of homicide and suicide among children. Public health experts believe that if guns were not so accessible, these deaths would not occur.”

Gaining accurate information about accidental deaths is impeded by the NRA’s long- running battle against gun violence research which began in 1993. That year, the New England Journal of Medicine published a study about guns in the home increasing the risk of being shot by a family member or acquaintance. The lead researcher was Arthur Kellermann, MD, who was with the Center for Disease Control.

Seeing the study as an attack on gun rights, the NRA pushed to eliminate federal funding for gun studies. Former Rep. Jay Dickey, R-Ark, spearheaded legislation in 1996 known as the “Dickey Amendment,” prohibiting the CDC from using its funding “to advocate or promote gun control.”

While not explicitly prohibiting research on gun violence, the legislation effectively stopped it. “Precisely what was or was not permitted under the clause was unclear,” Kellermann said, “but no federal employee was willing to risk his or her career or the agency’s funding to fi nd out.”

After the National Institute of Health published a 2009 study investigating the link behind gun possession and gun assault, Congress extended the equivalent of the Dickey amendment to the NIH. The NRA sees gun research as “junk science designed to paint legal gun ownership as a public health hazard.”

Dickey, who admitted he once “served as the NRA’s point person in Congress,” later had an epiphany. In July 2012, he and Kellermann co-authored an op-ed piece in The Washington Post that questioned “why we know more and spend so much more on preventing traffi c fatalities than on preventing gun violence, even though fi rearm deaths (31,347 in 2009, the most recent year for which statistics are available) approximate the number of motor vehicle deaths (32,885 in 2010).”

Dickey and Kellermann maintain that, without research, scientists cannot answer basic questions about how best to prevent gun deaths. “The same evidence-based approach that is savings millions of lives from motor vehicle crashes as well as from smoking, cancer and HIV/AIDS, can help reduce the toll of deaths and injuries from gun violence.”

So, why would politicians ever think it good policy to suppress meaningful information about gun violence? According to Dickey and Kellermann, “Most politicians fear talking about guns almost as much as they would being confronted by one.”

Murray sees real harm from SB 165. “As pediatricians, we don’t care about guns themselves, but we do care about the danger they present to children. Too many kids get killed by guns. All we want to do is minimize that risk.”

Groner agrees. “Most pediatricians talk to parents and their children about car seats and other dangers that exist in everyday life. It is unreasonable to forbid doctors from discussing fi rearms and fi rearm safety, when fi rearms kill so many children.”

[email protected]

Note from the author: My thanks to the following physicians for their insights and assistance: Michael Gittelman, MD, Professor, Clinical Pediatrics, Cincinnati Children’s Hospital; and Gary Smith, MD, director of the Center for Injury Research and Policy of The Research Institute at Nationwide Children’s Hospital.


GUNS and KIDS

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Jack D’Aurora, The Behal Group

and Execution of a Constitutional Right

From the author: Patricia Hatler is the Executive Vice President and Chief Legal and Governance Offi cer for Nationwide, overseeing 1,300 professionals at Nationwide. She recently sat down with me to talk about what makes a good leader, what she expects from outside counsel, and about her personal journey that led her to where she is today.

—

I arrived at Duke as a freshman, having never seen the campus. When choosing colleges, my dad’s only rule was that I not go to school in the state of Kentucky. He was adamant about that. He wanted me to know there was a big world out there.

I, of course, wanted to go to University of Kentucky – that’s all I wanted to do. It’s what everyone did. It was what I knew. I had even gone to the extent of secretly applying for and getting accepted into UK honor’s program, and requesting fi nancial aid if my dad wouldn’t pay for it.

In the end, I went to Duke, sight unseen. It was luck that it worked out. In my life, I had been out of the state of Kentucky fi ve times at that point. I didn’t even know that I had an accent. Okay, it was more of a twang, something most of the Northeastern students at Duke had only heard in “The Kentuckian,” or think they heard in “Deliverance.” I got teased a lot about my accent.

I didn’t plan to be a lawyer. I never even thought of being a lawyer until I was out of college.

I majored in cognitive psychology because it was interesting.

Cognitive psychology is essentially the study of

how we perceive the world, manipulate

what we perceive and remember it. I loved it, it was

a b s o l u t e l y fascinating. And to this day I still fi nd connectivity to the things that I do. But by March of

my senior year, I had concluded I did not want

to pursue it academically for

the rest of my life. I graduated in 1976 – in the midst

of a fairly bad recession – and there were no jobs. I

graduated from a good school, with high marks and lots of good recommendations. And, there was nothing. Nada. So, frankly, I took the only job that I could get – as a paralegal in a big Washington law fi rm. I knew nothing about the law. It was strictly, “I need a job. Will you hire me?” I found that I really liked it. I liked the people. I liked the work. It was interesting and thought-provoking. And I discovered that the folks I worked with weren’t that much smarter than me, but they were earning a whole lot more. So, I went to law school.

—

Ms. Hatler joined Nationwide in 1999, after spending most of her professional career in Philadelphia at Independence Blue Cross as General Counsel and at Dechert LLP.

At that time, Nationwide had around 80 lawyers in their formal legal department. Nationwide had many different businesses, and there were fragmented legal practice groups throughout the company. At the time, Nationwide included a publicly held subsidiary, of which Nationwide Insurance was the majority shareholder. But the subsidiary also had public shareholders, and it was an enormously interesting and challenging professional opportunity for me.

And I really liked Columbus – the size of the city, the mobility. It simplifi ed my life a little bit. Columbus is big enough to have a really interesting population, a nice mix of culture, a good food environment and great neighborhoods near downtown. There are places where I would not have been as interested in moving.

My family intentionally moved to Bexley because it is so close to downtown and the airport. We have been living here 14 years. There is not a day that goes by that I don’t appreciate being less than three miles from work. When your work and personal life are as integrated as mine, eliminating a long commute is life-changing.

I love my job. Every day for me holds new, interesting and engaging activities. And, I work with incredibly talented people. The diversity of people and work make each day a learning experience. And even though I am an attorney, in a corporation that is as large and diverse as Nationwide, I get to lead other functions as well. I probably would not have the opportunity to lead groups like corporate citizenship, government relations and compliance if I worked for a law fi rm.

—

Ms. Hatler currently oversees fi ve corporate divisions of 1,300 professionals at Nationwide, and she maintains budget, operational, and talent planning responsibilities. Here, she talks about what it takes to be a good leader.

A leader needs to listen. I think it is easy to skip over that part. But listening builds trust. Many leaders want action. They want to articulate a vision and then see forward

An Interview with Pat HatlerBy Ali Haque


An Interview with Pat Hatler momentum – fast. That’s really important, but experience has taught me that slowing down to listen should precede forward motion. Listen, Decide. Communicate. Act.

The more I do this, the more important I believe communications skills are. I manage 1,300 people in almost 70 offi ces across the country. Effectively communicating to a group as large and diverse as this is a unique skill set. It requires focus and practice. I don’t want to suggest that I’ve mastered it. I have not. I’ve simply become more attuned to my mistakes. That has helped tremendously. As naturally as it seems to speak and respond, effective communications must be a planful act.

Nationwide has a real commitment to the communities where it has offi ces, certainly in Columbus, but not just here. We are in communities all over the country. We are deeply involved at the local and national levels with United Way, Feeding America and Red Cross. Our commitment to children is also growing, especially through our partnership with Nationwide Children’s Hospital. Our associates are committed to donating time, resources and dollars to the groups they care about. Nationwide Volunteer Network fosters the company’s unique culture of caring.

When looking for outside counsel to engage, I’m fi rst of all looking for real expertise. I have a feeling many of them would say I am looking for a magician – and there may be times when I am. Beyond that, we are looking for people who can really partner with us, can understand the business needs and craft solutions that will move the business forward. I put a great deal of value on what I call the translation function. There are a lot of very able lawyers who are very smart, but are incomprehensible to non-lawyers. The counselor – the skill of being able to take very complex legal issues and translate them effectively and concisely for non-lawyers – is incredibly important and powerful. Nationwide is not unique in having a group of executive leaders who are unbelievably busy. Their time is incredibly valuable, and they don’t have two hours to hear a treatise on “x, y or z.” So, that translation function is an incredibly important communication skill set for me.

My staff would tell you that it has been a long time since I’ve read a six-page memo. I am personally much more interested in bullets that distill the key points. It needs to be accurate. I need to be well-informed. But, I am a real believer that there are different ways of communicating to different groups.

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Nationwide Insurance is a national leader in its diversity initiatives, and recently won the Minority Corporate Counsel Association Employer of Choice Award. Ms. Hatler’s commitment to diversity and inclusion is just as evident, at Nationwide and in the community at large.

Generally, more and different ideas make for better outcomes. If you don’t have diverse voices at the table, you will simply miss really important insights. We also need these diverse insights because our customers are diverse, and we need to think about the experiences they are having with Nationwide. If your people aren’t refl ective of your customers, you’re probably missing something.

At Nationwide today, I think you hear a growing conversation about inclusion. That’s about leveraging our diversity – putting it into practice. I think historically,

diversity has focused – and appropriately so – on visible characteristics like ethnicity, race, gender, age. Today, I think there is a much more thoughtful understanding of diversity across many characteristics and creating environments where people feel free to express themselves. You can have a strong nondiscrimination policy – and you should – but if you aren’t overtly inviting people to the table and respecting them once they get there, you’re not reaping the full benefi ts of diversity. The Kentucky girl with the Appalachian drawl regularly reminds me of this.

[email protected]

Ali Haque, Bricker & Eckler

The Columbus Medical Association Foundation

A unique 501(c)(3) partnership of physicians and the community that can assist your clients in fulfilling their charitable interest in the medical and health and wellness arena.

For more information on the Foundation, it’s charitable options and services, contact

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[email protected] more at www.goodhealthcolumbus.org/cmaf

Weldon E. Milbourne

1390 Dublin Road, Columbus Ohio 43215

614.240.7420

12 Fall 2013 Columbus Bar Lawyers Quarterly

A recent article on the satirical website bitterlawyer.com suggested that a company selling legal forms has started installing vending machines around the country to enable the general public (particularly those without home internet access) to purchase common legal documents and pro se pleadings on the spot – no fuss, no mess, no J.D. required.

Lampoonists can never write fast enough to stay ahead of actual folly, and this is a classic example. A short Google scour will quickly reveal that the bitterlawyer folks are way slow in forecasting this phenomenon. Not only are the for-profi t pleading peddlers doing this, but courts themselves have joined in the act.

The Maricopa County Arizona court system, for example, has installed kiosks in convenient locations around the county to grind out a wide range of common legal documents for domestic, domiciliary, and debt cases. They charge a couple of sawbucks a pop for these legal masterpieces and use the proceeds to purchase more machines. The kiosks have a screen with video of a “lawyer” (played by an actor!?!) explaining how to use the forms. For an extra 75¢, the machine will also vend a pretty decent mocha latte. Other jurisdictions are looking into similar programs.

Somehow, this puts me in mind of a visit to Ghirardelli Square in San Francisco I made during the height of the hippiedom. Sitting in the middle of a crowd was a refrigerator shipping container with the crudely lettered sign, “Human Jukebox – Insert $1. – All requests Honored.” A steady line of folks lined up to stuff a buck in the slot. The guy on the inside would then strum his guitar and sing whatever song the client wanted, apparently, whether he knew it or not; it didn’t seem to much matter to anyone.

So why then, with all the un/under-employed lawyers among us these days, could we not bring interactive lawyering to the people who need it most using the same concept? Twenty bucks in the slot for a twenty-minute session with a real lawyer in a box located, say outside a Walmart or CVS. Overhead involved: a cell phone, an iPad, a battery operated printer, two stools and maybe a hand warmer. Earning potential: $60/hr.

OK, but what about the folks whose legal issues inhabit a more rarifi ed realm? Not to worry. Intelligence leaking out of Silicon Implant Valley suggests that help is on the way for the neglected top one per-centers.

Occasionally-reliable sources say that IBM’s Bunyanesque computer “Watson” and programmer

Ken Jennings have teamed up to do for Wall Street’s Daddy Warbucks what the Maricopian courts have done for Arizona’s Freddie Foodstamp. It is said they have designed a prototype avatar (working name “Wat-Ken”) based on (and housed in) a model of a senior partner of a white-shoe law fi rm. It (male and female versions will be available) is clad impeccably in Brooks Brothers and has the air of one who has just had lunch at the club with the Sultan of Brunei.

Clients will meet with Wat-Ken – no standing out in the rain at a kiosk for them – in a specially appointed Bentley limo with elaborate built-in countermeasures to prevent leakage of confi dential strategies. A masseuse will be on-board to alleviate stress as needed. Wat-Ken will be able to advise clients on mergers and acquisitions, hostile take-overs, patent & trademark piracy, the squirreling of assets in third-world countries, and the like. The fi rst iteration will not be able to appear in court, but that shortcoming is shortly to be remedied. It is not clear whether these avatars will be able to comply with all the provisions of the Model Rules of Professional Conduct or what sanctions can be imposed if they do not.

Seriously though, given the festering pool of unmet

legal need in this country, efforts to remedy at least some of that blight by providing reasonable means for self-help is the least we can do. In this pundit’s view, the legal profession should not be intimidated by, or rage against, mechanization and/or delegation of tasks that really are formulaic. Surely, lawyers have better things to do with their time and talents than worry about the threat of DIY law on that level. Worry instead about Wat-Ken.

[email protected]

GISMO, ESQ.By Bruce A. Campbell

Bruce A. Campbell, Columbus Bar Counsel

In the spring of 1945, Hitler’s Nazi forces were in retreat and the end of World War II in Europe was in sight. Absorbed with the military strategy, the Allied leaders had not yet established a plan for dealing with any captured German leaders. Some favored summary execution as just punishment for the horrors of the Holocaust and one that would avoid giving the Nazis a public forum for racist statements and the claim that they simply carried out the orders of superiors. Others, including the American Secretary of War, Henry Simpson, argued that denying them due process would make martyrs of the accused.

When Harry Truman succeeded to the presidency upon Roosevelt’s death on April 12, 1945, he was said to be considering an American tribunal to try the war criminals. An Associate Justice of the U.S. Supreme Court, Robert Jackson, was mentioned as the chief counsel for the trials.

Hitler committed suicide in his Berlin bunker on April 30, 1945 and, as combat ended in early May, the Nazi Propaganda Minister, Joseph Goebbels, and the SS Commander, Heinrich Himmler, also took their own lives. Several other high ranking offi cials went into exile or simply disappeared. On the evening before the formal surrender on May 8, 1945, Reischmarschall Hermann Goering personally surrendered to the U.S. Army in Austria. Goering arrived in full dress uniform decorated with two Iron Crosses. He was accompanied by his wife and young daughter, in an entourage that included 17 truckloads of personal belongings and stolen treasures.

In discussions in July and early August, 1945, the four Allied powers agreed on a Charter of the International Military Tribunal that provided for a tribunal to try defendants accused of (1) Crimes Against Peace (2) War Crimes and (3) Crimes Against Humanity. The Tribunal was to consist of eight judges: one principal judge and one alternate judge from each of the major allies – Great Britain; United States; France and Russia. The American principal judge was Francis Biddle and the alternate was John J. Parker. The Presiding Judge was Lord Geoffrey Lawrence of England.

Nuremberg was selected as the site for the Tribunal primarily because its existing prison had little bomb damage. Ironically, Nuremberg had seen the huge enthusiastic rallies in the early days of Nazi power – now it would witness its ignominious end. In less than eight weeks, The Nuremberg Palace of Justice was restored and remodeled to include a prisoner’s dock, a raised dais for the eight judges, a glass booth for interpreters in three languages, a press gallery and space for 500 spectators.

On the afternoon of October 19, 1945, formal indictments were served on all the defendants in the Nuremberg prison and they were advised that they could conduct their own defense or receive legal counsel. Serving the indictments was a former British artillery offi cer, Major Airey Neave, who had escaped from a German prisoner of war camp.

The trial of the fi rst 21 prominent Nazis began on November 20, 1945. All of the defendants were charged under one or more sections of the International Tribunal

Charter and the reading of the indictments went on for two days. The following day all of the defendants entered their “not guilty” pleas and Prosecutor Robert Jackson gave a classic four-hour opening statement.

For the next two weeks, Jackson presented document after document to support the charges. By the end of the second week, an air of boredom was evident in both the participants and the public. However, Walter Kronkite, then a young newsman, wrote: “Sitting there for the fi rst time and seeing these twenty-one men who had caused such horror in the world I actually felt sick.”

Boredom quickly turned to horror on November 29 when the prosecution showed unedited fi lms taken by military and civilian photographers during the liberation of Nazi concentration camps. They included images of mountains of human bodies, gas chambers, piles of gold taken from the teeth of corpses and emaciated humans for whom a single bowl of soup was too much for their starved bodies. Some in the audience could not bear the images and left the room.

Many German citizens were still in denial about the graphic photographs and accounts of Dachau and other concentration camps. A common reaction was that these were Allied propaganda.

The formal trial – prosecution evidence, defense evidence and closing statements went on for months. On August 31, 1946, the Court heard the defendants’ fi nal pleas as they were also broadcast to a worldwide radio audience.

Ultimate verdicts on the 21 defendants were: 11 sentenced to death by hanging, 7 given prison sentences for life or a term of years and 3 acquitted. Marschall Goering avoided his hanging sentence when on October 16, 1946, he swallowed a cyanide pill he had secreted in his personal toiletries. He left a note for his wife saying death by hanging was undignifi ed for a soldier.

The Nuremberg trials did not eliminate war. As Brigadier General Telford Taylor said in a fi nal report to the U.S. Army, “…The great question today is not whether the Nuremberg principles are valid, but whether mankind can live up to them, and whether it can live at all if it fails.”

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*Full disclosure – the author was a member of a U.S. Army unit that liberated a Nazi slave labor camp in Czechoslovakia in May, 1945.

THE NUREMBERG TRIALSBy Lloyd E. Fisher Jr.

Lloyd E. Fisher Jr.



The use of a movie to teach substance abuse/mental and professionalism/ethics enhances the ability of an attorney to remember key rules that distinguish law as a profession from a business designed to maximize profit. One current method of teaching, a lecturer reading from a script, a voice droning on about lawyers being given time out from the profession for terrible behavior. The cases may not seem relevant, especially if the presentation is boring. But, a movie with a well-written script can be intriguing, at the same time illustrating what can happen when a lawyer acts contrary to the rules.

The Verdict provides a fine example of a movie that can be used as a basic tool in any legal educational class. While probably not intended, Sidney Lumet – director, David Mamet – screenplay author, and David Brown/Richard D. Zanuck – producers of the movie have created a tool for teaching lawyers how not to practice law, and why to control substance consumption as well other personal problems before trying to work with clients. Even though the movie is older than some currently practicing attorneys, The Verdict has an intriguing plot.

To give an easy example of how the movie can show an important principle of the legal profession, consider analyzing The Verdict for violations of Ohio Rule of Professional Conduct 1.2(a). Rule 1.2(a) that says a lawyer is to abide by a client’s decision concerning the objectives of representation, and, as required by Rule 1.4, consult with the client as to the means by which they are to be pursued. The critical point of this rule says clearly that “[i]f a client wants to settle the case, the lawyer should follow the client’s wishes.”

From the first moment in Verdict, when attorney Frank Galvin (Paul Newman) stumbles into a room, drunk and disheveled, lawyers watching the 1982 movie know Galvin may have problems providing competent representation to any client. Frank Galvin, alcoholic and former lawyer at an elite Boston law firm, is seen with a serious drinking problem, perhaps deep depression.

Attorney Galvin forgets a basic principle – respect for the wishes of a client, a requirement set forth in Rule 1.2(a). A friend and former partner, Mickey Morrissey (Jack Warden) gives Galvin a medical malpractice case involving a woman in a vegetative state, possibly from an anesthetic incorrectly given. Morrissey tells Galvin the case will probably settle. The women’s sister and brother-in-law want a settlement to give them money to care for her. Galvin turns

down a $210,000 offer without asking his clients what they would prefer. The lawyer has decided he will fight for justice, win for the woman, and prove his competence at the same time.

He doesn’t ask his clients if they want the settlement before rejecting it, a clear violation of Rule 1.2(a). By luck and by participating in a bit of illegal tampering with mail, Galvin overcomes all obstacles. He somehow wins a huge verdict for his client, something much larger than the original offer, with little risk of appeal. This is, however, cinema, and it was made at a time when movies still had the good guys win, probably because audiences wanted to believe that happens.

The Verdict depicts exactly how dangerous not following the clients’ wishes can be. Galvin’s clients might not have been able to continue to pay for the comatose woman while he crusades forward with his case, and with the appeals that usually follow a major medical malpractice win. The movie shows how difficult it could be for a small law firm with limited resources to win a case against a wealthy opponent represented by a large, powerful law firm. Galvin’s win turned out to be appeal-proof, getting his clients an amount of money far higher than the settlement offer. How probable is that one?

Presuming the woman became a vegetable in an Ohio hospital, and assuming Galvin is a real, practicing attorney here as well, he would probably be hearing from his local bar association discipline committee or the Office of Disciplinary Counsel of the Ohio Supreme Court. A lawyer is obligated to report the misconduct of another if he has unprivileged information of misconduct of another lawyer, Rule 8.3(a), and someone should have reported Frank Galvin for his failure to follow his clients’ wishes.

Had his clients wanted the same quest for Justice as their lawyer, and had they urged him to pursue the hospital, Galvin would not face the disciplinary counsel on Rule 1.2(a). Of course, it would have been better if Galvin did not raid mail boxes for information – that was criminal behavior as well as a violation of Rule 8.4(b), a type of misconduct that occurs when a lawyer commits an illegal act that reflects on the lawyer’s honesty or trustworthiness. Galvin should have known that subpoenas are permitted means of obtaining information and beat tampering with the U.S. mail,

Before beginning his crusade, Galvin should have explained to his clients (in writing) exactly what he thought he could

MOVIES! A TOOL FOR TEACHING LAWYERS

By Janyce Katz and Geoffrey Stern


do, approximately how much it would cost them, and the options available to them. He should have obtained informed consent from his clients (preferably in writing at the time, but acceptable a few days later) for his actions before he went off tilting his lance against the hospital and the big law firm representing it. (See Rule 1.0, Terminology, which points out a lawyer must confirm client informed consent in writing if not immediately when the client gives consent, then within a reasonable time before the lawyer can act in reliance on that consent.) Above all, Galvin should have been advising his client to choose battles wisely.

When a client wants something other than a full trial, something quicker and more certain, why would an attorney unilaterally decide to crusade for truth, justice and a big win? Perhaps the decision to go against his clients’ wishes and to be the legal Don Quixote, tilting against the big firm with lots of money and to bring justice to the injured woman, is based on his need to consume far too much alcohol. He could have had delusions of grandeur, a belief that a huge victory against the hospital and a large firm would wipe away his professional losses.

If he were an Ohio lawyer, Galvin’s friend Morrissey could have referred him to the Ohio Lawyers Assistance Program (OLAP), 1-800-348-4343 for his alcoholic behavior or his illusions of greatness. OLAP is a private, non-profit charitable organization dedicated to helping Ohio’s judges, attorneys, and law students obtain treatment for substance abuse, chemical dependency, addiction, and mental health issues. Galvin possibly could have benefited from OLAP’s ability to get him confidential advice, help in arranging and implementing formal interventions, help in determining what kind of treatment is needed and where to get it.

Depression, anxiety, social isolation, alienation, hostility, paranoid idealization, and obsession-compulsive symptoms seem to be more frequent in attorneys than in the general population, according to Susan Daicoff, in her 1996 article, “Asking Leopards to Change Their Spots: Should Lawyers Change? A Critique of Solutions to Problems with Professionalism by Reference to Empirically-Derived Attorney Personality Attributes,” 11 Geo. J. Legal Ethics 547, 549. Daicoff concluded that a greater than average percentage of attorneys (as a group) is psychologically impaired in some way. She also argues that the common personality attributes held by lawyers have led to incivility, unethical behavior and self-contempt. See, Daicoff, Lawyer, Know Thyself: A Psychological analysis of Personality Strengths and Weaknesses (Washington, D.C.: American Psychological Association, 2004). Galvin exhibits some of these characteristics. Again, OLAP can help find treatment for these mental health issues, assuming that the lawyer with problems is willing and able to make changes.

As to the penalty for Garvin’s violations of the professional and ethics rules, a court may mitigate it under limited circumstances. Before lessening a penalty the court will look to see if the attorney has a diagnosis of a mental disability by a qualified health-care professional, a determination that the disability contributed to the misconduct, a sustained period of successful treatment, and a prognosis from a qualified health care professional that the attorney would be able to return to competent, ethical professional practice under specified conditions. See, e.g., Disciplinary Counsel v. McShane, 121 Ohio St.3d 169; 2009-Ohio-746. Galvin’s redemption from alcoholism and a reversal of his lack of ethics/professionalism would also be mitigating factors for any punishment issued to him.

The Verdict also shows an attorney, Garvin’s opponent, Ed Concannon (James Mason), who should expect not only to find himself without a license to practice for a long time, but also some time in a jail for his antics. A large firm attorney with assisting lawyers, Concannon defends the hospital and the doctor who allegedly gave the wrong anesthetic to the now comatose patient. Concannon’s violations of the Ohio Rule of Professional Conduct would fill another chapter.

Using movies to teach points of law can be like using honey to sweeten a child’s first day at school; in moderate amounts and when used with strong background material, the use of movies can enhance learning and make the process more enjoy

[email protected] [email protected]

Janyce Katz, Government Attorney, and Geoffrey Stern, Kegler Brown Hill & Ritter

Rebekah Smith, CPA, CFF, CVA, MAFFDirector of Financial Advisory [email protected]

Keith Hock, CPA, CFF, MAFF, CVADirector, Financial Advisory Services [email protected]

Damages. Disputes. Forensics. Expert analysis is right around the corner.


“You don’t look like a lawyer!” A comment heard all too often by the modern lawyer. The lawyer who takes advantage of artistic freedom in her choice of hair-style, shoe, or pant suit. Or, the lawyer who demonstrates his creativity through his choice of suit-fit, lack of tie, or color of apparel. The legal field has been impacted by flourishing media forms and as partakers and members become younger, a particular component of the legal field has been highly impacted—the lawyer.

The modern lawyer has no particular face, color, or creed. He is comfortable with his self-expression and able to bring that expression to the professional platform. Being the modern lawyer is more than a physical appearance, it is recognizing physical and metaphysical changes in society and the need to evolve to better assist and propel the law. There are various factors that drive the modern lawyer, she effects all areas of law, and he understands how to execute his modernity so it is appreciated, respected, and admired.

Driving FactorsThe modern lawyer is no novel

concept. He is simply more prevalent due to the change in times. Without going in-depth, the evolution of society, Internet communication, and opinionated branding has impacted the legal industry. Diversity in culture and background and the desire to be innovative, coupled with the aforementioned, drive the emergence of the modern lawyer.

Effected AreasThe modern lawyer is creating

waves in the legal gamut, in numerous areas, from business development to environmental dynamics.

Regarding business development, it is important to understand that as society evolves so too must the lawyer’s appeal and approach. Cliental increasingly have various backgrounds ranging from blue-collar types to “creatives.” These individuals, entrepreneurs,

social moguls, and sorts are seeking legal relations with which they are comfortable.

Sought out are legal professionals who have a level of humanness/relatability and transparency in the execution of a practice. But, the modern lawyer should be aware of the cliental and potential cliental that prefers a more traditional style and could be affronted by the modern lawyer’s approach.

Occupational environments are impacted by the emersion of the modern lawyer. Some environments are receptive and learn from the modern lawyer’s approach, allowing flexibility and advancement in environmental practices. But, some maintain a traditional decorum that resists this approach and severs the relationship. Some encourage growth and offer guidance, while others build a blockade. Thus, she must choose her environment wisely.

As the modern lawyer develops, he or she should be aware of several basic principles: recognize the environment in which he or she does business; defer to commonsense; and execute his or her essence with confidence. Obviously, these rules are not guarantees to success neither are they highly conjectured principles for that matter. But, these principles should allow the modern lawyer to be an asset in whatever environment she finds herself.

Recognize the environmentThe modern lawyer must be aware of

the environment in which he or she is conducting business. For instance – in the courtroom, it is still a good idea for men to wear a blazer and tie to respect the courtroom decorum. Recognizing that each judge conducts her courtroom differently, one is better to air on the side of caution. In another instance, when dealing with individuals new to the legal industry, the modern lawyer should forego the legalese and starch demeanor and be understandable and approachable. All environments beg

for different approaches. Be cognizant of those environments and approaches to afford a more successful situation.

Practice commonsenseThe importance of commonsense

cannot be emphasized enough. It is great to be expressive and bring out new and invigorating approaches, ideas, and execution styles. However, without the exercise of commonsense, ideas and information may be rejected. If you believe what you are doing or will do may offend a reasonable person, it may be good to air on the side of caution.

Be confidentConfidence is too often overlooked.

Bringing newness to any environment can be intimidating, however that newness will never be understood or respected if the executor does not believe it himself. The modern lawyer should be sure of himself when he decides to look, speak, or think differently. She should be confident in her capabilities, uniqueness, and style. However, confidence should be preceded by great product.

Great product makes the modern lawyer feel better about his innovations and it allows partakers or colleagues to respect the innovations. Great product expands the parameters for the modern lawyer because when the initial innovation, which should be mild, is successful, the mind wonders what successes could occur with greater or more fully developed innovations. But, none of this is possible without confidence.

So…who is the modern lawyer?

THE MODERN LAWYERBy Stefan T. E. Thomas, Esq.

Stefan T. E. Thomas, Esq.

Recent job statistics and the national decline in attorney jobs have prompted some recent graduates to explore other careers in which they can use their law degrees. In addition to the dwindling job market, some attorneys may practice law for a few years only to discover they would prefer to do something else. As most of us know, the practice of law does not resemble the law school classroom, which leaves many law students unsure as to what their careers will be like once they graduate.

After commencement, law school graduates don’t receive much unsolicited guidance on non-legal alternatives for their careers and most don’t even think to ask. After being enveloped in the law for three to four years, the most obvious path to pursue is a position with a law firm. However, law school graduates can use their acquired skills and ability to thrive in non-traditional careers that do not involve the practice of law.

One alternative for a career option is a trust officer position in a trust department. A trust department is part of a bank that is organized to perform fiduciary services for clients by serving as a corporate trustee for personal trusts. A trust department also manages general investments and retirement accounts that are not held in trust. In the former role, the trust officer serves as the primary point person for contact with the trust’s grantors and/or beneficiaries and ensures that regulatory policies and procedures are in place for the trust administration. In the latter role, the trust officer becomes a relationship manager to facilitate the connection between the bank’s investment advisors and the investors.

To get the inside scoop on the intricacies of this position and to shed some light on the path to attain it, I interviewed Tom Cummiskey and Megan Warman, two law school graduates who are trust officers for Park National Bank’s trust department.

Tom Cummiskey intended to practice law while he was in law school. He became particularly interested in estate planning after taking a class on trusts and estates. After graduation, Tom began working at a bank in a position involving trust tax and then transitioned to an assistant trust officer position and eventually to a trust officer. For the first few years of his career, he continued to accumulate expertise in this area, while intending to practice law at a later date. As his responsibility grew in his position with the bank, so did his passion and career satisfaction. Eventually, he dismissed the thought of practicing law in favor of staying in the trust department. Megan Warman has a similar background. While in law school, Megan planned to practice corporate law. However, during her post-graduation job search, she accepted a trust officer position, where she remained for seven years. She now has a fulfilling and rewarding career as a trust officer.

Although a law degree is not required to hold this position, the skills developed through a law school education can put you a step ahead of others trying to get into this field. A trust officer needs a thorough understanding of trust law and the bank’s duties as a fiduciary. This understanding will guide the trust officer as he or she takes actions on behalf of the bank, as a fiduciary. The trust officer must be able to interpret the trust’s provisions to ensure that those provisions are followed throughout the administration of the trust. Additionally, a trust officer must understand the various types of assets that can be held in trust so they can be managed properly, which assets may include real estate, closely held business interests, investment accounts, life insurance, and retirement accounts. Attorneys have the basic knowledge of these assets and the analytical abilities to assess their relation to trust law.

At Park National, nine attorneys are in the trust officer ranks within the corporation which means that 40% of it’s trust officers hold a J.D. This trend is consistent with the trust community as a whole, in which approximately 25-40 percent of trust officers have a J.D. Although both Tom and Megan graduated law school with the intent of practicing law, they have found rewarding careers in positions that involve no legal practice whatsoever, but that allow them to use the attributes they desired to employ in their legal careers. Their law school education enables them to communicate more effectively with other professionals such as practicing attorneys and accountants, which, in turn, establishes better relationships and generates more business.

When embarking on their careers, newly admitted lawyers should explore all of their options, which may include positions outside of the practice of law. A law degree can be an asset of tremendous value in certain careers, even though those positions are not advertised as “attorney” jobs. A trust officer is just one career of many that can be considered by law school graduates as they begin and proceed with their careers.

[email protected]

Treisa L. Fox, Wittenberg Law Group


Consider an AlternativeBy Treisa L. Fox


You may have heard or read about the PACO/LASC Pro Bono Wills Clinics over the last 3½ years and wondered what they are really all about. Who operates these clinics? How are they structured? Who is helped by these clinics? Where are the clinics conducted, and how often are they offered?

In collaboration with the Legal Aid Society of Columbus (whose malpractice insurance coverage is extended to volunteers), the Pro Bono Wills Clinics are operated by the Pro Bono Committee of PACO, the Paralegal Association of Central Ohio. The program is a mobile clinic that travels to “low income” senior citizen residential facilities throughout Central Ohio twice a month from January through October. These are document-driven events where Simple Wills, Durable Financial Powers of Attorney, Advance Directives for Health Care (Living Will, Health Care Power of Attorney, and Organ Donor Designation) are constructed for individuals who have few assets and do not have the resources to retain private counsel. The Wills Clinics are staffed with attorneys, paralegals, and law students who volunteer their time and expertise. Having completed a cost-free but mandatory CLE, the volunteers have been trained to serve the clientele and provide guidance and counsel in this unique setting.

The Clinics are conducted on weekday evenings after business hours, beginning at 5:30 p.m. and concluding in the 8 o’clock hour. Upon arriving at a location, volunteers fi nd a designated room with tables and chairs, where several laptop computers and wireless printers are arranged and waiting for their use. Loaded onto each laptop are templates for a Simple Will and a statutory form POA, in Word format. Also provided for the volunteers are supplies such as legal pads, pens, staplers, etc.

Prior to each clinic date, several preparations have been made. The site has been visited and the Service Coordinator of the facility has been provided with intake questionnaires and other information for the residents. A few days before the clinic date, each resident/client will have had an intake interview conducted for Legal Aid’s purposes and records. Following that

appointment, each client’s Advance Directives documents will have been drafted.

On the Wills Clinic date, each resident is situated with an attorney/paralegal (or law student) team. Using the information gathered during the intake appointment, the attorney talks with the client(s) to answer questions and execute the Advance Directive documents (that were previously generated) while the paralegal (or law student) simultaneously enters information into the laptop computer and generates the Simple Will and Financial Power of Attorney. Then the attorney guides the client in executing those documents and the volunteers serve as witnesses. The client(s) are provided with a nice pocket folder to organize and retain all the original papers. At the conclusion of each Clinic, the documents are removed from each laptop and not kept by Legal Aid or PACO. On a typical evening, each attorney/paralegal team meets with two clients.

Since this program was launched, 50 Wills Clinics have been conducted and over 500 individuals have been served in Central Ohio. If you are interested in learning more, please contact Teresa Scharf at [email protected].

Dissection of a Wills Clinic

Teresa Scharf, Ulmer & Berne

By Teresa Scharf


We’ve all seen the headlines and the talking heads discussing how the legal field is saturated and in a serious downturn. The numbers are not good. Law school students are graduating with serious debt, can’t find a job to pay off that debt, and are losing jobs to paralegals or out-sourced labor that is much cheaper than a new associate. Admissions are down, law schools are losing money, and those who choose to go to law school in the next few years are idiots. Right? Wrong.

First, the bad news. In 2010, there were 602,300 applications sent to law schools nationwide. In 2013, there were only 385,400. According to a Kaplan Test Prep survey, 54% of law schools are cutting their law school classes for the 2013-2014 year, while an additional 25% are making additional cuts in 2014-2015. With the cuts to class sizes, law schools are losing money. According to University of Colorado law professor Paul Campos, 80-85% of the law schools are losing money. This has led to an increase in tuition costs, and fewer scholarship funds to be divided among students.

But what about after law school? After all, the discussion is about the lack of jobs, not people’s inability to enter and complete the schooling. At this moment, full-time legal work is difficult to come by for newly minted attorneys. For last year’s graduates, nationwide only 56.2% are working full time using their Juris Doctorate. The numbers are even worse for Ohio graduates, with only 51.2% working full time in JD positions. With law school costing more than it has in a long time, law school graduates are having to pay off triple digit student loans using part time work just to get by.

But I thought you said that this was a good time to go to law school? Friends, allow me to introduce you to the light at the end of the tunnel. As Ben McManus, a second-year law student at the University of North Carolina put it, “The entire job market is tough, so it would be hard to find a job in any profession. I might as well struggle to find a job I will like.”

First of all, the drop in admissions and applicants to law school. With applications down, students have a better chance of getting into their first choice law school. Law schools have reduced requirements due to the lack of applications, allowing students a chance to get into their first choice law school they may not have in the mid-2000s. Additionally, fewer students means smaller classes, allowing students more one-on-one time with the professors.

While the total scholarship money is down, fewer students means larger financial assistance for those who qualify and less competition for the scholarships that are available. This allows students a bigger slice of an albeit slightly smaller pie, now that fewer students are interested in attending law school.

But what about the issues with jobs? It’s great that I can get into law school, but what happens when I graduate and have to pay off the school debt without a full-time legal job? There is good news on this front as well.

At the Miller Becker Seminar in October, we learned that currently there are around 13,000 attorneys in Ohio that are 55 years old or older. This represents 37% of the total attorneys practicing in Ohio according to the Ohio State Bar Association. The average retirement age is 65. This means that in the next five to ten years, 13,000 attorneys in the state of Ohio alone will be retiring, leaving a gap for young up and coming attorneys to fill in. The three to four-year schooling process will mean there are jobs available for those who go to school now, as opposed to five years down the line when the jobs are already available.

Think of this as a “buy low, sell high” situation. When the market is up, everything is hunky dory and there is nothing bad anyone can say about it. However, when the market is down, it is all doom and gloom. But a bear market is where the real money is made. There is no question that the legal market is down. The legal field is down but not out, and it appears that its resurgence is right around the corner. Buy low, sell high.

Law School: Buy Low, Sell HighBy Jameson Rehm

Jameson [email protected]

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While the total scholarship money is down, fewer students means larger financial

assistance for those who qualify and less

competition for the scholarships that are available. This allows

students a bigger slice of an albeit slightly smaller

pie, now that fewer students are interested in

attending law school.

20 Fall 2013 Columbus Bar Lawyers Quarterly

I care passionately about my clients, but you know, I’m not doing brain surgery here. No one is going to die. So, you need some perspective, and when I’m feeling really down, and depressed, and just feel like I don’t wanna do this any more, I go do something. It sounds corny, but I go do something nice for somebody. I perform a random act of kindness; it makes me feel better.

– Woman named to the Super Lawyers list

We all know that analytical strengths are critical to the practice of law. Persistence, hard work, integrity and courage are paramount as well. But what about softer strengths, like gratitude and kindness?

A study I recently completed in partial fulfi llment of a Master of Applied Positive Psychology degree at the University of Pennsylvania suggests that the regular use of “heart” (emotion-based) strengths, coupled with the more

expected “head” (analytical) strengths can take a law practice to the next level. Especially in the areas of business development, fi rm management, and work-life balance, relationship-enriching heart strengths – gratitude, kindness, social intelligence, enthusiasm, forgiveness, hope, love, appreciation of beauty and excellence, citizenship, humor, curiosity, spirituality – can play a pivotal role.

For the study, I contacted 140 women attorneys across the country who had been listed in the Super Lawyers or Rising Star directories, and invited them to take the Brief Strengths Test on Penn’s website www.authentichappiness.org so we could identify their top, most energizing character strengths among the 24 naturally occurring strengths identifi ed by positive psychologists.

Because researchers have found a correlation between wellbeing and the regular use of our top strengths, I also requested they participate in an optional interview about whether they used their strengths regularly in the practice of law and if so, how.

Regular use of both heart and head strengths has been linked to increased resilience, so I was especially curious about strengths strategies these women were using to cope with today’s faster-paced, more competitive legal profession and its effects on work-life balance.

I predicted that consistent with positive psychology research on wellbeing, I would fi nd that these successful practitioners were fi nding ways to use their natural strengths in their practices on a regular basis. I also predicted that head strengths would be the most prevalent. Both men and women lawyers, tested with the Meyers-Briggs Type Indicator (MBTI) in the early ‘90s, showed up as Thinkers rather than Feelers.

What I did not predict was that the predominant character strengths of these super-achievers would be gratitude and kindness.

Granted, the 17 willing to participate may have been a kinder and more grateful lot than those who did not. But even so, what was striking was their ability to offer specifi c ways they use their heart strengths to navigate the critical areas of business development and client retention, fi rm management,

Gratitude, Kindness: Super Strengths In Law Practice

By Pat Snyder

And still another talked about

how the mutual expression of

gratitude with clients, i.e., her expression of

gratitude for the business and their expression of gratitude

for her good work, had fueled long-standing relationships.

Fall 2013 Columbus Bar Lawyers Quarterly 21

and work-life integration. In each of these areas, they were using their heart strengths to build relationships.

One participant, a partner, reflected on how her multiple heart strengths of love, gratitude and social intelligence play into business development:

“I think that just being able to … try to figure out what makes somebody tick is always a good quality. Essentially, what we’re describing here is almost sales. Those qualities are helpful. They’re not sufficient. But if a client has to choose between somebody who they have a connection with who also has the credentials and somebody they didn’t connect with and has the credentials, I have to believe they’re gonna choose the one that they connected with.”

Another commented that the way she gets business is through “friendships and connections and relationships with people who have the ability to send me business.”

And still another talked about how the mutual expression of gratitude with clients, i.e., her expression of gratitude for the business and their expression of gratitude for her good work, had fueled long-standing relationships.

In the area of firm management, a founding partner noted that her strength of kindness made it natural to notice personal issues her employees were going through and express empathy. Her strength of gratitude inspired her to thank employees for their hard work and reward them for it financially.

Another partner used her heart strength of forgiveness to forgive both herself and the employees she mentors. As she put it:

“… people make mistakes, and I try to not, you know, clobber them over and over again with one mistake, and try to help them learn. And I try to put my mistakes in perspective as well, and not – you know, there was a time in my life where I really would kind of go over and over and over in my head a mistake that I made, and I just realized it wasn’t very productive. So I just try to come to the lessons and move on.”

Despite the usefulness of heart strengths in their role as lawyers, participants were keenly aware that if carried too far, kindness could be seen as weakness and they could be taken advantage of both within a law office and with opposing counsel. Those who used their softer strengths effectively displayed what Wharton professor Adam Grant has described as “otherish” giving in his new book Give

and Take: A Revolutionary Approach to Success. They gave, but also looked out for their own interests and were strategic in their relationships with less generous “takers.”

Finally, it is not surprising that study participants reported work-life balance as their biggest challenge. Fifteen of the 16 who agreed to an interview were raising or had raised at least one child while actively practicing, and 12 described themselves as litigators.

Gratitude, kindness and social intelligence showed up as heart strengths that were pivotal to making flexible childcare arrangements with back-up plans and creating networks of friends and family to help. Here again, a balance of heart and head strengths came up. Analytical strengths like self-regulation and persistence played well in managing complicated family schedules, but participants warned against bringing cross-examination skills home, especially with a stay-at-home dad.

The study suggests that there are good business reasons for lawyers with strong heart strengths to cultivate them personally. It also makes good business sense for the legal environments where they work to pay attention to these strengths and create a culture friendly to their use.

Lawyers with heart may find it easier than their more strongly analytical

counterparts to become rainmakers and firm managers and to lead the way for others to develop business and manage.

And certainly, in a profession where depression rates have been disproportionately high, it makes a lot of sense to encourage an activity that can boost emotional well-being.

Pat Snyder, J.D., MAPP, is a Certified Professional Co-Active Coach. A complete copy of her study is available at http://tinyurl.com/awch7yo.

[email protected]

Pat Snyder, I can fly LLC

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A great way to begin a visit to Cape Town is by taking the cableway to the top of Table Mountain. From 3,400 feet above the Atlantic Ocean stretched along the western horizon, one can frame an itinerary seeing from afar what one is bound to want to see close up.

In the basin between the mountain and the sea is the Central City – also known as the City Bowl – that for centuries has been a melting pot of people and cultures from all over the world and thereby has given Cape Town its nickname of Mother City.

To the northwest is the outline of Robben Island where former South African president Nelson Mandela was incarcerated in a prison that is now a museum and popular tourist attraction. Take a walk across the tabletop along pathways lined with wildflowers and small shrubs and one can see the layout of Kirstenbosch Gardens to the east. At 100 years of age, it is the oldest botanical garden in the world and features a number of species of flowering plantlife found nowhere else.

To the north and further east is the wine country where the wine tastings and vineyard safaris are among the best on earth. Look to the south and see the beginnings of the winding and scenic drive along Victoria Road, flanked by the Twelve Apostles mountain range (so named for its 12 peaks) on one side and the Atlantic seaboard on the other and leading some 30 miles southward to the Cape of Good Hope, the most south-westerly point of Africa.

Table Mountain has been called the Mountain in the Sea because that’s where it started out about 600 million years ago when the movement of glaciers produced the flat tabletop before the mountain was thrust upwards by tectonic forces (shifting plates). Like other mountains along the cape, it is made up of granite at the base and sandstone above, has very little vegetation on the sides and rises straight up. So, the views from the top are breathtaking in more ways than one, that is beautiful scenes and drops of thousands of feet.

Table Mountain has recently been named a New Seven Wonders of Nature. The cableway could be considered a wonder of Swiss engineering. Each cable car can carry 65 people. The floor rotates so that everyone can have a 360-degree view. A car can be stabilized when windy by filling

a 4,000-liter water tank. Still, the cableway is closed due to strong winds for anything from 60 to 90 days a year.

We started our Cape Town adventure on Table Mountain because that was the recommendation of our guide, Trevor Boulle. Guides don’t come much better than Trevor. A native of South Africa, he is a lawyer who at one time was a tennis pro and at another the in-house counsel for an insurance broker. Now he is doing what he loves best and sometimes sounds like a history professor.

From Table Mountain, we took our chartered mini bus to the vibrant City Centre where we visited museums, markets and malls, cafes, cathedrals and castles. Most people were friendly and English speaking. They were divided into three basic races: “white, black and colored.”

The Mother City has a population of about 4.5 million, Trevor said, but has unemployment of 25 percent and shantytowns that stretch for miles and miles on both sides of the freeway on the outskirts of town. The new South African constitution actually guarantees housing, he pointed out, and some 2.6 million units have been built during the past 15 years. They are not much bigger than the shanties (250 square feet) but are cleaner and sturdier (made of corrugated iron).

The Dutch came to the area in the late 1400’s, Trevor noted, but the Sans people were here at least 130,000 years before that. The British put many of them in concentration camps during the Boer Wars (a struggle the British thought would last two weeks but continued from 1895-1902) and 25 to 30 percent died due to typhoid, yellow fever and dysentery. The bubonic plague in 1901 caused masses of blacks to be displaced into shanties, Trevor continued, and with the acceleration of apartheid in the 1950’s displacement again occurred on a mass scale.

With all its natural resources, landscapes and cultures, the “biggest shortage in Africa is good government,” he declared. And speaking of government, the legislative capital is in Cape Town (the seat of parliament) while the executive branch is located in Pretoria.

The next day we travelled south to the Cape of Good Hope (so named by the Portuguese because of optimism about the new sea route to India) and the nearby Cape Point. The trip

One City Has Everything(The Third of a Three-Part Series)

By The Honorable David E. Cain

XXXXX


of about 30 miles takes one past some of the most beautiful scenes imaginable, such as Chapman’s Peak where thousands of baskets of rocks allow the roadway to cut through the side of the mountains and Bantry Bay that features the most expensive real estate in Africa, overlooking the Clifton Beaches.

At Cape Point, an 1859 lighthouse (accessible by steps or the Flying Dutchman Funicular) offers 360-degree views of the ocean over cliffs nearly 1,000 feet high as well across False Bay (“False” because westbound sailors thought they had reached the Atlantic Ocean and turned north too soon). Baboons could be seen along the roadway, raiding trashcans or picking flies off one another. Signs warned tourists to stay away. Their claws are longer than lions, they will eat anything and have been known to snatch purses, Trevor said.

We had lunch at the Two Oceans Restaurant overlooking False Bay. The bay is shrouded by an ever-present layer of fog since it is at the junction of two of the earth’s most contrasting water masses with cold currents from the Atlantic Ocean on the west and warm currents from the Indian Ocean on the east. The strategic position also gives the cape area a striking diversity of marine life, at least 250 species of birds and a wide variety of indigenous plants. And a few miles up the west shore of False Bay is The Boulders, a world famous colony of more than 2,000 African Penguins that can be observed at close range in their natural environment.

After stopping at the nearby quaint and coastal Simon’s Town, we headed north along the backside of the mountain range to approach the Kirstenbosch National Botanical Gardens.There, one can visit a conservatory, a garden of indigenous medicinal plants and a garden with plants that have been around more than 3 million years and then just walk along pathways lined with hundreds of species of flowering plantlife, many unique.

That evening we had “a real African feast” at the African Café. First, your face gets painted. Then, a seven-course meal of various African cuisines is served family style while staff entertain with bongos and chantings.

On our third day, we headed east into the wine country for tastings and tours at the foot of the smokey Helderberg Mountains. For lunch, we stopped in the City of Franschhoek, referred to as the gourmet destination of the winelands. I marveled at a tent sign displaying the menu in front of a fancy restaurant: Biltong, Beef, Springbok, Kudu, Gemsbok, Eland, Ostrich, Chilli/Plainbites, Dried Wors. I only considered the beef.

Our time in Africa was quickly running out but the list of things to do in the Cape Town area is nearly endless if one has the time. Big 5 Safaris are within two or three hours of driving, hiking and biking through the winelands and mountains are always popular. Entertainment with an

international variety is available non-stop (Bon-Jovi and Justine Bieber performed on different nights at Cape Town Stadium while we were in town). Or, one could just sit back and wait to see Table Mountain adorned with a tablecloth. When warm winds blow in from the east, moisture condenses as they hit the mountain, causing a thick layer of fog to snake across the tabletop, down through a gap and up the side of Devil’s Peak. It evaporates as it goes over the peak. And you might not have to wait too long. “We can have five seasons in an hour.” That was a common expression among the locals.

[email protected]

The Honorable David E. Cain, Franklin County Common

Pleas Court


The U.S. Supreme Court recently issued a federal Medicaid anti-lien preemption ruling in Wos v. E.M.A. ex rel. Johnson2 that will likely affect the continuing validity of Ohio’s Medicaid Right of Recovery statute. Ohio’s statute determines and calculates the amount of a personal injury settlement apportioned to repay medical expenses originally paid by Ohio’s Medicaid program and is strikingly similar to the North Carolina statute addressed in Wos and found to violate federal law.

In Wos, the plaintiffs fi led a medical malpractice suit in North Carolina state court against a physician who delivered plaintiffs’ child, as well as the hospital where the child was born.3 Plaintiffs’ expert witness estimated damages in excess of $42 million for medical and life-care expenses, loss of future earning capacity, and other assorted expenses such as architectural renovations to Plaintiffs’ home and specialized transportation equipment.4 The largest portion of the estimated damages was $37 million allocated for “skilled home care” over the child’s lifetime;5 however, the Plaintiffs also sought damages for pain and suffering and emotional distress.6 Then the parties began settlement negotiations and informed the North Carolina Department of Health & Human Services, the entity responsible for administering North Carolina’s Medicaid program, of these negotiations.7

North Carolina, pursuant to state statute, had a statutory right to intervene and participate in the parties’ settlement negotiations in order to obtain reimbursement for medical expenses it paid on Plaintiffs’ behalf, up to one-third of the total recovery. The State decided not to participate.8 But it did notify plaintiffs that it expended $1.9 million for medical care, which it would seek to recover from any tort judgment or settlement.9

In November 2006, the court approved a $2.8 million settlement.10 That settlement agreement did not allocate money among the different claims that plaintiffs had advanced.11 In approving the settlement, the trial court

placed one-third of the $2.8 million recovery into an interest-bearing escrow account “until such times as the actual amount of the lien owed by [plaintiffs] to [North Carolina] is conclusively judicially determined.”12 The plaintiffs brought a subsequent action under 42 U.S.C. §1983 seeking declaratory injunctive relief, arguing that North Carolina’s reimbursement scheme violated the federal Medicaid anti-lien provision, §1396p(a)(1).13

The Western District of North Carolina held that the irrebuttable statutory presumption, that one-third of a Medicaid benefi ciary’s tort recovery is attributable to medical expenses, was a “reasonable method for determining the State’s medical reimbursements.” The Fourth Circuit Court of Appeals disagreed and found that North Carolina’s statutory scheme could not be reconciled with the United States Supreme Court’s decision in Arkansas Dept. of Health and Human Servs. v. Ahlborn, thereby vacating and remanding the Western District’s decision.14 In Ahlborn, the Court held that the anti-lien provision in federal Medicaid law prohibits a state from recovering any portion of a settlement or judgment not attributable to medical expenses. But what the Court did not address was the portion of a settlement that represents payment for medical expenses.

On appeal, the Supreme Court held that North Carolina’s Medicaid lien statute was preempted by the federal Medicaid anti-lien statute, 42 U.S.C. §1396p(a)(1).15 42 U.S.C. §1396p(a)(1) states that “[n]o lien may be imposed against the property of any individual prior to his death on account of medical assistance paid or to be paid on his behalf under the State plan,” and then provides certain exceptions.16 These exceptions primarily address situations where medical bills were improperly paid by a Medicaid plan, or where the Medicaid recipient has real property, is confi ned to a long term care facility, and is not expected to be released.17

North Carolina defended its statute by arguing that it defi ned medical expenses as the portion of the settlement representing past medical expenditures or one-third of the total settlement value, whichever was lower.18 To the Court, this meant that even if a verdict or a settlement expressly allocated less than one-third of the settlement to medical expenses, North Carolina could recover one-third of the total settlement as long as the Medicaid expenses represented more than one-third of the settlement value.19 This directly contradicts the federal statute, which forbids recovery for any portion of the settlement not “designated as payment for medical care.20 The Court was additionally concerned that North Carolina’s argument lacked a limiting principle, fearing that states would designate one-half or more of the total recovery as the portion for medical expenses, and thus the portion recoverable by the state.21 Finally, the Court was distressed that North Carolina had not adopted a specifi c procedure for allocating Medicaid benefi ciaries’ tort recoveries, instead relying on what the Court called “an arbitrary, one-size-fi ts-all allocation for all cases.”22

IS OHIO’S MEDICAID RIGHT OF RECOVERY STATUTE PREEMPTED BY FEDERAL LAW?By Zachary Pyers and Nicole Koppitch

While the current state of the law leaves some questions unanswered, it appears inevitablethat Ohio practitioners can expect changes in the way Ohio Medicaid liens are handled in personal injury settlements.


Ohio’s Medicaid Right of Recovery statute23 bears a striking resemblance to the invalidated North Carolina statute. The Ohio statute provides that the state “shall receive no less than one-half of the remaining amount, [after attorney’s fees] or the actual amount of medical assistance paid, whichever is less.”24 This creates the same problem as the North Carolina statute because, if the medical expenses paid by the state exceed one-half of the total recovery, the state can recoup one-half of the recovery. This appears to be true even if a settlement or verdict allocate less than one-half of the recovery for medical expenses. Like the invalidated North Carolina statute, the Ohio statute does not allow for a judicial allocation: it too appears to set an “arbitrary, one-size-fi ts-all allocation for all cases.” Ohio is empowered to enforce their right to recovery through suit, and the courts are not empowered to deviate from the statutory mandate.25

The Ohio statute suffers from the same defi ciencies that distressed the United States Supreme Court about the North Carolina statute: the possibility of recovery in excess of the allocated amount for medical expenses and a one-size-fi ts-all recovery ratio. As a result, the Ohio statute is likely preempted by 42 U.S.C.A. §1396p(a)(1) after the Court’s decision in Wos. This leaves questions for Ohio practitioners as to the validity of the current statutory scheme in Ohio, as well as what the future may look like for practitioners resolving cases in which Medicaid has a lien.

First, there appears to be little doubt, based upon the Supreme Court’s ruling in Wos, that the current statutory scheme in Ohio violates the anti-lien provision in the federal Medicaid law. However, the Ohio statute has not been invalidated and has not yet been amended by the legislature. Thus, the Ohio statute remains good law – at least for now.

Second, the Supreme Court provided options that allow states to comply with the federal Medicaid anti-lien statute. Ohio will likely be looking to these options if the current statute is challenged or amended. For example, states can provide for an administrative or judicial proceeding to determine the amount of a settlement that should be attributed to Medicaid expenses and reimbursed to the state.26 Currently, sixteen states and the District of Columbia provide for these hearings.27 Additionally, states may also be permitted to establish rebuttable presumptions and adjusted burdens of proof to continue to protect a state’s interest in receiving reimbursement from settlements.28

While the current state of the law leaves some questions unanswered, it appears inevitable that Ohio practitioners can expect changes in the way Ohio Medicaid liens are handled in personal injury settlements.

[email protected]@reminger.com

1. Zachary Pyers and Nicole Koppitch thank David Dirisamer, a third year law student at Ohio State University’s Moritz College of Law, for his assistance with this article.

2. 133 S.Ct. 1391 (2013).3. Id., at 1395. 4. Id. at 1395.

5. Id.6. Id. 7. Id. 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. 13. Id. at 1395-1396. 14. 547 U.S. 268 (2996)15. Id. at 1402.16. 42 U.S.C. §1396p(a)(1)(A) and (B).17. See 42 U.S.C. §1396p(a)(1). 18. Wos, 133 S.Ct. at 1397.19. Id. at 1398. 20. Id. at 1397 (internal citation omitted).21. Id.22. Id. at 1402.23. Ohio’s current statue, O.R.C. 5101.58, has been

amended to O.R.C. 5160.37. See 2013 Ohio Laws File 25 (Am. Sub. H.B. 59). This amended is not yet effecitive. The amended does not change the substance of the law as it relates to Medicaid’s right of recover.

24. O.R.C. 5101.58.25. O.R.C. 5101.58(H).26. Wos, 133 S.Ct. at 1401. 27. Id. 28. Id.

Zachary Pyers and Nicole Koppitch, Reminger Co.1


Tom Nagel plays his banjo every Thursday night with a jam group, the Original Long Duration Free Association Recreational Therapy Society, OLDFARTS. One night, shortly after the Transportation Security Agency began full body scans, Tom led the group in a parody of the Kingston Trio’s classic “Charlie and the MTA” calling it “Charlie and the TSA” or “The Man Who Wouldn’t Be Groped.” One of the OLDFARTS set up a video camera, and Tom had his fi rst big YouTube hit. After three years his video has almost 900 views!

The OLDFARTS is a large group –varies from 12 to over 20. The core group has been playing together for more than 15 years in a range of music styles from Pachelbel’s Canon to Tom Paxton, from Woody Guthrie to Guy Lombardo. No Justin Bieber. The group sits in a circle with a wireless mike for the vocalists, and each player has a turn for choosing the song and the key. Tom started keeping a list of the music they played, but after a few months he gave up – the list was already fi ve pages long. If you want to enjoy good fun and free music, or if you play an instrument and want to fi nd a group, come any Thursday night, 7 to 10, at the Whetstone Gardens Assisted Living Center (a captive audience, he notes) on Olde Olentangy River Road.

Tom grew up with non-musical parents in North College Hill, a suburb of Cincinnati. Both he and his younger brother, Terry, played musical instruments – Tom played the drums and Terry, the trombone. When folk music became big in the1960s, they decided to pool their money and buy a guitar. But, their Aunt Irma told them to save their money – I have this thing up in the attic you can have.” The “thing” in the attic was an elderly lute-bodied mandolin made by Louie Sutz around the turn of the century. Neither Tom nor his brother ever did learn to play guitar. Tom took up the banjo during his law school days and hasn’t put it down.

Both brothers got scholarships to OSU and lived in the stadium scholarship dorm.Tom stayed at OSU for law school and deferred active duty in the USAF until his graduation in 1971. The Vietnam War was winding down, so the USAF deployed Tom all the way to Wright Patterson AFB. Or as Tom sees it: “Join the Air Force and see Central Ohio.”

About a year later, his JAG services weren’t needed, so he and about 700 other surplus lawyers got out of the Air Force early. Tom returned to Columbus and joined a group of solo practitioners for whom he had previously clerked. That group included Jim Britt, Dick Donahey, and George and Tom Twyford. He recalls his fi rst court appearance when he was sent off to domestic relations court with a client and a fi le folder and told “It’s all worked out.” The only thing in the fi le folder was one pink phone message slip.

Subsequently, Joel Campbell, Chet Britt, Jack Graf, and he formed a partnership, and that fi rm endured in one form or another for about 35 years. Tom is now a solo practitioner, continuing his general practice, doing mostly domestic collaborative law and probate work. He has presented on the topic of collaborative family law at CLE events around Ohio and worked with other probate lawyers to get collaborative law adopted in local probate practice.

When asked for some highlights of his career, my mother, Bea, and I fi gure prominently! She recruited him to write a chapter in the Sowald and Morganstern Ohio Domestic Relations book, still one of the most diffi cult things he says he has done as a lawyer. Then, in the late 1990s, I invited him to join the newly created Collaborative Family Law group. To Tom, collaborative domestic relations practice ranks as one of the best things he has ever been involved with professionally. He is sincere when he touts Collaborative Family law to his peers and to divorce clients.

One of Tom’s long-time hobbies is fl ying sailplanes. Radio-controlled sailplaning is the perfect lawyer’s sport, Tom jokes. “You have to be good with hot air, and you have to be comfortable spending most of your time going around in circles.” Check out www.midohiosoaring.com.

For Mary Beth Kelleher Fisher, Being a lawyer

was a practical decision. It seemed like a good career choice that would allow her to be her own boss and have career fl exibility if she decided to have a family down the road.

In fact, she has been self-employed for the majority of her career as a lawyer, mostly practicing in the area of domestic relations. Mary Beth grew up in Alliance, a small town in northeast Ohio, the fi fth of seven children. Most of her family was in some fi eld of medicine (doctor, dentist, nurse, vet), so it was a shock to them when she said she was considering law school. She graduated from Capital University Law School in 1989.

On her fi rst and only blind date, she met her husband. They have been married 20 years, and he, like her father, is a dentist. She and her family all have a love of drawing, painting, photography and crafts and have a designated craft room in their home.

Lawyers With Artistic TalentSixth in a Series

By Heather G. Sowald

stadiuand deferred active duty in the USAF until his graduation in 1971. The Vietnam War was winding down, so the USAF deployed Tom all the way to Wright Patterson AFB. Or as Tom sees it: “Join the Air Force and see Central Ohio.”

he and about 700 other surplus lawyers got out of the Air Force early. Tom returned to Columbus and joined a group of solo practitioners for whom he had previously clerked. That group included Jim Britt, Dick Donahey, and George and Tom Twyford. He recalls his fi rst court appearance when he was sent off to domestic relations court with a client and a fi le folder and told “It’s all worked out.” The only thing in the fi le folder was one pink phone message slip.

formed a partnership, and that fi rm endured in one form or another for about 35 years.continuing his general practice, doing mostly domestic collaborative law and probate work. He has presented on the topic of collaborative family law at CLE events around Ohio and worked with other probate lawyers to get collaborative law adopted in local probate practice.


Mary Beth became the “mitten lady” a few years ago when trying to think of a way to involve her children in a community service project that would enable them to “give back.”

They decided to participate in the Pelatonia bike ride – 100% of the money earned goes to research at the James Cancer Hospital. To raise funds to sponsor their bike rides, Mary Beth decided to make mittens out

of old wool sweaters, and to use all of the proceeds for the family to enter the bike ride.

First, she had to learn to sew – and she turned to her mother, a talented crafter. Mary Beth, her husband, and their children learned quickly and started working nights and weekends. They let people know about the mittens and a local television station featured her in their Champions for a Cause segment. Mary Beth then, fi rst time ever, created a website for the sale of the mittens, www.gratefulheartdesign.com.

The mittens are sewn from old sweaters. Design (picking out the sweaters and color combination) is exclusively Mary Beth’s job. Once she cuts out the pattern, her husband (although he doesn’t like to admit it) and her mother help with the sewing and embroidering. The children are involved in cutting out the fl eece lining that goes inside of the wool mittens and with some of the hand sewing.

Each pair of mittens takes quite a bit of time. Double-stitched for durability and hand sewing to fi nish each pair. There are a lot of hands involved in this labor of love.

The mitten-making is a productive way for Mary Beth and her family to enjoy an art project with a cause. She says it provides for her some relief from the high stress of domestic relations law, and it is nice to know each pair of these one-of-a-kind mittens is going to someone special, with proceeds all being used for cancer research. She said she never could have

guessed this project would take on “so much meaning for so many others or for me.”

J. Jeffrey McNealey grew up learning woodworking from his father and grandfather, and he has passed it down to his own son. Jeff has his father’s and grandfather’s tools, plus his own additions to the collection. Refl ecting multiple generations, he most recently made a mahogany “bow” to support a canvas cover on his new tender for his Catawba Island boat, using wood he inherited from his grandfather, planes and sanders from his father, and a contractor’s saw that he purchased himself.

Jeff designs and builds furniture, as well as various “incidentals,” that assist in domestic life. Some pieces are found in his offi ce at Porter Wright, and some have been given to family. In some instances, Jeff cuts the trees and runs them through a sawmill himself. Preferring hard woods, he selects wood types from the “family inventory” depending on the ultimate use and strength needed for the piece. Color comes into play depending on where the piece is to be used. As Jeff fi nds inspirational pieces in his travels or in magazines, he takes photographs and rips out magazine pages, storing ideas for future execution. aircraft over his law career. He sold his last plane in 2004, after nearly 5,200 hours as pilot-in-command.

Jeff grew up in the central Ohio, attended Columbus Academy, received his undergraduate degree from Cornell, and then continued on to OSU College of Law. He joined the Porter Stanley law fi rm (now Porter Wright) in 1969, initiating a career in local and national real estate development. However, his strong interest was in natural resources and environmental law. By the mid-1970s, he was actively practicing and has been nationally ranked in both fi elds since the 1980s.

Finding the time to indulge in one’s hobbies, he says, is the greatest challenge of anyone’s life. He acknowledges that he has had multiple hobby interests, plus all of his other community commitments. During inclement weather, he fi nds its easy to work a few hours in the workshop; but with good weather, he can be found out in the parks, on the streams, or on the lakes. In the summertime he also plays men’s doubles casual tennis on Tuesday evenings, with the same group of friends since the mid-1960s.

His future plans entail continuing dreams of fi nding more time, the fi rst challenge being to clean out and reorganize his workshop, aka “the man cave”! His philosophy is, “Protect your health, stay active, associate with multiple generations – all of which will keep you young enough to fi nd time to do things tomorrow!”

—And, as always, if you, or an attorney

you know, has a talent in addition to the practice of law – contact me!

[email protected]

Heather G. Sowald, Sowald Sowald Anderson Hawley & Johnson

time, the fi rst challenge being to clean out and reorganize his workshop, aka “the man cave”! His philosophy is, “Protect your health, stay active, associate with multiple generations – all of which will keep you young enough to fi nd time to do things tomorrow!”

you know, has a talent in addition to the practice of law – contact me!

[email protected]

They decided to participate in the Pelatonia bike ride – 100% of the money earned goes to research at the James Cancer Hospital. To raise funds to sponsor their bike rides, Mary Beth decided to make mittens out

guessed this project would take on “so much meaning for so many others or for me.”

from his father and grandfather, and he has passed it down to his own son. Jeff has his father’s and grandfather’s tools, plus his own additions to the collection. Refl ecting multiple generations, he most recently made a mahogany “bow” to support a canvas cover on his new tender for his Catawba Island boat, using wood he inherited from his grandfather,

Artistic Talent

Immigration is among those topics that recently have received plenty of media attention. Most will agree that our current immigration system is broken, and Congress does not seem to be able to agree upon how to remedy the matter. It does not make much sense to maintain status quo. The current system causes our nation to lose untold revenues and opportunities.

On June 27, 2013, the Senate approved the Immigration Modernization Act. The bill is now waiting on action by the House. It is unlikely that it will be approved as is, or if the Congress can agree on any bill given the current state of affairs of Congressional (non) cooperation.

The IMA is a compromised attempt to bring a substantial change to the current immigration system that is outdated and does not serve the nation’s needs in an appropriate manner. It does not afford an opportunity for those who have been living in this country, paying taxes, law abiding sometime for decades, to adjust their status and become legal. The IMA would resolve these and other issues.

Here are some highlights of the new bill. First and foremost, it would provide an opportunity for the undocumented to become legal. Critics claim the Act is unjust because it would give an advantage to the undocumented against those who have been in line for adjustment of status and naturalization. Such is simply a mischaracterization of the facts. The IMA will not advance the undocumented ahead of anyone else – rather the clock starts to tick from the time the undocumented apply for the status change. Let’s look at some of the specifics.

Registration and Adjustment of Registered Provisional Immigrants (RPI Status)

The IMA would create section 245B of the Immigration and Nationality Act. Section 245B(a) that states after conducting national security and law enforcement clearances, the Department of Homeland Security may grant registered provisional immigrant (RPI) status to any one who meets the eligibility requirements. Some of the requirements include being physically present in the U.S. on the date when the application for RPI was submitted; being in U.S. on or before December 31, 2011; no felony convictions – not more than two minor misdemeanors and no prior claims to US citizenship.

The most humane side of the new law is that it allows family reunification. Spouses and children can qualify as RPI dependents if the spouse or child is physically present in the U.S. on the day the principle’s RPI status is granted and also present on December 31, 2012. Immediate family members (spouses and children) will have to meet all RPI requirements stated above except the RPI’s physical presence requirement.

Application processApplicants need to apply by submitting a form within one

year beginning on the date when the IMA is published in the

Federal Register. They also have to pay fees and penalties. The fee is undetermined at this time, however, a penalty of $1,000 is a set for everyone who is over 21 years of age. For those who are apprehended before or during the application period, who would otherwise be eligible for RPI status, DHS shall provide them the opportunity to apply, and shall not remove them until a final decision is made on their application.

Everyone whose application is approved will receive a card that authorizes the person for work and travel. The card is valid for up to three years. This is not a green card, rather a permit. RPI’s may not leave for more than 180 days unless the failure to return within 180 days was due to extenuating circumstances beyond the person’s control.

The process described above allows the undocumented to come out of the “shadows.” It does not mean they become citizens or even green card holders. It takes further filing, additional fees and many more years before they can be proud citizens of this country. It only means they no longer need to work and live in the shadows. It removes the real fear of deportation and removes the ability for the unscrupulous to prey upon the undocumented.

The IMA also requires that all taxes past and present be paid. These individuals will also be afforded the rights of all workers in the U.S. They will become full contributants to our national economy without harming wages of all Americans as happens when they are in the shadows.

As the U.S. Chamber of Commerce stated in a recent report: “The best policy for the United States is one that sides with freedom and innovation, not restriction. Closing the door to highly educated individuals seeking opportunity and who aid the competitiveness of U.S. companies will weaken, not strengthen our country and will diminish the competitiveness of American employers.”

The Center for American Progress created a study that shows that a creation of a common sense immigration policy would lead to $1.5 trillion in increased GDP over 10 years, contribute to the creation of as many as 900,000 jobs and increase revenues as much as $5.4 billion.

As a final thought, we believe it worth mentioning that America is the land of freedom and opportunity. We want to attract talented and ambitious individuals in the future, thus we must create a better immigration system. We need to create a system that celebrates freedom and values hard-working individuals across the economic spectrum. IMA would keep our country competitive and spark economic growth that benefits all of us.

[email protected]@msn.com


Immigration Modernization Act

What’s in it for US?By Orsoyla Hamar-Hilt & David Bloomfield Sr.

Orsoyla Hamar-Hilt, Disciplinary Counsel, Ohio Supreme Court &

David Bloomfield Sr., Bloomfield & Kempf


Verdict: $79,002.14. Automobile Accident. On February 2, 2007 Plaintiff Ellen Morgan turned left from Bale-Kenyon Road to East Powell Road and was struck from behind by a truck driven by Defendant Spencer Miller. Ms. Morgan claimed that Mr. Spencer was traveling at a high rate of speed and skidded approximately 150 feet before striking the rear of her vehicle. Ms. Morgan claimed injury to her neck, head and low back. She developed chronic headaches and claimed that the headaches occurred on an average of six to eight times a day. She sought treatment with a neurologist who diagnosed her with a concussion, post-concussion disorder and post-traumatic headaches related to the accident. Ms. Morgan filed suit against Mr. Miller, who had a $50,000 liability insurance limit and filed an underinsured motorist claim against her insurer, USAA, with whom she had $100,000 in UM insurance coverage. Prior to trial, the parties entered into a stipulation that USAA would not participate at trial but would be entitled to an offset for the $50,000 liability limit reimbursement for payments made under Ms. Morgan’s medical payments coverage. At trial, Ms. Morgan’s medical expert testified that the chronic headache condition was permanent and that she should receive yearly Botox injections at a cost of $3,000 per year. Mr. Spencer’s medical expert testified that Ms. Morgan’s headaches were not related to the automobile accident and that the injuries she sustained in the accident would have resolved within the first three months. Medical Specials: $15,000 (past) and $54,000 (future). Lost Wages: N/A. Plaintiff’s Experts: Dr. Hussein (neurologist) and Larry Robbins, M.D. (neurologist). Defendant’s Expert: Gerald Steiman, M.D. Last Settlement Offer: $18,000. Last Settlement Demand: $50,000. Length of Trial: 3 days. Counsel for Plaintiff: J. Scott Bowman. Counsel for Defendant Miller: Michael Ferguson. Counsel for Defendant USAA: Joe McCullough. Magistrate Ed Skeens. Case Caption: Mary Ellen Morgan v. Spencer C. Miller, et al. Case No. 09 CV 1469 (2012).

Verdict: $15,735.00 ($3,235 for economic; $12,500 for non-economic; $0 for loss of consortium). Automobile Accident. On May 26, 2005, Plaintiff Shirley Smith was traveling in the center westbound lane on East Main Street in Whitehall when Defendant Geraldine Ankrom pulled out of an Arby’s and entered the center lane. The front of Ms. Smith’s vehicle struck the driver’s side of Ms. Ankrom’s vehicle. Ms. Smith, who was 74 years-old at the time, claimed injury to her head, neck, both shoulders, left elbow, left forearm and thumb. She further claimed that, as a result of the head injury she also suffered blurred vision and dizziness. Ms. Smith was diagnosed with a right rotator cuff tear and underwent surgery. Ms. Smith’s husband also claimed he suffered a loss of consortium. Ms. Ankrom claimed that Ms. Smith was comparatively negligent for the accident by failing to stop in time to avoid the collision. She also claimed that Ms. Smith

sustained only a left shoulder and left thumb contusion in the accident and that the right shoulder complaints did not arise until 5 months after the accident and were unrelated. The jury did not find that Ms. Smith suffered a head or shoulder injury in the accident, but compensated her for the remaining injuries. Medical Specials: $30,442.74 (billed)/ $15,449.84 (accepted as payment). Lost Wages: None. Plaintiff’s Expert: Edwin Season, M.D. (orthopedist) and Elizabeth Cook, Ph.D. (rehabilitation psychologist) Defendant’s Expert: Joseph Schlonsky, M.D. (orthopedist) Last Settlement Offer: $10,000. Last Settlement Demand: $135,000. Length of Trial: 4 days. Plaintiff’s Counsel: Adam P. Richards and Adam Crowell. Counsel for Defendant Ankrom: Belinda Barnes. Counsel for Defendant American Family Insurance: Wilbur Hane. Magistrate Pamela Browning. Case Caption: Shirley Smith, et al. v. Geraldine Ankrom, et al. Case No. 09 CV 11905 (2012).

Verdict: $12,000.00 ($4,218.50 for economic; $7,781.50 for non-economic). Automobile Accident. On January 20, 2010, Plaintiff Janice Tunstall was stopped in traffic eastbound on Roberts Road when she was struck in the rear by a vehicle driven by Defendant Timothy Parker. Ms. Tunstall claimed injury to her neck, back, knees, shoulders and thighs. She received two courses of chiropractic treatment of approximately one month each and then returned for additional chiropractic care 18 moths later. Mr. Parker did not dispute liability but argued that the chiropractic care was not reasonable and necessary as a result of the accident. The jury found in favor of Ms. Tunstall and compensated her for the first two courses of chiropractic care but found that the third course was not related to the accident. The jury awarded Plaintiff $4,218.50 in economic and $7,781.50 in non-economic damages. Plaintiff’s Expert: Josh Dorsey, D.C. Defendant’s Expert: None. Last Settlement Demand: $45,000.00. Last Settlement Offer: $6,500.00. Length of Trial: 3 days. Counsel for Plaintiff: Charles Bendig. Counsel for Defendant: Mark Gams. Magistrate Timothy McCarthy. Case Caption: Janice Tunstall v. Timothy Parker Case No. 10 CV 4716 (2012).

Verdict: $5,314.89. ($3,814.89 for medical specials; $500 for lost wages; $1,000 for non-economic) Automobile Accident. On October 27, 2009, Defendant Tejuan Anderson turned left from westbound Morse Road to the entrance ramp to I-270 southbound in front of a vehicle driven by Plaintiff Kristen Greenwood which was traveling eastbound on Morse Road. Ms. Greenwood sustained a wrist fracture, closed head injury, forearm pain and knee and chest contusions. Medical Specials: $3,814.89 (stipulated amount accepted as payment). Lost Wages: $2,000.00. Plaintiff’s Experts: Won

Continued on page 30

Civil Jury TrialsFRANKLIN COUNTY COMMON PLEAS COURTBy Monica L. Waller


Continued from page 29

Song, M.D. (orthopedist). Defendant’s Expert: None. Last Settlement Demand: $15,000.00. Last Settlement Offer: $6,700.00 Length of Trial: 2 days. Counsel for Plaintiff: Brian W. Ross. Counsel for Defendant: Edwin Hollern. Judge Michael Holbrook. Case Caption: Kristin M. Greenwood v. Lejuan F. Anderson et al. Case No. 10 CV 17365 (2012).

Verdict: $4,500.00 ($4,500 for economic damages; $0 for non-economic damages). Automobile Accident. On August 5, 2009 Plaintiff Janice Tyler was headed eastbound on East 5th Avenue when a vehicle driven by Defendant Tonika Mason that was headed westbound on East 5th Avenue turned left in front of her onto North 9th Street, causing a collision. Ms. Morgan claimed soft tissue injuries to her neck, back and hip as a result of the accident. Ms. Mason stipulated negligence but disputed the extent of the neck and back injuries and argued that the hip injuries were unrelated to the accident. Ms. Mason argued that Ms. Morgan sought no treatment for the hip complaints for a year after the accident. Medical Specials: $4,071.20. Lost Wages: $1,188.00 (according to Plaintiff); $249.60 (according to Defendant). Plaintiff’s Expert: Ronald J. Stacy, II, D.C. (chiropractor). Defendant’s Expert: None. Last Settlement Demand: $15,000.00. Last Settlement Offer: $6,000.00. Length of Trial: 3 days. Counsel for Plaintiff: Andrew W. Cecil. Counsel for Defendant: Edwin Hollern. Judge Daniel Hogan. Case Caption: Janice Tyler v. Tonika Mason. Case No. 10 CV 18601 (2012).

Verdict: $3,785.00 ($2,285.00 for economic damages; $1,500 for non-economic damages). Automobile Accident. On February 5, 2009, Plaintiff Christopher Burch was riding on a COTA bus on High Street when Defendant Joseph Mastroberti changed lanes in front of the bus and caused a collision. Mr. Burch claimed that he suffered cervical and lumbar sprains and strains and recurring headaches as a result of the accident. He treated with chiropractor Heather Kight, D.C. at East Broad Chiropractic approximately a week after the accident and continued to receive treatment for the next six weeks, incurring medical bills of $4,570.00. Dr. Kight testified that the accident was the direct and proximate cause of Mr. Burch’s injuries. Mr. Mastroberti conceded negligence but argued that Mr. Burch could not have sustained injury in the accident. Mr. Mastroberti’s accident reconstructionist testified that the occupants of the bus would have experienced forces akin to those experienced while coughing or sneezing. Mr. Mastroberti also argued that Mr. Burch’s symptoms were more likely related to a prior work-related back injury. Medical Specials: $4,570.00. Lost Wages: None. Plaintiff’s Expert: Heather Kight, D.C. (chiropractor). Defendant’s Expert: Michae Rzesutock, P.E. (accident reconstructionist). Last Settlement Demand: unknown. Last Settlement Offer: None. Length of Trial: 3 days. Counsel for Plaintiff: Matthew E. Ice. Counsel for Defendant: Jeffrey Nodzak. Magistrate Timothy Harildstad. Case Caption: Christopher Burch v. Joseph Mastroberti, et al. Case No. 11 CV 693 (2012).

Defense Verdict. Negligence. On September 7, 2006, Plaintiff Stephanie Freeman was walking across a grassy area from a parking lot to the entrance of Discount Tire at Mill Run in Hilliard when she fell into a hole and struck an electrical junction box beside the hole. Ms. Freeman argued that the hole was created when Defendant Hanover Signs erected a 20-foot pole sign for Discount Tire in 1998. Due to

zoning regulations, Hanover Signs had to move the sign two months later. According to Plaintiff, the hole remained and became obscured by the grass around it. She was treated at the emergency room of Doctor’s West Hospital for contusions to her right knee and left middle finger, abrasions and a laceration to her left big toe. She was later diagnosed with right carpal tunnel syndrome and a strain of the proximal interphalangeal (PIP) joint and osteoarthritis in the left middle finger. Surgeries were performed for both conditions. Ms. Freeman sued Discount Tire and Hanover Signs. The claims against Discount Tire were dismissed on summary judgment, but the claims against Hanover Signs proceeded to trial. Hanover Signs argued that the hole Ms. Freeman fell into was not the same hole it created to erect the sign 8 years earlier. It also claimed that its employees would have filled the hole they created with gravel when they moved the sign. Hanover Signs also asserted that it owed no duty to Ms. Freeman. Medical Specials: $42,127.35. Lost Wages: None. Plaintiff’s Experts: Paul Cook, M.D. (orthopedist). Defendant’s Expert: unknown. Last Settlement Demand: unknown. Last Settlement Offer: unknown. Length of Trial: 3 days. Counsel for Plaintiff: Craig P. Scott. Counsel for Defendant: David Herd. Magistrate Pamela Browning. Case Caption: Stephanie Freeman v. Hanover Signs, Inc., et al. Case No. 10 CV 12064 (2012).

Defense Verdict. Medical Malpractice. Decedent Stephan West came into Grant Medical Center on April 7, 2007 with a 2-week history of coughing and wheezing and the abrupt onset of shortness of breath 6 days earlier which had progressively worsened. He was admitted to the hospital with a working diagnosis of pneumonia. A CT pulmonary angiogram was ordered to rule out a pulmonary embolism. However, Mr. West’s weight (537 lbs.) exceeded the limits of the equipment. Therefore, the test was canceled. A lower extremity venous duplex exam was performed. The exam was noted as being “sub-optimal” due to Mr. West’s body habitus (overall size and weight), but revealed no signs of deep vein thrombosis (“DVT”). A pulmonologist was consulted and, based on a clinical assessment, determined that Mr. West’s risk for pulmonary embolism was low and that the risks of continuing him on anti-coagulation therapy exceeded the benefit given the low likelihood of pulmonary embolism. Mr. West remained hospitalized and received treatment for pneumonia until April 11, 2007 when he was discharged after reporting an improvement in his symptoms. The following day Mr. West returned to the Grant Medical Center ER with complaints of sudden onset of shortness of breath. Arrangements were made to admit him. However, Mr. West suffered a cardiopulmonary arrest in the ER and died. An autopsy revealed a pulmonary embolism and DVT. Plaintiffs sued Grant Medical Center, Mr. West’s attending physician Robert Skully, M.D. and the consulting pulmonologist, Philip Hawley, M.D. Plaintiffs claimed that the defendants were negligent in failing to diagnose and treat his pulmonary embolism. They argued that defendants also breached the standard of care by relying upon the lower extremity venous duplex exam to rule out DVT because the exam did not effectively image Mr. West’s deep veins due to his body size. They also argued that the defendants should have performed more diagnostic testing to rule out pulmonary embolism before discontinuing anticoagulation therapy and should not have discharged Mr. West without a prescription for an anti-clotting agent. They also alleged that defendants


failed to properly advise Mr. West of the risk of pulmonary embolism upon discharge. They also alleged that Dr. Skully failed to recognize the signs and symptoms of pulmonary embolism and DVT when Mr. West returned to the ER and failed to respond appropriately. The defendants argued that Mr. West received the appropriate workup, diagnosis and treatment based on his symptoms and that Mr. West underwent all the appropriate diagnostic testing that was reasonably available given the limitations imposed by his morbid obesity. Defendants also disputed Plaintiffs’ damage calculations arguing that Plaintiffs’ calculation of future lost wages failed to account for the instability of Mr. West’s business and reduction in his life expectance due to his other health issues. Plaintiff’s Experts: Mark O. Farber, M.D. (pulmonology), Jesse Hall, M.D. (critical care), Kevin Stuart Halstuk, M.D. (vascular surgery), Arthur McTighe, M.D. (pathology); Hiren Shah, M.D. (internist/hospitalist) and Ralph Frasca, Ph.D. (economist). Experts for Defendants Grant Medical Center and Dr. Skully: Elliott B. Davidson, M.D. (family medicine) and David Neal, M.D. (radiologist). Experts for Dr. Hawley: M. Gregory Balko, M.D. (pathology), Thomas Parker, M.D. (internal medicine), Paul Stein, M.D. (cardiology), Patrick Gaughan, Ph.D. (economics), Robert C. Hyzy, M.D. (pulmonary medicine) and Robert Hyzy, M.D. (pulmonary medicine). Last Settlement Demand: $3,200,000.00. Last Settlement Offer: None. Length of Trial: 10 days. Counsel for Plaintiff: Robert Handelman. Counsel for Defendant Philip Hawley, M.D.: Neil Freund. Counsel for Defendants Grant Hospital and Robert Skully, M.D.: Thomas Dillon and Jessica Davis. Visiting Judge Dale Crawford. Case Caption: Tina M. West, Administrator of the Estate of Stephen L. West v. Philip Hawley, M.D., et al. Case No. 10 CV 18441 (2012).

[email protected]

Monica L. Waller, Lane Alton & Horst

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