SUMMER 2007

Getting To “Yes” On Cross-Examination

By Frank A. Ray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

High Tech Workers

By Noure Alo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

What I Learned In Iraq . . . About Being A Lawyer

The Value Of A Marine’s Self-Discipline
By Jeff Mussman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Musings About Marketing To Small Business

By David C. Levine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

The Tax Man Cometh

By Cheryl L. Ryan & Grey W. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

Dugan & Meyers:

Ohio Supreme Court Enforces Contract Terms
By Maureen P. Taylor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

Strange Facts Make Strange Law

Making Sense Of Greer-Burger v. Temesi
By Kelly K. Curtis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40

What You Should Know About

Ohio’s New Homebuyers’ Protection Act
By Helen Mac Murray . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

Vicarious Liability
It’s More Complex Than You Think
By Dale K. Perdue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44

*A SUPPLEMENT TO THE DAILY REPORTER*

*CONTENT PROVIDED BY THE COLUMBUS BAR ASSOCIATION*
 Immigration
High Tech Workers
More Or Less — Here Or There?
By Noure Alo . . . . . . . . . . . . . . . . . . . . . . . . . .Page 16

SUMMER 2007
When The Attorney’s Client Is Removable
By Mark M. Nesbit . . . . . . . . . . . . . . . . . . . . .Page 18

Corner Office Interiors

Shoot Out At The Short North Street Cred

By Alex Lagusch . . . . . . . . . . . . . . . . . . . . . . . .Page 4 Lincoln Missed The Point
By Bruce Campbell . . . . . . . . . . . . . . . . . . . . . .Page 19

What I Learned In Iraq . . . About Being A Lawyer

President’s Page
A Message From The President, 2007-2008
By Nelson E Genshaft . . . . . . . . . . . . . . . . . . . .Page 5
CBA President Nelson Genshaft
By Patty Wise . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 6
The Value Of A Marine’s Self-Discipline
By Jeff Mussman . . . . . . . . . . . . . . . . . . . . . . .Page 20
A Bipartisan Way
To Settle A Disputed Presidential Election In Ohio?
By Edward B. “Ned” Foley . . . . . . . . . . . . . . .Page 21

Honorable Intentions, Good Deeds Of Majority

Not Diluted By Few ‘Bad’ Attorneys
In Court
Who Make News Headlines
Civil Jury Trials By Belinda S. Barnes . . . . . . . . . . . . . . . . . . . . .Page 22
Franklin County Common Pleas Court
By Belinda S. Barnes & Joshua R. Bills . . . . . . .Page 8
Practice Managing
Getting To “Yes” On Cross-Examination
By Frank A. Ray . . . . . . . . . . . . . . . . . . . . . . .Page 10 Law Firms Can Take Simple Steps Toward
Going Green
Plea Bargaining In The Wake Of Howe By Chris Spittal . . . . . . . . . . . . . . . . . . . . . . . .Page 23
Cowl Lamps And Misdemeanors
By Shawn R. Dominy . . . . . . . . . . . . . . . . . . . .Page 12 Controlling Litigation Costs Through
Management Systems
A View From A Law Firm Finance Department
Written Law By Marty Eisenbarth . . . . . . . . . . . . . . . . . . . .Page 24

On The Virtues Of Written Conflict Of Fee Arbitration

Interest Waivers The Cost And Contention Of Doing Business
By Alvin E. Mathews Jr. . . . . . . . . . . . . . . . . . .Page 13 By A. Alysha Clous . . . . . . . . . . . . . . . . . . . . .Page 25

Re-Thinking The Approach To Writing Musings About Marketing To Small Business

An Office Memo
By Chris McNeil . . . . . . . . . . . . . . . . . . . . . . .Page 14
Points To Remember About Making A Will
By Ruth Freed . . . . . . . . . . . . . . . . . . . . . . . . .Page 15
By David C. Levine . . . . . . . . . . . . . . . . . . . . .Page 26
Transitioning From Big Firm To
A Part-Time/Home Practice
By Priscilla L. Hapner . . . . . . . . . . . . . . . . . . .Page 28

Taxes
The Tax Man Cometh
By Cheryl L. Ryan & Grey W. Jones . . . . . . . .Page 29

2 Summer 2007 Columbus Bar Lawyers Quarterly

 Cain & Abel
Gray Skies Cover COLUMBUS BAR ASSOCIATION
Sentencing Code OFFICERS
By The Honorable David E. Cain . . . . . . . . . . .Page 30
President: Nelson E Genshaft
President-Elect: Kathleen M. Trafford
Notes From The Sixth Circuit Judicial Conference
Secretary/Treasurer: Elizabeth J. Watters
By The Honorable Mark R. Abel . . . . . . . . . . .Page 32
Immediate Past President: Belinda S. Barnes

Library BOARD OF GOVERNORS

David S. Bloomfield, Jr.
Come And Get ’Em Redux:
Kenneth R. Cookson
Periodical Articles Related To Ohio Law
Hon. James L. Graham
By Ken Kozlowski . . . . . . . . . . . . . . . . . . . . . .Page 34
Dawn Rae Grauel
Marie-Joëlle C. Khouzam
Hon. Stephen L. Mcintosh
New Law David T. Patterson
Mark C. Petrucci
Striking A Balance
Anthony M. Sharett
Ohio’s Home Rule Amendment
Kristy J. Swope
By Matthew T. Green . . . . . . . . . . . . . . . . . . . .Page 36
Bradley B. Wrightsel
Dugan & Meyers:
Ohio Supreme Court Enforces Contract Terms OSBA District Representative: David C. Patterson
Despite Alleged Problems With Owner’s Plans ABA Delegate: Belinda S. Barnes
By Maureen P. Taylor . . . . . . . . . . . . . . . . . . . .Page 37 Executive Director: Alexander Lagusch

Strange Facts Make Strange Law

Making Sense Of Greer-Burger v. Temesi
By Kelly K. Curtis . . . . . . . . . . . . . . . . . . . . . .Page 40
What You Should Know About
Ohio’s New Homebuyers’ Protection Act
By Helen Mac Murray . . . . . . . . . . . . . . . . . . .Page 42
Preemption Of State Securities Regulation
Not So Fast
By Matthew L. Fornshell . . . . . . . . . . . . . . . . .Page 43
Employment Law
Communications Director: Jill Snitcher McQuain
Editor: Hon. Mark R. Abel
Managing Editor: Esther Kash
Production: The Daily Reporter
Columbus Bar Lawyers Quarterly is published by The
Daily Reporter for the Columbus Bar Association, 175
South Third Street, Columbus, Ohio 43215,
614/221.4112, four times a year — Winter, Spring,
Summer and Fall. Statements or opinions expressed
herein are those of the authors and do not necessarily
reflect those of the Columbus Bar Association, its
officers, board, or staff.
——

Vicarious Liability NOTICE

It’s More Complex Than You Think Any statements pertaining to the law contained in this
By Dale K. Perdue . . . . . . . . . . . . . . . . . . . . . .Page 44 magazine are intended solely to provide broad, general
information, not legal advice. Readers should seek
advice from a licensed attorney with regard to any
specific legal issues.
Book Review
The Lie Detectors
The History Of An American Obsession
By Ken Alder, Reviewed by Janyce C. Katz . . .Page 47

Summer 2007 Columbus Bar Lawyers Quarterly 3

Corner Office
Shoot Out
AT THE SHORT NORTH
By Alex Lagusch
T
he lights, at last, have come on
like rainbows over High Street.
Where there was darkness,
there is light, and although no
pots of gold, how about buckets of
information? Speaking of lights…
I feel it necessary to start my story
with the geographic location. It
happened in the Short North. Not our
first time in front of the lights. But our
first time for our new adventure. This
was different.
This June day in the Short North we
were producing our first TV commercial
for LIAM, aka Legal Information
Accessible to Me. If you don’t know
about LIAM, google LiamLaw or just
Liam. (One screen is worth 10
megabytes, an old saying.) Liam is made
up of a group of attorney members who
have legal practices appropriate to
consumer and small business needs. To
be listed, they have met the criteria and
have agreed to abide by the Nine
Commitments to Clients. They can be
searched by practice or name. Pictures
and text — like words and music.
Other times, we had had lights and
camera and voiceover and a congenial
setting — and we talked about Lawyer
Referral and how friendly an experience
it would be to call the Bar for help. Of
course, it still is, but now we want to
provide our members and our central
Ohio consumers with even more.
Suddenly you need a lawyer — for
whatever reason — What do you need to
know? W hat do you need to bring?
What do you ask? What can you
expect? And, where do you read more?
4 Summer 2007 Columbus Bar Lawyers Quarterly
We have “buckets of bytes” of legal
information — a comprehensive place to
see who is available in a particular area
of practice, some insider information on
character and accomplishment, and a
long look at his/her countenance.
Anyway, back to the big day. Our
production studio was a very classy
restored, very old brick building. We
were given the full treatment. Make up,
called “styling,” not so much to cover
problems as to make us feel competent
and ready — and of course, ever so
attractive! Each actor was given a word
or two and the chance to perform several
times to emote ever so slightly, without
appearing harassed or overwrought.
You may wonder where we found 22
actors at a reasonable price, which for us
is — free. It’s easy if you have friends —
and we have. We had a Broadway cattle
call and the response was fantastic. Bar
staff, attorneys, friends of staff and
attorneys, studio techies — each
committed to producing a superior, 30-
second TV “moment of truth.”
Each stepped up to a white
background and spoke the magic words
that will direct the Greater Columbus
audience to LiamLaw and introduce
them to a new way of finding the
attorney who will help with life/business
problems.
It is incumbent upon the bar exec to
m a k e a n a p p e a r a n c e , c a re f u l l y a n d
concisely explaining the service offered
and the possibilities for happy endings,
so I had to show up. Determined to seem
at ease and minor to the many parts that
make up the whole, I wore my most
easy-going casual short-sleeved shirt —
Alaskan salmon red.
It is my belief that the walking fingers
have left the yellow pages and are using
keys and mouse to find their way
through the maize of alternatives. Even
those without computers go to the
library to browse online. Isn’t it the
sensible, obvious thing to provide our
members a way to enjoy increased
business via the net and a platform to
make them visible to members of the
community looking for relief?
Look for our stunning half-a-minute
drama to be aired beginning this month
and let us know what you think. More
important, check out Liam, at
www.LiamLaw.com! You should be
there, because your prospective clients
will be.
alex@cbalaw.org
Alex Lagusch,
Columbus Bar
Executive Director

A Message
FROM THE PRESIDENT, 2007-2008
We are reviewing our active committees, looking at leadership
and programming, so our Bar is offering what we feel is the
broadest based and best quality of committee experience
we can offer.
By Nelson E Genshaft
T
h e Co lumbus Bar has been
d oing opinion surveys and
eco nomic surveys of our
memb ers, and they have
produced some interesting results about
how we practice law in Central Ohio.
The economic survey was sent out this
year in February to members, and 609 of
you responded, about a 16% response
rate. About half the responses came from
lawyers practicing with fewer than 15
attorneys, and 14% in firms of 20 to 50
lawyers, and 39% in firms of more than
100 lawyers. The responses were heavily
skewed toward men (over 70%) who
practice in law firms (71.4%) and most
(62%) with experience of 11 years or
more in the practice, although 24% of
the responses came from attorneys with
less than five years of experience. The
o p i n i on survey was sent to 3,800
members in May, and we received a total
of 650 responses, a 17% rate.
A sample of results from those surveys
shows:
• A b o ut 8 9% said they ar e very or
somewhat satisfied with the practice of
law. The breakdown of gender and age
g r o up s sh ows th at more men are
dissatisfied, most of those in age group
50 to 59.
• Two-thirds of you said your income
went up in the past two years, with
about 20% indicating an increase of at
least 30%
• O n l y 1 2.5% o f y ou indicated a
decrease in income, and about 22%
said income remained the same
• About 27% reported income in the
range of $50,000 to $99,999, about
27% had income in the $100,000 to
$149,999 range and about 34% of you
had incomes in excess of $150,000
• About 29% said they spend 36 to 45
hours a week in the practice of law,
about 36% spend 46 to 55 hours per
week, 20% said they spend 56 to 65
hours a w e e k a n d 5 . 6 % sa i d t h e y
devote more than 65 hours a week to
the practice of law
• Over 40% reported having billable
hours of 30-39 hours per week, and
21% had billable hours of more than
40 hours per week
• Usual billable rates were $151-$200
per hour (25.2%), $201-$250 per hour
(18.1%), $251-$300 per hour (10.5%)
and over $300 per hour (19.8%)
Is there valuable information that we
can mine from these surveys? What does
this information mean for the direction
of the Bar and how it should serve its
members?
The surveys show a generally positive
view of the profession, with most
lawyers reporting to be generally
satisfied with their practice. Incomes for
about half of us were over $100,000.
The vast majority of lawyers are working
full time and devoting 36 hours or more
per week to the practice. We spend more
hours practicing than we can translate
into billable hours. About a third of us
are billing at rates in excess of $250 per
hour. On the negative side, there may be
a trend of dissatisfaction among middle
age men with the practice, perhaps
reflecting some tedium after practicing
many years. Most reported that they
thought their Bar was doing a good job,
and should continue offering a broad
range of services, including CLE,
President’s Page
networking opportunities, improving the
administration of justice and enhancing
the image of the legal profession in
Central Ohio.
The Columbus Bar puts a lot of faith
in these surveys. If people take the
trouble to respond, they obviously have
something to say. Therefore, we are
taking the following steps:
• We a r e r e v i e w i n g o u r a c t i v e
committees, looking at leadership and
programming, so our Bar is offering
what we feel is the broadest based and
best quality of committee experience
we can offer;
• We are looking at opportunities for
pro bono and volunteer opportunities
so that our members can be plugged
into ways of supporting those in need
of legal services;
• We are looking at new ways for our
members to network and get together
socially; and
• We a r e c o m m i t t e d t o o f f e ri ng t h e
finest CLE programs and teaching
experiences for our members who
want to teach.
***
Congratulations to the people who
have worked on the Minority Clerkship
program over the years. The program is
celebrating its 20th year, and it can look
back at placing almost 500 minority law
students who had just finished their first
year of law school into positions with
private law firms, corporate law
departments and government agencies,
and paying them over $4 million in
salaries. More important, the program
has launched careers and given both the
clerks and their employers valuable
experiences in the workplace. A reunion
of alumni is planned for July 20, and we
look with pride and gratitude to all those
who have made the Minority Clerkship
program a success.
neg@columbuslawyer.net
Nelson E Genshaft,
Strip Hoppers Leithart
McGrath & Terlecky
Summer 2007 Columbus Bar Lawyers Quarterly 5
President’s Page

CBA PRESIDENT
Nelson Genshaft
As Columbus Bar President, Genshaft says he looks forward
to the opportunity to serve the profession in a leadership
role. He has already asked past President John Hartranft to
chair a new task force exploring the myriad positive and
negative issues affecting baby boomer attorneys who are
approaching — or being forced into — retirement.

By Patty Wise

F
or Nelson Genshaft, the
incoming President of the
Columbus Bar Association, it’s
always been about business...
business and the law.
A native of Canton, Genshaft has
practiced business litigation in Columbus
for nearly 35 years in a legal career that
has spanned the public sector, a bustling
mid-size firm, his own firm, and now as
partner of the nine-person firm Strip
Hoppers Leithart McGrath & Terlecky.
His focused pursuit is no surprise.
Nelson knew early on what his interests
were, perhaps fueled by the example he
saw growing up. His father, part owner
of a meat packing company, completed
the arduous task of attending night law
school while working full time at the
p l a n t . H o w e v e r, t h e d e m a n d s o f
supporting a family superseded his
father’s dream of changing careers, so he
never got the chance to actually practice
law.
“It was a business decision for him.
His brother, who was part-owner of the
c o m p a n y, n e e d e d h i m i n t h e m e a t
packing business even though he had a
law degree. Plus, it was an income, and
he didn’t feel it was the right change to
make with a family to raise,” Nelson
recalled. Since then, his father, now 90
and still golfing, has lived to see at least
three Genshafts earn their law degree
and go on to practice, including Nelson
and two of his three children. In
a d d i t i o n , N e l s o n ’s o l d e s t c h i l d i s a
paralegal, and his son’s wife is an OSU
law grad.
“My father actually lived through the
v a s t c h a n g e s o f t h e 2 0 t h c e n t u r y,
emigrating with his mother from Russia
as a child, through Poland and Sweden,
and coming to meet his father for the
first time in America in 1923. Last year,
the whole family went to Russia, and my
father returned to Vitebsk where he was
born, and we were all grateful that my
grandparents were able to leave when
they did,” he said.
For young Nelson, the path to the law
was clear. He attended the Wharton
School at the University of Pennsylvania
earning his finance degree, then returned
to Ohio for law school at Case Western
Reserve University. His first assignments
as a lawyer came in the public sector, as
a staff attorney for the Ohio Division of
Securities, then as an Assistant Attorney
General serving the state’s pension and
commerce divisions — experience he
values to this day.
“Once you work for a public agency it
gives you an insight that you never lose.
I can always put myself in their shoes
and feel some kinship and some element
of affinity for what the government
does,” Nelson says.
His next stepping stone lasted twenty
years, at the former firm of Schwartz
Warren & Ramirez. Genshaft earned
partnership quickly, and helped the small
business litigation firm expand over the
years into a bustling mid-size concern of
nearly 50 lawyers specializing in small to
medium-sized public companies,
securities and business transactions. In
1996, he sought change again, leaving to
start his own firm, Wolman & Genshaft,
w i t h B e n s o n Wo l m a n a n d S u s a n
Gellman.
“There’s an element of excitement in
trying something different and joining
new groups of people. I certainly enjoyed
having my own firm and the variety that
comes with a small group, but at some
point decided it was better to build a
business practice in a more established
law firm,” Nelson says.
He joined his current firm in 2004,
and has added legal ethics and
disciplinary cases to his business
litigation specialty. In fact, his interest

6 Summer 2007 Columbus Bar Lawyers Quarterly


was sparked in the early ‘90s when he
began actively participating in the
Columbus Bar and joined the
Professional Ethics committee. In a few
years he took the reins as chairperson of
the committee, followed by
chairmanship of the Securities Law
committee. In 2001 he joined the Board
of Governors, and as a board member
was largely responsible for launching
the Mentoring Program — a program so
successful it became the model for the
Ohio Supreme Court program in place
statewide.
As Columbus Bar President, Genshaft
says he looks forward to the
opportunity to serve the profession in a
leadership role. He has already asked
past President John Hartranft to chair a
new task force exploring the myriad
positive and negative issues affecting
baby boomer attorneys who are
approaching — or being forced into —
retirement. The Managing Partner’s
Diversity Initiative is in another critical
stage as the Columbus Bar and
participating firms work together to
find ways to retain minority attorneys
and partners who were so successfully
recruited a few years ago. Genshaft will
also continue work to deepen the pro
bono opportunities for Bar members,
initiating connections with area non-
profits to match their need with
member’s time and talent.
He’s especially excited about LIAM,
the new online marketing site at
w w w. L i a m L a w. c o m t h a t m a t c h e s
central Ohio consumers searching for
lawyers with Columbus Bar members.
“I think LIAM is going to be good for
the public, good for lawyers as well as
good for the bar association. Solo, small
and medium-sized practitioners clearly
stand to benefit, but there is also an
opportunity for niche practices in large
law firms to gain needed exposure.
Areas like immigration, construction,
i n t e l l e c t u a l p r o p e r t y, s p o r t s a n d
entertainment, zoning, election law —
these practices are often unseen and
unmarketed inside larger law firms,” he
said.
At the same time, Genshaft continues
his longstanding commitment to the
Jewish community. He has served on the
board of the Jewish Federation and is
currently a board member of the Jewish
Community Center. He was president of
Ohio Jewish Communities, a lobbying
group, and served as chair of the Anti-
Defamation League for the Ohio,
Indiana, and Kentucky region.
If it seems a lot of ground to cover,
President’s Page
Genshaft is up to the task. A former
m a r a t h o n r u n n e r, h e m a i n t a i n s a
disciplined workout routine to stay in
great shape — in part, perhaps, so he
can maximize visits to his son Ben, a
land development attorney practicing in
Aspen, and d a u g h t e r- i n - l a w A l y ssa
Shenk (Moritz College of Law, 2002).
As luck would have it, Genshaft is a
lifelong skier, from the Cleveland slopes
where he learned to ski in high school
to the Swiss Alps where he
honeymooned. In Aspen it all comes
together, when he and his wife ski by
day and dote on their 20-month-old
granddaughter, Sophie Anne, the rest of
the time.
This year marks a productive time for
in print
his entire family. Daughter Lindsay
works the evening shift as a paralegal in online
a large law firm New York City so she
can pound the pavement during the day Central Ohio’s only daily business
for theatrical auditions. Daughter Tracy and legal newspaper. Subscribe Today!
makes her name as an attorney at the
Chicago firm of Winston & Strawn, and
is planning a November wedding.
Meanwhile, his wife of 35 years, Carole,
who is well known in her position as 614-228-NEWS (6397) • www.sourcenews.com
Adjunct Curator of Education at the
Columbus Museum of Art, is now
working part-time for the museum so
she can complete her PhD dissertation
in art education at The Ohio State
University, in addition to teaching an
online art education course for the
university.
Fortunately, a recent move to German
Village puts Genshaft near the heart of
it all, a mere 90 seconds from his office
when the lights are green. He is
positioned in every way to begin a busy,
productive year as President of the
Columbus Bar Association.
Patty Wise is a freelance writer and
public relations consultant currently
based in California. She has worked
with the Columbus Bar for a number
of years.
p_wise@sbcglobal.net
Patty Wise
Summer 2007 Columbus Bar Lawyers Quarterly 7
 In Court
Civil Jury Trials
FRANKLIN COUNTY COMMON PLEAS COURT
By Belinda S. Barnes & Joshua R. Bills
V
erdict: $0.00 for defendant by
jury; $263,421.32 for plaintiff
against Polaris by bench;
$283,439.68 for Polaris against
Dunkin’s Diamonds on third-party
complaint. Lease/Nuisance. Dunkin’s
Diamonds, part of Polaris Fashion Mall,
alleged that Glimcher Management of
Polaris maintained a children’s play area
adjacent to Dunkin’s jewelry store.
Dunkin’s Diamonds sued for nuisance and
a diminution of their lease value based on
the children’s play area being immediately
outside their jewelry store. Plaintiff was
alleging lost profits due to the children’s
play area. The jury held not notifying
Dunkin that the play area was going to be
constructed outside their store was not
unreasonable. The Court then ruled that
the cross-claimant’s lease payments for
plaintiff leaving the premises early were
justified. No experts. No settlement
demand. No settlement offer. Nine day
trial. Plaintiff’s attorneys: Charles R. Saxbe
and James D. Abrams. Defendants’
attorneys: David J. Young and Michael R.
Reed (Glimcher Properties LP and
Glimcher Properties Corporation); P. Brian
See (Polaris Mall). Judge: Holbrook.
Dunkin’s Diamonds, Inc. dba Dunkin’s
Diamonds v. Polaris Mall, LLC, et al.,
Case No. 04CVC-01-120 (2005).
Verdict: $185,468.00. Auto Accident.
ACDA. On September 14, 1999, defendant
Nathaniel R. Sherman, who was working
for Spitzer Dodge, while driving a
demonstrator car, struck the rear of the
vehicle operated by plaintiff Stephanie F.
Hale. Ms. Hale and Mr. Sherman were
proceeding southbound on Hamilton Road
8 Summer 2007 Columbus Bar Lawyers Quarterly
when the accident occurred. The jury
returned a verdict determining that
defendant Sherman was acting within the
course and scope of his employment with
Spitzer Dodge at the time of the accident.
Four day trial. Plaintiff’s attorney: Simina
Vourlis. Defendants’ attorneys: Daniel C.
Cook (Spitzer Dodge); Joseph V. Erwin
(Sherman); Michael R. Henry (Farmers
Insurance). Stephanie F. Hale v. Nathaniel
R. Sherman, et al., Case No. 03CVC-03-
2879 (2004); Appellate No. 04AP-1379
(2006).
Verdict: $41,787.26. Auto Accident. UM
Claim. Plaintiff Jerry Crowe was operating
his vehicle southbound on I/270 in Prairie
Township. Plaintiff Lisa Crowe was a
passenger in the vehicle. Plaintiffs’ vehicle
was sideswiped by another car and pushed
off the road. As a result of the collision,
plaintiff Lisa Crowe sustained soft tissue
injuries to her neck and back. Lisa Crowe
was the only plaintiff who proceeded to
trial against Allstate. Medical bills:
$12,434.12. Lost wages: $7,322.00.
Plaintiff ’s expert: Dr. Farabaugh.
Defendant’s expert: Martin J. Gottesman,
M.D. Settlement demand: $30,000 plus
$12,500 receipt from tortfeasor. Settlement
offer: $25,000 plus $12,500 already paid
by tortfeasor plus $10,000 med pay. Three
day trial. Plaintiff’s attorney: James L.
Baum. Defendant’s attorney: Joshua R.
Bills. Judge: Cain. Lisa S. Crowe v. Allstate
Insurance Company, Case No. 03CVC-01-
502 (2004).
Verdict: $37,461.18 Reduced to
$28,095.88. Premises Liability. On
February 7, 2001, plaintiff Janice Gibson
parked her vehicle in a parking lot located
at 3669 Broadway, Grove City, Ohio,
while she went to work. Defendant
Cordosi Properties, Ltd. owned and
operated the parking lot. Plaintiff returned
after a day of work to her car. At the time
of her return, it was dark outside and there
was a lack of lighting. While walking from
the sidewalk to the parking lot, plaintiff
fell and sustained injuries. Plaintiff ’s
injuries were right knee, right ankle and
right leg. Plaintiff alleged she fell on
broken up pavement and alleged defendant
failed to maintain the lot pursuant to local
ordinance codes, and specifically to Ohio
Basic Building Code. Defendant alleged
there was a drop-off where Plaintiff fell
and it was open and obvious. The jury
determined plaintiff to be 25% at fault and
defendant to be 75% at fault. The jury
awarded past medical expenses-
$16,766.85; past pain and suffering-
$14,166.66; and future pain and suffering-
$6,527.67. Medical bills: $22,355.80.
Plaintiff’s experts: Michael B. Cannone,
D.O. and Bernard Krotchen (civil
engineer). No defense expert. Settlement
demand: $100,000. Settlement offer:
$0.00. Three day trial. Plaintiff’s attorneys:
Jamie S. Oliver and Kathryn R. Gugle.
Defendant’s attorney: James E.
Featherstone. Judge: Crawford (Martin).
Janice Gibson v. Cordosi Properties, Ltd.,
Case No. 03CVC-01-706 (2004).
Verdict: $22,301.00. Auto Accident.
ACDA. On February 7, 2002, defendant
Helen Weed, while operating a 1992
Cadillac DeVille, struck the rear of plaintiff
Ronald Atherton’s vehicle. Plaintiff was
westbound on Cemetery Road at the
intersection of Lyman Drive. As a result of
the impact, plaintiff suffered soft tissue
injury and a right knee torn meniscus
which required arthroscopic surgery and
therapy. Plaintiff’s expert: Peter Edwards,
M.D. No defense expert. Settlement
demand: $50,000 plus deposition costs and
expert’s fees. Settlement offer: $25,000.
Two day trial. Plaintiff’s attorneys: Steve
A. Craig and Douglas J. Behringer.
Defendant’s attorney: Daniel P. Whitehead.
Judge: Pfeiffer. Ronald Atherton, et al. v.
Helen Weed, Case No. 04CVC-01-1127
(2005).

Verdict: $12,145.00. Auto Accident. Right
of Way. On April 16, 2001, plaintiffs
Deborah and Robert Tongren were
proceeding northbound on Cassingham
Blvd. in Bexley, Ohio. Defendant Louise
Cummings was proceeding westbound on
East Broad Street. Defendant failed to yield
the right of way to plaintiff and turned in
front of plaintiff, causing an accident.
Plaintiff alleged injuries for cervical bulges,
disc protrusions, head contusion, left
elbow and left wrist. Plaintiffs’ experts:
Raymond Pongonis, D.O. and Steven
Lewis, D.C. Defendant’s expert: Leslie
Friedman, M.D. Three day trial. Plaintiffs’
attorneys: Joseph A. Fraley and Amanda B.
Brown. Defendant’s attorney: Gary A.
Gillett. Judge: Schneider. Deborah
Tongren, et al. v. Louise Cummings, Case
No. 03CVC-04-3881 (2005).
Verdict: $0.00; $425.00 on Defendant’s
Counterclaim. Legal Malpractice. Plaintiff
Adrianne Prescott secured the services of
defendant Phillip Waid of the law firm of
Metcalf, Duren, Morris, Starkey & Waid,
LLC, to incorporate a business for Ms.
Prescott. Mr. Waid successfully
incorporated the Mortgage Review Shop,
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In Court
Inc. and was paid for those services by Ms. from Ms. Prescott. Settlement demand:
Prescott. The remaining question was $300,000. Settlement offer: $25,000.
whether or not Ms. Prescott intended for Three day trial. Plaintiff ’s attorney:
Mr. Waid to act as her business attorney Kenneth R. Donchatz. Defendant’s
and consult on all aspects of the business. attorney: Rick E. Marsh. Judge: Crawford
Ms. Prescott asserted that she asked Mr. (Skeens). Adrianna Prescott v. Phillip
Waid to act as her business attorney and Waid, Esq., et al., Case No. 03CVH-03-
that Mr. Waid never discussed the cost of 2895 (2004).
his services. Mr. Waid contended that Ms.
Prescott merely asked for assistance in
filing incorporation documents and that he
quoted her a flat fee of $300.00 for the bbarnes@lanealton.com
incorporation and further informed her jbills@lanealton.com
that she might have to be licensed
according to the Ohio mortgage brokers
statutes. There was also a disagreement
about returning Ms. Prescott’s file. The
parties also disagreed about the alleged
damages to Ms. Prescott and the Mortgage
Review Shop, Inc. Plaintiff alleged
damages of nearly $300,000 for loss of
anticipated profits, attorney’s fees, business
expenses and various other damages.
Defendant challenged those claimed
damages. Plaintiff ’s expert: Charles
Kettlewell. Defendant’s expert: Alan
Wayne Sheppard. Defendant’s
counterclaim was for $425.00 for legal Belinda S. Barnes & Joshua R. Bills,
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Summer 2007 Columbus Bar Lawyers Quarterly 9
 In Court
GETTING TO “YES” ON
Cross-Examination
By Frank A. Ray
N
ow in the midst of my fourth
decade of observing trial lawyers
demonstrate the full spectrum of
skills during cross-examination,
my memory often cycles to my experience as
a law clerk for the office of the Franklin
County Prosecuting Attorney during the
summer of 1972. That summer, I had the
privilege to witness Assistant Prosecuting
Attorney James J. O’Grady at his best during
the prosecution of a series of murder trials.
After Jim had discredited and humiliated
adverse witnesses as if he were pounding a
row of fence posts, his colleague and fellow
prosecutor, S. Michael Miller, said to me,
“You can’t teach what Jim O’Grady does in
cross-examination.” In many ways, Mike
was right. Jim electrified the air in the
courtroom with confidence and a stentorian
baritone voice.
That summer, Jim O’Grady taught me by
example how several fundamental principles
apply to execution of effective cross-
examination. In this missive, I shall endeavor
to share what he taught me and what I
would recommend to any trial practitioner
when preparing and performing cross-
examination.
After achieving a thorough understanding
of the applicable facts and law of the case,
the trial lawyer defines the theme of the
litigation for the client. Once the lawyer
crafts a phrase that captures the theme of the
client’s case, at trial, given the opportunity
when cross-examining witnesses, the lawyer
should integrate key words from the theme
into the interrogation. This opportunity to
repeat the message of the theme of the case
for the jury’s absorption promotes and
enhances the jurors’ retention of the words
and phrases of the theme for their ultimate
adoption and usage during deliberations.
In every phase of trial, lawyers should
implement the psychological principles of
“primacy” and “recency.” Using the
principle of primacy, which teaches that the
first impression remains a lasting impression,
the trial lawyer should strongly initiate
cross-examination. “Easing” into cross-
examination usually plays into a failed
strategy. Posing questions at the outset of
cross-examination where the trial lawyer
knows that the answer will be unattractive
10 Summer 2007 Columbus Bar Lawyers Quarterly
for the adversary places the witness on his or
her heels. This tactic immediately creates
the very tension that should operate to the
advantage of the cross-examiner
throughout the balance of the
interrogation. Then, when nearing
conclusion of cross-examination, the
interrogator should be mindful of the
psychological principle of recency, which
suggests that the most recent impression
confirms or enhances a first impression. So,
the cross-examiner should try to end his
questioning with a “zinger.” After ending
strongly, the cross-examiner should pause
for effect and declare, “I have no further
questions of this witness.”
A trial lawyer’s basic goals for
examination of any witness are two-fold.
First, the interrogating lawyer attempts to
educate the finder-of-fact with information
that confirms the theme of the case.
Secondly, cross-examination offers a forum
to persuade the finder-of-fact of the veracity
and integrity of the advocated theme.
When conducting cross-examination, the
litigator must bear in mind that he or she
participates in the trial as a competitor who
must play by the rules. In this regard, cross-
examination should only offer “relevant”
evidence.1 Cross-examination should focus
on matters in which fact witnesses have
“personal knowledge.”2 For example, an
attempt at impeachment of a witness by use
of a document prepared by a third-party
simply does not work unless used in an
artful way with an expert witness. Any
examination, including cross-examination,
should be designed for the purpose of
“ascertainment of the truth,” even if the
truth entails demonstration of
misrepresentation by the witness.3 Trial
lawyers need to know when to conclude a
cross-examination. The evidentiary rules
instruct that examination should proceed so
as to “avoid needless consumption of
time.”4
When Jim O’Grady cross-examined his
witnesses, I recall that he rarely had a note
within physical reach. I believe that I now
understand that he appreciated that he
needed to stay in touch with the total
environment of the courtroom. While
focusing on the task at hand, effectively
cross-examining the witness on the stand,
Jim understood that in addition to engaging
the witness, sometimes with dramatic
confrontation, he also needed to make sure
that the testimony would secure the full
attention of the jury and produce a response
of respect from the trial judge.
In this regard, a trial lawyer challenged
with performance of cross-examination
should craft interrogation so as to avoid an
invitation to legitimate objection by
adversary counsel. Ideally, effective cross-
examination should flow without
interruption. For example, trial lawyers need
to master an understanding of the “hearsay
rules.”5 The capability to cite the numeric
evidentiary rule and the substance of the rule
serves to separate the trial lawyer of
“substance” from the trial lawyer of
“bluster.” With such demonstrated
command of evidentiary rules, first, the trial
judge assigns credibility to an academically
grounded litigator; and second, adversary
counsel’s objections quickly wilt into muffled
silence.
So, beyond Jim O’Grady’s “gift,” what set
him apart from his opponents in the
courtroom? Preparation. Thorough
preparation. Uncompromised preparation.
Thoughtful review of affidavits, witness
statements, transcripts of depositions,
answers to interrogatories, and published
positions of adversary counsel in court
filings of the case combine to produce a
resource of fodder for effective cross-
examination. Use of technology for
impeachment on cross-examination
continues to evolve. In my view, the “old
fashioned” method of having a witness read
his or her sworn testimony from a transcript
or affidavit which is diametrically opposed
to testimony offered in the courtroom
creates a focused moment on the witness
from which the witness cannot escape. Such
skilled impeachment can occur only after
thorough preparation and anticipation.
When conducting cross-examination,
normally, the interrogator should use the
rule-approved technique of posing “leading
questions,” or questions which suggest the
answer with a simple “yes” or “no.”6 After
starting strongly and before concluding
strongly, the trial lawyer should refrain from
losing the audience, the jurors, by asking
compound complex questions. All questions
should be concisely phrased. If the
interrogator asks a simple question, the jury
intuitively expects and demands that the
witness provide a simple answer. With the
simple question posed, if the witness
launches into a narrative without answering
the question, the time for the interrogator to
interrupt has materialized. “I beg your
pardon. I ask that you answer the question.
Do you need for me to repeat the question
so that you can give a direct response?” The
 In Court

typical juror expects a trial lawyer to disembowel a witness. Before cross-

1. Evid. R. 401 and 402.
“manage” his or her witness. If the witness examining with the aid of a document, the
2. Evid. R. 602.
evasively responds, trial judges will almost interrogator must establish personal
3. Evid. R. 611(A)(1).
always allow the trial lawyer to interrupt the knowledge 15 relevancy, 16 and authenti- 4. Evid. R. 611(A)(2).
witness — demand a direct answer. cation17 of the proposed exhibit. 5. Evid. R. 801-805.
During cross-examination of a witness, the Just because a trial lawyer has an 6. Evid. R. 611(C).
trial lawyer should remain calm and confident opportunity to cross-examine a witness does 7. Evid. R. 607.
by demeanor and in the modulation of voice. not mean that interrogation is mandatory. 8. Evid. R. 613(A).
If the lawyer uses elevation of pitch or Sometimes, the best cross-examination 9. Evid. R. 613(B).
increased volume of voice, the interrogator occurs when the trial lawyer says, “Your 10. Evid. R. 612.
should only do so when strategically Honor, I have no questions of this witness.” 11. Evid. R. 613(C).
appropriate. Nonverbal communication by Over the years, I have watched lawyers 12. Evid. R. 406.
the attorney remains within the sphere of make an occasionally fatal mistake of 13. Evid. R. 608.
observation of jurors and trial judges. So, the launching into a cross-examination that had 14. Evid. R. 609.
trial lawyer should be careful not to distract no beginning point and no ending point — 15. Evid. R. 602.
the finder-of-fact from absorbing important except to exact quizzical looks from jurors 16. Evid. R. 401-403.
spoken words because of the lawyer’s and the trial judge. Similarly, lengthy cross- 17. Evid. R. 901 and 902.
distracting gesticulations. examination can obscure a juror’s
If the trial lawyer secures an admission recognition of central and key points
from a witness and if the admission rings in extracted in testimony of the witness.
support of the client’s case, there is nothing Laboriously long and lifeless cross- fray@cwslaw.com
like a pause for accentuation. The examination often serves to place jurors and
interrogator should allow the jury and the the trial judges in laconic trances, which is
judge to join in basking in the moment. not normally a recommended tactic.
In terms of maintaining demeanor and Effective cross-examination can create
professionalism in front of the judge and compelling drama in the courtroom; but
jury, the trial lawyer should not cycle into when conducted without a perceptible Frank A. Ray,
inflammatory exchanges with the witness. If purpose, cross-examination can also create a Chester Willcox
inflammatory statements occur during cross- sense that the court’s time has been wasted. & Saxbe
examination, such statements should only
emit from the witness stand.
If a witness has not capitulated with
admissions, the next best achievement for
the trial lawyer during cross-examination is
impeachment of the witness. Impeachment
entails the discrediting of a witness and a
witness’s testimony. 7 To facilitate
impeachment of a witness, the trial lawyer
can employ a prior statement; 8 a prior
inconsistent statement9 through presentation
of a writing10 or use of a transcript of a
deposition of the witness; prior inconsistent
conduct;11 deviation from routine or habit;12
bias, including demonstration of a financial
interest in the case, character reputation, or
examples of an unattractive course of
conduct;13 or conviction of a crime.14
For cross-examination of a witness, an
organized interrogator has identified
documentary evidence for use and support
during interrogation. Documentary evidence
can convincingly verify important facts.
Once the court admits an exhibit into
evidence, the interrogator should publish the
document for the jury’s visual inspection
during cross-examination of the witness.
Digital projection or a blow-up mounted on
a board of a document for the jury’s eyes
enhances the finder-of-fact’s retention of
challenged facts. When using any
documentary evidence, the trial lawyer must
employ fundamentals for establishing a
foundation for use of the exhibit before the
trial lawyer uses the exhibit to try to

Summer 2007 Columbus Bar Lawyers Quarterly 11

 In Court
Plea Bargaining
IN THE WAKE OF HOWE
Cowl Lamps and Misdemeanors
By Shawn R. Dominy
A
decision by the Supreme Court
regarding ethical implications of
plea agreements is impacting plea
bargaining in central Ohio.
Interestingly, it is a case from the Supreme
Court of Iowa: Iowa Supreme Court
Attorney Disciplinary Board v. Bradley
Howe.1
The facts of the Howe case are straight-
forward. Howe was in general practice
and also served as the assistant city
attorney for Spencer, Iowa. Over the
course of several years, Howe engaged in
plea agreements whereby the city agreed
to reduce simple misdemeanor moving
traffic violations to simple misdemeanor
“cowl lamp” violations in exchange for
the defendants’ guilty pleas to the
amended violations.
Howe did not originate the practice of
reducing offenses to cowl lamp violations.
His predecessors in the city attorney’s
office had used this plea bargaining
arrangement for years. Each of these plea
agreements was made with the consent of
the defendant and the charging police
officer, and each of these plea agreements
was accepted by a magistrate.
In November of 2004, the Iowa
Supreme Court Attorney Disciplinary
Board filed a four-count complaint
against Howe. In Count I, the board
alleged that Howe violated the Iowa Code
of Professional Responsibility by
instituting the cowl lamp charges when he
knew the charges were not supported by
probable cause. In the remaining counts,
the Board alleged that Howe violated the
Code by representing both the city and
defendants simultaneously in criminal
cases and by r epresenting two
codefendants in the same criminal case.
The grievance commission of the Iowa
Supreme Court recommended a private
admonition and a public reprimand for
the other counts but ordered the dismissal
of the count alleging Howe instituted
12 Summer 2007 Columbus Bar Lawyers Quarterly
cowl lamp charges without probable
cause.
The Iowa Supreme Court, indicating its
standard of review was de novo,
disciplined Howe for all four counts,
including the cowl lamp count that was
dismissed by the grievance commission.
The court found that Howe’s conduct in
amending the char ges to cowl lamp
violations violated DR 7-103(A), which
states that a prosecutor “shall not
institute or cause to be instituted criminal
charges when the lawyer knows or it is
obvious that the char ges are not
supported by probable cause.” The court
commented that Howe knew the cowl
lamp charges were not supported by
probable cause, as vehicles had not been
equipped with cowl lamps for years. The
Iowa Supreme Court suspended Howe’s
license to practice law indefinitely with no
possibility of reinstatement for four
months.
Ohio’s applicable Rules of Professional
Conduct are nearly identical to Iowa’s. 2
Ohio Rule 3.8 states: “The prosecutor in
a criminal case shall not do any of the
following: (a) pursue or prosecute a
charge that the prosecutor knows is not
supported by probable cause ***”. The
official comment to Rule 3.8 in both
states says, “A prosecutor has the
responsibility of a minister of justice and
not simply that of an advocate. This
responsibility carries with it specific
obligations to see that the defendant is
accorded justice and that guilt is decided
upon the basis of sufficient evidence.”
The Howe decision invites interesting
observations. First, it appears that none
of the individuals or entities involved in
Howe’s 174 cowl lamp plea bargains
complained. Accordingly, it seems likely
that these plea agreements never would
have been the subject of disciplinary
proceedings but for the investigation of
Howe’s other (egregious) ethical
violations. Second, the Iowa Supreme
Court equates “amending” charges with
“instituting” charges. Third, the rule in
question is intended to be a restraint on
the improper use of governmental power
by prosecutors against defendants; it is
not intended to be a restraint on the
exercise of prosecutorial discretion in the
context of plea bargaining.
Plea bargaining in some central Ohio
courts has changed in the wake of the
Howe decision. For example, if a college
student with no criminal record is charged
with possessing drug paraphernalia, a
guilty plea to that charge results in a
driver’s license suspension and a loss of
federal student financial aid. Before the
reaction to the Howe case, the charge
could have been amended to a non-drug-
related offense. A plea to the amended
charge would avoid a license suspension
and loss of financial aid but would carry
a sentence otherwise identical to the
sentence for the paraphernalia charge.
Now, however, some central Ohio
prosecutors’ offices are unwilling to offer
such an agreement due to the Howe
decision.
In my opinion, the reality of crowded
dockets requires plea bargaining, and
seeking justice requires prosecutorial
discretion. The impact of the Howe
decision is an impairment to the exercise
of prosecutorial discretion and an
impediment to the efficient administration
of justice.
1. Iowa Supreme Court Attorney
Disciplinary Board v. Bradley Howe
(2005), 706 N.W.2d 360.
2. Both Iowa and Ohio have changed from
the Code of Professional Responsibility
to the Rules of Professional Conduct.
Iowa’s new rules became effective July 1,
2005, and Ohio’s new rules became
effective February 1, 2007.
s.dominy@att.net
Shawn R. Dominy

On the virtues of written
conflict of interest waivers
By Alvin E. Mathews Jr.
T
he Proponent of the Written
Conflict of Interest Waiver
E.A. Farnsworth is a prominent lawyer in
Capital, Ohio, known for the ironclad
agreements he drafts for his clients. With his
precision, no stone is left unturned. Also a
member of the Capital Bar Association
(CBA), Farnsworth serves on the local
professional ethics committee, handling
investigation of grievances that allege
lawyer misconduct, such as conflicts of
interest. Earlier in his ethics committee
service, he became frustrated with lawyers
who had failed to confirm significant client
communications in writing, leading to client
grievances against them. When the state’s
Supreme Court decided to adopt its version
of the American Bar Association Model
Rules of Professional Conduct, Farnsworth
immediately recommended to the Supreme
Court’s Rules Commission that it include
mandatory written conflict of interest
waivers in the new court rules.
Farnsworth’s service on the CBA
Professional Ethics Committee opened his
eyes to the problems caused by verbal
conflict of interest waivers. Too many
consumers of legal services, Farnsworth
realized, have difficulty understanding why
their lawyer or law firm has a conflict of
interest and how the material limitation
posed by the conflict will actually impact
the representation. Thus, Farnsworth
strongly believes that, like verbal
commercial agreements between business
entities, oral conflict of interest waivers
leave a great deal of room for
misunderstanding and dispute between the
parties, especially when the client-lawyer
relationship is strained by a bad outcome in
the transaction or litigation on which the
legal representation is based.
Pleased that the Supreme Court adopted
mandatory written conflicts of interest
waivers, Farnsworth knows that careful
lawyers who have used them in the past will
continue to use them and will enhance their
clarity to ensure that their clients are always
fully informed. He remains concerned,
however, that many lawyers will not abide
by the rule. To remind local lawyers of this
requirement to provide a written
confirmation of the informed consent to the
conflict of interest, Farnsworth decided to
write an article in the local bar association
journal.
Waivable or Non-Waivable Conflicts
Permitting clients to waive conflicts of
interest on the part of their lawyers is an
alternative to routine lawyer disqualification
from representing a client on a matter that
has been recognized for a century.1 State
lawyer conduct regulations prohibit a
conflict of interest waiver that would
propose a lawyer taking adverse positions
against two of his or her firm’s clients in the
same matter. Such regulations normally
permit, however, waivers of other conflicts
of interest such as those in which a lawyer
opposes his or her own client in a matter
where that client is represented by a
different law firm.2 Similarly, lawyers may
obtain conflicts of interest waivers on those
matters in which a lawyer’s personal
interests, or his or her responsibilities to
another client, might adversely affect the
representation.3
Under Ohio Rule of Professional
Conduct 1.7, a lawyer can seek permission
from the client to undertake the
representation if (1) the lawyer or law firm
can provide competent and diligent
representation of the affected client, (2) the
client gives informed consent confirmed in
writing, and (3) the conflict is otherwise
waivable.4 Additionally, a conflict of interest
involving a lawyer’s former client, which
arises only if the new matter is the same as
or substantially related to the earlier one,
also may be waived.5
Ohio’s Standard for Sufficiency of
Waivers: Informed Consent
Confirmed in Writing
A waiver of a conflict of interest is
sufficient if there has been proper disclosure
of the existence and nature of the possible
conflict and the possible consequences of
the representation.6 This proper disclosure
of the conflict is referred to as informed
consent, which “denotes the agreement by a
person to a proposed course of conduct
after the lawyer has communicated
Written Law
adequate information and explanation
about the material risks of and reasonably
available alternatives to the proposed course
of conduct.”7 In other words, the client’s
informed consent must follow the lawyer’s
imparting of information reasonably
sufficient to permit the client to appreciate
the significance of the conflict of interest.
This includes a clear explanation of the
differing interests involved and the
advantages of, in some cases, seeking
independent legal advice. It also includes a
detailed explanation of the risks and
disadvantages entailed in the conflict of
interest waiver.
The client’s waiver of the conflict of
interest must be confirmed in writing, which
in this context denotes “informed consent
that is given in writing by the person or a
writing that a lawyer promptly transmits to
the person confirming an oral informed
consent.”8
Finally, “writing” means “a tangible or
electronic record of a communication or
representation, including handwriting,
typewriting, printing, Photostatting,
photography, audio or video recording and
e-mail***”9
In sum, lawyer ethics rules require that a
client who is asked to waive an actual or
potential conflict have an adequate
appreciation of what protection the client is
giving up by permitting the lawyer or law
firm to proceed with representing the client
despite the existence of a conflict. Even
more explanation of the conflict of interest
and its ramifications may be required where
the client is unsophisticated.
1. See American Bar Association, Opinions
on Professional Ethics 22 (1967) (text of
Canon 6 of the Canons of Ethics,
adopted in 1908)
2. Ohio Prof. Conduct R. 1.7(b)
3. Id.
4. Id.
5. Ohio Prof. Conduct R. 1.9
6. Ohio Prof. Conduct R. 1.7(b) (1)
7. Ohio Prof. Conduct R. 1.0(f)
8. Ohio Prof. Conduct R. 1.0(b)
9. Ohio Prof. Conduct R. 1.0 (p)
amathews@bricker.com
Alvin E. Mathews Jr.,
Bricker & Eckler
Summer 2007 Columbus Bar Lawyers Quarterly 13
 Written Law
Re-Thinking
THE APPROACH TO WRITING AN OFFICE MEMO
By Chris McNeil
O
ne of the first things we learn
in any writing class is to pay
attention to our readers. It’s
important to think: who am I
writing for? How can I write so that I’m
likely to be understood? Is there an
approach that is easy to follow and likely
to inspire confidence in what I’m saying?
If we assume our reader is smart and
attentive, can we write in a way that
catches the eye and leaves a positive
impression while still getting our points
across?
If you’re reading this article, chances
are pretty good that you’re either legally
trained or very familiar with the writing
of those who are legally trained. Legal
training, being as word-intensive as it is,
should carry with it a pretty good
appreciation for the need to write for the
benefit of our r eaders. Truth of the
matter is, however, that after three or
four years of law school, an awful lot of
us graduate with a real handicap when it
comes to writing: we’re JD-impaired,
habituated to writing using IRAC, our
minds muddled by having spent hundreds
o f h ours o f re ading poorly written
decisions. The result of all that training
sometimes is that we abandon all hope of
reaching our reader — we cram into our
analyses enough qualifiers and caveats to
float or sink a ship, let the reader be
damned.
The villain here: IRAC. There may have
been a time when the way to reach your
reader was to state an Issue, declare the
existence of a Rule, offer an Analysis, and
wrap up with a Conclusion. That time
ended, however, when you left law school.
The artificial constraints of issues based
on statements that start with “Whether . . .”
vanish when you’re no longer writing for
a law professor. Presenting the law using
IRAC makes no sense in the real world —
it might help law professors tally points
for issue-spotting exam takers, but it’s
clunky, hard to follow, and has no socially
redeeming value.
The solution: prove your legal analysis
14 Summer 2007 Columbus Bar Lawyers Quarterly
reader’s needs, you can use this time to
shore up your analysis by offering an
explanation of why the rule is what it is,
with discussions of policy consideration.
This four-part approach lends itself
particularly to the office memo. Consider
the purpose of the memo, suggested by
Bryan A. Garner in the Redbook: A
Manual on Legal Style: the purpose of the
office memo is to provide a dispassionate,
unbiased assessment of a legal problem.
It’s a practical, not a theoretical, review of
the law as applied to a set of facts. 2 It
should stand the test of time, so it should
in a way that recognizes your readers’
acumen and respects their familiarity with have enough proof of the law, through
citations to appropriate authority, to
the subject (or the lack thereof). Students
these days (at least those at Capital enable your successors to track your logic
and evaluate the continuing validity of the
University Law School, where I teach
legal reasoning, writing, and research) are analysis, though the law may change over
time. It should contain clear and
cautioned that IRAC is of but limited
utility, and that once you enter the real unwavering answers — no waffling
allowed. Some great examples are in the
world you need a new approach to
explaining the law. The alternative? Redbook (a book that should be on every
new lawyer’s bookshelf).
Consider this approach, suggested by
Richard Neumann:1 So let’s hear it for IRAC — may it rest
in peace, confined to law school exams,
(1) State your conclusion — don’t make
your readers wait to see how the story never again to be invoked in real life. And
in its place, remember the needs of your
comes out. They need to understand your
conclusion if they’re going to appreciate readers. We’re all translators, of a sort;
and we’re all teachers of the law. We
the authorities you’re citing. Keep it short
and put it in your own words, but provide know how complicated the legal world
can be, and how intimidating our writing
the answer to the question at hand.
(2) State the primary rule that supports can be to our clients. As effective writers,
we should strive for clarity in our written
your conclusion. Right quick — right
presentations. The same is true when
after you’ve stated the answer, provide a
we’re writing for our partners,
clear, across-the-board rule, and show
supervising attorneys, and peers.
where that rule came from by a proper
Neumann’s approach to proving the law
citation to the authority. Do this by
works because it makes us responsible to
crafting your own sentence stating the
meet the needs of our readers.
primary rule, but insert into that sentence
the key words or phrases from the
authority, showing that you’ve got the
goods, straight from the horse’s mouth.
1. Richard K. Neumann, Jr., “A Paradigm
(3) Prove and explain the rule — but
don’t apply it to your facts yet. Do this by for Organizing Proof of a Conclusion
showing how the rule has been applied in of Law,” in Legal Reasoning and Legal
your jurisdiction, in other jurisdictions, 2. Writing, Fifth Ed. (Aspen 2005).
and in reviews by secondary sources like Bryan A. Garner, The Redbook: A
law reviews and treatises. Use this time to Manual on Legal Style, Second Ed.
show your reader that your vision of the (Thomson West 2006)
rule has been applied elsewhere, that
you’re not just making it up. Here, you
can take into account your reader’s sense
and sensibilities . . . you can offer more © 2007 Chris McNeil
proof depending on how skeptical you cmcneil@iwaynet.net
think your reader will be regarding this
point of law. You can also show how
countervailing theories have fared (for
example, how dissenting views rise and
fall). In this way, you fully vet the gray
areas of the law, before applying the rule Chris McNeil,
to your set of facts. Professor of Legal Writing,
(4) Apply the rule to the facts of your Capital University
own case. Again, being sensitive to the Law School

POINTS TO REMEMBER ABOUT
Making A Will
By Ruth Freed
M
any people decide at a
certain point in their lives
that the time has come for
them to make a will. Today
young couples with minor children are
aware that appointing a guardian in the
event of their demise or accident can be
accomplished by including this selection in
their wills. The baby boomers who are
turning sixty realize it is time to start
future planning of their estates. Seniors
face to face with their mortality decide it is
time to put their affairs in order.
They then take the next step and make
an appointment to see a lawyer. Rarely is
there a sense of urgency with the
exceptional case when a person discovers
he has an illness that may be terminal.
Once the will has been executed the
testator has placed the will in his safe
deposit box or another type of repository.
Hopefully he has followed his lawyer’s
instructions and made a complete list of
his assets to attach to the will, and he has
notified his executor where he has placed
it for safekeeping. He can now breathe a
sigh of relief. It’s done. Nobody likes to
think about death, but he has faced his
fiscal, personal responsibilities and he can
forget about it.
But can he really? When he dies there
may be pitfalls that he never suspected.
The following is an example of an actual
case, that illustrates the kind of problems
that may arise.
Two monogamous gay men, Jerry and
Barry, had lived together for almost 50
years. They were devoted to each other
and both realized the necessity of making
wills so that upon their demise each could
leave his assets to the other.
They, therefore, obtained the services of
a lawyer and had him draft reciprocal
wills. (If one died the estate would go to
the other.) And each one had a contingent
beneficiary. In 2004 Jerry died. According
to Jerry’s will, all his assets passed to
Barry. Barry was appointed Jerry’s
executor.
The estate consisted of the residence,
CD’s, US Savings Bonds, and bank
accounts.
It took almost a year to administer the
estate because Barry was not in good
health and it was difficult for him to
perform his duties as executor. During this
year the lawyer advised Barry repeatedly
to make a new will. He had no spouse, no
children, and no living siblings. He had
ten nieces and nephews.
Finally, on the day the final account was
signed and filed Barry decided he would
make a new will. He discussed with his
lawyer the possibility of leaving a greater
portion to the children of his favorite
sibling, now deceased. He made an
appointment to come in on the following
Monday morning.
On Saturday, two days before his
appointment, Barry passed away. The
contingent beneficiary in Barry’s will was
his sister Ruth who was the favorite of his
siblings. And it was to her children he
wanted to leave the bulk of his estate.
When Jerry’s estate was added to Barry’s
estate, it amounted to approximately
$750,000.
Unfortunately, Barry’s sister Ruth had
died two years before Jerry, so her bequest
had lapsed. Had she died after Jerry her
children would have inherited her share.
As a result, the estate was divided
equally between the ten nieces and
nephews. Many of them had not seen
Barry in many years.
Since Barry had lived with Jerry in an
Written Law
openly gay relationship, several of the
nieces and nephews disapproved of him
and had virtually cut him off.
Nevertheless, each niece and nephew
received an equal tenth share of $750,000
after taxes and expenses. And Barry’s wish
to benefit his favorite sister’s children was
vitiated because of the lapse of the
deceased sister’s bequest.
Moral? The obvious one is that a
person should never put off making a will
because even a day can make a huge
difference.
Equally important, but very often
ignored, a will must be examined regularly
and if necessary, revised. Especially when
there has been a life altering event such as
death, marriage, birth, or divorce.
You can’t make the will and then put it
away and forget about it because one of
these events could totally change the
disposition of the assets in the estate.
Barry missed two opportunities to have
his wishes carried out. Lawyers who
prepare wills need to discuss and point out
the consequences if these caveats are
ignored.
attorneyfreed@aol.com
Ruth Freed
Summer 2007 Columbus Bar Lawyers Quarterly 15
 Immigration
HIGH TECH
Workers
More or Less — Here or There?
By Noure Alo
I
mmigration reform has been a hot
topic for the last few years. President
Bush has brought this issue to the
forefront and several proposals have
struggled to make it through the partisan-
dominated floors of the U.S. Congress.
While media coverage has focused on the
imp act reform will have on illegal
immigrants, one increasingly difficult
issue is now gaining its own share of
attention: the limited availability of visas
for the high-tech worker.
High-tech workers have traditionally
entered the U.S. employment market
through the “H-1B” visa. Essentially, the
H-1B is a temporary visa that allows a
foreign worker with the equivalent of a
U.S. Bachelor’s degree to work in the
United States in certain industries —
primarily technology or science-related
fields — for six years (with the possibility
of short extensions). The United States
Citizenship and Immigration Services can
only accept 65,000 such visa petitions
until the annual cap is reached.
While it wasn’t headline news, it
certainly created a stir in technology and
science-related circles when the H-1B visa
cap was reached on the very first day
applications were accepted. How much of
a stir? One of the most outspoken
opponents of capping the number of H-
1B visas is none other than Microsoft
chairman Bill Gates, who has spoken
before Congress about the issue and
always has a lot to say about the limited
amount of high-tech worker visas. One of
his biggest contentions is that there
shouldn’t be a cap at all. “The whole idea
of the H-1B thing is don’t let too many
smart people come into the country.
Basically, it doesn’t make sense,” says
Gates.
Taking a step back, it’s important to
look at the raw data: The USCIS began
16 Summer 2007 Columbus Bar Lawyers Quarterly
accepting applications on April 2, 2007
for the 65,000 available H-1B visas (there
are also 20,000 additional visas for
individuals with U.S. master’s degrees).
On that very day, 133,000 applications
were received. This means that at least
48,000 highly skilled workers will be
denied visas without any review of their
applications. Likely among those denied
will be applicants with computer science
degrees from Ivy League universities and
highly-accomplished professionals who
have made significant contributions in
their fields.
Which begs the question: Isn’t it in the
best interest of the U.S. economy to
retain t h e sk i l l e d w o rk e rs w h o a re
educated here? Do we not want to attract
the best and brightest skilled workers
from around the world? As it stands,
curre n t re g u l a t i o n s d o n ’t se e m
compatible with these intentions. Many
argue that until Congress increases the H-
1B visa cap, the U.S. is severely limiting
its potential for economic growth and
dimin i sh i n g i t s a b i l i t y t o re m a i n
competitive in the global market.
Advocates of increasing the number of
H-1B visas have pointed out that the
current cap of 65,000 is arbitrary and has
little correlation to industry demand.
Compete America, a Washington DC-
based l o b b y i n g g ro u p t h a t i n c l u d e s
corporations such as Microsoft, Intel,
and Hewlett-Packard, says that the need
for more H-1B visas is urgent because
companies can’t meet their demand for
skilled labor under the current cap. They
maint a i n t h a t t h i s y e a r’s H - 1 B v i sa
shortage will only result in the increased
off-shoring of science and technology-
related jobs to foreign markets. Gates has
even gone so far as to call the H-1B visa
shortage a “crisis,” sparking speculation
that the current H-1B policy might be
causing the U.S. to become the victim of
a se l f - i n d u c e d “ b ra i n d r a in ” wit h
potentially damaging long-term effects.
The U.S. is making it “infinitely more
difficult to maintain its technological
leadership if it shuts out the very people
who are most able to help us [the U.S.]
compete,” according to Gates.
Many U.S. university officials share
Gates’ viewpoint. They insist that an
increase in the H-1B cap will attract a
higher caliber of international students,
who will be able to remain in the U.S. if
the path to permanent residency is also
streamlined. As it stands now, graduating
international students are only permitted
to work in the U.S. for one year after
graduation and must leave the U.S. if
t h e y a re u n a b l e t o o b t a in a n
employment-based visa during that short
window of time. American universities
invest substantial resources in their
foreign students with the expectation that
these graduates will at least have the
opportunity to contribute their skills to
the U.S. economy. The current H-1B cap
effectively results in U.S. universities
becoming training grounds for foreign
skilled workers to take their knowledge
to foreign markets, because opportunities
f o r re m a i n i n g i n t h e U .S . o n a n
employment-based visa are severely
limited.
Despite its high-profile advocates, H-
1 B c a p e x p a n s i o n f a c e s w i d e s p re a d
opposition. In fact, some would like to
see the H-1B visa abolished altogether.
Opponents claim that tech employers
like Microsoft and Intel support H-1B
expansion because the visa allows them
to hire foreign skilled workers who are
willing to work for much lower rates
than American citizens and Permanent
Residents, thereby keeping salaries for
computer scientists and engineers
a r t i f i c i a l l y l o w. H o w e v e r, H - 1 B
advocates point out that all H-1B
applications must include a Labor
Condition Application, in which the
employer attests that the employee will
be paid the prevailing wage for the
position. Prevailing wages are
determined by the U.S. Department of
Labor, and should employers refuse to
comply with the LCA, they face heavy
penalties. Such regulations, if enforced
properly, should ensure that U.S. citizens
and permanent residents aren’t being
unfairly overlooked by employers in
favor of “cheap foreign labor.”
Others make the claim that foreign
skilled workers should not even have the
opportunity to take jobs from American
workers. However, when the alternative
 Immigration

is off-shoring, isn’t it preferable to keep

F
jobs on American soil, even if some of
those jobs are being filled by foreign
skilled workers? Many in the science
and technology sectors maintain that
foreign skilled workers don’t take jobs
or timely, accurate legal news
from U.S. permanent residents and
citizens, but, rather, create them. A
every business day...
Duke University study revealed that,
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immigrants. In 2006 alone, U.S.-based
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Innovations taking place on U.S. soil
help the American economy to stay
competitive in the global market.
M o r e o v e r, s c i e n c e a n d t e c h n o l o g y Westlaw Practitioner:
industries have relatively low
unemployment rates, weakening the
gateway to research
argument that H-1B visa workers are tools for your specialty,
taking jobs from U.S. permanent
residents and citizens. your jurisdiction.
Legislators are making efforts to
revise the current cap in light of the
crisis. Representatives Luis V. Guttierez
(D-Ill) and Jeff Flake (R-AZ) have
drafted the Security Through
Regularized Immigration and a Vibrant
Economy (STRIVE) Act, a bill that calls
for increasing the cap on H-1B visas to
115,000, which can be further
increased up to 180,000, as needed.
The legislation would also exempt
certain individuals who have earned
advanced degrees in science,
technology, engineering, or math from
the U.S.
While this may not be the perfect
solution, it is clear that one is needed.
We cannot afford to continue to fall
behind countries such as India and
China due to arbitrary restrictions and
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Summer 2007 Columbus Bar Lawyers Quarterly 17

 Immigration
When the attorney’s
client is removable
By Mark M. Nesbit
A
Mexican man married to a U.S.
citizen for twelve years with three
U.S. citizen children…an Eritrean
woman brought to this country
to work as a domestic servant for a foreign
diplomat…a Sudanese medical student who
drops out of school to earn money to pay
for his education…a Vietnamese
businessman and Legal Permanent resident
with a 27-year-old criminal conviction…a
Guinean politician forced to flee his home
country or face certain death. These clients
come from all over the world and from
very different social, educational and
economic backgrounds. However, they all
share one thing in common: the
government wants to deport or remove
them from the United States.
Deportation or Removal
Deportation or “removal” occurs when
the federal government formally removes
an alien from the United States for
violating any one of a number of
immigration and/or criminal laws. Once
deported, a foreign national may be
barred from ever returning to the United
States, even for a visit. This bar may be
enforced even if the alien has family
members in the United States, including a
United States citizen spouse and children.
Deportation or Removal after
Entering the United States
Any alien in the United States may be
subject to deportation or removal for any
one of the following reasons. He or she
has violated nonimmigrant status or a
condition of entry into the U.S.; violated
an immigratio n law at or prior to
entering the United States; had his or her
legal permanent residency or “green
card” terminated; helped another alien in
entering the United States illegally;
attempted to gain a green card through a
fraudulent marriage; committed certain
crimin al o ffenses, including some
misdemeanors; used false documents
when entering the United States; is a risk
to the security of the United States; voted
in an election while not a United States
citizen.
18 Summer 2007 Columbus Bar Lawyers Quarterly
Immigration Court Process
Once the government has established
grounds and has decided to deport or
remove the alien, the government will
issue a Notice to Appear. An NTA is then
served on the alien and also filed with the
Immigration Court. The NTA provides
general information about the alien and
outlines the government’s reasons for
seeking to deport or remove that alien
from the United States. The Notice to
Appear usually provides a date and time
for an immigration court hearing at which
the alien must appear. In Ohio, there are
two immigration courts, one in Cleveland
and one in Cincinnati.
If the alien fails to appear at the hearing,
he or she can be deported in absentia and
the immigration judge will issue a final
order of deportation. At that first hearing,
which is called a Master Hearing, the
immigration judge will ask if the alien is
ready to proceed with the case, or if he or
she needs more time to acquire an attorney.
If the alien needs more time to acquire an
attorney, a second master hearing will be
scheduled for a later date. Aliens in
immigration court do not have the right to a
lawyer at the government’s expense; they
must hire a private lawyer. Eventually, with
or without a lawyer, the alien will have to
respond to the charges in the NTA and
provide an explanation of any reasons or
relief under the law that he or she should be
permitted to remain in the country. If the
alien does not have any legal relief, the
immigration judge will order him or her
deported.
If the alien does have some form of legal
relief, then the immigration judge will
schedule an individual hearing at which
the alien will have the opportunity to
present his or her case. At the end of the
individual hearing, the immigration judge
will present an oral decision in the matter
or he or she may release a written decision
at a later date.
Forms of Relief from Removal
There are many forms of relief from
deportation or removal. The most
common forms are as follows:
Voluntary Departure: This is the most
common form of relief from removal and
may be granted by the immigration judge.
Under voluntary departure, an alien is
allowed to leave the United States at his or
her own personal expense and return to
his or her home country, or a third
country if the individual can secure an
entry to a that country. Those who are
granted voluntary departure but fail to
leave are barred from pursuing any other
form of relief for ten years.
Asylum: This requires that the alien
applicant demonstrate an inability to return
to his or her home country because of past
persecution and/or a well-founded fear of
future persecution based on his or her race,
religion, nationality, membership in a
particular social group, or political opinion.
Adjustment of Status: Some aliens may
qualify for visas following an adjustment
of status based on a petition filed by a
spouse, another family member or an
employer. However, status adjustments of
this kind typically require that the alien
has entered the United States with a valid
visa.
Cancellation of Removal: This form of
relief is available to certain lawful
permanent residents and qualifying non-
permanent residents. However,
cancellation of removal requires specific
continuous presence in the United States
for long periods of time.
If the alien does not have any form of
qualifying relief available, the immigration
judge will order the alien deported. The
alien then has 30 days from the date of the
judge’s decision to appeal that decision to
the Board of Immigration Appeals (BIA),
based in Falls Church, Virginia. If the BIA
decides against the alien, the alien still has
the option of appealing to the appropriate
U.S. Court of Appeals. The USCIS has the
opportunity to appeal an unfavorable
individual hearing decision, but may not
appeal an unfavorable decision by the
BIA. An Appellate Court decision can be
appealed to the U.S. Supreme Court by
either the alien or the immigration service.
Mark@nesbitlawfirm.com
Mark M. Nesbit,
The Nesbit Firm

Street Cred
LINCOLN MISSED THE POINT
By Bruce Campbell
I
f you are an aardvark with an
address, you get a steady flow of
catalogues for snout salves. If you
are a person with an “Esq.” dangling
off the end of your moniker, you get slick
broadsides for useless attorney dreck.
The lawyer loot on offer in these flyers
inevitably includes a superfluity of Lady
Justice figurines in every permutation
(glass/brass/recycled ALR 3rd pulp; scales
balanced or suggestively tilted; eyes fully
blindfolded or peeking; breasts covered or
on full display). After ten pages of Lex
Ladies and ten more of eagle icons and
golf-related impedimenta, you get down
to the seriously tacky stuff (e.g. boxer
shorts with “Trust me, I’m a Lawyer”
emblazoned on the fly).
But the single item in these catalogues
that keeps UPS in business is the plaque
with Abe’s bromide, “A lawyer’s time and
advice is his stock in trade.” So
ubiquitous are these office fixtures, for
years I believed that the Supreme Court
handed them out with admission
certificates and that I alone had been
singled out not to receive one.
Leave aside for a moment the fact that
the Rail Splitter got his verb form wrong;
he more than made up for this syntactical
faux pas with gems like “mystic chords of
memory” and “better angels of our
nature.” Ignore the blatantly self-serving
subtext: “Pay your fee even if it doesn’t
look like I am doing anything.” Forget
about the author’s mild hypocrisy, given
that he was apparently willing to trade his
“stock in trade” for turnips and pig’s
knuckles (after all, this was befor e
minimum fee schedules). And give up
According to urbandictionary.com, “street cred” (in its altruistic sense)
is “commanding a level of respect in an urban environment due to
experience in or knowledge of issues affecting those environments.”
trying to reconcile this quote with another
Lincolnism rarely given prominence on
law office walls, “Discourage litigation.
Persuade your neighbors to compromise
whenever you can. Point out to them how
the nominal winner is often a real loser —
in fees, expenses, and waste of time.”
So, what’s wrong with POTUS #16’s
“time and advice” maxim? Simply this: he
omitted the third leg of the stool upon
which a lawyer’s value rests — “street
cred.” Particularly strange is this
oversight, given that Lincoln knew it
when he saw it, and the people saw it in
him (John Wilkes Booth
notwithstanding).
For the, like, woefully out-of-touch
who, like, don’t have a teenager with a
pierced eyeball, like, close at hand to,
like, interpret contemporary argot, “cred”
is — duh — “credibility.” According to
urbandictionary.com, “street cred” (in its
altruistic sense) is “commanding a level of
respect in an urban environment due to
experience in or knowledge of issues
affecting those environments.”
Of the trinity, time, smarts and cred,
the latter is the hardest to seize and the
easiest to fumble. It is accreted in small
particles over a career but can break off
in huge chunks and float downstream in a
Short North second. It is largely
intangible and often depends on forces
beyond the individual’s power. “Convey a
libel in a frown, and wink a reputation
down,” noted Jonathan Swift.
In the legal world, cred, like Lady
Justice, comes in myriad manifestations.
The Broad and Fourth bunch (read
Columbus Club/Athletic Club) have
certain standards by which it is gauged,
Interiors
while the Main and Front crowd (read
Franklin County’s Villain Villa) have quite
another set of criteria. In the end,
however, it all comes to the same thing.
Whom can you trust?
By gaining the sincere confidence of the
players in a chosen legal field — be they
clerks, cops, secretaries, bureaucrats,
witnesses, experts, opposing counsel,
judges, juries or janitors — by
consistency, consideration, fidelity, and
follow-through, a lawyer develops street
cred. These qualities, nurtured over a
professional lifetime, define that lawyer as
a “Stand Up Person.” The deserving
holder of this repute can achieve for any
client more than the craftiest theorist or
the most operatic pettifogger. A ten-
minute phone call by an advocate
possessing street cred may be worth
infinitely more than a ten-gigabyte load of
legal research or ten vitriolic threats.
That there is any need to articulate this
truism is disconcerting, but there are all
too many among us who have utterly
failed to grasp this perfectly intuitive
concept. Sadly, many never will, and it is
these folks who do so much to make the
practice of law less and less satisfying.
Abe’s cred, as much as anything, is why
history’s jury has come back with such a
favorable verdict in his case. On the dusty
streets of Springfield and later along
Pennsylvania Avenue, the man had it in
superabundance. Given that, I suppose I’ll
have to forgive him for all those
hackneyed plaques his “time and advice”
quote later engendered.
bruce@cbalaw.org
Bruce Campbell,
Columbus Bar Counsel
Summer 2007 Columbus Bar Lawyers Quarterly 19
 Interiors
WHAT I LEARNED IN IRAQ . . .
About being a lawyer
The value of a Marine’s self-discipline
By Jeff Mussman
A
ll attorneys have at least some
self-discipline. It’s how we met
the deadlines and high standards
of law school and how we meet
our current professional obligations. A
Marine’s self-discipline is different. It’s
knowing what you should do, and doing it.
It promotes success, efficiency, and
balance. It’s the subject of this article.
Self-discipline leads to flexibility,
which makes success possible.
Procrastination comes from lack of self-
discipline. It’s knowing that something
should be done in advance, but doing it
only when it must be done. Procrastination
destroys flexibility. Self-discipline gives you
the flexibility to (1) capitalize on
opportunities and (2) overcome problems.
Opportunities are anything but
predictable. The night before a deadline,
an attorney with self-discipline can take
advantage of a surprise opportunity. A
procrastinating attorney can’t because his
schedule is dictated by deadlines. Last-
minute invitations to events or requests to
help with high-profile emergencies at work
are opportunities procrastinators miss.
When failure is not an option, and you
can’t count on luck, procrastination can be
disastrous. Unforeseen problems are the
procrastinator’s Achilles’ heel. These
ready-made excuses, such as a minor
problem with technology, or an assistant’s
sudden illness, create delays that can lead
to failure when there is no time to adapt
and overcome.
How does the Marine Corps get rid of
procrastination? Simple. With every final
deadline comes a series of smaller
deadlines. Working backward from the
time a convoy is scheduled to leave base,
commanders schedule benchmarks that
must be accomplished at various times
during the prior 24 to 48 hours. In turn,
enlisted leaders assign tasks that will
ensure those deadlines are met, and the
individual Marines get it done. A huge
operation becomes a series of simple tasks,
20 Summer 2007 Columbus Bar Lawyers Quarterly
and the unforeseen (and inevitable)
problems are handled as they occur and
never become excuses for failure. Then, if a
tactical opportunity presents itself before
the scheduled time, the Marines are able to
take advantage of it.
Self-discipline means focus,
which leads to efficiency.
Which is harder — remembering what a
client said on the phone while you were
proofreading an unrelated document, or
reviewing notes that you took during the
phone call to get the information?
In the Marine Corps, there is an old
saying, and it is one of my favorites: “if
something’s worth being guarded by a
Marine, it’s worth being guarded by a
Marine with a rifle.” The message is clear.
If something is worth doing at all, it is
worth doing right. The Marine is either
dismissed or is given a rifle. There is no
better collection of riflemen than the
Marines.
As attorneys, we have our own rifles, if
we choose to carry them: undivided
attention is the attorney’s rifle. As a group,
attorneys are unmatched when it comes to
the value and potential benefit of our
thoughts and attention. It is why we are
paid. We learn our client’s goals and turn
our undivided attention to thinking of, and
carrying out, ways to accomplish them. We
focus.
As an attorney, I have had the
opportunity to try to “multitask.” I avoid
it as much as possible. If it is worth the
client paying me, it is worth my undivided
attention. If it is not, then I should
probably find someone else to do it.
Focus means that you will spend less of
your client’s money finding better ways
to accomplish their goals. You will get
things done right the first time, with
fewer mistakes, and spend less time
reviewing your own work. You will
recognize what tasks do not require an
attorney and make better use of support
staff. You will not forget the great ideas
that come in a flash, and race from your
consciousness just as quickly. You will
accomplish more with less effort. You
will be more efficient.
Self-discipline permits true rest,
which leads to balance.
As an attorney, I get paid for the time I
spend on client matters. As an attorney at a
large firm, I am expected to spend a lot of
time on client matters. I have some
discretion as a professional exactly how
and when I spend that time. In the Marines,
the mission is paramount. At every level,
from the bottom up, Marines also have
discretion as to exactly how they perform
their part. Every Marine is essential to the
overall mission, and every Marine must
perform. When a Marine’s job is done, he
helps the Marines around him, and when
everyone is done, they all rest.
Some of the most memorable parts of
my time in combat zones are the periods of
rest. They are also among the most
important. I don’t think I’ll ever forget the
evenings at a picnic table in Iraq with other
Marines when we talked about everything
but the war.
The reason we could truly enjoy sitting
at that picnic table was self-discipline. It
was our duty to rest. We knew we’d done
all we could that day and had to be ready
to do it again the next. We hadn’t wasted
time doing things poorly and didn’t
procrastinate. We enjoyed each other’s
company with a clean conscience. Every
night we had to clean our rifles before
morning, but nobody cleaned his rifle at
the table. That would have broken the
unspoken rule: you don’t bring your work
to the picnic. Instead, everybody had the
self-discipline to do it beforehand, or could
trust themselves to get it done before going
to sleep.
As an attorney, self-discipline allows you
to make the most of time away from work.
When you trust yourself, you can go home
with a clear conscience and without
worrying about upcoming deadlines. You
know you will focus on your work again
starting in the morning.
jmussman@ssd.com
Jeff Mussman,
Squire Sanders &
Dempsey

A Bipartisan Way
TO SETTLE A DISPUTED
PRESIDENTIAL ELECTION IN OHIO?
By Edward B. “Ned” Foley
I
t migh t be advisable for Ohio’s
political leaders this year to create
some kind of bipartisan structure to
a v o id the (admittedly remote)
possibility of a dispute between the
Secretary of State and the state’s supreme
c o u r t concerning w hich slate of
presidential electors should be certified as
victorious. Last year, the state’s General
Assembly did adopt a new provision that
bars the state’s judiciary, including its
supreme court, from considering any
post-certification contest to the result of
a federal election, including a presidential
e l e c t i o n. (See Ohio Revised Code
§3515.08(A).) Notwithstanding that
p ro v i sion, however, it is not
inconceivable that, during the time after
Election Day when county boards of
election are canvassing their returns, the
Ohio Supreme Court would entertain a
petition for writ of mandamus, or writ of
prohibition, seeking a decree ordering the
Secretary of State to exclude from her
official certification certain disputed
ballots that the Secretary, based on her
authority as the state’s chief elections
o ff i c e r, h as deter mined should be
included.
In this situation, one might think that
the Secretary has no choice but to obey
the Ohio Supreme Court’s decree. But
what if the Ohio Supreme Court divided
4 - 3 o n th e issue, with dissenting
Republican justices accusing their fellow
Republicans in the majority of acting
politically rather than judicially — a
s i t u a t ion that might embolden the
Secretary of State to exercise independent
judgment regarding her responsibilities to
the integrity of the electoral process in
O h i o ? Or, to p ut t he point mor e
f o rc e f u lly, what if the state’s new
Attorney General, who like the new
Secretary of State is also a Democrat,
renders an opinion that the state supreme
court is without jurisdiction in the matter
and thus its decree is void and not to be
f o l l o wed? Or suppose there is a
Interiors
low-risk they might be, then amending
Ohio law to establish a bipartisan dispute
resolution mechanism for presidential
elections deserves some consideration this
year. The amendment would make clear
that all disputes concerning the counting
of ballots for the state’s presidential
electors, after those ballots have been
c a st o n E l e c t i o n D a y, b e l o n g t o t h e
e x c l u si v e j u ri sd i c t i o n o f t h e n e w
bipartisan body, and the state’s judiciary
m a y n o t e n t e rt a i n a n y c h a l le n g e s
(whatever the procedural form) to that
b o d y ’s c o n si d e ra t i o n o f a n y s u c h
disputes. Perhaps this body could be as
conflicting decision from the local federal
court in effect on the date when the si m p l e a s a t h re e - m e m b e r p a n e l,
Secretary of S t a t e m u st c e rt i f y t h e consisting of the state’s new Secretary of
presidential election, and (again, on the State (again, a Democrat), the state’s new
advice of the state’s Attorney General) Auditor (a Republican), and a third
she chooses to obey that judicial order individual mutually agreeable to those
rather than the contrary one from the t w o . O f c o u rse , i f t h i s b i p a r t is a n
state supre m e c o u rt ? ( T h a t j u d i c i a l structure were to last beyond the 2008
conflict might disappear before the need e l e c t i o n , t h e re w o u l d n e e d t o b e a
for the U.S. Supreme Court to intervene, different method of selecting a panelist
if the federal court of appeals overturns from the opposite political party of the
the federal district court’s order, but that S e c re t a ry o f S t a t e i f t h e A u d it o r
intervening appellate decision might not happened to be from the same party. But
if the political will exists to create such a
occur until after the Secretary of State
bipartisan structure, that detail easily
issues her certification of the election.)
could be addressed. And now, with the
Alternatively, even if the Secretary of
General Assembly controlled by one
State obeys the state supreme court,
party and the governorship controlled by
Ohio’s new Governor (who is also a
the other, would be the time for this
Democrat) may send to Congress the
political will, if ever it is to occur.
slate of electors that the Secretary of
Ohio could do Congress — and the
State would have certified had she not
nation — a favor if it were to develop a
been under legal compulsion from the
bipartisan structure to resolve disputes
state supreme court to do otherwise.
that conceivably might arise in 2008
(Federal law, 3. U.S.C. §6, entrusts in the
concerning the ballots cast for the state’s
“executive of each State” the duty of
presidential electors.
transmitting to “the Archivist of the
United States” the “final ascertainment”
of the electors appointed from that state.)
Or the Governor might choose to submit
This column originally appeared on
to Congress two competing slates of
t h e E l e c t i o n La w @ M o ri t z w e b s it e
electors in a c k n o w l e d g e m e n t o f t h e
(www.electionlaw.osu.edu).
balloting dispute that has occurred in the
state. Finally, even without such a formal
foley.33@osu.edu
submission from Ohio’s Governor, in
Congress on January 6, 2009, there may
be an objection to the state’s presidential
electors decreed by the state’s supreme
court, which would cause both Houses of
Congress to vote on what to do with the
state’s disputed election. (For additional
discussion of scenarios like these, see
John C. Fortier (ed.), After the People
Vote: A Guide to the Electoral College
(3rd ed. 2004), a helpful introductory
guide to what can occur when a dispute
arises over presidential ballots.)
If any of these possibilities are messy Edward B. “Ned” Foley,
and unseemly enough that they are worth Director, Election Law
preventing in advance, no matter how @ Moritz
Summer 2007 Columbus Bar Lawyers Quarterly 21
 Interiors
Honorable intentions,
good deeds of majority
NOT DILUTED BY FEW ‘BAD’ ATTORNEYS
WHO MAKE NEWS HEADLINES
By Belinda S. Barnes
W
e see and hear it everyday
— in TV shows, on radio
and in the print media —
stories about attorneys who
have not lived up to the ideals of their
profession.
We hear stories of how attorneys have
abused their clients’ or the public’s trust.
We recently have been bombarded with
stories about the prosecutor who
withheld exculpatory information from
the grand jury, defense counsel, and the
court in a criminal case in which the
Duke Lacrosse Players were accused of
raping a young woman. We viewed with
horror the shenanigans of the attorneys
and judge in the Anna Nicole Smith case.
With so much media coverage
highlighting attorneys’ wrongdoings, it is
no wonder many people have low
opinions of those of us who have chosen
law as our profession.
We seldom hear of the many attorneys
who n ot o nly provide outstanding
services to their clients, representing them
respectfully and compassionately and
keeping their best interests at heart, but
who also give of themselves in other
m eaningful ways, never seeking
recognition for the extraordinary things
they do to help make the world a better
place.
Take Jack Alton, one of the founding
members of Lane, Alton & Horst. Jack
has retired, but for many years, he was a
formidable trial attorney, skillfully and
zealously representing his clients.
Years ago, Jack began visiting
terminally ill attorneys, some of whom he
knew, some of whom he didn’t, sitting at
their bedside in their final days and
talking to them about their experiences as
lawyers, their families, whatever they
wished to talk about.
After their passing, Jack followed up,
sending sympathy cards to their loved
ones. In a quiet and unassuming way,
22 Summer 2007 Columbus Bar Lawyers Quarterly
to nothing. Jen says she did this as an
outreach, to help establish friendship
with people on another continent.
These are simply three stories about
t h re e d i f f e r e n t a t t o rn e y s wh o h a v e
honorably practiced different types of
law, and who have chosen in unselfish
ways to give back to others in their hour
of need, whether locally, nationally or
globally. These people acted without
fanfare and with no desire for public
acclaim, only a desire to do what they
felt was the right thing to do, and I hope
I have not embarrassed them by shining a
spotlight on their good deeds.
Also, by no means are these three
attorneys the only ones who unselfishly
Jack gave comfort to many people at the
give of themselves. I know attorneys who
end of life.
donate time, money and resources to
Craig Scott, an attorney with Volkema
worthy causes such as the American
Thomas, has spent his career representing
D i a b e t e s A sso c i a t i o n , H a b it a t f o r
perso n s w h o h a v e b e e n i n j u re d i n
H u m a n i t y, I n n e r C i t y Ga m e s , t h e
automobile accidents or as the result of
Humane Society, the American Heart
some other type of negligence.
Association, Charity Newsies ... the list
After the devastation that occurred in
could go on and on.
Southe rn Lo u i si a n a , A l a b a m a a n d
The Columbus Bar Association and
Mississippi as a result of Hurricane
Columbus Bar Foundation do their part
Katrina, Craig, his wife and their oldest
by sponsoring events such as the recent
daughter — along with 18 other kids and
R o c k a n d Bo w l w h i c h r a is e d o v e r
four other adults — spent their summer
$100,000 for the Center for Family and
vacation in Mississippi helping to rebuild
Child Advocacy, and the Columbus Bar
home s f o r p e o p l e w h o h a d l o st
Foundation Gala, which over the years
everything.
h a s ra i se d l a rg e su m s of m o n e y f o r
He could have taken his family to a
various causes.
resort or on a cruise, but Craig and his
I have always believed my profession
family gave their precious time and
is a noble calling, and the attorneys I
energy to help people on the other side of
have written about in this article clearly
the country.
justify this belief. So, when I hear
If you talk to Craig, he will tell you
someone “bash” attorneys, or see media
that the most hot, sweaty, uncomfortable
coverage regarding an attorney who has
week of his life was the week he spent in
behaved less than reputably, I reflect on
Mississippi last summer, but it was also
the fact that many, if not most, attorneys
one of the best experiences he has ever
went into the practice of law because
had because he and his family gained so
they really wanted to help other people,
much more than they gave. Yet, their help
and have devoted their lives to that
was invaluable to the people who were
calling.
able to move back into their trailer from
the tent on their front lawn where they
had lived for the 11 months since the
storm, and to the man who had been
bbarnes@lah4law.com
living in a house without a roof for 11
months.
Jennifer Duvall is a former prosecutor
and Common Pleas Court staff attorney
who now works with Sanborn, Brandon,
Duvall and Bobbitt. The summer before
taking on the position of Judge David
Fais’ staff attorney, she went on a church
mission to Africa.
Jen spent 17 days in Zambia, one of
the poorest nations in the world. She and
her friends pampered pregnant women
suffering from AIDS, organized a soccer Belinda S. Barnes,
tournament for orphans and delivered Lane, Alton
food and gifts to people who have little & Horst

LAW FIRMS CAN TAKE SIMPLE STEPS TOWARD
Going Green
By Chris Spittal
W
hen people think of green
businesses, law firms are not
the first groups that typically
come to mind.
Though it may be an energy-intensive
profession that relies heavily on paper, Alvidas
Jasin, director of business development at
Thompson Hine in Cleveland, said there are a
number of simple steps firms can take to try to
become more “green.”
After viewing former vice president Al
Gore’s documentary “An Inconvenient Truth”
last year, Alvidas said, he was determined to
take action.
“I was moved by it. I felt there was
something more I can do,” he said.
He applied to the Climate Project, and in
January, was one of the 1,000 trained to
present a slideshow developed from Gore’s
book and film.
Since then, Alvidas has been making
roughly one presentation per week to a diverse
group of organizations on his own time, and
at no charge.
“My firm has been very supportive of my
efforts,” he said, adding he has even given
the presentation to his firm, which inspired
managing partner David Hooker to step-up
the firm’s conservation efforts.
Thompson Hine currently is developing a
program to improve its recycling and energy
conservation efforts, which will be launched
this year.
Alvidas said his firm has been looking at
best practices from firms on the West Coast
that have been certified as green businesses.
Their ideas include double-sided printing
and copying policies, using 100 percent
recycled paper for everything, including
post-it notes, and solar power.
Thompson Hine even is redesigning its
space to make it more environmentally
friendly, Alvidas said, explaining that the
company is installing recycled carpet and
automatic light switches, while also focusing
on allowing more natural light into the
building.
Many law firms rent their offices, which
limits their ability to undertake major
physical changes, Alvidas said, but simple
ideas such as a better recycling policy can be
a good start.
Practice Managing
Thompson Hine also has started indexing
large sets of client documentation on
compact discs for its clients instead of in
large binders, which makes it easier for
clients to search for documents.
“That’s been very well received by our
clients, and we’re saving a lot of trees,” he
said.
Alvidas said there are also a number of
easy ways law firms can conserve their share
or energy.
“Simple things like doing what your
parents told you and turning off the lights,”
John Holle, director of facilities at Bricker
he said, explaining that roughly 80 percent of
& Eckler, said the firm has not established
the energy Americans use goes to lighting.
any type of green policy, though it is always
“There are certain things we are doing, but
trying to come up with ways it can be more
we could do more.”
green.
At Bricker and Eckler, a security guard
“As things come along, we implement
walks the halls at the end of the day and
whatever makes sense,” he said.
checks every office to make sure the lights are
Bricker & Eckler hires a recycling
off, Holle said.
company to come to the firm once a week to
The firm also has changed from traditional
shred its documents and haul them to a
fluorescent lights to more efficient bulbs with
recycling facility — a move that also helps
electronic fluorescent ballasts.
the firm with confidentiality.
Alvidas said even just turning off laser
“We make a conscious effort to get all our
printers when they are not being used,
paper back into recycling,” Holle said.
disabling screen savers and putting
“Everything we have that’s paper gets
computers to sleep, or shutting them down
shredded.”
when leaving for the day will help.
Last year, the firm shredded 70 tons of
“There are a lot of energy hogs in an
paper, which translates into saving roughly
office,” he said. “All of these things can
300 trees.
really help.”
The firm also uses recycled paper, and has
a company recycle its discarded cardboard.
“We try to make sure our trash for
garbage is truly garbage,” Holle said.
cspittal@sourcenews.com
Alvidas said a good recycling policy is a
great start, as the legal profession is one of
the greatest consumers of paper.
“There’s a lot we can do as a profession to
reduce the amount of paper we’re using,” he
said.
Going electronic is a great way to reduce
paper, he explained, as drafting on
computers or sending PDFs through e-mail Chris Spittal,
can cut down on hard copies of documents. The Daily Reporter
What type of professionals
read The Daily Reporter?
On l y th e be s t.
Central Ohio’s only daily business and legal newspaper.
Call today to subscribe.
614-228-NEWS (6397) • www.sourcenews.com
Summer 2007 Columbus Bar Lawyers Quarterly 23
Practice Managing
Controlling litigation costs
THROUGH MANAGEMENT SYSTEMS
A view from a law firm finance department
By Marty Eisenbarth
A
n Internet search on Google for
“Controlling Litigation Costs”
results in 1,680,000 hits. A
cursory survey indicates that
the majority of the entries are from
corporate general counsel and legal
departments. Speaking as a non-lawyer
working in a law firm finance
department, I can assure you I didn’t
need to make that Internet search to
realize that controlling litigation costs is
a to pic o f co ncern to our clients,
par ticu larly o ur big, institutional,
banking, and insurance clients.
In an attempt to hammer down outside
legal fees, many large corporations have
contracted with various vendors for
Litigation Management Software Systems
(LMSS). These systems are rolled out to
law firms as partnering tools to increase
efficiency in t he litigation process
through case planning strategy, budgeting
and billing guidelines. There are
seemingly countless of these LMSS
vendors, each with a different software
platform and procedure.
To participate in these systems, law
firms must be responsive to requests for
customized billing including electronic
billing, task coding, budgeting, expense
guidelines, etc. We must submit our
billing in whatever billing format and
through whatever software system the
client has contracted with or developed,
an d each req uires registration and
specialized billing interfaces set up within
the firm’s computer system. This
generally requires an IT professional or
finance software specialist to develop a
customized billing format and submission
process. Following the initial set-up, the
law firm must ensure that procedures are
in place so that future matters are set up
properly to comply with each client’s
requirements. The billing attorney must
b e aware of and comply with
req uirements f or budgeting, billing
narrative, prior approvals, billing floors
and expense guidelines. Additionally the
24 Summer 2007 Columbus Bar Lawyers Quarterly
firm must follow the proper procedure
for rate adjustments, for application of
agreed discounts, and for appeals of write
downs.
If it sounds as though keeping track of
all this is a monumental task, that’s
exactly correct. Gone are the days when
an attorney’s secretary could do the firm
billing by editing computer-generated
prebills to produce mailable invoices.
Billing tasks are now assigned to billing
specia l i st s i n a c e n t ra l i z e d b i l l i n g
department. These billing specialists must
be adept not only at proofreading, editing
and text-processing, but they must also
be able to analyze billing text to make
sure i t c o m p l i e s w i t h t h e c l i e n t
requirements and to have sophisticated
software and Internet skills. Firms must
also make sure that they develop libraries
of client billing requirements as well as
cross-training programs so that billing
personnel vacations and turnover do not
interfere with billing process. If all this
sounds expensive and time consuming, it
is.
Do t h e se l i t i g a t i o n m a n a g e m e n t
systems result in reduced costs to the
client? Probably. These systems have
encouraged law firms to consider the
efficiencies of using non-lawyers at lower
billing rates or non-billing personnel to
complete tasks which may have formerly
been p e rf o rm e d b y t h e a t t o r n e y.
Completing a budgeting process at the
beginning of a litigation matter enables
the client and the attorney to focus their
discussion and to develop a case strategy
that they both understand and can be
held accountable against. By revisiting
the budget throughout the case, the
lawyer and client can discuss alternatives
and determine, together, how to manage
the case and the costs. Even if the matter
evolves into a far more complex and
expen si v e m a t t e r t h a n o ri g i n a l l y
anticipated, the partnering required by
the system eliminates surprises.
And because it works, law firms can
expect continued expansion of the client
base that will require participation in
LMSS and compliance billing guidelines.
The number of vendor platforms, bill
format structures and client guidelines
will continue to increase. In order to
efficiently meet these demands law firms
should develop or hire detail-oriented
billing specialists with excellent judgment
and computer skills to prepare invoices in
the specialized formats required. A cross-
training program for billing personnel
must be developed, and a library of
billing guidelines by client should be
maintained. An appeal process should be
e st a b l i sh e d that i nv o lv e s an
administrative assistant/legal secretary
working with the billing attorney to
analyze client write downs and appeal
t h e m w h e n a p p ro p ri a t e . A n I T
professional should be identified to work
with the litigation management vendors
and the billing personnel to prepare the
b i l l i n g f o rm a t s a n d re sp o n d t o a n y
special computer requirements. Again
there should be cross-training and back-
up personnel provided. Documentation
o f a l l t h e w e b si t e i n f o rm a t io n a n d
contacts should be maintained, and a
directory of contact people both with the
client and the litigation management
v e n d o r sh o u l d b e d e v e lo p e d a n d
maintained so that problems can be
resolved.
All of this has added a level of cost
and complexity to law firm billing that
didn’t exist a decade ago, and there
rarely is a conversation about billing
issues among law firm administrators
that doesn’t include a comparison of
frustrations with electronic billing. But
it’s not going to go away, and law firms
must determine the best structure for
preparing and submitting invoices that
are accepted and paid promptly and in
full.
meisenbarth@bricker.com
Marty Eisenbarth,
Bricker & Eckler

Fee Arbitration
THE COST AND CONTENTION OF DOING BUSINESS
By A. Alysha Clous
T
he fee arbitration program of the
Columbus Bar is gaining popularity
— the requests for arbitration have
increased significantly over the last
five years. There were 32 requests for
arbitration in 2003. In 2006, the number of
requests for arbitration rose to 100 (and the
program is on track for another record
breaking year in 2007).
Hundreds of thousands of dollars in
disputed fees have been arbitrated and
resolved due to the efforts of the committee
members who serve as arbitrators. The Fee
Arbitration committee comprises 40 members,
10 of whom are non-attorneys. The members
have generously volunteered to serve as
arbitrators for small and large disputes. Some
of the program’s superstar arbitrators handle
as many as 10 cases a year.
Arbitrations arrive from a myriad of sources
and the committee will hear matters arising in
Franklin County or any of its contiguous
counties. The general public can find
information about the program at the
Columbus Bar website, designed to provide
the “411” on our programs to the public
(www.peoplesbar.org). Sometimes, a matter
which begins as an ethics complaint is referred
to fee arbitration. Other times, an attorney is
aware of the program and requests that the
client participate. Occasionally, the Court
refers a matter to fee arbitration.
Attorneys are required to participate in fee
arbitration if their client requests it. Rules for
the Governance of the Bar of Ohio V §3(C)
and §4(G) impose a duty on attorneys to
cooperate with ADR proceedings. This duty
was confirmed in a 1997 memorandum from
the Secretary of the Board of Commissioners
on Grievances and Discipline. In the rare
occurrence when an attorney refuses to
participate (cheerful cooperation is not
mandatory, but greatly appreciated), the
matter is referred to the Professional Ethics
and Grievance committee for review of a
possible ethics violation.
If the disputed amount is $5,000 or less, a
single arbitrator (always an attorney) is
appointed. If the amount is between $5,001
and $50,000, two arbitrators are appointed
and if the amount being disputed is more than
$50,000, three arbitrators are required.
Practice Managing
Negotiations and settlement between the
parties prior to the arbitration are encouraged.
Approximately 30% of the fee arbitrations
brought to the committee are ultimately
dismissed due to settlement or other reasons.
Every attempt is made to keep the hearing
informal. Generally, there is no sworn
testimony and the parties are each limited to
thirty minutes. The matter is not recorded
(although a party may arrange for a recording
at his or her own expense). In keeping with the
less formal atmosphere, cross examination,
subpoenas, extra attorneys and continuances
are all permitted, but rarely sighted, at a fee
arbitration hearing.
A decision is promptly rendered (parties
usually receive notice of the decision within a
week) and, by and large, the parties comply
with the decision of the arbitrator(s). The
committee has been working with municipal
court and court of common pleas to streamline
a process for enforcing the decision in those
instances where a party does not comply.
The newly enacted Ohio Rules of
Professional Conduct states: “The nature and
scope of the representation and the basis or
rate of the fee and expenses for which the
client will be responsible shall be
communicated to the client, preferably in
writing, before or within a reasonable time
after commencing the representation
(emphasis added).” R 1.5(b).
Even though it is communication which is
mandated, and not a written fee agreement,
the Rules clearly prefer that the agreement be
in writing. The prudent course of action is to
memorialize that communication in written
form. Not only will this protect the attorney
from possible ethics violations, but it will
greatly aid the fee arbitration committee if a
hearing on the matter is held — and given the
ever increasing number of fee arbitrations, you
just might find yourself in this position.
alysha@cbalaw.org
A. Alysha Clous,
Assistant Columbus
Bar Counsel
Summer 2007 Columbus Bar Lawyers Quarterly 25
Practice Managing

Musings About Marketing

TO SMALL BUSINESS
Every client and every matter is unique. Perhaps the two most telling characteristics of small businesses
are lack of legal sophistication and sometimes questionable ability to pay significant legal fees.

By David C. Levine

I
n the past year and a third, since leaving my former mega-firm
and setting up a solo law office, I have read somewhere in the
neighborhood of 53 books and articles on marketing a solo or
small firm law practice. After the first few, these sound
remarkably the same, like a mantra: network, network, network,
and then network some more. Good advice. But with whom, or to
whom, should an attorney network? There is no one answer to that
question, other than “it all depends.” For a variety of reasons, I
never learned much about marketing in my big-firm life. Now, out
in the pool, sink or swim, I have to figure it out. And it will be a
lengthy exploration. It’s both easier and more difficult than I
imagined.
Everything starts with a business plan — at least that’s what all
the books say. (I sometimes wonder if Abraham Lincoln had a
business plan for his law practice. Somehow, I doubt it.)1 All we are
talking about here is the marketing aspect of your law practice. But
you can’t market a law practice until the scope and nature of that
law practice have been defined. I deliberately waited quite a while
before I even began to try to define my practice, beyond “general
litigation,” which was what I had been doing for more than 16
years. I wanted to get a feel for the solo practice before I tried to
define it.
In time, then, any lawyer starting up a solo practice has to decide
on a goal, other than to generate business. What kind of business?
Let’s say you want to market your services to “small businesses.”
The first thing you need to do is figure out just what a small
business is. Not long ago my client in a litigated matter was a $75
million-per-year company, family owned and operated, with
operations principally in Ohio. Small business? I thought so. More
recently, I was approached by the owner of a convenience store
about a possible litigated matter. Probably not even a $1 million
business. A small business to be sure. What makes both of these
businesses “small businesses?” Family or individually owned,
certainly not publicly traded. Want to focus on a particular business
or industry? The goal then, or perhaps it is a strategy, is to network
with those who can refer the type of business you want. By the end
of this part of the process, I had come to define the scope of the
practice as “litigation for privately or closely held businesses.”
So, who to network with? There’s no shortage of choices:
attorneys; clients; friends; business acquaintances, trade
associations. But even that is too broad a list. Any attorneys or just
those in particular types of practice? That depends on what the goal
for attorney networking is. Well, referrals, of course. But a
commercial litigator is not likely to make litigation referrals to
another litigator, except if there were a conflict. So a litigator might
be better off developing relationships with solo or small-firm
lawyers who principally do business or transactional work. Their
clients will sometimes need litigation services. Several of my referrals
from lawyers have been of that kind — referrals from a business
lawyer whose client needed a litigator. This kind of arrangement
will also work the other way around: a litigator’s client needs
business advice.
Next, figure out what services you want to provide. In this day
and age, a lawyer cannot be all things to all clients; it’s just not
possible. A top-flight litigator, more than capable of an excellent
slalom run through the Rules of Civil Procedure or the Rules of
Evidence, may not be competent to form an LLC or an LLP and
give sound advice on matters of governance. And what client

Don’t let lack of information cause you to misstep

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and legal articles, as well as national articles from various news service.
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that provide a wealth of information for business leads and
for protecting your company. Don’t miss another issue. Subscribe today!

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26 Summer 2007 Columbus Bar Lawyers Quarterly

 Practice Managing

doesn’t want to know about the tax implications of everything? And abandon it. But only the source, not the enterprise. Pounce on
what non-tax lawyer wants to venture into that thicket? opportunities handed to you. Pass someone on the street? Stop and
What are the unique legal needs of small businesses? In the chat for a moment. Say something that might trigger interest or,
greater scheme of things, the legal needs of small businesses are no better yet, a referral. Keep track of your marketing efforts. Devise
differently unique than the legal needs of any person or entity. In some sort of log that keeps track of who you talked to, when, what
other words, every client and every matter is unique. Perhaps the you talked about, and dates or some other trigger for a follow-up.
two most telling characteristics of small businesses are lack of legal Every person is a potential referral source, with the emphasis on
sophistication and sometimes questionable ability to pay significant “potential.” You don’t really know until you know something
legal fees. Lack of legal sophistication sometimes translates into about the person.
more “handholding,” which has the unfortunate consequence of
driving up legal fees.
Are small businesses underserved by the legal community? There
exists at least some anecdotal evidence that small businesses are 1. To the extent he had a plan, it was “diligence,” which he
underserved. A trip to “Lawyers.com,” which advertises itself as the described as the “rule for the lawyer.” July 1, 1850, Notes,
“the #1 lawyer directory,” has entries for business law, as well as quoted in THE LIVING LINCOLN, Angle and Miers, eds., 1955, p.
many sub-categories of business law, such as business litigation, 143. Lincoln also said it was best to discourage litigation, hardly
business planning, buying and selling businesses, closely held a plan for a successful litigation practice. Id.
businesses, and so on. But a search of the lawyer entries under these
categories yields the following mish-mash of practice areas: wills,
trusts, and estates; guardianships; family law; construction; real
estate and commercial real estate; immigration, personal injury, and dlevine@davidclevinelaw.com
DUI. It would be a daunting task for someone in search of a lawyer
who specializes in representing small businesses to sort through all
of these and identify a couple of likely candidates for a phone
interview.
A few additional, miscellaneous thoughts about marketing: be
willing to give up on a source. Sometimes even an initially-
promising referral source doesn’t come through, or turns out to be a
dead-end. Much like selling a bad stock, sometimes you just have to David C. Levine

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Summer 2007 Columbus Bar Lawyers Quarterly 27

Practice Managing
Transitioning
FROM BIG FIRM TO A PART-TIME/HOME PRACTICE
By Priscilla L. Hapner, conversation with Craig M. Fullen
P
LH: About four years ago, I came
to the realization that I did not
want to spend the rest of my life
practicing in a big law firm or
litigating cases. I then started working part-
time from my living room — at first for my
last law firm and then later for other
clients. To be honest, if I had known how
easy technology has made it to work from
home, I may never have left. All-in-one
printers/copiers/scanners/faxes have made it
possible for me to collaborate with other
lawyers almost as easily as if we worked in
the same office. In addition, I have the
flexibility of working when it suits me (i.e.,
during breakfast or after lunch), and where
(such as on my patio as I am now while
writing this article on a beautiful spring
day).
CMF: For me, the decision to practice in a
home-based environment was about
understanding the best work situation for
me given my strengths, weaknesses, and
interests. I knew that I needed the flexibility
to work during the hours that I felt most
productive, which aren’t necessarily normal
business hours. For instance, I do a lot of
work after 9 p.m. (after my son goes to
sleep) and before 7 a.m. (before he wakes
up). Further, I have an investment firm,
trade in the futures markets and also teach
part-time at Capital University’s Law
School (Paralegal Program) so working
from home gives me an opportunity to
pursue these other ventures without there
being issues with the boss or employer. In
order to increase my productivity, I often
take about a 20 minute nap in the
afternoon to “energize” myself for the rest
of the day. I also need a lot of sunshine to
keep my spirits up so some afternoons are
spent sitting on the patio reviewing
documents or, on occasion, taking a break
to jog, play tennis or golf.
For some attorneys, having a support
staff is critical to their practice. However, I
was always fairly self-sufficient when I
practiced in a big firm setting, so not
having a support staff hasn’t been too much
of a problem. If anything, it makes me
more selective in the types of clients and
28 Summer 2007 Columbus Bar Lawyers Quarterly
projects I will undertake. Fortunately, my
wife is also an attorney and is much more
proficient in Microsoft Word than I am so
she can help me out from time to time. I
also have an accounting background and
maintain the books and keep the finances
in order. While this “management” of the
practice can take away from billable hours,
it’s part of being a business owner and is a
task I enjoy.
PLH: I’ve always done most of my own
typing, etc. so the complete lack of support
staff hasn’t been significant (and has even
been a blessing sometimes). Granted, there
have been a few projects where an assistant
or paralegal would have been helpful.
Investing in a proper desk and turning my
den into a proper office vastly improved my
working conditions and helps me keep a
professional focus.
CMF: However, it can be somewhat
challenging to be solely responsible for all of
the technological tools that one needs to
operate a business — it is essential to make
sure that the technology used is reliable,
easy-to-use and cheap. For example, I use
an internet-based phone system called
CallWave. It allows me to receive calls on
my laptop or transfer calls to any location I
choose — great for people on the move. I
believe it is also key to have backup
computers and monitors. Just this week, the
LCD screen on my laptop went blank but I
was able to keep working by hooking up an
extra monitor I had in the basement. I also
have two different methods of connecting to
the internet: cable and Verizon wireless. The
Verizon internet connection can even be
used when traveling in the car, although I
recommend you find someone else to drive.
PLH: I’ve fallen in love with my Canon
copier, which includes an adobe acrobat
PDF scanner. I was also persuaded to use a
DSL line so that I can surf the web and
send email while speaking on the
telephone. Free findlaw.com newsletters
help me stay current with legal changes,
and I take full advantage of the OSBA
Casemaker service.
CMF: One of the biggest challenges of
working from home is making sure you
don’t feel too isolated. To address this, I
often listen to talk radio or cable news
during the day as well as talk to a few
friends. Sometimes a quick trip to the
neighborhood Starbucks or bank will cure
that lonely feeling. A temporary relocation
of the work environment to the local
library or other public place can also be
beneficial.
PLH: The biggest adjustment for me was
the sudden isolation after working in close
quarters in a large office for many years. I
make a point of scheduling at least two
meetings each week outside my office in
order to maintain my sanity, stay connected
with the rest of the world and remain
current with legal developments. I also try
to speak with someone different every day
and love it when people (like Craig who
used to work with me at a big firm) call to
touch base, recruit me for special projects
(like the paralegal program) or to
collaborate. Of course, I miss the free
tickets to great events and the cache of
being associated with a well-known and
respected firm. (Some people roll their eyes
when they see the P.O. Box listed on my
business card). I’ve also accepted the
significant cut in my income and the fact
that I may never again visit the Canyon
Ranch spa. I also miss having instant access
to quality lawyers in a variety of specialties,
such as ERISA and tax, when my clients’
questions involve legal issues outside my
comfort zone. Fortunately, I have lots of
friends who have been willing to help me
out from time to time. Working from home
has made my practice more about personal
relationships and entrepreneurship and less
about billable hours. Avoiding a litigation
practice (with its numerous deadlines) also
gives me more flexibility to volunteer in the
community and tend my garden. For
instance, I would not have been able to
spend a week on the Mississippi Gulf Coast
doing rehabilitation and demolition work if
I were still a big firm litigator.
phapner@joimail.com
Priscilla L. Hapner

The Tax Man Cometh
By Cheryl L. Ryan & Grey W. Jones
“I am single and I owe the IRS $80,000 in
back taxes for tax years 2000 through
2003. I think I probably owe some
money to the State of Ohio, and I
currently make $40,000 per year. I just
received a Notice of Levy, which states that
the IRS plans to garnish my wages. I know I
will be fired, if my employer finds out. What
can I do?”
The foregoing is a prime example of the
types of tax problems we encounter on a
daily basis. People faced with tax problems
and impending levies and/or garnishments
are often emotionally distraught — believing
that they will lose their homes, their jobs,
their marriages. Many are concerned that
they will even be sent to jail. Unfortunately,
many of their concerns are valid. In this new
age of aggressive tax enforcement, losing
your home is a real possibility and being sent
to jail is not entirely out of the question.
Fortunately, this tax problem does not
have to ruin our client’s life. Those of us
who turn on the television even just once a
week for 15 minutes are aware of the
infamous Offer in Compromise program.
This program solves your tax problems for
“pennies on the dollar.” Unfortunately,
despite what you hear on television, you
really have to be in dire straits to qualify for
this program. Our $40,000 per year single
tax client might, but probably won’t, qualify.
If he has any money left over from his
paycheck, he can be sure the IRS wants it.
However, many tax clients do qualify for
an Installment Agreement, either partial or
full. A $40,000 per year single tax client
cannot possibly pay off an $80,000 tax debt,
especially when penalties and interest
continue to accrue. Under these
Taxes
had a client who owned a car dealership
over 20 years ago. He failed to pay sales tax
in 1982. More than 25 years later, the State
of Ohio levied him for the unpaid sales tax.
Of course, he no longer had any
documentation to dispute the amount they
claimed he owed. However, he did have
photographs of the dealership, which were
taken back in 1982. We were able to
circumstances, a Partial Pay Installment
Agreement is likely the best option. This produce these photographs to the State of
Ohio, in order to document the number of
plan allows our tax client to pay the IRS a
reasonable sum every month. Many times, vehicles he really had in his inventory at the
time. We were able to reduce his tax debt by
the IRS will agree to accept less than the
total amount due and forego penalties and over $100,000.
Similar to our car dealer, our tax client
interest.
Of course, if our tax client’s income who makes $40,000 per year is not without
hope. With quick involvement on our part
increases, the IRS will likely discover this
and cooperation from our client, the wage
new-found money and will seek to re-
garnishment can be stopped, before the
negotiate the payment plan. The IRS does
employer has any knowledge of it. The key
realize that everyone needs a place to sleep,
is immediate action. If the IRS knows that a
as well as certain other basic necessities. In
tax professional will be submitting a
order to negotiate the best payment plan
proposed resolution to the problem, any
possible, our tax client will need to account
impending levy and/or garnishment will
for these necessities in agonizing detail. The
likely be stayed until a mutually agreeable
more money he needs to pay his monthly
resolution is put in place. It is imperative
mortgage, the less money he has in his
that tax problems be handled as quickly and
pocket to pay the IRS. Keep in mind though,
efficiently as possible. Otherwise, our tax
the IRS has established national averages for
client may find himself unable to pay his
the basic necessities. With an income of
mortgage or make his car payment, as the
$40,000 per year, our single tax client
IRS has taken nearly all of his $770 per
shouldn’t count on being able to remain in
week paycheck.
his $250,000 home.
The good news is that the IRS has a
statute of limitations. The IRS cannot
continue to collect from our tax client more cryan@greyjones.com
than ten years after the tax was assessed,
without suing him for an extension, which is
very rare. In the case of our $40,000 per
year tax client, the taxes owing for 2000
were likely assessed sometime around 2002.
The IRS has a “drop dead date” in 2012. If
it hasn’t collected by that time, our tax client
can likely rest easy that the tax debt for that
year is gone.
As always, with the good news comes the
bad. The State of Ohio does not have a
statute of limitations. They can, and will, Cheryl L. Ryan & Grey W. Jones,
pursue our tax client forever. We recently Grey Jones & Associates
Summer 2007 Columbus Bar Lawyers Quarterly 29
 Cain & Abel
GRAY SKIES COVER
Sentencing Code
By The Honorable David E. Cain
T
he Ohio Criminal Code bears a
striking similarity to the state’s
weather — constantly changing
and unpredictable.
“The sentencing code has become
remarkably complex,” David Diroll,
executive director of the Ohio Criminal
Sentencing Commission, noted in his
recent 10-year review of the effect of the
major overhaul called Senate Bill Two (S.B.
2).
That legislation changed hundreds of
provisions in the state’s criminal code and
told judges what to consider in sentencing
convicted felons. Some of its goals were to
promote consistency throughout the state
and steer non-violent, low-level felons into
community corrections, thus relieving
serious overcrowding in the Ohio prison
system.
But “several important changes to felony
sentencing law have occurred since the bill
took effect in 1996,” Diroll noted.
“Exceptions often shallow rules and make
it difficult to read and apply basic statutes.
This adds untold hours to the workloads
of judges, prosecutors, defense attorneys,
and probation and parole officers and
workers. Moreover, it has become
extremely difficult for offenders, victims,
and the media to understand criminal
sentences.”
Major aspects of S.B. 2 included “truth
in sentencing” (as it did away with
indeterminate sentences except for murder
offenses) and sentencing “guidance” with
appellate review. The guidelines include a
presumption in favor of prison for higher
level felons and a presentation against
prison for lower level first-time offenders.
Judges were directed to make specified
findings and put them on the record
subject to appellate review. The bill also set
up post release control — a form of parole
— for more offenders after they leave
prison.
S.B. 2 laid out lists of factors indicating
whether the criminal act is more serious or
less serious and factors that indicate
recidivism is more or less likely.
The Sentencing Commission’s 2005
Monitoring Report presented data to
30 Summer 2007 Columbus Bar Lawyers Quarterly
demonstrate that S.B. 2 was meeting its
goals: After decades of growth the prison
population had leveled off; those actually
going to prison were a “tougher crowd”
than before S.B. 2; sentencing patterns had
greater consistency across the state; and
the racial makeup of the prison population
generally tracked the racial makeup of
those arrested for crimes.
But that was only shortly after the U.S.
Supreme Court issued its decision in
Blakely vs. Washington saying a
defendant’s Sixth Amendment right to a
jury trial is violated when a judge makes
sentencing-related “findings” after a
conviction. It was hailed as a great victory
for the defense bar. But the story doesn’t
end there.
Soon, the high court decided United
States v. Booker. The same 5-4 majority
found the guidelines violated the Sixth
Amendment. But a new 5-4 majority found
that they might be constitutional if they are
voluntary rather than mandatory.
There came the challenge in the Ohio
courts. In State v. Foster last year, the
Ohio Supreme Court said judges should
no longer make “findings.” They could
sentence anywhere within the broad
sentencing ranges, and they do not have
to justify the sentence on the record. Only
the parts of S.B. 2 that direct judges
within the ranges are unconstitutional.
And in State v. Mathis, a companion case,
the state’s high court said defendants no
longer have an appeal of right for
sentences imposed by judges who did not
follow the guidelines.
Diroll summed up the present legal
status as follows:
• Judges have broader discretion within
the felony ranges to impose a definite
sentence. That is:
Judges are no longer encouraged to use
minimum sentences for persons who
haven’t previously been to prison;
Judges are no longer encouraged to
reserve maximum sentences for the
worst offenses and offenders;
Judges no longer need to give reasons
why a particular sentence was imposed.
• Judges also have broader discretion to
impose consecutive sentences. That is:
Judges are no longer guided to give
concurrent sentences unless
circumstances argue that consecutive
sentences are more appropriate;
defendants no longer have the right to
appeal a judge’s decision to impose
consecutive sentences.
As before, judges may give the
maximum sentence for so-called “major
drug offenders” (MDOs) and “repeat
violent offenders” (RVOs) if the charge has
been specified in the indictment.
The judge may impose the additional
one to 10 year sentence on each
specification without an additional factual
finding.
Judges still must follow the purposes
and principals of sentencing and weigh
seriousness and recidivism factors
(although appellate rights are uncertain).
Ohio’s prison population is now around
49,000. The Ohio Department of
Rehabilitation and Corrections (ODRC)
has revised its prison population
projections upward by 2,150 beds over the
next decade in light of the court’s decision
in Foster. It expects 70,000 prisoners by
2016 — so far above capacity that federal
litigation could result.
Many judges saw Foster as a reversal in
the trend of more complicated (and
therefore longer) sentencing hearings with
less judicial discretion. Diroll says it
presents topics for further discussion:
• Unconstitutional Provisions. The
offending provisions struck by Foster
still appear in the Revised Code, leading
to confusion among those trying to
understand the sentencing statutes. Some
would remove the wording to lessen
misunderstanding; some would review
the language to see if any of it should be
kept as purely voluntary guidance
without requiring formal findings.
• Consistency. A common criticism of the
law pre-S.B. 2 was that sentencing was
inconsistent from court to court. While
almost no one favors strict uniformity,
Foster effectively broadened judges’
sentencing ranges, raising new concerns
about consistency. For instance, RVOs
and MDOs now face a sweeping three to
20 year range.
Also, long before S.B. 2, Ohio law
suggested giving concurrent terms unless
there is a good reason for consecutive
sentences. Pre-S.B. 2 law also placed caps
on the length of consecutive sentences.

S.B. 2 removed the caps, giving judges
greater latitude, but also required that
certain findings be made to justify
consecutive terms. Foster eliminated those
findings.
With less S.B. 2 guidance after Foster,
there is concern that the absence of
consecutive sentencing guidance could lead
to erratic sentencing. Solutions such as
voluntary guidelines or more felony levels
with narrower sentence ranges could be
considered to foster consistency.
Foster is not the only source of pressure
on the prison population. Since the
enactment of S.B. 2, the legislature has
called for mandatory prison terms for a
wider array of crimes in each General
Assembly, Diroll pointed out. And in recent
years, there has again been a move to
enhance several misdemeanors to the felony
level. ODRC data indicates it receives
several thousand inmates each year who
would not have been eligible for prison
terms 10 or 15 years ago. The impact of
felony penalties for chronic misdemeanors
should be analyzed, Diroll said.
In 2006, S.B. 260 increased the penalties
for rape and attempted rape to the point
where they exceed the terms available for
Cain & Abel
some murders, he added. This builds on a large amount of money if they can
earlier legislation that authorized life coordinate the tunnel construction
without parole for certain rapes, (and (expected to be about 20 feet below the
aggravated murder without capital specs), final surface of Mound Street) with
a penalty previously available only for ODOT’s present plans to regrade Mound
capital punishment — eligible aggravated Street as part of the I-70/I-71 rebuilding.
murder cases. The murder penalties should Installing the tunnel in an open cut is
be reviewed in this light, Diroll asserted. tremendously cheaper than doing by
In general, he concluded that the time tunneling.
has come to streamline and simplify the Frye said the judges involvement in the
sentencing code so that it is again relatively new courthouse planning is diminishing as
easy for practitioners and citizens to the project moves from conception to
understand. reality and now primarily involves meeting
with designers about courtrooms and other
Tunnel Vision interior layouts.
Judge Richard Frye, who chairs the
Common Pleas Court’s New Courthouse
Construction committee, reflected on some
of the more interesting discussions with david_cain@ fccourts.org
architects, engineers and planners. One
was the consideration to move the new
building closer to the north side of Mound
Street then originally planned. That, in
turn, shortens the tunnel that will connect
the existing courthouse complex to the
new site. Since the estimated cost of the
tunnel is $30,000 a foot, shortening the Honorable David E. Cain,
tunnel by 20 feet saves about $600,000, Franklin County
Frye noted. The planners also hope to save Common Pleas Court
Summer 2007 Columbus Bar Lawyers Quarterly 31
 Cain & Abel
Notes
FROM THE SIXTH CIRCUIT
JUDICIAL CONFERENCE
By The Honorable Mark R. Abel
T
his year’s conference was a
judges only meeting in Asheville,
North Carolina. Based on the
topics covered during the
conference, some of the things on federal
judges’ minds are judicial security and
identity theft, best uses of technology for
judges, electronic discovery, conflict check
software, and criminal sentencing now
that the Sentencing Guidelines are no
longer mandatory. There was also a panel
on improving the judiciary’s relations with
Congress. Judges want to insure adequate
funding for the courts to deliver the high
quality of justice that has made our legal
system a model for the world. With the
help of the bar, judges are also making the
case to Congress for a raise so our salaries
catch up with inflation.
More about
Justice John Paul Stevens
Every year at the Sixth Circuit banquet
he delivers a short report on how the
Court of Appeals has fared in the
Supreme Court and makes a few after
dinner remarks.
Stevens was appointed to the Supreme
Court December 19, 1975. This year he
became the tenth longest serving Justice.
The 87-year-old Stevens has a way to go
to crack the top four. Chief Justice John
Marshall and Justices Stephen Field and
Hugo Black each served on the Court
o v e r 3 4 y e a r s . Wi l l i a m O . D o u g l a s
served 36 years, 7 months.
In a recent interview for The Third
Branch, the federal courts’ newsletter,
Stevens said that Chief Justice Marshall
Judges want to insure adequate funding for the courts to
deliver the high quality of justice that has made our legal system
a model for the world.
32 Summer 2007 Columbus Bar Lawyers Quarterly
and Justices Brandeis, Holmes and
Cardozo were his heroes when he was in
law school. He adds to that list the
justice he clerked for, Wiley Rutledge.
Stevens said that during his time on the
Court he probably felt closest to Byron
White, who he had first met during
World War II. They played golf together
regularly while colleagues on the Court.
He was also quite close to Lewis Powell.
He admired Justice Potter Stewart, whom
he described as “wonderful judge” and “a
very eloquent person.”
Stevens, seen as a liberal on the
current Court, was viewed as a moderate
conservative when nominated by
President Gerald Ford and confirmed by
the Senate 98-0. In his remarks at the
Sixth Circuit banquet, Justice Stevens
said that when President Ford died last
year the AP asked to interview him.
Although he rarely grants interviews, he
agreed so that he could talk about Ford.
But the reporter was only interested in
whether Steven still regarded himself as a
moderate conservative and whether he
thought he would be confirmed by the
Senate if nominated today.
S i n c e t h e A P r e p o r t e r w a s n ’t
interested, Stevens said he’d take the
opportunity at the Sixth Circuit
conference — which was being
v i d e o t a p e d b y C - S PA N — t o t e l l a
national audience about his recollections
of President Ford. A few months before
his nomination, Stevens had his only
substantive conversation with the
President. Contrary to his public image
as a former football player who could be
a bit of a klutz — driving his ball into
the crowd at a golf event and stumbling
as he entered a room — Stevens found
Ford to be an intelligent, sophisticated
lawyer with a good grasp of the
c o m p l e x i t i e s o f t h e N e w Yo r k C i t y
bankruptcy buyout that then required his
attention.
S t e v e n s a d d r e s s e d t h e r e p o r t e r ’s
question about whether he thought he
was still a moderate conservative when
he gave the Sixth Circuit “report card.”
In the past year, the Supreme Court
reversed the Circuit twice and affirmed it
three times. He summarized his position
and the opposing view in each case, then
asked which was the more conservative.
For example, in a Michigan Clean Water
Act case a developer maintained that the
property he was developing was not
wetlands. Whether it was depended on
the meaning of the statutory language:
“waters of the United States.” Stevens
accepted the U.S. Army Corps of
Engineers’ long-standing definition,
while the opposing justices adopted a
much narrower reading that meant the
property was not wetlands.
In each of the five cases, the position
Stevens adopted was the pragmatic, time-
tested, lawyerly one grounded in
precedent, while the opposing view was
arguably the more novel, possibly
o u t c o m e d r i v e n a n a l y s i s . Wi t h o u t
expressly saying so, Justice Stevens
suggested that he has remained true to
his moderately conservative judicial
principles while the majority of the
“conservative” justices appointed after
him have abandoned traditional
conservative positions to move the Court
in a direction more congenial to their
substantive views about the roles of the
judiciary, the legislature, the executive,
and state government.
A f t e r 3 0 y e a rs a t t h e C o u r t, To n i
Alkire retired this month. Toni was the
administrative assistant to Clerks of
Court John Lyter, Jim Murphy, and Jim
B o n i n i . S h e a l so se rv e d a s o u r I T
department manager from 1985 to March
2004. As our IT, Toni led the Court from
the era of IBM Selectric typewriters to
networked computers on every desk.
One of Toni’s major accomplishments
was as project co-manager for the
implementation of our electronic case

filing system. In that role, Toni enjoyed
the opportunity to work with everyone at
the court in Cincinnati, Dayton and
Columbus. It took the collaboration of all
the judges and their staffs, clerk’s office
employees, and members of the bar of the
court to make the historic transition from
paper dockets and row after row of case
files to electronic files instantly available
at the desks of litigators, judges, and all
court employees. Toni was instrumental in
working with the numberless committees
Networking is important, but
word-of-mouth isn’t
a reliable method of
marketing your new business.
Monday through Friday, The Daily Reporter
reaches Central Ohio’s top decision makers.
Make sure you’re connecting with the
people who can help make your business
successful.
Be in the right place, at the right time.
Be in The Daily Reporter.
Call 614-228-NEWS (6397)
today for advertising information.
Cain & Abel
and individual judges to bring about a Mark_Abel@ohsd.uscourts.gov
major change with a minimum of
disruption and inconvenience to everyone.
Toni is an exemplar of the dedicated
court employee who gains great
satisfaction from the opportunity to assist
both members of the public and the court
family and, as she says, making their job,
project, or even their life a little easier. All
the judges wish her well in retirement. Honorable Mark
R. Abel,
U.S. District Court
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Summer 2007 Columbus Bar Lawyers Quarterly 33
 Library
Come And Get ’Em Redux:
PERIODICAL ARTICLES RELATED TO OHIO LAW
By Ken Kozlowski
T
his second edition of periodical articles related to Ohio
has been culled from Lexis, Westlaw, and plain old
scanning of hard copy texts. As with the previous
incantation of this exercise, the purpose is to offer
pointers to the articles so you don’t have to waste time looking for
them on your own. Simply peruse the subject-specific list below
and read an article or two, or file some cites away for a rainy day.
If you see something you like and are having trouble getting a
copy of it, let the good folks at the Supreme Court of Ohio Law
Library’s Reference Desk know, and they will surely be able to
help you out (387-9682 or libref@sconet.state.oh.us).
Administrative Law
Christopher B. McNeil, The Marginal Utility of
Consolidated Agency Hearings in Ohio: A Due Process
Analysis From an Economic Perspective, 32 Ohio N.U.L.
Rev 127 (2006).
Bankruptcy
[Survey Issue] Bankruptcy Abuse Prevention & Consumer
Protection Act of 2005 (BAPCPA) and Attorney Sanctions —
Sixth Circuit Overview, 33 N. Ky. L. Rev. 353 (2006).
Business Law
David J. Barthel, A Healthy Tan is Better than Sunburn: Ohio’s
“Sunshine Law” and Nonpublic Collective Inquiry Sessions, 34
Cap. U.L. Rev. 251 (Fall 2005).
Matthew A. Kitchen, The Right of a Parent’s Shareholders to
Inspect the Books and Records of Subsidiaries: None of Their
Business?, 74 U. Cinn. L. Rev. 1089 (Spring 2006).
Gary P. Kreider and F. Mark Reuter, Significant 2006
Amendments to Ohio Business Organization Statutes, 21(1) Ohio
Lawyer 30 (Jan/Feb 2007).
David Porter, Competing With Delaware: Recent Amendments to
Ohio’s Corporate Statutes, 40 Akron L. Rev. 175 (2007).
David P. Porter, et al, Amendments to Ohio’s Business Entity
Statutes Effective in October 2006 (Jones Day Commentaries,
available online at http://www1.jonesday.com/pubs/
pubs_detail.aspx?pubID=S3729). A link to a PDF version is
offered on the page.
[Symposium Issue] In The Wake of the Sarbanes-Oxley Act:
Survey of Ohio Law: Ohio Supreme Court Decisions, 31 Ohio
N.U.L. Rev. 319 (2006).
Civil Procedure
Brian C. Janssen, Subject Matter Jurisdiction of the Ohio Court of
Claims, 20 Ohio Lawyer 10 (May/Jun 2006).
Commercial Law
Vincent I. Holzhall, Lien Times for Ohio Farmers, Columbus Bar
Briefs 38 (Fall 2006).
34 Summer 2007 Columbus Bar Lawyers Quarterly
Constitutional Law
Gabriel J. Chin, Ratufying the Fourteenth Amendment in Ohio,
28 W.New Eng. L. Rev. 179 (2006).
Wilson Huhn, Ohio Issue 1 is Unconstitutional, 28 N.C. Cent. L.
J. 1 (2005).
James B. McMullin, Incarceration of the Free Exercise Clause:
The Sixth Circuit’s Misstep in Cutter v. Wilkinson, 19 B.Y.U. J.
Pub. L. 413 (2005).
Katy Waters, The Eminent Domain Debate, Columbus C.E.O 18
(Aug. 2006).
Construction Law
Richard Clagg, Who Remembers the Small Builders?: How to
Implement Ohio’s New Statewide Residential Building Code
Without Sinking Ohio’s Small Builders, 34 Cap. U. L. Rev. 741
(2006).
Courts and Procedure
Richard C.O. Rezie, Think Before Seeking a Leave to Amend,
20(5) Ohio Lawyer 17 (Sep/Oct 2006).
Svetlana B. Ball and Brian A. Ball, Say What? Court Interpreting
in Ohio, 21(1) Ohio Lawyer 8 (Jan/Feb 2007).
Ohio Supreme Court Decisions: 2005, 32 O. Northern U. L. Rev.
551 (2006).
Criminal Law
Tasia E. McIntyre, Protecting Against Terrorism or Symbolic
Politics?: Fatal Flaws in Ohio’s Criminal Terrorism Statute, 56
Case W. Res. L. Rev. 203 (Fall 2005).
Scott R. Poe, Inconsistent Methods for the Adjudication of
Alleged Mentally Retarded Individuals: A Comparison of
O h i o ’s a n d G e o r g i a ’s P o s t - A T K I N S F r a m e w o r k s f o r
Determining Mental Retardation, 54 Cleve. St. L. Rev. 405
(2006).
Jon J. Salia, Ohio’s New Disqualification Law, Columbus Bar
Briefs 7 (Fall 2006).
Nathaniel Stewart, Ohio’s Statutory and Common Law History
with “Terrorism”: A Study in Domestic Terrorism, 32 J. Legis. 93
(2005).
Yasmin Elaine Waring, Is DNA “TNT” for Civil Liberties?
Defusing Ohio’s Explosive New DNA Collection Law, 31 Dayton
L. Rev. 105 (2005).
Education
Christen Spears Hignett, Ohio’s Public School Funding
System: The Unanswered Questions and the Unresolved
Problems of D EROLPH , 33 Capital U. L. Rev. 739 (Summer
2005).

Nathanial J. McDonald, Ohio Charter Schools and Educational
Privatization: Undermining the Legacy of the State Constitution’s
Common School Approach, 53 Cleve. St. L. Rev. 467 (2005-06).
Amy J. Borman, MySpace or Our Space: Cyber-Bullying
Undermines the Classroom, 18 Ohio School L. J. 61 (Nov/Dec
2006).
Election Law
Jason Belmont Conn, Of Challengers and Challenges, 37 U. Tol.
L. Rev. 1021 (Summer 2006).
Jason W. Hilliard, Case Note: Punch Card Ballots v. Direct
Record Electronic Voting: Why Ohio’s Use of Different Methods
to Count Ballots Violates the Equal Protection Clause 31 Dayton
L. Rev. 527 (2006).
Dale Smith, Preserving Rights or Perpetrating Chaos: An Analysis
of Ohio’s Private Challengers of Voters Act and the Sixth Circuit’s
Decision in S U M M I T C O U N T Y D E M O C R AT I C C E N T R A L A N D
EXECUTIVE COMMITTEE V. BLACKWELL, 74 U. Cinn. L. Rev. 719
(2005).
Estates and Trusts
Alan Newman, Ohio Adopts New Trust Code, 20(5) Ohio
Lawyer 8 (Sep/Oct 2006).
Ethics
Eugene P. Whetzel, OSBA Committee Enforces UPL Regulations,
20(5) Ohio Lawyer 28 (Sep/Oct 2006).
John Mueller, Frank Quirk, and Eugene P. Whetzel, New Ethics
Rules: What Lawyers Need to Know, 20(6) Ohio Lawyer 9
(Nov/Dec 2006).
John Mueller, Frank Quirk and Eugene P. Whetzel, New Ethics
Rules: What Lawyers Need to Know, Part II, 21(1) Ohio Lawyer
12 (Jan/Feb 2007).
Kenneth R. Donchatz, Fee Agreements: Who Needs Them?, 20(6)
Ohio Lawyer 19 (Nov/Dec 2006).
Alvin E. Matthews Jr., Put It In Writing: The Various
Documentation Requirements of the Ohio Rules of Professional
Conduct, Columbus Bar Lawyers Quarterly 18 (Winter 2007).
Evidence
Gerald J. Todaro, Medical Testimony Under the Microscope,
21(1) Ohio Lawyer 22 (Jan/Feb 2007).
Family Law
Lindsey A. Hutchinson, Reporting Child Abuse and Neglect, 21
Ohio Lawyer 16 (Mar/Apr 2007).
Kelly Schroeder, Fair and Equitable Distribution of Goodwill in
an Ohio Divorce Proceeding, 31 Dayton L. Rev. 83 (2005).
Juvenile Diversion: An Outcome Study of the Hamilton County,
Ohio Unofficial Juvenile Community Courts, 57 Juv. & Fam.
Court J. 1 (Spring 2006).
Government
Steven G. Carlino, The History of Governmental Immunity in
Ohio, 32 Ohio N. U.. L. Rev. 59 (2006).
Health Law
Patricia A. Nussle, Ohio’s Prescription Drug Database, 20 Ohio
Lawyer 20 (May/Jun 2006).
Timothy J. Cahill, Physician Assistant Law Expanded in Ohio,
Columbus Bar Lawyers Quarterly 22 (Winter 2007).
Library
Insurance Law
Matthew J. Cavanaugh, Slamming the Lid on Pandora’s Box:
How the Ohio Legislature Compensated the Insurance Industry
for Scott-Pontzer at the Expense of Ohio’s Drivers, 53 Case. W.
Res. L. Rev. 997 (2005).
Intellectual Property Law
Jeffrey F. Kersting, Singing a Different Tune: Was the Sixth Circuit
Justified in Changing the Protection of Sound Recordings in
BRIDGEPORT MUSIC, INC. V. DIMENSION FILMS?, 74 U. Cinn. L. Rev.
663 (2005).
Labor and Employment Law
Tara A. Aschenbrand, Ohio’s New Minimum Wage Law and
Indoor Smoking Ban: What Public Employers Need to Know, 55
Cities & Villages 7 (Mar/Apr 2007).
Ryan K. Hymore, TAYLOR V. D OUGLAS C O .: Applying Ohio’s
Prevailing-Wage Law to Institutions Supported in Whole or in
Part by Public Funds, 37 U. Tol. L. Rev. 497 (2006).
Neil Klingshirn, Ohio’s New Minimum Wage Law, 21 Ohio
Lawyer 8 (Mar/Apr 2007).
Sherrie J. Passmore, An Ohio Employment Law Update, 54 Cities
& Villages 17 (Mar/Apr 2006).
Laws and Legislation
David J. Barthel, A Healthy Tan is Better than Sunburn: Ohio’s
“Sunshine Law” and Nonpublic Collective Inquiry Sessions, 34
Cap. U. L. Rev. 251 (Fall 2005).
Real Property
John K. Keller and Gregory D. Russell, Amendments to Ohio’s
Dormant Mineral Act, 21 Ohio Lawyer 12 (Mar/Apr 2007)
Tax Law
Jon R. Stefanik II, C REW 4 Y OU , I NC . V. W ILKINS : The Ohio
Supreme Court Misapplies Statute and Precedent to Eliminate the
Resale Exception to Sales of Employment Services, 22 Akron Tax
J. 169 (2007).
Edward A. Zelinsky, Symposium: DAIMLERCHRYSLER V. CUNO and
the Constitutionality of State Tax Incentives for Economic
Development: Cuno: The Property Tax Issue, 4 Geo. J.L. & Pub.
Pol’y 119 (2006).
Tort Law
Janet G. Abaray, Déjà vu All Over Again: Ohio’s 2005 Tort
Reform Act Cannot Survive a Rational Basis Challenge, 31 U.
Dayton L. Rev. 141 (2005).
Michael Kahlenberg, Broken Record Lawmaking and Stare
Decisis: The Unconstitutionality of Ohio’s Latest Tort Reform
Effort, 37 U. Tol. L. Rev. 1087 (2006).
Robert S. Peck, Violating the Inviolate: Caps on Damages and the
Right to Trial By Jury, 31 U. Dayton L. Rev. 307 (2005).
kozlowski@sconet.state.oh.us
Ken Kozlowski,
Director of the Law Library,
Supreme Court of Ohio
Summer 2007 Columbus Bar Lawyers Quarterly 35
 New Law
Striking A Balance
OHIO’S HOME RULE AMENDMENT
By Matthew T. Green
I
n late 2006 the Ohio Supreme
Court, in American Financial
Services Assoc. v. Cleveland, struck
down several Cleveland ordinances
regulating certain predatory lending
practices. Two weeks later, in Cincinnati
v. B a s k i n , t h e O h i o S u p r e m e C o u r t
upheld a Cincinnati ordinance
prohibiting possession of certain
semiautomatic handguns. The legal
provision at the heart of both of theses
cases? Article XVIII, Section 3 of the
Ohio Constitution, commonly known as
the Home Rule Amendment.
The Home Rule Amendment is one
of the most important, but least
f a m i l i a r, p r o v i s i o n s i n t h e O h i o
Constitution. And its interpretation by
Ohio courts, particularly the Ohio
Supreme Court, plays a significant role
in shaping the powers of municipal
governments and mediating the
complicated relationship between the
state and municipalities.
While not an exact analogy, a good
way to think about the Home Rule
Amendment is similar to the relationship
between the federal and state
governments. Everyone understands the
United States is a dual-sovereign, federal
system of government in the sense that
both individual states and the federal
government have the ability to pass laws
regulating people’s conduct. There are a
variety of provisions in the United States
Constitution — the Supremacy Clause,
the Tenth Amendment, etc. — that both
provide guidance regarding what the state
and federal governments can regulate and
what to do when a conflict arises between
state and federal laws.
A similar relationship exists within
Ohio between the General Assembly and
individual municipalities, and it is the
Home Rule Amendment that governs this
relationship. Adopted in 1912, the Home
Rule Amendment states in its entirety:
Municipalities shall have
authority to exercise all powers
of local self-government and to
adopt and enforce within their
limits such local police, sanitary
36 Summer 2007 Columbus Bar Lawyers Quarterly
Cleveland predatory lending ordinance
and the Cincinnati gun control ordinance
did not involve powers of local self
government — because predatory lending
and gun control are legitimate matters of
statewide concern.
Even if a local ordinance was passed
pursuant a municipality’s police powers
(and not the powers of local self-
government), the ordinance will still be
enforced unless it conflicts with a general
law. To be a general law, the state statute
and other similar regulations, as
must actually prescribe a rule of conduct,
are not in conflict with general
and cannot simply attempt to grant or
laws.
limit the legislative power of a
municipality. To be in conflict, the state
Although only thirty-five words, there
statute must allow what the local
is a tremendous amount of nuance in the
ordinance prohibits, or prohibit what the
Home Rule Amendment. And this nuance
local ordinance allows.
has resulted in a significant amount of
In American Financial Services Assoc.,
litigation. Generally, Home Rule litigation
both the State and the City of Cleveland
centers around three questions: (1) Does
had passed laws regulating predatory
the subject matter of the regulation relate
lending. The Cleveland ordinance was
to a matter of local self-government? (2)
more restrictive in that it regulated more
Is the state statute a general law? (3) Is
types of loans. The court concluded the
there a conflict between the state statute
Cleveland ordinance conflicted with the
and the local ordinance?
state statute because it sought to regulate
The first issue in a Home Rule analysis
loans that, by not being regulated, had
is usually whether the municipal
been implicitly approved by the General
ordinance in question relates to a power
Assembly. In Baskin, the state statute at
of “local self-government” or a “police,
issue prohibited semi-automatic weapons
sanitary [or] other similar regulation”
with clips containing 32 or more rounds,
(commonly referred to as simply “police
while the Cincinnati ordinance prohibited
powers”). If a municipal ordinance relates
clips containing more than 10 rounds.
to a power of local self-government, then
Here, however, the court concluded the
the municipal ordinance takes precedence
Cincinnati ordinance did not conflict with
over any conflicting state statute. In other
the state statute because there was no
words, Ohio case law indicates that there
indication the state meant to approve of
is a sphere of subjects which are
guns with clips containing 31 or fewer
inherently local, or relate to matters of
rounds.
local self-government, over which the
Is there an explanation for the opposite
state should not be able to interfere.
holdings in American Financial Services
If a local ordinance is not passed
Assoc. and Baskin? Apart from the fact
pursuant to a municipality’s power of
that one case involved financial
local self government, then it is passed
institutions and the other involved guns,
pursuant to its police powers. A
arguably not. These cases, however,
municipality’s police powers are extensive
demonstrate not only the importance of
and extend to almost any conceivable
Ohio’s Home Rule Amendment, but also
topic. The limitation in the Home Rule
the difficult job the Ohio Supreme Court
Amendment, however, is that a police
has in striking the proper balance between
power ordinance is unenforceable to the
local control and state uniformity.
extent it conflicts with a general law
passed by the General Assembly.
Unfortunately, the demarcation line
between powers of local self-government
mgreen@szd.com
and police powers is not always so clear.
If an ordinance has no extraterritorial
effect, then traditionally it was considered
a power of local self-government.
However, if the subject is one of general
state interest, then it will pass from a
matter of local government to a matter
for state government. In both American Matthew T. Green,
Financial Services Assoc. and Baskin, for Schottenstein Zox
example, the parties agreed that the & Dunn

DUGAN & MEYERS:
Ohio Supreme Court
enforces contract terms
Despite alleged problems with owner’s plans
No one can afford to think, “Oh, the contract may say it requires
this, but we know that’s not the way things are done in the
industry.” The Ohio Supreme Court has spoken, and it has said
that contracts must be followed.
By Maureen P. Taylor
T
he Question
On a public construction project, do
numerous alleged problems with the owner’s
plans and specifications mean a contractor
no longer has to abide by the contractual
notice provisions in order to get additional
compensation? Two courts in Ohio — the
Court of Claims and the Court of Appeals
for the Tenth District (Franklin County) —
answered that question differently. So much
of the construction world in Ohio held its
collective breath waiting to see what the
Ohio Supreme Court would say.
On April 25, they had the answer: No.
Even if the plans require numerous changes
and clarifications, the contractor still has to
follow the terms of the contract. This
decision, sure to be talked about and cited
often, is reported at Dugan & Meyers
Construction Co., Inc. v. Ohio Dept. of
Administrative Services (April 25, 2007),
113 Ohio St.3d 226, 2007-Ohio-1687.
How The Dugan & Meyers
Case Arose
It made headlines in 2003, when a referee
for the Court of Claims recommended more
than a $3.3 million award to Dugan &
Meyers, the general trades contractor for
three buildings that are part of the Fisher
College of Business on The Ohio State
University campus.
It made headlines again in 2005, when, in
response to the State’s appeal, the Court of
Appeals for Franklin County reversed most
of that award in a decision that came out on
July 28, 2005.
It is making headlines once more, now
that the Ohio Supreme Court has agreed
with the Court of Appeals, saying that the
contractor is not entitled to recoup certain
losses from the State.
The dispute arose from a $20.9 million
contract that gave Dugan & Meyers 660
days to complete the work by June 11,
1999, a date that was later modified, by
agreement, to permit completion of one of
the buildings by July 11, 1999. Work
began in August 1997 and went well,
according to testimony, until the following
June. Once interior work started, delays
were common, allegedly due to problems
with the design documents. Dugan &
Meyers fell further and further behind but
made no written requests for an extension
of time after January 1998, according to
the Court.
Finally, OSU terminated Dugan &
Meyers, replacing it with Gilbane Building
Company, previously a construction
manager on the project. Under new
management, one of the buildings was
ready for use at the beginning of the fall
semester of 1999, with the other two
buildings following over the next four
months.
Before paying Dugan & Meyers, OSU
subtracted the amount it paid Gilbane to
finish the job, plus liquidated damages for
a delay of 188 days.
So Dugan & Meyers turned to the Court
of Claims, asserting that its delays were
caused primarily by inaccurate and
incomplete plans provided by the owner.
Trial went on for 17 days, and on June 27,
2003, the Court of Claims referee issued
New Decision
his recommendations, deciding almost all
issues in the contractor’s favor. The referee
determined that OSU’s termination of
Dugan & Meyers had been a breach of
contract, and that the university could not
invoke the liquidated damages clause of
the contract when its own allegedly faulty
plans caused much of the delay.
When the Court of Claims adopted
almost all of the referee’s recommen-
dations, the State appealed to the Tenth
District Court of Appeals.
The Appellate Decision
Of the ten issues appealed by the State,
the Court of Appeals discussed only four,
agreeing with the State on three. The other
six became moot because the court
reversed all of the original award except
the Court of Claims’ reversal of the
$264,340 backcharge for payment to
Gilbane — a part of the original decision
that the State had not appealed.
According to the Court of Appeals, the
award of “cumulative impact damages” —
compensation for the total effect of
numerous delays — was in error. The Court
of Claims had awarded delay damages
because of the “sheer numerosity” of the
Requests for Information, the court said.
But nothing in the record showed that “any
one RFI or group of RFIs rendered the
owner-furnished plans unbuildable or
otherwise wholly inadequate to accomplish
the purpose of the contract.” The court
also pointed out that each RFI included a
space for the issuing contractor to indicate
the expected impact on the construction
schedule, and the contractor “reported no
cost impact on any RFI that it issued, and
attributed only four days of delay to any of
its RFIs.”
The court remanded the case to the
Court of Claims with instructions to enter
a new judgment consistent with what the
Court of Appeals had said.
The Supreme Court Opinion
Then it became the contractor’s turn to
appeal, and it did so to the Ohio Supreme
Court. Many contractors’ organizations
filed amici curiae briefs in support of
Dugan & Meyers, to show their concern
Maureen P. Taylor,
Bricker & Eckler
Summer 2007 Columbus Bar Lawyers Quarterly 37
New Decision
for the issues and to provide some
guidance for the Court. On the side of the
State, one amicus brief argued that the
Court of Appeals’ decision should be
affirmed. (In the interests of full disclosure,
we should state that Bricker & Eckler
attorneys filed this brief on behalf of the
Ohio Municipal League, the Ohio School
Boards Association, the Buckeye
Association of School Administrators, and
the Ohio Association of School Business
Officials. Jack Rosati was also permitted to
participate in oral argument.)
Chief Justice Thomas Moyer, writing for
the majority, gave two reasons for
upholding the Court of Appeals decision:
The Court refused to extend the Spearin
doctrine, in cases of alleged delay, to make
it a substitute for or alternative to the
contractual change order process; and the
contractor had failed to follow specific
provisions in its contract relating to the
change order process and requiring the
contractor to put the owner on notice of its
potential claims in a timely manner.
What is the Spearin doctrine? This
theory originated in and took its name
from an old U.S. Supreme Court case,
United States v. Spearin (1918), 248 U.S.
132, that arose when sewers overflowed
because they had been constructed
according to inadequate plans. The Court
ruled that “if the contractor is bound to
build according to plans and specifications
prepared by the owner, the contractor will
not be responsible for the consequences of
defects in the plans and specifications.” So
the doctrine of an implied warranty of the
adequacy of plans was born.
Was this doctrine recognized in Ohio?
Dugan & Meyers argued at length that it
was and should be applied to the current
case. Agreeing that Ohio courts recognize
Spearin, the Supreme Court interpreted the
case more narrowly than the contractor
would have liked. Quoting from another
Tenth District case, Sherman R. Smoot Co.
v. Ohio Dept. of Administrative Services
(10th Dist. 2000), 136 Ohio App.3d 166,
the Court pointed out that Ohio
interpreted the doctrine as providing an
owner warranty of “affirmative indications
regarding job site conditions.”
No such affirmations were involved
here. As the Court said, “In contrast, the
case before us concerns the allocation of
damages flowing from delay in completion
of a construction project due to plan
changes.” So the Court dismissed the
Spearin doctrine with a brief comment:
Despite the interest in the Spearin
Doctrine and the arguments of
counsel for the various amici, we
38 Summer 2007 Columbus Bar Lawyers Quarterly
decline the opportunity to extend
the Spearin Doctrine from job-
site-conditions cases to cases
involving delay due to plan
changes.
Of more interest to the Court — and to
the State — were the specific contract
provisions that seemed to apply to Dugan
& Meyers’ claims. These provisions, which
the Court found Dugan & Meyers did not
follow, laid out what a contractor should
do when faced with plan changes, and
“where a contract is plain and
unambiguous,” the Court said, “it does
not become ambiguous by reason of the
fact that in its operation it will work a
hardship upon one of the parties thereto
and a corresponding advantage to the
other.” For this proposition, the Court
cited an 83-year-old Ohio Supreme Court
opinion, Ohio Crane Co. v. Hicks (1924),
110 Ohio St. 168.
What were these relevant provisions?
The Court pointed to three:
1) A “Time is of the essence” term
2) A specific procedure to follow if a
contractor were delayed
3)A “no damages for delay” clause,
making an extension of time the sole
remedy for delays
Discussion began with the last of these,
as the Court had to deal with the fact that
the General Assembly had acted in 1998 to
make such clauses void “when the cause of
the delay is a proximate result of the
owner’s act or failure to act.” Didn’t that
mean the Court could not enforce such a
clause? Not in this case, as the statute
voiding such clauses, R.C. § 4113.62(c),
was specifically not retroactive, and Dugan
& Meyers’ contract was already in
existence when the General Assembly
enacted the law.
Turning to the specific procedure to be
followed in case of delay (item 2, above),
the Court noted that the procedure was so
detailed as to take up 7 pages in the plan
documents. Could an implied warranty of
the plans and specifications — such as the
Spearin doctrine — trump such a detailed
contractual provision, making it
unenforceable? The Court thought not:
In the case at bar, even if the
plans required more changes
than originally contemplated, the
contract established a detailed
procedure to be followed for all
changes. In order to hold in favor
of Dugan & Meyers, we would
need, first, to find that the state
had implicitly warranted that its
plans were buildable, accurate,
and complete, and, second, to
hold that the implied warranty
prevails over express contractual
provisions. To do so would
contravene established precedent,
which we will not do.
For some of this established precedent,
the Court turned to other states, notably
Washington and Illinois, discussing cases
dating back to 1942. It also looked at one
unpublished federal court decision from
within Ohio, Ebenisterie Beaubois Ltee v.
Marous Bros. Construction, Inc. (Oct. 17,
2002), N.D. Ohio E.D. No. 02CV985,
2002 WL 32818011. That decision,
according to the Supreme Court, found
that Ohio courts have rejected cumulative
impact arguments in favor of enforcing
express contractual provisions.
The last issues of interest to the majority
were alleged fact-finding by the Court of
Appeals (not permitted by the rules) and
contractual notice requirements. Had the
Court of Appeals erred in rejecting the trial
court referee’s finding that the errors in the
design documents were the primary cause
of delay? Not according to the Supreme
Court opinion, which pointed out that the
no-damage-for-delay clause made the cause
of the delay irrelevant. As the Court noted,
the plans were not “unbuildable,” as the
buildings were completed after a new lead
contractor took over.
Finally, the contractor had argued that it
should be excused from the contractual
requirement to give notice of delays since
the State had actual notice that delays
would occur because of changes in the
plans. But the Supreme Court refused to
find that the State or the University had
waived this provision in the contract.
According to the majority, there was no
reason to overturn the Court of Appeals
decision, so it was affirmed.
The Dissenting Opinion
One justice sided with the contractor.
Justice Paul Pfeifer disagreed with the
majority’s refusal to extend Spearin; he
argued instead that the doctrine need only
be applied, not extended. After discussing
at length both the Spearin opinion and the
few Ohio cases applying it, he decided that
Dugan & Meyers’ complaint was very
similar to the complaint in Spearin:
Here, the principal cause of the
delay, as determined by the
finder of fact, was “an excessive
number of errors, omissions, and
conflicts in the design documents

furnished to bidders by the state
and incorporated into [Dugan &
Meyers’s] contracts.” There were
no shifting sands, no acts of God,
no surprising aquifers. As in
Spearin, the designs themselves
were the root of the problem.
Here, the contract contained
procedures for dealing with
design problems, but like the
overburdened sewer pipe in
Spearin, the procedure buckled
under the torrent of required
design changes.
Justice Pfeifer thought the Court of
Claims had the decision right, and the
appellate decision should have been
overturned. This position, of course, did
not prevail.
New Decision
What Can We Learn From No one can afford to think, “Oh, the
The Case? contract may say it requires this, but we
First of all, the Supreme Court took know that’s not the way things are done in
pains to clarify that it was not making any the industry.” The Ohio Supreme Court
new law. It was following precedent, has spoken, and it has said that contracts
including precedent from other states and must be followed.
jurisdictions. It did not abolish the owner’s
implied warranty that the plans can be
built. It merely warned that even plans
with errors and omissions can be built; Note: A slightly different version of this
they just may require more detailed, article appeared in the April 2007
careful adherence to the procedures for issue of Brickerconstructionlaw.com,
raising questions, giving notice, and published April 27, 2007.
documenting delays.
As the Court has on numerous mtaylor@bricker.com
occasions, it warned that it will enforce
unambiguous contract terms. Parties had
better know them and follow the
procedures they agreed to follow when
they entered into the contracts.
Summer 2007 Columbus Bar Lawyers Quarterly 39
 New Law
Strange Facts
MAKE STRANGE LAW
Making sense of Greer-Burger v. Temesi
By Kelly K. Curtis
B
oth Title VII of the Civil Rights
Act of 1964 and the Ohio Civil
Rights Act prohibit employers
from r etaliating against
employees who oppose unlawful
discrimination in the workplace. Such
anti-retaliation provisions are designed
“to enable employees to freely exercise
their rights without fear of retribution
from their employers.”1
Last summer, the U.S. Supreme Court
significantly expanded the scope of illegal
retaliation under Title VII. In Burlington
Northern & Sante Fe Railway Co. v.
White, the Supreme Court held that Title
V II’s an ti-retaliation pr ovision
“extends beyond workplace-related or
employment-related retaliatory acts and
harm.”2 The Court further explained that
unlawful retaliation includes any
employer conduct that would dissuade a
reasonable employee from engaging in
protected conduct.
While Bu rlington was limited to
retaliation claims brought under federal
law, Ohio courts frequently look to
federal case law interpreting Title VII
when construing similar provisions in the
Ohio Civil Rights Act.3 In Greer-Burger
v. Temesi, the Eighth District Court of
Appeals issued the first opinion applying
the Burlington standard to a retaliation
claim brought solely under Ohio law.4
In 1998, Tammy Greer-Burger sued her
former employer, Laszlo Temesi, alleging
that he engaged in a pattern of sexual
harassment during her employment.5 This
case proceeded to trial and the jury
returned a verdict in Temesi’s favor.
Approximately five months after the
jury verdict, Temesi filed a complaint
against Greer-Burger stating claims for
malicious prosecution, abuse of process,
and intentional infliction of emotional
distress.6 In response, Greer-Burger filed
a charge of discrimination with the Ohio
Civil Rights Commission alleging that
40 Summer 2007 Columbus Bar Lawyers Quarterly
Temesi violated Ohio’s anti-retaliation
provision by filing a lawsuit against her.
In essence, Greer-Burger alleged that
Teme si su b j e c t e d h e r t o u n l a w f u l
retaliation in the form of a civil lawsuit
after sh e p a rt i c i p a t e d i n p ro t e c t e d
activity.7 Following an investigation, the
OCR C f o u n d t h a t Te m e si ’s a c t i o n s
constituted unlawful retaliation and
enjoined Temesi from further prosecuting
his lawsuit against Greer-Burger. The
OCRC further ordered Temesi to pay
Greer-Burger $16,000 for attorneys’ fees.
Upon review, the Eighth District affirmed
the order of the OCRC.
Th e C o u rt o f A p p e a l s b e g a n i t s
analysis with the elements of a retaliation
claim under Ohio law: (1) the employee
engaged in protected activity; (2) the
emplo y e r h a d k n o w l e d g e o f t h e
employee’s participation in the protected
activity; (3) the employer took an adverse
employment action against the employee;
(4) a causal connection between the
prote c t e d a c t i v i t y a n d t h e a d v e rse
employment action. In this case, there
was n o d i sp u t e t h a t G re e r- B u r g e r
engaged in protected activity (filing the
sexual harassment suit) and Temesi was
aware of the protected activity (defending
the sexual harassment suit). The causal
connection between the protected activity
and the alleged retaliation was also
undisputed given the fact that Temesi’s
lawsuit was based entirely on Greer-
Burger’s prior lawsuit against him. Thus,
the Eighth District focused on whether
Greer-Burger had suffered an adverse
employment action.
At t h e o u t se t , t h e c o u rt re j e c t e d
Temesi’s argument, the fact that Greer-
Burger quit her job prior to filing her
original lawsuit precluded a finding of
“adverse employment action. Relying on
Burlington, the Eighth District held that
action taken against a former employee,
or post-employment conduct by the
employer, can constitute “adverse action”
for purposes of establishing a case of
retaliation. In reaching this conclusion,
the Eighth District focused on two facts:
( 1 ) Bu rl i n g t o n ’s h o l d i n g t h a t t h e
re t a l i a t o ry c o n d u c t n e e d n o t b e
employment-related; and (2) the language
of §4112.02(I), which protects “any
person” rather than “employees” from
retaliation. 8 The court ultimately held
t h a t t h e t h re a t o f d e f e nd in g a c iv il
lawsuit would dissuade a reasonable
employee from engaging in protected
activity (i.e. filing a sexual harassment
lawsuit) and, therefore, constituted an
“adverse employment action.”
Temesi appealed the decision of the
Eighth District to the Ohio Supreme
Court. 9 In his brief to the Supreme
Court, Temesi argued that Eighth District
violated his constitutional right of access
to the courts by enjoining the prosecution
of his claims and finding that filing a
lawsuit against Greer-Burger constituted
unlawful retaliation. 10 Temesi describes
the rule applied by the Eighth District as
an absolute prohibition on the right of a
prevailing employer to institute a civil
action against a former employee for
damages incurred as the result of false
a n d f ri v o l o u s d i sc ri m i n a t io n a n d
harassment claims. Temesi urges the
Supreme Court to adopt a rule that
establishes a more appropriate balance
between the rights of employees and
employers.
In response, the OCRC points out that
Temesi sued Greer-Burger because she
exercised her rights under R.C. Chapter
4112. Accordingly, the mere act of filing
h i s l a w su i t c o n st i t u t e d u n la w f u l
retaliation. The OCRC further argues
that there is no requirement under federal
o r st a t e l a w t h a t c o m p la in t s o f
discrimination be reasonable or made in
good faith and describes an “absolute
privilege for the filing of a discrimination
c h a rg e . ” W h i l e a c k n o w le d g in g t h e
existence of a right of access to the
courts, the OCRC maintains that the
right of access may be limited to prevent
improper use of the legal process (i.e.
“ u si n g l i t i g a t i o n a s a r e t a lia t o r y
weapon”). The OCRC urges the Supreme
Court to adopt a rule that the filing of a
su b se q u e n t l a w su i t b y a n e m p lo y e r
because of a prior discrimination claim is
per se unlawful.
The opinion in Greer-Burger demon-
strates the struggle to create a coherent
re t a l i a t i o n st a n d a rd i n lig h t o f
Burlington’s broad pronouncements. To
be sure, discrimination laws would be
rendered meaningless if employers could
 New Law

r e t a l i ate again st employees with
impunity. On the other hand, employers
must have some measure of protection
against employees who bring baseless,
and at times defamatory, complaints
against them. The decision in Greer-
Burger arguably takes Burlington to an
illogical extreme insofar as it forbids
e m p l o yers fro m o btaining complete
redress for injuries caused by employees
who co mplain about unlawful
discrimination.
It is unlikely that the Ohio Supreme
C o u r t will tak e th e position that
employees enjoy an absolute privilege
with respect to allegations of harassment
and discrimination without consideration
of tortious and defamatory conduct. It is
equally unlikely that the Ohio Supreme
C o u rt will tak e th e position that
employers have an unconditional right to
sue employees who are unsuccessful in
p ro s e c u ting discrimination claims
without consideration of the potential
that such action is retaliatory. Regardless
of the outcome, the Greer-Burger case
presents the Supreme Court with its first
opportunity to consider Burlington’s
application and scope as it relates to
retaliation claims under Chapter 4112. 8. R.C. §4112.02(I) makes it unlawful
Hopefully, for the sake of employers and for “any person” to discriminate
employees alike, the Supreme Court will against “any other person” in
enunciate a bright line rule that properly retaliation for opposing discriminatory
balances the competing interests and conduct.
provides employers with a manageable 9. The Ohio Supreme Court exercised
standard to guide their conduct. jurisdiction to hear the appeal on
10. Temesi derives his constitutional right
of access to the courts from the First
Amendment and Article 1, §16 of the
1. Coolidge v. Riverdale Local School Ohio Constitution.
Dist., 100 Ohio St.3d 141 (2003).
2. 126 S. Ct. 2405, 2414; 165 L.Ed.2d
345 (2006).
3. See, e.g., Plumbers & Steamfitters kcurtis@szd.com
Commt. v. Ohio Civil Rights Comm.,
66 Ohio St.2d 192, 196; 421 N.E.2d
128.
4. 2006-Ohio-3690.
5. Ms. Greer-Burger quit her job with Mr.
Laszlo prior to filing her original
action for sexual harassment.
6. Temesi maintains that his motivation
for filing suit was to recover actual
damages incurred as a result of being
falsely accused of sexual harassment.
7. O h i o ’s a n t i - r e t a l i a t i o n i s i n Kelly K. Curtis,
§4112.02(I) of the Ohio Revised Schottenstein Zox
Code. & Dunn

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Summer 2007 Columbus Bar Lawyers Quarterly 41

 New Law
What you should know about
Ohio’s New Homebuyers’
Protection Act
By Helen Mac Murray
A
s of the first of the year,
homebuyers in Ohio have a vast
array of new tools at their
disposal to prevent them from
becoming victims of predatory lending.
Although such illegal lending tactics occur
in a small percentage of lending
transactions, Ohio’s high foreclosure rates
have focused legislative and regulatory
attention to this issue. The Ohio
Homebuyers’ Protection Act (Act) provides
a vast and complex regulatory scheme to
address this issue.
The most significant feature of the Act is
that it now applies the Consumer Sales
Practices Act 1 to certain lending
transactions. The CSPA prohibits unfair,
deceptive and unconscionable conduct in
consumer transactions. Since its inception
in 1972, the CSPA has always exempted
financial institutions as defined in O.R.C.
section 5725.01 from the definition of
“consumer transaction.” The Act now
excludes from this exemption transactions
involving loan officers, mortgage brokers
and non bank mortgage lenders in
connection with residential mortgages.
In addition to applying the CSPA to
these entities, the Act also creates a new
code section, O.R.C. section 1345.031, of
prohibited unconscionable conduct for
these entities. These prohibitions include:
• Knowingly “flipping” a loan when the
new loan does not have a reasonable,
tangible net benefit to the consumer.
• Knowingly coercing or compensating an
appraiser to improperly influence his or
her opinion.
• Knowingly taking advantage of a
consumer’s inability to reasonably
protect their interests due to a known
physical or mental infirmity.
• Entering into a consumer transaction
when there is no reasonable probability
that the consumer can repay the loan.
• Knowingly replacing low or zero percent
loans without the current loan holder’s
written consent.
• Instructing the consumer to ignore
written information
42 Summer 2007 Columbus Bar Lawyers Quarterly
The Act also makes significant changes
to the Mortgage Brokers Act. 2 These
changes include:
• Enhanced continuing education
requirements
• Background checks
• Enhanced disclosures that brokers and
loan officers must make regarding items
such as fees, changes in material terms
and why they occurred, payment
information.
• Requiring that these disclosures be made
in a timely manner.
• Requiring brokers and loan officers to
give consumers a copy of their credit
report or score.
• Requiring that brokers act with
reasonable care, skill and diligence.
• Acting in good faith and fair dealing.
• Making reasonable efforts to secure a
loan with rates, charges and terms that
are advantageous to the borrower.
Appraisers are also affected by the Act.
Appraisers must now be licensed or
certified and must undergo background
checks.
The Act also adds new requirements to
Ohio’s title insurance laws. The Act now
requires title insurance companies to make
certain disclosures about whom the title
insurance insures and to offer borrower’s
closing and settlement protection. Any of
these violations are also deemed to be
violations of the CSPA.
Remedies under the CSPA for violations
may include civil suits brought by the
Attorney General or by the borrower.
Damages may include compensatory
damages, rescission, civil penalties, treble
damages and attorneys fees.
The Act also requires the Attorney
General to promulgate rules. These rules
help clarify some of the requirements and
prohibitions in the Act.
The rules provide in part:
• That determining whether a borrower
can repay a loan, a lender can use any
reasonable method including income and
cash flow verification, net worth,
employment status, credit score and tax
returns.
• That “knowledge” means actual
awareness or can be inferred from
objective manifestations indicating that
•
the individual acted with such
awareness.
That “compensate” includes promising
to continue to employ someone.
• That disclosure form must be given to
every consumer at closing.
• That reasonable tangible net benefit is
determined by a weighing of the relative
costs and benefits to the consumer of
replacing the consumer’s existing loan
with a new loan under the totality of the
circumstances.
The unconscionable terms of an
arbitration clause include terms that
preclude applicability of the CSPA, provide
for a shorter statute of limitations than the
law provides, limit the right to discovery,
require confidentiality, fail to provide for
an appeal process in the event of an
arbitrary decision, some mandatory
attorneys fee clauses.
The process provides the consumer with
the information document required by the
Act and a form for acknowledgement of
receipt of the form.
The Act contains a multitude of other
provisions that effect many areas of the
home mortgage lending process. It
provides many more avenues for
borrowers to pursue in the event they are
involved in an unfair transaction. It also
creates significant new liabilities for certain
entities involved in the lending industry.
These entities must become knowledgeable
in the new requirements and ensure that
their employees are aware of the new
requirements.
1.
O.R.C. § 1345.01 et seq.
2. O.R.C. § 1345.22 et seq.
hmacmurray@mcpslaw.com
Helen Mac Murray,
Mac Murray Cook
Petersen & Shuster

PREEMPTION OF STATE
SECURITIES REGULATION
Not So Fast
By Matthew L. Fornshell
I
n recent years, for many legitimate
reasons, Congress enacted legislation
preempting much of the states’
authority relating to the registration of
certain securities. However, recent
decisions issued by Ohio’s Tenth District
Court of Appeals and the United States
Sixth Circuit Court of Appeals have found
that federal preemption of state securities
regulation is not as broad as some would
suggest, making the “news of the demise”
of state securities regulation “greatly
exaggerated.”
The National Securities Markets
Improvement Act of 1996 accomplished
much of the securities industry’s desire to
create a uniform system of registration by
preempting state registration of “covered
securities.” Covered securities are broadly
defined in Section 18 of the Securities Act
of 1933 and generally include those
securities that are listed on certain
national exchanges or are registered
mutual funds.
However, the definition of covered
security also includes securities sold
pursuant to rules and regulations adopted
under Section 4(2) of the ’33 Act. These
transactions are commonly known as
“private placements” because they involve
“transactions by an issuer not involving
any public offering.” Rule 506 of
Regulation D was adopted by the SEC
under the authority of Section 4(2) to
establish guidelines that, when followed
by an issuer, create a safe harbor under
which issuers can not only sell securities
that are not deemed to be a transaction
involving a public offering, but also
qualify as covered securities, and are
therefore, exempt from state registration
requirements as a result of the preemptive
language in NSMIA.
The conventional thought among many
issuers has been that the preemptive
language of NSMIA is triggered the
moment an issuer claims that a given
transaction is being sold pursuant to Rule
506 of Regulation D, without any further
showing that the rules governing the safe
harbor have been satisfied. Not
surprisingly, states object to this position
and argue that merely stating a transaction
is a 506 deal is not enough; you have to
establish that you are entitled to the safe
harbor before state registration
requirements will be preempted by
NSMIA. The recent decisions issued In
the Matter of Blue Flame Energy
Corporation, et al. v. Ohio Department of
Commerce, 2006 Ohio 6892; 2006 Ohio
App. LEXIS 6809, and Brown v.
Earthboard Sports USA, Inc., et al., 2007
WL 777491 (6th Cir. (Ky.)) resolved this
question in favor of the states.
In Blue Flame, the Ohio Department of
Commerce appealed a judgment from the
common pleas court reversing and
vacating a cease and desist order issued by
the Department’s Division of Securities
against Blue Flame Energy Corp., and
others, for violating Ohio’s securities
registration requirements. Blue Flame
argued that Ohio’s ability to require
registration, or even to determine the
availability of the Rule 506 safe harbor,
was preempted the moment it claimed the
securities were being sold pursuant to Rule
506. Even though the common pleas court
judge found that there was “reliable,
probative and substantial evidence” to
support the hearing examiner’s conclusion
that Blue Flame’s offer and sale of
securities failed to qualify under Rule 506,
the common pleas court nonetheless
agreed with Blue Flame’s interpretation of
NSMIA’s preemptive language.
The Division argued that NSMIA only
prohibits states from regulating securities
that actually are covered securities. The
appellate court agreed with the Division.
The Court reasoned that the plain wording
in NSMIA evidenced the unambiguous
intention of Congress to preempt state
registration only in those instances when
the security actually is a covered security.
The Court relied on the statutory
definition of covered security, wherein it
states that a “security is a ‘covered
security’ if it is exempt from
New Law
registration….” In rejecting Blue Flame’s
argument that mere reliance on Rule 506
was enough to trigger the preemptive effect
of NSMIA, the Court noted that to adopt
Blue Flame’s position “would allow an
issuer to avoid any state regulation or
liability under state law simply by claiming
compliance with Regulation D.”
In Brown v. Earthboard Sports USA,
Inc., the Sixth Circuit Court Appeals
became the first federal appellate court to
address the scope of the preemptive
language in NSMIA limiting the
applicability of state registration laws in
Rule 506 offerings. The parties in Brown
made many of the same arguments as those
in Blue Flame, and like the common pleas
court in Blue Flame, the district court
found that so long as an issuer relied on
Rule 506 in its offering, NSMIA
preempted state registration requirements.
However, just as the common pleas court
was reversed in Blue Flame, so was the
district court in Brown. Like the court in
Blue Flame, the Brown Court concluded
that the unambiguous language of NSMIA
requires that the securities actually satisfy
the elements of Rule 506 before they will
meet the definition of covered security.
State securities regulators have
experienced a significant reduction in their
regulatory authority in recent years; much
of it well founded. Legislation such as
NSMIA represented a major step toward
preempting state registration authority in
furtherance of a policy favoring efficient
capital markets. However, certain issuers
have liberally construed the definition of
covered security in an attempt to avoid
legitimate state registration requirements.
Although there are decisions in other states
and other circuits expressing a different
position than the decisions issued in Blue
Flame and Brown, the law in Ohio and the
Sixth Circuit is simple and clear: a Rule
506 offering is only a covered security
when the issuer actually complies with
Rule 506, otherwise it is a public offering
subject to the registration jurisdiction of
the states.
mfornshell@szd.com
Matthew L. Fornshell,
Schottenstein Zox
& Dunn
Summer 2007 Columbus Bar Lawyers Quarterly 43
Employment Law
Vicarious
Liability
IT’S MORE COMPLEX THAN YOU THINK
By Dale K. Perdue
V
icarious liability is legal liability
that will be “suffered” by one
person as a substitute for
another. It is a common law
doctrine dating back to 1698 in the Court
of King’s Bench in England. The liability is
“vicarious” because it does not run directly
from the party assuming it (the principal)
to the claimant, but is rather derived from
the party whose conduct is actionable (the
agent). In other words, liability is imputed
to the principal by virtue of the
relationship.
The doctrine of vicarious liability is
actually a conceptual umbrella, under
which there are various legal relationships
that impose liability upon one person (or
entity) for the actions of another.
Although there are many relationships
that can give rise to vicarious liability, this
article will examine several of those most
common.
Vicarious liability arising from the
employment relationship finds its roots in
the doctrine of respondeat superior,
meaning that the master answers for the
servant. It requires three elements: master
(employer), servant (employee), and
control.
In order to create vicarious liability, the
work performed must be substantially
within defined time and geographical
limits; it must be within a job description;
and it must be done with the intent to
further the employer’s business. These
factors determine whether the employee
was within the “course and scope of
employment” at the time the actionable
conduct occurred. If so, the employer is
vicariously liable for the actions of the
employee.
A common question is whether an
employee is in the course and scope of
44 Summer 2007 Columbus Bar Lawyers Quarterly
employment during certain types of
travel. An employee is not in the course
and scope of employment during the trip
from home to a fixed place of
employment (an office, for example) and
during the return trip. This is known as
“the coming and going” rule. However,
what constitutes a fixed place of
employment can be a question of fact.
The case of Boch v. New York Life Ins.
Co., 1 involved an insurance agent who
caused a motor vehicle accident while
driving his personal vehicle to a training
session at a remote site. While the
training session was not held at the
agent’s regular office, it was held at the
same place every Monday morning, and
the agent was required to attend. In
holding that the agent was not within the
course and scope of his employment at
the time of the accident, the Ohio
Supreme Court set forth a three-pronged
test for determining when travel is within
the course and scope of employment.
The court held that an employer would
be liable only where the following are
established:
The employer had expressly or
impliedly authorized the employee to use
his own automobile while doing the
work he was employed to do; the
employee was, at the time of such
negligence, doing work that he was
employed to do; and the employee was
subject to the direction and control of
the employer in the operation of the
employee’s automobile while using it to
do the work he was employed to do.
A seemingly contrasting result was
reached by the Ohio Supreme Court in the
case of Amstutz v. Prudential Ins. Co. of
America (1940).2 In that case, an insurance
agent drove his personal vehicle to an
insured’s job site to pick up a premium. On
the return trip home, the agent was
involved in a motor vehicle accident. The
Supreme Court held that the agent was
within the course and scope of his
employment, reasoning that “[t]he return
trip . . . is deemed as much within the
course and scope of his employment as his
outgoing trip.” Significantly, Amstutz was
cited in Boch, yet it was neither overruled
nor modified.
Before leaving the subject of travel, it
is instructive to look at the case of
Kowars v. Yount.3 In that case, a business
executive attended a dinner party at a
country club. The party was attended
only by other senior executives and,
a c c o rd i n g t o t h e C E O , w a s f o r t h e
purpose of creating good will among the
executives. The executive in question was
involved in a motor vehicle collision on
his way home from the dinner. The court
held that if the dinner was a business
function, then the executive was within
the course and scope of his employment
on his trip home.
Questions of vicarious liability
frequently arise in cases involving
independent contractors. The general rule
is that there is no vicarious liability for the
acts of an independent contractor. As with
all relationships that impute liability to
another, the key factor is who had control
over the work. In Gilllum v. Indus.
Comm.,4 the Supreme Court of Ohio set
forth nine factors to consider in
determining whether the principal
exercised sufficient control over the
independent contractor to impose vicarious
liability.
1. The extent of control that, by the
agreement, the master may exercise over
the details of the work;
2. Whether or not the one employed is
engaged in a distinct occupation or
business;
3. The kind of occupation, with reference
to whether, in the locality, the work is
usually done under the direction of the
employer or by a specialist without
supervision;
4. The skill required in the particular
occupation;
5. Whether the employer or the worker
supplies the instrumentalities, tools, and
the place of work for the person doing
the work;
6. The length of time for which the person
is employed;
7. The method of payment, whether by the
time or by the job;
8. Whether or not the work is a part of the
regular business of the employer; and
 Employment Law

9. Whether or not the parties believe they
are creating the relationship of master
and servant.
An exception to the general rule that a
principal bears no liability for the acts of
an independent contractor is that an
employer cannot insulate itself from
liability for a nondelegable duty. There are
two types of nondelegable duties:
affirmative duties and inherently
dangerous duties.
Affirmative duties are those imposed by
statute, contract or common law and
include, for example, the duty of a
municipality to keep its streets safe.
Inherently dangerous duties have been
defined by the Ohio Supreme Court as
work creating a risk that is not a normal,
routine matter of customary human
activity, such as driving an automobile, but
is rather a special danger to those in the
vicinity arising out of the particular
situation created, and calling for special
precautions. 5 Examples of inherently
dangerous activities include the hiring of
armed guards or blasting with explosives.
Interstate trucking cases present
different issues for imposing vicarious
liability. In Wyckoff v. Marsh Bros.
Trucking Service, 6 the Ohio Supreme
Court established the doctrine of statutory
employment. In Wyckoff, the Ohio
Supreme Court held that I.C.C. regulations
(now Federal Motor Carrier Safety
Administration Regulations) created an
irrebuttable presumption of an
employment relationship — or a statutory
employment relationship — between the
carrier-lessee and the driver of a truck
displaying the number of the carrier-lessee.
The Court reasoned that the doctrine of
statutory employment relieved “. . . the
innocent victim from the sometimes
interminable delays that accompany
multiple-party litigation, by focusing
liability . . . on the statutory employer, it is
the statutory employer who must seek
contribution or indemnification from other
potentially responsible parties, not the
innocent victim.”
Subsequently, the American Trucking
Association, Inc. and the Interstate
Truckload Carriers Conference petitioned
the Interstate Commerce Commission to
amend 7 the I.C.C. regulation on which the
Court based its decision in Wyckoff.
In 1992, the Commission amended the
regulation. 8 Wyckoff has never been
overturned, however, in light of the 1992
amendment, it is at least conceivable that it
could be in the future.9
Another relationship that can create
vicarious liability is agency.
There are three requirements for an
agency relationship: a principal directs
an agent to act of behalf of the principal;
the agent accepts the undertaking; and
the principal is in control of the
undertaking.
A mere agency relationship does not
create vicariously liability; it requires the
vital element of control. A form of agency
that can create vicarious liability is agency
by estoppel, imposing liability on the
principal where the principal, through
words or actions, induces another to act to
Dale K. Perdue,
Clark Perdue Arnold
& Scott

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Summer 2007 Columbus Bar Lawyers Quarterly 45

Employment Law
The Comer case provides the perfect segue to a somewhat chilling
practice pointer... Liability of a principal for actionable conduct of the
agent flows through the agent by virtue of the agency relationship. The
vicariously liable party does not engage in the actionable conduct; an agent
or employee does. The agent’s liability is imputed to the principal.
his or her detriment. The keys to agency by
estoppel are inducement and reasonable
reliance.
In 1990, the Ohio Supreme Court
decided the case of Albain v. Flower
Hospital.10 The issue was whether a group
of emergency room physicians,
independently incorporated, were agents of
the hospital so as to create vicarious
liability. In this case, the plaintiff had been
transported to Flower Hospital by
paramedics “solely because Flower
Hospital was the closest hospital.”
Construing the facts narrowly, the Court
held that the plaintiff had not been
“induced” by the hospital to seek care from
its emergency room physicians, nor had the
plaintiff sought such care in reliance upon
the representations of the hospital.
Accordingly, the Court found no agency by
estoppel and hence no vicarious liability.
In Clark v. Southview Hospital, 11 the
Court took a more expansive view of the
same issue in light of advertising by
hospitals. In finding agency by estoppel,
the Court found that the hospital was
vicariously liable for the negligence of
independent physicians working there,
stating in its Syllabus as follows:
A hospital may be held liable
under the doctrine of agency by
estoppel for the negligence
of independent medical
practitioners practicing in the
hospital when: (1) it holds itself
out to the public as a provider of
medical services; and (2) in the
absence of notice or knowledge
to the contrary, the patient looks
to the hospital, as opposed to the
individual practitioner, to
provide competent medical care.
In 2005, the Ohio Supreme Court
revisited the subject of agency by estoppel,
once again in the context of emergency
room physicians, but with respect to a
different issue. In Comer v. Risko,12 the
plaintiff claimed to have been injured by
independent emergency room physicians
working at Knox Community Hospital.
46 Summer 2007 Columbus Bar Lawyers Quarterly
However, instead of bringing an action
against the physicians and the hospital, the
plaintiff commenced an action only against
the hospital, alleging vicarious liability by
virtue of agency by estoppel.
When the statute of limitations had run
against the physicians, the hospital moved
for summary judgment on the basis that its
liability was vicarious and derivative of the
liability of the emergency room physicians.
Therefore, since there was no longer a
viable claim against the physicians, there
could be no claim against the hospital.
The Supreme Court concluded that, “a
direct claim against a hospital premised
solely upon the negligence of an agent who
cannot be found liable is contrary to basic
agency law.” Consequently, the Court held
“. . . agency by estoppel is a derivative
claim of vicarious liability whereby the
liability of the hospital must flow through
the independent-contractor physician . . . .
there can be no viable claim for agency by
estoppel if the statute of limitations against
the independent-contractor physician has
expired.”
The Comer case provides the perfect
segue to a somewhat chilling practice
pointer. Remember the historical origins of
vicarious liability? Liability of a principal
for actionable conduct of the agent flows
through the agent by virtue of the agency
relationship. The vicariously liable party
does not engage in the actionable conduct;
an agent or employee does. The agent’s
liability is imputed to the principal.
In legal parlance, the agent is primarily
liable, and the principal is secondarily
liable. 13 Furthermore, if the principal is
obligated to pay damages as a result of the
conduct of an agent, the principal is
subrogated to the rights of the injured
party for the damages paid. Therefore,
releasing the primarily liable agent destroys
the principal’s right of subrogation (against
its agent) and thereby destroys the basis for
vicarious liability.14
Accordingly, when seeking to hold a
principal liable in damages on the basis of
vicarious liability, it is essential to preserve
all rights against the primarily liable agent,
including commencing an action against
the agent within the applicable period of
limitations and not releasing the agent
until full satisfaction is obtained from the
principal.
1. Boch v. New York Life Ins. Co. (1964),
175 Ohio St. 458
2. Amstutz v. Prudential Ins. Co. of
America (1940), 136 Ohio St. 404
3. Kowars v. Yount (Ohio App. 5 Dist.),
2004 Ohio 6260, 2004 WL 2676341
4. Gilllum v. Indus. Comm. (1943), 141
Ohio St. 373
5. Pusey v. Bator (2002), 94 Ohio St.3d
275
6. Wyckoff v. Marsh Bros. Trucking
Service (1991), 58 Ohio St.3d 261
7. 49 C.F.R. 1057.12(c)
8. (4) Nothing in the provisions required
by paragraph (c)(1) of this section is
intended to affect whether the lessor or
driver provided by the lessor is an
independent contractor or an employee
of the authorized carrier lessee. An
independent contractor relationship
may exist when a carrier lessee
complies with 49 U.S.C. 14102 and
attendant administrative requirements.
9. Two Ohio appellate courts have
suggested that the Ohio Supreme Court
may want to revisit: Hughes v. Brogan
(Ohio App. 10 Dist.), 1995 WL 12110;
Bookwalter v. Prescott (2006), 168
Ohio App.3d 262, 859 N.E.2d 978,
2006 WL 307699.
10.Albain v. Flower Hospital (1990), 50
Ohio St.3d 251
11.Clark v. Southview Hospital (1994), 68
Ohio St.3d 435
12.Comer v. Risko (2005), 106 Ohio St.3d
185
13.Losito v. Kruse (1940), 136 Ohio St.
190
14. Wells v. Spirit Fabricating, LTD. (1996), 113
Ohio App.3d 28; Dickerson v. Yetsko (Nov.
22, 2000), Cuyahoga App. No. 77636
dperdue@cpaslaw.com

The Lie Detectors
THE HISTORY OF AN AMERICAN OBSESSION
Finding an easy, efficient and accurate means of ferreting out the
lying person from the honest one has been an obsession of
mankind... Every society has attempted and ultimately failed to
make human actions transparent.
By Ken Alder, Reviewed by Janyce C. Katz
W
hat does a lie detector have in
common with curled toes,
chewing rice, licking a hot
poker and a blush on the
cheeks?
All of the above have been used as a
means of assessing the truthfulness of an
individual. All “succeed” by using a
combination of pretense and psychological
bullying.
Finding an easy, efficient and accurate
means of ferreting out the lying person from
the honest one has been an obsession of
mankind. The search for an entry into the
soul is found in ancient myths as well as in
the Bible. Every society has attempted and
ultimately failed to make human actions
transparent.
Once popular in twelfth through
eighteenth century Europe, “inquisitorial
justice” — something closely resembling
what we would classify as torture — became
a common method of ascertaining “truth,”
using pain as a means to elicit words.
Torture of the body was a means not only to
try to find out what really happened but also
to save the soul of the one questioned. Being
burned alive in order to extract an utterance
of “truth” was considered far better than the
everlasting torment allegedly waiting
elsewhere for the sinner who did not confess
and repent before death.
However, like the rice-produces-dry-
mouth-in-lying-people test, the inquisitorial
justice method could not be relied upon to
produce truth. Beat a person with heated
iron sticks and he just may utter a
“confession” in order to try to stop the pain.
Conversely, a person actually guilty but
lacking a conscience may say nothing. For
that reason, some religions and nations have
prohibited the use as judicial proof torture
and any confessions that arise from its use.
The lie detector promised to use
technology to produce a just, honest and
painless means of extracting Truth from
an individual. If it works, it does so in
part based upon the psychological make-
up of the individual questioned and in
part because of the manner in which the
questioner proceeds. However, so strong
is popular belief in the validity of the
results, lack of scientific proof not
withstanding, the refusal to submit to the
test is often trumpeted as an admission
of guilt by those who should know
better.
The use of a machine to test bodily
responses to questions grew out of the belief
in science and progress popular at the end of
the 19th and beginning of the 20th centuries.
Science tackled the evolution of mankind
and of societies. Scientists attempted to
determine the nature of emotions and to
discover if people and the societies in which
they lived could be altered by outside forces
or if they were shaped by their own,
internal, not-to-be-changed dynamics.
An emotion was merely the result of the
brain registering a physical manifestation,
wrote Harvard psychologist William James.
One of the founders of modern psychology,
James set the stage for the idea that a
machine could be developed to detect guilt
by picking up the nuances in physical
actions.
Clearly, the lie detector is a modern,
scientifically-based version of the other
attempts to elicit Truth from a reluctant
human. That someone who committed a
crime would have thoughts that would be
reflected physically was the theory behind
toes curling or the blush that allegedly
determined guilt or the physical changes
found by a machine.
In his well-written book, Ken Adler
traces the history of the “coterie of
American psychologists” who “set out to
decipher the operations of the human mind
by peering beneath the skin.” These
Book Review
psychologists, drawing on the new theory
that emotions were merely physiological
responses, recorded the body’s changes
under psychological pressure from an
interrogator.
One key player in this story was William
Moulton Marston, Harvard psychologist,
lawyer and inventor of the cartoon
character “Wonder Woman.” Marston had
studied psychology with Hugo
Munsterberg of Harvard, a German émigré
and a protégé of William James.
Munsterberg’s study of human emotions
challenged the prevailing legal methods for
assessing personal responsibility. Marston
took the theory further, deciding that a
blood pressure test could be used to
distinguish someone who enjoyed lying
from a confident truth teller.
John Larson used Marston’s theory,
combining it with a means of recording
blood pressure developed in the 19th
century, to develop a machine that
automatically recorded changes. Larson
first used his device on a group of young
women living in a boarding house near
Berkley University, forcing one young lady
to admit that she had been stealing.
Another key person, Leonarde Keeler,
was awed by the possibilities of the lie
detector when he watched Larson extract a
confession. Keeler became an expert at
manipulating the emotions of individuals in
order to make them confess. He used the lie
detector along with his psychological
power to determine the trustworthiness of
individuals being hired for jobs as well as
the guilt of alleged criminals.
While the book is footnoted, I found
myself looking for more documentation as
to the sources for some of Adler’s facts or
ideas. Further, this device represents the
merger of several key streams of intellectual
and social thought. Adler weaves some
intellectual history in and out of his
superbly written narrative. I wanted more.
That being said, Adler has written a book
worth reading.
jkatz@ag.state.oh.us
Janyce C. Katz,
Ohio Attorney General
Taxation Section
Summer 2007 Columbus Bar Lawyers Quarterly 47
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