BarBriefs March 2022 - TRUSTEE'S MESSAGE
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March
2022
The Off icial Magazine of the DBA
BarBriefs
TRUSTEE'S MESSAGE diversity issues from the judge's desk
Pivoting Into the Future Diversity Is Not Enough The Science of Sentencing
pg 6 pg 16 pg 22
BarBriefs
DBA Board of Trustees
71
vol.
March
2022 7
no.
2021-2022
Merle F. Wilberding
Contents
President Columns:
Caroline H. Gentry
First Vice President
4
PRESIDENT'S
The Energy of Dayton
By Merle Wilberding Esq. | Coolidge Wall Co., LPA
Anne P. Keeton MESSAGE
Second Vice President
Hon. E. Gerald Parker Jr.
Treasurer
6
TRUSTEE'S
Pivoting Into the Future
By Anne P. Keeton Esq. | Freund, Freeze & Arnold, LPA
MESSAGE
Michael J. Jurek
Secretary
Ebony D. Davenport
22
JUDGE'S
The Science of Sentencing
By The Honorable Mary E. Montgomery | Montgomery County Common Pleas Ct
Member–at–Large DESK
James H. Greer
Member–at–Large Features:
Justine Z. Larsen
Member–at–Large 8
BARRISTER OF
Deborah Adler Esq.
By Morgan Napier Esq. | Faruki+ PLL
Sean P. McCormick THE MONTH
Member–at–Large
Fredric L. Young
Immediate Past President
10
APPELLATE
Mandates: You Can't Always Get What You Want,
But If You Try Sometimes You Just Might Find
LAW You Get What You Need.
John M. Ruffolo, ex officio By Jeffrey Sharkey Esq. & Raika Casey Esq. | Faruki+ PLL
16
Bar Counsel
Diversity Is Not Enough
Jennifer Otchy, ex officio By Julie E. Zink Esq., Prof. of Lawyering Skills | University of Dayton School of Law
DIVERSITTY
Chief Executive Officer
ISSUES
BAR BRIEFS is published by the
Dayton Bar Association, 109 N. Main
St., Ste 600, Dayton, OH 45402–
20
JUVENILE
Trauma Informed Village
By Serah Siemann Esq. | Siemann Law Office
1129, as its official publication for LAW
25
all members. Comments about this
publication and editorial material Jonathan Sutermeister Esq. WilmerHale
can be directed to the DBA office. The By Zach White Esq. | Coolidge Wall Co., LPA
RISING
DAYTON BAR BRIEFS is published STAR
September through Summer.
Departments:
Paid subscription: $30 / year
9 March 2022 DBA Section Meetings
Library of Congress ISSN #0415–0945
Jennifer Otchy 14 March 2022 DBA CLE Calendar & On-Demand CLE
Chief Executive Officer
Shayla M. Eggleton
Communications Manager Also Inside:
Phone: 937.222.7902
www.daybar.org 20 LAW RELATED ORGANIZATIONS
Dayton Bar Foundation pg 26
Greater Dayton Area Diversity, Equity & Inclusion Legal Roundtable pg 27
The contents expressed in the publication
Greater Dayton Volunteer Lawyers Project pg 28
of DAYTON BAR BRIEFS do not
University of Dayton School of Law pg 29
reflect the official position of the DBA.
30 MEMBERS ON THE MOVE
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2021-2022
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Providing annual financial support and partnership in our mission to further the
administration of justice, enhance the public’s respect for the law, and promote
excellence & collegiality in the legal profession.
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For more than 165 years, Coolidge Wall has had a singular mission – provide trusted and collaborative legal counsel
to businesses and individuals throughout the Dayton region – giving our clients the attention, experience and advice
needed to help them achieve their goals. Since 1853, we have stayed true to our Dayton roots and strong in our
commitment to be the local, full-service law firm your business can count on today and for years to come.
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actions; antitrust; securities; unfair competition (trade secrets and New working models” by The Financial Times. For 5 straight
covenants not to compete); employment; advertising, media and years, Thompson Hine has distinguished itself in all areas of
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intellectual property and product liability. While its trial practice has been recognized as one of the top 4 firms for “Value for the
is national, the firm has always been, and continues to be, commit- Dollar” and “Commitment to Help” and among the top 5 firms
ted to the local legal community. “making changes to improve the client experience.” The firm’s
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If you are interested in becoming a DBA Annual Partner, contact:
3
Jennifer Otchy, DBA CEO | jotchy@daybar.org | 937.222.1364
Column
President's Message:
The
of Dayton
Photographed at left:
Bing Davis, Susan Elliott
and Merle Wilberding
to the education he would need, so that he could use his artistic talent to
express what he could see and feel in the world around him. That education
eventually brought him back to Dayton as an art teacher.
A week or two after the presentation, Tom Archdeacon published a great
column on Bing, highlighted (in my mind) by his quote from Bing about a
personal revelation that has since defined him.
“In 1966, I stopped teaching art and
began teaching people. I found you could
L
ast month I attended Willis “Bing” Davis’ presentation about his
“Kneel” exhibition at The Contemporary Art Gallery. His Kneel
art represents his protest against police brutality, connecting Derek use art as an agent of change and help
Chauvin’s fatal kneeling on George Floyd’s neck and Colin Kaepernick’s
kneeling in protest as the national anthem was played during football games. build better people.”
Bing explained that in creating this art exhibit, he decided to use old foot-
balls from Dunbar High School because he wanted to reflect their heavy use
by the many young African-Americans who would have touched them with
their own hands, pouring their energy into them. Then Bing scoured junk
yards and warehouses to find scraps of used wood that he could use to build
the cradles for the kneeler, so that other pieces of Dayton were part of the art.
This was an inter-active exhibition in the sense that it invited visitors to
kneel on the football and experience the art in a personal way. I found that
kneeling down, even for a second or two, invoked a sense of humility and
awe as the gravity of the protest sank in.
In his remarks at The Contemporary Art Gallery, Bing thanked the
Dayton community because, as he said,
Dayton’s special energy has invigorated
him to do his best.
I was struck by Bing’s vision that his art
pulls in the energy of the community. He
shared the many opportunities Dayton has
given him over his past 80+ years, starting
as a Negro All-State basketball player at
Wilbur Wright High School and then
playing basketball at DePauw University.
He had wanted, even as a young child, to
be an artist, and a coach pointed out to
him that his athletic ability was the vehicle
4 DAYTON Bar Briefs | MARCH 2022
Although the "Kneel" exhibit
at The Contemporary Art
Gallery has ended,
catch up with Bing at the:
Willis "Bing" Davis Studio
and Ebonnia Gallery
1135 W. Third St.
Dayton, Ohio 45402
937.223.2290
bingdavis.tripod.com
Bing invoked the energy of Dayton to capture his talents to bring about Professor Myla Cardona-Jones, the DBA Social Justice Initiative chaired by
change. It struck me that this is the spirit we want in our bar association and Magistrate Judge Caroline Gentry, and the Diversity Roundtable chaired by
in our community We see the energy of Dayton all around us: The redevelop- Thompson Hine senior partner, Wray Blattner.
ment of the Arcade, Carillon Park, our resident eagles (Orv & Willa), our I would encourage everyone to think about what they can do to promote
universities and medical centers, the Dayton Dragons, the Dayton Literary diversity, equity and inclusion in our communities. All of us have our own
Peace Prize, and the Wright-Dunbar District. I thought then, and I think talents and skills, can use in our own ways, whether that means an active
now, that we as lawyers can invoke the energy of Dayton to capture our own protest, a quiet prayer, or other good deed. Every act inches us forward, both
skills and abilities as agents of change. Our words and actions as lawyers can individually and collectively, as we need move the needle a bit in the right
help build better people and a build a better community. direction.
We can see already the many initiatives being taken to promote diversity, At the DBA we have had and continue to have many opportunities to move
equity, and inclusion in the Dayton legal community, the Dayton justice the diversity, equity, and inclusion needle forward, encouraging our members
community, and the Dayton community at large, initiatives such as the to volunteer for a day at the Food Bank, to volunteer for Wills for Heroes,
DBA Diversity Committee chaired by UD Professor Julie Zink and Sinclair or to accept a case from the Voluntary Lawyers Project, the Legal Aid for
Western Ohio (LAWO), or the Advocates for Basic Legal Equality (ABLE).
We can sponsor one or more of the Law & Leadership Institute students
who are looking for an opportunity to shadow a lawyer or law firm to help
them identify and visualize their own goals of someday becoming a lawyer.
We can attend the Joseph Cinque Scholarship Banquet on March 4th and
support Black Law Students Association (BLSA) as its sponsor.
All of these efforts deserve our participation and support and, whether
they are giant steps or little steps, they are steps in the right direction. We
need to expand our horizons, even if sometimes we are just moving at all
deliberate speed.
Bing Davis invokes the energy of the Dayton community in using his art
to get people to think about the diversity, equity and inclusion. I think we
can also use that energy in our diversity, equity and inclusion programs to
make a difference in our communities. I will quote Jonathan Hollingsworth
again, “We are in the greatest profession in the world. We can make a dif-
ference.” So, let’s work together to make a difference in our legal
community, our justice system, and our community.
By Merle Wilberding Esq.
Coolidge Wall Co., LPA
Wilberding@coollaw.com
MARCH 2022 | DAYTON Bar Briefs 5
Column
Trustee's Message:
Pivoting Into the
Future By Anne P. Keeton Esq.
DBA Second Vice-President
Freund Freeze & Arnold,
A Legal Professional Asociation
akeeton@ffalaw.com
M
erriam-Webster defines “pivoting” as “an adjustment or modifica-
tion made … to adapt or improve.” I think it’s safe to say we’ve
all found ourselves doing a bit of pivoting in the past few years.
Whether in our personal lives, re-evaluating priorities to focus on health
and family, or in our profession, re-dedicating ourselves to our practices and
client service under the constraints of COVID, we’ve all recognized the need
for resilience. We’ve all found ways to adapt to the dreaded “new normal.”
We’ve all pivoted.
The DBA is no exception. Over the past year, the DBA implemented
technology, initiatives, and public services to accommodate the changing
landscape of the legal practice and the needs of our members. Recogniz-
ing that virtual and hybrid meetings and events are here to stay, the DBA
invested in new technologies to help keep you connected. Many of our Sec-
tions and CLE meetings are hybrid, offering more flexibility to choose the
option that best suits your needs. On the website, you’ll find a personalized
portal for easy access to all sections, CLEs, publications, and more, tailored
for you. We’ve added virtual meeting options through Zoom and invested in
technology that allows us to conduct hybrid meetings more effectively.
The DBA also expanded initiatives, including the Social Justice Initiative.
As Bar Associations across the country took steps to further racial justice, the
DBA assembled a task force to address all types of social justice, including
racial justice. It is the DBA’s firm belief that lawyers play an integral role
in advancing social justice in our community, and the DBA is well-suited
to provide leadership on social justice issues. Looking ahead to 2022, we
are excited to launch this initiative and begin community conversation and
action to intentionally and thoughtfully inform, involve, and impact our
community in positive ways.
Members will also find advances in the Lawyer Referral Service and the
Ohio Notary Service. The DBA successfully moved LRS to a more techno-
logically efficient platform to reach more potential clients and streamlined
the referral process for LRS panel members through the DBA member
dashboard. The DBA joined forces with the Akron, Cincinnati, Cleveland,
Toledo and the Ohio State Bar Associations to help new and renewing nota-
ries across all of Ohio with their education and testing needs.
Moving into 2022, rest assured the DBA is working hard to provide the
best possible services for our members and to meet your needs. As you pivot
to adapt to this “new normal,” know the DBA is pivoting with you.
6 DAYTON Bar Briefs | MARCH 2022
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MARCH 2022 | DAYTON Bar Briefs 7
Feature
Barrister of the Month:
Deborah J. Adler Esq.
Debbie joined and became a partner at In 2017, she retired from her role with the
Altick & Corwin where she successfully liti- University and now works part time. She
gated a contentious, six-day jury trial against enjoys working with Robert "Buzz" Portune
the West Carrollton School Board District, in assisting refugees in the Dayton area to
which was represented by the formidable late complete the documents required to become
Diane Gentile, in a case relating to mold in the permanent residents. She finds this Pro
school buildings. Of that experience, Debbie Bono work fulfilling to be able to help the
D
is proud of the success due to the time and the families and seeing them flourish in their new
eborah "Debbie" Adler is a "frequent effort that she took to represent her clients homeland. Debbie is grateful to have spent
Flyer" who continues to give back to and the effect it had on the school repairing her career practicing in Dayton, noting the
the Dayton community. Debbie grew its buildings. She completed many deposi- professionalism and collegiately of the area.
up on a farm outside of Bowling Green, Ohio, tions and attended conferences to understand Debbie's greatest personal accomplish-
which is what she attributes to her strong work the science behind mold. Afterall, to Debbie, ment is remembering where she came from
ethic. As the oldest of five, she was responsible education did not stop just because she left and the importance of education because of
for helping her family out around the farm school. Indeed, she would even attend trials the opportunities that it allows one to enjoy.
by driving the tractor and pick-up truck at a for companion cases to those she was litigating Her education has allowed her to help those
young age. in order to observe how the attorneys were liti- without a voice, and in many instances keep
She went on to be the first in her family gating those cases and the questions that they their home and the lights on. If Debbie could
to pursue higher education, the University of were asking witnesses. She will never forget offer any advice to her younger self, living out
Dayton, where she received not only her un- the double take that she received from an op- your father’s example never steered you wrong:
dergraduate degree, but also her juris doctorate. posing counsel when she attended her cross "stay true to yourself, to always do the right
While in law school, she clerked for Judge examination in Cleveland in one such instance. thing – even when it is hard." Just don’t be so
Rodney Love with the Montgomery County After her success in the courtroom, Debbie hard on yourself, you don’t have to be perfect!
Court of Common Pleas, which was also her returned to the University of Dayton School Debbie is married to her husband, Gary
first job. She went on to be the first law clerk of Law to serve the school as the Director of Codeluppi, also a UD graduate. They enjoy
for Judge Love's successor, Judge John W. Kes- Advancement. Recruited for the position by spending time with their two children and two
sler. During her time as a clerk, she observed then-Dean Lisa Kloppenberg, she worked for grandchildren. She also enjoys gardening,
the different lawyer styles and learned effective three different deans to assist the law school cooking, traveling, and spending time with
litigation skills. in building and maintaining relationships and friends that she met while attending the Uni-
After clerking, Debbie was hired by E.S. financial support from alumni. She enjoyed versity of Dayton. And, of course, as with all
Gallon to litigate workers compensation cases, traveling and meeting alumni who were work- "frequent Flyers," she enjoys cheering on the
and eventually social security and disability ing on great things throughout the country Dayton Flyers basketball team.
actions. It was during her time there that E.S. and world. "UDSL can boast of alumni in
"Chuck" Gallon imparted some advice that she positions in all branches of our government,
has since tried to live by – "But for the grace of judgeships, and private practice. At one time,
God, there I go." Also, at E.S. Gallon, Debbie even the Hague!" She felt it was an honor and
met her close friend and mentor Pat Allen. She By Morgan Napier Esq.
privilege to be able to serve the law school in
is very grateful for this mentorship (and other Faruki+ PLL
her role in advancement and is proud of the
mentorships that she received) especially as mnapier@ficlaw.com
relationships she helped cultivate and the 32
there were not a lot of female role models in endowed scholarships that she worked to
the legal field at that time. secure for future Flyers.
8 DAYTON Bar Briefs | MARCH 2022
Register!
March 2022 ||
DBA Section Meetings
Take Advantage of Joining
a DBA Section This Year!
Get Involved. Contact Kate:
kbertke@daybar.org
office direct: 937-222.2324
March 1
Juvenile Law @ Noon
" Practice Points: Addressing Conflicts and
Ensuring Appropriate Representation"
March 2
R.L. EMMONS AND YLD @ Noon
"Perspectives from the Bench"
ASSOCIATES, INC.
March 3
842–A E. Franklin Street Real Property @ Noon
Dayton, Ohio 45459
March 8
Civil Trial Practice @ 5pm
Professional Investigative and March 9
Appellate Court Practice @ Noon
Legal Support Services Firm
" The Appeal is Decided. What Now?
Reconsideration and other options"
Polygraph March 17
Workers' Comp & Social Security @ Noon
Asset Searches
March 21
Criminal Defense Federal Practice @ Noon
Process Service
March 22
Witness Locates / Interviews Diversity Issues @ 4pm
Surveillance
March 23
Civil Case Prep Criminal Law @ Noon
" Legal Impacts of Cryptocurrency, Bitcoin and
General Investigation NFTs in the Practice of Law
DAYTON: 937 / 438–0500 March 24
• Paralegal @ Noon
Fax: 937 / 438–0577
• Corporate Counsel @ 5pm
"Employment Law Update"
daybar.org
to register!
MARCH 2022 | DAYTON Bar Briefs 9
Feature
By Jeff Sharkey Esq. & Raika Casey Esq. | Faruki+ PLL | JSharkey@ficlaw.com & RCasey@ficlaw.com
Appellate Court Practice
MANDATES:
You Can't Always Get What You Want,
But If You Try Sometimes You Just
Might Find You Get What You Need.
I. WHAT IS A MANDATE
An appellate mandate is the device by with the appellate court's judgment. Under court by law. The authority exercised under
which an appellate court closes an appeal the Mandate Rule, a lower court must "carry the first may not exceed that bestowed by
and transfers jurisdiction to the lower court the mandate of the upper court into execu- the second, nor may the authority under the
with specific instructions on how to proceed. tion and not consider the questions which second exceed that under the first.
When an appellate court remands a case to a the mandate laid at rest." State v. Carlisle, 8th Initially, it is up to the lower court to deter-
lower court, it issues a "mandate"—an order Dist. Cuyahoga No. 93266, 2010-Ohio-3407, mine the scope of the mandate, and the parties
directing the lower court to take some speci- ¶ 16; see also State v. Durbin, 2006-Ohio- may want, or be asked, to present their views
fied action. Under App.R. 27 ("the Mandate 5125, ¶ 42 (2d. Dist. App.) on what the lower court may consider on
Rule"): remand. The ultimate determination, however,
"A court of appeals may remand its final II. A TRIAL COURT IS LIMITED BY belongs to the appellate court—the court that
decrees, judgments, or orders, in cases brought SCOPE OF THE MANDATE OF THE issued the mandate.
before it on appeal, to the court or agency APPELLATE COURT
below for specific or general execution thereof, The action of the court of appeals in revers- A. Mandates are Mandatory
or to the court below for further proceedings ing the case and remanding the case to the A mandate is not a mere suggestion or
therein. lower court for further proceedings has the request, it is a command or order which the
A certified copy of the judgment shall effect of reinstating the case to the court of issuing court has authority to give, and the
constitute the mandate. A stay of execution common pleas in status quo ante; the case is receiving court is bound to obey. L.G. Har-
of the judgment mandate pending appeal may reinstated on the docket of the court below ris Family Ltd. P'ship I v. 905 S. Main St.
be granted upon motion, and a bond or other in precisely the same condition that obtained Englewood, LLC, 2016-Ohio-7242 (2d Dist.
security may be required as a condition to the before the action that resulted in the appeal App.) When a mandate from a superior to an
grant or continuance of the stay." and reversal. inferior court is presented, the inferior court
An appellate mandate works in two ways: it The authority of the trial court in a re- has no discretion to obey or refuse, but must
vests the lower court on remand with jurisdic- manded case is limited by both the scope of proceed in accordance with the mandate.
tion and it gives the lower court on remand the mandate of the appellate court, and the
the authority to render judgment consistent scope of the authority bestowed upon the trial
10 DAYTON Bar Briefs | MARCH 2022Even the "mandatory" nature of the mandate
rule has exceptions. In certain narrow, extraordinary
circumstances, such as where the Ohio Supreme
Q &with
A
Court issues an intervening decision, the lower court
may revisit issues decided on appeal or covered by
the mandate. Nolan v. Nolan, 11 Ohio St. 3d 1, 462
N.E.2d 410, 11 Ohio B. 1, 1984 Ohio LEXIS 1089
Marty Gehres
(1984).
Martin "Marty" Gehres was sworn in as
Examples: the new Dayton Municipal Court Clerk on
December 30, 2021. Marty is a Dayton
Where an appellate court remanded a matter native who received his undergraduate degree
for the trial court to consider a father's credit card in political science from Ohio University and
statement in determining his business expense attended law school at the University of Dayton
deduction for his child support obligation, and School of Law. Prior to being sworn in, he
the trial court failed to do so, but instead allowed worked for the law department for the City of
the father to present additional evidence which Dayton as an Assistant City Attorney.
he failed to present at the divorce hearing, such As an Assistant City Attorney, he was involved
was erroneous and in complete disregard of the in drafting legislation to decriminalize marijuana, assisted in the response to the
appellate court's specific order. Flege v. Flege Oregon District shooting, and worked with residents to understand liquor licensing
, 2004-Ohio-1929 (Ct. App.) (Apr. 19, 2004). laws. If you have ever enjoyed DORA in the Oregon District or taken a ride
downtown on the scooters, then you have experienced first-hand the impact that
Where the appellate court found that the Marty had on the Dayton community in his role as Assistant City Attorney.
trial court erred in failing to grant a mistrial and
remanded for "further proceedings not inconsis- Q. Why did you decide to run for Court Clerk?
tent with this decision," the trial court exceeded A. I think that my unique perspective on practicing can help to make the
the mandate of the appellate court when the Court more accessible, especially to pro se litigants. My family is full of civil
trial court ordered a hearing on a motion to servants, so I always knew that I wanted to work in the law. My first job out of
correct the record. State ex rel. Haukedahl v. college was working for the Dayton Municipal Clerk of Court, and I admire the
Bates, State ex rel. Haukedahl v. Bates , 102 clerks who work there. I wanted to be able to advocate for their interests.
Ohio App. 3d 460, 657 N.E.2d 513 (1995)
Q. How is your transition from practice to Court Clerk going?
On the other hand, the trial court did not
A. The former Court Clerk, Mark Owens, has been great. With his guidance,
exceed the appellate court's mandate in an ad- his staff (who all stayed on), and the five Dayton Municipal Court Judges, the
verse possession action by conducting a hearing transition has been seamless. So far, the job is pretty much what I expected.
at which it took evidence from a new surveyor My predecessor taught me a lot before taking over, and I have a great staff
and accepted into evidence a new survey map helping me. I do miss practicing law though.
of the encroachment where the appellate court Q. What are you hoping to accomplish during your term as
did not direct the court to incorporate a specific
Court Clerk?
survey or direct the court to simply incorporate a
A. Currently, filings made in the Dayton Municipal Court are paper filings –
survey without holding a hearing, but rather the
there is no e-filing option available. I want to bring e-filing to the Court. It is my
trial court was given the discretion to proceed
in accordance with the appellate court's opinion hope that if e-filing is available, then more civil litigants will be able to take
and the applicable law. Evanich v. Bridge, 170 advantage of the opportunity to litigate cases in the municipal court. We hope
Ohio App. 3d 653, 2007-Ohio-1349, 868 N.E.2d to bring e-filing to the Dayton Municipal Court sooner rather than later.
747 (9th Dist. Lorain County 2007), judgment I also want to improve the self-help center, especially as it relates to pro se
aff 'd, 119 Ohio St. 3d 260, 2008-Ohio-3820, 893 litigants. Ideally, we would like to have videos and forms available to the public
N.E.2d 481 (2008). for the "high traffic" filings that we see. We are working to address all of those
details.
B. Consequences of Not Along the same lines, I want to continue the expungement clinics currently
Complying with a Mandate provided by the Clerk's office, but on a larger scale. We want to continue the
A writ of mandamus is appropriate to require tradition of educating the community on how to have their convictions expunged,
a lower court to comply with, and not to proceed which may be serving as a barrier to employment.
contrary to, the mandate of a higher court.
The writ will issue to require the lower court to Q. Is there anything you want practitioners
comply with the terms of the mandate, and where to know about the Clerk's office?
the mandate leaves nothing to the judgment or A. Be nice to the staff – they have a difficult job as they are typically interacting
discretion of the court below, and that court mistakes with people who are a little down on their luck, every day. If you can do something
or misconstrues the judgment or decree of the to make their lives easier, then do it. Also, I have an open door if you have any issues.
reviewing court and does not give full effect to the I would be happy to come and talk to some of the Court's frequent filers about what
mandate, its action may be controlled by writ of the Clerk's office can do better.
mandamus to execute the mandate. However, the By Morgan Napier Esq.
writ will not issue if the lower court has not patently Faruki+ PLL
and unambiguously disregarded the higher court's mnapier@ficlaw.com
mandate.
MARCH 2022 | DAYTON Bar Briefs 11Getting to know...
The Honorable Judge
Susan D. Solle
Judge Susan D. Solle was elected in November
2020 and sworn in on January 1, 2021 to the
Montgomery County Common Pleas General
Division bench. By Sarita Simon, CASA Staff Attorney
Montgomery County Juvenile Court
SSimon@mcjcohio.org
What inspired you to run for your position in the How have you transitioned from being a trial attorney
Montgomery County Common Pleas General Division? for 18 years to being a judge?
So many things. But it started back when I was in law school and The transition was very smooth, mostly because of the assistance
I clerked in the Montgomery County Common Pleas Court for of the other judges and staff here at the courthouse, particularly
Judge Sunderland. I absolutely loved it. I then spent three years my own amazing staff. Everyone has been welcoming and so
as a staff attorney in the Court of Appeals. Even though I spent helpful in making sure I had the tools I need to succeed. I feel
the next 18 years of my career as an advocate, I never lost that like this is the job I have always been meant to do.
desire to find the right answer, rather than advocating for one side
or the other
How would you describe your style in the courtroom?
I am a pretty laid back and patient person and I believe I bring
Can you speak a little about what was your experience that personality to the bench. Our job as judges and the issues
we deal with every day are very serious, so the occasional levity
like running for office?
is welcome, when appropriate. I try to allow counsel and parties
Running for office in 2020 was entirely different than running for
the time they need to make all the arguments they want to, one
office pre-COVID. The majority of my campaigning was con-
at a time (this is key), before making any
ducted from my dining room on Zoom. There were no festivals,
rulings. I am also collaborative, and try to
parades, community events, church events, etc., to attend because
work with attorneys and parties to reach the
they simply were not happening. It also meant that I could not
most appropriate resolution to their issues
get out and meet and talk to voters which made the whole experi-
or their case.
ence much more difficult. Thankfully I had a great team of family
and friends who supported me through it all. I wouldn’t have
been able to do it without them.
12 DAYTON Bar Briefs | MARCH 2022As a judge, what are you most passionate about? As an active member of the Dayton Bar Association,
Helping people. Many of the defendants who appear in our court serving as the current president of the Dayton Bar
are charged with low level felonies that are a direct result of either Foundation and having served as a board member
a substance use disorder or mental health issues. They are not bad
and president of the Dayton Bar Association, what
people, they are people that have either made bad decisions or
have found themselves in situations they don’t have the tools to programs and services have you found to be most
escape. I enjoy working with these individuals, the attorneys, the beneficial for your career development?
social workers, and our pretrial and probation departments to find Being president of the DBA certainly provided me with the op-
out what services they need to assist them onto a better path. portunity of getting to know many attorneys in the community
I may have otherwise never met, which certainly helped with my
campaign for judge. Prior to that, and continuing to this day,
Inn of Court is a fantastic way to make connections and keep in
In general, what advice do you have for lawyers that
touch with other attorneys and judges in the community.
appear in your court?
Show up when you are supposed to, be prepared, and play nice
with your fellow attorneys. One of the best things about being
When you are away from the office, you are most likely
a lawyer, and now a judge, in this community is the camaraderie
of the bench and bar here (thanks in large part to the DBA!). doing….?
Because of that, I expect lawyers to be professional and cordial Spending time with my husband, Jeff, my sons, Jacob (27) and
with each other, even in contentious cases. Also, if lawyers have Mitchell (21), and friends, reading, or watching the Browns play
a discovery or other pretrial dispute, feel free to contact our office (no haters, please).
and we can schedule a call, video conference, or hearing to try to
get it resolved, rather than spending time and money on motion
practice. Fun fact you would like to share about yourself?
I am a little obsessed with all things Harry Potter.
MARCH 2022 | DAYTON Bar Briefs 13DBA Continuing Legal Education
DBA CLE March 2022
Tuesday, March 8 | 1.0 Gen Hr | Noon-1:00pm | Zoom
TECH TUESDAY SERIES:
Practicing Law in a Digital World
Speaker: Stephanie Allen Esq. Managing Attorney, Student Legal Services
The Covid-19 pandemic has forced lawyers to learn new ways to adapt. Lawyers have had
to transition from paper to digital without much warning or training on how to do so. We will
discuss how to operate ethically in a digital world, while also discussing operating a “virtual”
law firm. We will discuss new digital platforms available to lawyers who are interested in
transitioning to paperless law practice.
Friday, March 11 | 4.75 Gen Hrs + 1.25 PC Hrs | 8:00am–4:00pm | Sinclair Conference Center
Annual Probate Law Institute: A Great Personal Experience
Special Thank you to our Sponsor LCNB National Bank
Speakers: Charles Pfister Esq. Wood, Herron & Evans, Cincinnati; Franklin Malemud Esq.
Reminger Co., LPA, Cleveland; Magistrate Beth Haas, Summit County Probate Court; Joseph Doty
Esq.Attorney at Law, Seville, OH and The Honorable David D. Brannon & Magistrates and Staff,
Montgomery County Probate Court
This dynamic program for all attorneys will cover: Transfer of IP, NFTs, NILs, ©s In and Out of Probate;
Avoiding the Quicksand in Probate: Ethics and Professionalism; Probate Case Law Update;
Determinations of Heirship and Division of Intestate Estates: There’s More To It Than You Think;
and Montgomery County Probate Court “Hour of Power”.
Wednesday, March 23 | 1.0 Gen Hr | Noon – 1:00pm | DBA Office
Legal Impacts of Cryptocurrency, Bitcoin and NFTs
Speaker: Ian Friedman & Mara Hirz Friedman & Nemecek
Join us in the discussion on the legal impacts of Cryptocurrency,
Bitcoin and NFTs on the practice of law, with some of the most
sought after criminal defense lawyers in the country.
March Video Replays
Wednesday, March 30 | 1.0 Gen Hr | Noon – 1:00pm | Zoom 4 Healthy Habits for Lawyers
In Baseball, Some Steals are Frowned Upon
Speaker: Jake Greiner Graydon
10 The Connection Between Legal
Malpractice, Competence and
The Houston Astros wound up in the news when they were Attorney Well- Being
discovered using technology to steal signs. But in 2015, the
Astros were the victims of a rogue Cardinals’ employee who 25 The Ethical Lawyer:
Professionalism Standards for
hacked into the Astros’ scouting database. Join us for a Practicing Law Today
discussion of how the hack came about, its
discovery, and the criminal and civil fall out.
29 Federal Court Update
with the Judges
14 DAYTON Bar Briefs | MARCH 2022Access the On-Demand DBA CLE library online 24-7, 365!
New programs added daily.
Stream from your the location of your choice, home or office.
Discounted rates on CLE for Members!
Unlimited CLE Members access all On-Demand content for FREE!
On-Demand DBA CLE
Featured Programs:
Juvenile Law Certification Practical and Ethical Apsects of
6.25 General Credits Managing Your Law Practice
3.0 General Credits
Intellectual Property for General
and Corporate Practitioners Closing a Practice
3.0 General Credits 1.5 Professional Conduct Credits
Enhancing Justice By
Oral Argument Advocacy and
Reducing Bias
Navigating Virtual Mediation &
2.0 Professional Conduct Credits
Hearings
3.0 General Credits
daybar.org/seminarweb | dba cle office direct: (937) 222-2324
MARCH 2022 | DAYTON Bar Briefs 15Feature
Diversity Issues
Diversity Is
Not Enough
By Julie Zink Esq. | Professor of Lawyering Skills, University of Dayton School of Law | jzink1@udayton.edu
I
t is no secret that diversity is lacking in of mattering or feeling cared about, accepted, interest in their direct reports and their
the legal profession. Despite the fact that respected, valued by, and important to the well-being. It also includes providing clear
African Americans make up approxi- group (e.g., campus community) or others on instruction, assistance, and ongoing men-
mately 13% of the U.S. population, African campus (e.g., faculty, peers). torship. Constructive feedback, as well as
American associates account for less than 5% When one does not feel a sense of belong- recognition of talent and hard work, will
of U.S. attorneys and less than 2% of partners. ing, feelings of marginalization, isolation, and combat imposter syndrome. Most of these
Likewise, Hispanic and Latino individuals alienation arise. These negative feelings lead items are expected in terms of good manage-
make up over 18% of the U.S. population, but to poor work and a desire to depart from that ment; however, they also foster belonging.
account for 5% of U.S. attorneys and 2.5% of environment. This is not unique to students. Inclusion is the key. Rather than expect-
partners. The same feelings arise in employment situ- ing attorneys of color to assimilate into
We know that diversity leads to better ations when employees do not feel a sense of the already-existing culture, organizations
decision-making, which is why clients are belonging. Thus, if employers truly want to should create a bigger space where people
pushing law firms to become more diverse. increase diversity in their organizations, then of a variety of cultures, backgrounds, needs,
Unfortunately, it is not an easy fix. they must create an environment that fosters and preferences feel welcome and included
Simply admitting more students of color belonging. from the moment they walk through the
and hiring more attorneys of color will not While having a meaningful representation front door. Engaging in authentic dialogue
fix the lack of diversity in the legal profession. of employees of color can make a positive and extending social invitations is one way to
Once admitted and/or hired, people need to difference, numbers alone will not suffice. The demonstrate inclusion. Making sure all voices
feel a sense of belonging in order to remain legal profession must do more. at the table are heard is another way.
and flourish in that environment. Obviously, micro-aggressions and shaming Additional indicators of the organization’s
As retention and success correlate to one’s will not aid belonging. Neither will pressur- inclusivity include statements made on the
sense of belonging, it has long been studied ing attorneys of color to be spokespersons for organization’s website; artwork displayed in
with regard to college students: their races. However, what does belonging the halls; support of multicultural events; and
[S]ense of belonging refers to students’ actually look like? regular diversity and inclusion training. To
perceived social support on campus, a feeling A sense of belonging begins with acces- learn more, I invite you to attend the DBA’s
or sensation of connectedness, the experience sibility to supervisors who show genuine Diversity Day on April 1.
16 DAYTON Bar Briefs | MARCH 202217
Early Bird Rate & Sponsorship Deadline - March 18th!
2022 DBA Annual
Domestic Relations Judge
Wood
Judge
Cross
Judge
Epley
Institute
Friday, April 8 | 8:00am-4:00pm | 6.0 Hrs | Sinclair Conference Center
Speakers:
Montgomery County Court of Common Pleas, Domestic Relations Court:
Judge Timothy Wood, Judge Denise Cross and Magistrate Elaine Stoermer jennifer Diane Mark
brogan DePascale Stone
Second District Court of Appeals:
Judge Christopher Epley
Greene County Domestic Relations Court:
Judge Cynthia Martin
Attorney Panelists:
Jennifer Brogan, Bieser Greer & Landis LLP; Diane K. DePascale, J.D., DePascale Law;
Mark Edward Stone, Attorney, LLC; Brian Kruse, Kirkland & Sommers, LPA Brian Mark
Kruse Sullivan
Author "The Military Divorce Handbook":
Mark Sullivan, Offices of Mark E. Sullivan, P.A.
Agenda:
8:00am-9:00am 10:30am-11:30am 3:00pm-4:00pm
Montgomery County Court Update and Guidance and Warn of Hazards For Professional Responsibility:
Recent Updates to Court Procedures New Attorney Success in Montgomery, Ethical Violations in Family Law Cases
Judge Timothy Wood and Green, Miami and Clark County Diane Kappeler DePascale, J.D.
Judge Denise Cross DR Courts
Panelists: Jennifer Brogan; Mark Stone;
and Brian Kruse
9:15am-9:45am Moderator: Diane DePascale Don't miss this
Appellate Law Update: awesome lineup of
A Year in Family Law Review Judges and Panelists!
Judge Chris Epley 12:30pm-1:30pm
Military Divorce, Part I:
Dividing the Pension REGISTER TODAY!
9:45am-10:15am Mark Sullivan daybar.org
Greene County Court Update kbertke@daybar.org
Judge Cynthia Martin 1:45pm-2:45pm
Magistrate Elaine Stoermer 937.222.2324
18 DAYTON Bar Briefs | MARCH 2022DBA Spring CLE
Sponsorship
Opportunities
Increase the visibility of your organization
throughout the Southwest Ohio legal community
by sponsoring a DBA CLE!
The Dayton Bar offers over 350 hours of continuing legal education programming per year
attended by more than 2,000 legal professionals. Topics include substantive legal updates
in probate, estate planning, real property, family law, and other areas, as well as marketing,
Deadline, March 18, 2022!
technology, professionalism and ethics.
• 2022 Diversity Day
• 2022 Domestic Relations Institute
• Many other CLE programs…inquire to sponsor!
Diversity Day | April 1st Domestic Relations
$700 Premier Sponsor
• Verbal sponsorship recognition at program Institute | April 8th
• Full page ad within materials
• Sponsorship recognition, name & logo on event page of DBA website $500 Supreme Sponsor
• Sponsorship recognition, name & logo in Bar Briefs • Verbal sponsorship recognition at program
• Sponsorship recognition, name & logo in all promotional emails for • Full page ad within materials
program with link to website • Sponsorship recognition, name & logo on event page of DBA website
• Table of 8-free registrations • Sponsorship recognition, name & logo in Bar Briefs
• Sponsorship recognition, name & logo in all promotional emails for
program with link to website
$500 Supreme Sponsor • 2-free registrations for event
• Verbal sponsorship recognition at program
• Full page ad within materials
• Sponsorship recognition, name & logo on event page of DBA website $300 District Sponsor
• Sponsorship recognition, name & logo in Bar Briefs • ¼ page ad within materials
• Sponsorship recognition, name & logo in all promotional emails for • Sponsorship recognition, name & logo on event page of DBA website
program with link to website • Sponsorship recognition, name & logo in Bar Briefs
• 2-free registrations for event • Sponsorship recognition, name & logo in all promotional emails for
program with link to website
$300 District Sponsor • 1-free registration for event
• ¼ page ad within materials
• Sponsorship recognition, name & logo on event page of DBA website
• Sponsorship recognition, name & logo in Bar Briefs
• Sponsorship recognition, name & logo in all promotional emails for
program with link to website
Sponsor Today!
• 1-free registration for event Kate Bertke
kbertke@daybar.org
DBA CLE Office Direct:
937.222.2324
MARCH 2022 | DAYTON Bar Briefs 19Feature
By Serah Siemann Esq. | Siemann Law Office | ssiemann@siemannlaw.com
Juvenile Law
Trauma Informed Village
N
early everyone is familiar with ics of the FFPSA are vast and are outside juvenile court hearings. This begs the ques-
the old adage “it takes a village.” the scope of this article. But the general tion: Does the courtroom represent some
This concept has never been more expectations are to provide a family-cen- unknown traumatic experience with the par-
relevant than it is today. In the wake of the tered, trauma-informed, and team-focused ents? Might the familiar environment of a
pandemic, child-welfare professionals are approach. Just as the roles of caseworkers, client’s home provide the comfort necessary
facing an ever-growing number of chal- treatment providers, and support agencies to actively engage in their own case? While
lenges surrounding their juvenile court cases, are adapting, so must the child welfare at- there is no empirical evidence to show this
such as school staffing issues, juggling virtual torney. Whether functioning in the role of is true yet, many attorneys’ observations
and in person court schedules, navigating an attorney or GAL, zealous representation indicate that reducing the stress of going
COVID protocol, oversight of school at- now requires trauma-informed training and to a courtroom in-person has allowed for
tendance in hybrid educational settings, and team-focused methods. better outcomes. Knowing the history of the
declining therapeutic resources. Attorneys participants and recognizing triggers that
and caseworkers alike are facing the added Trauma-Informed may prevent their ability to understand and
difficulties of implementing procedures to “Trauma-informed” is a term used participate in their hearings will ensure more
comply with the new rules and amendments frequently used in the juvenile court system. effective representation. This is the exact
set forth by federal, state and local govern- The principles behind this approach include1 type of trauma-informed analysis attorneys
ments. Some of these expectations are new. (1) Safety; (2) Trustworthiness/transpar- should be undertaking to provide effective
Others are revised methods of practice. ency; (3)Peer Support; (4) Collaboration and zealous representation.
Many haven’t changed but are now more and mutuality; (5) Empowerment, voice,
strictly enforced. and choice; and (6) Cultural, historical, and Team Focused
Among the most notable of those gender Issues. Applying this to the juvenile Similarly, the concept of team develop-
national changes included the Family First court case is meant to allow for successful ment is not new. Teams are created for
Prevention Services Act (“FFPSA”). The outcomes while avoiding increased trauma virtually every system affecting juvenile cli-
FFPSA was signed into law on February 9, for the participants. ents and their families. Specialty courts, like
2018 but not implemented nationally until Since the beginning of COVID-19, the Montgomery County Treatment Court
October 1, 2021. The Act’s intent is to es- several courts have utilized virtual hear- and LIFE Court, use teams to create positive
tablish preventative models of child welfare ings. Proponents note that an unexpected
services in an effort to reduce the trauma outcome from virtual appearances is the SOURCES:
risk to children and families. The specif- apparent increase in family involvement with 1
SAMHSA’S National Center on Trauma-Informed Care
20 DAYTON Bar Briefs | MARCH 2022 (NCTIC)outcomes and assess options for treatment. representation. Encourage the client to offer connections, offer information and evaluate
Family agencies, caseworkers, and schools their own case plan objectives. Utilize pretri- changes. Shared experiences can produce
use teams to provide support, assessment, als and motions where possible to notify more productive discussions.
management, and oversight. We recognize the court of any potential issues. Productive FFPSA is an evidence-based approach to
this paradigm. The attorney and/or GAL dialect can be framed to the court while still ensure the safety, permanency, and well-
has not, historically, been part of any specific avoiding the disclosure of harmful informa- being of children and their families. It
team. Instead, they often meet with various tion. dictates early intervention and use of proven
teams to gather data without the benefit of a Attorneys have heighted responsibili- approaches. Funding is being added for
cohesive arrangement. ties with regards to Qualified Residential preventive services that evidence has shown
In a team-based approach, the focus be- Treatment Placement (QRTP) recom- are successful.4 In your role as an attorney or
comes less about the separate teams focused mendations.3 This acronym is known and GAL, you have the responsibility to put into
on various goals and more about a single understood to the trauma-informed and practice trauma-informed and team-focused
team evaluating progress and providing team-focused attorney. For those yet unfa- approaches for the best interest of the
recommendations. Historically, some court miliar with the same, obtain the necessary children and families you serve. Each and
appointed cases have simply sat dormant training. Time sensitive reviews provide an every other team member has similar
on the attorney’s desk until a hearing nears. opportunity for heightened advocacy. In responsibilities. Elements of this approach
Evidence based studies indicate that the in- other placement situations, progress may may be new, but it is intuitive for those
tegration and involvement of the attorney in necessitate a filing for status review, change child-welfare professionals seeking positive
the interdisciplinary team early on provided of custody, or alternate placement. Have a outcomes. To succeed, the individual must
timelier and more successful reunification.2 conversation with the team about those op- recognize that their role is important, but
tions to gauge support and objectives. also that the collective village carries the
Moving forward for Attorneys Collaboration does not require an agree- burden of raising the children.
The child welfare attorney must have ment on every outcome. Rather, be prepared
a basic understanding of trauma. Where for opposing opinions amongst individuals SOURCES:
possible, meet with the client in advance with different training, background and ethi- 2
10. Robbin Pott, The Flint MDT Study: A Description
of any hearing and review their history of cal obligations. Plan for conflict resolution. and Evaluation of a Multidisciplinary Team
trauma. Attorneys often prepare clients for Recognize that a social worker’s mandated Representing Children in Child Welfare, in
outcomes. Go further. Provide input regard- reporter requirements and an attorney’s duty Children’s Justice: How to Improve Legal
ing the hard questions. Prepare them for the of confidentiality create different duties but, Representation of Children in the Child Welfare
System 189, 203-04 Family Justice Initiative
expected testimony by caseworkers. Dis- ultimately, similar goals. If the attorney hits 9 https://familyjusticeinitiative.org (Donald N.
cuss anticipated reactions. Watch for signs barriers in implementing these practices, Duquette ed., 2016).
of trauma responses. Determine whether reach out to other networked colleagues. 3
ffpsa-legal-roles.pdf (grandfamilies.org)
counseling and assessments may be needed Child welfare attorneys may be often solo in 4
https://jfs.ohio.gov/ocf/FFPSA-
early on to assist the clients in their own practice but are not without support. Make SafeStrongSupportivePP-January2019.stm
HERBERT M. EIKENBARY
Trust
What is The Eikenbary Trust?
The late Herbert M. Eikenbary granted the bulk of his
estate to fund Grants and Loans to lawyers under the age
of 35 who practice/reside in Montgomery County. These
Grants and Loans are to aid young, deserving lawyers who
are in need of financial assistance.
Individual loans, are available up to $6,000 at 4% interest,
while grants up to $4,000 are also available.
To Apply: Jennifer Otchy, DBA Chief Executive Officer
Dayton Bar Association | 109 N. Main St., Suite 600 | Dayton, OH 45402-1129
jotchy@daybar.org | 937.222.7902 | www.daybar.org
MARCH 2022 | DAYTON Bar Briefs 21Column
From the Judge's Desk
The Science of
Sentencing
By The Honorable Mary E. Montgomery
Montgomery County Common Pleas Court
Mary.Montgomery@montcourt.oh.gov
O
hio Supreme Court offenders must be given probation and, if they are sentenced, they must
Chief Justice Maureen only be sentenced to a term of local incarceration. In other words, they
O’Connor and Justice may not be sent to the Ohio Department of Rehabilitation and Correc-
Michael Donnelly are calling for a statewide sentencing database, which tions, but rather may only be jailed locally. Defendants charged with low
they see “as the keystone to criminal justice reform and racial fairness.”1 level drug offenses may apply for, and be granted, Intervention in Lieu of
Chief Justice O’Connor argues that “the establishment and widespread use Conviction an unlimited number of times. For still other felony offenses,
of databases that are truly useful for the fair and equitable administration there is a presumption for probation and not prison. On the flip side, in-
of justice…” is lacking and that “a database would create more transpar- definite sentences for felonies of the first and second degree, a thing of the
ency to our criminal justice system.” 2 past after 1996, were brought back with the passing of the Reagan Tokes
For two years, I have been a part of the Supreme Court’s Uniform Act. Now, for felonies of the first or second degree, the sentence is the
Sentencing Ad Hoc Committee that created a Uniform Sentencing minimum definite sentence set within the statutory range plus one-half of
Entry. The hope is for the Uniform Sentencing Entry to be used by courts that sentence. For instance, a felony of the second degree is subject to a 2,
across the State of Ohio and thus become “the engine for a statewide data 3, 4, 5, 6, 7, or 8-year prison sentence. Under Reagan Tokes, if a defendant
platform… that will provide uniformity in the recording of sentencing is sentenced to, say, a prison term of four years, the sentence is actually 4-6
information and will establish specific data points, including biographical years in prison. The Ohio Department of Rehabilitation and Corrections
and demographic information….” 3 The goal is to create a comprehensive may, at its discretion and after holding a hearing and making certain speci-
database to answer basic questions about adults sentenced for felony of- fied determinations, hold a defendant in prison longer than the definite
fenses, such as what sentence did courts impose for each felony offender? sentence of four years, but cannot keep the defendant longer than six years.
How many people were sentenced to a specific felony offense per year and Is your head spinning yet? The math becomes even more complicated
at what level? What number were placed into diversion programs? How when you add consecutive sentences to the equation or mandatory sen-
many were placed on court-ordered community control? How many were tences for firearm specifications that must be served first and consecutive
found not guilty? How often were plea bargains entered into?4 to any felony sentence.
Like all things concerning data compilation, however, there is a concern
among judges about how that data will be used.5 Contrary to what most
may think, it is the Ohio General Assembly that determines what sen- SOURCES:
tence a judge may give for a particular crime, although the judge has some 1
Court News Ohio, “Justices Call for Statewide Sentencing Database” July 15, 2020.
discretion within any given statutory sentencing range. 2
Id.
For anyone familiar with Title 29 of the Revised Code, you know that
3
Court News Ohio, “Striving Toward Justice with Date” August 2020.
sentencing for a particular crime is anything but standard. The legislature
4
Id.
sets forth the sentencing range for each felony. That part is easy. What
5
Gongwer, “Progress Continues on Statewide Sentencing Database” December 27,
comes after is not. The legislature has determined that low level felony 2021.
22 DAYTON Bar Briefs | MARCH 2022You can also read
