Breaking Radio Silence - My Move to Plunkett Cooney

It's been more than a month since the last time I posted - the longest I've gone  since I started the blog just over a year ago.  I even managed to miss doing the traditional "my blog is a year old" celebration!  About three weeks ago, I changed law firm affiliations and the logistics of getting everything moved and squared away has been about all I could productively handle. 

My new law firm is Plunkett Cooney, a  much larger law firm than Lane, Alton & Horst, and is based in Michigan.   It has approximately 150 attorneys in offices in Columbus, Ohio (where I'll remain), in Indianapolis, Indiana, as well as in several offices across Michigan.  Plunkett Cooney's tagline, garnered I'm told from a survey of clients' perceptions of the law firm, is DETERMINED.... DISTINCTIVE.... FEARLESS and its attorneys strive to deliver a fearlessly determined team of distinctive legal advisors personally committed to achieving the right results desired by each particular client from the boardroom to the courtroom. 

For me, the move offers an opportunity to have more "bench strength" in  practice areas related to mine such as real estate (in which the Columbus office is particularly strong), as well as to return to doing more work with troubled loans for creditors as I did in the earlier days of my practice.  In addition, because the Columbus office is a smaller branch office with only seven attorneys, it allows me to work in the smaller office environment I like while not missing out on the sort of sophisticated substantive practice I most enjoy which is all too often only really available in larger firms.  Locationwise, all I did was move my office from the south side of downtown Columbus to the east side of downtown Columbus.

My intent for the blog is to continue writing about topics in business and commercial law.  However, I'm sure there will probably be more topics related to bankruptcy, insolvency and workouts as those practice areas occupy more of my time.  With the way the economy seems to be going, maybe that's just as well.

As far as my law practice, I will continue to represent privately held businesses and their owners in the Central Ohio area with respect to issues involving business, commercial, corporate, or real estate law.  However, especially in the immediate future, I will also be focusing more on representing the interests of lenders and other creditors in commercial foreclosures, workouts and Chapter 11 bankruptcies.  

And now, I hope to get back to blogging on a regular basis....

Competing in a Global World - A "New" Sense of "Placeness"

Growing up as a university brat I've never really felt like I've ever really been "from" anywhere except perhaps the "Midwest".  Which is probably why I found myself so taken with a column by Peggy Noonan which recently appeared in the on-line version of the Wall Street Journal entitled "The End of Placeness" in which Peggy waxes nostalgic for a earlier iconic time when all of us really did have a "home town" that was an instrumental force in making us who we became.

Peggy's thesis is that, in a departure from past politicians, neither Obama nor McCain exudes any "strong sense of place in the sense American politicians almost always have, since Mr. Jefferson of Virginia and Abe Lincoln of Illinois, and FDR of New York, and JFK of Massachusetts."  And she says she misses that because it makes the candidates seem "disjointed" , less distinct, and perhaps less easily understood.  At the same time, however, she also somewhat contradictorily suggests that this same lack of placeness she laments might have the positive consequence of lessening any pork-barrel spending tendencies.

She goes on to observe - quite correctly in my view -- that both Obama and McCain "are not from a place, but from an experience."  Obama is, she says, from "Young... from the town of Smooth in the State of Well Educated" while McCain is from "Military... from Vietnam Township in the Sunbelt State."  I would also argue that the unusual VP picks of each candidate in choosing not someone from a "swing state", but rather based on their experience and/or personal characteristics,  further supports this conclusion.  However, the point Ms. Noonan seems to miss is that American politics is just finally catching up to where we've all arrived a while ago.

Americans have always been more interested in your job than where you're from.  It's the first question you ask someone you've just met: "What line of work are you in?"  I've been told that Europeans in contrast want to know first about where you and your family are from. 

Perhaps it's just part of heritage.  We were settled by people who had so little tie to the Old World that they were willing to pack up and take a lengthy and sometimes dangerous ocean voyage to a new place they'd never even seen, knowing that they probably would never see anyone they left behind again.  Once here, we kept moving West to seek new opportunities or to start over once again.  When you think about it this way, it's really no wonder that we care more about what work you're doing now than where you've been.

Technology has just accelerated this tendency.  The "end of placeness" in the geographic sense is already quickly disappearing, if indeed it has not already entirely departed, from the business world. 

Today, it is relatively common for geographically disbursed employees of a single company  - and not just big multinational companies - to work together on projects.  Someone in Ohio barely gives it a second thought that their "team" at work consists of folks in Denver, or NYC, or Seattle, and perhaps abroad as well.  Through the magic of e-mail, shared computer files and networks, and conference calls (both video and the old fashioned basic telephone call), we've grown very accustomed to -- and perhaps, have even grown to value -- working across geographic  space and time.

Personally, I'm more than O.K. with the "end of placeness", whether in politics or business.  For better or worse, it's a "global" world out there and we can't afford, as a nation or individually, not to participate fully. 

The "end of placeness" also puts more emphasis on skills and "what's inside" someone -- when you first grow to know a person over web communication, its difficult to react to personal characteristics the way we sometimes do.  In this way, perhaps race and gender discrimination will lessen.

And for people like me who've moved around a lot, it makes a lot more sense.  I'm not from Wisconsin (where I was born), Tucson (where I spent my toddler years), Nashville (where I sent my childhood and preteen years), Iowa (where i went to high school and college), or Michigan (where I went to law school).  And although I've now lived longer in Ohio than anywhere else in life by a long shot, because it didn't start until after I graduated from law school, I'm not really from here either.  I am from Academia in Suburban Middle Class much more than I'm from any of these geographic locations.

In reality, all we've really done is redefine what "placeness" is.  Placeness can be about whether you're internet savvy or not, how much you care about and take action to advance being "green", how your job makes you think, or any number of other things.  All of these are in fact more relevant to who the person before us is than geographic "placeness."

So while Ms. Noonan is correct in her observations, I don't think it makes the candidates, or any of the rest of us, "disjointed".  If anything, the "end of placeness" in a geographic sense has simply caused us to use more relevant "placenesses".  That, I think, is a good thing. 

  

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Personal Update - A Teaching Gig for TGR

It's been a while since my last post, much longer than I would like.  But since I'm not quite ready to continue my usual substantive posts, I thought I should ay least explain the hiatus

I've been doing the blog for 9 or 10 months now and have really enjoyed it, but Summer is a really tough time to keep to my blogging schedule.  There's so much I like to do outdoors during Summer - sailing, golf, festivals, gatherings with friends, to name just a few.  And of course, watching the Olympics and now the political conventions.  So there's that.  And then the occupational hazard of getting really busy at work with matters for clients has reared its head recently.

But the main reason I haven't been posting according to my usual schedule is that I will be teaching an undergraduate class at Capital University's School of Management and Leadership called Business Law II.  It starts tomorrow evening from 6 to 9 PM, and from what I've been told, is a relatively small class student wise and will mostly have adult students trying to finish a degree.  It's a hand-off from my former law partner Steve Martin  who used to teach the class and still teaches several other classes for Capital University and elsewhere.

The class meets once a week on Thursday evening through mid-December.  It covers the basics of Business Associations (partnerships, corporations, LLCs), some Uniform Commercial Code in the form of UCC Article 3 & 4 (Checks and Negotiable Instruments), UCC Article  9 (Secured Transactions), very quickly UCC Articles 5 (Letters of Credit), UCC Article 7 (Documents of Title, including Warehouse Receipts and Bills of Lading), and UCC Article 8 (Securities), and a smattering of other business law, including Securities Regulation, Bankruptcy, Labor & Employment, and whatever else we wind up having time for.  

I am very excited about this opportunity because it marries what I pretty much do every day in my law practice with the different environment and perhaps more theoretical approach of academia.  However, I have also  been very mindful of my responsibilities as teacher and have spent much of the last few weeks boning up on the more esoteric aspects of these subjects and making the very real practical decisions about what to cover when and how.  Consequently, between golf, work, and this new gig, there hasn't been much time lately for the blog.  

I'm hopeful that can change soon.  I'm very familar with the material I'll be teaching and have certainly done seminars from time to time on different aspects of what I'll be teaching in the next few months.  Yet the prospect of doing the equivalent of a seminar a week for the next 14 or 15 weeks can be at least a little intimidating at first.  Hence my absence from the blogosphere of late.  

So tomorrow's the day, the inaugural day of my formal teaching career.  I hope to be back to blogging on a regular basis soon - I do have a few draft posts in the pipeline.  For now, however, I just want to get this new opportunity off to a good start!!!      

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What DOES It Take to Be a SUCCESSFUL Entreprenuer?

As I was doing my usual lunchtime surfing and Google Reader review, I came across an interesting quiz presented by Ben Blanquera at the Columbus Tech blog which is supposed to help you decide if you have what it takes to really be an entreprenuer.  It asks the usual sorts of questions about being willing to work hard and make sacrifices, but it also asks questions like your birth order and whether you had chores around the house before you were 10.  I took the test - my score indicates that I have the "necessary characteristics to be an entreprenuer". 

The Small Business Administration's webpage also explores "Is Entreprenuership for You?" and has a checklist to help aspiring entreprenuers answer the question, "Do You Have What It Takes?"

I've also been reading the Napoleon Hill classic, THINK AND GROW RICH which purports to contain the secret needed to identify your goals,  obtain whatever you want in life, and join the ranks of the super-successful.  Early on he says:

desiring riches with a state of mind that becomes an obsession, then planning definte ways and means to acquire riches, and backing those plans with persistence which does not recognize failure, will bring riches 

Do not wait for a definite plan through which you intend to exchange services or merchandise for the money you are visualizing.  Begin at once to see yourself in possession of the money, demanding and expecting meanwhile that your subconscious mind will hand over the plan, or plans, you need.  Be on the alert for these plans, sand when they appear, put them into action immediately.  They will probably "flash" into your mind through the sixth sense, in the form of an "inspiration.  

All of which got me to thinking about what it actually DOES take to be an entrprenuer.  It almost goes without saying that you must be willing to work incredibly hard and have enormous faith in yourself even when no one else really does.  But being a successful entreprenuer has to be more than that.

Some years ago when I was moving my law practice from a large firm to a much smaller one and became more responsible for finding my own work, I asked an attorney I knew from a smaller firm what the biggest difference would be.  "The highs are higher and the lows are lower," he said.  And I think that is also true for entreprenuers of any kind.        

Entreprenuers must have both a dreamer and and hard-headed realist within them.  Having the courage and fortitude to endure the uncertainties any new business will face and know the difference between when to forge ahead and when to change course is a special set of talents. 

Without a dream and vision, there's really no reason to be out on your own instead of working for someone else.  Seeing that dream and vision come true is a feeling unlike any other.  However, without the ability to adapt to events and circumstances as they occur and perhaps even modify the vision a bit, the project may stall or fail entirely.  

So you have to REALLY WANT IT to stay out there.  If you don't, the pain and difficulty of the journey could never be worth the effort and sometime even heartbreak along the way. 

My Favorite Ohio-Based Law Blogs

Now that I've been doing this law blog thing for about eight months, I've had a chance to get acquainted with my neighbors in the blogosphere.  There are of course my subject matter compatriots all across the country that I've enjoyed coming to know through their blogs (Chris Moander of the relatively new Wisconsin Business Law and Litigation blog and Rush Nigut of Rush on Business from Iowa (the home in my youth) especially come to mind).  But today I wanted to focus on my geographically proximate neighbors practicing law in Ohio while writing their blogs.  

Like anyone else I have my favorites.  I don't claim to be any arbiter of quality or worth so the following is really nothing more than what I've found I've liked the most so far. 

Perhaps my own personal favorite Ohio-based blog is The Briefcase which has been published by solo practitioner Russ Bensing for quite a while.   It promises to provide "commentary and analysis of Ohio law" and it certainly delivers.  Russ gives brief summaries and case updates of Ohio civil and criminal cases decided by the various Court of Appeals and the Ohio Supreme Court with a bit more criminal than civil cases.  While this is of course useful, his regular "Friday Roundup" feature focusing on the more entertaining legal cases out there is a must-read for me every week.  In addition, even the case updates and summaries are given with a definite bit of "attitude" that makes them much more interesting than the usual dry case summary.  And his "About" section is particularly well done.  Russ's stuff is not often the sort of thing I tend to link to (which may say more about me than him), but I certainly appreciate his contributions.

My other "substantive" favorite  Ohio-based blog is the Ohio Employer's Law Blog published by Jon Hyman of Kohrman, Jackson & Krantz  for more than a year.  Its tagline is  "Practical employment law information for businesses in Ohio and beyond."  What I like about this blog is Jon's well written, informative, and useful (even "practical") posts about important issues in the labor and employment law areas.  I also think Jon's analysis of the legal issues he covers is clear and seems right on point.  In addition, I like his regular "What I'm Rreading" series which features several quick links to other interesting posts around the blogosphere.  I don't practice in this area so I appreciate having such excellent resource available to keep me up to date about pertinent legal developments. 

Ohio Employer's Law Blog is one of two Ohio-based blogs focusing on employment and labor issues.  The other is Porter, Wright, Morris & Arthur's Employer Law Report which says it will be "Reporting on recent legal developments and trends affecting employers".  It has been published sporadically over the last couple of years, but now seems to be adding new worthwhile posts more frequently. 

The D&O Diary published by Kevin M. LaCroix of Oakbridge Insurance Services, an insurance intermediary focused exclusively on management liability issues, focuses on perhaps the most complex issues of any Ohio-based law blog.  It is intended to be "A Periodic Journal Containing Items of Interest from the World of Directors and Officers Liability, with Occasional Commentary".  I haven't had much chance to become fully acquainted with this blog yet, but hope to so in the near future.

When it comes to coverage of both substantive and professional developments of interest to Ohio lawyers, I like the Cleveland Law Library Weblog the best.  It explains that "our goal is to inform local attorneys of major legal developments important to their practice".    I often find ideas for posts by reading this blog and appreciate the links usually provided.  The Cincinnati Law Library Blog  and the Moritz Legal Information Blog which provides "Legal Information and Research Resources Brought to You by The Michael E. Moritz Law Library at The Ohio State University" also provide these sort of services.

One of the newest Ohio-based law blogs is the Ohio Real Estate Blog published by the attorneys of the Real Estate Practice Group of Kohrman, Jackson & Krantz which started up only a couple of months ago in April.  In same real estate practice area is the Build on This! blog published by the attorneys of the Real Estate and Construction Practice Group of Buckingham, Doolittle & Burroughs, LLP which offers "Current news, information, and events affecting the real estate, construction and land use industry and its professionals".

Another recent addition to the blogosphere is the Reasonable Doubts blog published by Jeffrey Davis.  It started in March 2008 and, as its name would suggest, focuses on crminal law.  In addition, the Ohio Family Law Blog, published by Robert Mues of Holzfaster, Cecil, McKnight & Mues, LPA, began in December 2007 and tries to provide "Family Law and Divorce Information for Ohio Families Seeking Solutions".

Interestingly, there are TWO Ohio based law blogs called Sixth Circuit BlogOne seems to focus on criminal law and offers "Case summaries and commentaries by federal defenders of the Sixth Circuit".  The other, published more sporadically by Eric Zagrans, focuses primarily on civil law and is "Devoted to Appellate Law and Practice Within the Sixth Circuit and Its Constituent States"

Rounding out the roster of Ohio-based law blogs (at least those I'm aware of) are the following with which I am less familar, in part because they relate to areas of law with which I have less experience in my day to day practice:

While there are several newer Ohio based law blogs, there are also many that have been published for two or three years or even longer.  There are also some earlier Ohio-based blogs that are no longer publishing.  In addition, there are several "business" blogs based in Ohio that touch on legal issues from time to time, but that's a subject for another day.

I hope I haven't forgotten anyone, but if I have, just add a comment with your URL and then we'll know about you too. 

Mentoring Matters - To Everyone....

Mentoring matters - and is important and rewarding - to both the person being mentoring and the person doing the mentoring.  It's not something that can really be successfully institutionalized in any company, but when it happens "for real", it's a crucial and life-changing experience for both people.  And we all ought to look for ways to nurture the environment and circumstances which actually DO make it happen spontaneously.   

Last week I had cocktails with a woman with whom I suppose I have a kinda mentoring relationship.  She works for a different firm than me - a larger, perhaps objectively, more prestigious firm than my current firm - but I feel lots of pride and satisfaction that I helped her get the interview with that firm.  I know she had to "win" the interview and that her standing and success at that firm now are all hers, but it makes me feel good that she has done so well and that I can still give her useful advice about how to maximize her success.

My Mentors.  In about a year and a month, I will turn the big 5-0.  So I suppose it makes sense that I've been in a "taking stock" mood lately and thinking, among other topics, about the whole mentoring thing.  As I talk with other lawyers, both contemporaries and younger attorneys, I've begun to realize EXACTLY how fortunate I've been in my career when it comes to having always had people along the way who were both willing and able to show me how to become the "right" sort of lawyer.

As I've moved along in my own career, I've become especially appreciative of the "non-billable" intangible aspects of being that certain kind of lawyer which today I am truly proud of being every day.  These exceptional individuals taught me every day in both their word and deed what I really wanted to be, and should be, when I finally became a "grown-up" lawyer.

And it's so many years later that some of these mentors in my professional life perhaps do not, and may not ever, know or really understand how important they have been in how I approach and do so many things today.  Perhaps just importantly, I doubt that either of us realized how significant they would later be in making sure my "mentee(s)" will grow into the sort of ethical, intelligent, pragmatic lawyer we all want to see.

I still remember the lawyer (then a fairly experienced associate on the brink of becoming a partner) who came by my office my very first week as an employed attorney.  He explained the "nuts and bolts" of recording time (the thing that will always MOST matter to any lawyer in private practice), as well as many other practical aspects of being a lawyer they just don't teach you in law school. 

It was a small, perhaps even selfish, act since he was going to be the one billing much of my time (or at least the one reviewing bills which included time I spent working on matters).  Yet it opened the door for a personal - yet professional - relationship between us which made it O.K. for me to ask the "stupid" questions about how to do things that young lawyers really DO need to know answers to.  It also helped me connect more to the firm because he was also the person I could go to when something about the "goings on" at the firm puzzled or concerned me.

Then there was the other relatively experienced partner who taught me much of what I know today about the substantive aspects of my practice area.  But what he really did - which I might not have gotten from anyone else - was teach me about "being" a "worthwhile"  lawyer.  Sure he taught me about being an ethical attorney, both generally as a concept and more specifically as issues arose in our day-to-day practice.  However, as crucially important as that was and is, what has and will continue to resonate with me is how he helped me understand about what it really takes to be an effective lawyer and what I should strive to be.

And later, there were the name partners in a much smaller firm with whom I spent a decade of my life.  One was sorta like my "big brother" who both challenged me and insisted that I continue to mature as a lawyer.  The other one "got" who I was and what I needed to do to become the best lawyer I could ever be.  In different ways, both of these individuals - as well as my previous mentors - helped me understand my potential and path to becoming a better attorney (and person).

My Mentees.  Back to my mentee.  I became involved with her when, as a first year law student (for whom law jobs are sometime tough to get), she was sufficently  persistent (without being annoying or unreasonable) that I finally gave her a job as a law clerk; she was FANTISTIC!!  When we got together last week (almost four years after we met one another), she told me that she is getting married - and I am thrilled for her.  We spent most of our time together talking about her - and her upcoming nuptials, career path, and current situation.  And while I have to admit, I often spend as much time talking as listening, it felt VERY O.K. to hear all about her this time and where's she at and what she wants to do, personally and professionally.

There is also another  attorney I know who is a little further along the prescribed career for sucessful lawyers.  She's just made a change in moving to a new law firm.  Since I've actually done this a couple of times, I could give her useful information based on my experiences.  Being able to help her make this transition in the most sucessful way possible mattered to me and made me feel good about myself and what I stand for as an attorney.            

The Fruits of Mentoring. Today, it doesn't really even enter into my mind NOT to try to help younger folks.  It's the way I was "brought up" as a lawyer and I can't even imagine behaving any other way.  My point in sharing this is that it REALLY does matter what you or I do (or, tragically, fail to do) with the younger and/or less experienced folks in our organization (whether it's a law firm or some other sort of business) - AND that it might be a LOT of years before you ever find out (if you ever do) - how much it matters.  Really matters to that person and to the individuals that person later interacts with.... and the individuals they later interact with.... and, well you get the picture....

Click here and here for some other "testimonials" about the power and importance of mentoring.  I'd link to more, but my Google search turned up disappointing results - search for "billable hour" and you'll get lots of hits; search for "mentoring" or some variation thereof and there's just not that much out there.  I'd like to think that's because of how deeply personal and meaningful these relationships are and that we don't quite know how to talk about them.  Or maybe it's because if you've been lucky enough to have this valuable experience, you tend to take it for granted and think it's a normal part of everyone's career path; and if you haven't been so fortunate, you're not really certain what the "big deal" about this is anyway.  So, anyone, other stories???   

Many companies try to "assign" mentors to new hires.  I know they mean well, but I honestly don't believe that these sort of relationships can happen this way.  Nor can you just go up to someone and say, hey, would you be my mentor or, on the other side of the relationship, can you force yourself on a younger colleague as "the" person who can show him or her the way.  Mentors are just drawn to one another and do the "choosing", if you can call it that, themselves - mostly without really being aware it's happening.

The most we can do is create an environment which facilitates and is conducive to making these relationships happen.  It needs to be a fundamental part of a company's culture that never occurs to anyone to question.  A few years ago it was popular to say that "it takes a village to raise a child" - well, it also takes a village to bring  a lawyer, accountant, banker, or business person to maturity.     

In today's bustling world of commerce in which everything seems to go faster and faster and profit margins sometimes seem to be getting smaller and smaller, it might be easy to overlook this aspect of professional business life. However, if we want a better world or a better profession, it really is up to us experienced types not to let that happen. 

To me, it's not that different from growing up as a human.  There really are just some things which parents (or law partners or senior executive members of a company or organization) do need to instill in their offspring (or proteges).  I am willing to take on that responsibilty.  How 'bout YOU????      

10,000 Hits and Counting...

With all due respect to Kevin O'Keefe who posts today that when Measuring law blog success: Web stats are not the answer, I'm still going to celebrate breaking the 10,000 total hits threshold!  It happened yesterday and if nothing else, it's a nice benchmark from which to look back over the last six months.

When I started this blog, I didn't even know where to go to make it happen.  Hat tip to Eric Wittenberg - who in addition to being a fine Ohio lawyer, is also a Civil War historian who publishes the Rantings of a Civil War Historian - who helped me get started and explained some of the basic stuff to me.

I'm not sure if I knew anything about Google Reader when I started and I know I had no idea what an RSS feed was and why anyone would care.  Since then I've become quite the evangelist for Google Reader and am continually somewhat flabbergasted to find how few of my acquaintances have ever heard of it.  And now I don't know what I'd do without RSS feeds to save time.  

I've also recently become acquainted with Google Notebook and its amazing usefulness both for bloogin purposes and for general practice purposes.

And, yes, I've had fun doing the blog to such an extent I find myself sometimes wanting to do it rather than whatever billable work I'm supposed to be doing at the time.

So here's to continuing the journey... 

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When Golf and the LAW Meet.... Fore!!!

With it being April Fools' Day and all - and being far enough removed from the historic near blizzard that dumped 20 inches of snow here in Columbus a few weeks ago that one can actually start to believe Spring is here -  it seems appropriate to honor the approaching golf season in Central Ohio by taking a look at where golf (and golfers) seem to meet the Law.  And the consequences thereof (come on, did you really think I'd resist the temptation to use the legalese). 

Suppose you and your foursome are out in the middle of the back nine.  Playing ready golf, one of your golfing companions has gotten further up the fairway and is now waiting for you to hit.  She's off to the right and certainly nowhere near where you want the ball to go.  Do you ask her to move just to be sure you don't hit her or do you go ahead and hit?  What happens if you do hit her?  Are you legally responsible then?

Assumption of Risk = Recklessness, Not Just Negligence, Required for Liability

In Ohio, the seminal (i.e. case which sets the standard) case regarding golf accidents is Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705 (1990).  A foursome of women reached the twelfth hole at a private country club.  Lucille  McNeill's second shot went to the right, landing in a water hazard and JoAnn Thompson went to look for the ball.  McNeill chose, as she could under the rules of golf, to hit another ball from her same position.  When McNeill hit her third shot, Thompson was still near the water hazard, about 15 yards away, but at angle of nearly 90 degrees  from the intended path of the ball.  McNeill shanked the ball and hit Thompson in the right eye, causing severe injury.  It wasn't clear whether McNeill yelled "Fore" as golf etiquette requires.

The Ohio Supreme Court held that to be liable, McNeill had to have acted recklessly or with the actual intent of hurting Thompson.  Mere negligence was not enough because when golfers enter the course, they have "assumed the risk" that inherent "foreseeable" accidents or injuries might occur.  Because "a golfer accepts the risk of coming into contact with wayward golf shots on the links" and "[s]hanking the ball is a foreseeable and not uncommon occurrence in the game of golf", the Court ruled in favor of McNeill, the defendant.

Rules to Play By 

So against this backdrop, here are some rules to think about next  time you play a round:

  1. Because of the "assumption of risk" perspective, if you do get hit by a ball on the golf course, whether by someone in your own foursome, or another group, it will probably be difficult to convince a court that you should be compensated for your injuries by whoever hit you.
  2. If at all possible, you really should yell "Fore" and not just because it's customary to do so.  In Thompson, the Ohio Supreme Court commented:
    • "If for example, a golfer knows another is within the line of flight of his shot and fails to offer the customary warning of "fore", liability might accrue.  Such conduct could amount to reckless indiference to the rights of others."  
  3. If you are going to hit someone, it's way better to do it with a really bad shot - that way it's clearer that it shouldn't have been forseeable, i.e. reckless.  Maxwell v. Rowe, 1998 Ohio App. LEXIS 4396 (9th App. Dist.) ("the fact that Jeramie was near the green when he was struck is evidence that Todd's ball went where Todd intended it to go.")
  4. While most states apply the same sort of recklessness standard as Ohio, a few - Illinois to be specific - only require the injured golfer to prove negligence to impose liability on the golfer responsible for hitting the errant golf ball.  Zurla v. Hydel, 289 Ill. App.3d 215, 681 N.E.2d 148 (1st App. Dist. 1997).  So, if you're playing golf in Chicago, be especially vigilant about not hitting other golfers. 

And now,

A Little About Me and Golf (and Why It Matters)

I've been playing golf for a few years now, mostly just for fun but occasionally to entertain clients and possible referral sources for my business, commercial, and transactional law practice.  I am by no stretch of the imagination REMOTELY  good, but I enjoy it (heck I can admit it, I'm addicted to it) anyway.  How do I know that?  Well, I've managed to rationalize my golf habit as an extremely efficient use of time.  The way I see it, when I golf, particularly with clients or prospective clients, I am simultaneously accomplishing:

  • Socializing (which is fun and essential to staying a well rounded normal adult)
  • Business development (which is essential to my career happiness as a successful lawyer)
  • Exercise (which is essential to basic physical health and well  being as a human)
  • Productive release of my natural competiveness and enhancement of my ability to know myself (the cliche is that golf is life and that what happens on the golf course really is indicative of behavior in "real life")  

Socializing.  Through golf, I've met some terrific folks and made some really good friends, especially through my involvement in the Columbus Chapter of the Executive Women's Golf Association.  So I definitely appreciate the socializing aspect of the golf experience.  I've also noticed that it can be a real ice breaker when you're faced with meeting and interacting with folks you haven't met before in a business/professional situation.  Regardless of ability, ALL golfers feel frustration at times and every golfer has a favorite course.  So if I know (or suspect) my counterpart plays golf, suddenly it becomes easy to establish a productive working relationship within which to do business.  And that HAS to be good for all concerned.

Career and Business Development.  One of the nice things about golf and being a woman in the business world is I don't actually have to play all that well to have golf work for me (which in my case is DEFINITELY a good thing) in a business context.  As I mentioned, even just talking about it helps me establish common ground with people with whom I might otherwise have difficulty establishing a connection.  And there are an awful lot of men who really aren't that good who feel very comfortable playing with me.  In addition, as any avid golfer will tell you, golf is really about being competitive with yourself which allows golfers of different abilities to still have a good time playing together. 

Perhaps the greatest utility of golf in the business development department is that you get 2-5 hours of uninterrupted time one-on-one time with the client, referral source, or prospect in a relatively relaxed environment to become acquainted on the personal level that really matters most.  How many lunches would you have to do to get to the same place? 

Finally, did I mention it's FUN! - which makes everyone feel more postive towards a continued relationship with one another.

Exercise.  Ahhh..... EXERCISE - I know I need to do more of it, but I can never seem to establish a "gym" routine.  When I play nine holes, I frequently walk.  And even when I ride when playing a full eighteen holes, I do get some exercise...... painlessly.

Introspection.  That stuff about Golf = Life -  well, it's true and I learn a great deal about my personal strengths and weaknesses almost every time I play. 

Now, if only it would get warm, or at least warmer....

 

Spring Has Sprung - Baseball's Back!!!! Watch for Zooming Balls

To me, one sure sign that Spring has finally arrived at long last is baseball's Spring training.  And nothing says Spring more than major league baseball's Opening Day!  Which happens next MONDAY!!!!!!!  So in honor of the return of professional baseball, it seems appropriate to remind everyone that if you're going for the seats close to the field to impress that customer or client, make sure you keep an eye out for errant balls and broken bats. 

Once you enter the ball park, for the most part, you have "assumed the risk" of getting hit by a foul ball or flying broken bat - just like it says in that tiny print on the back of your ticket.  (Ohio cases actually think having that warning in microscopic type on the backside of your ticket is important.)  As the Ohio Supreme Court said way back in 1925 in Cincinnati Base Ball Club Co. v. Eno, 112 Ohio St. 175, 180-81: 

it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted putside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof.

More recently (just last season, in fact), the Ohio Court of Appeals was asked to consider whether the presence/performance of The Famous San Diego Chicken (view video of Chicken at work) during a Dayton Dragons (Reds AA farm team) game was sufficiently distracting to negate this "assumption of risk" principle.  The injured spector, who was hit by a foul ball, sued both the baseball club and The  Famous San Diego Chicken (who interestingly is not further identified in the case).  In holding that "assumption of risk" still applied, the Court of Appeals opined in Harting v. Dayton Dragons Professional Baseball Club, LLC, 171 Ohio App.3d 310, 870 N.E.2d 766, 2007 Ohio 2100 (2nd App. Dist. (2007):

This argument ignores the fact that team mascots and their antics are a common phenomena, and mascots are normally present during the entire course of the game.  In many cases, the team mascots are more popular than the team itself.  Simply because the Chicken appeared while the game was being played does not absolve Harting from the duty to protect herself from the ordinary risks inherent in the sport....

Given the prevalence of costumed team mascots at sporting events such as baseball, football, or basketball games, it is perfectly reasonable for a spector at one of those games to expect to observe said mascots during the normal course of the game.  The fact that Harting was allegedly distracted by the Chicken during the bottom of the sixth inning when she was struck by the foul ball did not negate her duty to pay attention to the action taking place on the field.

I don't know about you, but it wouldn't matter how very attentive I was to action on the field - when that foul ball or broken bat fragment comes zipping my way, my reflexes just aren't that fast.  I think what's really happening is that courts look at the situation and essentially say, "Hey, it was an ACCIDENT.  S*** happens."

In at least one part of the world - specifically Jersey - this "baseball rule" may be slowly crumbling.  In Masionave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 70 (2005), the New Jersey Supreme Court drew a distinction between "the stands" and other parts of the stadium such as concourses.  For commentary on this case reprinted by Law.com, click here. According to the article, in Japanese baseball stadiums, the entire lower deck of seats is screened.  

Earlier this year, Ryan McKeen of A Connecticut Law Blog (which describes itself as "Thoughts on Connecticut Law with a Side of Baseball") posted on a similar case relating to "Foul Ball Liability in Connecticut (He's Out Part 2)".  Ryan's take on all this? It may mean netting coming to a ball park picnic area near you soon.  Big SIGH!!!!!!

In the old days, the Cincinnati Reds (less than 2 hours south of Columbus) had the honor of leading off every season by playing the very first game in the majors -  always at home.  Even if other games were scheduled for the same day, NO ONE started play before the Reds' game.  Why?  Because the Cincinnati Reds are the oldest team in MLB. 

As a result, Opening Day in Cincinnati is a HUGE holiday - there's  entertainment and even the great Findlay Market Parade (see video of the 2007 Opening Day Parade).  In recent years, other teams have started play earlier in the day than the Reds, but Opening Day is still special in Cincinnati.  Here's the info about 2008 activities.  

So as Spring turns to Summer and you decide to go out to the old ball park, heads up!  Unless of course you're on the concourse in Connecticut or Jersey.

Don't Want to Get Lawyers Involved? Why That's a Bad (and Sometimes Very Costly) Idea

Nina Kauffman over at the Making It Legal blog just wrote a terrific post using an object lesson to explain exactly why deciding to go forward in a deal "without getting lawyers involved" isn't always the bargain cost-saver envisioned.  Long story short, the "victim" aka buyer didn't ask to see financials, didn't verify the arrangements existing with the landlord, and didn't verify the seller's ownership interest before swapping her hard earned money for a business that turned out not to be the cash cow promised by the seller.  Now she has discovered that the consequences of trying to save money by keeping lawyers out of the transaction are neither pleasant nor inexpensive.

While it is certainly true that this erstwhile buyer could have done all these things without a lawyer and perhaps avoided her unfortunate fate, using a lawyer to assist with the purchase of a business minimizes the likelihood that an important detail pertinent to whether you even want the business will be overlooked.  It can also ensure that the deal is structured in the manner which is most advantageous to you from a tax and basic business perspective.  Although many deals do proceed without a hitch with nary a lawyer in sight, the only one which really matters to you is the one you're doing.  So it all comes down to how much of a gambler you really are; if you're lucky, all will be well, but if you're not, the results can be far more devastating than just a minor disappointment in the road of life.   

Business people sometimes think they can substitute the form documents easily available on the internet, or in self-help books found in the local retail book store or on Amazon, for a trip to the lawyer.  I certainly understand the motivation behind hoping the form downloaded for free will work just fine if you change names, dates, and maybe a few other things.  On my Blogroll, I have even included some websites with what I consider to be generally dynamite forms.  Forms, however, must be utilized responsibly.   

Unfortunately, making sure you have the right document and the right language for your particular situation is very much like making sure you have the right tool for the job when it comes to home repair or any other task.  If you need a screwdriver,  trying to use a hammer is unlikely to lead to optimum results.  To get a flavor for this, check out Ken Adams of the Adams Drafting blog which focuses on all the different ways subtle variances in the language used can change meaning significantly.  Lawyers have the education and experience to understand and make the proper choices.  Do you?  

Forms are a Jumping Off Point, Not the Destination.  Forms are just that - forms.  They are merely a place to start to save the time and expense of drafting from scratch on every occasion.  When I download forms or entire documents used in actual deals from oncle or docstoc, or Findlaw, or anywhere else (and I do that a lot), I rarely, if ever, use them in exactly the same form as downloaded. 

I use downloaded forms as a skeleton to be fleshed out by language from other forms and documents, together with specific language and provisions pertinent to the particular deal that I create myself.  I also delete significant portions of the document downloaded as not relevant or appropriate for the deal before me.  While many deals may be similar, every transaction really is just enough different to require some tailoring of draft documents at my disposal.

Why doesn't the same document work in every deal?  Why can't you just use the lease or Asset Purchase Agreement your buddy got his lawyer to draft or you found on the internet? 

For starters, contract, employment, and especially real estate, law differs in important ways from state to state.  New York may require certain language not necessarily favorable to employers that Ohio does not and which an employer in Ohio may not wish to include at all.  Each state's courts may have reached slightly different interpretations of certain legal concepts and principles which can affect the meaning, and sometimes even the validity, of particular contracts.  Do you as a business person really want to spend the time to determine if the document you got from your friend in Michigan is really going to work the same way here in Ohio?  An Ohio lawyer already knows these details and understands how to apply them to your Ohio transaction.

In addition, documents drafted from the perspective of one party to the transaction are generally not as beneficial to the other.  For example, from a landlord's perspective, there are certain provisions in a lease that should be included which the tenant would prefer to leave out.   Even if you are using a form from "your side", your bargaining position may be different from that of the original party in that position.  While it is theoretically possible to draft a contract or other document neutrally so that it is completely "fair" to both sides, in reality, contracts are generally written in such a way to benefit one side somewhat more than the other.  How great the disparity is often a function of the relative bargaining position of the parties.  An attorney is able to assess your role (and relative leverage) in the transaction and determine the most appropriate language to be used as a consequence.  

  • EXAMPLE from an Asset Purchase Agreement - Compare the following three ways of describing the assets being purchased, each of which has a slightly different meaning.  Choosing the right version for your particular deal is crucial.  Having a lawyer on your side can help.

The purchased assets being acquired by the Buyer as a result of this Agreement and the transactions contemplated hereby shall be acquired by the Buyer on an "AS IS, WHERE IS" basis and in their then present condition, and Buyer shall rely solely upon its own examination thereof.

Except as set forth on Schedule 3.5, [to the best of Seller's knowledge and belief], the Assets, including all machinery and equipment, are in good state of repair, in sound operating condition, ordinary wear and tear excepted, and have been given regular maintenance in the ordinary course of business.  

[To the best of Seller's knowledge], All of the facilities of the Seller and its equipment and other tangible assets are in good condition and repair (ordinary wear and tear excepted) and workable, usable, and adequate for the uses to which they have been put by the Seller in the ordinary course of business, and none of such facilities, equipment, or other tangible assets (exclusive of obsolete items no longer used in the Seller's business) is in need of other than routine maintenance or repair

The Ohio State Bar Association also offers some additional considerations why consulting an attorney can be helpfulAmong other advantages is the confidentiality afforded by the attorney-client privilege which may not exist to the same extent with other professionals such as CPAs. 

For some similar thoughts along the same vein with links to still others making the same point, visit Rush Night's posting on the subject on his Rush on Business Blog.

A Final Point.  Some clients think they're helping me by bringing me someone else's form to "fix" for their deal.  Mostly, you're NOT, helping me that is.  I DO have my own forms that I'm used to and know how to tailor to your deal; it will probably take me longer, not less time, to use the form you bring me than my own form.  This is because I already know where I've put certain important language and the sections that typically require modification from one deal to the next; with someone else's form I have to read it especially carefully to make sure it has the same provisions.  It's a little like finding your way to the bathroom in the dark in the middle of the night; most of us can navigate this journey just fine in our own home, but may have difficulty when staying as a guest somewhere unfamilar.

So that's my little commercial on how I and other lawyers actually do add value to your business transaction.  Can a business person get to the same place without a lawyer?  Sure, but if you really wanted to know that much about the Law, you'd probably have gone to law school in the first place.

RAGBRAI, Blawg Review Style

Today, something a little different and more personal post.  As someone who grew up in Iowa, I would be remiss if I didn't tip my hat to Rush Nigut's Blawg #147 hosted on his Rush on Business blog.  Rush has very creatively woven his contribution to the carnival that is Blawg Review against the backdrop theme of Iowa's annual summer bike ride across the State known as RAGBRAI.

RAGBRAI is an acronym for the Register's Annual Great Bicycle Ride Across Iowa.  The Register is the Des Moines Register, the dominant newspaper in Iowa, and has sponsored the ride for more than thirty years.   RAGBRAI started when I was in high school and while I never went on it, many of my friends did and thoroughly enjoyed it.  And of course there is LOTS of coverage about it in the Register so you can really feel a part of it even if you don't ride.  So Rush's post was lots of fun from this standpoint as it made me remember some things I hadn't thought about for quite a while.

The ride started as a joke, I think, when one of the Register's columnists was a bicycling enthusiast. I'm not sure it even had an official name the first year.  By the second year, it had become SAGBRAI.  I can't remember if the third year was TAGBRAI or not, but by the fourth year, someone had wisely decided that plain RAGBRAI was the way to go.

Anyway, Rush does a terrific job of capturing the mood and flavor of the true RAGBRAI experience while delivering a very entertaining potpourri of blawg posts touching a variety of interesting subjects.  If you are not familar with Blawg Review, this would be an excellent jumping off place to discover it.  If you're already a regular, then be sure not to miss this one.

What's really wonderful about Blawg Review for me is that I'm introduced to blawgs (and blogs) I wasn't aware of, but immediately take a liking to!  This edition of Blawg Review more than holds up its end of the bargain on that score.  Read and enjoy!

Why Every Client Should Want an Attorney Who Blawgs

No one at my law firm, nor any of my attorney friends, really "gets" yet why I do this blog, or as some in the legal biz like to refer to  it -- in an effort to differentiate us from those who reveal the most intimate details of their personal life in the most scandalous way possible -- "blawg".  They understand that I like to write, but in the end, what does my blog/blawg have to do with actually getting clients?  And why else would you spend the time doing it anyway? 

I've had this blog/blawg up since mid October of last year, although according to my "hits", basically nobody much noticed at all until sometime in November.  So I think in all fairness I can claim that I've only been doing this for about three or four months.  However, I now regularly have almost twice as many hits (daily, weekly, or monthly) than my law firm's website and generally come up far higher on subject matter Google searches.  If all goes well, I hope to get to 10,000 total hits by my birthday in late May.  But again, what does that have to do with anything?  And especially why does this matter to clients?

I began this blog/blawg with the idea that all of us are depending more and more on the internet and the web to get more and more essential information about pretty much anything affecting our personal and professional lives.  I noticed that I was resorting to the internet more and more frequently to find forms and other resources to help me answer questions posed by clients -- and perhaps equally, if not more, importantly, I was finding useful information and referrals at an exponentially expanding rate.  And I reasoned that, if I was finding the web an increasingly more beneficial and genuinely downright useful (not to mention exceedingly cost effective) resource, the people and companies I hoped to attract as clients must be doing the same thing. 

From there, it was an easy decision to find a way to be where these prospective clients are.  Serving those prospective clients by actually providing some useful information about legal issues thay might be facing is both fun and rewarding for me.  In addition, in doing the blog/blawg over the last few months, I have become even more convinced that blogging/blawging has made me a far better and more useful lawyer to my current and prospective clients.  Here's why:  

1.     Knowledge Entreprenuer.  I find time to actually go research those extra questions of clients to which I don't quite know the answer.  Why?  Now I think in broader terms about what I want to know and can offer to prospective clients.  What better source of inspiration for blog/blawg posts could there possibly be?  

 

Case in point - clients frequently ask my advice regarding what legal entity they should have for their business.  I have general factors they should consider, but when it comes to the effect of self-employment tax, I have usually been content to refer clients to their CPA.  Recently, I decided that this seemed like a terrific topic for my blog/blawg so I went to a seminar, read up on it, made a few phone calls to some subject matter experts I could access, and finally got it figured out so I could write a respectable post (forthcoming) for the blog/blawg -- and provide pragmatic advice to my clients. 

 

Who paid for that?  Well, it was me and, indirectly, my law firm because I spent the time to learn this, but didn't bill any client for that time.  Who benefits?  Every client I have from now on that wants to know all the factors worth considering in making this decision. 

 

And this I think is one of the greatest benefits of hiring a blogging/blawging lawyer.  We're naturally curious and love to learn new stuff -- how better to satisfy this than by actually exploring the questions that clients seem to ask most often!  The blogging/blawgging attorney is just going to know MORE about more issues because they have a concrete personal stake and commitment beyond the needs of any particular client to find stuff out.  And if I already know something, you the client won't have to pay me to go find out.

2.     Communication 101.  You'll have a fairly good idea whether you're going to understand a word I say or write and actually be able to use any of the expensive advice you pay me to give you.  Let's face it - in most cases, it doesn't much matter if I'm a brillant legal genius if you can't make any sense out of what I'm telling you or comprehend how to implement the counsel and advice you're paying me to provide.  If you are able to "connect" with what I write in my blog/blawg, then at least you know you'll get something of value when I communicate with you in writing, and hopefully face to face as well.

3.     Authenticity and "Real Voice".  One of the really "neat"/"cool" (OK, I've been around a while and don't really know the current "hip"/"in" phrase) things about blogs/blawgs is that the authors get to show at least a little personality.  Some of us are a little better at this than others (law is a rather conservative field) and I think I'm still finding my "authentic" voice, but blogs/blawgs are conducive to a level of informality.  So, when you read my blog/blawg,  you as client get at bit of a "sneak preview" of what I'm really like.  And if, as is likely, you're going to be spending some time with me once you ask me to represent you, that's got to be useful info.  BTW, I hope to be more irreverent in my blog/blawg in the future - it's a process.

4.    Quality and Competence.  There is at least some ability to actually assess the quality and competence of your would-be lawyer to be.  Those of us who blog/blawg are "out there".  You can take what we've written and ask your favorite friend attorney (who you don't want to hire because you don't want to mix personal and business or for some other reason), CPA, financial advisor, etc., what they think -- or even research us on the web by seeing what other folks have to say about the same topic, or even about we've said about particular subjects.  I've heard, and I suppose it's true (and I know it is with me and doctors), that clients generally can never really evaluate whether their lawyer actually knows anything so they try to decide that based on other factors.  Well now they can.  And I would suggest that those of us willing to chance that scrutiny ought to be high on the list of any client. 

5.     Commitment to "the Law" Made Practical.  Most of us would rather deal with someone who isn't just "in it for the money".  We all believe that someone who ultimately cares about the product or service being provided "just because" it's what they enjoy doing will offer superior service.  Well, no one cares more about "the law" "in the real world" than lawyers/attorneys who blog/blawg.  Who else would bother?  We really are the folks who became lawyers because we were philosophically attracted to the questions law poses and tries to address every day.  However, unlike our brethren and sistern who became law school professors, at the same time we desperately yearned to be always "relevant".  

 

Now, most of us have come to terms with the fact that our everyday existence and value to anyone has nothing much to do with the fundamental questions that attracted us to the profession in the first place.  But we actually still do think about those questions from time to time and blogging/blawging may be a way for us to focus on those questions in a way that will ultimately benefit society at large, as well as clients in particular instances.  Blogging/blawging is fundamentally more practical and pragmatic than traditional legal scholarship in the form of footnoted articles in law reviews and journals.  Yet I think it has a place that will become more obvious over time to both those in academia and to the clients who only want to know what they should do today.            

So there you have it.   The blog/blawg IS fun for me to do, hopefully offers something of value to others, and makes me a better and more effective lawyer.  What other reason would anyone need to do something?  And why would you the client want to have anyone else looking after your important questions and concerns?

Purpose and Goals for this Blog

If I were not an attorney, I would want to be an architect because architecture at its best requires one part dreamer who can imagine things that don't yet exist (but should) and one part detail oriented realist who understands the laws of gravity and physics and can make a concept concrete, literally.  In the same way, I have always thought that the practice of law should be one part innovative, bound only by complex and intangible concepts of fairness and justice, and one part practical and pragmatic, responsive to the "real world" concerns of businesses and individuals who find themselves caught up in it voluntarily or involuntarily.      

My goal for this blog is to provide information which will allow readers to make better legally informed business decisions.  I intend to write about legal issues confronted by businesses, primarily those privately held and owner operated, and those who own and operate them.  As an Ohio attorney with more than twenty years of experience in business, corporate, commercial, and real estate law, my focus will be on how these play out in Ohio.      

 Ohio Practical Business Law Counsel means 

  • my perspective and focus will be Ohio-based

  • I will write more about Practical legal issues and pragmatic solutions than about interesting, but esoteric, academic concepts

  • most of what I write will relate to Business, corporate, and commercial legal concerns rather than to individual, personal, or consumer legal issues

  • what I say may sometimes have a subjective element in it best thought of as Counsel and advice - readers need to think about how it applies in their particular situation

And, finally, at some point you knew there had to be a disclaimer somewhere and here it is:

It is important to remember that the information contained in this blog is intended to convey general information.  It is not an offer to represent you, nor is it intended to create an attorney-client relationship.   In addition, it is not meant to be all-inclusive or comprehensive.  It should not be construed as legal advice or opinion to be followed without further consultation with an attorney.

Let the experience begin....

 

Teri Rasmussen is a Partner and Vice Chair of the Business Law Practice Group at Lane, Alton & Horst, LLC in Columbus, Ohio. To learn more about me, visit my law firm's website at http://www.lanealton.com/