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brandon stewart

Down under

12:10 PM  Feb 7th, 2014
by Megan Garrison '14
Before starting his legal studies at UDSL, third-year law student Brandon Stewart traveled the globe, with stops in Costa Rica, the Bahamas, Syria, Israel and Korea.

He continued his exploration by completing his legal externship last summer in Australia.

“I know that the world is bigger than the United States. We may consider ourselves to be the most powerful nation, but that does not mean we have the most effective answers,” Stewart said. “I believe that to have the best legal system you must understand how other countries’ legal systems are structured to see if there is a better way to structure our own to make it better.”

In Australia, Stewart worked for a firm that handled workers’ compensation and common tort law. Sometimes he had the opportunity to conduct research for a family or work on a criminal case. In his first week, he noticed a key difference from the American legal system.

“The Australian legal system uses solicitors and barristers while the American legal system only uses lawyers, which is essentially both a solicitor and barrister in Australia,” Stewart said. “Solicitors work directly with clients as they prepare contracts, wills, probate documents and attend to other paperwork as well as investigating the facts of the matter, writing letters to other parties and preparing paperwork for the courts if the client is involved in a dispute.”

“If a solicitor cannot handle the case, the solicitor will recommend a qualified and experienced barrister appropriate to the budget of the client and the nature of their case to be their advocate to help resolve the case.”

Although he’s studying law, the Jackson, Tenn., native doesn’t see himself becoming a lawyer. A devoted member of his church and member of the Air Force Reserves, he knew he wanted a career that kept him close to his faith and asked himself how he could affect change through his beliefs.

After getting a bachelor’s in English and communication and a master’s in theology, he decided law school was the next step.

“I wanted to be able to see the individuals who didn’t have a voice and be their voice,” said Stewart. “My dream job would be three-fold; I would love to be a mayor back home, work as an Air Force Reserve chaplain and work for a nonprofit organization.”

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trialbytweet

Trial by Tweet

3:13 PM  Dec 9th, 2013
by Gene Williams

Pay attention. That’s what jurors promise to do. But what happens to justice when social media provides more compelling evidence?

@JurorNo1: Here we go again. #ihatejuryduty

@JurorNo2: He’s obviously guilty. Wish we could go home.

@JurorNo1: Guilty? With that @justinbieber hair? His barber even started a “Free Willy” Facebook page.

@JurorNo2: LOL #weallhatejuryduty

Imagine this Twitter exchange happening in the jury box during a trial.

Now imagine you’re the defendant and your future depends on the jurors paying attention to the evidence you believe will exonerate you.

But while you’re sitting at the defense table, palms slick with sweat, knees trembling, nervously tapping your foot like Ringo Starr on the drums because you know if you’re found guilty you’re going to prison, maybe for a very long time, the jurors are busy Tweeting and texting and updating their Facebook pages with details about you, your alleged crime, your bad haircut and the awful way your plaid pants clash with your striped shirt.

It could happen.

It has happened.

“Oh yes, it’s happened,” says University of Dayton law professor Thaddeus Hoffmeister. “It’s already been done in the box, in the jury box itself, unfortunately.”

The telltale sign?

“The juror’s head was down all the time,” Hoffmeister says.

If you’re surprised, you shouldn’t be.

Social media is as ubiquitous as naked photos of Anthony Weiner. No matter where you go or where you are — the movies, church, even the urinal — you can find someone texting, Tweeting, Instagraming, Tumblring, Digging, emailing, Facebooking, Amazoning, eBaying or just searching for information on Wikipedia about Miley Cyrus twerking. It has changed the way we work, the way we interact, the way we live.

The difference of course is that, mostly, someone’s life isn’t on the line.

 

When jurors are sworn in for duty they tacitly agree to listen to all the evidence presented to them when they swear to judge as fairly and impartially as possible. The concern is that all the distractions and, worse, the almost instantaneous ability to gather “facts” not in evidence, compromise a defendant’s ability to get a just and unbiased trial.

“I worry about that, yes definitely,” says Montgomery County [Ohio] Common Pleas Judge Timothy O’Connell ’77.

O’Connell, a 1980 graduate of the UD School of Law, leans back in a leather chair in his cluttered fourth-floor office in the Montgomery County Courthouse, his fingers tented as if in prayer, his brow furrowed as he contemplates the question of jurors going outside the boundaries of the courtroom to gather information they shouldn’t have.

“There have been cases reported where convictions have been reversed, new trials ordered and even dismissals of charges in some instances because of the use of information that wasn’t presented in the courtroom,” he says.

Attorney Jon Paul Rion ’96 remembers a civil case in Dayton that was settled in favor of his client just before closing arguments.

“We spoke to the jury afterwards, before they were discharged, and they’d read all about the case, knew what the judgments were, knew all the information,” Rion says. “It was unbelievable the amount of information they had that was not presented in the courtroom. And they openly admitted about getting the information about the case while the case was ongoing. We were shocked, one, not only by the openness but, two, the amount of information they felt they needed to do their job correctly.

“Clearly when you have information like that coming in through the back door, it’s of great concern. It’s impossible to monitor.”

Therein lies the rub. We live in an instantaneous world. We can connect to each other as well as to huge stores of information in the blink of an eye. Or more precisely, the flick of a finger. We now have the ability to check a defendant’s background, his or her prior record, and read personal comments about the person that may or may not be true. We can go to Google Earth to view crime scenes, check out lawyers, judges, witnesses and fellow jurors, “Friend” the victim, the defendant, their families and friends, and leak details to the public that are supposed to remain confidential.

“I particularly worry about jurors who can fairly easily go online … and go into the clerk’s records and find out about prior charges and prior convictions of the defendant,” O’Connell says.

Hoffmeister, who writes a blog about juries (juries.typepad.com), points to a sexual assault case in Louisville, Ky., where the victim, unhappy with the sentence of the two juveniles convicted of attacking her, went online and named them, even though the court kept their identities sealed.

“She said something to the extent of, if this is all that reporting a rape got me, then I’m mad I reported it,” Hoffmeister says of her reasoning. “There’s a lot of things going on with that particular case, such as can we keep legal proceedings quiet in the age of social media? It’s very hard. There are so many different ways you can get information out to people, courts are going to struggle with that.”

 

Twitter, Facebook and the like have turned ordinary citizens into what Hoffmeister calls “social media vigilantes.”

In 2009, for instance, an American couple visiting the Bahamas decided they wanted an exotic meal … of endangered iguanas. Like all good Facebookers, they felt the need to document their feast and posted pictures of themselves “cleaning the iguanas, and barbecuing the iguanas, and grilling the iguanas,” Hoffmeister says.

“Somebody saw the pictures on their Facebook page and called the authorities down in the Bahamas and these people were arrested. All because of people watching and seeing what was on somebody’s Facebook page. There’s so many different ways that social media is now impacting criminal law.”

Two years ago, Hoffmeister, who joined the UD law faculty in 2007, didn’t consider Twitter as something viable.

“I thought, 140 characters, how does this work?” he says.

Now he teaches a class on social media and the law and, in early 2014, will have a book, Social Media in the Courtroom: A New Era for Criminal Justice, published by Praeger.

Thaddeus Hoffmeister for UD Magazine.Sitting in his cramped office in the lowest level of Joseph E. Keller Hall, Hoffmeister, dressed in khaki pants, a blue checked shirt and sandals, is practically giddy while talking about the impact of social media on the judicial system. Words spew from his mouth faster than the Twitterverse reaction to Ben Affleck as the Batman.

After it occured to him that almost all his jury blog posts were about the effects of social media on jurors, Hoffmeister began to look at the entire judicial system.

“How are the criminals using (social media)?” he asks. “How are the attorneys using it? How is law enforcement using it? How do judges use it? How do we get it admitted into evidence? How do we get your Facebook page where you either contradicted the statement you made earlier or you foolishly posted a picture with you standing there with the stolen property admitted against you?”

And, as the man who consulted on the jury instructions for U.S. v. Barry Bonds, he understands the fears of a defendant about getting a fair trial.

“They have a valid argument,” Hoffmeister says.

Highly publicized cases such as that of Jodi Arias, who was convicted of brutally murdering her ex-boyfriend, make it virtually impossible to sit an unbiased jury, he says.

In a story about the penalty phase of Arias’ trial, CNN quoted jury consultant Richard Gabriel as saying, “(Social media is) incredibly powerful because it is a juror interacting in their natural environment. It’s them unedited, uncensored and not trying to couch things in way that’s politically correct. So you have a candid view of the juror, and it allows you to see how they view the world and how they express themselves.”

To his point, an alternate juror allegedly ignored instructions by the judge and posted on Facebook something about Arias’ temper.

“If (Arias) does have Latina blood, it may explain a temper lol,” the juror wrote.

 

Jurors aren’t the only ones with smartphones, of course. Judges and lawyers can also abuse technology — and get in trouble.

Says UD law professor Denise Platfoot Lacey, “Oftentimes it’s personal social media abuses that have gotten them disciplined. For instance, a lawyer asks for a continuance because he’s got too heavy a workload and then posts on social media that they’re really hungover because they were out too late the night before.”

Lacey served for two years as the secretary to the Supreme Court Commission on Professionalism for the Supreme Court of Ohio, investigating complaints against lawyers and judges. Social media now adds more challenges.

“Lawyers and judges have taken an oath to be a part of the system that will be fair and impartial, ” she says. “If there are abuses, people see this and they wonder about the officers of the court to whom we’ve entrusted the system.”

So what can be done about it? Can anything be done about it? As Hoffmeister says, the court system “changes at a glacial pace.”

One thing judges can do is change their instructions to juries — something O’Connell has done — cautioning them to not speak or use social media to communicate with anyone about the case. The Ohio State Bar Association amended its recommendations on jury instructions in 2010 to include just such a social media clause.

But, says Hoffmeister, expecting a juror to keep quiet about a case has never been practical — or realistic.

“I never believed that people went home after jury duty and didn’t talk to their wife or their husband about it,” he says. “You’re kidding yourself if you believe that. I think people always went home to their spouses, they talked about the case, and their spouses responded by saying, ‘Oh, I think he’s guilty’ or ‘not guilty.’ I just think it’s at a higher level now where you can reach out and talk to people outside your immediate vicinity.”

Judges could also confiscate any device — phone, tablet — that could connect a juror to the Internet, or consider something as drastic as sequestration.

Neither is entirely effective.

Sequestration, Hoffmeister and O’Connell agree, is expensive and an invitation for jurors to lie their way out of service.

“It turns people off,” Hoffmeister says.

Meanwhile, seizing phones and tablets could send some jurors into jittery fits.

“I’ve read some stories,” Hoffmeister says, “that say the Internet can be addictive. When you get an email it releases endorphins in your mind. It’s a pleasant sensation to you.”

For some, it’s a sensation they can’t live without. Last fall, the Behavioral Health Medical Center in Bradford, Pa., rolled out a 10-day inpatient program to help users kick their Internet habit. It may not be the same as asking a junkie to quit popping pills, but it’s an acknowledgement that some people just can’t give up their smartphones and tablets without help.

There are more extreme measures for judges, of course, such as sending jurors who violate the social media instructions to the slammer.

“That would be the last solution,” Hoffmeister says. “We in this country don’t punish like they do in England and other common law countries. In England, I’ve seen them give someone six months, which I thought was outrageous, for violating the rules. In England they hammer the jurors. In this country, we don’t hammer jurors.”

O’Connell agrees that sentencing jurors to jail time would be onerous.

“We always try to do the least invasive thing,” he says. “We’re always walking on eggshells now about making things convenient and easy and pleasant, if you will, for jurors.”

Pleasant for jurors, maybe, but not so much for defendants who must not only face the judgment of their peers but also hundreds, sometimes thousands, of anonymous “friends.”

“I know one case,” Hoffmeister says, “where a woman juror in a sexual assault trial took a Facebook poll and said, ‘OK, what do you Facebookers think I should do?’”

Scary, yes, but not the end of the world — or our justice system — says attorney Rion.

“For the most part, I believe jurors, citizens, try to be fair,” he says. “Examples to the contrary are always there, but I think you can rely on the jurors of this county, or any county, to at least try to be fair. Whether that translates into perfection, it never does, but it seems like people are well-intended in our judicial system and there is a great pride people have of it.

“Due to the extent that we have to be careful and watchful of (social media), I agree completely. But it’s not as if we’re in a situation where we need to scrap the jury system and start over. It’s still the best mechanism for justice that we could possibly have.”

#youcansaythatagain

Curbing the social media vigilantes

Can there ever be uniform instructions to juries about the dos and don’ts of social media? University of Dayton law professor Thaddeus Hoffmeister doesn’t think so.

“From state to state and county to county, things are different,” he says. “There are just so many jurisdictions, I don’t see how we could come up with a set of standards that everyone could use. There are some approaches you can use, but there is no surefire method.”

Among those approaches:
Better jury instructions. “Ask them if they can do without their phones for days or weeks. If they can’t, excuse them. And tell them why it’s important they don’t use social media. Juries need to know why they shouldn’t be using their phones.”

Attorneys and judges should set an example. “If the judge is using his phone and the attorneys are using their phones, jurors logically ask, ‘Why can’t I use my phone?’”

Use the juror oath to promise to hear the testimony fairly. “I do believe people take that seriously.”

Offer rewards for good behavior. “In one case, the judge promised to keep a journal for every juror with every story written about the case if they stayed off their phones.”

Allow the jurors to ask questions. “If there’s an accident scene and you’re not going to take us there, or you’re going to use legal terms I don’t understand, well, you could get away with that 20 years ago because I wasn’t going to go to the library and look up ‘reasonable doubt’ or ‘respondeat superior.’ Now, I can just ask Siri and she’ll tell me what that means. So let them ask their own questions.”

Even though the standards for social media in the judicial system can’t be consistent, he does say things need to change if courts want jurors to be fair and impartial.

“The law doesn’t want to change,” he says. “The law says we’re going to change at a glacial pace. We are in charge. The judge and the lawyers say, we’ll tell you what you need to know. No, technology is going to force you to change and, in my opinion, it’s empowering jurors.

“I think the rules of evidence, as they are, are too restrictive. I think juries should see more. I think they should see more evidence. I don’t know how much more or where to draw the line. But I think they should see more and I think they will see more because, if we don’t give it to them, they’ll find it themselves.”

Gene Williams is a freelance writer who misses the day when letters were written by hand, calls were made from phones attached to the wall and movies were never interrupted by smartphones too dumb to stay dim in a darkened theater.

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Megan Rehberg and Tom Menza talk to UDSL students

Why don’t you want to be a lawyer?

8:04 PM  Mar 10th, 2012
by Seetha Sankaranarayan '12

Typically when people hear “juris doctorate,” the word lawyer immediately comes to mind. But what about opera singer or JAG Corps?

These seemingly unlikely career tracks are indeed possible with a JD, as Megan Rehberg and Tom Menza of UDRI’s office of contracts and grants administration demonstrated Feb. 29 at an information session for University of Dayton School of Law students.

Rehberg held seven different internships at seven different firms before graduating from UDSL in 2009. But as the end of law school approached, she knew she wanted to be able to devote time to her hobby of opera singing. A “day job” as UDRI’s grants administrator allows Rehberg to do so while continuing to work in a position she describes as very similar to administrative law and a little like civil procedure.

Prior to attending law school, Menza was a contracting officer for the United States Air Force.

“It was the closest I could get to law school without going to law school,” he said.

Afterward, he went from the Judge Advocate General’s Corps to a law firm, and finally to UD as the contracts and grants administrator preaward.

Throughout their presentation, Rehberg and Menza stressed that students should begin networking early and reach out to friends, family members, colleagues and anyone else who could provide relevant information and contacts, regardless of their field.

Rehberg said the most important thing for students considering non-traditional JD careers to do is have their stories ready.

“Because people are going to ask right away,” she said, “‘Why don’t you want to be a lawyer?’”

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Naomi Cahn

Marriage — the new marker of social class?

3:36 PM  Feb 13th, 2012
by Shannon Shelton Miller

In 1970, there wasn’t much difference in the likelihood of marriage for men and women based on their level of education. By 2011, although marriage rates had dropped nationwide, they declined the least among the college-educated.

Those were among the statistics Naomi R. Cahn, a law professor at George Washington University, shared as she discussed the effect of socioeconomic class on marriage and family formation during a Feb. 9 talk sponsored by the School of Law and the women’s and gender studies program.

Her lecture “Family Classes: What Really Happened to the American Family?” examined how middle class women are approaching marriage and family formation differently from their counterparts in the working class, as increased income and career opportunities resulting from higher education has made women more selective. Although college-educated women marry later, they’re less likely to divorce.

They’re also likely to marry a man of a similar socioeconomic and educational background.

“Women are becoming choosier about whom they’re willing to marry,” she said.

That’s a strategy, however, that doesn’t translate well to those in the working class, Cahn said. There, higher percentages of men are written off as unmarriageable because of factors such as unemployment, substance abuse, mental illness and imprisonment, leading to decreased marriage rates and higher nonmarital birth rates.

It’s problematic, Cahn said, when marriage and its benefits become limited to the upper classes. She said addressing economic inequality should be among the solutions explored for working class men and women.

“Marriage should not be a marker of class,” Cahn said.

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Skyline

A different perspective

4:29 PM  Jan 5th, 2012
by Thomas M. Columbus

Scot Ganow’s old office has perhaps the best view in the city of Dayton. A westward-facing wall of windows reveals a panorama including the Deeds Carillon, the Arena Sports Complex and the downtown Dayton skyline. From his desk, Ganow could see raptors soar on massive up currents in front of a backdrop of blue skies and distant green hills.

As senior contracts and grants administrator for the University of Dayton Research Institute, Ganow was among the first Research Institute employees moving into its new home, the 1700 South Patterson Building, where its former owner, NCR, used to have its world headquarters.

Ganow, who joined the Research Institute after graduation from the School of Law in May 2009, found the Institute’s sense of community a wonder even greater than his office view.

“These people don’t leave,” he said. “And they don’t leave for a reason. These folks are great. The Institute provides a unique environment where people can do what they love and work alongside people who share a passion for their work and UD. There is indeed a sense of family. And UDRI is doing exceptional work that benefits Dayton, Ohio and the world. It really is.”

Yet Ganow left.

The reason is both simple and complex. Ganow came to the University of Dayton School of Law with a definite goal; he wanted to practice law, specifically in the areas of data privacy and intellectual property. Thus, when an opportunity materialized to build a practice in these areas with Burton Law, he left the University to do so.

The intense focus on a goal is a feature shared by many of Ganow’s fellow graduates of the two-year program. Descriptions of the differences between students coming into the two-year program and those coming into the traditional three-year program are generalizations rather than characteristics universal to each group. And, since the two-year program’s first students graduated in 2008, there exists so far only a small sample for generalizing.

But applicants to the two-year program do seem to have definite characteristics. They are of nontraditional age. (“That is code,” Ganow said, “for old.”) They are highly motivated. They have work experience. And they are particularly concerned about cost, in terms of both money and time.

The ability to “get in and get out” was an attraction to Ganow, who when he began law school was 35 and had two children. The timeframe was also a selling point to Lauria Lynch-German, who before starting law school at age 38 was working as a private investigator and had, as she said, “a husband who wasn’t portable.” Three years out of college when he began law school, current student James Kezele was younger; but, also with a spouse and work experience, he found the prospect of “getting back to work a year earlier” an appealing attraction of UD.

Ganow’s path to the practice of law grew out of his work experience. As an undergraduate at Baylor University, he majored in premed. His career took him into the corporate world of health care data and technology. For five years before law school, he served as a corporate privacy and ethics officer. “We didn’t have inside counsel,” he said. “People would act like I was the lawyer.”

Aware that he wasn’t a lawyer, he also noticed, he said, “as a privacy officer, I was getting the ball 99 yards down the field and they were putting it in. I realized I could do that.”

One day Ganow had a discussion with the outside counsel with whom he worked — a person who later became a mentor — about the possibility of going to law school. Ganow pointed out, “I’ll be 37 when I get out.”

The reply: “If you don’t go, you’ll be 37, too.”

Recently, Ganow had a conversation with one of his former bosses on the value of an advanced degree. They agreed, Ganow said, “It’s not just the substantive material. It’s the interaction, the collective experience. You’re never too old to benefit from that.”

While Ganow gradually discovered he wanted a career in law, Lynch-German said, “I always wanted to be a lawyer. I got sidetracked.” She majored in journalism, spent 14 years in that field and then worked as a private investigator. With a husband and a career and of a nontraditional age for law students, she decided she still wanted a career in law.

Having done work for Michael Ganzer ’81 of the Milwaukee firm Hodan, Doster & Ganzer, she talked to him about law schools. He recommended his alma mater. After learning of Dayton’s two-year program, she was very interested. When she was not immediately accepted but wait-listed, she said, “I called and asked, ‘What do you want me to do?’”

The response was helpful. Since her application was five months old, the admissions staff suggested writing a letter for the admission committee about what she had been doing.

“I was doing PI work on serious sexual crimes,” she said. Writing about that — and, like a good journalist, including quotes that she obtained from people saying how valuable she was — got the attention of the admissions committee. She was accepted. In less than a month, she had to wind down her investigation business, find a place to live and move to Dayton.

When she arrived, she said, “I went to my room and then to the law school and became completely ensnared by the family values attitude.” She was even asked by a helpful staff member, she said with remembered appreciation, if she knew where the local grocery stores were.

That sense of community persisted through law school and after graduation even though she claims that during her time at Dayton, “I was constantly in trouble.”

Nevertheless, “During my first year of practice, I talked to four or five of my profs,” she said. “They were available, helpful and made a great deal of fun of me. I can still pick up the phone and ask about something like an ethical dilemma.”

She contrasted that experience with those of some people she knows from other institutions: “The first contact they have after graduation is from somebody asking for money.”

It was probably good that somebody from Dayton didn’t come calling right away about opportunities available to her to support future generations of lawyers. Lynch-German was concerned about her own income. When Ganzer offered her a job and named a salary, she called Dayton again, this time asking Tim Swensen, assistant dean and director of the career services office, what she should do about Ganzer’s offer.

His response was succinct: “Take it.”

She did.

Of her aspirations before studying law, she said: “I wanted to be the guy in To Kill a Mockingbird.” Her life now, however, is less that of a fictional lawyer and more that of a real one.

“I spend half my life doing research on arcane civil stuff,” she said. “And I love it. It has the same adrenalin rush as in journalism with a higher sense of risk. As a journalist, if you make a mistake, you write a correction. If I screw up now, somebody could go to jail.”

And she likes her work environment. Of Ganzer, she said, “He’s my friend; he’s my boss; sometimes it gets silly. I don’t know how to behave like an associate.”

That’s perhaps one reason she got a big raise after her first year.

James Kezele doesn’t know what will happen after his first year in practice. He’s now in his last year of law school. He’s spending his time now studying to become a lawyer and searching for job opportunities once he finishes at Dayton. He’s applying to midsize and large firms. And “working for the government is one of my top choices,” he said.

With a degree in government and legal studies from Claremont McKenna College and three years of postgraduate experience working in the Environmental Defense Section of the Department of Justice under its Honors Paralegal Program, he has formed an opinion of what to expect in such work.

“I loved working for the Department of Justice. It has exceptional attorneys,” he said, “with a lot of mentoring abilities.”

Kezele didn’t hurt his job chances by landing an externship last summer with Chief Judge Susan Dlott, United States District Court, Southern District of Ohio. He found the research interesting, the writing extensive and the opportunity to observe court proceedings enlightening. And, as for the mentoring, he said, Dlott is “an exceptional legal mind, and her full-time clerks are great attorneys.”

Kezele also works as a law clerk for Richard Skelton of Skelton Law in Dayton, which specializes in complex civil litigation and federal defense work. That experience, Kezele said, “has provided more great legal experience and legal mentoring.”

When he spoke to a UD prelaw class, he faced the question, “What is law school like?” His answer: “It’s a different kind of animal. It’s difficult, but definitely doable.”

He told them that law school is more work than a full-time job and a lot more work than college. He told them of the large amounts of reading, digesting, analyzing and writing but added that, with proper time management, it can be made a lot less daunting than it may seem.

Starting in May and finishing in May two years later can appear even more daunting than the traditional path of three academic years. That first summer, students have to hit the ground running with a heavy academic load. In their first fall term, summer-starts encounter a phenomenon, observed by Swensen, that makes their job search a bit different from students on the traditional three-year path. As the two-years return in the fall, they are suddenly aware that they will graduate with students, the 2Ls, who started 12 months earlier. And they notice that many of those other students are walking around in suits, going to interviews. Without even having received grades for their first term, the summer-starts have no record yet to present to prospective employers.

Nonetheless, early data on the two-years as compared to traditional students indicate similar credentials on entering, similar performance while here and similar job placement. The summer-starts’ job and life experience may give them an advantage.

Another phenomenon that differentiates starting in the summer from starting in the fall is the simple fact that in the summer there are fewer people in Keller Hall. The cohort is smaller; the classes are smaller. Many of the students have the similarity of embarking on a second career as well as family responsibilities. In that, and in the sense of being pioneers in a new program, they may resemble those students who graduated in the early years after the School of Law reopened in the 1970s.

Class dynamics also differentiate a summer start from a fall start.

“Sometimes in the fall,” said Lori Shaw, dean of students and professor of lawyering skills, “a student can go five or six weeks without being called on.”

With the summer classes for the summer-starts, each student might be called on several times a week. “That heightens their intensity,” Shaw said. “It keeps them on their toes.”

She also sees an advantage they have in the summer of a greater opportunity to meet with their professors. “Individual attention is important to them,” she said, many having been out of school several years.

And, “they take care of each other,” she said. “If a student notices another missing a class he was expected to be in, he’ll inquire about it. Everybody finds a slot in study groups — it’s simply easier with a small group to see if somebody is left out.”

Then, in the fall, she said, “They blend in.”

Ganow, Lynch-German and Kezele all pointed to a bond beyond that which tied their starting cohort together in their first summer, to a sense of community permeating not only the school but also the local bar and its relationship with UD. Long gone are local suspicions from the founding days of the law school that Dayton grads pouring into a market — previously the largest city in Ohio without a law school — would provide unwelcome competition with older law schools for local jobs. Present now is a culture of mutual support.

Jobs and salaries, however, are major concerns today as well. The economic crisis that derailed the economy has across the country hit the legal profession particularly hard. In the boom times for the investment and banking industries, legal services for those industries were in great demand. They competed to hire the best graduates of the nation’s law schools, thus driving up salaries throughout the profession. Then the bubble burst with the aftershock rippling through the market for lawyers.

What the next economic cycle will bring, no one knows. But it is clear that law school is a serious financial commitment including time out of the workforce. By eliminating one year of lost income, Dayton’s two-year program provides a strong benefit to aspiring lawyers.

How many people will take advantage of it? The answer to that question is also unclear.

“Recruiting for two-year students is different,” said Janet Hein, assistant dean and director of admissions and financial aid. Since the potential students are generally at least a year out of school and working, traditional methods of recruiting — such as on college campuses — don’t uncover them. For example, Lynch-German said she did not know of Dayton’s two-year program until she applied.

Getting the word out to those who may be interested requires new techniques — perhaps through workplaces or through advertising. In the words of Marianist founder Blessed William Joseph Chaminade, often quoted by members of the University of Dayton community: “New times call for new methods.”

While the School discovers and pursues new methods to get students to Dayton, the two-year students on their way out of school appreciate an established method to get them from campus to work: the Road to Bar Passage Program.

Of the bar exam, Lynch-German said, “You spend two years cramming, and then you are expected to belch it out.” She said she was well-prepared, however, for the bar exam in her home state (“And Wisconsin has some goofy rules”) because of Dayton’s bar passage program.

“Becky Cochran,” she said of the law professor who conducts the program, “was value-added, running around, smacking you up, making sure you did the work.”

Ganow shares Lynch-German’s opinion of Cochran and the program: “She’s as enthusiastic as anybody can be about the bar exam. All you have to do is show up and do the work. And it’s free!”

The two-year program offers a path to becoming a lawyer that has advantages of cost and time. Its success will depend on the interest of prospective students and the results it produces. Pursuing that two-year path requires a person to make a major decision about interrupting what may be a settled life. Ganow put into a few words perhaps a major reason for doing that: “To me, law school is an opportunity to build up skill sets but also to gain the autonomy to do what I wanted where I wanted.

“Today I have flexibility. I like that.”

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McClanahan

Grad named Virginia Supreme Court Justice

4:29 PM  
by Deborah McCarty Smith

Most women can share stories about the competing demands of work and family. But the story told when Elizabeth McClanahan ’84 was sworn in as Supreme Court Justice of the Commonwealth of Virginia tops most. While in labor with her second child, she conducted a conference call, giving birth 10 minutes after hanging up.

McClanahan, then chief deputy in the Virginia attorney general’s office, had left a midnight message for her boss. When he phoned her the next morning, “I thought they knew I was at the hospital and still expected me to do it.”

Colleagues who spoke at her investiture ceremony on Sept. 1, her 52nd birthday, praised her strong work ethic. “My parents considered it a privilege to work,” said McClanahan, a southwest Virginia native whose parents taught school and later ran a construction business. “It was a point of pride to get your work permit at age 14.” She never vacationed during spring or Christmas breaks from law school or college at William and Mary. “If you came home at midnight after two weeks of exams, you were still expected to be at work at 8 the next morning.”

An expert in natural resources law, McClanahan spent 19 years in private practice in Abingdon, Va., before becoming chief deputy Virginia attorney general in 2002. She joined the Virginia Court of Appeals in 2003 and was serving her second term when the Virginia General Assembly elected her to a 12-year term on the Supreme Court.

In appellate law, “if you enjoy an academic and intellectual challenge, it doesn’t get any better than listening to and reading the briefs of lawyers making their best arguments on both sides,” she said. But she’s looking forward to the more diverse caseload and greater number of civil cases the Supreme Court offers.

An avid runner and a breast cancer survivor, McClanahan has learned to enjoy every day. “I’ve always been a Christian and believed in the hereafter, but when you see your name and the word ‘carcinoma’ on a piece of paper, you have to embrace the inevitable. Once you’re given a second chance, you do live every day to its fullest.”

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Thomas P. Whelley II ’77 and Judge Barbara Gorman ’77 make use of Gorman's courtroom as they teach Civil Trial Practice.

Why do practitioners teach?

4:27 PM  
by Thomas M. Columbus

On Thursday evenings during the fall 2011 term, Montgomery County (Ohio) Common Pleas Court Judge Barbara Gorman ’77 could be found in her courtroom with earnest advocates, unusual juries and a serious matter to be determined.

The serious matter was the education of a group of men and women who this year are law students and next year will likely be practicing attorneys. On these Thursdays in this section of Civil Trial Practice, they were learning what it means to practice law. They were learning by doing. And as they were doing, they benefited from having what they did seen from three perspectives.

One was the perspective of Thomas P. Whelley II ’77, who as team-taught the class with Gorman for more than two decades. A partner in Dayton with Dinsmore & Shohl in its litigation department, Whelley brings to class the perspective of a trial lawyer, an advocate whose goal is to use his knowledge and skills to persuade the jury. So he advised these students, as he does each year, “You can do anything in the courtroom that is not illegal, immoral or unethical.”

He also each year points out to them that Gorman brings a different perspective, that of gatekeeper, of protector of the jury. “I care who wins,” he told them. “She doesn’t.”

And the students, as they practiced their future roles as lawyers, had a jury of their peers, of sorts. The jury box housed other students in the class, so they were definitely peers. But they were not functioning as a jury in deciding who won or lost but rather helping their classmates learn.

In the first week of class, the students make what Gorman called “a sort of opening statement.” Besides gaining information about the students they will be teaching, the two professors learn something of the state of the class members’ skills at the beginning of the term. The last class simulates a trial.

“The transformation is amazing,” Gorman said. As the course develops, students progress beyond their opening statements to direct examination, cross examination, examination of expert witnesses, etc. Other practitioners bring their experience to add to Gorman and Whelley’s.

“There’s not much lecturing,” Gorman said. “We tell them what to read. They do the exercises.

“And the next year, they are in court.”

But this year they were in class, trying to come up with an answer to the question of “how do you do this persuasively in front of a jury,” Whelley said.

They pursued that answer each week, step by step, doing individual exercises — presenting evidence, examining witnesses, using experts. Students not involved in the exercise of a particular week sat in the jury box.

With years of studying law behind them, “they differ dramatically from a real jury,” Whelley said. “So I tell them to remember what it was like before they started to study law.”

In addition to not having the same level of legal knowledge as a real jury, they do not function as a jury does but rather give input on what may or may not be successful.

Gorman and Whelley stress positive criticism.

“Question No. 1 to our ‘jury,’” Gorman said, “is ‘What did you find persuasive?’”

Whelley’s experience in practicing law has impressed him with “the genius of the jury system,” with the competence of juries in making decisions in line with the quality of persuasion they encounter.

“I’ve never won or lost a case I couldn’t explain,” he said. “Runaway juries are the vast exception.”

The burden is on the lawyer to argue clearly and persuasively. “The lawyer’s responsibility,” Whelley said, “is to explain complex legal issues in layman’s terms. I haven’t encountered many legal issues that can’t be explained.”

What a lawyer must not do, he said, is to talk down to a jury by saying, “This is complicated.” He should give them credit for intelligence: “This may sound complicated, but you can figure it out.” Lawyers must also establish their own credibility in front of a jury, who, influenced by the biases of today’s culture, are likely to see the profession as not credible.

“Juries not only decide who wins,” Whelley said, “they can tell who is not genuine. You have to be yourself and become credible.”

“We tell them,” Gorman said, “‘Your courtroom style should be based on your personality. Don’t try to be what you’re not. If somebody else is flamboyant and you are quiet and logical, be yourself.’”

This can be difficult for beginning lawyers who may be focusing on trying to banish the anxiety of facing a jury. And most are apprehensive about the experience, Whelley said. An exception that proves the rule was a former student, a theater major as an undergraduate, who had no problem with nerves and no difficulty assuming a role. He had to work, however, on who he was himself as he faced the jury.

Gorman and Whelley encourage students, as they seek their own style, to go to trials and observe the lawyers. “If you like something,” Gorman tells them, “try it here. You can try things here without a negative effect on the client.”

Part of the process of finding and using the appropriate courtroom style is to become comfortable in the courtroom. “We want them to be comfortable looking toward a jury box,” Gorman said. “We want them to be comfortable with electronic equipment.”

Students are not the only ones who by the end of the course have benefited. “Every year I have to stay sharp on rules, on my techniques,” Whelley said, noting that law students are proficient at uncovering people who don’t know what they are talking about.

Learning to teach has also helped him in his practice. “As a partner,” he said, “I’m responsible to help train lawyers in the firm.”

But unlike Gorman, who taught middle school before her law career, Whelley had no pedagogical training before beginning teaching as an adjunct. In his training work, he said, “We talk about the same things that Barbara and I do. For example, how do I make this case simple?”

The process of a practitioner becoming a teacher can be a bit intimidating. Mary Kate Huffman ’90, Montgomery County (Ohio) Common Pleas Court judge and president of the School of Law Alumni Association, remembers clearly her first year teaching nearly a decade ago. After the course was finished, she told Kel Dickinson, then associate dean for academic affairs, that she didn’t know whether she did it right.

“I can assure you,” she remembered him saying, “that you did it badly.”

That was not quite the response she expected. But his point was simple: No one is a good teacher at first. That takes years. He also gave her pragmatic advice on how to use student evaluations, suggesting she discount the best and the worst (“There will always be people who like you a lot and people who dislike you a lot”) but pay attention to those in the middle, seeing how many of them said they learned from the course.

For, a teacher whose students learn is a good teacher.

And good teachers, adjuncts say, also learn themselves.

“You learn a subject inside out when you have to teach it to someone else,” said Judge Walter Rice of the United States District Court, Southern District of Ohio, who taught trial practice at UD for two decades. “If you can explain what you do and why, it makes you better.”

And that is “extremely rewarding,” said Ria Farrell Schalnat ’99, a patent attorney with Frost Brown Todd in Cincinnati, who, with professor Julie Zink, has taught a capstone course in patent litigation. “I feel like I’m giving something to the next generation of lawyers but also that I’m benefitting as much as the students when I look at the subject through their eyes.”

Part of that benefit comes from stopping and looking at one’s experience practicing law, Schalnat said, and “discerning which pieces will be useful to the learning process.”

Schalnat’s capstone course, like many of those taught by adjuncts, emphasizes practice. How much of a law student’s learning should be related to skills and how much to doctrine is a debate, Rice said, “that has waxed and waned for years.”

The two kinds of courses are different. They differ in purpose. Rice pointed, for example, to the difference between a law student learning when he or she could make an objection in court — a matter of learning the substance of the law — and learning when he or she should — a matter of learning the practice of the law.

The two types of courses also differ in how they are taught. According to Huffman, “Skills classes are where non-Socratic methods work. A teacher can’t tell you how to do a skill but can help you learn it.”

Rice praised the balance and the focus of Dayton’s approach to legal education. “The Lawyer as Problem Solver sounds like a cliché,” he said. “But that is exactly what a lawyer is.”

The bottom line, he said, is to serve “in the most effective, efficient and cost-effective way to produce the best results for your client.”

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Conte Memorial Garden plans by Christine Bates ’12

‘We stand together in tribute’

2:46 PM  Nov 11th, 2011
by Maggie Malach '11

As church bells in the distance announced the twelve o’clock hour today, students, faculty and members of the Dayton community gathered behind Keller Hall to recognize the late Dean Francis J. Conte.

Conte, an avid lover of traveling and gardening, was the dean of the law school from 1987 to 2001 and a professor of law from 2001 until his death in 2011.

The ceremony, a groundbreaking on the future site of the garden honoring Conte, opened with an address by Richard Perna, the associate dean for academic affairs.

“Keller Hall is a physical reminder of Fran’s vision of excellence for the School of Law,” Perna said, gesturing to the brick building in front of him.

Gardening was Conte’s favorite metaphor when writing about the School of Law. The garden to be planted on the east lawn of Keller Hall, said Perna, is a tribute to Conte’s life and accomplishments as dean and faculty member.

Following Perna’s address was a blessing of the plot of land, a reading of a prayer written by his namesake St. Francis of Assisi and remarks of the dean’s legacy.

The garden will be completed in spring 2012 and the School hopes it will be a place where students can come and remember the Conte’s accomplishments.

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Constitution Day

Patriotic birthday party takes the cake

11:23 AM  Sep 19th, 2011
by Maggie Malach '11

Friday was a day of firsts for me: My first time in a courtroom and my first time singing “Happy Birthday” to the Constitution.

Yes, that’s right. I attended a birthday party for the supreme law of the United States.

Paul McGreal, dean of the School of Law, hosted the celebration in the Mathias H. Heck courtroom at Keller Hall. McGreal kicked off the event by informing his audience that although some people argue the Constitution’s birth dates back to 1787, the year it was written, he preferred to recognize 1789, the year it went into effect.

“I want to err on the side of youth,” he joked.

After McGreal’s introduction, he led the audience through a resounding version of “Happy Birthday” directed toward the red, white and blue cake in the front of the courtroom. While the candles flickered, McGreal spoke to the audience about the legacy of former Supreme Court Justice Harry Blackmun.

During his 34-year tenure, Blackmun kept a thorough collection of his correspondence, including letters sent to different justices and the notes they passed to each other while on the bench.

McGreal used Blackmun’s archives to walk his audience through the typical proceedings of a Supreme Court case, down to the memos the justices write their clerks.

After the lecture, McGreal invited the guests into the lobby of Keller Hall to enjoy the cake and celebrate Blackmun’s preservation of constitutional law.

“What makes this a treasure trove is that it’s easy access,” McGreal said. “It’s a phenomenal resource.”

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Lisa Kloppenberg  10-2001        1

In the public interest

9:07 AM  Jun 30th, 2011
by Shannon Shelton Miller

More law school students will have the opportunity to pursue pro bono and other volunteer legal opportunities during the summer thanks to a recent silent auction that raises money for a student award.

During the School of Law’s Alumni Weekend in May, the silent auction raised $10,510, including the University’s match. The money helps fund the Lisa A. Kloppenberg Public Interest Award and the Volunteer Student Law Project, which awards stipends for summer living expenses to students completing volunteer legal work.

The award was renamed in the spring in honor of outgoing School of Law Dean Lisa Kloppenberg. Today is her last day as dean.

Eight School of Law students are currently funding their summer work with Public Interest Award stipends ranging from $1,500 to $3,000. The school hopes to support more students next summer.

 

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