At The Discretion of The Chair

The following is an opinion piece published in the Cleveland Metropolitan Bar Journal in June 2021.

The more laws and restrictions there are,
The poorer people become.
The sharper men’s weapons,
The more trouble in the land.
The more ingenious and clever men are,
The more strange things happen.
The more rules and regulations,
The more thieves and robbers.
Tao Te Ching – Lao Tzu – chapter 57

The Ohio Rules of Professional Conduct and their comments cover 192 pages. They are well thought out and meticulously worded. They cover both obligatory and discretionary conduct. They were designed to provide guidance to lawyers and a structure for regulating conduct through disciplinary agencies.

They deserve study, but they are ponderous. What if lawyers —what if everyone — based their ethics upon a clear and concise foundation?


No doubt — you were quick to realize I did not make that up. They were the core principles of W.E.B. Du Bois — altered a bit by Cornell West. They answer the question: “How does a movement stand up to oppression?”

These principles provide cornerstones for ethical behavior. They fit our lives. They fit our practice. Loosely said — but true — if you rely on the principles, you are safe with the rules.


My ethics professor (and, no doubt, many of yours) was Robert P. Lawry, Professor Emeritus of Law at Case. He introduced us to the “professional effort.” You do the work. You solve the problem so completely that not a trace is left. So many of our practice problems come from not having done what we said we were going to do of what needed to be done — from not returning phone calls to selling cases and clients short. Do the work and the problems never materialize.


One of my best friends (not a lawyer) called me to ask how I would defend the policeman in the George Floyd trial. “How would you obfuscate to get him off?” He was proud of the word (obfuscate), and I was insulted. But that is where we are. We live in a country of “alternative facts.” In the common parlance, “lawyer” means “liar.” The profession cannot abide that definition. But we can only alter perception with a prolonged reality.

But more immediately, within our practice, with clients, and with courts and opponents, honesty is imperative.


Empathy. The Golden Rule. Actions for the right reasons. Taking the time to understand our clients — their strengths and vulnerabilities. We are a service profession of the highest order.


This is the hard one. So let me steal another thought — this one from Robert Kennedy: “Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”

We do not need, any one of us, to be a crusading lawyer — winning big cases and changing the world. Each of us does, however, need to do what is right. We don’t make decisions based upon personal benefit. Sometimes we actually must make decisions that are not in our personal interest. We need to fearlessly ask questions of Judges and Opponents and Clients. We need to disagree, civilly and when necessary, with the same Judges and Opponents and Clients.


Yes, we do. We know that Integrity, Honesty, Decency and Courage are, at least, a major part of our ethical baseline. However –

  1. Tied together they are also the basis for our credibility. Those attributes are recognized both in their actions and in their absence. Nothing is more important to today’s and tomorrow’s client than their lawyer’s credibility, nor more damaging in its absence.
  2. A few, but too many of us, have only one client — ourselves. Those lawyers make their decisions more often than acceptable with their own interests — money, power, acclaim — first in mind.
  3. But far outweighing the negative is the purity of being a good lawyer. We all know them. They walk in the room and Judges and Juries and Opponents and Clients immediately respect them for who they are and what they have done.

So here is what I have learned this year. The CMBA is, in its vast majority, made up of good lawyers, working toward being being great lawyers, and doing great things for the legal community and the people we serve. Our Committee, Professionalism and Ethics, is made up of a group of “True Believers,” trying to practice and teach what we all preach.

It has been my honor. Thanks for having me.

Many thanks to bar counsel, Heather Zirke, my consigliere. To be truthful — I was her consigliere.

Jay Milano is the outgoing Chair of the Ethics and Professionalism Committee. He teaches Ethics and Law to Journalism Students at Ohio State (6 years) and Trial Tactics to Law Students at Case Western Reserve School of Law (27 years). Milano, Attorneys at Law focuses on complex litigation, Civil and Criminal, for individuals and closely held companies. He has been a member of the CMBA since 1982.

What if … ?

The following is an opinion piece published in the Cleveland Metropolitan Bar Journal in January 2022.

… American Values, American Morals, American Ethics were based upon the core values of The Golden Rule, Do the Right Thing, and a Foundation of Integrity, Honesty, Decency and Courage.

… And those Core Values have devolved into: — What’s in it for me? What can I get away with? … Religion, despite its people with sincere beliefs, has been corrupted by power players, and grifters, and fear mongers. In turn, it has become intolerant of the poor and the merciful and the peacemakers.

… Wealth begat greed which begat the rich (The Top 1% of Americans have taken $50 trillion from the bottom 90% (Time 2020)) which begat narcissism and megalomania. The rich are willing to use a tiny portion of that wealth to pollute the information pool, and to turn the watchdogs into lapdogs.

The media does play a vital role in our democracy, and if we cannot depend on Journalistic Ethics, the nations in trouble. (Dave Brat)

… American Newspaper Daily Circulations grew from 48 million in 1945 to 62 million in 1990 and then dropped to 24 million in 2020 (PEW). Fewer than 10 Companies now control 90% of media outlets — down from 50 companies in 1983 (Poynter). Media ethics departments in news agencies have all but disappeared.

… About two-thirds of U.S. adults say they get news from news websites or apps (68%) or search engines, like Google (65%). About half (53%) say they get news from social media, and a much smaller portion say they get news at least sometimes from podcasts (22%) (Pew 2021).

Sinclair Broadcast Group, Inc. is a diversified media company and leading provider of local sports and news. The Company owns and/or operates 21 RSN brands; owns, operates and/ or provides services to 185 television stations in 86 markets; is a leading local news provider in the country; owns multiple national networks; and has TV stations affiliated with all the major broadcast networks. Sinclair’s content is delivered via multiple-platforms, including over-the-air, multi-channel video program distributors, and digital platforms. (Sinclair Website).

… Sinclair’s probably the most dangerous company most people have never heard of, said Michael Copps, the George W. Bush-appointed former chairman of Federal Communications Commission (FCC), the top US broadcast regulator (The Guardian).

… Sinclair, Fox, MSNBC and most other outlets have a point of view. They have a motive. Some are political. Some view you as Fish, to net and sell. (Click bait?) The circuitry activated when you connect online is the seeking circuitry of dopamine…We’re like the rat pressing the level over and over to get a little dopamine hit, forgetting all about food and rest. (Harvard Business Review). The camouflage with which the message is hidden is “false equivalency.” Both sides are equal — whether you are right or wrong is irrelevant. But that is not true. The politics of a decade ago is not the same as the first time in American history, that we did not have a peaceful transition of power.

… We have been separated into tribes. Sectarianism is a highly moralized political identity that views the other side as contemptible. The moral component is foundational. You can imagine that you are a member of a religious sect, and you very, very strongly believe that you possess the full moral truth and that the other people aren’t going to heaven or are evil. That is the tenor of the thinking that we see across the political divide these days. (Scientific American). Civilized discourse and confrontation have disappeared — replaced by hate speech. We spit at each other.

… It’s all a lie. And we have come to accept being lied to. Repeat a lie often enough and it becomes the truth. (BBC Future)

… It’s about racism-misogyny-homophobiafear and loathing of the other. That cannot be an overstatement if it becomes any part (even the tiniest part) of the “strategy.”

… We all get a trophy. No need to work hard, no need for excellence. Your opinion, your feelings are all you need. If you’re not getting what you want, you are aggrieved.

… They are the carnival barkers. We are the rubes. … We don’t need no stinking science, no stinking excellence, no stinking hard work, no stinking masks, no stinking planet…

… And finally — We don’t need no stinking ethics. Except in 1995 Carl Sagan PhD (Astronomy and Astrophysics) wrote:

“I have a foreboding of an America in my children’s or my grandchildren’s time — when the United States is a service and information economy; when nearly all the key manufacturing industries have slipped away to other countries; when awesome technological powers are in the hands of a very few, and no one representing the public interest can even grasp the issues; when the people have lost the ability to set their own agendas or knowledgeably question those in authority; when, clutching our crystals and nervously consulting our horoscopes, our critical faculties in decline, unable to distinguish between what feels good and what’s true, we slide, almost without noticing, back into superstition and darkness. The dumbing down of America is most evident in the slow decay of substantive content in the enormously influential media, the 30-second sound bites (now down to 10 seconds or less), lowest common denominator programming, credulous presentations on pseudoscience and superstition, but especially a kind of celebration of ignorance.”

What happens now…?

Jay Milano is a Past President, Current Chair Thought Leadership, and Past Chair Ethics Professionalism. He has been a member of the CMBA since 1982.

I’m Mad. I’m Right. That Judge is Wrong. The First Amendment…But How Far Can I Go?

In Ohio, lawyers have been subjected to professional discipline for making statements later held to be “accusations of judicial impropriety that a reasonable attorney would believe are false,” in violation of Rule 8.2(a) of the Ohio Rules of Professional Conduct.1 Rule 3.5(a)(6) punishes lawyers found to have “engage[d] in undignified or discourteous conduct that is degrading to a tribunal.”

Consider these two cases.

Many of us are familiar with the recent criminal proceedings against Harvey Weinstein. Weinstein was convicted of third degree rape and the commission of a criminal sex act (a Class E felony under New York law) in February of 2020. Facing a minimum sentence of five years in prison and a maximum of 29, Weinstein was sentenced by New York Supreme Court Justice James A. Burke to a period of 23 years imprisonment on March 11, 2020.

Weinstein’s lawyer, Donna Rotunno, was interviewed by members of the media on the New York Criminal Courthouse steps immediately following Weinstein’s sentencing proceedings. With at least one camera and 20 microphones in front of her, Rotunno provided the following statement: “That number was obnoxious. There are murderers who will get out of court faster than Harvey Weinstein will. That number spoke to the pressure of movements and the public. That number did not speak to the evidence that came out in trial. That number did not speak to the testimony that we heard. That number did not speak to evidence, nor did it speak to justice. I am overcome with anger at that number. I think that number is a cowardly number to give. I think the judge caved, just as I believe the jury caved, and I am not happy.”

Lawyers cannot afford the luxury of recreational anger.

The week before Weinstein’s sentencing hearing, a 35-page article — the Roberts Court’s Assault on Democracy — was published in the Harvard Law and Policy Review.

The article’s premise is that the United States Supreme Court — specifically in recent times under the presiding Chief Justice John Roberts — “is substantially contributing to” the “erosion” of democracy in two specific ways: 1) by “virtually eviscerat[ing] the landmark Voting Rights Act,” and 2) “by reinforcing the enormous imbalance in wealth and political power that has developed in recent decades.”2

The article opens by quoting Chief Justice Roberts’ statement to the Senate Judiciary Committee that “a Supreme Court justice’s role is the passive one of a neutral baseball ‘umpire who [merely] calls the balls and strikes.’” — characterized by the author as a “masterpiece of disingenuousness.”

“The judge caved,” “obnoxious,” “masterpiece of disingenuousness.”

These events beg the question — where is the line?

Rotunno’s statements were made to the general public from the courthouse steps. The latter example is a law review Article published by the Harvard Law and Policy Review. Both involve inflammatory comments aimed directly at a particular judge. These are considerations that are key to the analysis.

Do you think that either of the above professionals will ever be disciplined? More important, should they be?

Does it affect your analysis to know that the Article attacking democracy under the Roberts Court was authored by District Judge Lynn Adelman of the Federal District Court for the Eastern District of Wisconsin?

Lawyers are governed by the rules of ethical conduct. Quite often, these rules involve an underlying respect for the courts — the judges — with whom we work. That respect is right — and it is necessary.

But, it is a lawyer’s duty to engage in civilized confrontation, not only with their adversaries but also with the judge. And isn’t it is a civic duty to offer well-considered opinions on issues important to the public?

We all have opinions. But when is it appropriate — or inappropriate — to share them? And how far can you go?

I suggest you take these as rules:

  • It is not appropriate to make derogatory comments about a judge on the courthouse steps strictly to benefit your legal practice — to pursue a self-fulfilling vanity show.
  • It is not appropriate to make inflammatory comments premised solely upon your personal anger.
  • It is not appropriate to make statements aimed at swaying a tribunal.

But if your point is one of advocacy — if you are speaking on a topic in order to inform the public — if it is well thought-out and you have examined all sides of the issue, then can you assume a duty to speak?

Hard questions.

Approach the line with great caution — edging closer as you are more firm in your convictions. But understand that you might be wrong. If you are, and the balance tips towards recklessness and disrespect, there will be consequences. And if you cross the line — if you break the rule-intentionally to make a point — understand that you will pay a price. Weigh your choices carefully — be prudent — act with integrity. Sometimes, not often but sometimes — it just might be the right thing to do.

For those readers viewing this story in print, the links at which to view the cited material are copied below:

1 See Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586 (2018); see also Disciplinary Counsel v. Shimko, 134 Ohio St.3d 544 (2012).

2 Adelman, Lynn, The Roberts Court’s Assault on Democracy (February 18, 2020). Harvard Law & Policy Review, Forthcoming . Available at SSRN:, at Abstract.

This post first appeared as an “Ethics Perspective” column at

Some Rules On Giving a Speech, Or an Opening Statement, Or a Closing Argument

  1. Write a list of the points you want to make.
    1. Put it aside, revisit it, look for connections
  2. Prepare by Outline
    1. You are going to know it- you are not going to read it
    2. Think about and then write out the phrases where you most want to use the beauty of language
  3. Be eloquent, soar- but don’t overheat it
    1. The baseline is simple, clear, unambiguous language
    2. Use your “Beautiful Phrasing” sparingly- but use it
      1. Bring your audience from the foundation of understanding up into the sky with you
  4. Use the rule of 3’s
    1. The most important of which is (read it to the end, it is a little different)
      1. Tell them what you are gong to say
      2. Tell them
  5. Make sure you prepare an ending that they will remember to get yourself off stage
  6. Then-Put the draft aside, come back to it
    1. Look for new connections and ideas
    2. Remember that good editing most often means cutting out the dead wood
  7. Then- when you stand up
    1. Slow Down and Breathe before you say your first word
    2. Remember understanding happens most often in the pause.
      1. Take a silent moment to let the point sink in
  8. If nothing else, they will remember your energy and passion- Let it Go

Holy Love versus The United States of America—And Guess Who Is Winning

The Holy Love Ministry sits in a cornfield west of Cleveland. It is built upon the relationship between an otherwise ordinary woman and Mary, The Mother of God. Followers believe Mary visits on occasion and often sends signs, much like She does at Fatima or Lourdes. Pilgrims come from all over the world to witness and pray.

The Ministry is not poor. Donors have financed a beautiful Chapel and other buildings on the grounds. In fact, donors from Mexico City have been so generous that  the Cardinal of Mexico City called on the Vatican to apply some muscle and shut Holy Love down. Rome called Cleveland. Cleveland paid a visit to Holy Love. (I’ll write about that later, but it is not a coincidence that the country that produced the Vatican also produced the Mafia.)

Holy Love put its building fund into a credit union. A thief (The CEO of the Credit Union), looted hundreds of millions of dollars, including over $1,000,000 in Holy Love money. When Holy Love found out about the theft, and before the Government took over the looted credit union, Holy Love went to withdraw their money. That was their right. In fact, the Government was assisting some people in withdrawing money and structuring accounts. That way, when the Credit Union was shut down, they would not lose their money.

That did not happen to Holy Love. The Government lied to Holy Love. They told them that they had to wait until over the weekend to get their money. There was a rumor that Holy Love was under investigation. No one ever said what the investigation was about.  Just a rumor- nothing ever came of it. But over the weekend the Government shut down the Credit Union and locked up all of the money that was left.

And Holy Love was out more than $1,000,000.

I had represented them in their fight with the Vatican and the Diocese, so they came to me for help.

Easy case. It was their money. They went to take it out, but the Government did not let them. The Government lied to them to stop them from receiving their own money. The Government did so because of a baseless rumor. The Government had no right to the money.  Surely The Government would come to its senses and give the money back.

The Government did not come to its senses. The Government refused to give the money back. Suit was filed. The Government  fought the lawsuit.

And they did so by using a uniquely American defense.


You see,  you can only sue The Government if The Government allows you to. That is called Sovereign Immunity. There is more. You are not allowed to sue The Government if The Government lied to you. That is called THE MISREPRESENTATION EXCEPTION.  The Government’s defense was;  “Yes, we took the money-we shouldn’t have taken it-it wasn’t ours to take- and we won’t give it back. But, we lied about it so you can’t sue us.” Honest to God, that is what they said. And they won.

The case is on appeal, we’ll see,  but one thing is for sure.

The game is rigged.

Lack of judicial discretion underlies problem of liar’s pleas: Jay Milano (Opinion)

The following is an excerpt from an opinion piece published at on on January 31, 2016.

The “truthful plea agreements” editorial published on Jan. 11 highlighted a real problem in criminal justice.

How do you handle a case when both sides fear that they will lose? What if a defendant maintains his innocence, but faces a trial that may cost him his freedom — for life? What if a prosecutor has a credible accusation — but not enough evidence?

Over the years, judges and lawyers have invented a way to cope. They invented a fiction.

Continue reading at »

And the Beast Spit Him Out

 — And the Beast Spit Him Out*

“I have committed a terrible crime.

I have paid a terrible price.”

John Snider, 71 years old, made that statement.

He stood, wearing an orange jumpsuit, before Judge Dick Ambrose. He hunched over a podium and leaned on his cane. He had been led out, in shackles, from the invisible door that hides in all Cuyahoga County Courtrooms.  It is part of a wood paneled wall that separates the absurdity of the courtroom from the insanity of jail. Pass through and you enter the belly of the beast- nothing but cinderblock and stainless steel and unbreakable glass doors. A black shirted deputy sheriff stood behind him. He was close enough to reach out, if need be. It was more likely John Snider would fall than run. He stood ready to be sentenced, for the third time.

John Snider pled guilty to distributing child pornography. Making money by assaulting children is unspeakable. Even trading the pictures with others is reprehensible. But John Snider did none of that. John Snider had never acted out in any way.

He looked at pictures on his computer. He got them from a sharing program, like LimeWire used to be. The sharing program allows others to look at your files. John Snider did not know he was sharing. In fact, no one but the police ever looked at his pictures. Police can send out a “ping” connected to the program and find a person who had downloaded pictures. The person does not ever have to leave his house, or buy a dirty book, or talk to anyone (even online). They just have to look at pictures.

(You have to be wondering why the sharing program, a multinational platform for passing smut, was not been indicted along with John. Me too.)

Based upon the ping, the police raided John Snider’s home. He was charged with distributing child pornography. “Distributing” – even though he only looked at the pictures.

Distribution, and the long prison terms it brings, should be reserved for people who sell videos or who run websites. It should fit those who actively share the filth. It was never meant for people who just looked at the pictures.

Court psychiatrists and private mental health professionals examined John Snider. No one believed he had any sexual interest in children. He was an obsessive/ compulsive collector of anything that caught his interest. He had seen a news report, downloaded a small number of pictures and that was it.  He did it, the Doctor said, as result of depression.

He had once been a valued executive, a senior insurance adjustor, until a back injury shortened his career and fed his depression. He was a family man, loved by his wife and children.  He had never acted out in any way and had never been in trouble.

His case was assigned to Judge Kathleen Sutula. That assignment is done in a public proceeding known as an arraignment. Other defendants and their lawyers are there. A gallows’ humor groan inevitably rises from the lawyers each time Judge Sutula’s name is called. She is considered, among other things, harsh.

I whispered to John Snider as we walked from the bench, “It will be OK”, more out of hope than optimism.

John Snider pled guilty, because he was guilty of possessing the pictures. He could be sentenced to probation, or prison time. No jail to years in the belly of the beast.

And here is the problem. You would think that similar people with similar crimes would get similar sentences. That is not the way it is. Sentences vary wildly depending upon the Judge.

At the sentencing, John Snider’s whole family was there: his wife, daughters and a son in law. Everyone knew the Judge had a reputation. We feared the hearing might be brutal.

Judge Sutula has added flowers and a nightstand light to her bench, presumably to soften the ambiance. The homey touch did not soften the dread of standing before her.

She had, once, given probation to a defendant in a case just like this. There must have been special circumstances, but she had done it before. The family believed (we all hoped) that John Snider: who had never been in any trouble, who was 69, and who no one thought was a danger, would avoid jail.

He did not. The Judge began a pointed lecture. The facts weren’t quite right and it seemed very personal. It ended with her sentencing him to 2 years on the 3 crimes. Hard, I thought as I sat there, but not outrageous. Then, in a tone I thought sounded more pointedly personal, she said that sentences would run consecutively. That means stacked one on the other. John Snider, at 69, would go to prison for 6 years.

With a broken back and a bad heart he was more likely than not to die in jail.

The deputies moved John Snider, quickly and silently, through the secret door. He did not have an opportunity to look back to his family. And in that instant, he was gone.

There was nothing in the Judge’s presentation that would have signaled consecutive sentences. Consecutive, one on top of another, is reserved for the worst criminals.

We appealed. It took a year. John Snider was in prison. The Appellate Court agreed with us. The sentence did not follow the law. The case was sent back for another sentencing. But the sentencing would be back in front of Judge Sutula again.

Just before the second sentencing I learned that a family member, the son-in-law, bragged that he had spoken to the Judge by phone before the first sentencing. He claimed he had given her an earful of what a terrible person John was. He had no evidence, but apparently harbored some grudge or insecurity. His father was a policeman, a boss in a suburb. The son in law was a policeman wannabe. He was flexing his muscles here. He could talk to the Judge privately- wield his policeman’s power in secret. And he was a coward. He had been at the sentencing, pretending to support the family.

A Judge cannot talk to anyone but the lawyers about the case and then only if both lawyers are present.  It is clear in the rules. If she does talk to anyone alone, she has to let the lawyers know. Either side has a right to deal with the consequences. It is called an ex-parte communication. Judge Sutula never let anyone know she had spoken to the son-in-law.

We believed she should be removed from the case. The procedure is to file an affidavit of disqualification to the Supreme Court. The Chief Justice decides the outcome.

We had information from the family members about what the son-in-law did. But, at this point, we had nothing from him.

We let the Judge know what we had learned. We asked her to remove herself. This time she was just plain angry. “In all of my years on the bench”, she said, “It has always been my policy to not talk to anyone”. She did not affirm or deny. She did not say anything meaningful. We filed what we had with the Supreme Court and laid out what we knew.

We do not know what communication took place between the Judge and The Supreme Court. Though we had to provide copies of our request to both the Judge and the Prosecutor, the Judge provided nothing to us.

Very quickly we received an order from the Court. The Judge had stated that she was not influenced. She said she did not recall a phone call. The Chief Justice wrote that it was only hearsay from the family, not the son-in-law himself. Request denied.

I do not claim what follows was intentional, or that the insult exists anywhere other than in my head. In the written order of the Supreme Court each time they referred to the Judge, it was “Judge Sutula”.  And each time they referred to me, it was “Milano.” “Milano claims…”- “Judge Sutula avers…”.

The sentencing was reset before Judge Sutula once again. Now we would face the scenario about which many of my colleagues had warned me. “You will only piss her off.”

We needed to attempt, again, to talk to the son-in-law. There was great concern over the family problems he had caused and now would cause. Nevertheless, we contacted him and he talked. Better said – he vomited out everything about his phone call with the Judge. None of what he had told her was true. He seemed to believe he was safe. He could say anything. John Snider was in jail.

We redid the motion for the Supreme Court with his affidavit attached and sent it in. The case was set for sentencing. Family, counselor and friends again appeared at the Courthouse ready for the worst.

Judge Sutula brought us into the Courtroom. This time she knew that there was evidence of the ex-parte discussion. She was about to sentence again, but decided that it might be better if she waited. To barrel ahead would look like she was out to get John Snider. Sentencing was postponed until the Supreme Court made another decision.

We waited.

Then, without warning, we got a phone call telling us that the case had be re-assigned to Judge Dick Ambrose.  Judge Sutula had voluntarily removed herself from the case. Shortly thereafter, we got an order from the Supreme Court telling us, in effect, that since the Judge had removed herself, they would go no further to investigate the Judge/son-in-law conversation.

And then came the third sentencing.

“Please Judge,” John Snider whispered as if he were ashamed and afraid his family would hear, “I cannot bear to wake up scared every morning. Scared that I will be stabbed. Scared that I will be beaten. Scared that I will be extorted. I have been in jail for 16 months. My wife and I have lost our home. She has been gravely ill, and I am sure the stress I caused her has worsened her illness.”

Judge Ambrose reduced the sentence from 6 years to time served, about a year and a half. That was punishment enough. He then ordered John Snider to be released to his family-under the strict supervision of county sheriff and the sex offender unit of the probation department.

John stood a moment, leaning on his cane, looking confused. Believing he was being released, he moved towards his wife. The deputy moved quickly. “Come with me,” back through the invisible door, back to jail. There was paperwork to do. You can’t leave jail until get the paperwork gets done.

John Snider had no street clothes. About 7 that evening the deputies gave him a jacket and some shoes to go with his jail orange coveralls.

And with that… the beast spit him out.

PS: There is an inscription above the Bench in the Court of Appeals. It says, “This is a government of law, not of men.” Do you believe that is true?


PPS: Judge Ambrose is Dick “Bam Bam” Ambrose of Cleveland Browns glory days. Lawyers suck up to Judges. Browns fans are hero worshipers. That is a lot of obsequiousness for one lawyer to bear.


* In the Belly of the Beast is a book by Norman Mailer and Jack Abbott. It detailed Mr. Abbott’s time in prison.

Every Lawyer Needs to Understand Trial

Lawyers are- In Trial… On Trial… Trying a Case… Going to Trial, Preparing for Trial, In the Middle of a Trial, Just Coming Off a Trial– or working very hard to assure that their clients never undergo such a painful experience.

Trial is, in the mind of the populace, what lawyers do. But most lawyers will never enter a courtroom.

What all lawyers must do, regardless of their specialty, is protect their clients from the danger of trial, while laying the groundwork for success should that endgame become necessary. Our common principles; integrity, the professional effort, applying law to fact, mean just as much to the transactional lawyer as they do to the litigator.

Cases are disputes that end up in a lawyer’s office. Usually they arise from conduct never touched by lawyers. Sometimes they arise despite the best efforts of a lawyer to avoid the conflict. No lawyer wants his/her client to end up with a case.

Trial is the end game of all cases. It is the application of evidence to law. It is the crucible where evidence and law and skill and personality are mixed and burnt down to yield a verdict- a judgment.

This article is not intended to be treatise on how to conduct a trial. It is written, rather, with the hope it will provide a framework on how to approach the task.

You are not a shark, or a tiger, or a wolverine.

You are a teacher-at every turn.

It is your job to make people understand. You need to insure that your client understands why his case is different than his story, his chances of success and what the world of trials will be like for him.

It is your job to teach the judge, at your first opportunity and at every opportunity that you are right about your case. He or she will make decisions based upon conclusions drawn, whether realized or not. Right from the first contact with the Judge or the staff attorney, you need to load in the quality of your case and your competence as Counsel.

It is your job to teach your opponent. Don’t be overly concerned about a strategy of secrecy. Convince your opponent that they will lose and you will win the case – more likely on the safer ground of mediation or a settlement conference.

And then you need to teach the jury.

It is a case, not a story

There are books written about the use of story telling in trial. It is, after all, the way we communicate and pass on history. It is an important tool, but it is death if you overly rely on it as a trial tactic. ‘My story against yours,’ allows for too many extraneous factors; like emotion and prejudice and inherent power, to taint the result. Contrary to popular myth, all but lawyers with the most powerful clients want intelligent juries. They want juries willing to do hard examination of fact and law, self examining of their prejudices, and then make the difficult decisions necessary to render just verdicts.

Clients come in and tell their story. They ask you, “Do I have a case?” The lawyer’s question should be, “Can we win at trial?” expanded to, “What will the admissible evidence be?” and to “What is the law that applies?”

That method of analysis is issue based, rather than story based. It needs to be done as a threshold in every case.

In every case, do an issue-based analysis.

Do a complete exploration of your client’s version, exhausting every possible fact or explanation or witness. Your questions are, What else? Who else?, until there are no more answers left. Ask each client, and each potential witness: “What will the other players in the case say good about you- say bad about you- tell me about the situation?”

You also need to prepare a timeline-immediately. People are not that smart and it is difficult to follow a complex presentation. However, they do respond to a framework. The chronological framework gives them a tool to organize their thinking.

(Remember, sadly, that the most common motivation left in America is self-interest. As a result we have trained ourselves to believe that it is OK to lie to forward our interests. And beware of a new and viral strain of this virus, the person who will make up any lie to fit a nugget of fact. They have no compunction to lie on such an outrageous level that they achieve Orwellian credibility because no one believes that they could make that stuff up.)

The next thing you need to do is understand the law of the case. That is easier than you would think. Trial is the end game. The jury finds the facts based upon the presentation of evidence and applies them to the law. They are the ones you have to convince. Where do they get their law? They get in through the jury instructions. A plain English recitation of all of the elements of the trial, from what the cause of action is to what rules the jury uses to reach a verdict.

Read the general jury instruction on such issues as credibility and burden of proof until you can recite them by rote. Read the case-specific jury instructions at the onset of each case and read them again until you thoroughly understand what you have to prove.

Determine what may or may not be admissible, and then apply that evidence to the law.

Make a determination about whether you can win at trial. Repeat the process on a regular bases as the case progresses over time. Cases are fluid and often do not end up where they began.

Integrity Wins Cases

Cases are settled favorably (or won at trial) because you have shown the Judge and the opposition (and the Jury) that your case is real. You should win. They will only believe you, however, if you present yourself and your case with integrity.

Integrity, in this context, means that you will stake out the furthest reasonable position for your client. You will make the professional effort to be fully prepared on each issue. If you say it, regarding law or fact, you say it because you believe it to be true.

People watch and listen. A lawyer might get away with a stretch here or an outright falsehood there (lawyers do lie). But over time, people will watch what you do. You will either build a reputation for integrity or not. In my opinion, you will win more cases based upon a well-earned reputation for credibility and reasonableness than you will on good facts.

How do I prepare?

One way to look at a human being’s level of intelligence is to consider on how many levels of abstraction they can think ahead. Chess players think 64 moves or levels ahead. Composer writes symphonies blending levels of instruments and rhythms and tones. Most of us cannot think past lunch.

Young lawyers watch old lawyers operate smoothly in any situation and wonder how. Experience is an equal to intelligence as it allows you a higher point to jump off. You have seen the first 15 steps before, so it is easier to see the next.

So how does a lawyer overcome a lack of intelligence or experience? Through layered preparation. Do the analysis, set it aside and do it again. Do it with others. Each time you do it you will see more, understand more and your arguments and presentations will be more complete.

Has this ever worked in the real world?

I tried a murder case, by myself in Akron.

The allegation was that a young man murdered his girlfriend’s 2-year-old child by punching him in the stomach. The case was based upon expert testimony regarding the timing of the blow. If it was delivered the night before the baby died, the client was guilty.

I contacted James Patrick MD, the elected coroner from Toledo. He is a large, charismatic fellow, from Harvard Undergrad and Yale Med School (or Vice Versa).

We met 7 or 8 times as he taught me the science of immune cells and how they could be used to time insults to the body. He was convinced that the baby was injured days before. The client was not guilty.

My theory on direct examination, especially with experts is that it is a dance. The lawyer only leads imperceptibly, while the expert teaches the jury.

So we went to trial and it was a big deal. Packed courtroom. The elected County Coroner of Summit County testified for the state. Our current Chief Justice, then the elected prosecutor, presented for the state.

Dr. Patrick took the stand and I attempted to teach through him by gently leading through his presentation. Except to each of my questions he answered only yes or no. I tried to dance. He stood firm and I began to sweat. In desperation I said, “Dr., what do you want to tell the jury.” He got up, set up his presentation equipment and taught the jury, uninterrupted by anyone for more than an hour, exactly how and why the baby died. The client was acquitted on the first ballot and I had nothing to do with it.

But I did learn that while people might root for a fighter, they will listen to and believe a teacher.

“Every Lawyer Needs to Understand Trial” written by Jay Milano, will be published in the Cleveland Metropolitan Bar Journal, November 2013 Edition. To view the actual article, please click here.

Jay Milano Named Top Rated Lawyer

Jay Milano first spoke in court during a murder trial and has practiced at that level of intensity for over 30 years. His clients include Snoop Dogg, Hell’s Angels, sports figures, doctors, judges, lawyers, and executives, as well as countless people who just needed help. He has tried to not-guilty verdicts cases involving death penalty, multiple homicides, and the “shaken baby” syndrome. He is nationally known as a defender of those falsely accused of sexual assault on children.

Mr. Milano led the exposure of sexual assaults and the cover-up by the Catholic Church and was featured on the Emmy-winning 60 Minutes report, “The Church on Trial.”

As his practice progressed, Mr. Milano became more focused on complex litigation, white-collar crime, and cases where law and science intersect. His method: fearless, aggressive and personal lawyering remains constant – regardless of whether a trial is called civil or criminal. His practice now includes significant malpractice, injury and defamation cases, many with Judgments exceeding $1 million.

He regularly represents professionals; doctors, dentists, nurses, lawyers or judges on issues of professional conduct.

He has taught Trial Tactics at Cases Western Reserve School of Law for 20 years and teaches advanced tactics to practicing attorneys several times a year.

The Buzz on Ohio OVI Testing

“No person shall operate any vehicle… under the influence of alcohol, a drug of abuse, or a combination of them.”

Whether you call it OVI, DUI or just drunk driving, those words from the Ohio Revised Code put fear into the hearts of thousands of drivers throughout the State of Ohio who are accused of drunk driving every year. With mandatory jail sentences and fines that can be attached to drivers who previously had spotless records, drunk driving arrests have become a major issue throughout the state. It’s not just for driver’s who are completely intoxicated either. Just a few drinks can push you past the 0.08 blood alcohol limit in Ohio and before you know it an evening with friends can end up as a weekend in jail.

Throughout Cleveland and the surrounding communities police use a variety of methods to track down drunk drivers and then use several tests on the driver to determine if they are impaired. The primary method that officers use when they first pull someone over is the traditional slate of field sobriety tests. These tests measure a person’s coordination, balance and dexterity in an attempt to determine if the person is impaired.

Officers also use breathalyzer’s in the field and after arrests are made to determine how much someone has been drinking. Drivers in Ohio can refuse these tests, however, a refusal will automatically result in a license suspension by the Ohio Bureau of Motor Vehicles.

The results from the field sobriety tests and the breathalyzer can all be challenged, however, and that’s why it is so important for defendants in OVI cases to seek out an attorney. Specifically, the results from breathalyzers need to be reviewed to determine if they are accurate and if proper guidelines were followed when the test was administered. The breathalyzers commonly used in Ohio have come under a massive wave of scrutiny over the last year and it is important to know how to use that scrutiny in each case.

With potential penalties that can include multiple months in jail and thousands of dollars in fines, defendants have to seek out every possible way to challenge the allegations against them. If you or anyone you know has been charged with a driving under the influence Contact us and let’s figure out what we can do to help.