Res ipsa loquitur:



Contact Person:

Jonathan R. Zell
5953 Rock Hill Road
Columbus, OH 43213-2127

Tel. (614) 864-2292

Lawyer threatens lawsuit over American Bar Association’s censorship of malpractice-themed Peeps® diorama 

Columbus, OH.  Jonathan Zell simply wanted to illustrate a novel legal argument that his adversaries had made in a malpractice case Zell had filed on behalf of his mother against the Ohio-based law firm of Frost Brown Todd.  (Eileen Zell v. Frost Brown Todd LLC, et al.. Case No. 2:13-cv-0458, U.S. District Court, Southern District of Ohio, Eastern Division.)  So Zell entered the American Bar Assn’s (ABA’s) “Peeps in Law 2014” contest by submitting a miniature scene (called a “diorama”) made out of Peeps® (the animal-shaped marshmallow candies) depicting this argument.

In response, according to Zell, the national lawyers group “has banned my diorama simply because it involves the touchy subject (that is, touchy to lawyers) of legal malpractice.”  So Zell now plans to sue the ABA, claiming that, “to avoid embarrassing lawyers,” the ABA is engaging in “a blatant kind of self-interested political censorship.”

In an e-mail to Zell, an ABA official claimed that Zell’s diorama was not accepted because it was submitted by someone “personally involved” in the legal case being depicted.  But, because the contest deadline had already passed, it was now too late for anyone else to submit this diorama instead of Zell.

Zell wrote back to the ABA, pointing out that the contest rules say nothing about “involved persons.”  Also, the ABA had already accepted and posted on its website similar dioramas from other “involved persons.”  But Zell received no response.

Zell’s diorama showed six lawyers sitting in a law firm’s office, each of whom was holding up a sign stating “Not me.”  This was intended to depict the six Frost Brown Todd lawyers whom Zell’s mother has sued for legal malpractice.  As was explained in a caption accompanying the diorama, the statute of limitations on legal malpractice does not begin to run until after the client’s legal representation in the matter in question has ended.  This is designed to give the malpracticing lawyer an opportunity to correct his or her mistake.

However, Frost Brown Todd recently filed a motion in court arguing that, because its six lawyers had worked on Zell’s mother’s case “successively,” the statute of limitations should be computed separately “for each particular attorney.”  If so, then Ohio’s one-year statute of limitations on legal malpractice would have already expired on the first five lawyers’ mistakes.  Since the alleged harm had already occurred before the sixth lawyer took over the case, Frost Brown Todd then claimed that none of its lawyers or even the firm itself has any liability.

Zell contends that, if Frost Brown Todd’s “novel legal argument” is accepted by the court, it would “provid[e] a roadmap for Ohio’s attorneys on how to defeat claims for legal malpractice committed during trial litigation.”  Calling it the “Hot Potato” strategy, Zell described this roadmap as follows:

When one of the firm’s attorneys commits malpractice, reassign the case to another attorney.  If the second attorney also commits malpractice, then reassign the case to a third attorney, and so on. Then have the final (non-malpracticing) attorney continue to represent the client on appeal in the same matter until the statutes of limitations on the previous attorneys’ legal malpractice expire.

The caption to Zell’s diorama concluded that a court decision sanctioning the “Hot Potato” strategy would be so unfair to clients that it might “provide the necessary impetus to get Ohio’s legislature to extend what is now the shortest statute of limitations on legal malpractice in the nation.”

So, although illustrated by a piece of artwork composed of marshmallow candies, Zell’s mother’s case has the potential to be a landmark legal ruling.  On the other hand, Zell’s planned lawsuit against the ABA seems like a lot of peeping about nothing.

The contest entries can be viewed at  Viewers of the website can vote for their favorite diorama at


Photo of Zell’s Diorama
Close-up Photo of a Portion of Zell’s Diorama
The Caption to Zell’s Diorama
The ABA’s e-mail to Zell of 4/7/2014
Zell’s e-mail Reply to the ABA of 4/7/2014


Here’s the 3-page “caption” (pdf) that went with the diorama. Keep going if you want to read those emails for some reason.

——— Forwarded message ———-

From: Jonathan Zell
Date: Mon, Apr 7, 2014 at 10:27 PM
Subject: My next diorama will be to illustrate the upcoming case of “Jonathan Zell v. American Bar Association”
To: Lee Rawles

Dear Mr. Rawles,

Thank you for your e-mail pointing out that I had submitted a diorama to the ABA’s “Peeps in Law 2014” contest illustrating a legal case — Eileen Zell v. Frost Brown Todd — in which I was “personally involved.”

The notice on your website of the “Peeps in Law 2014” contest states in pertinent part: “Our rules are as follows: Create a law-related diorama with Peeps….” Thus, as you know, nowhere in the rules does it state that the person who submits the “law-related diorama” may not be personally involved with the law-related matter being illustrated.

Moreover, it would be a very strange rule indeed if it sought to prevent the very persons who were the most knowledgeable about a law-related subject from submitting a diorama about it. Lawyers and law professors often write books and law-review articles about cases in which they have been personally involved, especially as the attorney for one of the parties.

For example, among the submissions to “Peeps in Law 2014” that appear on your website are several dealing with famous U.S. Supreme Court cases. Do you expect me to believe that the ABA would try to prevent the attorneys who argued those cases before the high court (or even the parties themselves) from submitting a diorama about those cases? Of course not!

To give another example, consider “Peeps in Law 2014: The Signing of the Constitution of the United Peeps of America.” Leaving aside reality for the moment, if this diorama had been submitted by one of the original signers of the document being depicted (the U.S. Constitution), would the ABA have considered banning that diorama, too? The answer is as ridiculous as the question, and shows that there is no rationale reason to ban people from submitting dioramas concerning legal cases in which they were personally involved.

In any event, if the ABA had such a published rule for the “Peeps in Law 2014” contest, please be assured that the diorama about the case of Eileen Zell v. Frost Brown Todd would have been submitted by someone who was not personally involved with that case. Accordingly, if you do decide to create such a rule after-the-fact, then I respectfully request that you also provide an opportunity for an uninvolved person to re-submit this and any dioramas that would be excluded by the new rule.

This would include one or both of the following two other dioramas submitted to the “Peeps in Law 2014” contest, which are presently posted on your website:

TITLE: “Peeps in Law 2014: Uncomfortable Day In Court”

CAPTION: “Another Rendigs attorney’s deft legal skills put the
plaintiff in the hot seat.”

SUBMITTED BY: “Karen Eutsler and Cathy Everson of Rendigs, Fry, Kiely
& Dennis in Cincinnati”

Besides depicting their own law firm in their diorama, the submitters turned their diorama into what was essentially an advertisement for their firm.

Another submission to the “Peeps in Law 2014” contest (which also appears on your website) was an even more blatant advertisement for the submitter’s own law firm:

TITLE: “Committed couples before and after Windsor”

CAPTION: “The US Supreme Court Windsor decision and the
dominoes (states recognizing same-gender marriage)
that have fallen and will fall as a result, have permitted
many same-gender couples to be able to live as married
spouses…. I am a member of the American College of
Trust and Estate Counsel (ACTEC) who does estate
planning for many committed couples of all types….”

SUBMITTED BY: “Rhonda H. Brink of Austin, Texas.”

In contrast to the hyperbole and/or blatant self-promotion contained in the captions to the above two dioramas (which were readily accepted into your contest), the caption to the diorama for Eileen Zell v. Frost Brown Todd was so fact-based that it even cited the page numbers from the court pleadings from which those facts were taken. In addition, it did not contain a single word of criticism (or flattery) of any of the persons involved. Instead, based on the pleadings, it objectively gave the background of a court case, quoted a novel legal argument raised in one of the parties’ pleadings, and explained the legal significance to all Ohio lawyers if the court accepts that argument. In short, what was written would have been suitable for a law-review article.

So, Mr. Rawles, let’s be honest with each other. The only reason that this diorama has not been accepted into the ABA’s contest (at least not yet) is that it illustrates a legal case involving the touchy subject (touchy for lawyers, that is) of legal malpractice. (And it also mentions a possible movement to extend the statute of limitations for legal malpractice.) Thus, if the ABA decides to ban this diorama — based on whatever pretext it chooses to invent — the ABA will be engaged in a blatant kind of self-interested political censorship.

True, one of the many reasons that I submitted this diorama to your contest was to try to publicize the case of Eileen Zell v. Frost Brown Todd. Admittedly, that is my self-interest. However, unlike the ABA’s motive to avoid embarrassing lawyers, my motive is an entirely-proper one. Moreover, if the ABA does go ahead and ban this diorama, the case of Eileen Zell v. Frost Brown Todd will receive even greater publicity when I sue the ABA for (1) having changed the rules of its contest after the submission deadline had expired and (2) doing so in order to censor the embarrassing subject of legal malpractice.

So, if you must, go ahead and ban this diorama. But realize that, after I sue the ABA, countless newspaper reporters, cartoonists, and even some diorama artists are going to have a hay day with the story of the lawyer who sued the American Bar Association for trying to censor a Peeps diorama concerning the subject of legal malpractice. The irony is fantastic! So please make my day.

Equally ironic is the caption submitted for “Peeps in Law 2014: The Mod Knight Special” (also posted on your website), which names you in particular and anticipates our little dispute perfectly. It states:

Well, if you’re posting on this website,
You’d best be careful what you write,
And you better keep on topic,
And don’t be pickin’ any fight,
Or you may meet the Moderators,
That’s when you’ll understand,
How things they don’t approve of vanish,
And you could be banned.

Don’t make the Moderators,
Slap a ban on you,
Don’t make the friendly Moderators,
Slap an everlasting ban on you

Now when you’re tapping out a comment,
And you ain’t bein’ P.C.,
You better jolly well consider,
The Comment Policy,
And if you get a snippy e-mail,
No matter what befalls,
Don’t try to argue your opinion,
Or you’re in trouble with Lee Rawles

Don’t make the Moderators,
Slap a ban on you,
Don’t make the friendly Moderators,
Slap an everlasting ban on you

Well, if you ask ‘What’s Moderatin’?”
That’s really hard to say,
Arbitrary and subjective,
It’s different day to day,
But when they send an admonition,
You’d better say ‘Yes, Dear,”
Or you may still be posting,
But it won’t be here.

Don’t make the Moderators,
Slap a ban on you,
Don’t make the friendly Moderators,
Slap an everlasting ban on you.



1 Comment

  1. Just call me "Stupid Lawyer" says:

    Great headline, Sam! The only improvement I could make would be to place the word “Stupid” in front of the word “Lawyer” in the very beginning so that the headline would now read: “Stupid Lawyer Threatens Stupid Lawsuit Over Stupid Rule Interpretation for Stupid Entry in Stupid Contest” (By the way, I am that STUPID Lawyer — and I love your headline!) — Jonathan Zell

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