April 2024 DICTA

RUNNING ON EMPTY: THE UNCERTAIN FUTURE OF CHEVRON DEFERENCE

CIRCUIT COURT PRACTICE BENCH BAR CONFERENCE

Friday, April 19 at City County Building Main Assembly Room from 1:00 to 4:15 pm

Receive expert guidance on developing the skills necessary to successfully practice in Circuit Court.

The Robot Lawyers are Coming: AI and Legal Ethics

Thursday, April 11, 12 -1 p.m. | Webinar via Zoom

Professor Alex Long, Esq., UT College of Law

Sponsored by InfoSys Partners | infosyspartners.com

Approved for 1 hr. Dual CLE

Judgment Proof? 6 Proven Tips for Collections in a Tough Economy

Thursday, April 25, 12 -1 p.m. | Webinar via Zoom

David Anthony, Exo Legal PLLC and Walter N. Winchester, Winchester, Sellers, Foster & Steele, PC

Sponsored by the KBA Solo Practitioner & Small Firm Section

Approved for 1 hr. General CLE

Annual FLSA Update

Tuesday, April 30, 12 -1 p.m. | Webinar via Zoom

Marshall W. Stair, Lewis Thomason, P.C

Sponsored by the KBA Employment Law Section

Approved for 1 hr. General CLE

HOA Law in Tennessee: It’s not how they do things in Michigan, or Ohio or Florida or wherever the Board

President Used to Live

Thursday, May 9, 12 -1 p.m. | Webinar via Zoom

Melanie E. Davis, Kizer & Black, Attorneys, PLLC

Approved for 1 hr. General CLE

KBA members can watch 135+ CLE programs in the On Demand Catalog at a discounted rate! Visit knoxbar.org/ondemand

Hon. William T. Ailor

Knox County Circuit Court Division II

Hon. James L. Gass Fourth Judicial District Circuit Court

Hon. Deborah C. Stevens Knox County Circuit Court Division III

Hon. Tammy M. Harrington Blount County Circuit Court Division I

Officers of the Knoxville Bar Association

KBA Board of Governors

Melissa B. Carrasco

Joan M. Heminway

Ian P. Hennessey

William A. Mynatt, Jr.

T. Mitchell Panter

M. Samantha Parris

Courtney Epps Read

Vanessa Samano

Charles S.J. Sharrett

James T. Snodgrass

James R. Stovall

Alicia J. Teubert

WISDOM

a Lawyer

Every Self a Privilege, but Especially Myself the Lawyer

18 Bill & Phil Gadgets

23

Dicta

DICTA is published monthly (except July) by the Knoxville Bar Association. It is designed to offer information of value to members of the local bar association. The news and features should illustrate the issues affecting the bar and its members. The opinions expressed do not necessarily represent those of the Knoxville Bar Association.

All articles submitted for publication in DICTA must be submitted in writing and in electronic format (via e-mail attachment). Exceptions to this policy must be cleared by KBA Executive Director Tasha Blakney (522-6522).

Time Kettle T1 Mini

Outside My Window

Mystery Date

24 Legally Weird

25

Publications Committee

Executive Editor Cathy Shuck

Executive Editor Sarah Booher

Executive Editor Melissa B. Carrasco

Executive Editor Wade H. Boswell, II

Brandon Allen

Anita D’Souza

Elizabeth B. Ford

Jennifer Franklyn

Joseph G. Jarret

F. Regina Koho

Matthew R. Lyon

Robin McMillan

Angelia Morie Nystrom

Katheryn Murray Ogle

Laura Reagan

Ann C. Short

Eddy Smith

Grant Williamson

Managing Editor Tasha C. Blakney

KBA Executive Director

No Sleep ‘Til Verdict

Top Ten List

Top 10 Controversial Elections 26 Barrister Bites

Food Wars—Instant Pot vs.

Schulz Bräu

France on Trial: The Case of Marshal Pétain, by Julian Jackson

31

4

You Have Their Attention. Now What?

Tasha C. Blakney Executive Director

Tracy Chain LRIS Administrator

Jason Galvas LRIS Assistant

President Carlos A. Yunsan President Elect Jonathan Cooper Treasurer Rachel Park Hurt

Ursula Bailey

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Membership Coordinator

Bridgette Fly Programs & Communications Coordinator

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522 or send an email to membership@knoxbar.org..

Alternative Dispute Resolution Section

The ADR Section plans regular CLE throughout the year. Join the ADR Section for the “Is There a Human in the House?!”: The Ethical and Legal Implications of AI Technology in Mediation” CLE program scheduled for May 16.If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarret (566-5393) or Betsy Meadows (540-8777).

Bankruptcy Law Section

The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on May 4, and volunteer registration is available at www.knoxbar.org. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy Section Chairs Greg Logue (215-1000), Kevin Newton (588-5111) or Shanna Fuller Veach (545-4284).

Corporate Counsel

The Corporate Counsel Section provides attorneys employed by a corporation or who limit their practice to direct representation of corporations with an opportunity to meet regularly and exchange ideas on issues of common concern. Save the date for the “Annual Corporate Counsel Update” extended CLE on August 20. If you would like to know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391).

Criminal Justice

The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640).

Employment Law

The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. Join the Employment Law Section for the “Annual FLSA Update” CLE program scheduled for April 30. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777).

Environmental Law

The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (804-3741), Kendra Mansur (771-7192), or Jimmy Wright (637-3531).

Family Law Section

The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Blair Kennedy (539-3515) or Laura Wyrick (297-5511).

Government & Public Service Lawyers Section

The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Ron Mills (215-2050) or Mitchell Panter (545-4167).

Juvenile Court & Child Justice Section

The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170).

New Lawyers Section

The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2022 will automatically be opted-in to the section. If you want to participate in planning section activities, please contact Section Chairs Dalton Howard (546-0500) or Mari Jasa (546-7770).

Senior Section

The Senior Section schedules a luncheon with a guest speaker every quarter. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833).

Solo Practitioner & Small Firm Section

The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. Join the Solo Practitioner & Small Firm Section for the “Employment Law 101: An Introduction and Overview” CLE program scheduled for May 21. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936), Brittany Dykes (214-7869) or Stan Young (209-8034).

PRESIDENT’S MESSAGE

By: Carlos A. Yunsan University of Tennessee College of Law

GIVE ME A MOMENT (LEST “WE” MISS OUT)

I’m not exactly someone you would call “artistic,” which is quite challenging when your kids are both artsy and musical. But in my defense, I have always enjoyed music, poetry, and engaging books created by others. And what captivates me the most about good lyrics, memorable verses, and unforgettable lines is the vivid, skillful storytelling—the type that “takes me there” and often allows me “to see the lost in me”;1 the kind that shapes your thinking and translate into action.

By now you must be wondering how this rambling about art and storytelling belongs in the educational, practical, and trustworthy publication known as DICTA. I don’t blame you, but give me a moment and let me explain. I was recently jolted out of cruise control mode by a peculiar experience that made me pause and consider how I’m navigating life. I think there are some reflections therefrom worth sharing.

Morning after morning, as I arrived at work, I would notice a colleague already settled and ready for the day ahead. Although we had never been formally introduced, I knew Frank’s role in the organization, and I’m pretty sure Frank knew mine.2 Not once did he look up from the screen, initiate a conversation, or say “hi.” After some weeks, I had determined that Frank was not just unfriendly; this was a snub, and he was purposefully ignoring me. This dynamic continued—unchallenged—until a recent morning. I got to work a few minutes before the usual time, and, as I made my way down the hallway, Frank was walking in my direction. “Good morning, I don’t think we’ve met formally. I’m Carlos Yunsan.” Frank immediately greeted me with a warm smile and was eager to meet me. He seemed to genuinely care about what I had to say and did not seem bothered at all by the disruption I thought I was causing to his day. We talked briefly about our time at the organization and then carried on to our respective offices.

I was totally floored. That unplanned moment amounted to one of the most meaningful interactions with a colleague in recent memory. As we started talking, it began to dawn on me that I had fabricated in my own mind a negative story about Frank as a person and what he thought about me without having talked to him even once. I was disappointed in myself, and yet, I also felt hopeful.

If you don’t know the kind of person I am and I don’t know the kind of person you are a pattern that others made may prevail in the world and following the wrong god home we may miss our star.3

I couldn’t help but to wonder how many “patterns” made by others I have blindly followed and how many common “stars” I might have missed in the past because I failed to slow down and take the moment to know someone. Nonetheless, I also realized that all that could begin to change in an instant.

Lawyers live busy lives. Practically every lawyer I know is balancing a full plate (often, two or three). Between engaging new clients, preparing pleadings and motions, attending hearings and depositions, and volunteering to serve the Bar and our community, we are stretched thin. And I haven’t even mentioned being present for our families and friends. But we intuitively also understand that, My life is not this steeply sloping hour, in which you see me hurrying.

Much stands behind me; I stand before it like a tree.4

As we pass each other in haste, we would do well to remember that much lies behind a tired, worried, or hurried look. There is a fellow lawyer and human whose roots run deep into the ground with meaningful and life-changing stories to be shared. We’ll get a chance to know each other if we dare to pause and give each other a moment.

The KBA excels at offering its members varied opportunities to get to know each other and find their “star.” At the end of February, for instance, bar leaders had an opportunity to slow down and connect at their annual gathering. As we shared about the work we are doing and shared adult food and adult beverages, we met, not just as bar leaders and lawyers but also as “good ole” people with professional and personal challenges, vacation plans, deadlines, and dreams for the future. Similarly, by the time this issue of DICTA reaches you, a group of about fifteen KBA attorneys and their guests will be immersed in a cultural and educational journey in Panama City, Panama. We’ll see the sights, enjoy the cuisine, and take in the culture. Above all, however, we will have a moment to get to know each other, (mostly) unhindered by the busyness that often gets in the way.

I invite you to hit the pause button and take a moment to meet someone new and learn something different at an upcoming KBA program or event. On April 11, for example, Professor Alex Long will present a CLE webinar entitled “The Robot Lawyers are Coming: Artificial Intelligence and Legal Ethics.” The next day, April 12, attorney Devin Devore will host attorney and author Bill Haltom and other guests to discuss the book “Full Court Press: How Pat Summitt, A High School Basketball Player, and a Legal Team Changed the Game.” And on May 1, the KBA will hold its annual Law Day celebration, which features the Law & Liberty Awards presented by the Barristers. In the Volunteer Spirit, give a moment; let’s find our star. I promise we’ll be better equipped to move forward, faster, and farther together.

1 Nightwish, I Want My Tears Back, on Imaginarium (Nuclear Blast 2011).

2 “Frank” is a fictitious name; this experience is not.

3 William E. Stafford, A Ritual to Read to Each Other, from The Way It Is: New and Selected Poems (Graywolf Press 1998).

4 Rainer Maria Rilke, The Book of Hours: Love Poems to God (1905).

AROUND THE BAR

By: Isaac Westling

Spicer Rudstrom,

PLLC

Celia Ball

Christmas Law Group, PLLC

HIGH SCHOOL MOCK TRIAL UPDATE

The High School Mock Trial Competition occurred during the weekend of February 16-18, 2024. One hundred fifty competitors comprised fourteen teams from nine high schools representing Tennessee Districts 2, 3, and 4. The competing teams included Farragut (Blue), Farragut (Gray), Jefferson County (Blue), Jefferson County (Red), Knoxville Catholic (Gold), Knoxville Catholic (Green), L & N STEM Academy (L Team), L & N STEM Academy (N Team), Maryville, Sequoyah (Red), Sequoyah (Gold), Lakeway, Sevier County, and Webb School of Knoxville.

All fourteen teams participated in four preliminary rounds. The Knoxville City-County Building hosted the competitors, their coaches, friends, and families on February 16 and 17. The students competed in the courtrooms that the Knox County Judiciary members generously made available for the event. We extend our gratitude to Judges Deborah Stevens, Bill Ailor, Jerome Melson, Greg McMillan, Scott Green, Hector Sanchez, Steve Sword, Chuck Cerny, Judd Davis, Patricia Hall Long, Andrew Jackson, VI, and Tony Stansberry for permitting us to use their courtrooms and providing the competitors with an enriched and realistic mock trial experience.

During the preliminary rounds, the following competitors stood out among their peers and were recognized for their exceptional mock trial skills:

• Livia Odoi (Maryville) as the Best Advocate for the Prosecution;

• James Long (Knoxville Catholic Green) as the Best Advocate for the Defense;

• Caryolyn Hasting (L & N STEM N Team) as the Best Witness for the Prosecution; and

• Sara Camacho (Farragut Gray) as the Best Witness for the Defense.

After the preliminary rounds concluded, Farragut (Blue) and Farragut (Gray) prevailed as the competition frontrunners and advanced to the District Championship held on February 18th at the Lincoln Memorial University’s Duncan School of Law.

The Championship round featured a highly qualified jury comprised of attorneys and law students. Attorneys Dillon Zinser, Chad Taylor, and Erin White scored the Championship, each of whom evaluated the competitors’ performances as advocates and witnesses during the mock criminal trial. The Honorable Suzanne Bauknight presided over the Championship as Farragut (Blue) advocated for the Prosecution and Farragut (Gray) advocated for the Defendant.

Farragut Blue triumphed as the District Champions. Both Farragut Blue and Farragut Gray earned a spot to compete in the State Mock Trial Tournament slated to take place on March 22 and 23 in Nashville.

Without our roster of dedicated volunteers, it would have been impossible to make this great event a reality. Thank you, again, to the judges, attorneys, and law students who served as presiding judges, scoring judges, and bailiffs, and to those who were willing to lend a helping hand whenever the need arose.

We likewise thank Judicial Clerk Esther Roberts and the staff of the Public Building Authority for their assistance in arranging and

securing the Knoxville City-County Building facilities; Hesper Capps and Lincoln Memorial University’s Duncan School of Law for hosting the Championship round; and Tasha Blakney, Bridgette Fly, and the KBA Staff for all the support they provided us over the past several months as we all worked to ensure a smoothly run competition. We are genuinely privileged to boast such an involved and supportive bar association. We leave you with one final sentiment with the intent to provide insight into the impact that your participation in this event has on the student competitors. One parent provided this comment: “[a]s a parent witnessing the high school mock trial competition, I was able to watch my children immerse themselves in the intricacies of the legal field which was nothing short of inspiring. I’m truly awestruck by the invaluable experience they’ve gained. Thank you for nurturing the next generation of legal minds.”

Attorney Volunteers

Hon. Suzanne Bauknight Emily Horton Mark Stephens

Tasha Blakney Alexandra Jones Chad Taylor

Hon. Tyler Caviness Matt Knable Alaina Tolbert

Hannah Clyde Hon. Greg McMillan Zachary Tolbert

Jason Collver Holly Nehls Brandon Townsend

Meagan Collver Nate Ogle Matthew Tuttle

Julie Deakins Jacob Refner Luis Urrea

Hillary Dewhirst Caroline Rogers Shannon Van Tol

Andrew Firkins Jenny Rogers Erin White

John Ganem Kaitlyn Sell John Willis

Alexis Greene Charles Sharrett Cullen Wojcik

Trey Hamilton Mike Stanuszek Carlos Yunsan

Josh Hedrick

Law Student Volunteers

Rebekah Ballard Corey Grayson Grant Peterson

Dillon Biggs Leah Holley Tyler Raper

Haden Blair Kelli Holmes Kimberly Riddett

Madeline Brookshire Kayla Koskenmaki Myles Roth

Nick Bryant Nicholas Kuppler Madison Smitley

Davis Capps Briana Lay Ethan-Van Stephens

Abigail Coleman Shelby Mainord Isabelle Thibault

Kayle Czischki Kate Malcolm Kimberly Trotter

Jordyn Dickey Sal Mekmaysy Jeremy Turner

Daniel Dunn Dalila Minter Mary Wilkinson

Carly Ebersberger Tia Nickens Bethany Wilson

Rachel Freeman Margaret Parent

University of Tennessee Undergraduate Mock Trial

Grace Cooper Zadie Fiveash Andrea Subtirelu

Marie Danos Emily Kitch Baker Tuthill

Riya Golden Presley Richards

By: Grant Thomas Williamson Bradley Arant Boult Cummings, LLP

SO, THE BUILDING YOUR CLIENT IS LEASING IS DAMAGED….NOW WHAT?

Let’s pretend you are representing a commercial landlord, or someone leasing commercial space. I am sorry to inform you, but your client’s worst nightmare has become a reality: the space has been damaged. What does this mean for the binding lease agreement your client has signed? And what does it mean for the building itself? Hopefully, you thought ahead and worked closely with your client to make sure the lease clearly provided for what should happen in this worst-case scenario. It may be tempting to put less time into drafting casualty provisions in a commercial lease agreement since the likelihood of ever needing to resort to these types of provisions is low, but a hastily drafted casualty provision can make an already terrible situation even worse.

Among the considerations that must be taken into account when drafting or reviewing a casualty provision are the following:

Who insures the premises and building? How are proceeds made available for repairs?

More often than not, the landlord will be responsible for carrying appropriate insurance to cover the restoration of the building in the event of a casualty. However, if the tenant is leasing the entirety of a large building, it may be prudent (from either the landlord or tenant side) to have the tenant carry the requisite property insurance, especially in a build-to-suit situation where the landlord is building out the entire premises for the tenant’s specific use. In either case, the party carrying the insurance will also need to make sure that they are only required to cover repair costs to the extent that (i) insurance actually makes proceeds available to cover such costs; and (ii) any lender or mortgagee permits such proceeds to be used to fund the restoration of the building.

From the landlord perspective, a prudent landlord will want to require the tenant to make funds available to the extent that the costs of restoration exceed the amount of insurance proceeds that are made available. From the tenant perspective, a tenant will want to ensure that, if they are required to fund any excess, they at least have the right to terminate the lease before agreeing to make such funds available.

Who is responsible for rebuilding the building? How long do they have to complete the restoration?

Again, more often than not, the landlord will be responsible for overseeing the restoration of the building utilizing its preferred contractors and its own timeline. In the event, however, that the tenant is carrying the insurance for the building, a landlord may be willing to permit the tenant to oversee the restoration based on specific standards – possibly being tied back to the original plans and specifications for the building – and based on certain approval rights of the landlord. The typical approach when a tenant carries the insurance is to have a requirement that the tenant make such insurance proceeds available to the landlord to oversee the restoration of the building in the event of a casualty. The bigger concern is going to be the timing of the restoration. The casualty provision should clearly set forth a timeline for completion

of any repairs, both in the event that a substantial portion or all of the building is destroyed and in the event that less than all or a substantial portion of the building is destroyed. The distinction between all or less than all is often tied to a specific percentage of the square footage of the building being destroyed or otherwise untenable. As tenant’s counsel, it is helpful to further carve out the casualty provision with respect to restoration to ensure that, even if the casualty does not meet a certain threshold, the tenant has termination rights in the event that the restoration cannot be completed within an acceptable timeframe or in the event that the casualty has impacted tenant’s ability to conduct its business as usual. Another thing to consider as tenant’s counsel is whether there are any common areas, parking areas, or other key aspects of the tenant’s premises that, if destroyed, would impact the tenant’s ability to conduct its business at the building.

Who is responsible for rebuilding the leased premises?

The landlord is almost always responsible for restoring the base and shell of the building after a casualty, but will its restoration obligations stop there? The tenant will want to ensure that either the landlord is responsible for restoring the building and the leased premises to the same state it was on the day before the casualty occurred, or that the tenant will have a sufficient period of time after the landlord completes its restoration work to restore any furniture, fixtures, equipment, and other improvements to its leased premises before it has to begin paying rent again, which leads us to the last point.

Is the tenant entitled to rent abatement during the period of rebuilding?

Out of all of the considerations covered in this article, which are not meant to be exhaustive, the concept of rent abatement during any period of rebuilding is perhaps the most hotly contested item. A landlord will want to ensure that they still receive rent payments from all of their tenants during any period of rebuilding, per the terms of the tenants’ lease agreements, in order to make sure it is still able to make its debt payments as they become due. As a tenant, your client will not want to have to continue making rent payments on space that it cannot use. One possible solution is to require the tenant to carry business interruption insurance for at least the period of any possible restoration. Depending on the financial strength of the landlord, your client may be willing to concede rent abatement for a certain period of time. As tenant’s counsel, you will want to carefully craft any rent abatement provision to be tied not just to the amount of damage at the building but also to any impact that such damage may have to your client’s business (e.g., a reduction in sales post-casualty compared to pre-casualty).

By taking these considerations into account when drafting a casualty provision, your client’s terrible situation will be mitigated and, with hope, made tolerable by your efforts.

By: Regina Koho Tennessee Valley Authority Office of the General Counsel

MILITARY ACADEMIES MAY UTILIZE RACE-CONSCIOUS ADMISSIONS POLICIES . . . FOR NOW

“For years, the nation’s elite military academies have taken race and ethnicity into account in an effort to help ensure future officers include enough people of color to reflect the diversity of the nation and the enlisted forces they will lead.”1 For example, the U.S. Military Academy at West Point (West Point)2 “considers race and ethnicity flexibly as a plus factor in an individualized, holistic assessment of African-American, Hispanic, and Native-American candidates at three, limited stages of the admissions process.”3

But race-conscious policies, like those utilized at West Point and other military academies, have been a legal target for a number of years.4 And in June 2023, the United States Supreme Court found the practice unconstitutional in the context of college admissions,5 “effectively ending a policy that colleges across the nation had relied on for decades to increase racial diversity.”6 However, a footnote in Chief Justice John Roberts’ opinion noted that it “d[id] not address” the use of raceconscious admissions at military academies “in light of the potentially distinct interests that military academies may present.”7

Less than three months after this decision was filed, the true import of the Court’s footnote was explicitly called into question. Students for Fair Admissions (SFFA)—“a conservative group that has repeatedly challenged the consideration of race in higher education” and brought the 2023 challenge to race-conscious admissions at undergraduate institutions—filed a lawsuit “tailored . . . to focus on” military academies.8 According to SFFA, the footnote in the Court’s June 2023 decision did not exempt military academies. Instead, they were simply not addressed in the decision because the Court “didn’t know how they used race.”9 SFFA contended that, from a constitutional perspective, West Point’s consideration of race was “worse than Harvard itself” because it afforded racial preferences only to Black, Hispanic, and Native American candidates.10 At the very beginning of the litigation, SFFA sought to “enjoin[] [West Point] during the pendency of th[e] action from considering race as a factor when making admissions decisions,”11 but “without even the benefit of an answer to its Complaint,”12 much less a developed factual record.

In early January 2024, the district court denied SFFA’s request for injunctive relief, noting that “by electing to proceed with [its] motion at this early stage . . . , [SFFA] has foisted an almost impossible burden on itself”13 to “establish it is likely to prevail on its claim that [West Point] cannot prove [its] consideration of race is used to further compelling governmental interests and is narrowly tailored to achieve those interests.”14 The court concluded that “[a] full factual record [wa] s vital to answering” the constitutional question posed by SFFA’s lawsuit. Therefore, the court determined that it could not enjoin West Point’s consideration of race in admissions “without . . . a complete factual predicate.”15

SFFA then asked the Supreme Court to intervene “before the military academy beg[a]n[] to evaluate applications for next year.”16 SFFA contended that “West Point is blatantly violating each of [the] holdings [in the Court’s June 2023 decision], and no legal principle exempts West

Point from [it].”17 SFFA claimed that the extraordinary injunctive relief it requested was warranted because “every year this case languishes in discovery, trial or appeals, West Point will label and sort thousands more applicants” in an unconstitutional manner “based on their skin color.”18

Solicitor General Elizabeth B. Prelogar disagreed with SFFA’s characterization of the Court’s June 2023 opinion, contending that its recognition of “potentially distinct interests that military academies may present”19 constituted “a legal distinction from the civilian context this Court considered in [that case], not a factual one,” and that there was “no basis for SFFA’s assumption” that the decision “imposes the same constraints on consideration of race in the very different context of the Army’s efforts to select leaders of an effective fighting force.”20 In addition to highlighting the undeveloped factual record below,21 the Solicitor General also argued that the sought-after injunction “would be profoundly disruptive” because it would “require West Point to rereview applications that have not yet resulted in an offer of admission; could require West Point to consider whether and how to withdraw previously extended . . . offers; and could mean that candidates . . . would be evaluated under different admissions policies depending on when they submitted their applications.”22

On February 2, 2024, the Court declined to grant SFFA’s request for an emergency injunction. The Court’s unsigned order, which is only a paragraph long, “included a relatively unusual statement that provided a possible glimpse into [its] reasoning in denying relief.”23 Like the district court, the Court described the factual record as “underdeveloped,” but it further clarified that the denial of relief “should not be construed as expressing any view on the merits of the constitutional question.”24

SFFA’s lawsuit will now move forward in the lower courts. However, it is almost certain to find its way back to the Court. And the Court’s recent “order suggests that [West Point] cannot necessarily count on an equally favorable reception [from it] then.”25

1 Ann E. Marimow, Supreme Court refuses to stop West Point’s race-conscious admissions policy, Wash. Post (Feb. 2, 2024, 5:22 PM), https://www.washingtonpost. com/politics/2024/02/02/supreme-court-west-point-race/

2 West Point is “the nation’s first military academy” and “prepares young men and women to become officers in the U.S. Army.” United States Military Academy, West Point, About West Point, https://www.westpoint.edu/about (last visited Mar. 9, 2024).

3 Students for Fair Admissions v. United States Mil. Acad. at W. Point, No. 23-CV08262 (PMH), 2024 WL 36026, at *5 (S.D.N.Y. Jan. 3, 2024) (internal quotation marks omitted).

4 Robert Barnes, How one man brought affirmative action to the Supreme Court. Again and again., Wash. Post (Oct. 24, 2022, 2:00 PM) (profiling Edward Blum, the founder of Students for Fair Admissions, and highlighting his decadeslong fight against the consideration of race in a variety of areas), https://www. washingtonpost.com/politics/2022/10/24/edward-blum-supreme-court-harvardunc/?itid=lk_inline_manual_5

5 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).

6 Abbie VanSickle, Supreme Court Won’t Block Use of Race in West Point Admissions for Now, N.Y. times (Feb. 2, 2024), https://www.nytimes.com (choose “U.S.”; then choose “Politics” from dropdown; search “West Point Admissions”; then click link to article) (last visited Mar. 9, 2024).

7 Students for Fair Admissions, Inc., 600 U.S. at 213 n.4.

continued on page 11

IN LIMINE: PROFILING FUTURE JDS

By: Jordan Houser LMU Law Director of Career Services and Alumni Relations

CALEB STUBER

LINCOLN MEMORIAL UNIVERSITY

DUNCAN SCHOOL OF LAW, CLASS OF MAY 2024

Please tell me about yourself.

Although I claim Etowah, Tennessee, as my hometown, I was actually born in Sarasota, Florida. Shortly thereafter, my parents decided to move to Oak Ridge, the Secret City, where I was raised during my formative years. Due to changes in their profession, my parents later decided to move our family to Etowah, where I attended McMinn Central High School. In 2014, I began pursuing my post-secondary education at Tennessee Technological University.

While I initially started in engineering, I soon discovered my passion for earth sciences and changed my major to Geosciences with a concentration in Geology. In 2019, I earned my B.S. in Geosciences and completed Tech’s Army Reserve Officers’ Training Corps Program. Upon graduation, I commissioned as an Armor Officer into the Tennessee Army National Guard, where I have served as a Tank Platoon Leader. Shortly after graduating, I accepted a position as a Geographic Information Systems Specialist at AECOM, a multinational infrastructure consulting firm, in Atlanta, Georgia. There, I was responsible for helping generate and vet Digital Flood Insurance Rate Maps to be used by municipalities as part of the National Flood Insurance Program. As part of my employment, I became a Certified Floodplain Manager and had the opportunity to assist in presenting our work to citizens in the Florida Keys. In 2020, I briefly went on active duty to complete Armor Basic Officer Leader Course at Fort Moore, Georgia, and subsequently returned to AECOM before enrolling in law school.

Tell me about your law school experience so far: what activities and classes have you participated in and enjoyed?

Albeit cliché, I have genuinely enjoyed my entire law school experience. However, my absolute favorite classes were Legal Research and Writing, Evidence, Trial Advocacy, and Criminal Practice Skills. I feel that in these classes, I was able to really hone and develop the skills I will need to be a successful attorney. I have also had the opportunity to complete externships for class credit with the Knox County District Attorney General’s Office and the Anderson County Public Defender’s Office. At these offices, I got the chance to dig into real life cases, conduct research, prepare for and participate in hearings, and work with clients. These experiences have helped me immensely in building my professional abilities and confidence for when I enter the legal workforce.

As far as activities, I am on the Moot Court Board and have competed twice in the LMU Kimsey Cup Mock Trial Competition. With Moot Court, I traveled to George Washington Law in Washington, D.C. to compete in the National Veterans Moot Court Competition. This veteran’s law competition provided me the opportunity to practice my appellate writing and oral advocacy skills against teams from throughout the United States. For the Kimsey Cup, I first had the opportunity to observe other students’ trial skills as a witness and then had the opportunity to practice my own trial skills as an advocate.

How did you make the decision to go to law school, and why did you pick LMU Law?

I am eternally grateful for the opportunities given to me at AECOM and all the lessons that I learned from working there. However, through my work at AECOM and with soldiers in my unit, I quickly realized that I wanted to serve others in a more direct way. I had grown up listening to stories about the courageous and sometimes heartbreaking work my mother’s attorney-coworkers did at the Public Defender’s Office. Also, as a military leader, I had an inside look at the various legal issues soldiers face in their everyday lives. Although I did not initially see myself becoming a legal professional, I eventually decided I wanted to be just like those erudite, compassionate attorneys I had heard so much about. I also wanted to advocate for people who needed a voice. After much thoughtful consideration, I finally decided to take the chance to learn what being an attorney was all about, and I have not looked back since.

For me, choosing LMU Law turned out to be a no-brainer. Because of my National Guard commitments, I am relatively geographically locked, so I only applied to the East Tennessee law schools. After generously being accepted into both programs, LMU Law offered me a scholarship opportunity I could not refuse. Moreover, after learning about LMU Law’s mission, touring the campus, and sitting through a rather rigorous Torts II class, I knew that LMU Law’s small, trial advocacydriven program was the perfect fit for me.

What type of law do you want to practice and where would you like to end up?

There is no question in my mind that I want to practice criminal law, either as a prosecutor or defense attorney. I have had great experiences working on both sides, and I want to continue working in this field. Criminal law is my passion and has been my motivation to succeed in law school. Tennessee is my home, I am a Tennessean through and through, and my goal is to stay in East or Middle Tennessee in order to serve the members of those communities.

Outside of law school, what do you enjoy doing?

First and foremost, I enjoy training and serving the nation in the National Guard and working with Soldiers. Entirely outside of work, I love being outdoors. My favorite activity is known as “geocaching,” which is an activity where you use a handheld GPS system to find hidden “caches.” This activity is great for getting outside, hiking, walking, and exploring areas you might not otherwise pay attention to. At home, I enjoy spending time with my cat, Salem.

What is your ultimate “why” with respect to being a future attorney?

To do justice, protect human rights, doggedly strive for equitable results, serve the community compassionately, and advocate for those who need a voice.

WHY DID THE LAWYER CROSS THE ROAD

By: Brad Fraser

Leitner Williams Dooley Napolitan, PLLC

Stefanie Bowen

Leitner

Williams Dooley Napolitan, PLLC

IT GOES TO THE WEIGHT

Boy, you’re gonna carry that weight Carry that weight a long time -The Beatles, Carry That Weight1

How many times have we said or heard, when referring to an expert’s testimony, “Your honor, it goes to the weight, not the admissibility”? However, relying on expert testimony to carry that weight at trial matters less now, at least in federal court. And according to the Advisory Committee, it always has. Congress and the Supreme Court of the United States recently approved amendments to Federal Rule of Evidence 702 regarding qualifications of expert witnesses.2 These amendments took effect December 1, 2023. Federal Rule of Evidence 702 now reads:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a)  the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b)  the testimony is based on sufficient facts or data;

(c)  the testimony is the product of reliable principles and methods; and

(d)  the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.»3

The changes to the language are simple but significant. These revisions make it clear that a court may not admit expert testimony unless the proponent establishes its admissibility by a preponderance of the evidence. It is the court’s responsibility to gatekeep this testimony—not the jury’s task. No longer should an expert who lacks qualifications or arrived at opinions through unreliable methodologies be admitted because the determinations “go to the weight of the evidence, not admissibility.”

But according to the Advisory Committee, these changes should be no news at all to those familiar with the Federal Rules of Evidence.4 This change in language imposes no “new, specific procedures.”5 The Advisory Committee reminded practitioners that the preponderance standard as a burden of proof to expert testimony admissibility was always implied in FRE 702.6 But the Committee determined that specific language was needed to correct a frequent misapplication of the Rule.7

Revisions to 702(d) make clear that the court must find an expert’s opinion or conclusion follows from a reliable application of methodology to the facts at issue. Under Daubert, an expert could use a reliable method but nevertheless come to a conclusion that was nonsensical, but the opinion might still be admissible. The Advisory Committee notes that now, under revised FRE 702, “[a] testifying expert’s opinion must stay within the bounds of what can be concluded by a reliable application of the expert’s basis and methodology.”

The Advisory Committee comments make clear that Daubert’s8 “weight not admissibility” approach is a misapplication of the Rule:

[T]he Committee resolved to respond to the fact that many

courts have declared that the reliability requirements set forth in Rule 702(b) and (d) − that the expert has relied on sufficient facts or data and has reliably applied a reliable methodology − are questions of weight and not admissibility, and more broadly that expert testimony is presumed to be admissible.  These statements misstate Rule 702, because its admissibility requirements must be established to a court by a preponderance of the evidence

The Committee concluded that in a fair number of cases, the courts have found expert testimony admissible even though the proponent has not satisfied the Rule[‘s] . . . requirements by a preponderance of the evidence − essentially treating these questions as ones of weight rather than admissibility, which is contrary to the Supreme Court’s holdings that under Rule 104(a), admissibility requirements are to be determined by court under the preponderance standard 9

The amendment presents a new prong of attack for questionable expert testimony.  However, we also need to make sure our own experts satisfy the amended standard.  In federal courts, we can no longer rely as heavily on our old arguments.

Federal courts have already begun excluding or limiting expert testimony that fails to meet the amended Rule 702 standard.  Prior to enactment of amended Rule 702, the Fourth Circuit cited the proposed amendments and existing law as the basis for overruling a district court’s admission of two experts’ testimonies.10 The Court wrote, “[c]onsistent with that existing law––and in accordance with the Committee’s pending rule––we confirm once again the indispensable nature of district courts’ Rule 702 gatekeeping function in all cases in which expert testimony is challenged on relevance and/or reliability grounds.”11 This ruling clarifies that critical issues such as sufficiency of the basis of an opinion and application of methodology are clearly questions to be answered at the admissibility stage by the court and are not matters of weight for the jury.

The amendment to Rule 702, while seen by the Advisory Committee as less of a “change” and more “course correction” for a standard that was always woven into the Rule, may be a momentous change for litigators and Daubert challenges. We are curious, will we still call these Daubert Motions? Regardless of what you call it, allowing the jury to carry the weight is no longer sufficient. Testimony must be based on sufficient facts, and opinions must reflect a methodology that is, more likely than not, reliable.

1 The Beatles, “Carry That Weight”, abbeY Road (Apple Records 1969)

2 Eric Lasker, Elyse Shimada, Shannon Proctor, “Expert Evidence Rule Will Be Tool to Improve Scientific Testimony”, bloombeRg laW, (https://news.bloomberglaw.com/uslaw-week/expert-evidence-rule-will-be-tool-to-improve-scientific-testimony) last visited March 7, 2024.

3 Federal Rule of Evidence 702 (2024).

4 Federal Rule of Evidence 702 Advisory Committee Notes, 2023 Amendments.

5 Id.

6 Id.

7 Id.

8 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

9 Committee on Rules of Practice & Procedure, Agenda Book, Tab 7A, “Report to the Standing Committee,” at 871 (June 7, 2022). Emphasis added.

10 Sardis v. Overhead Door Corp., 10 F.4th 268 (4th Cir. 2021).

11 Id. at 284.

LEGAL UPDATE, continued from page 8

8 VanSickle, supra note 7.

9 Emergency Appl. for Inj. Pending Appellate Review, Students for Fair Admissions, Inc. v. United States Mil. Acad. at W. Point, 2024 WL 394423, at *1 (U.S. Feb. 2, 2024) (No. 23A696), 2024 WL 331137, at *1.

10 Id. at *2; see also Verified Compl. ¶ 28, Students for Fair Admissions v. United States Mil. Acad. at W. Point, No. 7:23-cv-08262 (S.D.N.Y. Sept. 19, 2023), ECF No. 1 (alleging that West Point “sets benchmarks for the percentage of each class that should be filled by ‘African Americans,’ ‘Hispanics,’ and ‘Asians,’” and that it “meticulously tracks its compliance with those figures down to a tenth of a percentage point”).

11 Students for Fair Admissions, 2024 WL 36026, at *1.

12 Id. at *9.

13 Id.

14 Id.

15 Id. at *12.

16 Marimow, supra note 1.

17 Emergency Appl. for Inj. Pending Appellate Review, 2024 WL 331137, at *13.

18 Id. at *2.

19 Students for Fair Admissions, Inc., 600 U.S. at 213 n.4.

20 Response in Opp’n to Emergency Appl. for Inj. Pending Appeal, Students for Fair Admissions, Inc. v. United States Mil. Acad. at W. Point, 2024 WL 394423, at *1 (U.S. Feb. 2, 2024) (No. 23A696), 2024 WL 385719, at *4.

21 Id. at *5 (noting that this aspect of the district court’s ruling was not an abuse of discretion).

22 Id. at *34 (citation omitted).

23 Amy Howe, Justices turn away West Point admissions challenge, sCotUsblog (Feb. 2, 2024 5:51 PM), https://www.scotusblog.com/2024/02/justices-turn-away-westpoint-admissions-challenge/

24 Students for Fair Admissions, Inc. v. United States Mil. Acad. at W. Point, No. 23A696, 2024 WL 394423, at *1 (U.S. Feb. 2, 2024).

25 Howe, supra note 24.

Let the KBA help you find the best mediator for every case.

The KBA offers detailed profiles so you can find the right mediator! Identify mediators who have been professionally trained, are knowledgeable in all issues that need resolution, are truly neutral, and are skilled in resolving complex legal and financial matters.

ETLAW is a professional legal organization that fosters personal and professional development and works to advance women in the legal profession and in society as a whole.

We are so grateful for 40 years of support from the Knox area bar! We invite you to join us or renew by scanning the QR code below or visiting our website at www.etlawtn.org.

FINDING THE RIGHT MEDIATOR IS CRUCIAL TO THE SUCCESSFUL RESOLUTION OF YOUR CASE

Participating Members:

Heather G. Anderson

Adrienne L. Anderson

Brad Areheart

Mario L. Azevedo, II

Heidi A. Barcus

Carin C. Brio

Luis C. Bustamante

Wynne du Mariau Caffey-Knight

Stewart M Crane

Caitlin F. Elledge

Brad A. Fraser

James Kelly Giffen

John K. Harber

J. Chadwick Hatmaker

Celeste H. Herbert

Dana C. Holloway

Roger D. Hyman

Rockforde (Rocky) D. King

W. Morris Kizer

Jennifer Kuczmarski

Patti Jane Lay

Jo Ann Lehberger

Buck Lewis, III

James H. London

Jennifer McKinnish

Jennifer B. Morton

William A. Mynatt, Jr.

Robert P. Noell

Jon Randall Patterson

Cecilia S. Petersen

Lynn C. Peterson

Rick L. Powers

Steven L. Robbins

Nathan D. Rowell

Michael J. Stanuszek

Robert L. Vance

William D. Vines, III

Howard H. Vogel

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS

By: Eboni James Lyft, Inc.

TRANSCENDING BEYOND THE BROKEN GLASS

“Work twice as hard” — the mantra instilled in me in my youth. This relentless pressure fueled my fight to break barriers and view my achievements as limitless.

As a first-generation, Black female attorney in the government and technology sectors, my journey thus far is a testament to this mantra. In reflection, my journey has been so much more than that. It has been a rollercoaster, filled with confusion, fulfillment, success, and a plethora of other emotions. In this article, I hope to inspire others to remain steadfast in forging their own paths, while embracing their authentic selves.

And, now let’s begin…

Upon my 2018 law school graduation, I was balancing the responsibilities of being a mother to a premature baby boy and a wife preparing for the bar exam. It was an exhausting time, but looking back, it was also one of the most rewarding periods of my journey.

It was also at this point where my story began to diverge from that of most of my peers, as I started to reevaluate my values, particularly as a new mother. The scales of justice began to tip, with my legal career weighing heavier than my personal life. In June 2019, I embarked on a mission to even those scales, by becoming the associate general counsel at a major government contracting agency in Oak Ridge, TN.

It was a rarity to start my legal career as corporate counsel, especially in an industry where most colleagues transitioned from large law firms. This accomplishment further solidified my determination to shatter glass ceilings and pave the way for others like me.

As associate general counsel, I held the second highest position within the legal department —overseeing legal affairs and compliance matters. Notably, within my first year, I assumed the role of corporate secretary, marking a significant achievement as the organization’s first Black attorney in that position.

To those on the outside I was successful, but beneath the surface of success lay a deeper truth – the pressure of the “work twice as hard” mentality, which fed into the creation of an alter ego.

As I ascended the corporate ladder, that relentless pursuit of corporate perfection and fear of failure — as being the first black woman in these roles — deprived me of authenticity and vulnerability. Precious moments failed to be appreciated, while trying to balance the role of associate general counsel with my duties as a new mom and wife.

Driven by a desire to demonstrate my unparalleled work ethic, I relied on this alter ego of relentless dedication, often hurrying through family dinners to return to work. Similarly, in my professional life, I prioritized tasks over nurturing genuine connections with colleagues. Reflecting back, I wish I had lived more in the present, rather than being stuck in the autopilot of my alter ego.

In 2021, I was presented with an opportunity by a dear mentor to transition to in-house litigation and safety counsel at a tech rideshare company. My transition into the tech sector was a conscious choice, driven by the belief that this industry offers fertile ground for innovation and progressive values.

In the midst of this new opportunity, I have learned the arts of rediscovery and pivoting. I have been able to rediscover authenticity and vulnerability in both my professional and personal life. It has been about more than just career advancement; it has been a journey of self-discovery and embracing my true self. In this environment, I found a platform to nurture genuine connections among my colleagues, particularly as a leader within my company.

For example, from parental groups to sorority affiliations, at my new company, I am afforded the opportunity of being in spaces where I can make genuine connections among team members. Through work groups and discussions, we share precious life moments with each other, offering support and advice. Additionally, my company offers flexible work hours, so I do not have to prioritize work over family, which further reinforces the importance of work-life balance and self-expression.

As an individual with so many firsts attached to my name, my journey has been far from easy, but it has been more rewarding than I could have anticipated. I have learned the importance of embracing authenticity and seizing opportunities that would allow me to nurture genuine connections in every aspect of my journey.

In conclusion, yes, you can shatter glass ceilings with an alter ego, but in order to truly transcend, one must be mindful of the importance of authenticity. By embracing my authentic self and advocating for inclusivity, I hope to inspire other legal professionals to do the same.

Why alter your ego when you can authentically be yourself?

THE OATH

By: Melissa B. Carrasco Carrasco Trump, PLLC

THE RIGHT TO APPEAR

Whence came the power of this court to exact of an attorney an oath of any kind? No oath is prescribed in the Constitution, nor in the Judiciary Act of 1789. Whence comes the power? Under the act of 1789, this court is doubtless vested with the power to prescribe one. Under that power, this court prescribed the old oath. But why that oath any more than any other oath? What part of the Constitution restrains the court to the point of prescribing this oath and this oath only?

None.

~U.S. Attorney General James Speed, Oral Argument, Ex parte Garland, 71 U.S. 333, 333 (1867).

On the banks of the Mississippi River, about thirty miles south of Memphis, lies Tipton County, Tennessee. In 2021, its population was 61,000.1 In 1832, its population was substantially less. In fact, Covington, the county seat, had 7 streets, around 30 houses, a handful of shops (including a doctor and a lawyer), a jail, and 2 taverns.2 But, if it weren’t for one of those taverns, we likely would have never heard of Augustus H. Garland.

His parents, Rufus and Barbarba, owned one of the stores in downtown Covington. But, when Augustus was an infant, his father got drunk, got into a fight, stabbed a man, and in short order the Garland family moved across the Mississippi River to Lost Prairie, Arkansas, where Rufus opened another store.3

They had barely set up shop when Rufus died, and Barbara was left with 1-year-old Augustus and his two slightly older siblings. Fortunately, for them, there was a lawyer in town – Major Thomas Hubbard. He helped Barbara with Rufus’s estate. In fact, he was so helpful that he and Barbara married 3 years later.4 Maybe it was coincidence; maybe it was fate. But, having Major Hubbard as his stepfather certainly changed the course of Augustus’s life.

By the time he was 21, Augustus had finished college, taught school for a bit in Sevier County, studied law with the county clerk, and then helped his stepfather open a law practice.5 By 1860, he was known as A.H. Garland, one of the most prominent attorneys in Arkansas. Also that year, he was admitted to practice before the U.S. Supreme Court.6 He was 28 years old.

Then, something happened in 1861 that changed Augustus’s career path. Arkansas passed an ordinance of secession and joined the Confederate States.7 Augustus went with it. But, some would say his heart wasn’t in it.

In fact, he openly opposed secession at the Secession Convention in Little Rock, and he represented Abby Guy, an enslaved woman who sued (and won) freedom for herself and her children.8 When the Civil War began, he didn’t serve in the military but instead served in the Confederate Congress. He was one of its senators when the Confederacy surrendered, and soon after, he received a full Presidential pardon.9 He wanted nothing more than to put the war behind him and resume practicing law.

But, there was one thing standing in his way: the Oath. In 1860, when he was admitted to practice before the U.S. Supreme Court, the Oath was simple and straight forward:

“I, A.B., do solemnly swear that I will demean myself as an attorney and counsellor of this court, uprightly, and according to law, and that I will support the Constitution of the United States.”10

A.H. willingly took the oath and even argued some cases before Arkansas seceded. But, in 1862, Congress changed the oath that was required of every person elected or appointed to public service whether civil or military. This new oath required each person to swear that they had not voluntarily borne arms against the U.S. had not provided aid to anyone in “armed hostility” to the U.S., had not served in any office of any government “under any authority or pretended authority in hostility” to the U.S., and had not “yielded a voluntary support to any pretended government, authority, power, or constitution within the United States.”11

That was not an issue for A.H. He just wanted to practice law, not hold federal office. But, in 1865, Congress amended the 1862 Act to prohibit any attorney from being admitted to practice before the Supreme Court or any federal court unless they took the amended oath. The Supreme Court followed suit, adopting its own rule with the same requirement.12

That was a problem. A.H. Garland could not take that oath because he could not swear to something he knew was not true. So, he took his Presidential pardon and filed a petition with the U.S. Supreme Court for permission to continue practicing before the Court without taking the new Oath.

A.H. had two arguments: (1) the 1862/1865 Oath was unconstitutional because it was an ex post facto law or (2) if it was constitutional, the Presidential pardon relieved him from noncompliance.13 The Supreme Court disagreed with both, but instead focused on the unique role attorneys play in the justice system.

Attorneys and counsellors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of sufficient legal learning and fair private character. . . . The right of the attorney, acquired by his admission, to appear for suitors, and to argue causes, is not a mere indulgence – a matter of grace and favor- revocable at the pleasure of the court, or at the command of the legislature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency.14

In other words, the original Oath, although short, was sufficient to bind A.H. in his duties to the Court and give him the right to appear before the Court. That right could not be taken away by requiring a new Oath. That is the power of an Oath—once taken, you are expected to live up to it.

The U.S. Supreme Court went so far as to rescind its own rule as “unadvisedly adopted.” They restored A.H. Garland to practice before the Federal Bench, and he went on to serve as the U.S. Attorney General under President Cleveland.15

Today, the oath of admission to the Supreme Court remains nearly identical to the original 1860 oath.16 Despite its brevity, it still binds all those who take it to the weighty responsibility of an officer of the court. That is the power of an Oath.

1 U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/ tiptoncountytennessee/PST045223, last visited Mar. 7, 2024.

2 Tennessee Encyclopedia, supra n. 2.

3 Encyclopedia of Arkansas, Augustus Hill Garland, https://encyclopediaofarkansas.

continued on page 31

HELLO MY NAME IS

By: Bridget J. Pyman Arnett | Baker

GRANT CARRINGER

Grant Carringer graduated from University of Tennessee College of Law in May 2023 and immediately joined Lewis Thomason, P.C., practicing in the areas of healthcare liability defense, municipality defense, transportation defense, and general civil litigation. Prior to law school, he obtained a Bachelor of Science in Legal Studies from South College, where he laid the foundation for his legal career.

Grant, though one of the Bar’s newest members, is already an active member of various legal organizations, including the Knoxville Bar Association (KBA), Tennessee Bar Association (TBA), Phi Alpha Delta, and serves on the Board of the Blount County Youth Court. Grant offers DICTA readers a valuable perspective into his journey and the influences that have shaped his professional trajectory: from working in his family’s automotive collision center to the cherished memories and values passed down by his grandfather, it’s clear that Grant’s upbringing provided the groundwork for his strong work ethic and dedication to excellence.

What was your first job, and what did you learn from it?

Detailing cars at my family’s automotive collision center. I learned that diligent effort is irreplaceable, and possessing a strong work ethic is more compelling to superiors and colleagues than any other trait.

What person has had a significant impact on your life?

My grandfather, Harold Carringer. Born amidst the severe challenges of the Great Depression, education was of paramount importance in his household. He went to business college here in Knoxville, but he was recruited to work for Norfolk Southern his first year due to high test scores. It would be the only employer he had from 18 years old until he retired, working his way up their corporate ladder along the way. When he retired, I was a preschool-aged child, and he completely devoted his post-retirement life to my sister, Casey, and me. He put the same emphasis on our education that his parents had for him and his siblings. Before he passed, we sat at his kitchen table and discussed my recent acceptance to UTK College of Law, and I was able to take the time to fully thank him for his impact on my life. I am motivated daily by his life, legacy, and the time we spent together.

If you were independently wealthy and did not have to work, what would you do with your time?

Travel!

Where was your most recent vacation? Where are you going on your next vacation?

My most recent vacation was to White House, Jamaica, for my sister’s wedding last year. My next vacation will be in May for my wedding in Dublin, Ireland, and then honeymooning in London and Italy. My sister and I have accepted that we probably won’t be getting presents from family for a while.

If you could have dinner with any famous person, dead or alive, who would you choose?

Abraham Lincoln or Michael Jordan (equal reverence, different reasons).

PRIVILEGED TO BE A LAWYER

By: Justin Pruitt Assistant District Attorney General Knox County District Attorney General’s Office

EVERY SELF A PRIVILEGE, BUT ESPECIALLY MYSELF THE LAWYER

At this point in my life, I’m feeling pretty privileged to be here and for having the range of experiences I’ve gotten so far. I’m especially thankful to each of the selves I was along the way that led me to be a lawyer, because every version got me one step closer to where I am today.

In preparing to write this article, and being a psychologist in a former professional life, I thought about Jerome Bruner. Bruner was a researcher who thought his fellow cognitive psychologists were getting it all wrong; the other researchers were spending too much time and effort comparing human brains to computers. What Bruner was really interested in was how we make meaning out of the world and what goes on around us. He talks a great deal about this in his work Acts of Meaning, 11 but what was really interesting to me was Bruner’s observation about how we act in different contexts.

Specifically Bruner says, “You went to somewhere to do something with an anticipated goal in mind, something you couldn’t do elsewhere and be the same Self.”22 Our sense of self then becomes a collection of all the selves from all the contexts we experienced. This line of thinking popped back up when I was considering how to write about how privileged I was being a lawyer. My sense of privilege extends to every version of myself that got me where I am and the people and experiences that shaped those selves along the way.

My young self was focused on school, high school band, and losing myself in fiction. Maybe also playing too many video games. However, I was lucky enough to have a great family and was given the chance to go to college. Though I thought the world had ended when I did not get to go to any of my top school choices. It turns out I was overly dramatic.

I was privileged to start this particular professional journey as that college freshman with everything figured out -- only to learn more about his naivety. My parents were always supportive, but the running joke of “What are you majoring in this semester?” was duly noted. The list of subjects not to devote my future to grew, and my direction shifted as much as the wind. The sciences? Political science? Psychology? Philosophy? I tried them all. Luckily, I found some faculty who provided me some much needed guidance at the University of Tennessee. I walked across the stage with two bachelor’s degrees and several minor degrees of study. I also left with more indecision, but most importantly I gained a lifelong partner. I cannot express how much gratitude I have that she still puts up with me to this day.

Life then led me to graduate school. Two important mentors brought me into the school psychology profession, and, for a time, I had the privilege of serving students and staff in both urban and rural Appalachia (despite the long commute from my home at the time). Applications of state and federal laws, rules, and regulations became a source of challenges which I and my colleagues had to tackle, and it struck a chord with me. It lingered on while being a professional staff trainer and finally pushed me to attempt a legal education. I left education feeling privileged to have tried to help as many of the students and staff that I could.

I cannot express enough thanks for being accepted into the

University of Tennessee College of Law for my legal studies. Within a semester, I was discovering the importance of pro bono work, learning that I actually might be able to advocate for others, and, before long, I was filling my time with as much clinical and practical skills as I could--while making decent enough grades. I owe a lifetime of gratitude to several people I had the pleasure of meeting during these years.

Even reaching the point where I can write about actually being privileged to being a lawyer, in my ten years of practice, I’ve been several lawyers. I took very seriously my first roles, working with delinquent youth and youth in foster care as a guardian ad litem. They especially needed advocacy when everyone in the room talks about them and their lives. I tried to remember this as a juvenile prosecutor as we collectively sought to achieve some course correction for youth, both for their good and the community’s. Even now as a mental health prosecutor, a role I am very privileged and grateful to have , I am trying to utilize as much as I’ve learned over the years to attempt to connect some of our criminaljustice-involved individuals suffering from serious mental illness to community services with the goal of maintaining instead of falling into recidivism and additional incarceration. It feels at times a Herculean task, but seeing some successes makes it worth it.

I’ve been privileged to be every version of myself, but especially a lawyer. I think above all else, it’s really the moments of receiving earnest gratitude from clients, victims, their friends and families. What might be to me and other attorneys just another case, is a life-defining event to them. Plus, at the end of the day it allows me, in the space between the courthouse and the KBA events, to try and help a great kiddo that we picked up along the way figure out what kind of self he or she wants to grow into.

1 Jerome Bruner, Acts of Meaning (1993).

2 Id. at 117.

RUNNING ON EMPTY: THE UNCERTAIN FUTURE OF CHEVRON DEFERENCE

The United States Supreme Court is currently weighing the fate of the longstanding Chevron doctrine. Although the Supreme Court’s decision in Chevron U.S.A., Inc. v. Nat’l Res. Def. Council1 is not exactly the most thrilling read, it has had broad-reaching impacts on our growing federal and state administrative landscapes. Essentially, Chevron guides statutory interpretation by courts and stands for the notion that courts should defer to an agency’s reasonable interpretation of any ambiguous aspect of the laws they implement.

The Original Decision in Chevron

Chevron itself concerned the Environmental Protection Agency’s (EPA) interpretation of the Clean Air Act, and more specifically the requirement that the EPA must limit emissions from all “stationary sources.”2 The EPA interpreted this statutory term to mean an entire plant rather than an individual piece of combustion equipment (commonly referred to as the “bubble concept”), and promulgated regulations based on this plantwide definition.3 The Supreme Court unanimously found in favor of the EPA, ruling that the ambiguous meaning of the term “source” in the Clean Air Act indicated that Congress had delegated to the EPA the power to make a policy decision and interpret the meaning of “source.”4

The Supreme Court adopted a two-step analysis for federal courts to use when adjudicating a challenge to an agency’s interpretation of law:

1) has Congress directly spoken to the precise question at issue? and 2) if the statute is silent or ambiguous, is the agency’s interpretation based on a permissible construction of the statute?5 In rudimentary and abstract terms, proponents of the doctrine point to the impossible task facing Congress of specifically anticipating and resolving every imaginable legal question of the laws they enact.6 Likewise, opponents of the doctrine raise concerns of ceding control to unelected members of the executive branch, leaving room for unpredictable and ever-changing interpretations of laws.7

The Supreme Court’s Decisions after Chevron

Since Chevron was decided, the Supreme Court and federal appellate courts generally have trended toward the expansion of administrative deference. Twelve years later, the Supreme Court reaffirmed the principles in Chevron when it decided Auer v. Robbins 8 In a unanimous decision written by Justice Scalia, the Supreme Court stuck to its guns on administrative deference. Auer dealt with interpretation of FLSA regulations and expanded administrative deference to a second level. While Chevron dealt with an administrative agency’s interpretation of enabling legislation or regulations, Auer dealt with an agency’s interpretation of its own regulations. The Court recognized the Secretary of Labor’s power “to resolve ambiguities in his own regulations … subject only to the limits imposed by statute.”9

Since the decisions in Chevron and Auer, some members of the Supreme Court have expressed reservations about expansive administrative deference. For example, Justice Scalia, who authored the

unanimous opinion in Auer, later expressed regret for his decision. While still professing his acceptance of and agreement with the principles of Chevron, where “[s]tatutory ambiguities ... were left to reasonable resolution by the Executive[,]”10 Justice Scalia felt that Auer had been wrongly decided. He took exception to granting an agency the power to write an ambiguous regulation, then to take advantage of that ambiguity by being granted deference to interpret it.11 He advocated “abandoning Auer and applying [regulatory enactments] as written.”12

The ground upon which Auer and Chevron stand has grown increasingly shaky. Justice Scalia’s successor in fact and in spirit, Justice Neil Gorsuch, ascended to the bench with a well-established disdain for Chevron and its progeny. One commentator noted him “as a unique skeptic of certain core doctrines of administrative law and the deference they provide to the agencies – particularly on questions of how to read their operative statutes.”13 The first (potential) nail in the coffin of administrative deference was hammered home in Kisor v. Wilkie 14 Though the Supreme Court ostensibly affirmed the continuing viability of Auer deference in Kisor, in effect, Auer was mortally wounded. A fivevote majority avoided abrogating Auer, based on principles of stare decisis But, there were four votes (in 2019) to abrogate Auer. Justice Gorusch wrote in his concurring opinion:

Still, today’s decision is more a stay of execution than a pardon. The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis. And yet, far from standing by that precedent, the majority proceeds to impose so many new and nebulous qualifications and limitations on Auer that THE CHIEF JUSTICE claims to see little practical difference between keeping it on life support in this way and overruling it entirely. So the doctrine emerges maimed and enfeebled—in truth, zombified.15

Thus, Auer (and by indirect implication, Chevron) survived.

Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce

It is in that context that, in January 2024, the Supreme Court heard consolidated oral argument in Loper Bright Enterprises v. Raimondo16 and Relentless, Inc. v. Department of Commerce 17 In these companion cases, the Supreme Court granted certiorari on a challenge to a rule issued by the National Marine Fisheries Services that requires the herring fishing industry to bear the costs of observers on fishing boats.18 These cases also presented a convenient vehicle to overrule Chevron. Roman Martinez and Paul Clement appeared respectively on behalf of fishing companies Relentless, Inc. and Loper Bright Enterprises. U.S. Solicitor General Elizabeth Prelogar appeared on behalf of the Biden administration urging the justices to leave the Chevron doctrine in place.

During oral argument, Justice Kagan opened her questioning with a pointed hypothetical to underscore the technical disputes that come

COVER STORY

By: Brian Bibb

Watson, Roach, Batson & Lauderback, P.L.C.

Matthew Morris

Watson, Roach, Batson & Lauderback, P.L.C.

before agencies that may be out of the expertise of judges to decide, specifically asking whether a product designed to promote healthy cholesterol levels was a dietary supplement or a drug.19 Justice Kavanaugh saw Chevron’s deference to agencies in the light of unpredictability it can inspire, saying that it “ushers in shocks to the system every four or eight years when a new administration comes in” and implements “massive change” in areas like securities law, communications law, and environmental law.20 Justice Jackson posited that Congress gives federal agencies the power to make policy choices, and if Chevron is overturned, then courts will have to make those kinds of policy decisions.21 Several members of the Court, including Chief Justice Roberts, Justice Sotomayor, and even Justice Barrett, seemed to be at least considering taking the same path the Court took in Kisor v. Wilkie – in short, weakening Chevron but allowing it to live on in the name of stare decisis. 22 A majority of the membership of the Court seems ready to overrule Chevron in whole or in part. It appears likely that Chevron is running out of gas.

Tennessee’s Most Recent Actions on Administrative Deference

Tennessee has already taken action on its own to dial back administrative deference. Tennessee’s appellate courts have long applied principles of administrative deference citing both Chevron and Auer. In Riggs v. Burson, the Tennessee Supreme Court held: “[I]nterpretations of statutes by administrative agencies are customarily given respect and accorded deference by courts.”23 Tennessee Courts have found that agencies have the technical experience, knowledge, and expertise to aid them in interpreting statutes and regulations.24 Tennessee has applied principles of deference to municipal and local governmental agencies in addition to state agencies.25 However, despite this history of applying administrative deference, Tennessee has also begun to sound the retreat.

In 2022, the General Assembly enacted Tenn. Code Ann. § 4-5326. It was codified as part of Tennessee’s adopted version of the Uniform Administrative Procedures Act (UAPA), which generally applies to the

review of administrative or quasi-judicial decisions of state agencies.26 In his explanation on the floor, Senator Mike Bell explained that the bill would direct the courts not to give deference. Senator Bell, quoting committee testimony, said that Chevron was the “key culprit in the vast expansion of the administrative state[.]”27

Although the Court of Appeals recently has incorporated § 4-5326 into its standard of review in relevant caes,28 some questions remain unanswered in Tennessee law. While Senator Bell’s explanation of the scope of § 4-5-326 appears broad, it was then codified as part of the UAPA. There is a credible argument to be made that the terms of that statute only apply to matters heard under the terms of the UAPA. Principles of deference may continue to apply to local government actions, which are generally reviewed under the common law writ of certiorari, Tenn. Code Ann. § 27-8-101, et seq.

The future of administrative deference in federal and state law remains clouded, but the trend certainly appears to be against administrative deference and towards de novo review of administrative decisions in the courts. Tennessee’s General Assembly and appellate courts may or may not follow the lead of whatever action the United States Supreme Court takes in its disposition of the Chevron doctrine. The impact of these trends is unclear, but it is likely to result in more work for our trial and appellate courts in parsing administrative actions and regulations.

1 Chevron U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984).

2 Richard J. Pierce, Jr., “Chevron and its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions,” 41 Vand. L. Rev. 301 (1988).

3 Id.

4 Chevron, 467 U.S. at 865-66.

5 Id. at 842-843.

6 https://news.harvard.edu/gazette/story/2024/01/chevron-deference-facesexistential-test/

7 Jack M. Beerman, “End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled,” 42 Conn. L. Rev. 779, 782 (2010).

8 Auer v. Robbins, 519 U.S. 452 (1997).

9 Id. at 463.

10 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 111(2015).

11 Id. at 112 (citing Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 616-626 (2013)).

12 Id.

13 https://www.scotusblog.com/2017/03/roots-limits-gorsuchs-views-chevrondeference/ (citing De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) and Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016)).

14 Kisor v. Wilkie, 139 S. Ct. 2400, 204 L. Ed. 2d 841 (2019).

15 Id. at 2425.

16 Loper Bright Enterprises, et al. v. Raimondo, No. 22-451 (U.S. 2022)

17 Relentless, Inc. v. Dep’t of Commerce, No. 22-1219 (U.S. 2022).

18 https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron.

19 Id.

20 Id.

21 Id.

22 Transcript of Oral Argument, Relentless, Inc. v. Dep’t of Commerce (22-1219). Oyez. Retrieved at https://www.oyez.org/cases/2023/22-1219.

23 Riggs v. Burson, 941 S.W.2d 44, 51 (Tenn. 1997) (citing Chevron, 467 U.S. at 844).

24 See H & R Block Eastern Tax Services Inc. v. State of Tennessee, 267 S.W.3d 848, 854 (Tenn. Ct. App. 2008); Profill Dev. Inc. v. Dills, 960 S.W.2d 17, 27 (Tenn. Ct. App. 1997).

25 See Gay v. City of Somerville, 878 S.W.2d 124, 127 (Tenn. Ct. App. 1994); Combs v. Metro. Gov’t of Nashville and Davidson County, 1997 WL 44392, at *3 (Tenn. Ct. App. Feb. 5, 1997).

26 E.g., Chattanooga-Hamilton Cnty. Hosp. Auth. v. UnitedHealthcare Plan of the River Valley, Inc., 475 S.W.3d 746, 762 (Tenn. 2015).

27 https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SB2285&ga=112

28 See Am. Bus. Supply, Inc. v. Tennessee State Bd. of Equalization, No. M202201411-COA-R3-CV, 2023 WL 7101290, at *7 (Tenn. Ct. App. Oct. 27, 2023).

By: Bill Ramsey

Neal & Harwell

By: Phil Hampton

TIME KETTLE T1 MINI A GADGET LOVER’S NEW BEST FRIEND OR JUST ANOTHER GIMMICK?

In the ever-evolving world of tech gadgets, where each new release promises to revolutionize our lives, Bill and Phil recently laid their techsavvy hands on the T1 Mini from Time Kettle. Known for pushing the boundaries of communication technology, Time Kettle’s latest offering aims to shrink the world a bit more, making language barriers as obsolete as last year’s smartphone model. But does it deliver or is it destined to join the graveyard of promising but ultimately underwhelming tech toys?

First Impressions: Unboxing the T1 Mini

Right out of the box, the T1 Mini strikes you as a gadget that James Bond might use if he needed to negotiate with a tech-savvy Q in multiple languages. Compact, sleek, and with a design that screams “I belong in the future,” the T1 Mini fits comfortably in the palm of your hand or pocket, ready to be whipped out at a moment’s notice to dazzle friends (or confuse those who speak another language) with its prowess.

What We Love

Ease of Use: The T1 Mini is as intuitive as it gets. With a simple setup process that even the tech-challenged can navigate with ease, it’s ready to go in minutes. Bill, with his notorious impatience for lengthy setups, was particularly pleased.

Accuracy: The accuracy of translations is where the T1 Mini truly shines. Conversations flow more smoothly than a well-aged Scotch, with minimal lag. It’s not perfect, but it’s close enough to work magic in realworld scenarios.

Portability: Its diminutive size makes the T1 Mini the perfect travel companion. Phil, who once tried to use a bulky, first-generation translation device in a crowded Berlin subway (to comical effect), appreciates the discreet nature of the T1 Mini.

Quibbles

Battery Life: While not a dealbreaker, the battery life leaves a bit to be desired. During extended testing, we found ourselves reaching for the charger more often than we’d like, a minor inconvenience that feels a bit old school in the era of all-day battery life.

Connectivity: In areas with spotty Wi-Fi or cellular data, the T1 Mini can stumble, struggling to maintain the seamless translation it promises. While it’s a common issue among similar devices, it’s a reminder that we’re not quite in the utopian future of universal, uninterrupted communication—yet.

Beyond the T1 Mini: Exploring Time Kettle’s Arsenal Time Kettle doesn’t put all its eggs in one basket. Their product lineup is as diverse as the languages their devices translate. The WT2 Edge, with its earpiece design, offers an immersive translation experience that feels like having a UN interpreter whispering in your ear. Meanwhile, the M3 Translator Earbuds double as a high-quality audio

device, proving that utility and entertainment can coexist harmoniously. For those who prefer a more traditional approach, the Zero Translator is a card-sized (maybe stunner or sensation instead so you don’t have some version of wonder twice in one sentence?) that works wonders in a pinch.

Verdict: To Buy or Not to Buy?

The T1 Mini from Time Kettle is a testament to how far we’ve come in breaking down language barriers. While it’s not without its flaws, the sheer magic of facilitating real-time conversations across languages outweighs the minor grievances. Whether you’re a globetrotting adventurer, a business traveler, or just a tech enthusiast eager to try the latest gadgets, the T1 Mini is a worthy addition to your tech arsenal.

In the end, Bill and Phil agree: The T1 Mini is not just another gadget—it’s a glimpse into a future where language no longer divides us. That’s a future we’re excited to be a part of, one translated conversation at a time! Soon we can say goodbye to the Tower of Babel.

See you next month for another dive into the world of tech, where we’ll explore what’s new, what’s hot, and what’s just around the corner.

What if I don’t want to be listed in the directory, or only want to list specific information?

If you would like to be excluded from the KBA Directory or would like to include only specific information, you can fill out a Directory Exceptions form! Use the QR Code to the right to submit your form.

SCHOOLED IN ETHICS

By: Paula Schaefer

Art Stolnitz Distinguished Professor of Law University of Tennessee College of Law

LEGAL ETHICS ISSUES IN SUCCESSION PLANNING IN TENNESSEE

The Netflix series, The Lincoln Lawyer, opens with attorney Mickey Haller being called into Presiding Judge Mary Holder’s chambers. Judge Holder explains that attorney Jerry Vincent was murdered the previous night. Just ten days earlier, Vincent had filed a motion allowing for the transfer of his practice to Haller upon Vincent’s death or incapacity. Vincent had not discussed this with Haller—they had litigated against one another in the past but were not friends.

After a conversation, the judge signs an order transferring Vincent’s practice to Haller but tells Haller that she can rescind it. The judge notes that she will be monitoring Haller and asks him to provide bi-weekly status updates. She closes by encouraging Haller to go to Vincent’s office to ensure that the police—investigating Vincent’s murder—are not searching through client files.

If you are a solo practitioner like Jerry Vincent was, that scene may have caused you to do some soul searching about whether you have taken the appropriate steps to plan for your death or incapacity. Do you have an ethical obligation to make a succession plan? Does succession planning contemplate filing a plan with a local court to transfer your practice to another lawyer? What resources are available to help you make a succession plan?

While it is unfortunate that being an attorney ruins the fun of binge-watching a lawyer series, it is good that the Lincoln Lawyer raises these issues. This column addresses them.

Legal and Ethical Obligations for Solo Practitioners to Make a Succession Plan

At the outset, it should be noted that a solo practitioner has a need for succession planning (in the sense discussed in this article) that is not needed by a lawyer practicing in a firm. When lawyers practice in a firm, they have an infrastructure in place to protect client matters, confidences, files, and funds. While a client can certainly transfer their matter elsewhere after a lawyer dies or is disabled, the firm infrastructure protects the client in the interim. A solo practitioner needs to plan for this protection.

Some jurisdictions require attorney succession planning.1 While Tennessee’s professional conduct rules do not contain an explicit directive, the duty flows from an attorney’s fiduciary and professional conduct duties of competence and diligence. TRPC 1.1 (describing a lawyer’s duty to competently represent clients), 1.3 (describing lawyer’s obligation to act with reasonable diligence in representing clients). Lawyers also have an ethical and fiduciary duty to protect client property and funds (embodied in TRPC 1.15) which is furthered through succession planning.

Even though Tennessee has not adopted comment 5 to ABA Model Rule 1.3, that comment provides useful succession planning guidance to Tennessee attorneys. The comment explains that in order to prevent neglect of client matters, a solo practitioner should plan for their own death or disability by designating a lawyer to “review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.” Model Rule 1.3,

comment 5.

For an attorney without an appropriate succession plan in place, Tennessee Supreme Court Rule 9, Section 29 provides a process for a court to appoint a receiver when an attorney becomes disabled, disappears, or dies. Tenn. Sup. Ct. R. 9, Section 29. The rule acknowledges that an attorney—through contract, appointment, or other arrangement—has the power to designate in advance an attorney to handle the continued operation, sale, or closing of the attorney’s practice. Tenn. Sup. Ct. R. 9, Sec. 29.9.2 This Tennessee Supreme Court rule should be viewed as providing further encouragement for Tennessee solo practitioners to engage in succession planning.

Resources for Creating a Succession Plan

Accepting that solo lawyers have an obligation to make a plan to protect clients upon their death or disability, these lawyers should seek out planning tools and resources. A great place to start is the Knoxville Bar Association. In October 2020, the KBA published a handbook— including forms—for succession planning. The handbook is titled Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability of Death, A Handbook and Forms (2020). The KBA handbook outlines planning steps, answers frequently asked questions, and provides checklists and forms. One form prompts the planning lawyer to authorize an assisting attorney—upon the planning lawyer’s death or disability—to transfer client files, sign checks, close the lawyer’s practice, and receive payment for services rendered. KBA Handbook, Agreement—Full Form, at 21-31. The document also contains an option for the assisting attorney to buy the lawyer’s practice. The completed document is to be signed by the planning attorney and the assisting attorney. Id.

The handbook and downloadable forms are available on the KBA’s Succession Planning webpage.3 Also on that page, you can find a series of DICTA articles on succession planning by Eddy R. Smith, links to websites with additional planning resources, ABA formal ethics opinions related to the subject, and articles addressing various issues related to closing a law office and succession planning.

Final Thoughts

As April 15 looms, it may be helpful to think about the similarities between succession planning and preparing your taxes. You know it will take some effort and it can be hard to get started. You may decide to enlist a professional to help you. But you know you need to do it. And once you are done, you will have a sense of accomplishment and relief.

1 For example, Iowa requires at the time of annual registration for each lawyer to designate an Iowa attorney or firm as the lawyer’s designee upon death or disability. Iowa Client Security Commission R. 39.18.

2 If the attorney’s designation provides adequate protection for the lawyer’s clients, that designation governs unless a court finds good cause to appoint a receiver. Tenn. Sup. Ct. R. 9, Sec. 29.9

3 KBA Succession Planning, available at https://www.knoxbar. org/?pg=SuccessionPlanning

MONTHLY MEETING

Plan now to attend the Barristers monthly meeting on Wednesday, April 10, starting at 5:15 pm at The Firefly, the outdoor patio at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm. All Barristers members are invited to attend, meet fellow attorneys, and learn about upcoming Barristers events.

SCHOOL OUTREACH COMMITTEE NOW ACCEPTING LAW & LIBERTY NOMINATIONS

The Barrister’s Constitution & School Outreach Committee is accepting nominations for the annual Law & Liberty Award, which will be announced at the annual Law Day Luncheon on Wednesday, May 1. You can nominate someone by emailing the KBA at info@knoxbar.org. The deadline for nominations is April 8, 2024.

Nominees should:

- strive to foster and maintain good relationships between the legal profession and community

- work to advance the understanding of the law and legal processes in the non-legal community

- set an example of good citizenship

- give time for volunteer work, both within the legal profession and otherwise

- evidence high professional standards in his or her occupation

- express concern for the safeguard of personal, political, civil, and religious liberties

- and should be someone whose work is not normally recognized

Nominees do not have to be attorneys. Please consider those individuals in your firm, local civic and religious organizations, or in the community who have worked to improve our legal system and protect our civil liberties. Questions may be directed to Grace Ewell (gewell@wmbac. com) or Richard Graves (rgraves@fmsllp.com).

VETERANS LEGAL ADVICE CLINIC

The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on April 10, 2024. Sign up at knoxbar.org/Volunteer.

HUNGER & POVERTY COMMITTEE HOLDS PROFESSIONAL CLOTHING DRIVE

The Barristers are seeking professional clothing for individuals in need in Knoxville for a drive that will run from April 11- 26. Clothing will be donated to non-profits around Knoxville and the LMU Career Closet. Multiple donation locations will be available including Gay Street, Main Street, law schools, and West Knoxville. Please reach out to committee chairs Dillon Zinser (dillon@knoxvilletnlaw.com) or Holly Nehls (nehlsholly@gmail.com).

VOLUNTEER BREAKFAST COMMITTEE CONTINUES OPERATIONS

The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. at the Volunteer Ministry Center, located at 511

N. Broadway, Knoxville, Tennessee. The Barristers Volunteer Breakfast Committee always needs volunteers to serve food or sponsor. The cost is $150 for sponsoring, and we need 4-5 volunteers. If you are unable to fund the breakfast, the Barristers will subsidize the cost of the breakfast. We meet at 6:15 a.m. and serve breakfast to approximately 30-40 individuals, generally leaving the site around 7:30 a.m. It’s a great way to serve the community! Please contact either Matt Knable at mknable@ wkfirm.com or Miranda Goodwin at mirandaegoodwin@gmail.com with any questions and/or about volunteering.

DIVERSITY COMMITTEE COLLECTS DONATIONS FOR SCHOLARSHIP FUND

The Barristers Diversity Committee has created a scholarship fund to help with travel and lodging costs for diverse students who are invited to attend preview days hosted by the local law schools. Members are asked to make a donation to help ensure that one student, who may not otherwise be able to afford to visit a law school in Knoxville prior to their enrollment, is able to attend a preview day. If you have questions, please reach out to Mariel Bough (mariel.bough@verasafe.com) or Grant Williamson (gwilliamson@bradley.com) for more information on how your donation will be used, or for more ways to get involved with the Barristers Diversity Committee’s efforts to make the Knoxville Bar Association a more inclusive and diverse organization. Information on how to donate online can be found on the KBA website on the Barristers Diversity Committee page.

WELCOME

NEW MEMBERS

THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS:

NEW ATTORNEYS

Michelle N. Ammon Marcum LLP

Jordan D. Davis

Banks & Jones

Matthew J. Lambert

McKeehan Law Group, LLC

Vonda M. Laughlin

LMU Duncan School of Law

Derek Scott

Hailey J. Tackett

Delius & McKenzie PLLC

NEW LAW STUDENT MEMBERS

Samuel V. Elizondo

Brandis B. Godwin

Christopher E. Milligan

Isabella Morrow

Brock W. Rowell

Ethan-Van Stephens

MANAGEMENT COUNSEL: LAW PRACTICE 101

By: J. Randall Patterson, Esq. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

IMPLICIT BIAS—AWARENESS AND ACCOUNTABILITY

Everyone has likes and dislikes. Individual preferences are normal and are not necessarily a bad thing. However, it is important to recognize that every selection begins with bias. For example, we might choose tea as a drink, rather than coffee. Or when making a hiring decision, we might choose the candidate with higher grades or from a prestigious school. Such decisions are routine, and although they may be “discriminatory” by definition, they are generally not maliciously motivated. The selection of the “best” resume can be as neutral as the choice of beverage, but such a decision could also be influenced by unconscious bias. If the decision maker deduces characteristics such as race, gender, or age from an application, and then allows those factors to influence the choice of who to hire, that decision suggests improper bias. Biases are motivating tendencies, which everyone carries and which are typically the byproduct of the unconscious processing of stereotypes, even when the decision maker consciously believes that everyone should be treated fairly.

While most individuals do not intentionally make decisions or preferences on the basis of characteristics such as gender, color, or age, the presence of unconscious bias remains a contributing factor and often eliminates qualified candidates or improperly favors others. As the Kirwan Institute observed, implicit biases tend to cause people to “favor our own in-group,” that is, give preference to others like us. For example, a University of Tennessee graduate might reasonably give greater consideration to applicants from UT. However, this unconscious favoritism can also result in improper decisions and disparate impact. Consider a manager who hires only candidates who are of his/her race or gender or one who promotes only those who “look like him/her.” Such flawed decision-making unbalances the “playing field” and results in a less qualified and non-diverse workforce.

Implicit bias can be positive or negative and is best understood as an attitude toward a person, place, thing, or group which an individual holds at an unconscious level. To eliminate implicit bias in the decision-making process, it is necessary to understand how such biases work. Studies in neuroscience have shown that only a small percent of cognitive activities are conscious, with the remainder of activities being driven by the subconscious. Further, both conscious and subconscious beliefs are shaped by factors that define our worldview such as geographic origin, age, sex, race, profession, sexual orientation, education, income, religion, location, and many other factors. These myriad influences which bombard an individual throughout life come together to shape subconscious stereotypes, or implicit biases.

The influence of a subconscious bias is not unlike that of a schema, or essentially, a mental shortcut. For example, it is unnecessary to engage conscious thought when picking up keys or a wallet that might be carried each day or even driving the usual route to the office. While these are

About

helpful, similar shorthand schemas can influence perception of people or groups of people. Accordingly, schemas can be a benefit by helping to quickly and accurately assess a situation, or if left unchecked, they can lead to flawed decision making that may prove harmful or even unlawful.

It is common for schemas, and thereby implicit biases, to influence how we perceive others. Consider that a small percentage of American men are over six feet tall, yet a disproportionate number of Fortune 500 CEOs are over that height. This in fact suggests an implicit bias that taller males are perceived to be stronger more successful leaders. Similar schemas extend to gender and race and often adversely impact groups such as women and minorities in the workforce. The EEOC has concluded that unconscious bias directly creates “stereotypical assumptions” and that such unconscious biases adversely impact the success of certain groups in federal employment.

Biases that may not have direct implications under federal or state employment laws also come into play. These schemas or implicit biases also influence perceptions of individuals based solely on such factors as a name or by generational issues such as tattoos, hair styles, or other markers. Those traits or appearances routinely stimulate subconscious impressions that can lead to bias and directly impact the opportunities of these individuals.

Industry has been conducting inclusion and diversity training for years, and while such training does reduce the propensity for outright discrimination in the workplace, the training does not have the scope to redress the underlying cause of discrimination, which is often implicit bias. Many employers, including the federal government, have now expanded traditional diversity curriculum to include training on implicit bias.

Solutions for negating the impact of unconscious bias initially involve awareness and remaining mindful and conscious of the presence of bias or inadvertent short cuts to conclusions. As a threshold, to negate subconscious bias, we must acknowledge the presence of such subconscious beliefs and then identify discrepancies between conscious ideals and subconscious schemas or bias. It is equally important to avoid first impressions or knee-jerk reactions to people or situations. Taking additional time in decision making, particularly after acknowledging the presence of an unconscious bias, more often leads to real objectivity. If a bias is acknowledged toward or against a particular group, one solution might be to gain more exposure to, or greater awareness of, that group.

Finally, it is crucial that we stand accountable for our practices and policies; that may be accomplished through more deliberate decisions and thought processes. Most importantly, we must maintain a constant awareness of our own personal views and be willing to own those biases and work toward positive change.

OUTSIDE MY WINDOW

By: Robbie Pryor Pryor, Priest & Harber

MYSTERY DATE

When Charles Carr, a seventeen-year-old college student, drove Hank Williams down Gay Street on New Year’s Eve in 1952, it looked a lot different than it does today. Hank’s last ride took him through the heart of this little city that I have the privilege of walking every day. I love matching landmarks from old photos and considering the history that surrounds me. Growing up the son of a trial lawyer, and then becoming one, downtown has always been a part of my life, but from my first day of residency with Nancy in 2018, it has become a great love. I’ve always thought I’d make a good tour guide, but until my wife gifted me a mystery date for our anniversary, I’d never thought about putting what I know on the page. Here you go.

On a cool February evening, we walked almost the entirety of the Old City and Gay Street and marveled at our brilliant decision to marry and, eventually, move downtown.

We started by walking to The Bark, our indoor/outdoor dog park (see previous column) near Crafty Bastard Brewery where our son, Cliff, is a brew master. On our way home, down Central Avenue, we talked about some of our favorite restaurants and hangouts. Monkey’s Bar, named after the owner’s golden retriever, is a fantastic little bar where very often you can meet Monkey. Crossing the railroad tracks into the heart of the Old City we always want to stop in at Jig N’ Reel, where Scotland and Appalachia collide in the scent of old wood floors, beef pies, and whiskey. It warms the soul. Hidden along the route is Red Panda, a little market and deli where just this morning I stopped in to get a couple of breakfast sandwiches from Colin. Everything on the menu is delicious. Across the street is Southern Grit, a place that serves fried chicken and southern comfort food. Jade and Zach are often working the bar and, like so many we run across on a regular basis, have become our friends. The city forces you to meet, appreciate, and love young people, and it has kept us young. Back to the west side of Central there’s Pretentious Beer and Glass Co, where you can watch glass blowing while trying a craft beer, followed by Merchants of Beer, where dogs and people mingle outside on pretty days. The Big Lebowski, a beautiful Great Dane, resides with his owners between Pretentious and Merchants. He is a downtown legend and can be seen sleeping in a hammock stretched between two trees on the sidewalk on pretty days.

to practice law, Harold’s was a destination. History is never far behind the center of any experience downtown. As we made our way from Harvest to the Bijou (our final destination), traveling South about eight-tenths of a mile, Nancy and I passed so many favorite places to eat on Gay StreetChivo (dinner), Frothy Monkey (breakfast and coffee), Status Dough (my cinnamon rolls), and Downtown Grill and Brewery (known as “DGB” at my house). I have DGB on speed dial, as it is our favorite takeout food. It just feels good walking into a place where they know your order and your name. I prefer Pete’s on Union for Breakfast during the week, but I often stop by K Brew (Embassy Suites) for my go-to quick breakfast sandwich, as it is on my direct path to the office at 625 Gay St. Don’t tell Pete!

Next stop - Bijou. Can you imagine, as a music lover, being able to hop, skip, or jump from the Mill and Mine to Market Square to the Tennessee Theatre and then the Bijou. It would not be unlike me and my girl to show up at two of these venues on a weekend. Never forget the amazing street talent and Old City haunts (Pilot Light and Barley’s) for inspiration and music. This is a music town. Never forget it. Tyler Childers has wonderful stories of busking on Market Square. Don’t blink - you might miss a true talent. Nancy brought us to the Bijou that night after researching and finding three local acts who split the evening to play their dream venue. The bands were all so young (and amazing). As the crowd goes, we were so very old. We love watching kids chase dreams, and Scruffy City Hall and Jig & Reel have weeknight open-mic nights that, since our kids are grown, have become our gyms and soccer fields.

We use Phoenix Pharmacy, where Caleb not only handles our prescriptions and helps us with Covid and flu battles, but has his whole family dishing out milkshakes and ice cream at the wonderful soda fountain. We love Maple Hall for an occasional family bowling night, Market Square for outdoor music, and the Saturday Farmer’s Market. Parades and special events (Mardi Growl this past weekend) inject energy into this already exciting place to live and work. I have excluded a great many wonderful businesses and restaurants in this brief column. Word limits are my mortal enemy. Stop nodding, every friend I’ve ever had.

On the mystery date, she walked me out of the Old City and up to the 100 block of Gay Street for the second stop at Tern Club. Ryan and Jocelyn traveled the country from Oregon to find a place to open a very cool bar. They chose Knoxville. It opened right before Covid and survived. They also now own Fly By Night in South Knoxville and are becoming legends themselves. The Mai Tai is the special, and the check is delivered in an old paperback novel. Next up - dinner at Harvest, where the food is always amazing. Anytime I’m on the 100 block, I smell and taste Harold’s Deli, closed years ago. When I was growing up and just starting

I grew up in West Knoxville. Living downtown isn’t for everyone, but there is little I miss of the suburbs. I no longer mow yards or sit in traffic. Nancy and I often feel like we are on vacation in a big city. In the end, you should probably take this whole article with a grain of salt, because I’d likely write just as glowingly of Siberia if she were marking time with me there. I’m all smiles as long as my habitat includes the woman who schedules card games for us at Crafty, a walk with Rosie, or Netflix night with DGB potato skins, just as easily as a mystery date in the town we love. Perhaps this town is very ordinary and having the right person to share life with can turn the ordinary into the extraordinary.

Yep. Don’t move down here. It is awful.

By: Lisa J. Hall Hodges, Doughty & Carson

NO SLEEP ’TIL VERDICT!

“They didn’t teach us that in law school!” We say this sometimes in all kinds of contexts: practice tips, understanding and managing different personalities, the actual relaxing of deadlines we thought were hard and fast rules, etc. Truly, there is no way to cover everything you may ever need to know in the practice of law in three years of school. Instead, we continue to learn from our successes, our mistakes, our mentors, our judges, our peers, our clients, and our staff.

I say all of this to say that maybe the first trial counsel for Nyasani Watt, convicted for murder in Massachusetts several years ago, never learned that a trial lawyer should not sleep for a “significant portion of trial” or sleep “through an important aspect of trial.” This amount of sleep will likely rise to the level of ineffective assistance of counsel, warranting a new trial for the client.

In Commonwealth v. Watt, 493 Mass. 322, 224 N.E.3d 377 (2024), Watt hired a lawyer to appeal his murder conviction, telling her that his trial lawyer slept during the trial. This lawyer filed a motion for new trial based on the fact that Watt’s initial lawyer slept through critical parts of the trial.

Watt submitted his own affidavit, as well as affidavits from his codefendant, the codefendant’s attorneys, the prosecutors, and his mother.

Watt’s affidavit stated that the lawyer “fell asleep a number of times during the trial,” including during jury selection and the questioning of two witnesses, one being a key witness for the prosecution. At one point, trial counsel was snoring. One of the prosecutors stated that he had to “rouse” trial counsel to show him an exhibit before showing the witness.

In its analysis, the court reviewed the holdings of other courts with respect to the age-old question of how much sleep is too much sleep during a trial? The Fourth, Fifth, Sixth and Ninth Circuit Courts of Appeals fix the analysis on whether counsel “slept for a substantial portion of the trial.” The Second Circuit prefers to evaluate whether the lawyer was unconscious “at critical times,” a concept that the Fifth Circuit has also discussed. The court decided that meeting either of these criteria would be sufficient to form the basis for a claim of ineffective assistance of counsel.

A “significant portion of trial” can look like “[f]requently…almost every day…morning and evening” for at least thirty minutes at a time, or “every day at trial,” being “repeatedly unconscious at trial.” An “important aspect of trial” might include half of a codefendant’s testimony or twothirds of the testimony of a confidential informant.

The Court acknowledged that any sleeping by the lawyer during trial is “distressing and detrimental,” but held that counsel’s “constructive absence during either a significant portion of trial or an important aspect of trial so offends the constitutional protections surrounding the right to assistance of counsel that it renders the entire adversary process

‘presumptively unreliable’ and creates an uncurable error, ‘even if the error was ultimately harmless.’” The court found that the trial counsel “at least slept through a significant portion of the trial, and likely through an important part of trial” and remanded the case to the Superior Court for a new trial.

What can we learn from this case, along with the multiple other cases in which lawyers slept too long or at the wrong stages of trial? How can you know in advance before your nap whether you are going to miss something good (or bad)? Should you ask opposing counsel to wake you up if an important witness takes the stand? Should you set an alarm to make sure that you are not sleeping for thirty minutes at a time? Is fifteen minutes safe? Will you get in trouble with the judge if the alarm makes a noise? But if it does not make a noise, how will you wake up on time? What if you snore? These are tough questions, and we may just have to wait for this body of case law to continue to develop, as various scenarios are evaluated.1 Until then, I am afraid you sleep during trial at your own (client’s) risk.

TOP 10 CONTROVERSIAL ELECTIONS

With Super Tuesday in the rearview window, my thoughts continue to be focused on elections. My son is a political junkie, as I was at his age (the nerd gene runs strong in our family), and he has been following local, state, and national elections with a fevered intensity this year. It is reaffirming to see a young idealist so passionate about democracy. It is also startling to realize how jaded I have become over the past 35 years. In fairness, there is justification to be both idealistic and jaded with American politics. When it works, it is a thing of beauty. When it doesn’t, there can be an ugly and dark underbelly exposed. With a focus on the latter, because it is always more interesting, this month I am sharing the Top 10 list of controversial United States elections:

10. 1920 Presidential Election (Republican Warren Harding defeats Democrat James Cox). The campaigns of the primary candidates were not particularly controversial. The reason this election makes this list is because of the unique campaign of Socialist Candidate Eugene Debs. Conducted entirely from the Atlanta Federal Penitentiary where he was serving 10 years for espionage, Debs came in third, receiving nearly one million votes.

9. 1800 Presidential Election (Democratic Republican Thomas Jefferson defeated fellow party member Aaron Burr and Federalist John Adams). Jefferson and Burr tied in the Electoral College and the matter was sent to the House of Representatives, which took a week to break the tie. Alexander Hamilton, a longtime enemy of both men, heavily influenced the result. He later died at the hands of Aaron Burr, all of which makes for a shockingly good Broadway musical.

8. 2022 Arizona Gubernatorial Election (Democrat Katie Hobbs defeated Republican Kari Lake). The winning margin was just over 0.6%. Lake rose to fame as an ardent supporter of Trump and refused to concede the election. Multiple lawsuits were filed over the accuracy of the vote count. Hobbs was also criticized as she was, at the time, serving as Secretary of State overseeing elections. (Conflict of interest rules seem a lot more flexible for candidates than they do for attorneys).

7. 1960 Presidential Election (Democratic John Kennedy defeats Republican Richard Nixon). In one of the closest elections in presidential history to that time, Kennedy defeated Nixon among widespread allegations that the Democrats had stuffed ballot boxes with the help of Mayor Richard Daley in Chicago and the Texas county bosses in the Valley region. I am a Kennedy fan. I admire the whole Camelot mythos. That being said, you really have to question yourself when Richard Nixon is calling you a crook.

6. 1792 New York Gubernatorial election (DemocraticRepublican George Clinton defeated Federalist John Jay). Jay won the popular vote by a narrow margin but the votes of three counties were thrown out on a technicality when Clinton argued the state constitution required votes be delivered from the counties by the “sheriff or a deputy.” The votes in the three counties at issue were delivered by couriers who did not technically meet the definition. Jay lost and had to go back to his lowly position of Chief Justice of the Supreme Court.

5. 1940 Missouri Gubernatorial Election (Republican Forrest Donnell defeated Democrat Larry McDaniel). Known as the “Great Governorship Steal,” Democratic officeholders in the legislature refused to swear in the new Governor-elect until claims of fraud (which apparently had no basis) were investigated by the Democratic-controlled

TOP TEN

By: Jason Long

Lewis Thomason

legislature. Multiple lawsuits were filed, but when the state recount began and Donnell’s lead began to grow, all efforts to block the inauguration stopped.

4. 1876 Presidential Election (Republican Rutherford B. Hayes defeated Democratic Samuel Tilden). Tilden won the popular vote. He had 184 electoral votes to 165 for Hayes with 20 votes from four states still outstanding and uncertified. An Electoral Commission was appointed to resolve the matter and decided to award all 20 votes to Hayes, which would give him the election. Democrats in Congress filibustered to block a vote on the Electoral Commission report. The Compromise of 1877 resulted in the dropping of the filibuster, election of Hayes, and the end of Reconstruction in the South.

3. 2016 Presidential Election (Republican Donald Trump defeats Democrat Hillary Clinton) and 2020 Presidential Election (Democrat Joe Biden defeated Republican Donald Trump). FBI dossiers, Russian interference, Billy Bush, Huma, COVID-19, Hunter’s laptop, mail-in ballots, Four Seasons Landscaping, storming the Capitol, the Pillow Guy. It really has been a long, strange trip.

2. 2000 Presidential Election (Republican George W. Bush defeated Democrat Al Gore, Jr.). Gore wins the popular vote but the Electoral College all came down to Florida, where there were numerous complaints of voter confusion and we all came to learn the terms “dimpled chad” and “hanging chad.” We also learned just how antiquated the voting system in Florida is. One statewide recount effort, multiple lawsuits, and thirty-six days later, the challenges to the vote ended through a 5-4 decision by the U.S. Supreme Court.

1. 1948 Texas Senatorial Democratic Primary (Lyndon Johnson defeats Coke Stevenson). In the one-party South of the 1940s, winning the primary was tantamount to winning the general election. Johnson won by 87 votes, but only after several days of waiting for the results from the notoriously corrupt Valley precincts. Multiple lawsuits followed which went all the way up to the United States Supreme Court before Johnson’s lawyer, Abe Fortas, carried the day. Fortas got his payment years later when he was appointed to the Supreme Court by then-President Johnson.

Enjoy what promises to be an interesting general election this year.

By: Angelia Morie Nystrom Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation

FOOD WARS—INSTANT POT VS. PATTI LABELLE

There is a war going on right now, and it is in my office.

And I caused it.

As a kid, I loved macaroni and cheese, and I especially loved my mom’s. She used the Kraft macaroni and cheese that was in the box but then added her special ingredient when it was finished—lots of Velveeta cheese. It was wonderful, orangey goodness. As a kid, my only real comparison for macaroni and cheese was the thing they called “macaroni and cheese” at school. I’m sure it had some pasta, but it always had some sort of really yucky white sauce that bore no resemblance to cheese. It did not taste like my mom’s version, and it was terrible. I have since realized that it likely came out of an industrial sized can. I also recall when Velveeta came out with the boxed Velveeta shells and cheese. My mom was excited because she thought she could skip the step of slicing and adding Velveeta since it was already in there. She thought it would be just as good as the Kraft version. Our family disagreed. It was just not the same as the Kraft with her added Velveeta.

As I have become an adult, I’ve become somewhat of a “mac and cheese” connoisseur (i.e., snob). My favorites locally are Sweet P’s, Ruth’s Chris lobster mac-n-cheese, and Bonefish Grill bacon mac-n-cheese. When it comes to homemade though, nothing has ever compared to my mom’s. That is, until I tried the macaroni and cheese made by my colleague Morgan at our office potluck. It was probably the best mac-ncheese that I had ever had, and I made sure I let her know.

Morgan is a busy mom with five kids, the oldest of which is twelve, so Morgan is always looking for something quick and easy that will please a crowd. Her secret is Instant Pot Mac and Cheese, which is smothered in a blend of four cheeses. She was happy to share her recipe.

To make it, add 12 ounces of elbow macaroni, 4 TBS butter, 1 tsp dry mustard, ¼ tsp salt, ¼ tsp pepper, and 3 cups water to your Instant Pot. Stir to ensure all the noodles are submerged. Close the lid and make sure the steam valve is set to seal. Cook on high pressure for 2 minutes if the package instructions for the pasta call for boiling 6 minutes or less, or on high for 3 minutes if the instructions call for boiling more than 6 minutes.

Once the Instant Pot cycle is complete and the steam has released, stir in 1 ½ cups evaporated milk, 4 ounces cream cheese, and 1 cup each of shredded provolone, mozzarella, and cheddar cheeses. Serve warm.

Unfortunately, our colleague Adam overheard me praising Morgan’s recipe. He let us know that, while Morgan’s was good, his was better. He explained that his recipe is Patti Labelle’s Mac and Cheese, which is also called “over the rainbow macaroni and cheese.” (I tried to no avail to find the origin of that name) Adam said that it was Oprah’s favorite and that it would be mine, too, after I tried it. He challenged me to make his, compare them, and share the results.

To make Adam’s version (or Patti’s), preheat oven to 350°. Grease a 9x13 baking pan and set it aside. Combine ½ cup each of Muenster, mild Cheddar, sharp Cheddar, and Monterrey Jack cheese in a large bowl. Set aside.

Then prepare 1lb elbow macaroni. Bring 3 quarts of salted water to

a boil in a large pot. Add pasta and cook according to directions on the box, about 8 minutes for al-dente noodles. Drain the noodles and add the drained noodles to a large bowl. Pour 8 TBS unsalted melted butter over the noodles and stir. Then add 2 cups half-and-half, 2 large eggs (lightly beaten), half the shredded cheese mixture, 1 cup Velveeta cheese (cut in cubes), ¼ tsp seasoned salt, and 1/8 tsp ground black pepper to the noodles and stir until fully combined.

Pour the entire mixture into the prepared baking pan. Sprinkle the top with the remaining cheese mixture. Bake in the preheated oven for about 30 minutes, until the edges are bubbling. Serve hot.

I have tried them both - and they are amazing.

Fortunately (or unfortunately), Morgan and Adam are ultracompetitive especially when it comes to food. Adam likes to impress us with his culinary creations, all of which are amazing. Likewise, Morgan shares her recipes, all of which are quick and easy and are sure to feed a hungry (and sometimes picky) crowd. They continue to argue over which recipe is best and continue to ask me, “Whose is best?”

In hopes of maintaining some semblance of peace (or, at the very least, a fragile détente) at the office, I think I’ll remain Switzerland.

LEGAL LIBATIONS: KNOXVILLE BREW REVIEW

By: Parker Bohne

LMU Duncan School of Law J.D. Candidate, 2026

SCHULZ BRÄU

If you’ve ever found yourself driving along Bernard Avenue and wondered, “Why on earth is there a giant castle in the middle of Knoxville?” Yeah, me too. As it turns out, that castle at 126 Bernard Avenue is Schulz Bräu, a brewery that will keep you entertained, well-fed, and coming back for more.

The Atmosphere

Stepping into Schulz Bräu is like crossing the threshold of a medieval castle, complete with towering castle walls that immediately transport you to another land and time. The atmosphere is rich with history, yet vibrant and alive with modern entertainment.

Inside, you are surrounded by medieval decor, but the large wall of windows allows the reflective chrome of the top-notch brewing equipment to remind you of Schulz Bräu’s dedication to its craft. The outdoor biergarten, surrounded by the fortress-like walls, provides a unique setting for patrons to enjoy their drinks.

Long wooden tables encourage open conversations, creating a communal air.

The brewery’s commitment to being both dog-friendly and family-friendly is evident in the inclusive atmosphere that permeates the space. With weekly events and live music, the establishment truly stands as a fortress of fun. The upcoming Ritterfest (April 5-April 14) promises to be a highlight, featuring knight duels, live music, and various medieval festivities that transport visitors back in time. Throughout the year, the brewery hosts a variety of cultural celebrations, from Oktoberfest and Christkindelsmart to Maifest and Stammtisch. Through its dedication to honoring genuine German culture, Schulz Bräu has created a comforting yet exhilarating environment, making this brewery a go-to destination for those seeking a unique blend of history, entertainment, and camaraderie.

The Brews

Schulz Bräu’s commitment to pushing the boundaries of brewing is evident in its remarkable beer selection, which boasts a diverse range of flavors and styles. A highlight is the inclusion

of beers aged in an impressive array of barrels, including bourbon, cognac, rye whiskey, port wine, and rum. These barrel-aged creations lend a complexity and depth to the brews, taking the tasting experience to new heights. The dedication to German craft beers is also apparent, showcasing a range of traditional styles that pay homage to the country’s rich brewing heritage.

With over 30 taps available, beer enthusiasts are treated to an extensive selection that caters to various palates. To the delight of those who prefer beverages other than beer, Schulz Bräu offers an expansive collection of whiskeys, ryes, schnapps, and wines. This thoughtful approach ensures that every visitor, regardless of their beverage preference, can find something to savor. Whether you’re a seasoned beer connoisseur or exploring the world of spirits, the brewery’s expansive and carefully curated selection ensures a delightful and satisfying cultural experience for all.

The Food

Complementing the outstanding beer selection is Schulz Bräu’s genuine German cuisine. The menu boasts an array of traditional dishes that provide a glimpse into the culinary landscape of Germany. From hearty schnitzels and flavorful bratwursts to an abundance of Bavarian specialties, the kitchen is a haven for those seeking an authentic taste of Germany. The commitment to quality is evident in every dish, whether you’re looking for a meal fit for a knight after a long day of battle or simply seeking a delightful snack after a day at the office.

The brewery also excels beyond German fare, showcasing its versatility with an incredible wood-fired pizza that rivals the best pizzerias. This unexpected twist adds a layer of culinary diversity, ensuring that the menu caters to a broad range of tastes. Whether you find yourself craving the comforting warmth of traditional German dishes or the familiar allure of wood-fired pizza, the Schulz Bräu’s kitchen seamlessly blends authenticity and innovation to satisfy every appetite, creating an exceptional culinary experience.

BENCH AND BAR IN THE NEWS

How to place an announcement: If you are a KBA member in good standing and you’ve moved, have property to rent, or received an award, we’d like to hear from you. Talks, speeches (unless they are of international stature), CLE promotions and political announcements are not accepted. Notices must be submitted in writing and limited to 100 words. They are printed at no cost to members and are subject to editing. Email your notice to membership@knoxbar.org.

KBA MEMBERSHIP RENEWAL

KBA is successful wholly because of your support and involvement. If you’ve already renewed, thank you! If you haven’t yet, there’s still time. You can renew your KBA Membership by clicking on “Membership Renewal” within your myKBA profile. It is the last item listed under your name. We encourage you to pay online and update your profile. To see which committees and sections you are affiliated with, click on the “My E-Communities” tab under your myKBA profile. We are excited about new programs, continuing education offerings, and networking opportunities on the horizon in 2024.

SMOKY MOUNTAIN PARALEGAL ASSOCIATION MEETS

The Smoky Mountain Paralegal Association will meet on April 11 from 12:00 to 1:00 pm at the Blount Mansion Visitor Center. Adrienne D. Berry, ACP will speak on the topic of Effective Trial Preparation. For more information, contact firstvice@smparalegal.org

KBA MEMBER SHOUT OUTS

As part of this year’s focus on celebrating our bar association’s diverse membership and exploring creative ways for members to connect, network, and experience fulfillment in the practice of law, we would like to highlight the accomplishments and contributions of KBA members who are making a difference in the legal arena and beyond. Send links to news to posts or articles, pictures, or just a blurb about what’s going on to membership@knoxbar.org.

FREE CLASSIFIEDS AVAILABLE

Did you know the Classified section on the KBA website allows you to add your resume if you are looking for a job or if you need to hire someone, you can post a job and search for candidates? Click on Public Resources and select “Career Classifieds” from the dropdown navigation. The Classifieds receive in excess of 8,000 page views each month so if you are looking for a job or a new position, make sure to check out this valuable resource.

LEGAL HISTORY VIDEOS AVAILABLE

In 2012, the KBA’s Archives Committee began interviewing senior members of the local legal community to capture their stories and perspectives on life and the practice of law. With funding provided by the Knoxville Bar Foundation, the KBA has been able to preserve this history for future generations of lawyers and other interested persons. It is important not to forget the contributions of those who built the local bar and sharing milestones and stories of great lawyers and judges provides new lawyers with historical perspective and inspiration. Interviews of Tim Priest, Bob Pryor, and Charles Swanson have been recently added. View the interviews online at www.knoxbar.org by clicking Member Resources and then Practice Resources.

OFFICE SPACE AVAILABLE:

• North Knoxville, right off I-640/275. Part of a larger office with an established attorney. Free Parking and Internet, access to Kitchen and Conference room. Separate entrance. Excellent set-up for a new attorney. $500 per month. Contact Daniel Kidd, dan@ danielkiddlawoffice.com.

• First class furnished individual offices for rent on the 19th floor right off the elevator in First Horizon Plaza, 800 S. Gay Street. Please contact Lance Baker at 865-310-0997 for further details if you are interested.

• Downtown Office Space for Rent - Large corner office with a view of downtown. Located in the First Horizon Building. $900 monthly. Inquiries can be sent to jfanduzz@gmail.com.

Address Changes

Please note the following changes in your KBA Attorneys’ Directory and other office records:

John L. Billings

BPR #: 025268

The Law Office of John L. Billings

Ph: (865) 801-1755 billings2120@gmail.com

Emily Cala

BPR #: 039295

Legal Aid of East Tennessee, Inc.

4450 Walker Blvd., Suite C Knoxville, TN 37917-1557

Ph: (865) 371-8730 ecala@laet.org

Federico A. Flores

BPR #: 029806

Knox County Law Department

400 Main Ave., Suite 612 Knoxville, TN 37902-2495

Ph: (865) 215-2327 federico.flores@knoxcounty.org

Fiona F. Hill

BPR #: 029806

4434 Sutherland Ave. #10152 Knoxville, TN 37939-6008

Ph: (865) 591-2059

fionahillattorney@gmail.com

Dominic A. Garduño

BPR #: 038518

Dominic A. Garduno Attorney at Law, PLLC

P.O. Box 2348 Knoxville, TN 37901-2348

Ph: (865) 297-3222

dominic@attorneygarduno.com

The Law Offices of Tony Farmer & John Dreiser

Office Space Available-

We have a 15' x 12.5' office space available for sublease at our office location at 1356 Papermill Pointe Way, Knoxville, TN 37909 (Class A) Free and convenient parking available for clientele. Access to phone system. If you are an attorney, we are close to Juvenile Court, as well as a possibility for referrals as we routinely get calls for areas in which we do not practice. Access to two conference rooms. Open to other professionals as well. If interested, contact John Dreiser at (865) 584-1211

WELL READ

By: Vera Dygert Tennessee Valley Authority Office of the General Counsel

FRANCE ON TRIAL: THE CASE OF MARSHAL PÉTAIN,

BY JULIAN JACKSON

“This is my policy. My ministers are responsible to me. It is I alone who will be judged by History.” Those were the words spoken by Philippe Pétain on October 30, 1940. Hailed as a World War I military hero, Pétain would be better remembered for signing an armistice agreement with Nazi Germany on June 22, 1940, and heading the collaborationist Vichy government in France.

British historian Julian Jackson’s France on Trial, The Case of Marshal Pétain chronicles the 3-week trial of the aging French marshal for treason and collusion with the enemy. The book examines not just the actions of Pétain, but more broadly, moral dilemmas and choices made by leaders in wartime France. Were actions taken to create the Vichy government legal? Did Pétain support collaboration with the Nazis, and was Pétain--and by extension--the Vichy government, guilty of treason, as was argued by the prosecution? Or was armistice the only pragmatic choice intended to stave off a potentially worse outcome, as was argued by the defense?

Jackson begins with the end of the war and the Germans’ detention of Pétain in Sigmaringen, a castle in Germany. After France’s liberation, Pétain decided to return to France to defend his reputation. Jackson then proceeds to describe preparations made for the trial, delving into the intricacies of the French legal system and outlining the vast cast of characters that played a key role in the trial, including the prosecution and defense teams, numerous witnesses, three judges, and twenty-four jurors.

allowed France a degree of independence that was not otherwise provided to other occupied countries.

The prosecution, however, argued that Pétain played a key role in subjugating France to Nazi Germany, allowing Germany to use French territory for attacking Allied troops, imposing discriminatory laws against the Jews, and ultimately participating and allowing their deportation and extermination. According to the prosecution, Vichy was ultimately an illegitimate government that participated in the crimes committed by Nazi Germany.

Armistice was not a peace treaty, but rather, a cessation of hostilities that divided France into the northern “Occupied Zone,” which constituted two-thirds of French territory, and an unoccupied “Free Zone” in southern France. The terms of the armistice, however, were wholly unfavorable to the French. They did not allow for the release of the more than one million French prisoners, the demarcation zone dividing the Free and Occupied Zones disrupted the French economy, and the Germans required the French to pay fees to cover their occupation costs. Upon signing the armistice agreement, Pétain established his government in Vichy, a spa resort town in central France, and the French parliament gave Pétain full powers to draft a new constitution. Pétain subsequently issued, as Jackson states, “a series of ‘Constitutional Acts’ which effectively made him a dictator and put parliament in abeyance. The Republic was not formally abolished, but Pétain was now described as ‘Head of State’ – leaving it ambiguous what kind of state he headed.”

The defense and its witnesses argued that it was clear in 1940 that Germany would defeat France. Had France not signed an armistice, France would have met the same fate as other countries invaded and occupied by Germany. They argued that it was fantasy that a French government could have continued operating outside of France, and Vichy

Remarkably, the role of the Vichy government in the deportation of 75,000 Jews from France played a relatively peripheral role in the trial. The indictment, known in France as the Acte d’accusation, noted that Vichy’s collaboration with the Nazis “placed entire categories of French outside the law and organized their persecution as under the Hitlerian regime, then delivered up to the Reich the victims that it demanded.” Pétain’s lawyers, however, believed that the purpose of the trial was “‘less to recall the horrors that we all know’ than to explain how they had occurred,” and Jewish survivors of the Holocaust were prohibited from testifying at, and even entry to, the trial. Over the decades, views over the responsibility of the deportation and fate of the Jews had changed. According to Jackson, this shift in perception was the result of many factors, including the Adolf Eichmann trial in Jerusalem in 1961 and the Six Day War in 1967 between Israel and neighboring Arab countries, which highlighted “the sense of fragility of Jewish existence” both within Israel and the Diaspora. It wasn’t until 1995 that the French president, Jacques Chirac, acknowledged France’s participation in the Holocaust.

Ultimately, as Jackson notes, “the trial confronted broader moral and philosophical questions. Where did patriotic duty lie after the defeat? Does a legal government necessarily have legitimacy? Are there times when conscience overrides the duty to obey the law? Are there times when the immediate well-being of the people of a nation can conflict with the nation’s higher interests?” Pétain’s and Vichy’s collaboration with the Nazis continue to be debated to this day. While physical reminders of Pétain, such as streets bearing his name, have been gradually removed, Pétain remains a potent symbol for the extreme right in France.

Whether you are a historian, lawyer, or World War II history enthusiast, the book offers insights into the French legal system and an interesting account of a controversial period in French history. More importantly, the book illustrates the fragility of democratic institutions and the ease with which they can be dismantled, even in well-established democratic countries. It is a stark reminder that democracies and democratic institutions cannot be taken for granted. As Winston Churchill famously stated in a speech to the House of Commons in 1948, “Those who fail to learn from history are condemned to repeat it.”

By: Clint Wren Staff Attorney Legal Aid of East Tennessee

FINDING HOPE AMIDST DESPAIR: THE POWER OF PRO BONO WORK IN THE LEGAL PROFESSION

Hopelessness abounds. Groceries are more expensive than ever, conflict is popping up in just about every region of the world, and 2024 looks to be an emotional and involved election cycle for everyone. And for us? We practice in a field known for burnout, substance addiction, and dishonesty.

The individual is ill-equipped to deal with this barrage of information. Even so, we spend chunks of our day “doom-scrolling” on our phones even when we aren’t working. Even on Instagram, all I seem to see is a tragedy in Texas, a conflict in a country I’ve never been to, and self-serving ads that encourage me to make quick money for no work.

None of us have the personal power to change these things. I don’t have answers for the wide-spread and frequent hostilities humans are so good at inflicting upon each other, and I lack the know-how to change algorithms designed to keep us chained to a phone.

I do, however, have something that helps. Sometimes, you’re given the opportunity to provide a bit of local hope despite the worldwide hopelessness. It isn’t as grand and almost certainly won’t make the news, but a small dose of local hope changes the entire world for a family.

Pro Bono work is that local hope you can provide. If you asked some attorneys what “pro bono” means, they’d likely say work without charge. They’d be correct, but the history of the phrase is Latin meaning “for the public good.” Or, for a lazy DICTA writer trying to pen a metaphor, it means “local hope.”

Your expertise is needed in the private and corporate world every day, and it keeps the lights on and the world running as smoothly as possible. However, this expertise is also coveted by neighboring families that are just outside of typical practice areas. Your willingness to work pro bono, or to provide local hope, is what keeps their lights on – sometimes literally.

I do not have the space on this page to pen every Pro Bono opportunity out there. However, I can assure you that these opportunities are within and outside of your wheelhouse. Want to learn how to do a conservatorship? Great news – you can get your feet wet with a conservatorship for a low-income, low-resource family that desperately needs one. They aren’t a paying client, but they are thankful for any assistance at all and willing to work with you to get through the process. Want to do a name change? Fantastic – our team can give you a bullet

point guide on doing so and let you learn while changing the life of a client.

The hope-to-work ratio is also in your favor. You give a few hours to work through an issue with a client, and they have a crushing weight removed from their shoulders. Even better for the selfish attorneys like me, local hope is a cross-contaminant. It is extremely difficult to handle without being affected yourself.

It seems like about a year and a half ago, the “self-care” craze hit its peak, and that was about all I read. Self-care, even if not in vogue, is just as important now. Being consumed by hopelessness is easier now than ever. Before writing off a clinic or opportunity as a waste of time or unnecessary work, consider yourself when considering others. Your team and clients need you at your best. Your best involves a well-rounded, wellrested, and well-prepared attorney.

This last year, I have certainly been tempted to be “good enough” to pass through. Conversations with team members have led me to reconsider what I’m doing for myself. As it turns out, rewatching Bluey with my manic kids isn’t cutting it as self-care. Going to the gym and eating well isn’t cutting it. Talking myself into eating Yassin’s for lunch for the first – or third – time this week isn’t cutting it.

The difference is noting what ripples you’re making for clients and families. Your work has meaning, no matter what it is you do. Your pro bono work has immediate, clear consequence that is more visibly present. The client who has lost sleep and opportunity due to crushing debt now has a bankruptcy. For you, this is a few hours. For you, you can witness a new chapter in someone’s life starting. This new hope is not because of chance or unrelated circumstance; it’s you. Your work and sacrifice are the only reason that client has hope. It’s the only reason that tomorrow means something more than more worry.

Your pro bono is local hope that translates to tomorrow’s hope for someone in your city. You have the chance to push against hopelessness using tools you already have or want to develop. And it’s this act, the pushing back against hopelessness, that can push back against the hopelessness you feel.

Check out cases ready for pro bono placement at www.laet.org or sign up for an upcoming clinic via email at ctorney@laet.org or through the KBA’s website.

By: Oscar A. Butler Barnes and Fersten

YOU HAVE THEIR ATTENTION. NOW WHAT?

My assigned task was to tell you a story. But I’m not an author. I’m not a “creative.” I’ve never written a play or a book. Some argue I’m not a comedian, but that argument is clearly without merit, so don’t hold me to the standard of your favorite writer, book, or play. This is a story about a life-lesson I struggled to learn as a child, only to embrace today.

Growing up I attended the same elementary school and middle school where my mother taught. I was the “teacher’s kid” to so many of my classmates. They looked at me as if I thought I was better than them, just because my mom worked in the building. Maybe it was that all the teachers had known me since birth. Maybe it was just jealousy that I didn’t have to ride the bus. Maybe it was their mistaken belief that I got special treatment because I was, in fact, a teacher’s kid. Whatever the reason, I had their attention. What my classmates didn’t know is I never liked going to the same school where my mom was a teacher. I never wanted to a be the “teacher’s kid,” and I certainly didn’t think I was better than they were. I just wanted to be a kid. But, nevertheless, their attention on me always seemed like a burden and a weakness. It kept me from feeling like the regular student I wanted to be.

When I began high school, I was the skinny basketball player who still never seemed to fit in. Maybe it was that my parents rarely bought me the cool clothes. Maybe it was my skin color. Maybe it was that I had gone to elementary and middle school on the other side of the county, so I didn’t have an original friend group. Whatever it was that made me feel overlooked socially, there was no overlooking me on the basketball floor. I was one of the tallest players and played on one of the greatest teams in the nation. When I was on the floor, I had my classmates’ attention. But receiving the attention on the court only heightened my issues off the court. The moment each game ended, it was back to not knowing what to do with the seemingly negative attention I received off the court. The attention seemed like a burden and a weakness.

College is where I truly realized the lesson that serves as the basis of this story. Still playing basketball, I continued to have the attention of so many people. That attention led me to try to be the “cool guy.” That’s who I thought I was supposed to be. That’s who I thought I wanted to be. My first year of college I was a very sub-average student. I wasn’t the student to put in extra work, and my procrastination caused my professors to quickly see that my homework was not well-developed. This resulted in me having to focus and study my final three years, just to graduate with

THE OATH, continued from page 13 net/entries/augustus-hill-garland-106/, last visited Mar. 7, 2025.

4 Encyclopedia of Arkansas, Spring Hill, https://encyclopediaofarkansas.net/entries/ spring-hill-hempstead-county-11379/, last visited Mar 7, 2025.

5 Encyclopedia of Arkansas, Augustus Hill Garland, supra n. 5.

6 Id

7 Ex parte Garland, 71 U.S. 333, 374 (1866).

8 Encyclopedia of Arkansas, Augustus Hill Garland, supra n. 5; see also Abby Guy v. William Daniel, 19 Ark. 121 (1857).

9 Ex parte Garland, 71 U.S. at 374.

the kind of grades to be seriously considered by any law school. At that time, my social life was a priority over any forward-thinking life choices.

I felt like I had the attention of so many people that I needed to act a certain way. That attention, again, was a burden-- a burden I didn’t know how to handle. It was a weakness that consumed so much of my time and thinking. And, that had to change.

Preparing to go to law school, I worked two jobs in my gap year between graduating from Maryville College and my first semester at LMU Duncan School of Law. Once my law school classes began, I took on the persona and mindset of the hard-working professionals I had observed over the prior year. I wore a dress shirt, tie, and dress pants to class. I carried a briefcase. I got to school early and left late, claiming a spot in the library as my second home. My actions and appearance made me stand out from my classmates. Once again, I had everyone’s attention. So, what was the difference between this time and all the times that had come before? This time I made sure that when I had their attention, I capitalized on the opportunity in a positive manner. I stepped out of my comfort zone, and I served on the Student Bar Association. This led to me becoming the President of the Black Law Student Association. The exposure I received by accepting the attention enabled me to speak on multiple panels, to receive internships and externships, and to open doors I never thought possible. I received job opportunities that I would not have been considered for, had I not changed my mindset. So, what was the lesson? I finally learned that what made me stand out wasn’t a weakness or a burden, it was my greatest icebreaker. Once the ice was broken, once I had their attention, I could truly allow myself to shineopening doors for myself and hopefully others around me.

If you made it this far into this story, kudos to you! Maybe it’s because you skipped to the end of the story to see if the person figures it all out. Maybe there’s something that makes you stand out, that creates so much unwanted attention. Maybe it’s your clothing choices. Maybe it’s your skin color, or maybe it’s the way you wear your hair. Maybe it’s your body type. Maybe it’s because you’re a teacher’s kid. Whatever it is, understand that what makes you stand out doesn’t have to be a burden or a weakness. You can decide the result of people paying attention to you and use that to your advantage. We live in a world of so many “likeminded” people who look the same, dress the same, and act the same. By not being the same, you have their attention. Now what?

10 Id. at 333.

11 Id.

12 Id.

13 Id. at 375,

14 Ex parte Garland, 71 U.S. at 376, 378.

15 Encyclopedia of Arkansas, Augustus Hill Garland, supra n. 5.

16 Oath of Admission, U.S. Supreme Court, available at https://www.supremecourt. gov/bar/barapplication.pdf.