__MAIN_TEXT__
feature-image

Page 1

Practice Tips: How to Voluntarily Dismiss Federal Claims . . . Page 9 Management Counsel: Law Practice 101: Unemployment Hearings: Important Precursors to Litigation. . . Page 13

A Monthly Publication of the Knoxville Bar Association | August 2017

MALES AS VICTIMS OF SEX TRAFFICKING IN EAST TENNESSEE


2

DICTA

August 2017


In This Issue

Officers of the Knoxville Bar Association

Cover Story

President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

KBA Board of Governors Dwight Aarons E. Michael Brezina III Kathryn Ellis Stephen Ross Johnson Lisa J. Hall

Dana C. Holloway Rachel P. Hurt Mary D. Miller Carrie S. O’Rear Mitchell Panter

M. Samantha Parris Cheryl G. Rice John E. Winters

The Knoxville Bar Association Staff

16

Males as Victims of Sex Trafficking in East Tennessee

5

President’s Message

Tammy Sharpe CLE & Sections Coordinator

Jonathan Guess Database Administrator

6

Knoxville Bar Association 505 Main Street Suite 50 Knoxville, TN 37902 865-522-6522 Fax: 865-523-5662 www.knoxbar.org

Tracy Chain LRIS Administrator

Adelyn Bryson LRIS & Membership Assistant

Volume 44, Issue 7

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 Marsha Watson (522-6522). DICTA subscriptions are available for $25 per year (11 issues) for non-KBA members. August 2017

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Editor Heidi A. Barcus Casey S. Carrigan Elizabeth B. Ford Joseph G. Jarret F. Regina Koho David E. Long

Cathy Shuck Chris W. McCarty Melissa B. Carrasco Lee Nutini Matthew R. Lyon Jack H. (Nick) McCall Jr. Angelia Morie Nystrom Katheryn Murray Ogle Melissa C. Reinders Ann C. Short

Managing Editor Marsha Watson KBA Executive Director

DICTA

Judicial News

Conversation with Justice Sharon G. Lee; Chief Justice term in review

How to Voluntarily Dismiss Federal Claims

Probable Cause: Informant Information & the Jacumin/Tuttle Debate

Unemployment Hearings: Important Precursors to Litigation

9 11

Lacey Dillon Programs Administrator

Critical Focus

Thank You to Members of Our Local Judiciary Honored at the Knoxville Bar Foundation Portrait Unveiling

13

Marsha S. Watson Executive Director

August 2017

18 21

Practice Tips Legal Update

Management Counsel: Law Practice 101

Your Monthly Constitutional

Robocop is Almost Here

Legal Almanac

When Security Met Society

Conventional Wisdom

7 Supreme Court Dinner Speaker Profile GSMNP Superintendent Cassius

10 14

15 20

Cash: Our Way Forward

Time Out

Being in the Present

Walking the Walk

Pursuing Excellence; Doing What You Love

Thankworthy

It’s Going to be OK

Of Local Lore & Lawyers

The Downtown Knoxville Post Office & Courthouse: A Functional Treasure

23 24

Long Winded

Worst of Luck To You

Life Hacks

Travel Tips with Little People (and Words of Wisdom from the Expert)

Wireless Headphones—Cutting The Cord?

Three Ways You’re Undermining Your Own Success

Book Review: Billy Budd, Sailor by Herman Melville

25 26 27 4 19 22 29 30 31

Phil & Bill’s Gadgets

Life & Law in Harmony Well Read

Common Ground

Section Notices/Event Calendar Barrister Bullets Ask McLawyer Bench & Bar In the News Pro Bono Project Last Word

3


event

EVENT CALENDAR & SECTION NOTICES

Section Notices

calendar

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. Alternative Dispute Resolution Section The ADR Section has monthly CLE programs planned through the end of the year. If you have program topic or speaker suggestions, please contact the ADR Section Chairs Kim Burnette (546-7000) or Dana Holloway (643-8720).

August

Bankruptcy Law Section The Bankruptcy Section will meet quarterly. To have your name added to the section list, please contact the KBA office at 522-6522. If you have program topic or speaker suggestions, please contact the Section Chairs Tom Dickenson (292-2307) or Greg Logue (215-1000).

n 8

Professionalism Committee Meeting

n 9

Veterans’ Legal Advice Clinic

n9

Barristers Meeting

n 10 Judicial Committee Meeting

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. If you would like to get involved, please contact Section Chairs Marcia Kilby (362-1391) and David Headrick (599-0148).

n 10 Interprofessional Relations Mixer

Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. To have your name added to the section list, please contact the KBA office at 522-6522. If you would like further information on the Criminal Justice Section, please contact Section Chairs Joshua Headrick (524-8106) and Sarah Keith (215-2515).

n 22 Access to Justice Committee

Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to in-house and government attorneys. If you would like further information on the Employment Law Section or have suggestions for upcoming CLE programs, please contact the Employment Law Section co-chairs: Howard Jackson (546-1000), Tim Roberto (691-2777) or Mark C. Travis (252-9123). Environmental Law he Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. For more information about the section, please contact Section Chairs LeAnn Mynatt (549-7000) 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. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040).

n 16 KBA Board of Governors Meeting n 16 Summer Fun CLE n 21 Diversity in the Profession Committee n 24 Volunteer Breakfast n 24 Corporate Counsel Section CLE n 29 Employment Law Section CLE

September n 6

Supreme Court Dinner

n 6

Senior Section Luncheon

n 12 Professionalism Committee Meeting n 13 Veterans’ Legal Advice Clinic n 13 Barristers Meeting n 14 Lunch & Learn CLE n 14 Judicial Committee Meeting n 18 Diversity in the Profession Committee

Government & Public Service Section The Government & Public Service 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 would like further information on the section, please contact Leah McClanahan (545-4260) or Ron Mills (215-2050).

n 20

Board of Governors Meeting

n 21

In Chambers CLE

n 26

CLE Committee

Juvenile Court & Child Justice Section Members of the KBA are invited to join the KBA’s Juvenile Court & Child Justice Section, formerly the Unmet Legal Needs of Children Committee. For information about the Section, please contact Section Chairs Mike Stanuszek (696-1032) or Justin Pruitt (215-6440).

n 28 Summer Fun – Gun Laws CLE

Senior Section The KBA Senior Section will meet next on Wednesday, September 6, 2017 at Calhouns on the River. The program title is “The 2017 Volunteers: A Football Preview” and will feature Timothy A. Priest with Pryor, Priest, Harber, Floyd & Coffey. The luncheon will be held from 11:30 a.m. to 1:00 p.m. The price includes an entree, vegetable, salad and beverage. Please indicate your choice of Barbeque Chicken or Grilled Salmon. Register online at www.knoxbar.org. If you have suggestions for speakers, please contact Chair Wayne Kline at 292-2307. Solo Practitioners & Small Firms Section The goal of the Solo & Small Firm Section is to provide and encourage networking opportunities and CLE. To have your name added to the section list, please contact the KBA office at 522-6522. For more information about the section, please contact Chairs Heather Anderson (546-8030) or Tripp White (712-0963).

4

DICTA

n 28 Volunteer Breakfast

Annual Supreme Court Dinner September 6

August 2017


PRESIDENT’S MESSAGE By: Amanda M. Busby Anderson Busby PLLC

THANK YOU TO MEMBERS OF OUR LOCAL JUDICIARY HONORED AT THE KNOXVILLE BAR FOUNDATION PORTRAIT UNVEILING On July 12th, the Knoxville Bar Foundation honored the following former members of the Knox County judiciary with a portrait unveiling and reception at the Knoxville City County Building: Judge Wheeler A. Rosenbalm, Knox County Circuit Court, Division III Chancellor Daryl R. Fansler, Knox County Chancery Court, Part II Judge Mary Beth Leibowitz, Knox County Criminal Court, Division III Judge Bill K. Swann, Knox County Circuit Court, Division IV Judge Dale C. Workman, Knox County Circuit Court, Division I

Photograph Credit: Jon Gustin, Knox County Office of Information Technology

By my calculations, these judges served a collective 118 years on the bench in Knox County. We owe them deep gratitude for their dedicated service to all the citizens of Knox County. With this article, I want to say “thank you” to them both personally and on behalf of the Knoxville Bar Association for all that they have done to serve our legal profession. Many of us were fortunate enough to have had the opportunity to appear before them, and they strengthened the foundation for continued collegiality between the bench and the bar in our community. Their portraits will be publicly displayed in each judge’s former courtroom in the Knoxville City County Building. I wanted to give you a brief synopsis of the careers of each of these judges for attorneys either new to the practice of law or new to Knoxville who may have not had the opportunity to have appeared before them, but who will undoubtedly hear their names spoken by colleagues in the bar.1 Although it is hard to believe that more than four years have passed, Judge Wheeler A. Rosenbalm retired from the bench on January 1, 2013. Judge Rosenbalm is from Anderson County and grew up on a farm. He attended Clinton High School and served as President of his senior class and on the student council, eventually leading him on the path to law school. Prior to taking the bench in 1990, he practiced law for 23 years, primarily in the area of civil practice, and he taught classes at the University of Tennessee College of Law. Arthur Seymour, Jr. who was a partner with him in the Frantz, McConnell & Seymour law firm spoke on behalf of Judge Rosenbalm at the portrait unveiling. He remembers Judge Rosenbalm as an outstanding judge and described him at the time of his retirement as smart, analytical, even-tempered and considerate of people. It was reported at the time of his retirement that Judge Rosenbalm had completed more than 16,441 cases during his time on the bench with the largest volume being car wreck cases, and the largest volume of trials occurring between 1990-1998 before mediation became so popular. Chancellor Daryl R. Fansler served as the Chancellor of the Knox County Chancery Court, Part II, for 16 years. Before his election to the bench in 1998, he practiced law in Knoxville for 15 years as a trial lawyer and civil mediator with McCord, Weaver & Troutman. He was one of the first mediators and arbitrators in Knox County certified by the Tennessee Supreme Court. He now practices law at Bernstein, Stair & McAdams LLP, serving as a mediator and arbitrator and also practicing August 2017

in the area of complex litigation. Chancellor John F. Weaver who worked alongside Chancellor Fansler during his time on the bench spoke in high regard of him at the portrait unveiling, noting Chancellor Fansler’s lasting impact on Knox County Chancery Court practice during his years of service on the bench. I personally appeared before Chancellor Fansler many times, and I always appreciated his preparedness and professionalism on the bench and the practicality in his decisions. I am certain these same characteristics have carried over to his mediation and arbitration practice. Judge Mary Beth Leibowitz retired from the bench in 2014 after serving since 1989. On the eve of her retirement, prosecutors noted how Judge Leibowitz was patient and fair and an example of how “justice and compassion are not mutually exclusive.” Defense attorneys noted that she gave their clients a fair shot at justice. Judge Leibowitz heard many difficult cases during her tenure, including the 1996 death penalty case of Christa Gail Pike who was convicted of killing a fellow Job Corps student on the UT Agricultural campus. Wade Davies provided remarks on Judge Leibowitz at the portrait unveiling and noted her compassion and patience in dealing with those accused of crimes. Judge Bill K. Swann retired on September 1, 2014, after serving 32 years as the judge in Knox County Circuit Court, Division IV. He is a proud alumnus of Harvard College where he majored in Germanic language before earning a Ph.D. in Germanic languages and literature at Yale University. He earned his law degree from the University of Tennessee and practiced law for 8 years before being elected to the bench in 1982. At the time of his retirement, Judge Swann noted how dangerous domestic law cases could be, especially those involving children where the court rules against a parent who then becomes angry with the judge. John Harber spoke of Judge Swann at the portrait unveiling, noting Judge Swann’s direct involvement in making numerous, positive changes in how family law is practiced during his time on the bench. And last, but certainly not least, Judge Dale C. Workman, retired as a Circuit Court judge in 2014, after having served 24 years on the bench. Judge Workman is a graduate of Fulton High School and earned both his undergraduate and law degrees from the University of Tennessee. Judge Workman served as the Knox County Law Director prior to taking the bench. During his time on the bench, Judge Workman estimated that he disposed of over 19,000 cases. At the time of Judge Workman’s retirement, attorney Ruth Ellis noted Judge Workman’s good sense of humor and that he cared about the legal system, the Knoxville Bar Association, and lawyers. Juvenile Court Judge Tim Irwin spoke about Judge Workman at the portrait unveiling. Before coming on the bench, Judge Workman was hired as Judge Irwin’s sports agent during most of Judge Irwin’s professional football career. Judge Irwin remembered Judge Workman’s work ethic and noted that his legacy on the bench will be hard work. If you want to know more about any of these judges, just ask someone who practiced in their courtroom, and I am certain that they will have a good story or two or three to share. These judges have had distinguished careers and have been an asset to the Knoxville legal community. They have also frequently given of their time to assist the Knoxville Bar Association, participating in numerous continuing legal education seminars throughout the years to help further educate our bar. On behalf of the Knoxville Bar Association, I want to thank them for their service. 1 Newspaper articles by Georgiana Vines and other Knoxville News Sentinel staff upon each judge’s departure from the bench provide factual support for information cited in this article, including references to the number of total completed cases.

DICTA

5


JUDICIAL NEWS By: Broderick Young Arnett, Draper & Hagood

CONVERSATION WITH JUSTICE SHARON G. LEE; CHIEF JUSTICE TERM IN REVIEW. BLY:

I recently had the opportunity to sit down with Justice Sharon Lee of the Tennessee Supreme Court to talk to her about her time as Chief Justice, which concluded on August 31, 2016. We discussed her initiatives related to indigent representation, court technology, and the Business Court docket. BLY:

For those of us who don’t know, briefly, what is the role of the Chief Justice? Justice Lee: As the head of the judicial branch of government, the Chief Justice is the spokesperson for the judiciary, oversees its budget, the Administrative Office of the Courts and all other business of the judiciary. All members of the Court participate in the decisions made by the Chief Justice, so it is truly a group effort. BLY: How is the Chief Justice selected? Justice Lee: The members of the Supreme Court select the Chief Justice. BLY:

I understand your goals as Chief Justice included improving the Court’s technology, the establishment of a business court, and improving indigent representation. Justice Lee: When I became Chief, I pledged to do a top to bottom review of the judiciary to ensure that it operated as effectively and efficiently as possible. Our review resulted in many improvements and changes. We also formed the Indigent Representation Task Force to study the way we deliver legal services to indigent parties. After a statewide listening tour and much research and study, the Task Force issued a detailed report that highlighted a number of areas that needed improvement – including the need to increase the compensation for appointed counsel. The Task Force report includes some excellent recommendations, and I am very hopeful that the Legislature will enact the recommended changes. This reform is long overdue. During the 26 years I practiced law, I frequently served as appointed counsel in criminal and juvenile proceedings. I know from experience that the rates for appointed counsel are too low and that the system needs to be improved.1

BLY:

The Task Force suggested establishing a commission to oversee indigent representation which is a great idea, because you need to reform the system and not just tweak the rates. Providing counsel to indigent parties in certain cases is constitutionally mandated, and we must comply with this mandate. In the next few years, I think (hope) we will see a significant and historic change in the way legal services are delivered to indigent parties.

You also mentioned the technology piece, and we know that Tennessee Supreme Court Rule 46 was recently implemented which allows for electronic filing. Justice Lee: Appellate E-filing has not happened as quickly as I wanted it to. We’ve been working for years on an appellate case management system, and now we are modifying that system to accommodate the new E-filing system. It’s taking a little longer than anticipated, but I’m told it is on track. Next, I want to see E-filing in the trial courts.

6

It’s my understanding the Business Court has just completed its second year of operation. Justice Lee: I had read about the success of business courts in other states and thought it would be good for Tennessee. After some research, I spoke with the Speaker of the House and Lieutenant Governor, and there was a lot of support in the Legislature for it. I crunched some numbers on the cost of setting up a new court and decided it would be wise to establish a business court docket and see if there was a need for a new court before committing taxpayer dollars. After we announced the formation of the Davidson County Business Court docket, it took about 2 weeks before we got a case. During that time, I worried – did we start a new court docket with great fanfare that no one wanted? But then the cases started coming in, and they did not stop. We were very pleased with how well received the Business Court docket was, and we did it with virtually no expense. It is technically not a new court because we used an existing Davidson County Chancery Court to hear the cases. BLY: How many cases are there in the Business Court right now? Justice Lee: From May 1, 2015, through March 2017, we received 107 requests and accepted 89 cases into the Court. All but 8 cases came from Davidson County. The docket is handled by Chancellor Ellen Lyle who does a great job. Due to the size of the caseload, we recently narrowed the jurisdictional criteria.2 BLY:

Have you thought about extending business courts to the other grand divisions? Justice Lee: Yes, eventually we should have business court dockets in different parts of Tennessee. But, we need to perfect the court and make it the best court possible before we take it on the road. I’m hoping that in another year or two, we can expand it to other areas, including Knox County. KBA member Celeste Herbert serves on the Business Court Rules Advisory Commission. She is an excellent member and has made significant contributions to the development of the Business Court. 1 The Indigent Representation Task Force recommended amending Supreme Court Rule 13 to eliminate the distinction between out-of-court and in-court compensation rates, to eliminate case caps and the “complex and extended” designation procedure, and to increase the rate paid to appointed private counsel to an hourly rate not less than $75 nor more than $125. 2 Eligible cases for the Business Court docket now include cases which seek primarily injunctive or declaratory relief or at least $250,000 in damages, claims of breach of fiduciary duty or statutory violations between businesses; antitrust, trade secrets, trademark law or securities-related actions; a commercial class action; actions arising from technology licensing agreements or any agreement involving licensing of any intellectual property right; claims relating to the governance or internal affairs of businesses; or claims that present sufficiently complex commercial issues that would have a significant implication for the larger business community. https://www.tncourts. gov/press/2017/04/05/highly-successful-davidson-county-business-court-docket-pilotproject-enters-phase (last visited June, 9 2017.)

DICTA

August 2017


AROUND THE BAR By: Angelia Nystrom UT Institute of Agriculture

GSMNP SUPERINTENDENT CASSIUS CASH: OUR WAY FORWARD Born and raised in Memphis, Cassius Cash admits that he didn’t watching scary movies where bad things happened in the woods,” he exactly grow up communing with nature – the closest he came to the says. “I still see a lot of kids today that are scared of the woods. I want to wilderness was watching Marlon Perkins on Mutual of Omaha’s Wild change that.” Kingdom on television. He attended college thinking he would become He has also had to ensure that the Park met the demands of the a doctor, but when recruiters from the U.S. Forest Service offered him some 11.3 million park visitors every single year. On the busiest days, the an intership, he jumped at the chance to work with wildlife biologists. “I Park hosts some 6,000 visitors. He is tasked with balancing conservation was always fascinated with animals,” he says. “I just didn’t see anyone who and stewardship, making sure pristine woodlands stay that way for people looked like me doing those jobs. It was like stumbling onto a dream.” to enjoy for the next 100 years, but also with making them accessible so His dream became a reality over two decades ago when he was hired that people can get outside and take it all in. This includes focusing on by the U.S. Forest Service as a wildlife biologist in Washington State. educating visitors to better understand how to interact with nature and As a wildlife biologist, Cash helped protect spotted owls and preserve minimize their impacts. “We have to step up our game from not feeding public lands. He went on to serve in key leadership positions including the bears to explaining what happens when you do feed them,” he says. as an administrative officer in Nebraska, district ranger in Georgia, civil “You have to understand there is a sense of stewardship.” rights officer in Mississippi, and finally as deputy forest His biggest challenge, though, has been the supervisor in southern Oregon. management of the worst wildfire in Tennessee’s history In 2010, Cash left the U.S. Forest Service to become – Chimney Tops 2 Fire. While fire-related building and Join us the superintendent for Boston’s National Historical structural damage outside the Park is being repaired, areas Park, which links the stops along the Freedom Trail, that were scorched within the Park will recover naturally. September 6th and African American National Historic Site, which In a few spots, that will likely be a century in the making. at the is a collection of 15 Beacon Hill businesses, churches, Only about 10 percent of the 11,000 park acres ravaged by Supreme Court and homes along the Black Heritage Trail that were the fire were blackened or deadened. The recovery is going Dinner inhabited by Boston’s free African-American community to vary depending on how many of the trees die and how in the 19th Century. Reflecting, Cash stated that the high the severity was. In the areas that burned hottest, it to hear two parks shared a common theme: “When you look will take a long time for those forests to recover. Cash is featured speaker at the outcomes to each of the stories, the abolitionist confident that the Park will be stronger than ever moving Cassius Cash. movement or the Revolution, they both end in freedom.” forward. In 2012, when the new national park visitor center As Cash moves into his third year of service and opened in Faneuil Hall, Cash began marketing the the Great Smokies Park moves into its 101st year, his two paths as “Boston’s trails to freedom,” with the leadership message of getting back to the basics as the way programming focusing on concepts from both trails. to move forward rings with universal appeal. Cash has a passion about In Boston, Cash used stories to rebrand the park and built impactful not only what we can do for our Parks, but what our Parks can do for connections in the community. Superintendent Cash also took a deeper us – in terms of health, peace of mind, and connection. He also believes look into the historic stories most people know to find additional stories that community is one of those key basics that often gets lost in the rush that include more people. of life. Says Cash, “Our National Parks are about making a social impact When the mountains of Tennessee called him home in February as much as they are about making a scientific impact.” 2015, Cash realized that, while the Great Smoky Mountains National To learn more about his vision for the Great Smoky Mountains Park is the most visited in the United States, the key to operating the National Park, please join the KBA in welcoming Superintendent Cash Park was not necessarily the millions of visitors who come from other at the Supreme Court Dinner on September 6. places; rather, the key to operating the Park was connecting to the community. He felt that finding more inclusive stories is the key to building more interest and support for the Park. Inclusive stories connect parks to people of different backgrounds, interests and geographies. And they connect the Park to the community. The understanding of the importance of connecting the Park to the local community has helped Cash face the challenges, weather the storms, and celebrate the successes of the Park during his tenure. Since his arrival in the Great Smoky Mountains in February of 2015, Cash has experienced many great rewards as well as great challenges. A highlight of his tenure has been hosting the Hike 100 Centennial program that involved him hiking with more than 180 young people from the local community and encouraging them to become future stewards of the park. Connecting with children is an important part of his mission at the Park. “I grew up in Memphis, and we didn’t have national parks close to where I lived. I was that kid who grew up August 2017

DICTA

7


8

DICTA

August 2017


PRACTICE TIPS By: Stephen Cobb Law Clerk, Hon. Pamela Reeves, U.S. District Court

HOW TO VOLUNTARILY DISMISS FEDERAL CLAIMS It’s finally over. You filed a complaint for your client in federal court, survived a motion to dismiss, made it through discovery, and overcame summary judgment. You finally managed to open settlement talks with opposing counsel. And now you’ve just won a major sum for your client. Congratulations! You can finally breathe easy, knowing that the suit is over. Or is it? Well, maybe as far as the parties are concerned. But to the court, the suit is still active. And the court can’t close the case until the plaintiff obtains a voluntary dismissal. To do that, counsel should file something under Federal Rule of Civil Procedure 41(a). What exactly should be filed, though, can be tricky. Rule 41(a) provides three options. The plaintiff can file a notice signed only by herself. She can file a stipulation signed by all the parties. Or she can file a motion for voluntary dismissal. And even with all these options, sometimes voluntary dismissal is impossible. So what can be filed when? The rule on dismissal by notice is straightforward: The plaintiff can file notice “before the opposing party serves either an answer or a motion for summary judgment.”1 Motions to dismiss under Rule 12(b) are neither answers nor motions for summary judgment.2 So if the defendant has filed only a motion to dismiss, the plaintiff can still dismiss her suit simply by filing a notice of dismissal. But if the defendant has filed an answer or a motion for summary judgment, then the plaintiff must do a little more to get her suit dismissed. The simplest option is to file a “stipulation of dismissal signed by all parties who have appeared.”3 Of course, the parties might not all agree. If not, a motion for voluntary dismissal is needed.4 But if everyone is on board, then a stipulation of dismissal will usually end the suit. No court order is needed. But sometimes the plaintiff must do even more to get her suit dismissed. In two situations, a court can use its inherent power to require approval on a case-by-case basis, even if a notice or stipulation would otherwise be enough. Courts may scrutinize a notice or stipulation if there are concerns with short-circuiting the judicial process, or to protect the interests of people entitled to the court’s special protection, like minors.5 There are also four types of suits that, under Rule 41(a), always require a court to approve dismissal: class actions, derivatives suits, suits involving unincorporated associations, and suits involving receivers.6 And other laws have been read as requiring court approval before certain suits can settle, like employee suits under the FLSA.7 But assuming your case isn’t one of these, then the rules up to this point are fairly clear. If the defendant hasn’t served an answer or a motion for summary judgment, a notice will do. And if the defendant has served either, a stipulation signed by the parties will get rid of the entire suit. If the parties won’t sign, then file a motion. The rules get blurrier, however, when it comes to partial dismissals. What if the plaintiff wants to dismiss some claims but not others? While the Sixth Circuit has seemed to approve of a couple solutions, it has outright endorsed only one. In a 2002 case, the parties had stipulated to the dismissal of some of the claims. The district court ruled on those claims anyway, and the Sixth Circuit – without explicitly considering whether parties can stipulate to partial dismissals – held that the district court lacked jurisdiction to do so.8 But in 2007, the Sixth Circuit spoke August 2017

more clearly: “Rule 41 does not speak to dismissal of claims, and an amendment pursuant to Rule 15 is the appropriate way to dispose of fewer than all claims against a defendant.”9 So in the end, a Rule 15 motion to amend seems like the way to dismiss some claims but not others. Similarly, what if the plaintiff wants to dismiss her claims against some defendants but not against others? Well, the answer’s unclear. In an early case, the Sixth Circuit said that Rule 41(a) applies to the entire suit, and so cannot be used to drop defendants. Instead, the proper approach is a motion to drop a defendant under Rule 21.10 But later, the Sixth Circuit affirmed a district court’s Rule 41 dismissal of all claims against only one of the defendants.11 The Sixth Circuit eventually acknowledged this inconsistency – in a case that was overruled.12 But on balance, it seems like the way to dismiss all claims against less than all defendants is a Rule 21 motion to drop a party. There are countless other twists to Rule 41(a) dismissals, but some ground rules can be laid out. If no one has served an answer or a motion for summary judgment, the plaintiff can dismiss her suit by notice. If either has been served, the plaintiff can dismiss her suit through a stipulation or motion. But if the plaintiff seeks only partial dismissal, Rule 41(a) is not the way to get there. Your client may now have her settlement – but the suit isn’t over just yet. FED. R. CIV. P. 41(a)(1)(A)(i). Aamot v. Kassel, 1 F.3d 441, 444 (6th Cir. 1993). 3 FED. R. CIV. P. 41(a)(1)(A)(ii). 4 Id. 41(a)(2). 5 Green v. Nevers, 111 F.3d 1295, 1301 (6th Cir. 1997). 6 FED. R. CIV. P. 41(a)(1)(A). 7 See, e.g., Williams v. Bevill, No. 4:14-cv-82-TRM-SKL, 2016 WL 773230, at *1 (E.D. Tenn. Feb. 8, 2016). 8 Dillon-Barber v. Regents of Univ. of Mich., 51 F. App’x 946, 951 (6th Cir. 2002). 9 Baker v. City of Detroit, 217 F. App’x 491, 496 (6th Cir. 2007). 10 Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 785 (6th Cir. 1961). 11 Banque de Depots v. Nat’l Bank of Detroit, 491 F.2d 753, 757 (6th Cir. 1974). 12 Letherer v. Alger Grp., L.L.C., 328 F.3d 262, 266 (6th Cir. 2003), overruled on other grounds by Blackburn v. Oaktree Capital Mgmt., 511 F.3d 633 (6th Cir. 2008). 1 2

DICTA

9


By: Ann Short The Bosch Law Firm

Time Out Sally Yates’ composure, confidence, and command of facts and law before the Senate judiciary subcommittee on May 8, 2017, were aspirational and inspirational for me. How, I wonder, does this consummate professional decompress? In contrast to Ms. Yates’ composure, that same day I arrived late and completely stressed for my interview of a dear friend and colleague, Loretta Cravens. For the past couple of years, I have been decorating my home by disaster. Each new disaster brings opportunities to update and remodel; at least, that’s what I keep telling myself. Back in January, my basement flooded while I out of town. The parquet flooring was ruined and had to be scraped off the concrete slab. Then, for about a week, I lived with the constant sounds of fans and blowers in the basement drying everything. To remove the flooring in the basement bathroom, the toilet had to be disconnected and stored elsewhere. Do you see where this going? I had selected tile that is contoured to resemble wooden planks, and when the installation crew arrived, I took the men downstairs to survey the area. About half way down the basement stairs, a foul smell assaulted us, and my newly stripped and cleaned concrete floor was soaked in sewage. We quickly discovered the source of the offending refuge: the toilet drain pipe. I reached a sympathetic soul at Hiller Plumbing who promised to send a technician to diagnose and fix the problem. The diagnosis part went more smoothly than the “fix-it” part. The roots of a tall tree that had been growing peacefully for 20 plus years had invaded my sewer-connection pipe and caused a break; hence the sewage backup. Owing to the second round of fires and wind in Gatlinburg this past May, finding an available tree-removal service was tricky. I cajoled; I pleaded; I offered more money. The last tactic worked. Then it was time for Hiller Plumbing to break out the backhoe. That was one impressive hole. The broken section of pipe was 9 feet underground. I did post a picture of the hole on Facebook and advertised that the hole would be available until noon if anyone had any bodies to dispose of. My favorite response: “I hate deadlines.” Anyway, the sewage problem had not been resolved by the time I arrived late to talk to Loretta. I spent some time recounting my recent home problems. Loretta listened patiently and nodded at appropriate times. She did not interrupt, as she shrewdly guessed that I needed to vent and was not seeking advice. Valuable lesson learned: Venting can help you decompress, particularly if you can vent to a friend. Afterwards, as I listened to Loretta’s stories and recipes for decompressing, two themes emerged. The first theme is mindfulness. Mindfulness, I have read, requires being in the present without judgment. And some research shows that when you train your brain to be mindful, you’re actually remodeling the physical structure of your brain. How we wake up in the morning has a fundamental impact on how the rest of the day unfolds. My reading on mindfulness suggests three ways to start the day. First, curate your first sounds by selecting an alarm that is gentle and soothing. Not gonna happen for me; a gentle and soothing alarm would encourage me to remain asleep. Second, hydrate before you caffeinate. Drink a big glass of water before you move on to coffee or tea. I practice this suggestion, and it does make me feel better. Third, instead of grabbing whatever electronic device is handy, go outside and take in the sky, the weather, a nearby tree.

10

Loretta told me that she starts each day with meditation to reset her brain. And, when time and the weather permit, she likes to sit on her porch and drink her morning coffee. For her, exploring and experiencing nature are essential ingredients for mindfulness. Notes to self: perhaps resetting my brain each morning by grabbing my iPhone to check Twitter isn’t the best plan; and spreading mulch may not be an ideal way to explore and experience nature. Loretta finds that certain rituals also promote mindfulness. She drives rescue dogs. When she does, she focuses total attention on the road and the dogs, not legal problems or the immediate or distant future. As a dog owner, Loretta takes time to enjoy the routine care and feeding of her canine children – those unconditionally loving partners and companions. Loretta shared another favorite ritual that promotes being in the present without judgment – one that I found surprising, yet eminently logical and reasonable. She paints her own nails. It requires her total attention to a small paintbrush and a repetition of movement that relaxes her. I didn’t ask, but I highly doubt that she practices that ritual while attending her beloved Ice Bear games. The second theme Loretta touched on for dealing with stress is organization/simplification. Her desk groans under piles of paperwork and two computer monitors. Even so, every evening before she leaves work, she straightens up her desk, organizing everything so it does not appear so intimidating the following morning. Clutter has been scientifically proven to raise stress levels. And, I just recently read that people who worked in a neat space for 10 minutes were twice as likely to choose an apple over a chocolate bar rather than those who worked in a messy office for the same amount of time. I haven’t updated Loretta on my most recent disaster. A portion of a bedroom ceiling fell because the air conditioning unit in the attic wasn’t installed correctly. Taking my cue from Loretta, I sat on the floor, closed my eyes, and just concentrated on my breathing for 5 minutes. That done, I was ready calmly to find an air conditioning company to fix my problem and start cleaning up sheet rock and insulation. 1

See http://journals.sagepub.com/doi/abs/10.1177/0956797613480186

DICTA

August 2017


L E G A L U P DAT E By: Melanie Reid LMU-Duncan School of Law

PROBABLE CAUSE: INFORMANT INFORMATION & THE JACUMIN/TUTTLE DEBATE At the heart of the Fourth Amendment is the requirement of probable cause. Despite being such an important legal standard, probable cause is poorly defined. Probable cause has been described as a “fluid” concept,1 one in which there is a “substantial basis”2 for the officer to believe that the individual in question has committed a crime or that items related to criminal activity will be found at a particular place. A magistrate typically reviews a search warrant affidavit to determine if the information being offered is sufficiently trustworthy and whether it meets the probable cause standard. Oftentimes, the officer includes in the affidavit hearsay information gleaned from a tipster. Which begs the question: under what set of circumstances is information obtained from an informant/tipster sufficiently trustworthy to merit consideration by the judge? Until recently, the U.S. Supreme Court and Tennessee Supreme Court (TSC) have disagreed on how to evaluate tipster information. Originally, the U.S. Supreme Court addressed this issue in the 1960s in two cases that created what has been called the Aguilar-Spinelli test.3 This standard required a magistrate to review (1) the informant’s basis of knowledge/credibility and (2) the informant’s reliability, i.e., how did the informant get the information and why should we believe this person? If both prongs were satisfied, the information provided by an informant could be used as a basis for probable cause. In 1983, the U.S. Supreme Court became more flexible and decided that, although the Aguilar-Spinelli factors are important, “they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause.’”4 Due to the rigidity of the Aguilar-Spinelli test, anonymous tips previously could not be used as a basis for probable cause because they did not demonstrate knowledge or reliability. In its decision in Gates, the Supreme Court reconsidered the value of anonymous tips. “[S]uch tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise ‘perfect crimes.’”5 Since the probable cause standard is a “practical, nontechnical conception . . . on which reasonable and prudent men, not legal technicians act,” the Court suggested that a totality-of-the-circumstances approach was warranted.6 Magistrates should make practical, commonsense decisions and consider the informant’s basis of knowledge or the anonymous tipster’s detail and description of future activity, the reliability of the informant, and/or any evidence the officer found while corroborating an anonymous tip.7 In 1989, the TSC in State v. Jacumin decided to follow the AguilarSpinelli test rather than apply the newer and more permissive federal Gates standard.8 While the informant was anonymous in Gates, the two informants used in Jacumin were known to law enforcement and had given accurate drug-related information in the past (thus meeting the reliability prong).9 However, the TSC in Jacumin found the basis for the two informants’ knowledge to be lacking in the affidavit and in violation of the Aguilar-Spinelli test.10 While Article I, section 7 of the Tennessee Constitution was previously considered identical in intent and purpose to the Fourth Amendment of the U.S. Constitution,11 the TSC in Jacumin pointed out one essential difference. The Tennessee Constitution includes wording that a search warrant should not be issued “without evidence of the fact committed.”12 This phrase is absent from the Fourth Amendment. Therefore, the TSC felt the Aguilar-Spinelli test was more fitting as the standard by which probable cause should be measured.13

August 2017

Moreover, several other states had also rejected the new federal Gates standard.14 The Aguilar-Spinelli test remained the probable cause standard until the TSC decided State v. Tuttle15 on April 5, 2017. The informant in Tuttle was identified in the affidavit; however, the Court of Criminal Appeals (CCA) found the affidavit failed to establish the basis of knowledge/credibility of the information provided by such an “informant from the criminal milieu.”16 The TSC adopted the Gates totality-ofthe-circumstances test after finding the Aguilar-Spinelli test was being applied too rigidly.17 In Tuttle, the TSC found the informant credible.18 The affidavit included the informant’s basis of knowledge in that the informant admitted to being involved in the same drug trafficking organization as the target and described the target’s involvement in the organization, and law enforcement sufficiently corroborated several aspects of the information.19 Since 1989 and its adherence to Aguilar-Spinelli, the TSC had “the benefit of years of experience applying Jacumin and [] had the opportunity to review numerous cases from other jurisdictions applying Gates.”20 The TSC noted that the more rigid Aguilar-Spinelli factors should not be “viewed as entirely separate prerequisites to probable cause” and observed that Gates improved upon the test and was “much more consistent with the nontechnical, commonsense approach courts already apply when determining whether probable cause exists.”21 In overturning Jacumin, the TSC stated, “[w]e are not convinced that the textual difference between article I, section 7 and the Fourth Amendment ever supported departing from these general principles.”22 “[O]ver time the Fourth Amendment has been interpreted by federal courts in a manner that is entirely consistent with the text of article I, section 7.”23 Tuttle only impacts warrants that include criminal informant information.24 Previously, the Aguilar-Spinelli test was only required in Tennessee cases where an unnamed criminal informant was used and not in cases where information was provided by an unnamed citizen informant.25 Nevertheless, magistrates must remain ever vigilant as they review affidavits that may not spell out the basis that attests to an informant’s reliability and credibility. Corroboration is key in determining probable cause. Tennessee judges must take their responsibility seriously in a post-Jacumin world. Illinois v. Gates, 462 U.S. 213, 232 (1983). Id. at 237. Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). 4 Gates, 462 U.S. at 230. 5 Id. at 238. 6 Id. at 231. 7 Id. at 238, 241. 8 778 S.W.2d 430 (Tenn. 1989). 9 Id. at 436. 10 Id. 11 Sneed v. Tennessee, 423 S.W.2d 857, 860 (Tenn. 1968). 12 Jacumin, 778 S.W.2d at 436. 13 Id. at 437. 14 Id. at 435-36. 15 515 S.W.3d 282, 307 (Tenn. 2017). 16 Id. at 298 (citing State v. Tuttle, 2015 WL 5251990, at *1 (Tenn. Crim. App. Sept. 8, 2015)). 17 Id. at 306. 18 Id. 19 Id. (Continued on Page 12) 1 2 3

DICTA

11


LEGAL UPDATE

(Continued from Page 11)

Id. Id. 22 Id. at 307. 23 Id. 24 Prior to the decision in Tuttle, 193 cases have been identified in which the AguilarSpinelli factors were used to determine probable cause. Only 26 cases have been identified in which the trial court found probable cause in a warrant, and the CCA or TSC reversed due to a failure to meet one of the Aguilar-Spinelli prongs. See State v. Chartrand, 2015 WL 5838713 (Tenn. Crim. App. Oct. 7, 2015); State v. Chism, 1996 WL 181393, at *4-5 (Tenn. Crim. App. Apr. 17, 1996); State v. Coleman, 1992 WL 1962, at *1 (Tenn. Crim. App. Jan. 9, 1992); State v. Davis, 2005 WL 1981807 (Tenn. Crim. App. Aug. 17, 2005); State v. Emerson, 1998 WL 106225, at *6 (Tenn. Crim. App. Mar. 12, 1998); State v. Hinkle, 1999 WL 1133314 (Tenn. Crim. App. Dec. 10, 1999); State v. Johnson, 2001 WL 1218287 (Tenn. Crim. App. Oct. 12, 2001); State v. Moon, 841 S.W.2d 336 (Tenn. Crim. App. 1992); State v. Morales, 2003 WL 21297308 (Tenn. Crim. App. June 5, 2003); State v. Mosely, 2016 WL 309837 (Tenn. Crim. App. Jan. 26, 2016); State v. Oxford, 1994 20 21

12

WL 568276, at *1 (Tenn. Crim. App. Oct. 19, 1994); State v. Pierce, 2015 WL 2102003 (Tenn. Crim. App. May 5, 2015); State v. Pipkin, 2008 WL 4117966 (Tenn. Crim. App. Sept. 4, 2008); State v. Rodrigues, 1990 WL 130096, at *2 (Tenn. Crim. App. Sept. 12, 1990); State v. Rosenboro, 1993 WL 78746 (Tenn. Crim. App. Mar. 18, 1993); State v. Scott, 2008 WL 238128 (Tenn. Crim. App. Jan. 28, 2008); State v. Simpson, 1996 WL 551796, at *9 (Tenn. Crim. App. Sept. 30, 1996); State v. Smotherman, 201 S.W.3d 657 (Tenn. 2006); State v. Taylor, 2002 WL 1482683, at *2 (Tenn. Crim. App. Mar. 15, 2002); State v. Transou, 928 S.W.2d 949 (Tenn. Crim. App. 1996); State v. Usery, 1999 WL 56969, at *1 (Tenn. Crim. App. Aug. 4, 1999); State v. Valentine, 911 S.W.2d 328 (Tenn. 1995); State v. White, 1995 WL 336977, at *4 (Tenn. Crim. App. June 7, 1995); State v. Whitmer, 1994 WL 585418 (Tenn. Crim. App. Oct. 20, 1994); State v. Whittington, 2008 WL 1891450 (Tenn. Crim. App. Apr. 29, 2008); State v. Wilkins, 1995 WL 144247, at *3 (Tenn. Crim. App. Mar. 29, 1995). Many thanks to my research assistant Noah Patton for spending countless hours on this project. 25 State v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993).

DICTA

August 2017


MANAGEMENT COUNSEL: LAW OFFICE 101 By:

Brandon L. Morrow

Kramer Rayson LLP

UNEMPLOYMENT HEARINGS: IMPORTANT PRECURSORS TO LITIGATION Representing a client in an unemployment appeals hearing does not carry the prestige or excitement that may come with a highly publicized jury trial. To my knowledge, there have never been any courtroom dramas focused on an unemployment hearing, and John Grisham never seems to make them the center of his novels. The reason is simple: these hearings just don’t seem all that exciting. However, they are important not just because of their immediate impact regarding the receipt of unemployment benefits, but because of the significant influence they can have on related employment litigation. The Appeals Tribunal is the second level of decision-making for an unemployment insurance claim. If a party does not agree with the agency’s initial determination, which is based on limited written responses by both employer and claimant, that party can file an appeal, and the Appeals Tribunal will conduct a hearing. Here, we share some practical tips about handling unemployment hearings, keeping in mind that these hearings are not Las Vegas: what happens there, doesn’t stay there. Stay Focused In most unemployment hearings, the issue is whether the claimant was discharged for “misconduct connected with the claimant’s work.”1 For purposes of the hearing, “misconduct” includes: • Conscious disregard of the rights or interests of the employer; • Deliberate violations or disregard of reasonable standards of behavior that the employer expects of an employee; • Carelessness or negligence of such a degree or recurrence to show an intentional or substantial disregard of the employer’s interest or to manifest equal culpability, wrongful intent or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employee’s employer; • Deliberate disregard of a written attendance policy and the discharge is in compliance with such policy; • A knowing violation of a regulation of this state by an employee of an employer licensed by this state, which violation would cause the employer to be sanctioned or have the employer’s license revoked or suspended by this state; or • A violation of an employer’s rule or established policy.2 However, “misconduct” does not include inefficiency, poor performance due to inability or incapacity, ordinary negligence, or good faith errors in judgment or discretion.3 In preparing for the hearing, your testimony and evidence should all be aimed at this issue. Oftentimes, parties attempt to foray into other issues that have little or no bearing on whether the claimant was terminated for “misconduct.” This is especially the case when there is (or will be) related litigation. However, be sure to keep your testimony relevant to the misconduct issue, or you will likely draw the ire of the hearing officer. Hearing officers often hear multiple appeals each day, with only a limited amount of time for each, so they usually do not suffer testimony that strays into other, non-relevant matters. Preparing For and Conducting the Hearing Unemployment appeals hearings may be conducted in-person or via telephone. My experience has been that if several documents will be introduced as evidence, an in-person hearing is more efficient. It

can be difficult to get everyone on the same page (literally) if you’re communicating through a conference call. If the hearing is not a document-intensive one, then a telephone conference may be the easier option from a logistical perspective. If you intend to utilize documents (and you should) during the hearing, you must send a complete copy (with numbered pages) to the opposing party and to Appeals Tribunal at least 48 hours prior to the scheduled start of the hearing. Keep in mind that prior submission of documents to the Agency during the initial claims process does not satisfy this requirement. As with any type of hearing or trial, you will need to line up your witnesses. Be sure to proffer only those individuals with first-hand knowledge. Hearing officers will obviously afford more weight to testimony that comes from a witness with first-hand knowledge about the reason for the claimant’s termination. And, as mentioned above, hearing officers generally will not tolerate testimony that goes beyond the misconduct issue, so you (or your witness) will likely be cut off and asked politely to “move it along.” In this regard, while a human resource manager may have prepared the separation notice, if he or she does not have any first-hand knowledge about the reason for the claimant’s termination, they are likely not going to be a very effective witness. Instead, focus your efforts on direct supervisors or co-workers. Once the hearing is complete, the appeals hearing officer will make “findings of fact” based on the evidence presented. If you disagree with the Appeals Tribunal’s decision, you have the right to appeal that decision in writing to the Office of Administrative Review. Importance of Hearing Evidence to Related Litigation Oftentimes a claim for unemployment benefits is a precursor to what may become more lengthy and detailed litigation (i.e., claims for employment discrimination, etc.). Rest assured, that the sworn testimony from an unemployment hearing can help you (or haunt you) in subsequent proceedings. During your hearing preparation, ensure that your witnesses understand that all testimony is under oath. What they say in the hearing will likely be utilized later in depositions or at trial. From the employer’s perspective, consistency is key. The separation notice and the testimony provided at the hearing should be consistent regarding the stated reason for discharge. Nothing can harm an employment discrimination trial defense more than when an incompatible position was taken in an unemployment hearing. Likewise, employers should refrain from taking positions on the unemployment benefits issue that will not withstand scrutiny (i.e., cross-examination) if the matter enters litigation. Unemployment hearings can be a great pre-litigation discovery tool if conducted properly. They give counsel the opportunity to assess the credibility of the witnesses (and potential plaintiff ) at an early stage. The documents used as evidence in the hearing often become key deposition and trial exhibits. And oftentimes, the hearings give you the opportunity to have an early roadmap of the opposing party’s trial strategy. While the benefit amount at issue may not always be consequential, the evidence presented at the hearing is, if for no other reason than the effect it may have on subsequent litigation. Tenn. Code Ann. § 50-7-303(a)(2)(A). Tenn. Code Ann. § 50-7-303(b). 3 Id. 1 2

About this column: “The cobbler’s children have no shoes.” This old expression refers to the fact that a busy cobbler will be so busy making shoes for his customers that he has no time to make some for his own children. This syndrome can also apply to lawyers who are so busy providing good service to their clients that they neglect management issues in their own offices. The goal of this column is to provide timely information on management issues. If you have an idea for a future column, please contact Cathy Shuck at 541-8835.

August 2017

DICTA

13


WALKING THE WALK : LESSONS LEARNED I N T H E E A R LY Y E A R S O F L E G A L P R A C T I C E By: Sarah M. Booher, Esq. The Law Offices of Ogle, Elrod, & Baril

PURSUING EXCELLENCE; DOING WHAT YOU LOVE “At one of the very first law school dinners I attended as a 1L, Dean Doug Blaze made two comments that have stuck with me to this day. Literally. I still have them on electronic post-it notes on my laptop. First, he told us to actively search for what we love about the law and do it. Second, he told us to pursue excellence, not perfection.”

Brennan Wingerter’s career is a testament to Dean Blaze’s words and her own tenacious belief in them. She has spent her time since she graduated from the University of Tennessee College of Law’s class of 2012 actively searching for, refining, and discerning what she loves about the law and how best to do it. Originally from New Orleans, Louisiana, and a graduate of LSU with a major in Sociology, Brennan entered law school wanting to be a public defender, but by the end of her 2L year, Brennan thought she wanted to clerk and teach. “I liked my legal research and writing classes, and then I took an arbitration class that focused on an employment/labor law case file. When I wrote the arbitrator’s opinion, I realized I love legal writing no matter what the topic is.” “My judicial externship opened the door to clerking and was my first experience in practice with the appellate courts. For someone who knew she wasn’t good at or interested in being in court all the time, clerking was a great option. But I didn’t really think through the fact that clerking is very isolating, and it isn’t necessarily long term because judges eventually retire. There was also a lack of advocacy. I was helping the justices decide the law more than I was arguing it. Being able to go with Judge Wade to LMU was exciting, because I was finally going to be able to teach. I really enjoy it, but after two years, I realized I miss the ‘doing’ part of being a lawyer. I missed writing and seeing real cases and doing

14

something with them and making a difference with what I had. I missed working on real cases with real litigants.” About a year ago, Brennan sat back and had a Blaze moment: What were her favorite parts of each of those experiences? How could all these very specific interests in the law culminate into a professional pursuit of excellence? And so East Tennessee Appellate Litigation (“ET AL”) was born. According to her firm’s website, ET AL is a regional law firm dedicated to the advocacy of cases pending review by the Tennessee Supreme Court, Court of Appeals, and Court of Criminal Appeals. “I can handle civil or criminal appeals, complex trial court motions and memoranda, amicus briefs, ghost writing, or I can take the whole case up.” And her firm’s tagline? “We pursue excellence in every appeal.” “The advice I give my new law school students and students studying for the bar exam is the same advice I give myself or any other new attorney who finds themselves intimidated” by the looming and daunting tasks before them. “Take one day at a time, one task at a time, one thing at a time. Don’t get overwhelmed by thinking about classes or the bar exam or everything that needs to happen getting a firm up and running. We can’t study and work all the time. It’s a mental game of endurance. We have to eat right and exercise and maintain relationships, too. We have to have balance.” “I didn’t take any law firm management classes in school. So what I’ve learned post-law school is the business side of being an attorney – networking, negotiating, actually building a firm from scratch - an exercise in humility and not being afraid of sounding dumb! But whether it was when I first started teaching or more recently setting up my practice, I have had the benefit of being within the Knoxville community. I was worried it would be hard for me as a solo female attorney, but all my clients thus far have been male and they’ve been enthusiastically supportive, and the support network and encouragement from other female attorneys is amazing. Same when I started teaching. A lot of the professors who reached out to help me were male professors. So I definitely don’t feel like I’ve been held back as far as the female aspect of lawyering is concerned.” “Honestly, I think the gap for the different generations of attorneys now lies in technology. I know attorneys who still only use the phone and write formal letters. They won’t use emails. On the other side of it are my students who will soon enter the legal community. They are using apps that I’ve never heard of. So there’s already a gap between students and professors, and that gap will only widen as they begin their practice and interact with older, more established attorneys. It’s a learning process for all of us.” Luckily, whether it’s setting up a firm or navigating the everchanging waters of technology, Knoxville is full of advice and mentorship opportunities. “Anyone will tell you anything you want to know. It’s awesome. The community has made it possible for me to make a career doing what I love about the law.”

DICTA

August 2017


THANKWORTHY By: Melissa B. Carrasco Egerton, McAfee, Armistead & Davis, P.C.

IT’S GOING TO BE OK Mother was wrong. Making sure to wear clean underwear was the least of this lawyer’s worries. It was month six of what Mother kept telling all of the neighbors and relatives was going to be a very promising legal career. Month six is when you still think your grades in law school actually matter. Month six is when you find out that you are going to court. Exactly what does a partner trust a six-month-old attorney to do in court: argue a Motion for Substitution of Counsel. “Argue” may be too strong a word for this context. Other words come to mind, such as “present” or “tender” or perhaps the classical word “proffer.” It wasn’t as though the Motion was going to be opposed, and basically, the assignment was to show up and not embarrass oneself or the Firm that was kind enough to issue a paycheck every month. But, this Motion was in the Bankruptcy Court for the Eastern District of Tennessee, and the appearance would be in front of the Honorable Richard Stair, Jr. The Motion was filed (twice). There was this whole thing about how, when filing things via ECF, you have to select the correct ECF document from your computer, and if you click “submit,” you don’t get a do-over without first calling the Court and confessing your faults to the clerk. Then you get to file a “Withdrawal of Document” to withdraw the first thing you filed and actually file the document you meant to file, all of which generates e-mail notice after e-mail notice to everyone on the ECF service list so that everyone connected to this case could ponder just how low the bar of competency is set. But, no matter. Mother always says that tomorrow is another day. Or maybe that was Vivien Leigh; again. . . no matter. On goes the standard lawyer uniform: black pencil skirt, white collared shirt, black jacket, understated, but elegant, string of white pearls, pearl stud earrings, and to finish it off, a pair of black pumps. These were no ordinary pumps. They were black patent leather, pointed closed toe, three-inch covered heel, Nine Wests bought with this lawyers’ very first “lawyer” paycheck. They were power shoes designed for the professional. The pumps carried the lawyer into the courtroom. Actually, at first, they carried her across the rotunda to the metal detector where, as it turns out, the Marshals want to see some photo ID. So, they carried her back across the rotunda, out the door, and back to the office to grab the drivers’ license and ask the assistant to “remind me to figure out where the heck everyone gets one of those badges that gets them in court.” Back across the rotunda for the third time in fifteen minutes, and this time, the Marshals let her through. The case is called, and the pumps go straight to the podium where Judge Stair was kind enough to let her know that he couldn’t grant the Motion. The attorney already on the case had to file a Motion to Withdraw before the Motion for Substitution could be granted. As Judge Stair put it, the proverbial cart was before the horse. For the record, there aren’t that many dignified or professional ways to respond to that kind of admonition in open court. So, file in her hand and lump in her throat, the lawyer crept through the enormous wooden doors of the Courtroom trying to remember what other career options had appeared on that freshman aptitude test. For the fourth time, those pumps went across the rotunda and through the glass doors to the courtyard. Except this time, only one of the pumps made it. Looking back through the doorway, there was a single, black patent August 2017

leather, pointed closed toe, Nine West with its three-inch covered heel firmly stuck in the floor grate at the doorway of the rotunda. The Marshals saw it. Everyone saw it. There were only two options: retrieve the pump or never go back to the office again. There is no surreptitious or even slightly dignified way to extract a three-inch covered heel from a floor grate at the entrance to a marblefloored rotunda, while wearing a pencil skirt. But, after some tugging, the runaway was sprung from its trap and right about then, a woman in her own pair of black pumps walked up. All she said was, “It’s going to be OK.” I didn’t make eye contact, but I could see that she had one of those amazing badges that get you into the Court without all of the formalities usually reserved for airports. So, if I have sat next to you in Court, passed you on the street, or sat with you at a CLE, I am sorry for not recognizing you. I should have said, “Thank you.” Because that simple, “It’s going to be OK” was enough to put my foot back in that pump, head back to the office, and a few weeks later, walk back across the rotunda (stepping carefully over the floor grate), to re-enter the Courtroom, and finally get my Motion for Substitution of Counsel granted. As it turns out, Mother was right after all: “Let no one ever come to you without leaving better and happier.” Mother Teresa of Calcutta. For a brief act of kindness and sharing a few words that restored a modicum of dignity to a stranger in an awkward situation, You are truly thankworthy.

DICTA

15


MALES AS VICTIMS OF SEX TRAFFICKING IN EAST TENNESSEE Public awareness of the human trafficking epidemic in East Tennessee has been on the rise in recent years. Local task forces have been formed, and citizens are more aware of the specific issues involving commercial sexual exploitation. However, the tendency has been to focus on female victims, as females are more commonly victims in human trafficking cases. What are the issues faced by males who are trafficked, assaulted and abused for commercial sexual exploitation? Males make up nearly 20% of all human trafficking victims in Tennessee and nationwide.1 Based upon national numbers, a child is sold for commercial sex every two minutes.2 While twenty percent may seem inconsequential, when considering the staggering number of victims affected, a significant number of males are exploited and victimized by human trafficking each year. Reports published by the Tennessee Bureau of Investigation suggest that the human trafficking epidemic is just as prevalent in Tennessee as it is in other parts of the nation.3 In fact, within the East Tennessee region, Knox, Sevier, and Carter Counties have reported the highest number of human trafficking/incidences of commercial sexual exploitation.4 It is clear that not only are males forgotten in terms of creating resources and programs for victims, but also very little information and data exists relating to victims who are male. Most searches have yielded responses pertaining to male perpetrators or “Johns,” which in itself implicates the stigma that human trafficking and commercial sex acts are committed by males against females only. Recent Legislative Action Tennessee lawmakers have enacted several pieces of legislation to help combat human trafficking and commercial sex acts in Tennessee. The current reading of Tennessee Code Annotated section 39-13-309 prohibits the trafficking of commercial sex acts.5 A person has violated the statute if he/ she knowingly subjects, attempts to subject, benefits from, or attempts to benefit from, another person’s provision of a sexual act; or recruits, entices, harbors, transports, provides,

16

purchases, or obtains by any other means, another person for the purpose of providing a commercial sex act.6 Violation of the statute is a Class B felony; however, if the victim is a minor under the age of fifteen or when the offense occurs within a school zone, a violation is enhanced to a Class A felony.7 The legislature has proposed and enacted many provisions in recent years in an attempt to strengthen state laws to protect victims of human trafficking within Tennessee. These changes became comprehensive beginning in 2013, when the legislature enacted nearly a dozen pieces of legislation relating to human trafficking and commercial sex crimes. Within those bills, statutes relating to racketeering and gang offenses were amended to broaden definitions to include commercial sex acts as a qualifying offense.8 Criminal penalties for promoting prostitution from a minor increased, changing the offense to a Class B felony with an enhancement to Class A if the victim of the offense is younger than 15 years of age.9 House Bill 920 abolished the ability of defendants to assert defenses based upon mistake or ignorance of the age of the victim in cases involving prostitution involving a minor and sexual solicitation of a minor.10 Further, House Bill 919 enacted Section 4-33001 – 3005, which created the Tennessee Human Trafficking Task Force.11 The Human Trafficking Task Force is comprised of representatives from state agencies, legislators, community leaders, researchers, law enforcement, survivors, and subject matter experts.12 These individuals are tasked with bringing awareness to the human trafficking epidemic in Tennessee and assisting state government and local communities in effecting changes to help prevent these crimes before they occur.13 The Task Force also focuses on public education to encourage communities to be more vigilant as to possible warning signs that they may encounter within their daily lives.14 In 2014, the legislature continued to enact changes to keep up with the growing problem with human trafficking. Nearly all changes in 2014 included amendments to the prostitution statutes, including the addition of enhanced penalties in instances involving a victim under the age of 18.15

DICTA

Since 2015, Tennessee legislative sessions have brought about significant changes relating to human trafficking and commercial sex acts. Recent enactments have given law enforcement the ability to transport sex crime victims to housing facilities and shelters, and have provided for free forensic medical examinations for victims.16 These medical examinations are vital to collecting evidence to prosecute offenders. The new provision alleviates the burden on the victim to cover the expense of the exam.17 Additionally, the Tennessee Bureau of Investigation has now been given jurisdiction over human trafficking crimes, which essentially allows investigators and detectives to access a joint statewide network in combatting these issues rather than victims having to rely upon local police departments who may not have adequate resources to dedicate specifically to commercial sex crimes.18 Focus on Female Victims Despite these numerous changes in legislation, the statutes and amendments do not distinguish between the gender of victims. Rather, they have remained gender neutral, protecting both female and male victims. However, media and scholastic communities have focused on female victims, even though approximately 20% of human trafficking victims are male.19 The focus on female victims has created a gap in resources available to males affected by the human trafficking epidemic. While Tennessee is making strides to offer resources to victims, currently the state has very few housing/shelter options for victims in general. Of those facilities, it appears that only two statewide are capable of housing male victims. While Middle and West Tennessee have housing/shelters available for male victims, none of these facilities are located within the East Tennessee region. The Grow Free Tennessee foundation, in coalition with the Community Coalition Against Human Trafficking, reports that they intend to launch a safe house in the fall of 2017 to serve human trafficking victims in the upper East Tennessee region.20 The safe house project will provide a wide array of holistic August 2017


COVER STORY By: Shelly Page LMU Duncan School of Law

aftercare services; however it is unclear as to whether the housing facility will be equipped to accept both male and female survivors.21 In addition to housing resources, many local organizations, including Grow Free Tennessee, offer aftercare resources including counseling services, drug and alcohol treatment programs, domestic abuse counseling, and transportation back to the victim’s family, if appropriate.22 While these services seem to be available to victims of both genders, it is evident from the information available on pamphlets and websites that the services are geared toward female victims. Training and educational programs are titled “In Her Shoes” and services described often speak of women leaving male abusers.23 It is understandable that services will be provided to the population that is most affected, but does the focus on female victims suppress a young man’s willingness to seek the help that he needs after being victimized? It is certainly a question that should be considered moving forward as our communities devote more time, energy, and funding into creating solutions for the staggering number of victims in East Tennessee. Raising awareness and advocating for male victims within the legal community can make a substantial change in our broader community, as young men are routinely affected by human trafficking in East Tennessee and throughout the state. The End Slavery Tennessee website provides a testimonial of a local seventeen-year-old male victim.24 This young man was sexually abused while in the seventh grade and has not been enrolled in school since the abuse occurred.25 The resources and assistance programs in place offer very little help to male victims such as these. A change in the criminal statutes, while a step in the right direction, may or may not deter offenders from committing sex crimes. Compassion, attention and funding are necessary to create and provide services to victims in similar situations, which could allow male victims to receive counseling and support to remain in school and maintain a sense of normalcy following tragic situations. All citizens of Tennessee matter; as such, we as leaders in our communities must act to ensure all citizens of this state receive adequate services when and if they are ever victims of crime.

August 2017

1 S. Heather Duncan, Unchained: Inside the Struggle Against Sex Trafficking in Knoxville (Nov. 9, 2016), KNOXVILLE MERCURY, http://www.knoxmercury. com/2016/11/09/unchained-inside-struggle-sextrafficking-knoxville/. 2 TENNESSEE BUREAU OF INVESTIGATIONS, Human Trafficking, https://www.tn.gov/tbi/topic/humantrafficking (last visited June 21, 2017). 3 TENNESSEE BUREAU OF INVESTIGATIONS, The Geography of Trafficking in Tennessee (2013), https:// www.tn.gov/assets/entities/tbi/attachments/2013%20 The%20Geography%20of%20Trafficking%20in%20 Tennessee.pdf. 4 Id. 5 TENNESSEE CODE ANNOTATED § 39-13-309. 6 Id. 7 Id. 8 SB 1038, HB 358 108th Sess (Tenn. 2013). 9 SB 1032, HB 520 108th Sess (Tenn. 2013). 10 SB 1031, HB 920 108th Sess (Tenn. 2013). 11 SB 1036, HB 919 108th Sess (Tenn. 2013). 12 TENNESSEE STATE GOVERNMENT, State Human

DICTA

Trafficking Task Force Recognizes National Human Trafficking Awareness Day, (Jan. 9, 2015), https://www. tn.gov/news/36850. 13 Id. 14 Id. 15 SB 1815, HB 2326, S. 2564, HB 2415 108th Sess (Tenn. 2014). 16 SB 981, HB 1239 109th Sess (Tenn. 2015). 17 SB 981, HB 1239 109th Sess (Tenn. 2015) 18 SB 16, HB 275 109th Sess (Tenn. 2015). 19 Duncan, supra note 1. 20 COMMUNITY COALITION AGAINST HUMAN TRAFFICKING, After Care, https://growfreetn.org/ services/#aftercare (last visited June 21, 2017). 21 Id. 22 Id. 23 COMMUNITY COALITION AGAINST HUMAN TRAFFICKING, Services, https://growfreetn.org/services/ (last visited June 21, 2017). 24 END SLAVERY TENNESSEE, https://www.endslaverytn. org/stories/ (last visited June 21, 2017). 25 Id.

17


YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law

ROBOCOP IS ALMOST HERE Welcome to the inaugural installment of Your Monthly Constitutional, which will explore interesting constitutional issues from Gay Rights to Gun Rights . . . and, sometimes, robots. What does the United States Constitution say about robots? Well, that would be nothing. Nor does it say anything about trains, planes or automobiles, but each of those technological innovations has profoundly impacted our constitutional law, and robots will do the same. But don’t take my word for it. My colleague, Professor Melanie Reid, just recently presented a paper entitled “Rethinking the Fourth Amendment in the Age of Supercomputers, Artificial Intelligence, and Robots.” Melanie makes two major points: 1) autonomous machines capable of performing many of the duties of police officers will profoundly impact Fourth Amendment jurisprudence; and 2) such machines – robots – are almost here. Let’s take those points in reverse order. First: the robots really are almost here. Indeed, some may already be in your home. Are your floors vacuumed by a Roomba? Roomba decides where to vacuum without human oversight. It’s a relatively simple robot – or at least we think it is. Recent models have Wi-Fi and can communicate with another robot you may have, Alexa. Do you really know what else Roomba is doing while it picks up your cracker crumbs? Are Roomba and Alexa watching you? You might scoff, especially if you’re old enough to remember that old Eighties movie, Robocop. It was set in a dystopian near future, in that city everyone loves to hate, Detroit. The title character was a cyborg – half-human, half-machine, who . . . well, let’s just say he had issues. The movie also featured an entirely robotic cop who malfunctioned in spectacular fashion – it’s a great scene, by the way. But what was science fiction thirty years ago is now nearly science fact. Google is testing selfdriving cars, as are several other companies. A self-driving car makes decisions. On its own. It is a four-wheeled robot. Machines that can make decisions of an even higher order, indeed, machines that can learn, are already being designed and built. Did you catch the episode of Jeopardy where IBM’s computer, Watson, beat two human Jeopardy champions? That was six years ago. One of the defeated humans was Ken Jennings, who had the longest string of victories in the history of the show. When he wrote his Final Jeopardy answer, Jennings added, “I for one welcome our new computer overlords.” Melanie’s paper recognizes this imminent technological transformation and considers its implications for the Fourth Amendment, which, as I’m sure you know, prohibits “unreasonable searches and seizures,” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” Let’s talk about that first phrase, “unreasonable searches and seizures.” More than two hundred years of case law has struggled with the question of what is “unreasonable” behavior by a cop – a human cop. For example, a human cop can smell marijuana, hear someone screaming, or see things in plain view. But robots will no doubt be able to smell, hear, and see things that human beings could never perceive. Take plain view – a human cop can’t look into a second-story window – but a robot with a mast-mounted camera can easily do so. It would be even easier for a flying robot – and remember, drone technology is already available at your friendly neighborhood Best Buy. So what’s “unreasonable” now? On a more practical level, the simple efficiency of robot technology would fundamentally change police procedures. Today, a cop who

18

wants a warrant has to write up an affidavit, find a judge, and convince him or her of probable cause. All of that takes time, which is not necessarily a bad thing, since time provides an opportunity for reflection and judgment. A robotic cop could apply for a warrant pretty much instantaneously, via wireless technology. Are we comfortable with such rapid robotic judgment? Are we comfortable enough that we will allow robots to provide an “oath or affirmation?” Many other Fourth Amendment issues will, no doubt, arise as the robots arrive. If you’re interested in such matters, check out Melanie’s article, which will appear soon in the West Virginia Law Review,1 or listen to her interview on my public radio show. Just Google Your Weekly Constitutional and our podcast site will pop up on your screen. Melanie’s interview is one of the first episodes you’ll see. In the meantime, try not to offend your Roomba. 1

119 W. Va. L. Rev. 863 (Spring 2017).

DICTA

August 2017


barrister bullets MONTHLY MEETINGS Everyone is invited to attend the Barristers’ monthly meetings, which are held on the second Wednesday of every month beginning at 5:00 p.m. at the Bistro by the Bijou (807 South Gay Street). The next meeting will be held on August 9, 2017. There are many opportunities to get involved, so please contact Barristers President Samantha Parris (samantha@ sparrislaw.com) or Vice President Mitchell Panter (tmp@painebickers. com) for more information. ATHLETICS This year’s charity golf tournament will take place on October 30, 2017, at Holston Hills Country Club. Registration information included as a DICTA insert. We are also currently seeking sponsors for the event. If you or someone you know is interested in sponsoring, please contact the Athletics Committee co-chairs, Luke Ihnen (lihnen@londonamburn. com) or Jeremey Goolsby (jgoolsby@londonamburn.com).

August 2017

VOLUNTEER BREAKFAST The Barristers Volunteer Breakfast Committee needs sponsors and volunteers for the year. The Volunteer Breakfast is a recurring event on the 4th Thursday of each month at 6:15 a.m. that provides and serves breakfast at the Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, TN 37917. We are looking for a sponsor for the November 23rd Volunteer Breakfast. We are looking for 4-5 volunteers for the August 24th Volunteer Breakfast. This is a great chance to partner with members of your firm, involve your staff in a groups philanthropic efforts, or serve the community with your law school classmates or friends. If you would like to sponsor or volunteer, signup forms are available on the KBA’s website. If you have any questions, please e-mail committee co-chairs Paul Wehmeier at (865) 546-7000 or Matt Knable at (865) 360-5044.

DICTA

19


OF LOCAL LORE & LAWYERS By: Joe Jarret University of Tennessee, Department of Political Science

The Downtown Knoxville Post Office & Courthouse: A Functional Treasure It is a building that rose from land once owned by James White, the American pioneer and soldier who founded Knoxville. It is an enduring, solid edifice that has seen legions of lawyers march through her granite halls. Within its walls, while mail was being sorted on one floor, the drama of high-profile cases involving everything from bootlegging to civil rights were unfolding on the upper floors. It is also the stuff of literature, having been twice mentioned in Cormac McCarthy’s 1979 novel, Suttree.1 It is the downtown Knoxville Post Office and Courthouse, and as one local architect mused, “they just don’t build ‘em like that anymore!” Like many old buildings, there exists a bit of folklore when it comes to the history of the Knoxville Post Office and Courthouse. Although this magnificent building cost $1 million to construct at the height of the Depression, it was not a part of the New Deal, the group of U.S. government programs of the 1930s started by President Franklin D. Roosevelt to help the country recover from the economic problems of the Great Depression. Rather, several years prior to its construction, Senator Kenneth McKellar and Congressman J. Will Taylor, both from Tennessee, managed to secure federal funding for the construction of a new post office and courthouse for Knoxville.2 In 1930, Knoxville architects Baumann and Baumann were selected to design the building. The A.W. Kushe Company of Detroit was hired as the contractor for the new building. Construction began in December 1932, and was completed in February 1934. On February 15 of that year, the new building was dedicated in a ceremony attended by Congressman Taylor and Knoxville Mayor John O’Connor. The new post office opened about a month later, on March 11, 1934.3 Although the building’s eclectic design adds greatly to its beauty, most people agree that the fact it was constructed using six different types of Tennessee marble, and that the exterior is clad mostly in Tennessee “pink” marble (its distinctive pink hue is most evident on rainy days), makes it one of the most beautiful of our historic buildings. The interior of the building contains numerous Art Deco4 elements, including four eagle statues carved by Candoro Marble Works sculptor Albert Milani,5 grillwork with floral motifs, floral patterns in the entrance transoms, aluminum spandrels on the upper floors with floral and zigzag patterns, and a plaster ceiling with aluminum floral and zigzag moldings. One of this grand building’s features that has always fascinated me ever since I argued a case before the Tennessee Supreme Court is the extraordinary mural adorning the 25-foot high ceiling of the courtroom. New York artist John von Wicht6 was commissioned to paint a colorful scene worthy of the building. His work depicts a goddess of justice reclining above the mountains and lakes of East Tennessee. She holds the traditional scales of justice in one hand and a book marked with the Latin word “LEX” in the other. I was so taken with the mural, that, noticing no one had yet to enter the courtroom, I laid on my back to get a better view. Before I got up I heard a voice (that turned out to be a Tennessee Highway Patrolman) behind me boom, “tough day in court, counselor?” Oh well! Although the building was designed to be used as both a courthouse and Post Office, it was presumed by the Federal Government that it would serve primarily as a central postal facility, and as such, included

20

rooms on the basement level for Postal Service administrative offices. Presently, those administrative offices are occupied by the Knoxville Bar Association. The first floor was and continues to be the main post office lobby, albeit the brass service windows have been replaced with a service counter. The 1,500 bronze mailboxes still exist, as does a mail-sorting facility. The building served as Knoxville’s main post office until the 1980s and still houses the downtown branch. And, as most local lawyers are aware, the courthouse section of the building houses the Tennessee Court of Criminal Appeals, The Tennessee Court of Appeals for the Eastern Section, and occasionally, the Tennessee Supreme Court.

Getting back to Cormac McCarthy’s 1979 novel, Suttree, in one instance, the title character traverses the building’s long ground-floor corridor to briefly escape the bitter cold. In another scene, an itinerant mountain wanderer known as “the Goatman” is chastised by a police officer for allowing his goats to graze on the building’s lawn.7 To this day, I wonder how many people walk by this grand building without so much as giving it a sideways glance. So, the next time you’re downtown, take a bit of time to give this grand building a look, both inside and out. You’ll be glad you did.

1 Suttree is a semi-autobiographical novel by Cormac McCarthy, published in 1979. Set in 1951 in Knoxville, Tennessee, the novel follows Cornelius Suttree, who has repudiated his former life of privilege to become a fisherman on the Tennessee River. 2 National Park Service (2008-04-15). “National Register Information System”. National Register of Historic Places. National Park Service. 3 http://knoxheritage.org. 4 Art Deco, also called style moderne, movement in the decorative arts and architecture that originated in the 1920s and developed into a major style in western Europe and the United States during the 1930s. https://www. britannica.com/art/Art-Deco. 5 Albert Milani was a world renown sculptor born in Fossola, Carrara, Italy, on April 12, 1892. http://www.candoromarble.org. 6 John von Wicht (1888-1970), was a German born Abstract Expressionist painter who immigrated to the United States in 1923. http://www. caldwellgallery.com/bios/vonwichtbio.html. 7 Cormac McCarthy, Suttree (Vintage, 1992), pp. 168, 195.

DICTA

August 2017


LEGAL ALMANAC By: Chris McCarty Lewis, Thomason

WHEN SECURITY MET SOCIETY To understand what happened on August 14, 1935, you first have to understand 1935 in general. The United States economy was six years into the Great Depression, with the unemployment rate hovering around 17 percent. For comparison’s sake, the U.S. unemployment rate peaked at 10 percent during our most recent recession. So, on August 14, 1935, you see passage of the Social Security Act. President Franklin Roosevelt called it a “patriotic” act, which makes sense as it remains the most recognized of his New Deal programs. But even President Roosevelt admitted then “we can never insure one hundred percent of the population against one hundred percent of the hazards and vicissitudes of life.” As we look back on it now more than 80 years later, was the Act a failure or success? Depends on who you ask. In 2015, Elizabeth Bruenig, writing for New Republic, said “without Social Security, the overall poverty rate in America would have approached 25 percent, but with Social Security was roughly 15 percent.” According to the Pew Research Center though, “the old-age and survivors fund is expected to be depleted in 2035.” Whether it has been an obvious positive or a train running us off the track remains to be seen. Yet no one can deny the effect the Social Security Act had on shaping this country from August 1935 forward.

August 2017

DICTA

21


ASK MCLAWYER

Question: In the April issue of Dicta, we addressed the issue of whether an outof-state judgment properly domesticated in Tennessee would expire ten years after it was originally entered or ten years after it was domesticated. A diligent and zealous local attorney helped shed more light on the issue. Answer & Analysis: There is no Tennessee case law on point for the exact issue, including no Tennessee Supreme Court case, which means the issue is not settled law. However, a local attorney who practices in debt collection has responded to the article to clarify any confusion and aptly pointed out some relevant case law. In The Oceanics Schools, Inc. v. Barbour, 112 S.W.3d 135 (Tenn. Ct. App. 2003), Barbour argued that the statute of limitations barred a second lawsuit filed in 1999 seeking to pierce the corporate veil and hold him personally liable for a judgment entered against Operation Sea Cruise, Inc. in Portugal in 1979 and domesticated in Tennessee in 1997. The Court of Appeals concluded that the case focused “clearly” on the domesticated judgment, not on the underlying original cause of action in Portugal, and, thus, it was controlled by the ten-year statute of limitations. Oceanics Sch., Inc., 112 S.W.3d at 145-46. The local attorney informed us that the South Carolina Court of Appeals addressed this issue directly in Commercial

Credit Loans, Inc. v. Riddle, 512 S.E.2d 123 (S.C. Ct. App. 1999) and that Federal Courts have addressed the issue under 28 U.S.C. § 1963. See Home Port Rentals v. Int’l Yachting Group, Inc., 252 F.3d 399 (5th Cir. 2001). The local attorney also pointed out, and we agree, that Hart v. Tourte, 10 S.W.3d 263 (Tenn. Ct. App. 1999), the case cited in the April Dicta article, does not directly address the expiration of a properly registered foreign judgment, instead addressing the related issue of whether the action to register a foreign judgment was timely. As stated in the original article, the Court of Appeals ruled that because the creditor had timely renewed the valid judgment in California, the creditor could domesticate the judgment in Tennessee. Id. at 266-67. The local attorney informed us that some courts have made the opposite ruling on this issue and that the decision usually turns on the status of the renewal in its home state but that this issue does not impact the time period to execute on the judgment once you have successfully registered it. In conclusion, McLawyer would encourage any lawyer to file early if there is a question on the judgment expiring, understanding that although the law is not settled in Tennessee, case law suggests that the statute time is measured from the date of domestication of the foreign judgment. As a side note, this article is limited to 500 words and is meant to supplement your knowledge. It should not be used as a substitute for your own legal research and review of case specific facts.

“Ask McLawyer” is dedicated to answering questions on procedure, evidence and trial tactics in a variety of venues and subject matter. Should you have a question for McLawyer, please address the question to Ask McLawyer, c/o Marsha Watson, KBA, 505 Main Street, Suite 50, Knoxville, TN 37902 or mwatson@knoxbar.org. Your question will then be submitted to McLawyer for potential response in this column. McLawyer is an anonymous neutral counsel dedicated to answering questions of procedure from members of the Knoxville Bar Association.

Photo Ops

The June 10 Open Service Project was held at Beardsley Farm, and KBA volunteers took part in a community work day at the CAC Beardsley Community Farm on June 10th as part of the Open Service Project. Beardsley Farm is an urban community farm that promotes food security and sustainable agriculture.

22

DICTA

August 2017


LONG WINDED By: Jason H. Long Lowe, Yeager & Brown

WORST OF LUCK TO YOU Marsha has completely given up on me. She knows I am bereft of wish the graduates “good luck” and “best wishes” for their future. In fact, ideas. A formless void, sucking up column space in a publication that he did just the opposite. He told them he wished that, in their future, is otherwise cutting edge and first class. In desperation this month, they would be treated unfairly. He hoped they would suffer betrayal. she actually fed me an idea for this column, like a mother bird making He wished them loneliness and bad luck from time to time. He said he sure her young do not starve. I am sure she thought, “if I just give him wanted opponents to gloat over them when they lose. He hoped they the idea, and all the research materials, surely he can pound out 1000 would be ignored, and they would suffer pain. Just your normal everyday comprehensible words before publication deadline.” Nope. Not even commencement speech to a bunch of ninth graders. Who brought the close. Well, a little close. In any event, this month’s column comes jerk Chief Justice? directly from the mind of our fearless bar leader. The concept was hers, Of course, he had a point to make. Thank goodness or he would the execution is mine. have just gone down as an evil, vindictive, sadistic windbag wishing I received an email from Marsha last week containing a link to the misery upon the next generation. I’m not saying those people don’t exist transcript of the commencement speech United States Supreme Court in Washington D.C. Fortunately, they are not sitting on our Supreme Justice John Roberts gave to his son’s ninth grade class graduating from Court. Rather, Chief Justice Roberts wished all of these “Job-like” Cardigan Mountain School, a New burdens upon these privileged young men Hampshire boarding school for boys so they could learn. He wanted them t gives me hope to know that the most in grades 6-9. The preceding sentence treated unfairly so they would know visible jurist in our country has a strong merits a few side notes. First of all, I the “value of justice,” betrayed so they moral compass and that he will take it out am really impressed with the breadth of would appreciate loyalty, loneliness to Marsha’s reading. She does an excellent and show it to a group of young people to help value true friendship. They should suffer job of keeping our bar informed of bad luck so they would know the role show them the way. developments in the profession and of chance in life and that their successes goings on in east Tennessee and the or others’ failures are not completely surrounding community. Apparently, deserved. Opponents should gloat over her thirst for knowledge on the legal community goes so far as to keep them to remind them of the importance of sportsmanship. They should tabs on even minor SCOTUS speaking engagements. Either Marsha is be ignored so they understand the importance of listening to others, and a super woman who reads everything, or she is so deep in the weeds in they should suffer pain to learn compassion. her job that we should really consider taking up a collection to send her I think these are important lessons, and I think they are only truly on a vacation to get away and clear her mind. I suspect both propositions learned by those who suffer. I am glad to know our Chief Justice feels may be true . . . at least I am sure she would not turn down a vacation. the same way. It gives me hope to know that the most visible jurist Second, this article concerns a speech given by our Chief Justice, John in our country has a strong moral compass and that he will take it out Roberts, not to be confused with my son, James Robert. The poor kid and show it to a group of young people to help show them the way. It was born to two lawyers and has grown up in the company of lawyers gives me comfort to think that failure and suffering brings strength and who instinctively call him John Roberts by accident. To his credit, he just character. I hope I am strong enough to let my own kids and loved ones smiles and ignores the faux pas every time it happens. The good news suffer because I am sure they are strong enough to grow from it. I hope I for him is that, as he has grown older, he has outgrown the forced double remember this speech the next time I fail. name his parents placed on him and he will now answer to just about Thank you. Marsha, for passing along the email. Reading these anything ( James Robert, JR, James, Jimmy, Jim, stretch or knucklehead. words from another lawyer makes me, once again, very proud of my Just don’t call him Jim Bob). Third, when did we start having graduation profession. ceremonies for kindergarten? fifth grade? ninth grade? Don’t get me wrong, I enjoy celebrating the accomplishments of our children, but it seems a little overkill. I would write the ninth grade graduation off as just a feel good event for fun, but when the United States Supreme Court Chief Justice is your commencement speaker, it starts to feel like a pretty big deal. (I know for a fact that bar executives around the country are keeping close tabs on it.) My daughter Janie will be completing her second year of piano lessons at the end of the summer, and I’m thinking about asking President Trump to come speak . . . or at least Sean Spicer. If you can get past the idea of a full blown ninth grade graduation, I have to say the remarks of Chief Justice Roberts were really inspiring and thought provoking. He did all of the things a normal commencement speaker would do. He thanked the school, he thanked the families, he reflected on the past, looked forward to the future, quoted Socrates and Bob Dylan, and gave sage advice to the graduates. However, what struck me about the speech was what he refused to do. He refused to

I

August 2017

DICTA

23


LIFE HACKS By: Angelia Nystrom University of Tennessee Institute of Agriculture

LIFE HACKS: TRAVEL TIPS WITH LITTLE PEOPLE (AND WORDS OF WISDOM FROM THE EXPERT) It is hard to believe it is July. Every morning, I look at Facebook to see photos of friends and their children lounging on the beach, taking trips to big cities, or enjoying grand adventures to national parks and other wildlife areas. And every day, it gets closer and closer to the day that my family hits the road for our annual summer vacation. In the May issue of DICTA, I shared some of my favorite travel “life hacks”—those things that make travel easier for me. I received great feedback – and even a few requests for more travel hacks. Since I had pretty much given out all of my good tips, I contacted my dear friend and travel guru-extraordinaire, Heather Anderson, to see what she does to make travel easier. For as long as I have known Heather (which is a long time), she has been on the road or in the air, traveling to some exotic locale. I thought that she would slow down a little when her children were born. She hasn’t – and as a result, Charlie and Sophia have logged more airline miles than most people have ever driven. I asked Heather to provide me with some of her top travel tips. She shared the following: 1. Traveling by air with a baby? Always buy a seat for the baby – and secure the baby in a car seat. In 2014, the Wall Street Journal reported, “Safety investigators are raising warnings about inflight turbulence, which is the leading cause of injury to children on airplanes and can sometimes catapult lap children into another row.” Admittedly, infant deaths on airplanes are rare, but if it happens to you, the chance is 100%. https://www.wsj.com/articles/new-studyfocuses-on-in-flight-risk-to-infants-1408574702. If you choose to fly with a baby in your lap, know that only specific seats are equipped with double air masks – so you are at the mercy of an airline employee to ensure you are seated correctly with the baby. Don’t be cheap when it comes to the babies - especially if you are one of those parents who lug around one of those shopping cart covers for shopping. #firstchild #rookie

https://www.forbes.com/sites/johngoglia/2015/06/04/americanairlines-crew-still-unaware-of-kid-seat-rule-could-lack-of-faaenforcement-be-responsible/#fb2c9879a592. 5. Get the AMEX Platinum Card and check out the Centurion lounge at various airports around the country. With the Platinum card, you can get unlimited alcohol and food, and quick complimentary spa treatments – and it has a kids’ play area to boot. If you travel a lot, it is well worth the annual $450 fee. 6. I pack by outfits/activities. You can use gallon-size Ziplock bags (one outfit per child per day) or reusable cubes for the more environmentally-friendly option. If we are stopping overnight for a quick stay, I can grab two bags and the toiletry kits rather than hauling in all the luggage. 7. Twitter is the best customer service option. Ever. 8. Always, no matter what, travel with mini bottles of alcohol. You can get them through security without issue. For the record, you cannot (are not supposed to) open the bottles and drink them on a plane because, technically, it’s a violation of federal law to drink an alcoholic beverage onboard an aircraft unless served by the airline. I’m not saying I have done it, but I have no prosecutions at this time. 9. Any questions? See No. 8. Sometimes you do what you have to do to keep sane while traveling, and especially while travelling with two littles who are under the age of 6. One word of caution, though, don’t clean out the empty airplane mini bottles post-trip at a mediation at Harry Ogden’s office, because his runner will report the contents of the trash can to Harry. Thanks, Heather, for the great “life hacks” for travel with littles. And Happy Traveling!

2. Use a Go-GoBabyz to maneuver around the airport. The infant car seat straps onto it and becomes a stroller. You can also purchase a stroller with retractable wheels that converts into a car seat. They will also fit through the aisles in the larger planes; however, your kid may be in for a bumpy ride when you retract the wheels (which sometimes is no easy task). 3. Check the stroller – with the bags (unless you have the stroller/car seat in one gadget). See No. 2 above. 4. For travel with toddlers, for years, we have used the Kid Cares Harness, which is the only FAA approved harness for kids. It provides shoulder support for the littles in turbulence or sometimes, something more serious. For years, the undeducated flight attendants have insisted on proof that it is FAA-approved. One flight attendant refused our use of it, and I was almost dragged from the plane (YouTube or cell phone video, anyone?)…. But I backed down. I reported the incident to the FAA and a Forbes magazine contributor wrote about it. If you are interested in checking out the article, see

24

DICTA

August 2017


B I L L & P H I L’ S G A D G E T O F T H E M O N T H By:

Bill Ramsey Neal & Harwell

Phil Hampton

Founder and CEO, LogicForce Consulting

WIRELESS HEADPHONES – CUTTING THE CORD? When Apple’s iPhone 7 shipped last year, our “geeky” curiosity was aroused. As most of you know, the iPhone7 shipped without a headphone jack. Obviously, Apple is attempting to move the entire Smartphone industry to a new wireless era. As you might expect, we pulled out our respective wallets and begin our wireless headphone spending spree. First things first. We are not including Apple AirPods in this review. In fact, we have not included any completely “wire-free” headphones in this review. These earbuds are completely wire-free since there is no cable running between the earpieces. Each earbud is completely separate from the other, so you don’t have to worry about cable. However, there are many drawbacks to these wire-free models – such as poor sound quality and battery life, and the ease with which they can be misplaced or lost. So, we do not recommend any completely wirefree headphones. Hopefully, the technology will continue to improve and, when it does, we will be the first to go wire free. If you are looking for audiophile sound quality in these wireless headphones, you will not find it. Bluetooth signals are compressed, and, although technology has continued to improve the sound quality, wired headphones and earphones still retain a sound quality edge. However, the convenience of wireless headphones lets you avoid having a cable dangling down to your Smartphone, and, besides, they look cool. If you are looking to get you a set of these babies, there are three decisions you have to make. First, you have to decide if you are going to buy earphones or headphones. In other words, do you want “cans” on your ears or just in-ear earbuds. The cans (headphones) generally sound better. Second, you’ll have to decide if you want noise-cancelling headphones or earphones. These headphones cancel outside noise, which makes them particularly useful on airplanes or other noisy spaces. But, they will cost you extra. A third decision is how much you want to spend. Since we blow all of our money on gadgets anyway, this is our least important factor. First let’s discuss the best wireless headphones. In a lot of ways, wireless headphones are the most convenient to use, even though they do cover up your entire ear. The wires connecting the speakers on each side run through the “strap” that goes over the top of your head. Our three picks in this category are (1) Bose QuietComfort 35, (2) Plantronics Backbeat Pro 2, and (3) Bowers and Wilkins P7 Wireless. The Bose QuietComfort 35 headphones ($349.00) are clearly a world-class pair of headphones. These headphones have what is probably the best noise cancellation available on the market. The battery life is long. They sound great, and the design and form factor is some of the best available on the market. The Plantronics Backbeat Pro 2 headphones ($199.00) save you about $150.00. We love these headphones because they have a battery life of approximately 24 hours. In addition, they are very comfortable, and the sound quality is very, very good (though not quite as good as the Bose). Similarly, the noise cancellation is very good, but not as good as the Bose. August 2017

Finally, the Bowers and Wilkins P7 Wireless headphones ($399.98) also have an incredible battery life – 17 hours. In addition, they are probably the best sounding headphones on the market, but because they are so expensive, and they do not include noise cancellation, they are our third choice in this roundup. Now let’s talk about our favorite category, wireless earphones (in-ear headphones). We love this category. They are great while you are walking or working out, while you are calling on your cellphone, or while you are relaxing but want to maintain a better awareness of your surroundings. Our favorite three items in this category are (1) Beats by Dre Beats X, (2) Bose QuietControl 30, (3) JBL Reflect Mini BT, and (4) Jaybird X2. The Beats X ($89.99) are our pick for the best in this category, especially if you have an Apple iPhone. These earphones have the Apple W1 chip that makes it easy to pair and connect these headphones wirelessly, especially to an iPhone. The headphones are reasonably priced; they have good (but not the best) sound quality; and you can charge them in approximately five minutes. Unlike most headphones made by Beats, these headphones are not “bass heavy.” In addition, the Beats X stay paired with your phone well beyond 30 feet. Most Bluetooth earphones do not reach that far. Coming in next are the JBL Reflect Mini BT in-ear sports earphones ($79.00 at Amazon). We love JBL speakers, and we love these JBL earphones. To our untrained music ear, these earphones provide the most accurate sound, both solid bass and accurate highs. These are sport model headphones (like the Jaybird X2 we talk about next) and they are sweat-proof with multiple options for ear tips, so they can stay in your ears during the most intense workouts. Moreover, the price is right. Our third choice are the Jaybird X2 wireless headphones ($109.00). Jaybird was a pioneer in the Bluetooth earphone category. We first saw the Jaybird wireless Bluetooth headphones at CES approximately fouryears ago. The X2 is their latest offering. The Jaybird X2 earphones have fantastic sound performance and good battery life. Both the JBLs and the Jaybirds provide really a good “bang for the buck” and are good for workouts because both are sweat proof. Finally, we have the Bose QuietControl 30 headphones ($299.00). These headphones provide great sound performance and noise cancellation. They also have a wide variety of earbuds, making it easy to find a good ear fit. We do, in fact, love these earphones and would give them a higher rating out of this group. But the price ($299.00) is just a bit much for this category, since the primary use for these wireless earphones is casual and workout use. And there you have it. It is time to go wireless with your headphone and earphone choices. One day “in-ear” earbuds, like the Apple AirPods, the Skybuds, and the Motorola VerveOne earbuds will be good choices. But for now, we think it is best to go quasi-wireless and pick from one of the pairs we have listed above.

DICTA

25


LIFE AND LAW IN HARMONY By: Leslie L. Beale, Success Coach Profusion Strategies

JD

THREE WAYS YOU’RE UNDERMINING YOUR OWN SUCCESS We all have our own version of success, and most of us are willing to work very hard to achieve it. But, all too often our progress gets stalled. We fall short of our goals or stumble along the way. Or perhaps, we get what we think we wanted only to find that it isn’t quite what we thought it would be. We end up feeling frustrated, cheated, and confused. What is it that causes us to miss the mark in these situations? Why do we find ourselves spinning our wheels when we know the success we want is right around the corner? To be sure, each situation is different and there are any number of reasons you may fall short of your goals. External challenges, timing, and a certain degree of luck all impact your success. If you’re serious about understanding success, however, you must acknowledge that your own habits play a significant role. Simply put, the behaviors that we engage in on a regular basis have the power to shape the results that we get. Some habits set us up for success, but others work against us. These “success stealers” are habits that undermine our daily efforts and make our goals harder to achieve. The good news is, they’re all within our control. Habit Number 1 - Not Letting Go of Negative Thinking Your particular version of negative thinking may not be exactly like mine, but I’d be willing to be you have one. It’s the recording that plays in your head and says you aren’t good enough. Or that you never get it right. Or that no one appreciates what you do. These messages play over and over again in our minds, even if we aren’t aware of it. The problem is, these little stories we have about ourselves, our families, and our world affect the way we feel and the way we act. In turn, how we feel and act drives our results. As long as we hold on to our negative thoughts, we hold ourselves back from achieving our best results. We may have some wins, maybe even some big ones, but we’ll never find the sense of flow that we so badly want. The first step to shifting this habit is simple enough – just pay attention. Notice all the negative chatter in your head. Watch how you talk to yourself. Then, you can begin to adopt a more productive mindset. Habit Number 2 – Acting Out of Fear

The key to overcoming fear is the same as overcoming any other kind of negative thinking – notice it. When you’re afraid, don’t try to talk yourself out of it or ignore it. Don’t push past it like it isn’t there. See it. Understand what you’re really afraid of and decide logically whether it is valid. If you decide there is no true and immediate threat, move forward. You can take action in the face of fear. In fact, if you consistently feel your fear and move forward anyway, you might find you are less and less afraid. Habit Number 3 - Not Celebrating Our Wins Receiving praise is difficult for many of us. We brush aside compliments, dismiss our own efforts as insignificant, and deflect attention to those around us instead. These efforts to downplay what we’ve accomplished undermine our success. If we don’t celebrate our own wins, and allow those around us to celebrate as well, there’s nothing on the other end of the scale to balance out our negative thinking. We can’t call to mind the times we successfully completed the task before us, the times we surpassed expectations, or the times we had real, positive impact on the people around us. Early in my career, a much more experienced attorney told me if I ever got a thank you note or letter of praise from a client, I should save it. “Why?” I asked. “It’s for your feel good file. This is a tough profession and the praise doesn’t come often. When it does, you should save it for those other days. The days of doubt, and stress, and failure.” That’s some of the very best advice I ever received. Each of us should create our own mental feel good file. A little collection of wins, celebrations, and successes. These are often just the fuel we need to keep moving when the goals we’ve set seem impossible. In the end, achieving most goals takes hard work, time and sacrifice. But, we can make the path just a bit easier by being aware of the habits that hold us back. Leslie L. Beale, JD, is a success coach who helps professionals develop strategies to thrive at work and beyond. After spending fifteen years as a lawyer and executive, Leslie founded Profusion Strategies, where she offers individual and group coaching, consulting, and training programs on a variety of topics. To find out more, visit her website at www.ProfusionStrategies.com.

Fear is really just another flavor of negative thinking, but it’s so prevalent that it deserves its own separate mention. We all have fear. Period. I know you think it’s just you. I know you’re embarrassed of how big your fear is and how often it takes over your mind. I know you wish all those seemingly trivial things in your head didn’t scare you. But you aren’t alone. Fear is an unavoidable part of the human experience. In and of itself fear isn’t a problem. In fact, it’s a selfprotection mechanism. The problem is that our fear doesn’t always serve us. So much of what we fear is a false threat – an old script trapped in that part of our animal brain that kept us safe from sabre toothed tigers. Now, our fear sees threats all around us. What if we end up broke? What if we make fools of ourselves? What if…what if…

26

DICTA

August 2017


WELL READ By: Campbell D. Cox Student, University of Tennessee College of Law

BOOK REVIEW: BILLY BUDD, SAILOR BY HERMAN MELVILLE In his distinctive, maritime style, Herman Melville created another thrilling sea-story in Billy Budd, Sailor that harkens back to his most beloved work, Moby Dick. However, instead of following a battle between the iconic white whale and a revenge-crazed captain on the Pequod, this time readers follow Billy Budd, a sailor facing a trial at sea on the HMS Indomitable. This short novella presents a fascinating look into the practices that go into a military captain’s mast, the importance of advocacy, and most significantly, the questions of morality that must be asked, along with the decisions that must be made, in a case with capital punishment on the line. Melville structures the trial and Captain Vere’s advocacy in such a way that readers may feel like they themselves are members of the jury that must decide young Billy Budd’s fate. In a short one-hundred pages, Billy Budd, Sailor allows readers to reflect on their own morality and the consequences of justice and the law. The history, revisions, and adaptations of this novella are almost as interesting as the work itself. Billy Budd, Sailor is Herman Melville’s final work and was published posthumously after its discovery in 1919. The manuscript was unfinished, however, which lead to questions about Melville’s intentions and discrepancies between transcriptions of the text. For example, in some versions the ship is called the HMS Bellipotent rather than the HMS Indomitable. Early versions of the novella even had a different title, titling the work Billy Budd, Foretopman. Arguments as to the validity of versions of Billy Budd, Sailor are still being made about this classic piece of American literature even today. As for the different adaptations of this story, there has been a Broadway play, a criticallyacclaimed opera, a film, and some television adaptations, one of them starring William Shatner as Billy Budd. The story opens with Billy Budd, also called the “handsome sailor,” as he joins into service with the British Navy on the Indomitable in 1797 after leaving his job on the aptly named ship, The Rights of Man. Melville then takes time to paint a historical picture of a harsh British Navy, terrified of the possibility of rebellion after the infamous “Nore Mutiny” years prior. Following this history lesson from Melville, John Claggart, the ship’s corrupt Master-at-Arms who has taken a disliking to Billy Budd, and Captain Vere, the honorable captain of the Indomitable are introduced. The conflict and trial that make up the majority of the novella follow after this setup. The case itself, without giving too much away, is where the novella draws most of its commentary. Both casual and legal-minded readers will likely feel a strong desire to leap into the pages of the novella and defend Billy Budd themselves as Billy truly represents an innocent party in dire need of counsel. It is difficult as a reader, especially one familiar with the law, to sit back and watch the case unfold without wincing at times. As Melville sets out the trial and presents the reader with Captain Vere’s statements, he calls the reader to reflect on what they think is just and the best outcome of this case. Captain Vere asks the jury and the reader not what they wish they could do, but what they must do in light of all the circumstances. At the close of this novella readers will be left more deeply questioning the idea of justice and asking themselves if they could have made the right decision if placed in Captain Vere and the jury’s shoes. August 2017

Not only will legal-minded readers appreciate the multiple legal references, like the concept of Mens Rea and references to Coke and Blackstone, but this novel also should make readers recall concepts of justice, guilt, and fair punishment they studied early on in Criminal Law. I found myself thinking back to the first Criminal Law case I was assigned to read, the enigmatic Queen v. Dudley & Stephens. Both of these trials involve a crime at sea where the guilt of the parties is not quite clear and punishment is questionable. A reader familiar with the law will find this novella a fascinating look back into Criminal Law concepts and the similar questions of justice, morality, and punishment found in Dudley & Stephens. At only one hundred pages, I was able to completely enjoy this novella within a day. As is common for Melville’s works, there are some confusing nautical terms and titles, however, I did not feel it detracted from the experience of the novella as a whole. I believe Billy Budd, Sailor is a must-read that truly deserves its place among the classics of American literature and its place as a vital piece of literature regarding the law.

DICTA

27


WELCOME NEW MEMBERS THE KNOXVILLE BAR ASSOCIATION IS PLEASED TO WELCOME THE FOLLOWING NEW MEMBERS: Wendy A. Bach U.T. College of Law

Patrick R. McKenrick McKinney & Tillman, P.C.

Heidi H. Buxton

Adam S. Moncier Law Office of Adam S. Moncier

Jaime E. Dailey Joyce, Meredith, Flitcroft & Normand

Elijah Settlemyre Trammell, Adkins & Ward

Megan D. Duthie David Taylor Tipton Baker, Donelson, Bearman, Caldwell & Berkowitz

Carmine D. Gigliotti Carmine D. Gigliotti, P.A.

Emma Drozdowski Webb Miller & Drozdowski

Mark C. Hazlewood The Hazlewood Law Firm

Emily B. Vowell Tyler Hood

NEW LAW STUDENT MEMBER

Angela D. Lowe Angela Lowe, Attorney at Law

Mary Elizabeth Watson

THE KNOXVILLE BAR ASSOCIATION

presents

OVER 50 LUNCH FOR SENIOR ATTORNEYS & THEIR GUESTS

The 2017 Volunteers: A Football Preview Featuring

Timothy A. Priest Pryor, Priest, Harber, Floyd & Coffey Wednesday, September 6, 2017

11:30 a.m. - 1:00 p.m. Calhoun’s on the River - 400 Neyland Drive Price includes Barbeque Chicken or Grilled Salmon, vegetable, salad & beverage. If you have dietary restrictions, please provide us with at least 48 hours’ notice of your limitations. PRICE: $35.00 (Includes tax & gratuity) Enclose check payable to “The Knoxville Bar Association”. Mail or deliver check to: The Knoxville Bar Association 505 Main Street, Suite 50, P.O. Box 2027, Knoxville, TN 37901-2027 (865) 522-6522 Prepay online at www.knoxbar.org.

28

DICTA

August 2017


BENCH AND BAR IN THE NEWS

This “members only” column is published each month to share news and information among KBA members. Submissions should be limited to 75 words and will be edited for space and other considerations. Email submissions to mwatson@knoxbar.org by the 10th of each month. NOTICE OF APPEALEFFECTIVE JULY 1, 2017 Beginning July 1, 2017, all Notices of Appeal filed with the Court of Appeals, Court of Criminal Appeals or Supreme Court must be filed in the office of the Clerk of the Appellate Courts rather than in the office of the Trial Court Clerk. The Rules of Appellate Procedure related to the filing of a Notice of Appeal directed to the Appellate Courts are changing effective July 1, 2017. As of July 1, 2017, the trial court clerks will no longer accept a Notice of Appeal for filing in their office. The Notice of Appeal shall be filed in the office of the Appellate Court Clerk in the grand division in which the trial court from which the appeal arises is located. KALA ANNUAL LAW FIRM SURVEY The Knoxville Chapter of the Association of Legal Administrators (KALA) is conducting its annual law firm survey. This year’s survey includes salary, benefits, and firm financial performance. The survey is available to non KALA firms for $150 in October, however, if you would like to participate in this year’s survey, you may purchase it for a reduced rate of $50. If enough firms participate, this will be the first survey to include local firm financial results. If you are interested in participating, please contact Robert Williams at rwilliams@emlaw.com. GREATER KNOXVILLE AREA’S TOP WORKPLACES AWARD FOR 2017 Kramer Rayson LLP has received the 2017 Top Workplace honor in the Small Business category by the Knoxville News Sentinel. Kramer Rayson is honored to be Knoxville’s Top Workplace in the Small Business category based on the input of their staff. The firm strives to make Kramer Rayson a great place to work by providing a positive and caring environment, along with competitive pay and exceptional benefits. VACANCY FOR BEER BOARD HEARING OFFICERS The Beer Board of the City of Knoxville is seeking applicants to fill three vacancies for Beer Board Hearing Officers. Chapter 4, Article II of the Knoxville City Code contains the ordinances involving the Beer Board Hearing Officer. Interested parties may obtain the application form from the Office of the City Recorder, 865-215-2075 or wjohnson@knoxvilletn.gov. The deadline to apply is noon on September 8, 2017, and applications are to be filed with the Office of the City Recorder. In 2016, there were 22 Noncompliance Complaints filed. Pursuant August 2017

to a recent City Council Resolution, a Beer Board Hearing Officer shall be paid a flat fee of $225.00 for each Noncompliance Complaint received pursuant to Chapter 4, Article II, Division 3, Section 4-85; or, alternatively, in the event of a Beer Board Hearing Officer conducting a contested hearing pursuant to Chapter 4, Article II, Division 3, a Beer Board Hearing Officer shall be paid $150.00 per hour. Noncompliance Complaints are generally heard on a rotating basis. LEGAL CALL-IN SHOW Knoxville has a new legal live television call-in program and you can be a part of it! WVLT Local 8 LawCall will air Sunday night at 11:35 right after the news. The Producers say the show will cover such varied topics as divorce, traffic accidents, careers in the law and bankruptcy, along with many others. There will be a new topic each week. The station has partnered with The Law Offices of Ogle, Elrod and Baril to act as the legal hosts of the program. They are also underwriting this public affairs show. The host will be local broadcaster Sara Mitchell. If you would like to be a guest or have any questions please contact the producer bill@lawcall.com. NEED GUIDANCE IN A SPECIFIC PRACTICE AREA? One of the best kept secrets of the Knoxville Bar Association is our Mentor for the Moment program. We want to let the secret out and make sure that our members use this wonderful resource. It’s really simple to ask a question of our helpful volunteer mentors. Log in to the members’ only section of www.knoxbar. org or check out the list in the KBA Attorneys’ Directory and begin your search! Our easy-touse website allows you to search by last name or by subject area experience. New Apprentice Mentor category now available! PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, August 10, 2017, at 12:00 pm. in the Blount Mansion Visitors Center, Knoxville, Tennessee. Attorney Thomas H. Dickenson of Hodges, Doughty & Carson, PLLC will be presenting Nuts and Bolts of Representing Creditors in Bankruptcy. The presentation will provide 1.0 hour of CLE. A lunch buffet is available at the cost of $12/ person with reservations. Please contact Kati Wheatley, ACP at president@smparalegal.org or (865) 637-2442 for additional information and/ or lunch reservations. OFFICE SPACE AVAILABLE: • Upscale and affordable, attorney office space in West Knoxville with 4 other attorneys; pleasant, casual atmosphere; two adjacent window office spaces, can be furnished; 2 large, conference rooms, separate phone line, other office services negotiable. Direct interstate access at

DICTA

Bridgewater Rd, 12 minutes to downtown. 865-247-4920. • 2,870 sq ft 2nd floor office space with large reception area, 5 private offices, board room, two large work-rooms/ offices, common rest rooms & kitchen/ break room with one other tenant on the floor. Zoning C-3, Office Space Class B. Excellent high-visibility location with views of downtown Knoxville. Other tenants are a late-afternoon/evening youth music school downstairs (sound-isolated), and a single attorney. Ample parking and easy freeway access. An additional 1,500 sq ft of adjacent space is available if desired. Contact Frank Graffeo at 525-6806. • Furnished office space available in West Knoxville. Convenient to I-40 and Downtown. Quiet atmosphere perfect for sole practitioner or mediator. Contact Dana Holloway at Holloway Law & Mediation Center. (865) 719-1644 or (865) 643-8725 • Office space for sub-lease at 618 S Gay St, Suite 100. High visibility with full window on Gay St. Wi-fi available at no additional cost. Private office, 11’ x 10’ with large private conference room available. Great for sole practitioner or satellite office. Rent $500 per month for office space only. Additional $250 per month for any signs or advertising placed in window. Contact Arning Insurance Agency at 865-637-1403. • Corner of Westland Drive and Pellissippi Parkway. Former legal office. Excellent condition. 3,456 Sq.Ft. Highly visible with easy access to interchange. Phone system installed. Lease or Purchase opportunity available. For further information, contact Oliver Smith Realty (865) 584-2000. • A perfect office space available with signage on Peters Road. The office has just been renovated and ready for new occupants. Space offers room for two private offices and reception area and other area for a work station. The location is visible from Kingston Pike and would make a great office for an accountant, insurance agent, attorney or mortgage broker, engineering firm or anyone who would like high visibility. Offers a carport for your parking along with a paved parking lot. Carport also has a storage closet. Rent: $900.00 per month. Contact Karen Emmert at 356-5049. • Office Space for Lease at 5344 N. Broadway, Knoxville. Across from Fountain City Park. Approximately 2,000 sq ft. Present floor plan accommodates four offices plus a conference room and a reception area. Would consider dividing space. One Level. Offices on either side occupied by long-term law firms. Two (2) Year minimum lease required; great for satellite office. Qualified prospects call: (865) 805-1911.

29


Serving the Legal Community in Assisting Low-Income Persons To Navigate the Justice System

PRO BONO PROJECT By: Kathryn Ellis Pro Bono Director Legal Aid of East Tennessee

MARK your calendar! SET your reminders!! GO support LAET Pro Bono!!! It’s hard to believe, at least for me, that it’s already been a year since I became Pro Bono Director. What’s not hard to believe is that it’s almost time for this year’s Forging Justice Pro Bono Celebration! I love clinics. I love getting private attorneys paired up with clients. I love being able to facilitate so many great outcomes for low income members of our community, as well as the elderly, veterans, and victims of domestic violence. But, what I love most about this position is being able to celebrate all the great work that all of you do each year for LAET’s Pro Bono Project! If you are interested in being a Sponsor for this year’s event, there are several options available. There are three one-of-a-kind “specialty” sponsorships still available: • Bar Sponsor – $2,500 • Food Sponsor – $2,500 • Law Student Sponsor – $2,500

Mark Your Calendars:

And, there are standard-level sponsorships available: • Damascus (limit 3) – $3,000 • Iron – $2,000 • Titanium – $1,200 • Copper – $750 • Aluminum – $400

SAVE THE DATE: October 20, 2017 for Legal Aid’s Forging Justice Pro Bono Celebration

• August 5 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville office (607 W. Summit Hill Drive) • August 9 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • August 19 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office • September 9 (9:00-2:00) – Faith & Justice Clinic (Location TBD) • September 13 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • September 16 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office • September 30 (9:00-2:00) – Knox County SUPER Saturday Bar (Location TBD) • October 11 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO • October 14 (9:00-12:00) – Blount County SUPER Saturday Bar at LATE’s Blount County Public Library

This year, we will be honoring our Pro Bono Attorney of the Year, Pro Bono Law Firm of the Year, Pro Bono Law Student of the Year, and Community Partner of the Year. In addition, we will be inducting Terry Woods into the Donald F. Paine Memorial Pro Bono Hall of Fame.

• October 20 – FORGING JUSTICE at Ironwood Studios • October 28 (9:00-2:00) – Expungement Clinic at Beck Cultural Center

To be included as a sponsor on our mailed invitations, contact me by August 14!

The Pro Bono Project • Legal Aid of East Tennessee, Inc. • 607 W. Summit Hill Drive • Knoxville, TN 37902 phone (865) 637-0484 e-mail:kellis@laet.org fax (865) 525-1162

30

DICTA

August 2017


Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Adrienne, please tell DICTA’s readers about dragonboat racing, and how you got involved in this fascinating type of rowing competition.

ADRIENNE L. ANDERSON Anderson Busby PLLC

Long, narrow open boats ease up to a starting line marked by buoys on the water. Each boat is forty-six feet long, with a huge multicolored dragon’s head in front and a long dragon’s tail in the rear. A drummer with a barrelshaped drum and a mallet sits behind the dragon’s head, twenty paddlers sit in ten rows down the length of the boat, and a steersman with a long wooden oar stands in the rear of each boat. Everyone is perfectly still, completely focused. The starter calls, “We have alignment. Attention please. GO!” Each dragonboat team bursts into action – the paddlers paddle in perfect unison to the cadence of the drummer in the front, steered by the oarsman at the rear – all to the screams of the crowd on shore. In approximately one minute, the boats race over the 250 meter race course to the finish line and, for one team, to glory. Dragonboat racing originated in China more than two thousand years ago as an ancient cultural ritual to commemorate the martyrdom of a poet and political dissident. The legend is that when this beloved leader jumped into a river to protest the corruption of the ruling parties, his followers jumped into their fishing boats and raced to him in a failed rescue attempt, then beat drums and beat their paddles on the water to keep fish from eating his body. On a more positive note, dragonboat racing emerged as an international team paddling sport in the 1970’s, with competitions beginning in China and spreading throughout Asia and Europe. In the 1980’s, dragonboat racing came to North America, and soon became a popular amateur sport in the United States and Canada. Today teams compete in dragon boat racing at all levels of skill and experience. Many teams in Asia and Europe, and some teams in the United States and Canada, have corporate sponsorship. Recreational teams formed in communities throughout the United States practice regularly, then travel for dragonboat racing competitions. Dragonboat racing festivals have become important fundraising events for charitable and nonprofit groups, as local businesses and civic organizations form racing teams and collect donations, while participating in an exciting, fun, teambuilding event. One of the premier dragonboat festival managers, Dynamic Dragonboat Racing, LLC, is based in Knoxville and manages festivals, corporate events, and clinics throughout the United States. In Knoxville, the Knoxville Area Rescue Ministry (KARM) has held a dragonboat racing festival each June at the Cove in Farragut for more than ten years. The Tennessee Clean Water Network (TCWN) started its dragonboat festival a few years ago, and is actively recruiting teams for its August 26, 2017 festival at Volunteer Landing. I was introduced to dragonboat racing by attorney Shannon Coleman Egle about ten years ago. Growing up in East Tennessee, I always enjoyed canoeing, kayaking, and swimming in the lakes and rivers, but I had never even heard of dragonboat racing. I saw an advertisement in the newspaper for the KARM dragonboat festival, and the next day Shannon just happened to mention her “dragonboat racing team.” I begged to tag along with her, and Shannon graciously gave me a quick tutorial on team paddling and introduced me to her team – The Secret City Mad Paddlers. Over the years this eclectic group has included nuclear engineers, Army reserve officers, nurses, high school teachers, psychologists, health physicists, construction workers, medical office administrators, safety engineers, college professors, dentists, corporate executives, lawyers and paralegals. The team captain is a 5’2” dynamo with a Pat Summitt-like commanding stare. (Her day job is as a highly-trained security officer with superior firearms skills – no one disobeys her). Some of these paddlers are super-competitive and have participated in races in China, Ireland, Germany, Belgium, and other international venues, but they welcome everyone who wants to pick up a paddle and try the sport. Dragonboat racing is a unique team sport, because the key to winning is paddling exactly in unison. I have seen teams of small, lightweight paddlers easily beat teams of beefy, muscle-bound athletes based solely upon precision and uniformity. The team depends upon each and every team member to do exactly what each other team member is doing, at exactly the same time, the same speed, and the same power level. The achievements are always team achievements and the failures are only team failures. Dragonboat racing is a quintessential team sport. The camaraderie of a diverse group of people coming together for this team sport just can’t be beat. We have laughed and celebrated together, and we cried together when tragedies struck our team members. Sometimes, there is even a little romance. A few years after Shannon Coleman invited me to join her dragonboat team, she met Brian Egle at a dragonboat festival, and now Brian and Shannon are happily married with two beautiful little girls! Paddle sports racing is fun, and team racing is fantastic. I encourage the KBA and all law firms to sign up for the local dragonboat races and to have a great day on the water. Paddles Up!

“The Last Word” column is coordinated by KBA Member Nick McCall. If you have an idea for a future column, please contact Nick at nick.mccall@gmail.com. August 2017

DICTA

31


NON-PROFIT ORG. US POSTAGE

PAID

P.O. Box 2027 Knoxville, TN 37901

KNOXVILLE, TN PERMIT NO. 6 5 2

Profile for Knoxville Bar Association

DICTA.August 2017  

August 2017 Volume 44, Issue 7

DICTA.August 2017  

August 2017 Volume 44, Issue 7

Advertisement

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded

Recommendations could not be loaded