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Management Counsel: Law Practice 101 - One Firm’s Journey into Virtual Officing . . . Page 13 Schooled in Ethics – Rule 4.4(a): The Jerk Rule . . . Page 21

A Monthly Publication of the Knoxville Bar Association | March 2017

THE FLAG, THE PRESIDENT, AND THE FIRST AMENDMENT


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DICTA

March 2017


In This Issue

Officers of the Knoxville Bar Association

Cover Story

March 2017

16 The Flag, the President, and the First Amendment President President Elect Amanda M. Busby Keith H. Burroughs

Treasurer Wynne du Mariau Caffey-Knight

Immediate Past President Wayne R. Kramer

Secretary Hanson Tipton

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

Critical Focus

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

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

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Practice Tips

Using Depositions at Trial

Legal Update

Employment law issues potentially headed for the Supreme Court

One Firm’s Journey into Virtual Officing

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The Knoxville Bar Association Staff

President’s Message

Solo/Small Firm—You Are Not Going It Alone

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Management Counsel: Law Practice 101 Schooled in Ethics

Rule 4.4(a): The Jerk Rule

Evolving Legal Marketplace

Domo Arigato, Esq.: Are You Smarter Than A Robot Lawyer?

Conventional Wisdom Marsha S. Watson Executive Director

Tammy Sharpe CLE & Sections Coordinator

Wendy Williams Membership & Operations Coordinator

Lacey Dillon Programs Administrator

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 Assistant

Volume 44, Issue 3

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. March 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

6 7 8

12 14 15 18 19 23 24

Hello My Name Is

Meredith Slemp

Judicial Profile

Judge Duane Slone

Walking the Walk

Ryan Goddard: Relationships and Research

Outside My Office Window

The Push

Life & Law in Harmony

Serving with Sanity

Thankworthy

Making a Smartt Investment

Lawyer’s Almanac

Code of the Khan

Well Read

The Past Repeats

Long Winded

Stupid is as Stupid Does

Life Hacks

Keeping Organized and Keeping Sane

25 27 4 20 20 22 29 30 31

Bill & Phil’s Gadget of the Month

Password Management

Of Local Lore and Lawyers

Clifton “I Will Hold” Cates

Common Ground

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

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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). 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). 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). 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). 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 The 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). 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). 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). Senior Section The next Senior Section luncheon will be held at 11:30 a.m. on March 8, 2016 at Calhoun’s on the River. Dave Jones, East Tennessee Division Manager with the Tennessee Department of Tourist Development will present the “10 Places You Must See in Tennessee”. 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 (934-4000) or Tripp White (712-0963).

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DICTA

March

n 6 Law Office Tech Committee n 6 ADR Section CLE n 8 Barristers Veterans Legal Advice Clinic n 8 Seniors Section n 8 Veterans Legal Clinic n 8 Barristers Access to Justice Committee n 8 Barristers Executive Committee n 9 Judicial Committee n 9 Lunch & Learn n 9 Barristers Happy Hour n 13 Law Office Tech Committee n 14 Professionalism Committee n 22 Board of Governors Meeting n 23 Volunteer Breakfast n 28 CLE Committee n 28 LRIS Committee n 30 Corp. Counsel Section CLE

April n 3 ADR Section CLE n 6 Law Practice Today Expo n 7 Law Practice Today Expo n 11 Professionalism Committee n 12 Barristers Veterans Legal Advice Clinic n 12 Barristers Access to Justice Committee n 12 Barristers Executive Committee n 13 Judicial Committee n 13 Lunch & Learn n 17 Diversity in the Profession Committee n 19 Board of Governors Meeting n 26 Government Section CLE n 27 Lawyerpalooza

Mark Your Calendar

KBA Law Practice Today Expo April 6 & 7 March 2017


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

SOLO/SMALL FIRM – YOU ARE NOT GOING IT ALONE Did you know that 47% of KBA members currently in private practice are in firms with five or fewer attorneys? According to a 2016 State of U.S. Small Law Firms Study conducted by Thomson Reuters, small law firms report certain challenges, top among them being:

Finally, the KBA has several members that have graciously agreed to answer questions from other KBA members specifically about small law firm practice matters through our Mentor for the Moment Program. The Mentor for the Moment Program that is available to all KBA members also provides a way for its members, including those practicing 1. New client business development; in solo/small firms, to ask legal questions to attorneys with experience 2. Time devoted to administrative tasks; ranging from adoption law to commercial transactions, alternative 3. Clients demanding more for less; dispute resolution, federal court practice, workers’ compensation, etc. You 4. Increase complexity of technology; and can find attorneys willing to assist you in a variety of practice areas in the 5. Cost control and expense growth. KBA Membership Directory behind the Mentor for the Moment tab or on the KBA website under Member Resources, Mentor for the Moment. Having talked to colleagues in big and small law firm settings and If you are a KBA member, please remember that there are an having been in practice myself in both settings, I would submit that abundance of resources available to you through your membership. If you these challenges are not entirely unique to small firms. know solo/small firm practitioners that are not KBA s the number Nevertheless, I want to point attorneys in solo/small members, talk to them about joining the KBA to gain of small firm firms to resources offered to KBA members that could access to resources for their solo/small firm and more. help them attack these challenges head on. The Thomson Reuters study that discusses the practices First, the KBA has a Solo Practitioner & Small challenges facing solo/small firms also notes that small grows, law schools, Firm Section, law firms are a key player in the U.S. legal marketplace. including the University The study states that experts forecast growth in small co-chaired by Heather G. Anderson of the Miller of Tennessee, are Anderson Law Group PLLC and Edward G. (Tripp) law firm market share as clients look for quality White, III, of the Law Offices of Edward G. White, legal representation that is both accessible and more recognizing the III. If you are an attorney practicing in a solo/small importance of preparing responsive to their cost concerns. firm, you should really consider joining this Section and As the number of small firm practices grows, students for “hanging attending events sponsored by this Section. The mission law schools, including the University of Tennessee, are a shingle” or joining of the Solo Practitioner & Small Firm Section is to recognizing the importance of preparing students for encourage networking and collegiality among solo/small lawyers in a small firm “hanging a shingle” or joining lawyers in a small firm firm members who collectively comprise “Knoxville’s setting after graduation. setting after graduation. Based on input from alumni, Largest Law Firm”. The Section provides high quality including myself, UT is offering a Solo and Small Firm continuing legal education programs featuring topics Practice course this semester taught by our own KBA that will help solo/small firm attorneys enhance and improve their member, Tasha Blakney, of Eldridge & Blakney, P.C. The course focuses practices and assist them with challenges like those referenced above. on the “personal characteristics needed for success in small firms, creating Last year, this Section hosted several monthly meetings, had a great a business plan, marketing, ethical and professional responsibility, and social event called “Septemberfest” at Schulz Brau Brewing Company; the financial, operational, and technological aspects of developing a solo and offered two excellent CLE programs: (1) “Succession Planning for practice or small firm…” Solo & Small Firm Attorneys” by KBA members, Thomas R. Ramsey, Tasha invited me to be a guest speaker to the class a couple of weeks III and Fiona F. Hill, of Ramsey Hill LLC; and (2) “Time Management ago to talk about small firm practice start-up issues. Students in her class for Busy Lawyers” by Leslie Beale, KBA member and success coach, who were thirsty for knowledge about how to start and manage a law firm. owns Profusion Strategies. Many in the class planned to either join a small firm or start their own Second, the KBA website at knoxbar.org has excellent resources for firm after graduation. I told them that it is important to remember that solo/small firm practitioners. Starting in 2002, the Solo Practitioner & if you are an owner in a firm, big or small, you are not just a professional Small Firm Section sponsored a CLE program called the “Solo Small providing legal services, you are an entrepreneur—you are running a Firm Checklist” to inform attorneys on how to set-up and maintain a law business. You need to be able to make business decisions that are good practice. The Checklist has been updated several times since then and financial decisions for yourself and at the same time add value to the is posted on the KBA website. The Checklist includes everything from services you provide to your clients. I also told them that regardless choice of entity considerations to financial and operational issues such as of what practice setting they ultimately choose that joining a local bar staffing, use of outside vendors and even development of an emergency association in their legal community, like the KBA, is a great way to plan. The Solo Practitioner & Small Firm Section of the KBA website make sure their practice has access to the resources it needs to succeed also offers links to recent DICTA articles about how to grow your in the face of whatever challenges lie ahead in this ever evolving legal practice, issues and challenges facing solo/small firms, client relations, marketplace. technology, and more.

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March 2017

DICTA

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HELLO MY NAME IS

. . .

MEREDITH SLEMP

By: Katie Ogle McDonald, Levy & Taylor

As lawyers, we teach all the time, and as a former teacher myself, I have often heard that teachers make the best lawyers. Legal practice inherently requires that we learn, analyze, teach and persuade. Every day, we find ourselves teaching juries, judges, clients, adverse parties, and colleagues regarding specific issues. Local attorney Meredith Slemp can relate to this, too, as she holds an undergraduate degree in Child and Family Studies from the University of Tennessee. A native of Johnson City, Tennessee, Meredith moved to Knoxville ten years ago when she became a student at the University of Tennessee. During her undergraduate years, she was involved as a Young Life leader, active in Orange Pride, and was an avid intramural sports player. When she began her college career, Meredith intended on becoming a teacher, however, after several semesters in this field, opted to include an additional major of Political Science. From there, her interest in the law began to grow. Following graduation, Meredith took a year to apply to law schools and focus on preparing for the LSAT exam. Her tenacity paid off, and she was accepted into the University of Tennessee College of Law the same year. Given her educational background and interests, she initially thought that Family Law would be her calling, but after completing a criminal law course during her first semester in law school, Meredith’s decision had been made. “I really credit former Dean Doug Blaze and Professor Penny White for sparking my interest and passion for criminal law when I was in law school. Because of their influence, along with many others, I knew that this was the field of practice for me.” Not only did she focus her time on studying criminal law, but Meredith also continued to contribute to the community while she was a law student. As a member of the Student Bar Association, public relations co-chair for the Moot Court Board, and the Vice President of Sword and Scales, there certainly wasn’t much down time for the Science Hill High School alumna. During law school, she also had several opportunities to further hone her skills in practicing criminal law. Meredith credits her experience working as a law clerk in the Knox County District Attorney General’s Office as another significant influence in her chosen career. “I was very fortunate to have many great mentors during my time as a law clerk. Andrea Kline and Leslie Nassios were instrumental in guiding me and influencing my desire to prosecute.” Currently, she works as an Assistant Attorney General in the Eighth District Attorney General’s Office, and has practiced there since graduating law school in 2014. She prosecutes cases in general sessions, juvenile, and criminal courts. “I’ve been very thankful to practice under the leadership of Jared Effler since I began working in this position, and have gained lots of experience in this office.” To date, Meredith has had the opportunity to try several cases before local juries, and has subsequently obtained multiple convictions in many of these trials. When asked about areas of this particular practice that prove difficult, she notes that managing crises that arise for victims can be quite challenging. “A victim comes into contact with the District Attorney’s office during what is likely the most trying time of their lives. Managing and counseling individuals through these issues can sometimes place an attorney in a trying position.” For Meredith, her educational background has lent itself well to working with child victims, as well as advocating for children in juvenile court. She credits these victories on behalf of children and victims of domestic violence as the most rewarding elements of her chosen career. While much of her work requires each day to remain pretty serious, Meredith’s experience in the law has also included some funny moments. “When I was a law clerk, one of the judges in general sessions court told me it was a local rule that women were required to curtsey

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before addressing criminal court judges. Of course, I believed him, a judge wouldn’t lead me astray, right? Thankfully, I spoke with a few more experienced female attorneys before my criminal court experience, who quickly explained that this wasn’t necessary.” Meredith is a self-proclaimed huge sports fan, and makes time to attend as many events as possible. Among her favorite teams are the Atlanta Braves, and of course, the basketball and football teams of her alma mater. She also continues to give back to her community as a member of the Junior League of Knoxville. While Meredith’s initial career as a teacher may not have come to fruition, we are certainly thankful to have her as a member of the Knoxville Bar Association and an advocate for victims in our area. We appreciate her commitment to the legal community and providing an interview for this issue of DICTA.

Meredith enjoys a Volunteer football game with fellow attorneys Gina Sarli (O’Neil, Parker & Williamson) and Liz Anne Bowden (The Law Office of James A.H Bell).

DICTA

March 2017


JUDICIAL PROFILE By:

Honorable Ben Strand, Jr. (Retired) O’Neil, Parker & Williamson, PLLC

JUDGE DUANE SLONE If it had not been for a misunderstanding with the District Manager of the Pizza Hut in 1983 Judge O. Duane Slone may have been an executive with Coulter Enterprises rather than a well-respected trial judge. As a result of this misunderstanding Judge Slone enrolled at Walters State Community College. After attending Walters State, Judge Slone graduated in 1987 from Carson Newman College. He then applied to Memphis State University School of Law. He completed his studies at Memphis State Law School including one semester at the University of Tennessee Law School in 1990. It was while he was a student at Memphis State Law School that he met a beautiful and very intelligent young lady from Upper West Tennessee. They both then moved to East Tennessee after his graduation. After passing the bar, he practiced law with the late Jerry Galyon and Judge Dwight Stokes in Sevierville, Tennessee from 1990 until November 1992. In November 1992, he joined the staff of District Attorney General Al Schmutzer as the Fourth District Drug Trafficking Special Prosecutor, a position he held until 1994. It was during his tenure as Assistant Attorney General that he realized the effect that drugs can have on society and that the “War on Drugs” could not be won on the supply side. In 1994, he resigned to run for an open seat in the Tennessee House of Representatives, which he lost to Representative Dennis Roach. He began a general practice of law in Sevierville and Dandridge. Later in 1997, Becky Snider-Slone came to the firm of Slone and Slone full time. With a new judgeship created for the Fourth Judicial District Judge Slone decided to seek that office. The campaign was a family event. Sworn into office in September 1998, he soon established his practice of expecting everyone to show up in his court on time and pay the proper respect for the court – on one occasion holding an attorney in contempt of court and allowing him to visit the confines of the Cocke County Jail briefly. Judge Slone tries civil cases in the Counties of Cocke, Grainger, Jefferson and Sevier and handles the Criminal Docket in Jefferson County and shares the Grainger County Criminal Dockett with Judge Dick Vance. One of the projects that makes Judge Slone an outstanding citizen as well as an outstanding Judge was in March 1999 when he helped organize the Boys and Girls Club of Dumplin Valley. This organization serves 600 young persons at four locations in Cocke County and Jefferson County. There was a vast reduction in juvenile delinquency with an outlet for young people to play and study. This project has been funded partly by the annual golf tournament named in honor of Jefferson County’s own NFL player, Todd Collins Maybe one of his greatest achievements has been with the cofounding of the Drug Recovery Court in the Fourth (4th) Judicial District with Judge Ben Hooper, II. This is the only Drug Court in the State of Tennessee where two trial judges preside. Judge Hooper presides in Cocke County, and Judge Slone presides in Jefferson County. This program began in the Spring of 2005. There are presently sixty participants in the program. The program has been very successful with a recidivism rate of only eighteen (18) percent. The Drug Recovery Court now has an eighteen-acre campus with a cabin that can house six young ladies who have a serious drug problem and who are participants in the Drug Recovery Court. Drug addicted pregnant women are given a preference. At the present, the Drug Recovery Court is building a permanent treatment center and in the near future, will house twelve women. This facility can prove housing, March 2017

transportation to NA meetings and treatment. Judge Slone has adopted three children. He and his first wife adopted Oakland age 13. They are role models as how divorced parents should take care of their children. With his second wife, Gretchen, he has adopted Joseph age 6 and Estella age 4. Joseph came to Judge Slone and his wife suffering from neonatal abstinence syndrome (NAS) which motivated Judge Slone and his Drug Recovery Court to place an emphasis on addressing the NAS epidemic that plagues our State. In addition to the Drug Recovery Court, Judge Slone began utilizing a “Review Docket” in 2014 that incorporates the three essential elements of a successful Drug Recovery Court: 1) Adequate treatment; 2) Frequent Accountability, including drug screens and appearance; and 3) the leverage of the Court to influence behavior. In recognition of Judge Slone’s efforts to address the opioid epidemic, especially NAS, Judge Slone has received statewide awards, including in 2015, the Tennessee Public Health Association Partners and Leadership Award (the only statewide award given to someone that is not a member of the health field), the 2016 Tennessee Public Health Association “Visionary Award” and also in 2016, he and State Representative Andrew Farmer were awarded the “Voice Recovery Award” from the Tennessee Association of Alcohol, other Addition and Drug Services (TAADAS). Currently, Judge Slone chairs both the Tennessee and a nine state “Regional Judicial Opioid Initiative.” Judge Slone and his family attend True Life Church in Jefferson City. He serves as the Honduras Ministries Coordinator that implements the Boys and Girls model in the Honduran communities. Judge Slone is of the opinion that if he can address the problems of young people and also the parents, he is developing a better more educated society. No one person has made more of an impact in improving the quality of life in Jefferson County than Judge Slone in the modern day era. The Jefferson County Chamber of Commerce recognized those achievements by naming him Jefferson County’s Man of the Year in 2016. Judge Slone stated that this was his most cherished award.

DICTA

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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

RYAN GODDARD: RELATIONSHIPS AND RESEARCH “If you can get a mentor or know someone willing to mentor you, I highly experience to draw from to be successful. Ryan recommends making the recommend it.” most of extracurricular opportunities and sitting behind the bar before Ryan Goddard, a 2014 graduate of the Stetson University College you get to the well. When you’re in school, “vigorously pursue some of Law in the St. Petersburg/Tampa Bay area, grew up in Blount County type of mock trial or moot court. There aren’t really any other ‘real world’ and has now returned with his wife and daughter to hang his own practice options in law school to be in court, and I think the time there shingle. A general practitioner in areas of business law, landlord/tenant would have been well spent [for me].” Don’t stop there, either, when in law, estate law, and criminal/civil litigation, Ryan can’t emphasize enough school or newly practicing. “Go view court. Often. In various places.” the importance of fostering good relationships Learn good techniques, what not to do, different racticing law has so many during law school and the early years of a approaches, how the various courts operate, successful legal career. “Law school is hard on and how each bar expects attorneys to conduct components that are not relationships, and no one in your personal life will themselves in court. Be ready. law related. The best understand what you are going through. Some While Ryan knows there are many of the best advice I got was setting and managing ‘skill’ you can get is relationship misconceptions about lawyers being dishonest, building and finding a mentor. expectations for the roller coaster ride that he has yet to encounter that in his own practice. happens in law school. If you don’t or can’t manage “I’ll leave correcting public misconceptions up to those expectations, your relationships will suffer, someone who is smarter with social media than I and many fail. You aren’t going to have a lot of free time your first year.” am, but I’d start there to improve our reputation.” Instead, Ryan prefers On the other hand, law school is a great time to forge professional to focus on those individual, personal relationships in his day-to-day relationships. Ryan offers this advice, “Be good to each other. I practice. Most older, more established lawyers work very hard and know grades are competitive, but you never know who will have the are very busy, but always have time to mentor Ryan and other young opportunity to be your closest ally once you start practicing.” Once attorneys. “I haven’t personally experienced any generational gaps myself you are out of school and practicing, the need for allies and positive with other attorneys, but I’ve always gotten along with older people. relationships only intensifies. “Practicing law has so many components I think that’s because I spent so much time with my Papaw growing that are not law related. The best ‘skill’ you can get is relationship up.” I’m willing to bet it was Papaw who taught him the importance of building and finding a mentor.” Ryan says from the state to local level, building relationships and learning from those with more experience, and the bar associations have “been tremendously helpful in navigating my it will likely serve him well in the coming years of his legal practice. way through the first years of practice. I can’t imagine anywhere in the country that has better people. Also, be nice to the court clerks and get to know them. I was taught this lesson as a runner for a law firm before I went to law school, and it’s even truer for a practicing attorney than even the lowest guy on the [firm’s] totem pole.” This isn’t to say there aren’t law related skills that shouldn’t be honed in school and as a young legal professional. Ryan loved his Torts course when he was in school because it had the best stories. They were DICTA is a monthly publication of the Knoxville Bar sometimes good and sometimes bad, but they were always interesting. Association. DICTA is offered to all members of the It was Legal Research and Writing (what some schools call Lawyering Knoxville Bar Association as one of the many benefits of Skills), however, that ultimately proved the most beneficial once he membership. This issue represents one of our “super circulation issues” and is sent not only to all members of entered the real world. “It is terrific to learn the law and apply the the Knoxville Bar Association but to all lawyers licensed to concepts, but once you are out of school, you need to be able to find practice law in Knox County and all of its contiguous the law on your own. The more time you can spend honing the legal counties, Blount, Loudon, Anderson, Union, and Sevier. research skill, the better position you’ll be in later. You will graduate law DICTA is an important publication to the Knoxville Bar school knowing a tremendous amount of law, but you’ll need to look up Association and it provides news regarding members and 99% of what you are doing on your first day, and every day after that for a events of the Knoxville Bar Association as well as long time.” information on upcoming CLE seminars. It also provides Also, Ryan encourages students and new attorneys to get into the news and notices from the Knoxville Bar Association courtroom. “The practice of law has been somewhat more routine than president, the Barristers, and the Knoxville Bar I imagined it would be first going into law school. What I mean is that Association's nineteen different committees and eleven every case isn’t a law school textbook case with each side vigorously different sections. If you are interested in becoming a fighting for their version [of the truth]. Most of the time, your case is member of the Knoxville Bar Association, please just a non-disputed, one-sided case, and there isn’t always something to contact KBA Executive Director Marsha Watson at 505 Main Avenue, Suite 50, P.O. Box 2027, fight about, and it’s unfortunate really. The most frustrating part of the Knoxville, Tennessee 37901-2027, (865) practice can be the client’s unwillingness to fight.” 522-6522 or access our award-winning As a result, “it’s really hard to get to trial successfully.” So when you website at www.knoxbar.org. do get to court, you often don’t have a tremendous amount of personal

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DICTA

March 2017


PRACTICE TIPS By:

Heather G. Anderson Miller Anderson Law

USING DEPOSITIONS AT TRIAL With the turn of the new year, I faced a trial date for a very old case, one in which my client had assumed the role of plaintiff through an assignment, and I was tasked with presenting proof through depositions of the parties, including the former plaintiff ’s client representative, who now lived out of state. In order to prove elements of my case in chief, I wanted to use an adverse party’s deposition. This led to a review the Rules of Civil Procedure regarding the use of a deposition of an adverse party at trial. In the past when I have presented a deposition of an adverse party in my case in chief, I faced objections (which were overruled), so it strikes me that not all litigators appreciate the importance of using depositions of the adverse party (and other witnesses, as well, including experts in certain instances) to a case. Rule 32 of the Tennessee Rules of Civil Procedure governs the use of depositions in court proceedings and provides that, at the trial or a motion hearing (or interlocutory proceeding), any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof in accordance with the following provisions. Before discussing those, however, keep in mind one caveat to using a deposition is that the parts of the deposition to be used must be admissible under the Tennessee Rules of Evidence which are applied as though the witness were then present and testifying. 1. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. 2. The deposition of a party or anyone who at the time of the taking of the deposition was an officer, director or managing agent, or a person designated under Rule 30.02(6) or 31.01 to testify on behalf of a public or private corp., partnership or association, governmental agency or individual proprietorship which is a party may be used by an adverse party for any purpose. 3. The deposition of a witness (whether or not a party) may be used by any party for any purpose if the court finds the witness is “unavailable” as defined by Tennessee Rule of Evidence 804(a). However, expert depositions may not be used at trial except to impeach (Tenn. R. Civ. P. 32.01). The comments to Tenn. R. Civ. P. 32.01 make clear that this restriction applies only to discovery depositions (not depositions taken for proof ) of an adversary’s expert. 4. If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction at that time of any other party which ought in fairness to be considered with it. Turning to Rule 804(a), Tenn. R. Evid. to determine if the witness or “declarant” is unavailable, the “unavailability of a witness” includes situations in which the witness: (1) is exempted by ruling of the court on the grounds of privilege; (2) persists in refusing to testify concerning the subject matter despite a court order to do so; (3) shows a lack of memory of the subject matter of the declarant’s statement; (4) death or thenexisting physical or mental illness; (5) is absent from the hearing and the proponent has been unable to procure the attendance of the witness; or (6) for depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing.1 For example, if a witness invokes her Fifth Amendment privilege, her deposition can be used.2 A person is not unavailable as a witness, however, if exemption, refusal to testify, a claim of lack of memory, inability due to death or illness, or the absence March 2017

is due to the wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. The burden of showing the unavailability of a witness typically rests upon the proponent of the witness. I recommend asking the witness at the deposition for his address and a statement of how many miles he lives from the courthouse where the trial will take place. I have also asked the witness at the deposition whether she will be available for trial, so I have a statement under oath that she is not available to attend and the reason. Objections as to admissibility of evidence can be raised at trial or the hearing on the same bases as if the witness were then present and testifying.3 If you represent a party who was substituted as plaintiff or defendant, the right to use depositions previously taken is not affected.4 If a case is dismissed and the action involving the same matter is refiled, “all depositions taken in the former action may be used in the latter against any party who had both an opportunity and similar motive to develop the testimony at the prior deposition by direct, cross, or redirect examination.”5 If a deposition of a witness is taken in the first case, and that witness is named as a party in the latter case, then it is unlikely that the prior deposition can be used against the witness in the latter case. Any evidence presented by deposition can be rebutted regardless of who introduced the evidence.6 Under Rule 32.04, certain objections, such as issues to the oath or affirmation, the conduct of the parties, objections to the form of the question, and errors which were removable, are waived unless the objections are made on the record and at the time of the deposition.7 This is one of the reasons that making objections on the record at depositions is critical. Although over 15,000 civil and criminal cases were disposed of between July 1, 2015 and June 30, 2016, a very small number of those cases involved civil trials. Nonetheless, if you find yourself in the rare position of preparing for a trial (and trial prep begins when the case is filed, in my opinion), depositions can be a critical trial tool if used correctly. 1 The Advisory Commission Comment to the 1997 Amendment provides, “This amendment conforms Tennessee Rules of Civil Procedure Rule 32 and Tennessee Rules of Evidence Rule 804. If the former testimony is a deposition, an additional ground of unavailability is a distance of over 100 miles between the deponent and the courthouse. 2 Breeden v. Indep. Fire Ins. Co., 530 S.W.2d 769, 772 (Tenn. 1975). 3 Rule 32.02, Tenn. R. Civ. P. (West, 2016). 4 Rule 32.02, Tenn. R. Civ. P. (West, 2016). 5 Rule 32.01, Tenn. R. Civ. P. (West, 2016). 6 Tenn. R. Civ. P. 32.03 (West, 2016). 7 Rule 32.04(3)(A),(B) and (C), Tenn. R. Civ. P., (West, 2016).

NOTICE

From Catherine F. Shanks, Knox Co. Circuit, Civil Sessions and Juvenile Court Clerk

Knox County Circuit Court Divisions I, II & III After Hours Filing Box L-1 City/County Building It’s back ... the After Hours Filing Box has been reinstated as a self-help stamp and deposit box for attorneys and litigants. Please do not stamp or deposit documents that require a filing fee or issuance by a Deputy Clerk (i.e. no Complaints, Summons, etc.). The Box is emptied once daily by a Deputy Clerk in the morning of ordinary business days.

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Photo Ops

Bar Leaders Gather On January 24, KBA member Leslie Beale, Success Coach from Profusion Strategies, spoke to bar leaders about Thriving in the Practice of Law. Board members, Committee and Section Chairs and Barristers Officers and Committee Chairs met to discuss 2017 programming and discussed opportunities to integrate 2016 new admittees into the bar.

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March 2017


L E G A L U P DAT E By: Regina Koho Attorney, Tennessee Valley Authority, Office of the General Counsel1

EMPLOYMENT LAW ISSUES POTENTIALLY HEADED FOR THE SUPREME COURT As the Supreme Court continues its work shorthanded this term, it has generally declined to take up the hot-button issues we expect to see the Court address at least a few times each year.2 However, confirmation of the long-awaited ninth justice may be imminent, and should that occur in the (relatively) near future, there are two important employment law issues making their way through the courts that may pique the justices’ interest. 1. Karlo v. Pittsburgh Glass Works, LLC – Third Circuit’s recognition of “subgroup” disparate-impact claims under the Age Discrimination in Employment Act. Following several reductions in force (“RIFs”) at Pittsburgh Glass Works, a group of affected employees – all over fifty years old at the time they were terminated – brought suit, alleging that their former employer violated the Age Discrimination in Employment Act (“ADEA”) because its RIF procedures had a disparate impact3 on individuals fifty years of age and over. In response, Pittsburgh Glass Works argued that the plaintiffs should not be allowed to allege a disparate-impact claim involving a “subgroup” of individuals covered by the ADEA and instead should be required to show that the policy had a disparate impact on employees age 40 and above.4 The district court agreed with Pittsburgh Glass Works, holding that “subgroup” claims were not cognizable under the ADEA.5 The Third Circuit reversed, noting that the ADEA’s language had been interpreted by the Supreme Court in O’Connor v. Consolidated Coin Caterers Corp. (albeit in the context of a disparate-treatment claim) as “proscrib[ing] age discrimination, not forty-and-over discrimination.”6 In O’Connor, the Court held that so long as an ADEA plaintiff ’s replacement was younger, it was irrelevant that they fell within the class of people protected by the statute (i.e., age 40 and older);7 instead, the Court specified that the relevant inquiry should be whether the older individual “lost out because of his age.”8 Because the operative language of the disparate-impact provision at issue in Karlo was identical to that used in the disparate-treatment provision analyzed in O’Connor, the Third Circuit panel found that the Court’s “reasoning ineluctably leads to our conclusion that subgroup claims are cognizable. Simply put, evidence that a policy disfavors employees older than fifty is probative of the relevant statutory question: whether the policy creates a disparate impact ‘because of such individual[s’] age.’”9 From a policy standpoint, this decision makes sense – employers should not enjoy a “safe harbor for discriminating against people older than 50” simply because they have no problem with employees age 40 to 50.10 However, because the decision creates a circuit split on the issue,11 it may now be teed up for the Supreme Court’s consideration.12 At the time this article went to press, no petition for certiorari had been filed, but the parties have 90 days after entry of judgment in which to do so.13 2.

Christiansen v. Omnicon Group, Inc. – Second Circuit revisits precedent holding that sex discrimination under Title VII does not include discrimination based on sexual orientation.

Title VII prohibits discrimination “because of ” sex,14 but whether this includes discrimination based on sexual orientation is less clear, and in some circuits, the theory has been outright rejected. The Second

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Circuit is one of those to have rejected it, holding in 2000 that “Title VII does not proscribe discrimination because of sexual orientation,” only discrimination based on nonconformity with sex stereotypes.15 In 2016, this ruling completely precluded the plaintiff in Christiansen v. Omnicon Group from moving forward with his Title VII claim. There, the plaintiff, “an openly gay man who [was] HIVpositive,” alleged that his supervisor “subjected him to ridicule and abuse . . . due to [his] animosity toward homosexuals.”16 The district court judge, although recognizing that “[b]y any metric, the conduct alleged is reprehensible,” concluded that the plaintiff essentially pled a claim based on sexual orientation discrimination; thus, the judge was constrained to dismiss it under existing Second Circuit precedent,17 but implored the Second Circuit to revisit its decision in light of intervening developments in the law.18 The Second Circuit heard oral arguments in the case on January 20, 2017. Although it cannot be predicted with certainty whether the Second Circuit will overrule its prior decision, it seems quite likely that it will. For one, as the district court in the case recognized, lower courts have experienced “difficulty [in] disaggregating acts of discrimination based on sexual orientation from those based on sexual stereotyping.”19 Moreover, the EEOC issued a 2015 decision explicitly recognizing such claims,20 and the Seventh Circuit recently vacated a three-judge panel rejecting sexual-orientation claims under Title VII and took the case up en banc.21 Depending on whether the losing side appeals, the question of whether sexual-orientation discrimination is a cognizable theory under Title VII may also be an issue that is ultimately resolved by the Court in the next few years. 1 Any opinions expressed in this article are those of the author and are not attributable to the Tennessee Valley Authority. 2 As one commentator has noted, the cases currently being heard are “B and B+ cases that we are not going to be talking about in a decade.” Richard Wolf, Scalia’s absence haunts Supreme Court’s new term, USA Today (Oct. 3, 2016), available at http://www.usatoday.com/story/news/politics/2016/10/03/supreme-court-scalia-termcases/91442190/. 3 A disparate-impact claim is where a facially neutral policy has a disproportionate impact on a protected group of individuals. Karlo v. Pittsburgh Glass Works, LLC, __ F.3d __, 2017 WL 83385, at *1, *3 (3d Cir. Jan. 10, 2017). 4 See Noah Feldman, Age Is Just a Number. Age Discrimination is Trickier, Bloomberg View (Jan. 15, 2017), available at https://www.bloomberg.com/view/articles/2017-01-15/ age-is-just-a-number-age-discrimination-is-trickier (last visited Feb. 7, 2017) [hereinafter Feldman, Age is Just a Number]. 5 Karlo, 2017 WL 83385, at *4. 6 Id. at *5 (discussing O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996)). 7 O’Connor, 517 U.S. at 312. 8 Id. 9 Karlo, 2017 WL 83385, at *5-6 (quoting 29 U.S.C. § 623(a)(2)). 10 Feldman, Age Is Just a Number, supra note 4. 11 See Karlo, 2017 WL 83385, at *9, *12. 12 Feldman, Age Is Just a Number, supra note 4. 13 See Sup. Ct. R. 13. 14 See 42 U.S.C. § 2000e-2(a)(1). 15 Simonton v. Runyon, 232 F.3d 33, 36, 38 (2d Cir. 2000). 16 Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 604-05 (S.D.N.Y. 2016). 17 See id. at 618. 18 See id. at 622. 19 See id. at 619-20. 20 See EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015). 21 See Kaminer, Second Circuit to Hear Case on Sexual Orientation Discrimination, New York Law Journal (Jan. 18, 2017), available at http://www.newyorklawjournal.com/ id=1202777027850/Second-Circuit-to-Hear-Case-on-Sexual-Orientation-Discrimination? slreturn=20170113101722 (last visited Feb. 12, 2017).

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OUTSIDE MY OFFICE WINDOW By: Robert E. Pryor, Pryor, Priest & Harber robertpryorjr.blogspot.com

Jr.

THE PUSH Blending families is like a box of chocolates…In the dawn of a new life, after a bold move by Nancy and I to marry and merge families after less than six months of dating, we loaded up our Ford Expedition with our four young children and new puppy and headed off to the panhandle of Florida. This would be our first vacation as a family. My children (Shelby and Andy) and her children (Cliff and Cori) had become acquainted during our whirlwind courtship, stood with us at our wedding, and lived with us during our brief time prior to the trip. We were slowly becoming a family. The SUV was packed tight. Bicycles hung on the rack attached to the back of the car as we made our way down highway 331 in lower Alabama. The drama and psychology of traveling with four newlyacquainted kids at the ages of 9, 6, 6, and 3 was a magnificent and frustrating experience. Nothing amplifies the flaws in any familial relationships better than an eight-hour drive with a beagle pup crammed in one vehicle. We knew the trip would be important. It would help forge our relationships for years to come. Each child’s struggle to establish identity within a new order was apparent and something Nancy and I had discussed before deciding to merge our families. Things had gone smoothly, all things considered, but the relationships between the kids were evolving. Shelby and Cori are the same age, but our daughters could not be any more different. They had actually been classmates in preschool before Shelby’s mother tragically died and Cori’s parents divorced. For a child, divorce is a different kind of death, requiring its own adjustment and form of survival. Death and divorce must both be grieved and they must be accounted for in each step of forging on. Nancy and I had been married in a “fever,” as Johnny Cash would say, but we were adults (at least we thought so) and we knew that throwing four young children in a stew and mixing them in could turn out delicious or utterly unpalatable. After a day in Destin, the seven of us went on a walk to a place called Jolee Island where there are swing sets, hiking trails and plenty of places for all to run about and get exhausted. When kids are that age getting everyone exhausted is an integral part of the plan. The problem lies in the fact we often faltered long before them. As the kids were climbing on the playground equipment, Shelby posed the idea of a foot race with Cori. Shelby was the child who planned what everyone was going to do. Even at 6, she always had an agenda and was pleased to offer up the schedule for the afternoon. She also looked for advantage, like the time she would leave Cori a letter in her stocking, supposedly penned by Santa Claus, telling Cori that “I saw what you did to your sister. If you do it again you’ll never get presents.” This is a level of brilliance I’m still grasping. Cori was sensitive, athletic and competitive. If you’ve ever had a sensitive and competitive child, you know that wins come with a great sense of inner well-being and losses…well, they are simply unacceptable and a catastrophic event bordering on the end of the world. Cori was fast, Shelby was calculating. Shelby negotiated a head start which Cori graciously, if suspiciously, conceded. Nancy and I eyed each other with dread. The race meandered through palm trees and tropical brush along a sandy path. We could hear their footsteps and Shelby’s giggles as Cori closed the gap. We caught glimpses of them in the trees under a warm Florida sun. If God has a favorite song it is the sound of six-year-old girls laughing and running. They emerged in a clearing closing on the

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designated finish line. I held up the camera taking photos furiously as they approached. They both held looks of determination as they gained on the designated end of the race, fighting as if their lives depended on the final outcome. As they crossed and Cori claimed victory, Shelby raised protestations of cheating, “She pushed me at the end!!” she claimed. “I did not!” Cori retorted. I counseled the girls on the values of competition, their bond - the fact they had each other to compete with and talk to the rest of their lives. I told them the value of having siblings, that they always cause you to try harder, to be your better self. I thought it an unbelievable opportunity to impart lifelong wisdom to two beautiful and loving girls and counsel Shelby on making excuses, especially in light of the fact she got a head start. They are now 20 years old, juniors in college. Each is an honors student in their respective college. They could not be more different, but love each other as…sisters. They competed with grades in middle and high school. Despite their differences and the lack of shared blood, they have made each other better. They keep up with how the other is doing in school and in other aspects of life. As I write, one is in Idaho, the other headed for Australia for a semester. As far away from each other as they are, they are so close. Their relationship is a great source of pride. The photo is legend in our family. When I got back to the condo on that day, a day that seems like a lifetime ago, I looked at my photos from the afternoon. Among them was the one below. It is blown up and has a prominent place in every home we’ve owned over the years. In it is the joy, the determination, and the competitiveness that defines my girls. It is simply called, “The Push.”

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MANAGEMENT COUNSEL: LAW OFFICE 101 By: Michael J. Stanuszek The Stanuszek Law Group, PLLC

FROM THE CLOSET OFFICE TO THE CORNER OFFICE TO PRACTICALLY NO OFFICE AT ALL: ONE FIRM’S JOURNEY INTO VIRTUAL OFFICING. I guess my hatred for tight spaces began in 2004, as a first year attorney. Like most junior associates at large law firms, I was expected to bill hours and not much else. And bill hours I did: 2,400 of them to be exact. Only unlike my lawyer friends who had fancy offices overlooking the mountains, or a picturesque ravine, or a bubbling brook, my office was an eight foot by ten foot windowless closet on the third floor of some Class A office space in Cleveland, Ohio. And so for a year, there I was - each day - enjoying my 12 minute lunch break, which I spent cussing out my firm’s partners (under my breath, or course) from my nook, “They couldn’t even get me an office?!? All this just to save a buck!?! Those cheap sons of….” Oh sure, my family and friends assumed I had one of those fancy lawyer offices you see on television. And why wouldn’t they? A fancy office comes standard with a law license, right? I mean, Denny Crane had a balcony off of his Boston office. Arnie Becker’s office was every bit as impressive as his convertible Porsche – even for L.A. standards. Even the most modest of television lawyers, Ben Matlock, had an office that looked like it smelled of rich Atlanta mahogany. And so, when I hung my shingle in Knoxville in the summer of 2006, I knew that as long as my name was on the door, I had to have one of those fancy lawyer offices. Something that said, “Hey, look at me! I know what I’m doing. You know I know what I’m doing because I have a fancy lawyer office.” And fancy lawyer offices, I’ve had indeed. I finally got that mountain view from an office in Riverview Tower. I finally got some much desired space with a loft in the Old City. I even opened up a second Knoxville location at one point. But even though I had grown my firm to five associates, I never saw them because my associates and I were in court nearly five days a week (practically all day). And though I set monthly billing requirements for them, I didn’t set daily office hours. So, there were stretches that I didn’t see my associates for two or three weeks at a time. Oh, we communicated regularly of course (via email, phone or text), but I only saw the whites of their eyes on payday. On that rare occasion that I actually found myself sitting in the office, it was a ghost town. It felt like I was doing the whole “brick and mortar thing” just because that’s how it’s supposed to be done, or so I had been told somewhere. So one day, at the end of my typical 65 hour work week, I calculated the number of hours I actually spent in my office, and it confirmed what I guess I already knew to be true. I averaged 12 hours a week in my big, beautiful, ridiculously expensive office. My associates, even less. And

that’s when it hit me – the fancy office shouldn’t have been the goal; the fancy office was the problem. Three months later, we went virtual. First order of business - going paperless. Over the course of the next three months, we uploaded every single file that we had opened in the past 10 years to the cloud. Once done, my associates had access to all of their file materials and emails from their phones and laptops. At that point, there was absolutely nothing that tied us down to a physical location. Second order of business – finding somewhere to conduct client meetings. This part was actually pretty simple. When I practiced out of that closet, I always met with clients in one of the firm’s conference rooms (presumably because the partners would have never let any client see my work space). So, I just expanded on that concept, and signed a lease with a local office share company for use of its conference rooms. With that lease, we also got a downtown address, and 120.6 square feet of dedicated space to use as our principal place of business. Our two paralegals work there. When my associates are not in court, they work from … well … wherever. They’re expected to get their work done just like traditional firms; it’s just that they may be returning your phone call while in a coffee shop wearing a suit or at home wearing pajamas. You’ll never know the difference, which is the point. To this day, I never understood why firms require their attorneys to sit in their offices from 8:00 to 6:00 just to dictate letters and return phone calls. To be sure, there were some doubters at first. People snickered when I pitched them the idea, “What about your reputation? How is this going to look to potential clients? God no! People are going to think you’re going under!” Of course, those were the same people that think an attorney needs an engraved leather briefcase and an adjustable leatherback swivel chair to be competent, so I didn’t pay them much mind. All said and done, I now run a five attorney law firm out of a space the size of a master bathroom. When people ask me nowadays about my office space, I just smile and point to my iPhone. I couldn’t be prouder of what we’ve done. You know, I’ve found that your attitude changes a lot when you go from signing the back of the checks as an associate to signing the front of the checks as the firm’s owner. Having made that career transition some 11 years ago, and having now gone virtual, I look back on my former firm and that closet they gave me as a first year attorney and think, “When it comes to cutting costs, those guys were amateurs.”

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.

March 2017

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

JD

SERVING WITH SANITY Recently, I was asked to speak to a professional organization for human resources leaders. In talking with the coordinator about potential topics, she mentioned that one of the attendees’ biggest struggles was how to serve their profession while balancing the other demands they face. As lawyers, I think many of us face the same challenge. We want to give back or be of service, but often, end up feeling worn down, resentful, and overwhelmed in the face of the many requests we receive. I’ve tried several ways to deal with my tendency to over-give. I’ve said yes to everything, giving myself the “you can do it, you just need to manage your time better” speech over and over. I’ve said no to everything, putting up walls around my non-working time that were almost impenetrable. Like Goldilocks, however, I’ve found that the right solution is somewhere in the middle. The truth is, I want to be generous with my time. I want to support causes I care about in ways other than giving money. But, I also want to do so without slipping into resentment or feeling overwhelmed. Here are three tips that have been helpful for me in getting closer to that goal.

Meetings, volunteer projects, and the like are simply more fun when the people beside you are your friends. Invest in relationships with the people serving with you. If you’re an introvert like me, this one can be a real struggle. It can be hard to stick out your hand and say, “Hi, I don’t think we’ve met.” But, most people will welcome the introduction, and be appreciative that you were willing to break the ice. So, come a few minutes early to meetings. Talk to people serving with you. Get to know them, what they do in the rest of their lives, and what matters to them. It may turn out that you build a lasting friendship from such opportunities. The desire to serve is part of the human experience, and a key motivator for many attorneys. But, finding ways to serve that keep us from feeling resentful or overwhelmed is crucial. Otherwise, we end up burned out and don’t offer the best of who we are to ourselves or to those we serve.

Give from Your Strengths There are unlimited ways to give of your time. Some will be squarely in your set of strengths; others won’t. I find that if I give most of my time in ways that fit my personality and abilities, the experience is much more rewarding. There’s simply no need to swim against the current when it comes to service. If you have a knack for administration, budgeting, and the like, serving on a board may be just the place for you. If you love being involved in outdoor activities and can’t stand to sit still, maybe a monthly board meeting isn’t a good fit. I guarantee that whatever your personality and strengths, there will be a place they can be used. That being said, serving in a way that honors your personality and strengths doesn’t mean that your service has to directly relate to your day job. In fact, giving back is a perfect time to pursue your own hobbies or interests. Service can be a great way to tap into creativity that is difficult to express in a very left-brained profession. So, go ahead; volunteer to plan the next fundraising gala or charity event. Get Clear on Your Non-Negotiables Sleep, exercise, time with your kids, or worship services. We all have some non-negotiables - things that when missed have a real impact on us. Before making a service commitment, be sure that the requirements allow you to honor your non-negotiables. If meetings conflict with something else that is important to you, it’s best to pass on the opportunity and find another way to serve. The same is true when you are simply overcommitted. If you find yourself scrimping on sleep or other priorities to handle your service commitments, you need to say no to the next few opportunities. Doing so will go a long way toward preventing conflict and resentment. It’s also important to remember that what’s important to us shifts throughout our lives. What is a priority today may be further down the list, or at least require different attention, in another season. The same is true of our workloads. The demands on your time today may ease in the future. Reminding myself that “not right now” doesn’t mean “no, never” helps relieve some of the pressure of turning down an opportunity. Build relationships

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

MAKING A SMARTT INVESTMENT February of 1919 was a month of beginnings. Three months earlier, Germany agreed to an armistice which ended WWI. The Paris Peace Conference had just ended, the League of Nations began its short-lived existence, and the world began trying to get back to normal.1 James E. (“Jim’) Casey moved his growing company to Oakland, California, and changed its name to United Parcel Service.2 Package delivery would never be the same. While world leaders were working out a deal to prevent another world war – at least for twenty years – a baby boy was born in Tennessee 4,345 miles away. The youngest of seven, he grew up in a small town in Warren County. A few years later, he served as a Captain in the United States Army during WWII, and once the war was over, he moved to Knoxville to attend the University of Tennessee College of Law. In 1948, he began what became a long and distinguished legal career, serving as the director of the UT alumni association, then entering private practice, first with Fowler & Robertson in 1969, and then with Ambrose, Wilson & Grimm in 1983. It was only two years later that a young associate joined Ambrose Wilson, and that is when Rockforde (“Rocky”) King first met him. The fact that he had been a practicing trial attorney for thirty-seven years didn’t matter to him. He took the time to get to know Rocky and to work with him, teaching those things about the practice of law that you can’t learn in a classroom or from taking an exam or reading a book. But, the thing Rocky remembers most is that this attorney knew everybody. As the UT alumni association director, he and President Andy Holt traveled throughout Tennessee promoting the integrity & prominence of the University, which encouraged financial support. He knew the other attorneys of the Knoxville bar. He knew their spouses. He knew their children. He knew attorneys from the surrounding counties and knew their people as well. He joined with Don Paine and John Walker to coordinate the Tennessee Law Institute annual update and got to know attorneys across the state. He made the East Tennessee community a better place by serving on the Board of Directors of the United Way and as President of the Great Smoky Mount Conservation Association. He was a charter member of the Lady Vols BoostHer Club and the official timer for the Vols swim teams for eight years. For 60 years, he led nature hikes in the Great Smoky National Park but found time to sing in a Barbershop Quartet. His graceful tenor voice would harmonize above the lead. He faithfully stood next to a little red kettle, ringing his Salvation Army bell in rain or shine. Yes, this attorney knew everyone, and that impacted Rocky. To this day, Rocky is the person I go to when I need a referral or a connection, or some insight into the local practices of an unfamiliar court. Have a hearing in Anderson County? Rocky knows someone. Need an expert in Chattanooga? Rocky knows someone. There isn’t a court clerk or court reporter within 100 miles that Rocky doesn’t know . . . and their spouses, kids, in-laws, grandkids, pets, favorite colors, etc. Rocky knows everyone. Rocky also followed this attorney’s example of public service. He currently serves as a Confirmation teacher at Concord United Methodist Church and on the Board of Directors for numerous nonprofit organizations, including The AD Foundation, the Kiwanis Club of Knoxville’s Fresh Air Camp, the West End Academy, the Big Creek People in Action, and the Consumer Credit Counseling Service of March 2017

Greater Knoxville. Rocky knows everyone. But, in reality, it all started thirty-two years ago, when one attorney invested time, energy, and resources in him. There are a lot of ways to spend your time every day. In a profession which bills by the hour, it is only natural that billable activities take precedence over non-billable activities – like having a cup of coffee with an associate or spending an extra minute with a colleague to see how their aging parent is doing. After all, the return on investment (ROI) on the first is tangible and immediate. The ROI on the second? Well, that one may take decades to surface. With so much technology, it is entirely possible to spend an entire day interacting with other people through devices. Emails, text messages, and cell phones have increased our ability to send and receive thoughts and ideas but at what expense? A study by Scientific American found that the mere presence of a cell phone in a room had a negative effect on how people interact with each other – even if the phone never made a sound and even if the phone didn’t belong to either person.3 Really. We know this. How many times in the last week did you have a meal with someone and that person’s 200 Facebook friends? How many times did you ride in a car while your passenger spent the trip texting and talking to other people? How many times have you left the cell phone in your desk drawer before you headed into a meeting just so you would have the opportunity to interact with people? Investing in other attorneys takes time and energy. Fortunately, decades ago, an attorney was willing to make that investment in Rocky King, and the return on that investment continues to pay off 32 years later. And that is why, when I asked Rocky who was on his thankworthy list, he answered, without hesitation, “John Smartt,” the man who knew everyone.4 1 U.S. Dept. of State, The Paris Peace Conference and the Treaty of Versailles, https:// history.state.gov/milestones/1914-1920/paris-peace, last visited Feb. 9, 2017. 2 History of UPS, https://www.ups.com/content/cn/en/about/history/1929.html, last visited Feb. 9, 2017. 3 Helen Lee Lin Your Cell Phone Hurts Your Relationships, Scientific American (Sept. 4, 2012), https://history.state.gov/milestones/1914-1920/paris-peace. 4 Mr. John Madison Smartt passed away on November 13, 2013. You can read more testimonies about his life at this website: http://www.tributes.com/condolences/view_ memories/96675482?p=10&start_index=1.

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THE FLAG, THE PRESIDENT, AND THE FIRST AMENDMENT On November 29, 2016, our thenPresident-elect tweeted: Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!1 That tweeting President-elect, Donald Trump, is now the 45th President of the United States. His proposals may well become law. But would a law punishing flag burning be constitutional? “The answer is no,” says Professor Douglas McKechnie, citing the controlling Supreme Court case, Texas v. Johnson.2 Professor McKechnie teaches constitutional law at the United States Air Force Academy. We spoke about this issue on a recent episode of my public radio show, Your Weekly Constitutional.3 But first: doesn’t Tennessee already have such a law? Indeed it does. Section 39-17-311 of the Tennessee Code Annotated, enacted, perhaps coincidentally, in 1989, the same year Johnson was decided, provides that: (a) A person commits an offense who intentionally desecrates: (1) A place of worship or burial; or (2) A state or national flag. (b) A violation of this section is a Class A misdemeanor.4 The term “desecrates” is key. It “means defacing, damaging, polluting or otherwise physically mistreating in a way that the person knows or should know will outrage the sensibilities of an ordinary individual likely to observe or discover the person’s action.”5 And the penalty for a Class A misdemeanor like flag desecration is significant: imprisonment for “not greater than eleven (11) months, twenty-nine (29) days or a fine not to exceed

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two thousand five hundred dollars ($2,500), or both . . . .”6 So this is not a theoretical issue. You may someday find yourself representing a criminal defendant charged with flag desecration. Or, if you are a prosecutor, your angry constituents may demand that you charge a protestor who has burned our national flag. In either event, you should look beyond Tennessee law, which has been preempted in this area by the United States Constitution. As with all constitutional issues, a bit of context is in order. While cases involving flag burning are a relatively recent phenomenon, concerns over the proper treatment of the American flag date back to at least to the Civil War, when a significant portion of the nation was not inclined to show it much respect. Other Americans, of course, remained fiercely loyal. On one notable occasion, a woman in Frederick, Maryland (a slave state that decided against secession7) defiantly displayed the Stars and Stripes as Confederate troops marched by on their way to bloody defeat at Antietam. Her bravery was memorialized in verse: ‘Shoot, if you must, this old gray head, But spare your country’s flag,’ she said.8 In the several decades after the Civil War, a number of states enacted statutes mandating that the flag be treated with respect. A challenge to one such statute eventually reached the Supreme Court. In Halter v. Nebraska, the Court upheld a law prohibiting commercial exploitation of the flag.9 In a memorable line, the first Justice Harlan wrote for the majority that “we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer.”10 Almost a quarter of a century later, after the First Amendment had been incorporated

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as against the states, the Court began moving in the opposite direction, holding that the display of a flag was protected speech. Ironically, the flag in question was not the American flag, but a flag commonly identified with radical causes. In Stromberg v. California, the Court considered the constitutionality of a state statute that made it a felony to display a red flag “as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character.”11 Nineteen-year-old Yetta Stromberg, a teacher at a communist youth camp, was convicted of violating the statute. The Court reversed, ruling that “free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means . . . is a fundamental principle of our constitutional system.”12 Of course, if displaying a flag to support a political viewpoint is speech, then destroying that flag to express the opposite viewpoint must also be speech. Thus, Stromberg set the stage for the constitutional protection of flag burning. But the path from Stromberg to Johnson was not a straight one. In Minersville School District v. Gobitis, the Supreme Court upheld a Pennsylvania statute that required public school students to recite the Pledge of Allegiance, complete with a Hitler-style salute.13 The Court ruled that the rights to free speech and religious freedom of twelve-year-old Lillian and ten-year-old William Gobitis, both Jehovah’s Witnesses, were subordinate to the government’s power to instill uniform patriotism in its students: “The ultimate foundation of a free society is the binding tie of cohesive sentiment. . . . ‘We live by symbols.’ The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution.”14 March 2017


COVER STORY By: Stewart Harris Lincoln Memorial University Duncan School of Law in Knoxville

Reaction to Gobitis was widespread and negative, beginning with a strongly-worded dissent by Justice Harlan Stone: The law which is thus sustained is unique in the history of AngloAmerican legislation. It does more than suppress freedom of speech, and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.15 Indeed, only three years after Gobitis, the Court reversed course, striking down a compulsory flag salute statute in West Virginia State Board of Education v. Barnette.16 In some of the most stirring words ever to appear in the United States Reports, Justice Robert Jackson wrote for the majority: The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. . . . If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.17 While Barnette involved compelled speech about the flag, rather than flag burning, its import was clear. Enter the 1960s, the civil rights movement, and Vietnam. In Street v. New York, the Court cited Barnette when it reversed a state conviction for flag burning.18 It noted that the conviction was partly based upon spoken words – “We don’t need no damn flag” – that were protected by the First Amendment.19 In Smith v. Goguen, the Court reversed the conviction of a man for treating the flag with “contempt” by sewing it to the seat of his pants, ruling that the relevant March 2017

Massachusetts statute was void for vagueness.20 Two years later, in Spence v. Washington, the Court held that using tape to add a peace symbol to an American flag was protected speech.21 But the Court then waited more than a decade before finally, and squarely, facing the issue of flag burning in Johnson.22 Gregory Lee Johnson was convicted for violating a Texas statute by burning an American flag during the 1984 Republican National Convention in Dallas. The Court reversed his conviction, holding that flag burning, in such a situation, was protected expressive conduct under the First Amendment.23 The Johnson Court noted that the Texas law did not penalize the burning of the flag, but rather, the thought behind the burning: “Johnson was prosecuted because he knew that his politically charged expression would cause ‘serious offense.’ If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under this Texas law . . . .”24

Congress immediately reacted by passing the Flag Protection Act of 1989, which purported to avoid any regulation of expressive conduct. However, the Supreme Court quickly struck it down, holding that “[a]lthough Congress cast the Flag Protection Act of 1989 in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: It suppresses expression out of concern for its likely communicative impact.”25 Subsequent attempts to amend the Constitution to exempt the flag from the First Amendment’s protection have repeatedly failed.26 It is possible that such an amendment will pass in the future. It is also possible that the Court will change course again. The President’s first Supreme Court nomination is Judge Neil Gorsuch, who is often compared with the late Antonin Scalia, and who, if confirmed, will likely move the Court to the right. It is notable, however, that Justice Scalia voted with the majority in Texas v. Johnson.

1 Donald Trump (@realDontaldTrump), TWITTER (Nov. 29, 2016), https://twitter.com/realDonaldTrump. 2 Texas v. Johnson, 491 U.S. 397 (1989). 3 Underwritten by James Madison’s historic home, Montpelier and syndicated nationally, Your Weekly Constitutional is broadcast locally on WUOT-2 at 7:00 PM Mondays. You can listen to WUOT-2 via HD radio or at http://www.wuot.org. Your Weekly Constitutional is also available as a podcast on iTunes. You might enjoy downloading and listening to the podcast version. 4 Tenn. Code Ann. § 39-17-311 (2010). 5 Tenn. Code Ann. § 39-17-301(1) (2010). 6 Tenn. Code Ann. § 40-35-111(e)(1) (2012). 7 Barely. The state was evenly divided, politically. The scales were tipped when the United States Army showed up and arrested pro-Confederate state legislators. Isaac N. Arnold, Arrest of the Maryland Legislature, in the History of Abraham Lincoln and the Overthrow of Slavery (1866), http://www.heinonline.org.lmunet.idm. oclc.org/HOL/Page?men_tab=srchresults&handle=hein. beal/hoabrali0001&size=2&collection=slavery&set_as_ cursor=&id=245. 8 John Greenleaf Whittier, “The Ballad of Barbara Fritchie,” reprinted in Larry Fox, Frederick, Past & Present, Wash. Post, (Jun. 30, 1995), http://www.washingtonpost. com/wp-srv/local/longterm/tours/civilwar/frederic.htm. Interestingly, Whittier seems to have gotten it wrong. The outspoken American was another resident of Frederick, Mary Quantrell. Robert McCartney, Barbara Fritchie Didn’t Wave That Flag, Wash. Post, (Sept. 15, 2012), https:// www.washingtonpost.com/local/barbara-fritchie-didntwave-that-flag/2012/09/15/0c25ecec-ff3a-11e1-8adc499661afe377_story.html?utm_term=.0f4fe701c492. 9 Halter v. Nebraska, 205 U.S. 34 (1907). 10 Id. at 42. The challenge was based upon the Fourteenth Amendment, rather than the First, which would not be incorporated as against the states until Gitlow v. New

York, 268 U.S. 652 (1925). One wonders what the Halter Court would have thought of Budweiser’s recentlyunveiled “America” beer, or the Surly Brewing Company’s #Merica Beer. 11 Id. 12 Id. at 369. 13 Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940). The original flag salute was the stiff-armed “Bellamy Salute,” named after the author of the Pledge. While the Gobitis Court describes the familiar hand-over-heart gesture, such a relatively gentle hail was not widely used until the United States entered World War II, when the Bellamy Salute was replaced because of its similarity to the fascist salutes used in both Italy and Germany. Id. at 591. The Pledge and the ceremony surrounding it have been changed several times since its 1892 publication, most notably with the addition of the words “under God” in 1954. Richard J. Ellis, The Unlikely History Of The Pledge of Allegiance (2005). 14 Minersville, 310 U.S. at 596. 15 Id. at 601. 16 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 17 Id. at 641-42. 18 Street v. New York, 394 U.S. 576 (1969). 19 Id. at 594. 20 Smith v. Goguen, 415 U.S. 94 (1972). 21 Spence v. Washington, 418 U.S. 405 (1974). 22 Johnson, 491 U.S. 397. 23 Id. 24 Id. at 411. 25 United States v. Eichman, 496 U.S. 310, 317 (1990). 26 Charles Babington, Senate Rejects Flag Desecration Amendment, Wash. Post, (Jun. 28, 2006), http://www. washingtonpost.com/wp-dyn/content/article/2006/06/27/ AR2006062701056.html.

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LAWYER’S ALMANAC By: Chris McCarty Lewis, Thomason, King, Krieg & Waldrop, P.C.

CODE OF THE KHAN When you think Genghis Khan, you don’t typically think law and order. I tend to think of a man going wild in a shopping mall during Bill & Ted’s Excellent Adventure. Yet others, perhaps more normal members of society, likely think of a leader who used utter brutality and military genius to conquer a good portion of the known world. All of this is true, of course, even the Bill & Ted part. The Great Khan, however, also played a significant role in shaping legal history. The Yassa (or Yasa or Yasak) was a code of laws instituted and enforced within Genghis Khan’s vast empire. Evidence of the code has never been found in any Mongolian scrolls, yet many other sources from the 12th and 13th centuries confirm its existence. This means it was likely followed from the eastern coast of modern China to the eastern edge of modern Europe.

Address Changes

Some of the Yassa seems a bit dated for sure:

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Animal rustling was punishable by death; Raising a steel weapon toward another was punishable by having the aggressor’s hand removed; Petty theft was punishable by having the aggressor beaten with a rod.

Yet two parts of the code really stand out considering it was implemented almost 1,000 years ago: (1) the Yassa was not divine in nature; (2) it called for freedom of religion. Hammurabi’s Code and the Hebrew Torah were said to come directly from a deity. The Yassa was entirely secular, even mandating all religions were to be treated with respect within the Great Khan’s empire. Moral of the story? Even a tyrannical warlord is capable of at least one or two good ideas.

Please note the following changes in your KBA Attorneys’ Directory and other office records: Kathaleen Ann Barker BPR # 014066 Law Office of Lisa Collins Werner 9724 Kingston Pike, Ste. 1101 Knoxville, TN 37922 Ph. (865) 961-0400 ann@lisacollinswerner.com William E. Duffey Jr. BPR # 010764 112 Durwood Drive Knoxville, TN 37922 Ph. (865) 531-3500 Fax: (865) 690-8382 duffeywe@gmail.com Kourtney L. Hennard BPR # 032161 515 Madison St Apt 140 Nashville, TN 37208 Ph. (865) 405-2939 kourtneylace@gmail.com William A. Ladnier BPR # 034316 Arnett, Draper & Hagood, LLP P.O. Box 300 Knoxville, TN 37901-0300 Ph. (865) 546-7000 Fax: (865) 546-0423 wladnier@adhknox.com Ralph H. Lehman BPR # 020175 P.O. Box 11246 Knoxville, TN 37939 Ph. (865) 803-7086 voldawg47@att.net

Ashley H. Morgan BPR # 032273 Lewis, Thomason, King, Krieg & Waldrop, P.C. P.O. Box 2425 Knoxville, TN 37901-2425 Ph. (865) 546-4646 Fax: (865) 523-6529 amorgan@lewisthomason.com Michael P. O’Neal BPR # 034777 4908 Azalea Drive Knoxville, TN 37909 Ph. (662) 701-0638 m.patrick.oneal@gmail.com Larry C. Vaughan BPR # 001789 The Vaughn Law Firm 112 Durwood Drive Knoxville, TN 37922 Ph. (865) 531-3500 Fax: (865) 690-8382 vandzlaw@aol.com Firm Name Change: McKinney & Tillman Previously Anne M. McKinney, P.C. 1019 Orchid Avenue Knoxville, TN 37912 Ph. (865) 525-8700 Fax: (865) 521-4189 Anne McKinney: amckinney@ammtaxlaw.com Victoria Tillman: vtillman@ammtaxlaw.com

Melissa L. McGowan BPR # 030345 P.O. Box 1258 Covington, TN 38019 Ph. (865) 236-0058 Fax: (888) 958-2867

attorneymelissamcgowan@yahoo.com

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March 2017


WELL READ By: Lee T. Nutini Gideon Cooper & Essary

THE PAST REPEATS One way to stay well-read is to re-read. I used to pay close attention to the musings of Peter Thiel, a law school graduate among his many other talents. Given his recent self-insertion into the American political realm as a Trump aide (as well as his newfound love for litigation financing, see Gawker v. Bollea), I decided to re-read one of Thiel’s talks given during a Stanford University class on start-ups, as told by his thenstudent and now-co-author, Blake Masters. * * * “It may upset people to hear that competition may not be unqualifiedly good. We should be clear what we mean here. Some sense of competition seems appropriate. Competition can make for better learning and education. Sometimes credentials do reflect significant degrees of accomplishment. But the worry is that people make a habit of chasing them. Too often, we seem to forget that it’s genuine accomplishment we’re after, and we just train people to compete forever. But that does everyone a great disservice if what’s theoretically optimal is to manage to stop competing, i.e. to become a monopoly and enjoy success. . . . The perfect illustration of competition writ large is war. Everyone just kills everyone. There are always rationalizations for war. Often it’s been romanticized, though perhaps not so much anymore. But it makes sense: if life really is war, you should spend all your time either getting ready for it or doing it. . . . But what if life isn’t just war? Perhaps there’s more to it than that. Maybe you should sometimes run away. Maybe you should sheath the sword and figure out something else to do. Maybe “life is war” is just a strange lie we’re told, and competition isn’t actually as good as we assume it is.” * * * Thiel’s comments took place in 2012, around the same time I was writing about Hobbes’ political philosophy in Leviathan, which likewise includes concepts of war, competition, nurturing, and emigration: “In this commonwealth of safety, many men will need to be looked after by the state itself. This is a distant notion to the free market vision because we see the sovereign focus on the well-being of single citizens. The popular response to such welfare legislation is found in the form of the ‘free-loader problem,’ and I think it is important for us to ask it of political theorists. Hobbes assures the reader that all of those who have “strong bodies” will be forced to work, and that what seems to be an extensive job creation system will be instituted to help them “avoid the excuse of not finding employment.” Then Hobbes addresses the growing population of healthy citizens, stating that “they are to be transplanted into Countries not sufficiently inhabited” to live a life of sustenance and peace with those native to the land. However, the whole process leads us again to war: “And when all the world is overcharged with Inhabitants, then the last remedy of all is Warre; which provideth for every man, by Victory, or Death.” Come again? Weren’t we within this covenant and commonwealth to remove us from the state of perpetual war? How can it be that our journey through the evolution of a sovereign nation leads us back to war? Do limited resources inevitably return us to war?

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The unfortunate return to a state of war within the commonwealth reveals nothing but a failure by the commonwealth itself to uphold its covenant to its people, and, thus, its well-being. The commonwealth finds that, at the intersection of its caretaking and its resource limitations, the covenant cannot be for all men, by all men – exclusion and death will be necessary to the preservation of it. So, what is at stake here? We band together, institute a sovereign, care for those who cannot work, provide work for those who can, emigrate, colonize foreign unclaimed lands, and wait for the moment of unsustainability. This is our path; this is our return to war. For Hobbes, this is a logical progression of the charitable society. His ideas demonstrate that the covenant is just a temporary reprieve from the state of war.” * * * When we re-read ideas from our past, it is striking how the concepts ring true for our present and future. Although America culture (and societal discourse) seems to change, it really is just revisiting.

NOTICE OF CLAIMS COMMISSIONER VACANCY Tennessee Claims Commission, Eastern Division Notice is hereby given that, due to the expiration of William Shults’ term on the Tennessee Claims Commission as Commissioner for the Eastern Grand Division, effective June 30, 2017, the Governor’s Office is accepting applications to fill that office for eight years, pursuant to Tenn. Code Ann. § 9-8-302. Section 9-8-302 sets forth the qualifications for the office, providing that, in this case, the commissioner shall have resided in the Eastern Grand Division for one (1) year prior to appointment, resided in Tennessee for five (5) years prior to appointment, and been licensed to practice law in Tennessee for five (5) years prior to appointment. A commissioner may not practice law while serving on the commission. To be considered for this appointment, interested attorneys should submit a resume and cover letter to the Governor’s Office for consideration. Resumes and cover letters should be directed by mail to Dwight Tarwater, Counsel to the Governor, State Capitol, First Floor, 600 Charlotte Avenue, Nashville, Tennessee 37243 or by email to dwight.tarwater@tn.gov by 5:00 p.m., CDT, Friday, March 31, 2017, with interviews to be scheduled thereafter.

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W O R D P L AY

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 March 8, 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 The Barristers Corn Hole Tournament has been moved to Thursday, May 4, 2017. Information for the event will be forthcoming. If you are interested in sponsoring or organizing a team, please contact the Athletics Committee co-chairs, Jeremey Goolsby (jgoolsby@ londonamburn.com) or Luke P. Ihnen (lihnen@londonamburn.com). LAW WEEK The Law Week and School Outreach Committee is seeking volunteers for the Annual Junior Judges Program during the month of April. Volunteers spend one hour with third graders at a school in Knox County. If you are interested in volunteering, please contact Ashley Morgan (amorgan@lewisthomason.com) for information regarding the program. The Law Week and School Outreach Committee is also seeking nominations for the Law & Liberty Award. All nominations must be received by April 14, 2017. The recipient should be visible to the legal profession and local bar association. The recipient should strive to foster and to maintain good relationships between the legal profession and the community, work to advance the understanding of the law and legal processes in the non‐legal community, set an example of good citizenship, give time for volunteer work, both within the legal profession and otherwise, evidence high professional standards in his or her occupation, express concern for the safeguard of personal, political, civil, and religious liberties and should be someone whose work is not normally recognized. Nominees do not have to be attorneys to qualify for the Law and Liberty Award. Consider those individuals in your firm, in local civic and religious organizations, or in the community who have worked to improve our legal system and protect our civil liberties. Finally, please pass this request to others in your firm and ask that they also submit their suggested nominees to Ashley Hodges Morgan (amorgan@lewisthomason.com). VOLUNTEER BREAKFAST The Volunteer Breakfast Committee needs sponsors and volunteers for this year’s Volunteer Breakfasts. Volunteering to prepare and serve at a Volunteer Breakfast means a group or firm, or individual will meet at Volunteer Ministry Center, located at 511 N. Broadway, Knoxville, TN 37917 at 6:15 a.m. to prepare and serve breakfast to approximately 30-40 individuals. Volunteers are usually done serving breakfast by 7:30 a.m. The committee needs approximately 4-6 individuals each month to prepare and serve breakfast. The committee also needs sponsorships to cover the groceries needed for each Volunteer Breakfast. Sponsorships are $150, and sponsoring firms and attorneys are not responsible for picking up the supplies for the breakfast. If you are interested in sponsoring or volunteering, please contact committee co-chairs Paul Wehmeier at pwehmeier@adhknox.com or Matt Knable at knablelaw@gmail.com.

By: Peter D. Van de Vate Finkelstein, Kern, Steinberg & Cunningham

“Malapropism” A malapropism is at its simplest a ridiculous misuse of words. The adverb, malapropos (in an inappropriate or awkward manner) is from the French mal á propos, badly for the purpose. The device was popularized by a character in Richard Brinsley Sheridan’s play The Rivals (1775) named Mrs. Malaprop, famous for such errors. Some fun examples of malapropisms: “There are a lot of electrical votes in Texas” – Yogi Berra “…the Women’s Lubrication Movement…” – Archie Bunker States are “lavatories of innovation and democracy” – Gov. Rick Perry The “Master of Malapropism,” Norm Crosby, was famous for such usage as alterations for “altercations,” “catastrophe” as a punctuation mark and contractions as “contradictions.” While the following is not a malapropism, it is a quote from Norm Crosby to which we attorneys can relate: “When you go into court, you are putting your fate in the hands of twelve people who weren’t smart enough to get out of jury duty.”

Photo Ops

On February 4, 2017, CASA of East Tennessee hosted the annual “Wizard of Oz” themed Red Shoe Gala to raise funds for the organization’s mission to recruit and train volunteer advocates for abused and neglected children. In 2016, CASA served 160 abused and neglected children in Knox County by providing advocates who served as the child’s voice in the courtroom. This year, the event program featured an award for CASA of the Year and speaker Juvenile Court Judge Tim Irwin, whose address focused on the impact of CASA in his courtroom. The crowd was entertained by the Pop Rox and a live auction. To learn more about how to become an advocate or how to support CASA, please visit www.casaofeasttn.org.

MEMBERSHIP COMMITTEE Join us for a Barrister Happy Hour on Thursday, March 9, 2017 from 5-7 p.m. at The Pretentious Beer Company located at 131 S. Central Street. Click on the March 9 on the KBA website calendar to RSVP online.

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March 2017


SCHOOLED IN ETHICS By: Alex B. Long Associate Dean for Academic Affairs University of Tennessee College of Law

RULE 4.4(A): THE JERK RULE Hypo: Lawyer Alice represents Beta Corp. Beta Corp. has a contract with the City of Knoxville to perform work for the city. Lawyer Carol represents Delta Company, a rival to Beta Corp. Carol files a request under the Tennessee Open Records Act regarding the process by which Beta Corp. was hired. Angered by the request, Beta Corp.’s CEO instructs Alice to do something to force Carol to withdraw the open records request. Alice then sends a letter to Carol accusing Carol of filing a frivolous request and demanding that she withdraw the request. The letter also accuses Carol of engaging in various forms of unethical conduct. She also sends copies of the letter to various City officials and employees, including five members of the City Council. One of the Council members gave a copy of Alice’s letter to the media, which heavily emphasized the allegations of unethical conduct against Carol in its coverage.

away for no other reason than to harass her. Alexander v. Jesuits of Mo. Province, 175 F.R.D. 556 (D. Kan. 1997). The rule has also been applied where one lawyer threatens disciplinary or criminal action against another lawyer or the lawyer’s client. See, e.g., Robertson’s Case, 626 A.2d 397 (N.H. 1993).

Has Alice violated TRPC R. 4.4(a)?

Rule 4.4(a) of the Tennessee Rules of Professional Conduct prohibits a lawyer in representing a client from using means “that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly us[ing] methods of obtaining evidence that violate the legal rights of such a person.” Lawyers often use means that they know will result in embarrassment, delay, or burden. Indeed, this may often be part of the reason why a lawyer adopts a particular course of action to begin with. Rule 4.4(a) does not necessarily prohibit such conduct. What Rule 4.4(a) does prohibit, however, is taking such action where the action has no other substantial purpose. In short, Rule 4.4(a) is the Jerk Rule. If the lawyer is just being a jerk (i.e., is using means that do not further some substantial purpose apart from causing embarrassment, delay, or burden), there is a violation of the rule. Rule 4.4(a) is frequently cited as the basis for professional discipline. The rule has come up in Tennessee on several occasions. In one case, the Tennessee Board of Professional Responsibility charged a lawyer with a violation of Rule 4.4(a) when, during a home inspection, he initially refused to comply with a homeowner’s request to apply hand sanitizer when entering the home in order to protect the health of the homeowner’s infant child who was at a heightened risk of infection. Hyman v. Board of Professional Responsibility, 437 S.W.3d 435, 439 (Tenn. 2014). In another case, a lawyer was suspended from the practice of law after he filed 18 frivolous appeals in his client’s case and then failed to prosecute the appeals in the hopes that a legitimate basis for appeal would arise during the extra time bought by the filing of the appeals. Flowers v. Board of Professional Responsibility, 314 S.W.3d 882, 898 (Tenn. 2010). The rule has most frequently been applied in the litigation context, such as the case in which a lawyer served a subpoena on a pregnant, nonparty witness to appear at a deposition at 8 a.m. over sixty miles

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But it has also been applied in situations like in the hypo above – where a lawyer publicizes a matter to third parties for the purpose of embarrassment. For example, in a 2016 disciplinary decision from North Carolina, a lawyer was suspended from the practice of law for five years for (among other things) posting on YouTube an embarrassing video of a police officer who was investigating his client’s case. The lawyer admitted that his purpose in doing so was not to further his client’s interests but to be a “smart aleck.” North Carolina Bar v. Sutton, 791 S.E.2d 881 (N.C. 2016). There are also closer calls under Rule 4.4(a) involving a lawyer’s act of publicizing matters to third parties. For example, In re Disciplinary Action Against Dvorak, 611 N.W.2d 147 (N.D. 2000), involved a lawyer who sent a letter to the employer of an opposing party in a divorce matter, stating that the party had stored documents related to the matter on the employer’s computer and that the lawyer wished to secure those documents. The North Dakota Supreme Court acknowledged that this was a legitimate purpose in sending the letter. However, in sending the letter to the employer, the lawyer also characterized the stored documents as being “untrue” and that the party had admitted that the information contained in the documents was untrue. According to the court, including this allegation in the letter did nothing to further the lawyer’s legitimate purposes and that there was no substantial purpose to such action other than to embarrass the other party. Id. at 151. The hypothetical above involving Beta Corp. and Delta Company is based on In re Comfort, 159 P.3d 1011 (Kan. 2007), a decision from Kansas. There, the lawyer sent a similarly sharp-worded letter to opposing counsel, accusing the other lawyer of unethical conduct. The lawyer also forwarded copies of the letter to various public officials and employees, including several city commissioners. According to the lawyer, his purposes in sending the letter were to persuade the other lawyer to withdraw his open records request and to follow the instruction of his client, who directed him to send the letter. The court acknowledged that the lawyer may have had a legitimate purpose in seeking to persuade the other side to drop its open records request. But no substantial purpose was served by sending copies of the “vitriolic” letter to others. Nor was it sufficient justification that the lawyer’s client instructed him to send the letter. “There are times,” the court held, “when an attorney’s only ethical duty is to tell a client ‘no’ or, perhaps, ‘your legal objective is valid, but I am ethically bound to pursue it through a different means.’” Id. at 1021. Ultimately, the court upheld the hearing panel’s conclusion that there was no substantial purpose to publishing the letter other than to embarrass the opposing side.

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ASK MCLAWYER

Question Presented: Dear McLawyer, I am thinking of doing a video deposition in a case. I have never taken part in one of those. Do you have any tips that might be helpful? Answer: First and foremost, review your rules. Tenn. R. Civ. P. 30.02(4)(B) provides that a deposition can be recorded by audio-visual means. Your notice of deposition must expressly state that the deposition will be video recorded and whether a simultaneous record will be made. Also, there are specific procedures outlined in the rule that must take place during the deposition, so be sure to note those and follow the rules. Outside of the express requirements contained in the rule, I suggest you thoroughly analyze the pros and cons of doing a video deposition, as professional videographers can be expensive. (While the rule provides that a lawyer can operate the equipment, I suggest you avoid that and leave the recording to a professional. You will most likely have plenty of other things to worry about in representing your client). Note that a video recorded deposition can be used for any of the reasons that you can use a typical stenographic deposition. Especially if you anticipate a jury

trial on your case, a video deposition can be used with great effect under the right circumstances. Alternatively, it can obviously be used to make you and/or your client look bad if the deposition does not go well. Once you decide to video a deposition and you thoroughly “nail down” the extra procedural requirements, approach the deposition as if a jury is in the room watching. After all, a jury may end up seeing parts of, or the entire production. If your client is being deposed, prepare your client like you would before a trial. The small details, such as appearance, demeanor, eye contact, etc., become more important when on camera. If your opposing party or an adverse witness is being deposed, take the opportunity to thoroughly evaluate how the deponent will present to the jury, and focus on how his or her testimony can be effectively utilized at trial. Catching an opposing witness telling a lie on video is certainly a dream of most lawyers, and the presentation to a jury can be powerful if the deponent’s story changes at trial. In addition to preparing your client and focusing on the opponent’s testimony, do not forget that you and your appearance, demeanor, and approach will also be open for the jury and judge to see. People often take a more informal approach to depositions that can look bad when presented via video in the formal setting of a jury trial. Approaching the deposition as if the jury is there watching is important to keep in mind, and decide if you believe it will be helpful to your case.

“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.

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

STUPID IS AS STUPID DOES Fair warning: Today, this column is complete fluff. I know, many of you are thinking “Jason, your columns are always complete fluff. They are devoid of any redeeming intellectual, professional, or social value, often drifting from topic to topic without any pretense of humor. We only read them as a palate cleanser before we move on to actually relevant or interesting information contained in this publication.” Fair enough, but I feel the need to advise anyone who continues to read on that this column is particularly irrelevant to your life, on par with the article many years ago that I wrote about my feet. You will be dumber for reading this. I was in Nashville two weeks ago and found I had a full evening to myself. There were no dinners planned or events to attend. My family was at home, and I did not have any pressing work that required immediate attention. Thrilled with this turn of events, I took a nap. Sweet, glorious sleep, where I could stretch out and snore to my heart’s content. After an hour or so, I woke up refreshed and hungry. It occurred to me that, in all of my trips to Nashville, I had never really tried the most identifiable cuisine of Music City, hot chicken. For those who know me, it is particularly surprising that I have reached the age of 45 without trying the Nashville-born delicacy. First, I love to eat (as evidenced by my 280 lb frame). Second, I love fried chicken because . . . well who doesn’t love fried chicken? Finally, and most importantly, I love spicy food. There is virtually no food that does not taste better with hot sauce. I burned out my taste buds long ago and have always taken a special pride in eating food that would make many run in fear. You can just ask Sarah Sheppeard about our lunch my first week of work at the old Soup Kitchen. She spent the meal trying to get to know her newest associate, and all she learned was that I could sweat a lot while eating a bowl of gumbo, undeterred. I resolved that night to eat traditional Nashville hot chicken. Now, if you are looking for true hot chicken, there are only two options: Prince’s (the birthplace of the dish) or Hattie B’s (a gentrified version of Prince’s, but still considered as authentic). I was unfamiliar with the neighborhood where Prince’s is located so I thought my best bet was Hattie B’s. Imagine my excitement when I drove there on a Thursday night and there was a line out the door. The plan had always been to get my meal to go and take it back to my hotel room. I had no illusion that I was going to be able to eat hot chicken in a dignified manner in public. This was going to have to be a private experience. Plus, I had already checked the television listings and King Ralph was playing on HBO that night. If I could script a perfect evening (not counting those spent with my family) it would be sitting in a hotel room eating spicy chicken and watching John Goodman try to learn the etiquette of british royalty. As I made my way through the order line, I looked over the menu. Like an epiphany, the choices jumped off the page at me. Chicken could be ordered either in pieces or in a sandwich. Levels of spice could be ordered ranging from mild to “shut the cluck up.” I was definitely getting a breast piece of “shut the cluck up” but, because I have gained wisdom and humility with age, I would also order a chicken sandwich served “damn hot.” The sandwich would serve as the base of my meal, and I would only sample the chicken breast. I ordered my food and jumped in my car to head back to the hotel, giddy with anticipation. I did notice a strong spice smell coming from the box, but rather than serve as a warning, it only encouraged my recklessness. When I got back to the room, I turned on the movie and unpacked my dinner. A tinge of fear hit me when I pulled out the chicken breast and noted that it was covered in so much spice it had turned black (that did not seem right). The smell emanating from the March 2017

box burned my nostrils and my fingers turned a little numb. I heeded the warnings and decided to start with the chicken sandwich and build up some tolerance. I took one bite of the chicken sandwich and it was, without a doubt, the hottest thing I had ever eaten. I began sweating, and my vision blurred a little. Amazed at how hot my “safe” choice was, I began to fear the chicken breast and the “shut the cluck up” label. Nonetheless, I was undeterred, hungry, and stupid, so I plowed on. Midway through the sandwich, I had drunk all of my coca-cola and had to tear into one of the $4.00 bottles of water provided by the hotel. I was breathing heavy and there was a sharp pain radiating to my back. A smart man would have stopped there and called it a night. However, my pride would not let me stop until I sampled the chicken breast and the ultimate in hot chicken. So I did. Things get a little hazy from that point on. Who can really say what happened next? In the end, it doesn’t really matter what the exact sequence of events were. Here is what we do know: My lips and tongue swelled up to the point I could not speak. I began crying profusely. I drank $36.00 worth of hotel bottled water. Apparently, I took at least two showers that night. I found the Gideon Bible by the bed and began underlining pertinent passages. I fell into a restless and nightmare-filled sleep, as John Goodman was learning how to play cricket, and did not wake until the next morning at 5:00 a.m. I awoke with a severe headache which stayed with me throughout the day, as I drank more hotel water to hydrate. And that was my first experience with Nashville hot chicken. Again, there is no message or insight to gain from this column. At a certain level, I apologize to all of you for writing it. I’ve reflected on the night several times in the past two weeks. I guess, for me, it was a good lesson in the dangers of hubris. Like Icarus, I flew too close to the sun and the results were tragic.

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

KEEPING ORGANIZED AND KEEPING SANE For as long as I can remember, I’ve had the motto, “Everything has a place, and it ought to be in it.” From the time I was a child, I have been almost obsessive about being neat and organized. I recall being in the fourth grade and excitedly purchasing my very first Mead Trapper Keeper notebook at Gass Pharmacy in Dandridge. It was red and included separate color-coded folders for each of my classes. I got great joy out of organizing my classwork using the folders. It didn’t stop there…. Everything in my life was similarly organized, even at a young age. That continued into high school. While I no longer used the Trapper Keeper, I was always neat and organized. And apparently, it didn’t go unnoticed. Recently, a high school friend texted a photo to Hugh from our high school newspaper. It had photos of “Senior Superlatives.” And I, in all of my 1980’s big-haired glory, was pictured in front of an expertly organized locker with the caption, “Neatest.” Some thirty years later, other than the hair, not much has changed. When asked for a Mother’s Day project at school what his mom liked to do for fun, Trace once remarked, “She likes to clean house.” Sadly, that is not terribly far from the truth. I seem to have cleaning and organization down to a science at our house. My closet is organized by type of clothing and then by color and fabric. It drives me batty for the khaki colored pants to get mixed in with the black pants. And our pantry is organized by food type and then container type. I have dark-colored “snack bins” that contain the food that Trace likes to eat because I cannot stand to see the unorganized mess that they inevitably become when an 11 year old boy and his buddies get into them. As organized as I am, I am also a creature of habit. Every morning before work, I clean our house. I make sure that the coffee pot is cleaned and that the dirty dishes are loaded into the dishwasher before I go upstairs to get ready for work. I also clear the multitude of papers that inevitably land on the kitchen table or counter. Hugh likes to tell people that I will take the morning newspaper from his hands to put it in the recycle bin. Also, I will not leave our house without making the beds each morning. To make it easier, I have a certain method for stacking the decorative pillows at night before we go to bed so that I can quickly make

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the beds in the morning. I have it timed so that I can make them all in under two minutes. It’s a little bit crazy, but it works for me. These are some of the “life hacks” that keep me sane. If the house is neat and organized, the rest of life will fall into place. At least from my perspective. As neat and organized as I am, Hugh and Trace are polar opposites. I can generally keep the house in order when I am home, but it becomes a little more difficult if I am away. My job involves a decent amount of travel, and I’m always a bit scared when I have been out of town and then return home. I’m never sure what the house will look like. While Hugh tries hard to keep things neat while I am gone, he isn’t always successful. And his attempt to create “life hacks” often go awry. Hugh likes to say that he is responsible for all things nasty at our house – he cleans up after the dog and changes the cat litter. Once, when I was out of town, Hugh decided to experiment with cleaning the cat litter. Specifically, he decided that birdseed would be a more environmentallyfriendly cat litter. His theory was that (1) the consistency of birdseed closely resembled cat litter and would be pleasing to a cat, (2) the birdseed lacked the “litter smell” that you get with traditional cat litter, and (3) instead of sending the litter to the landfill, he could dump it in the woods behind our house for the birds to eat. I am certain that Hugh did this “experiment” while I was out of town because he knew that I would never approve. And he would have been correct. On the day that I returned home, I was met with the smell of cat poop and urine. While the cat did use the birdseed litter box, the birdseed did not absorb the odor. And Hugh didn’t think about the fact that no bird would ever want to eat birdseed that had been used as a toilet. Worse than all of this, though, was the fact that the birdseed stuck to the cat’s feet, which meant that he tracked it through our house. And this was the thing that sent this neat-freak over the edge. Hugh’s attempted “life hack” ended with a deep cleaning of our carpets and a thorough cleaning of the entire house by a professional cleaning team for good measure. On second thought, maybe it did work after all.

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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

PASSWORD MANAGEMENT Cybersecurity is without a doubt the biggest burden of being custom folders (travel, e-mail, banking, cloud storage, etc.). So now an active user of gadgets and technology. Every e-mail account, when we want to login to our personal account on Southwest.com, for bank account, employee benefits portal, travel site, shopping profile, example, we simply go to LastPass and click the Southwest card in our smartphone, smart home device, and, yes, even some of our cookware vault and LastPass takes us to the site and logs in automatically. Yes, it is and cleaning tools require a login ID and password. The default (and that easy. You can even specify folders where you share access to certain very dangerous) reaction to this deluge of portals and devices that sites with other individuals (such as family members) but keep other sites require authentication, is to simply use the same user name and password private to yourself. combination that we use for all our accounts. And since we tend to LastPass has a great feature called Security Challenge which will go be very forgetful and don’t wish to be inconvenienced, many of us use through all your accounts, analyze the passwords, and give you a security something immediately recallable for the golden key that unlocks the score. If you find out, like we did, that some of your passwords are door to our personal data. Birthdates and spouses’ names are favorite duplicative or are not sufficiently complex, LastPass will let you autopassword themes; and they are easily discoverable to rogue snoopers with generate a new complex password that is highly unlikely to be guessed by a cursory internet search. Even more reckless are those who choose the a hacker. This security review is highly recommended as it would make least resistant path to online security with such “stellar” passwords as no sense to deploy a password manager to manage very weak passwords. “password”, “12345”, or the default manufacturer’s password on consumer So, we chose to let LastPass generate 16-character passwords for all the devices such as Wi-Fi routers, smart gadgets, etc. sites we kept in our vault. You get the point. Cybersecurity is really important; but it can be But once you begin using a password manager and take advantage a pain to enforce, and so, in many cases, our defenses are neglected and of the system-generated complex passwords, it is important that you weak. We feel your pain and hate being inconvenienced with having to can utilize the manager on all devices and that your site credentials keep track of complex passwords for dozens of accounts that we access automatically sync across all devices. LastPass does indeed have apps on a near daily basis. So, the solution is, of course, more technology. No, on Windows, iOS, and Android which allows you to use it across all really, there are software password managers that do indeed take the hard platforms. part out of maintaining complex access codes. They have been around So, after adding a couple dozen sites into the LastPass vault and for a while. But maybe if you have tried one of these programs in the then accessing those sites from both our PC, tablet, and smartphone, past and found it clunky, incomplete, or just too burdensome to use, we knew this was an incredible step forward for both our personal perhaps it’s time to take a fresh look. We did cybersecurity defense as well as convenience. and were pleasantly surprised. While some may chafe at having to set up the ather than being lazy and We resurrected LastPass (www.lastpass. putting out a welcome mat to password vault in the beginning and committing com) which we had taken for a trial run several to use the password manager on all devices, cybercriminals, we choose to once the initial setup is done, LastPass is a very years ago. In the past, we used the free version; reinforce the defenses with a sound convenient way to access all our secure content. but this time we ponied up for the premium version, which set us back $12. Believe me, Bill password strategy. We can’t believe we waited so long to commit. spends more on coffee over the weekend than it We know it is a scary world out there cost to bolster our cybersecurity for an entire year. with so much of our personal electronic data sitting behind numerous The idea behind LastPass (and all password management programs) password-protected security gates. Rather than being lazy and putting is to have one master login and password to the password manager out a welcome mat to cybercriminals, we choose to reinforce the defenses and let the manager maintain all your individual account credentials. with a sound password strategy. LastPass helped us do that at a very low Therefore, it is imperative that the master password that you choose for cost and just a little bit of commitment to begin using it. We sleep better this central vault is very strong. But, of course, as the software name knowing it’s in the vault. suggests, this is the “last” password that you will need to remember. But LastPass goes a step further than just requiring entry of this master password. It also uses two-factor authentication which means an imposter would need both your master password and your smartphone to gain access to your password vault. There are even more stringent measures that you can employ via LastPass such as one-time password generator on a USB stick; but we were just fine with the built-in twofactor authentication. We found it was very easy to set up access to secure portals within our LastPass vault. Essentially as you are logging in to a secure site, you can click the LastPass icon in the credentials box and the application asks if you would like to save the site and login credentials to your vault. We also like the way you can organize your various sites in the vault into

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E V O LV I N G L E G A L S E R V I C E S M A R K E T P L A C E By: Lisa J. Hall Hodges, Doughty & Carson

DOMO ARIGATO, ESQ.: ARE YOU SMARTER THAN A ROBOT LAWYER? Robots practicing law may sound just about as implausible as selfdriving cars, Amazon delivering packages via drones, pigs flying or hell freezing over, but technology continues to advance, and legal services continue to evolve. Artificial intelligence (“AI”) seems incompatible with practicing law, which usually involves years of education, passing the bar exam, mentoring, clerking, and experience. But in fact, “robot lawyers” are being conceptualized and sometimes utilized to perform such legal functions as legal research, discovery and document review, contract review and predictive analysis. ROSS Intelligence has been called an AI pioneer, and for good reason: it has developed ROSS, an IBM Watson-powered legal advisor tool intended to streamline legal research, saving time and money. Watson (the supercomputer that won Jeopardy! in 2011) has cognitive computing and natural language processing capabilities that allow ROSS to process legal questions stated in natural language, read through the law, gather evidence, draw inferences, and return evidence-based answers. ROSS continues to learn, allowing it to improve its answers, and it can help keep lawyers updated about new rulings. ROSS can theoretically free up more time for lawyers to analyze the complex details of the most relevant cases and laws or even to take on additional cases. Blue Hill Research analyzed bankruptcy law research conducted with Boolean Search, Natural Language Search, as well as ROSS in conjunction with Boolean or Natural Language Search. Study results reflected significant improvements in research time and experience from the use of ROSS when used with both Boolean and Natural Language capabilities. The research report states that legal aid organizations and in-house legal departments will benefit from ROSS by increasing the number of matters and activities the organizations are able to perform. For law firms and legal services providers, the benefit may be reducing legal research bills that go unpaid, taking on additional clients, or limiting the amount of time necessary on contingency or flat fee cases. The report estimates that the average associate spends 743.6 hours a year completing legal research, 26% of which is written off as unbilled or unpaid by clients. In April 2016, ROSS announced its first big firm client, Baker & Hostetler, which is using ROSS to assist in bankruptcy matters. Since then, ROSS has entered into subsequent agreements with additional law firms, and it plans to expand capabilities beyond bankruptcy law to also cover intellectual property, employment, criminal and tax law. It has also made its services available to major law schools, bar associations, and nonprofits free of charge. Premonition is a Miami-based company which uses AI to monitor thousands of court websites to analyze data in light of insurance industry lines of business. It is a tool that insurance companies can use to anticipate claims and set insurance premiums on a county by county basis based on real time data rather than forecasts. Premonition also collects data to determine “which attorneys win before which judges.” This system is marketed to allow people to find lawyers, local counsel, etc., based on their demonstrated success in the courtroom.

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Lex Machina is another company that mines data and assists law firms with marketing and business development to help quantify relevant experience as compared to their competitors, and use it to demonstrate expertise in specific subject areas, familiarity with opposing parties and attorneys, experience before specific judges and capacity to take on additional cases. Lex Machina also offers Legal Analytics, which reveals patterns and trends in prior litigation before different judges, as well as how long a case is likely to last, and information about opposing counsel, including client lists, total open cases, and relevant experience. Motion Metrics is another service offered by Lex Machina, which provides examples of winning and losing motions. Just as delegating the task of driving to a car gives us pause, allowing robots to have too much responsibility raises several concerns, as identified by Assistant Professor Josh Blackman, South Texas College of Law and creator of FantasySCOTUS.net in his paper Robot, Esq. published in 2013: Would an attorney-client relationship be possible if a networked distributed algorithm is used by many robots? What about the rules of confidentiality if the robot’s algorithms are improved by sharing and aggregating litigation strategies from other cases? What about conflicts of interest? If two opposing parties are both represented by Harlan1, how would the algorithms handle that conflict? What about asking Harlan to do “the right thing”? Can we program the ethos of Atticus Finch? How would these systems embody zealous advocacy and representation? Would Harlan have an obligation to report unethical conduct by a client? Would Harlan withdraw under the circumstances where a real lawyer would withdraw? How would this technology be used to promote access to justice, and provide representation to indigent clients? Other issues with this technology would include whether Harlan would be engaging in the unauthorized practice of law as well as liability concerns. If Harlan gives bad advice, who is liable? Who would insure against malpractice? Perhaps one day our robot colleagues will have to analyze similar liability and insurance issues in the case of a collision between selfdriving automobiles. Meanwhile, Siri and I are going to watch Jeopardy! and wait on our order from Amazon to be dropped from the air. 1 Harlan is Professor Blackman’s imagined virtual legal assistant that uses an advanced algorithm to generate forecasts of how a case would be resolved with different judges in different courts, perhaps even recommending an ideal forum.

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

Clifton “I Will Hold” Cates: WWI Marine Combat Veteran, UT Law Grad As most Tennesseans are aware, Tennessee earned the moniker “The Volunteer State” during the War of 1812. It was then that thousands of volunteer soldiers from Tennessee played a prominent role in this war, especially during the infamous Battle of New Orleans. This reputation for vigorously responding to America’s call to arms was reinforced during the War with Mexico (also referred to as the “Mexican War”) in 1846. At the time war broke out, American troop strength was too low to even consider fielding a foreign expeditionary force to Mexico. When President James K. Polk’s Secretary of War William Learned Marcy issued a call for 2,800 Tennesseans to join the ranks, 30,000 responded.1 This tradition of answering the call of duty has continued through all of our Nation’s wars ever since. The subject of this piece, however, concerns a Tennessean who joined the Marine Corps at the outbreak of World War I, and in so doing, became one of Tennessee’s “volunteer of volunteers.”2 Prior to 1917, the Marine Corps was traditionally a small fighting force, but during the rapid military buildup in the spring of 1917 it began to recruit aggressively. Enter Clifton Bledsoe Cates, a Tiptonville native who was born on August 31, 1893 at Cates’ Landing, the family farm on the Mississippi River where his father grew cotton. Growing up, he lived a farm boy’s life with plenty of time spent on the river and in the fields and woods hunting and fishing. He attended Lake County public schools until he was old enough to attend Missouri Military Academy (MMA), a preparatory school in Mexico, MO. While there, he distinguished himself both academically and as a varsity member on both the baseball and football teams. Upon graduation, he returned to his native Tennessee to pursue his bachelor of law degree at the University of Tennessee Law school where he was a member of the Kappa Tau Chapter of Phi Gamma Delta.3 Upon graduation, and after passing the Tennessee Bar exam, Cates eagerly enlisted in the Marines.4 At that time, the Marine Corps was offering reserve second lieutenant commissions to university graduates who possessed “a minimum of military qualifications.” Cates’ military training at MMA was qualification enough. After training at Parris Island, South Carolina and Quantico, Virginia, Second Lieutenant Cates soon found himself leading a platoon in the front-line trenches of France under General John J. Pershing, commander in chief of the American Expeditionary Force in Europe.5 According to historian James C. Nelson, “Cates was enthusiastic about the Marines and his own participation in the war. In an early letter home, he wrote that it was ‘a wonderful thrill to be out there in front of a bunch of men that will follow you to death.’ Even the machinery of war failed to daunt him: ‘It is a wonderful life (and) a grand and glorious feeling to hear the shells whizzing over,’ he wrote.” By the time the singing of the armistice ending WWI occurred, he’d witnessed unimaginable carnage and human suffering.6 Cates’ performance under the harshest of combat conditions soon became legend. One in particular earned him awards, decorations, and respect from the Marines with whom he fought as well as the March 2017

Commandant of Marines. In mid July, 1918, Cates and his unit were involved in a 2-day battle at Soissons, Northern France. As his unit advanced upon the German lines, Cates took a bullet in the shoulder, and was exposed to mustard gas. He continued to advance across a wheat field behind a flimsy line of French light Renault tanks, with waves and waves of men extending across the front for over 2 miles. Cates later commented, “It was the most beautiful attack that I have ever seen.” During this “beautiful attack,” the company commander was killed, and Cates again took over temporary command of his unit. Cates himself was wounded a third time, when a shell fragment cut into his leg. Ignoring his wounds, he held a a captured bit of trench, and sent a hastily scribbled message to his battalion commander: I have only 2 men left out of my company and 20 out of other companies. We need support but it is almost suicidal to try to get here as we are swept by machine gun fire and a constant artillery barrage is upon us. I have no one on my left, and only a few on my right. I will hold.7 Like a lot of WWI Veterans, Cates service to his Nation continued. Over the next 30 years, Cates advanced through the ranks serving throughout WWII,during which time he led the 1st Marine Regiment at Guadalcanal, and the 4th Marine Division in the Marianas operation, the Tinian campaign, and the seizure of Iwo Jima. He was ultimately promoted to General and served as the Commandant of the Marine Corps. General Clifton Bledsoe Cates died at age 76 on June 4, 1970, at the U. S. Naval Hospital, Annapolis, Maryland, after a long illness. He was buried with full military honors, on June 8, 1970, at Arlington National Cemetery.8

http://sos.tn.gov/”Gloriously Fighting a Glorious Cause”: Tennesseans in the War with Mexico, 1846-1848 2 Simmons, Edwin H. (2012) I Will Hold: An appreciation of Gen Clifton B. Cates. The Marine Corps Association 3 Allan Reed Millett and Jack Shulimson, eds. (2004). Commandants of the Marine Corps. Annapolis, Maryland: Naval Institute Press. 4 ID. 5 United States Marine Corps History Division. “General Clifton B Cates, USMC (Deceased)”. Who’s Who in The United States Marine Corps. 6 Nelson, James C. (2016). “I Will Hold: The Story of USMC Legend Clifton B. Cates, from Belleau Wood to Victory in the Great War.” New American Library (NAL). 7 Simmons, Edwin H. (2012) I Will Hold: An appreciation of Gen Clifton B. Cates. The Marine Corps Association 8 Fourth Marine Division Association. “Division History - Iowa Jima: Red Blood on Black Sand”. The Fighting Fourth 1

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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. LOCAL HISTORY DOCUDRAMA A docudrama entitled Tanasi 1796 will be presented at the Clayton Center for the Arts on March 25, with a matinee at 2 p.m. and an evening program at 7 p.m. All of the event proceeds will go to the Great Smoky Mountains Heritage Center in Townsend which is a 501(c)(3) museum dedicated to preservation of our history and culture. The story line traces the biography of Joseph Black, who was an early pioneer who fought at Kings Mountain and founded the town of Abingdon, Virginia around 1773. He later moved to Blount County where he was actively involved with and helped draft the Tennessee Constitution in 1796. Paralleling the life of Captain Black is the biography of Cherokee Chief Attakullakulla, who was a leader, mediator, and attempted peace keeper for the Cherokee Nation. This musical docudrama will include period music and was created by KBA member David Black and narrated by KBA member Tom Scott. Last year’s performance was very favorably reviewed on the website www. tanasi1796.com. Cost is $25 for reserved seating and $15 for general admission. For more detail please see www.tanasi1796.com. PARALEGAL ASSOCIATION MEETING The Smoky Mountain Paralegal Association will hold its monthly meeting on Thursday, March 9, 2017, at 12:00 pm. in the Blount Mansion Visitors Center, Knoxville, Tennessee. Attorney Christina M. Kleiser of the Knox County Public Defender’s Community Law Office will be presenting the one hour program on the topic of Tennessee Rules of Juvenile Procedure. A lunch buffet is available at the cost of $12/person with reservations. Please contact Kati Wheatley, ACP at president@ smparalegal.org or (865) 546-7190 for additional information and/or lunch reservations. WILL SEARCHES Name: Thomas William Ayers, III Date of Birth: 12/13/1946 Date of Death: 12/18/2016 Last Address: 1317 Fate Rankin Road, Jefferson City, Tennessee 37760 Time Will Was Prepared: unknown Contact and Relation to Deceased: Ryan P. Ayers (son) through Paul R. Dillard, Esq. Contact #: Paul R. Dillard, Esq. (865) 982-7411 Name: Ronnie & Paula Beeler Date of Birth: Ronnie (Dec. 1961) & Paula (November 8, 1971) Date of Death: January 30, 2017 Last Known Address: 2212 Stevens Drive Knoxville, TN 37938 Time Will was Prepared: The family believes the will was made sometime in the last 5 years. Contact & Relation to Deceased: Step-Father of Paula Beeler- Don LeCoultre Contact #: 865-567-4181

March 2017

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. OFFICE SPACE AVAILABLE: • 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 Building for Sale at 616 W. Hill Avenue. The 3,442 SF building is centrally located and is available for $465,000. Review the listing at www.kaarcie.com/ listing/299773149. Contact Daniel Odle, Conversion Properties, at (865) 246-1331. • 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. • 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

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additional 1,500 sq ft of adjacent space is available if desired. Contact Frank Graffeo at 525-6806.

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

Joshua K. Bradley Ruth A. Brooks Lowe Yeager & Brown Mitch Eisenberg District Attorney General, 6th Judicial District Rebecca A. Franklin Young Williams Child Support Services Megan A. Gentry Jacob S. Gibson Baker, Donelson, Bearman, Caldwell & Berkowitz Chad W. Hampton Jason W. Hansard Nelson Law Group Jacob C. Hogue Law Offices of Julie Bhattacharya Peak Shannon M. Holland Holland Law, PLLC Amye T. King Tennessee Court of Criminal Appeals Amy Lighter Law Office of Amy Lighter Emily R. Long Holland Law, PLLC Julie M. Murrell Rameen J. Nasrollahi Egerton, McAfee, Armistead & Davis, P.C. Celeste R. Oglesby Wagner, Myers & Sanger, P.C. Kathryn C. O’Neal Baker, O’Kane, Atkins & Thompson, PLLP Christopher J. Riedl Eileen J. Rogers C. Eliza Scott Woolf, McClane, Bright, Allen & Carpenter, PLLC Lauren Elizabeth Smith Moore, Ingram, Johnson & Steele, LLP Thomas J. Smith Eric Christopher Vinsant The Vinsant Law Firm LLC Jackson B. Whetsel The Held Law Firm Zixin Connie Zhou Ritchie, Dillard, Davies & Johnson, P.C.

New Law Student Members Alison J. Austin Logan W. Burnette Kameron Dawson Adelina S. Keenan James M. Normand

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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

On November 28, 2016, fires swept through parts of the Great Smoky National Parl and Gatlinburg, as well as several small communities in the area. In some ways, it was a perfect storm. The fire that started at Chimney Tops normally would not have made its way to Gatlinburg, however, hurricane force winds helped the fire spread its embers, and drought like conditions made the area prime feeding ground for such a fire. It was a Monday night when the fire swept through, and many in East Tennessee watched coverage on their televisions. The images of fire threatening Ripley’s Aquarium led many to be concerned for all of the animals housed to there. Cell phone video of the fire that had trapped visitors inside the Park Vista Hotel high on top of a hill overlooking Gatlinburg brought feelings of fear for those who may not make it out alive. The reporters on scene mentioned places like Arrowmount and Dollywood – leaving those watching wondering whether these iconic locations were okay or not. Tuesday morning, the news coverage was more optimistic than anyone had expected. The fire had been fierce, but had not lingered, and reports were already coming in that many buildings had escaped unscathed. In particular, Ripley’s Aquarium, which had appeared to be surrounded by fire the night before, was completely untouched, and not a single animal inside the aquarium had died. It was clear that there was destruction, but nothing at the level expected. The fire had seemed to spare most of what was in its path, at least in downtown Gatlinburg, where pancake pantries, fudge factories, and souvenir shops draw tourists in like a moths to fire. Off the main drag, however, there was definitely destruction. All you have to do is look at the Sevier County Structure Status map (https://tinyurl.com/zaakxl8) to see the level of devastation. The area of Cobbly Nob shows that dozens of residential buildings were destroyed. There was also significant damage to homes in Wears Valley and Shell Mountain. In Gatlinburg, the destruction was extensive, just not where most tourists will see it unless they go looking. Immediately after the fire, East Tennesseans swooped in and started taking care of their own. Donations of clothes, food, toiletries, pet food, water, and nearly anything else you could think of were made. The Rotary of Pigeon Forge set up a distribution center at the Boyd’s Bear factory, insurance companies set up for those who lost their homes or suffered damage to file claims, agencies that offer counseling and other types of support came together and met with victims at the shelters, and those who could help generally did everything they could. Only three days after the fire, Legal Aid of East Tennessee (LAET), the Tennessee Bar Association (TBA), and the Tennessee Alliance for Legal Services (TALS) had already created an emergency hotline for those with legal problems related to the fire to contact and had put out a press release encouraging those affected by the fire to contact the three organizations for help. In addition, on December 9, LAET held its first Legal Advice Clinic for victims of the fire in conjunction with the Sevier County Bar Association (SCBA) and volunteer attorneys who had responded to the LAET-TBA-TALS press release. At that clinic, there were ten clients and their issues ranged from complete loss of their home, to loss of their personal property, to loss of their job because the business they worked for had been lost in the fire. Since then, we have held

several more clinics and have served a total of just over 30 clients. Many of the volunteers for these clinics have been members of the Knoxville Bar Association. While we believe that there will still be significant legal issues arising out from the fire, we are starting to see that in many ways the help East Tennesseans gave to others by providing food, shelter, and clothes also helped to address any legal issues that might have existed early on. From what we have heard at the legal advice clinics, at meetings, and in the community, most of those who owned their homes and were affected by the fire are still working with their insurance companies. Many employers who lost their businesses did what they could to continue paying their employees in the months immediately following the fire. The Dollywood Foundation provided funds to those whose homes were damaged or destroyed. Nevertheless, the effects of the fire will continue to be felt for months, if not years, to come. And, LAET, the TBA, TALS, the SCBA, the KBA, and others remain dedicated to helping those who need help.

Mark Your Calendars: * March 4 (9:00-12:00) – Knox County Saturday Bar at LAET’s Knoxville office (607 W. Summit Hill Drive) * March 8 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO * March 18 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office _______________________________________________ * April 1 (9:00-2:00) – Faith & Justice Clinic for the AOC’s Statewide Public Service Day (Location TBD) * April 12 (12:00-2:00) – Veterans Advice Clinic at the Public Defender’s CLO * April 22 (9:00-12:00) – Blount County Saturday Bar at LATE’s Blount County office

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

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Q: A:

THE LAST WORD By:

Jack H. (Nick) McCall

Having now retired, what are your “last words” on your work with the Pro Bono Project? TERRY WOODS who retired last autumn as Director of the LAET Pro Bono Project

The best place may be to start with how I got to LAET. I was in private practice and feeling totally burned out. I wanted to do something else; specifically, I wanted to write for a publication of the Southern Poverty Law Center. At the time, I was chair of the KBA Pro Bono Committee and had gotten to know Dave Yoder, who was executive director of what was then the Knoxville Legal Aid Society. I had the impression that Dave knew Morris Dees, founder of the SPLC; so I called Dave to see if he could introduce me. Instead, Dave told me that the director of the Pro Bono Project had resigned that morning; and he asked if I’d be interested in the job. My gut reaction was that the job sounded awful. I had been active in the Pro Bono Project, and I’d enjoyed the cases I’d handled; but I didn’t even want to be a lawyer anymore. I certainly didn’t want to ask other lawyers to work for free. Still, I told Dave that I’d think about it. After a couple of weeks (of, frankly, not thinking about it), Dave said he needed an answer; and I agreed to meet with him a few days later to talk about it. Truth be told, however, I still thought that the job sounded horrible. On the morning we were set to meet, I remembered that I was supposed to have reviewed the “State Plan,” a long, boring-looking treatise Dave had sent to the Pro Bono Committee. I figured that it would be rude to go to the meeting having ignored the document, so I read it. The State Plan turned out to be something hammered out by legal aid lawyers across Tennessee in response to a directive from the Legal Services Corporation. “Legal aid” is a shorthand way of identifying private civil law firms that are funded in part by LSC, the entity charged with distributing grant money Congress allocates to civil legal services. LSC had mandated each state to consolidate its operations and figure out how to serve more people. The Plan proposed a comprehensive strategy for maximizing the impact of legal aid’s limited resources. In addition to continuing to provide direct client representation, legal aid would focus more on recruiting pro bono volunteers (lawyers, students, etc.), preventing legal crises by educating social service providers and low-income community groups, providing self-help instructions, and launching a variety of new initiatives to accomplish its mission. A lot of the alternative delivery systems the Plan described mirrored much of what I had already been doing in my own practice by offering limited representation to clients who could not afford full representation. Conceptually, the ideas in the State Plan synched up well with the aspects of practicing law that I still actually enjoyed. By the time I finished reading the State Plan and met with Dave, I had been reenergized as a lawyer. I wanted that job. I wanted to be a part of what Legal Aid was doing and what it wanted to become. That State Plan was not just an empty promise. It was a blueprint that made Tennessee a role model for other states in the Access to Justice arena. Thanks to the commitment of our Supreme Court, the Tennessee legal community is showing everybody else how it’s done. Through the collaborative efforts of the Court, local and state bar associations, and legal aid, our state has pioneered some very sophisticated initiatives that help make the justice system more accessible to everyone. I am very lucky that I came to legal aid when that collaborative process was really picking up steam, and that was a big part of what made being the Pro Bono Project Director such a great job. Of course, being part of an extraordinary team didn’t hurt. I have worked in various environments over my 35-plus years as a lawyer, but I was solo when the job at Legal Aid opened up; and I think that’s the main reason I felt burned out. I enjoy the brainstorming that comes with being in a law firm, and there are a lot of opportunities for that at LAET because we don’t just work together within individual offices. The lawyers and paralegals in all of LAET’s seven offices are on advocacy teams, and they participate with the other three Tennessee legal aid firms in active task forces. My Pro Bono Project work rekindled my love of the law and my admiration for lawyers. Most people hold this job for about one year. I think the reason for that is that we don’t like to ask somebody to do something. (I certainly didn’t like having to ask people for money, for example.) But, I did it for 16 years, and I think the reason I never had a problem asking someone to take a pro bono case is that I remembered how much fun I had in my own private practice doing pro bono work. I knew that a lawyer would get more out of doing pro bono work than he or she gave. I felt that I was giving the lawyer a gift, instead of just asking for something. Of course, working for LAET or doing a lot of pro bono work carries the risk of “compassion fatigue.’ It is hard to witness how abusive people can be to each other, and I’m not just talking about domestic violence. I’m primarily referring to how the strong prey on the weak outside of the family arena. There is massive exploitation of poor people by many employers, landlords, retailers, and lenders. The Tennessee Alliance for Legal Services commissioned a study of how poor people addressed these problems; TALS found that a significant number of victims of exploitative practices didn’t do anything about it; they had become resigned to think “that’s just how things are.” It takes a toll when you see hopelessness in the eyes of your clients every day. Over the past few months, I’ve seen the same hopelessness in the eyes of some of my friends and colleagues. We’ve been through a divisive election, and there is a sense of frustration that people on both sides continue to experience. I believe that we all want what’s best for our country and our neighbors, but we have very different philosophies about how to solve our common problems. Anyone who knows me knows that I am one of those big-government Democrats. And, when I talk to small-government Republicans, we rarely agree about how to address the problems facing millions of people in poverty. But, we always agree that we want to help that individual person who is poor. Most of the time, we even agree on how to help them. I can attest to the fact that I could see my clients’ sense of despair lighten just by knowing someone was willing to try to help them. Maybe the antidote to cynicism is to take a pro bono case.

“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. March 2017

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Profile for Knoxville Bar Association

DICTA.March 2017  

March 2017 Volume 44, Issue 3

DICTA.March 2017  

March 2017 Volume 44, Issue 3

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