DICTA November 2023 by Knoxville Bar Association

Legal Update: SCOTUS Opens the Door to General Jurisdiction…Everywhere? . . . Page 11 Schooled in Ethics: Time to Say Good-Bye? Here’s How To Do It Ethically . . . Page 19

A Monthly Publication of the Knoxville Bar Association | November 2023

2016 GATLINBURG WILDFIRE LITIGATION GOVERNMENT’S BID FOR DISCRETIONARY FUNCTION IMMUNITY REMAINS VIABLE DESPITE SIXTH CIRCUIT SETBACK

AROUND THE BAR

DIVERSITY PROGRAM & RECEPTION On October 5, the KBA’s Diversity in the Profession Committee sponsored a CLE program, Why We Need to Put the Diversity Thumb on the Scales. This festive occasion brought out 180 attorneys, judges, and law students to learn and connect. The CLE featured Joyce Espy Searcy, Principal and Founder, Momentum LLC, and Director, Office of Community Relations at Belmont University. During the program, Joyce discussed the importance of attracting and retaining diverse attorneys and stressed the need to lean into our similarities to overcome diversity barriers. Joyce emphasized the need to promote a culture where open dialogue is encouraged and to make people experience a sense of belonging and empowerment to help them achieve their full potential. Joyce also pointed out that diversity is a business commodity that successful businesses value and cultivate. Among the action steps for advancing diversity, equity, and inclusion, Joyce encouraged attendees to listen, learn, and act in support of the people and communities who are served by the local bar. The event was co-sponsored by the U.T. College of Law and the LMU Duncan School of Law. Attorneys from the following local law firms and government agencies participated in the event. Anderson Busby PLLC Bradley Arant Boult Cummings LLP Brock Shipe Klenk City of Knoxville Law Department District Attorney General, 6th Judicial District Easter & DeVore, Attorneys PLLC Egerton, McAfee, Armistead & Davis, P.C. Eldridge & Blakney, P.C. Farmers Insurance Exhange Federal Defender Services Frantz, McConnell & Seymour, LLP Knox Co. Public Defender’s Community Law Office Knoxville Family Justice Center Kramer Rayson LLP Legal Aid of East Tennessee, Inc. Lewis Thomason, P.C. LMU Duncan School of Law Miller Law, Mary D. Miller, PLLC Pinnacle Financial Partners Spicer Rudstrom, PLLC Tenn. Dept. of Human Services Tennessee Court of Appeals The Stanuszek Law Group, PLLC U.T. College of Law VeraSafe Watson, Roach, Batson & Lauderback, P.L.C. West Knox Law Wettermark Keith, LLC Wilkins Law Wimberly Lawson Wright Daves & Jones, PLLC Woolf, McClane, Bright, Allen & Carpenter, PLLC

DICTA

November 2023

In This Issue

Officers of the Knoxville Bar Association

November 2023

COVER STORY 16

2016 Gatlinburg Wildfire Litigation

CRITICAL FOCUS 5 President Loretta G. Cravens

President Elect Carlos A. Yunsan

Treasurer Jonathan Cooper

Secretary Rachel Park Hurt

Immediate Past President Jason H. Long

KBA Board of Governors Ursula Bailey Meagan Collver Daniel Ellis Spencer Fair

Luke Ihnen Hon. E. Jerome Melson William A. Mynatt, Jr. T. Mitchell Panter Samantha Parris

Courtney Epps Read Vanessa Samano Charles S.J. Sharrett Hon. Zachary Walden

19 25

The Knoxville Bar Association Staff

President’s Message

Gratitude

Practice Tips

Common Issues in Mediation: Updated Thoughts

Legal Update

SCOTUS Opens the Door to General Jurisdiction…Everywhere?

Schooled in Ethics

Time to Say Good-Bye? Here’s How To Do It Ethically

Management Counsel

The Golden Rule in Office Management: Building a Positive Workplace Culture

WISDOM 2 7 9 Marsha S. Watson Executive Director

Tammy Sharpe Director of CLE & Section Programming

Jonathan Guess Bridgette Fly Membership Coordinator Programs & Communications Coordinator

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

Volume 51, Issue 10

Dicta

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).

November 2023

15 18 21 22 23

Jason Galvas LRIS Assistant

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.

Dicta is the official publication of the Knoxville Bar Association

Publications Committee Executive Editor Executive Editor Executive Editor Brandon Allen Anita D’Souza Elizabeth B. Ford Jennifer Franklyn Joseph G. Jarret F. Regina Koho Matthew R. Lyon

Managing Editor

Cathy Shuck Sarah Booher Melissa B. Carrasco Angelia Morie Nystrom Katheryn Murray Ogle Laura Reagan Ann C. Short Eddy Smith Grant Williamson

Marsha Watson KBA Executive Director

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24 26 27 29 31

Around the Bar Diversity CLE & Reception

Judicial News

Making A Mark- Justice Dwight Tarwater

Privileged To Be a Lawyer

Three Little Birds

What I Learned About Inclusion and Why It Matters

Don’t Judge a Book by Its Cover

Around the Community

Knoxville Barristers Constitution Day Recap 2023

In Limine: Profiling Future JDs

Bianca Guzman

Simple Things

Always

Of Local Lore and Lawyers

Knoxville’s Dauntless Doughboy Statue: Tribute to the Great War

Outside My Office Window

The Bark

Barrister Bites

Prizes and Pasta: Who Could Ask for Anything More?

Bill & Phil Gadgets

Microsoft Windows Copilot

How to Thrive in Law and Life

How to Find Purpose in Your Career

Well Read

A Son Honors the Service of His Father in Pogiebait’s War

Tell Me A Story

Lessons Learned from Burning the Midnight Oil

COMMON GROUND 4 20 20 28 28 30

Section Notices/Event Calendar Barrister Bullets Welcome New Members Change of Addresses Bench & Bar in the News Pro Bono Project

SECTION NOTICES & EVENT CALENDAR

Section Notices

There is no additional charge for membership in any section, but in order to participate, your membership in the KBA must be current. To have your name added to the section list, please contact the KBA office at 522-6522. Alternative Dispute Resolution Section The ADR Section plans regular CLE throughout the year. Join the ADR Section for these upcoming CLE programs “Mediator Roundtable: Reflections, Regrets and Lessons Learned” on November 7, and the “Mediation: Practice & Ethics Update” scheduled for December 19. If you have a CLE program topic or speaker suggestions, please contact the ADR Section Chairs Joe Jarrett (566-5393) or Betsy Meadows (540-8777). Bankruptcy Law Section The Bankruptcy Section plans CLE programs and helps coordinate volunteers for the Pro Bono Debt Relief Clinics. The next Pro Bono Debt Relief Clinic will be held on November 4, and volunteer registration is available at www.knoxbar.org. Save the date for the annual CLE program “Bankruptcy Case Law Update 2023” on December 15. If you have a CLE program topic or speaker suggestions, please contact the Bankruptcy 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 know how you can get involved or have suggestions for CLE topics, please contact Section Chairs David Headrick (363-9181) or Marcia Kilby (362-1391). Criminal Justice The KBA Criminal Justice Section represents all attorneys and judges who participate in the criminal justice system in Knox County. Join the Criminal Justice Section for the annual CLE program “Criminal Law Rowdy Roundup” on November 15. If you have suggestions for CLE topics, please contact Section Chairs Joshua Hedrick (524-8106) or Sarah Keith (457-5640). Employment Law The Employment Law Section is intended for management and plaintiffs’ counsel, in addition to inhouse and government attorneys. If you have a program topic or speaker suggestions, please contact the Employment Law Section Chairs Howard Jackson (546-1000) or Tim Roberto (691-2777). Environmental Law The Environmental Law Section provides a forum for lawyers from a variety of backgrounds, including government, corporate in-house, and private firm counsel. If you have suggestions for CLE topics, please contact Section Chairs Catherine Anglin (525-0880), Kendra Mansur (771-7192), or Jimmy Wright (637-3531). Family Law Section The Family Law Section has speakers on family law topics or provides the opportunity to discuss issues relevant to family law practice. Join the Family Law Section for the annual CLE program “TN Family Law Update” on December 5. If you are interested in getting involved or have suggestions for CLE topics, contact Section Chairs Jo Ann Lehberger (539-3515) or Steve Sharp (971-4040). Government & Public Service Lawyers Section The Government & Public Service Lawyers Section is open to all lawyers employed by any governmental entity, state, federal, or local, including judicial clerks and attorneys with legal service agencies. If you are interested in getting involved or have suggestions for CLE topics, contact Hon. Suzanne Bauknight (545-4284) or Ron Mills (215-2050). Juvenile Court & Child Justice Section The Juvenile Court & Child Justice Section has speakers on juvenile law topics or provides the opportunity to discuss issues relevant to juvenile law practice. If you have suggestions for CLE topics, please contact Section Chairs Justin Pruitt (215-6440) or Mike Stanuszek (766-4170). New Lawyers Section The New Lawyers Section is for attorneys within their first three years of practice, and any KBA member licensed since 2021 will automatically be opted-in to the section. The New Lawyers Section encourages everyone to attend the November 6 Welcome New Admittees. If you would like to get involved in planning Section activities, please contact Section Chairs Kathryn Haaquist (525-0880) or Nicole Turbinton (221-7542). Senior Section The KBA Senior Section will meet early in 2024. If you have suggestions for luncheon speakers, please contact Chair Wayne Kline at (292-2307) or Sam Rutherford (659-3833). Solo Practitioner & Small Firm Section The goal of the Solo Practitioner & Small Firm Section is to provide and encourage networking opportunities and offer high quality CLE programs featuring topics that will help solo/small firm attorneys enhance and improve their practices and assist them with law office management challenges. If you have a program topic or speaker suggestions, please contact Section Chairs Tim Grandchamp (392-5936) or Brittany Dykes (214-7869).

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event calendar November

n3 n3 n6 n7 n7 n8 n8 n8 n8 n9 n 14 n 14 n 14 n 15 n 15 n 16 n 17 n 29

Diversity in the Profession Committee Ain’t Behavin’ CLE New Admittees Welcome Reception Law Office Tech Committee ADR Section CLE Healthy Bar Challenge Breakfast Wellness Committee Veterans Legal Advice Clinic Barristers Monthly Meeting Judicial Committee CLE Committee Professionalism Committee Access to Justice Committee Criminal Law CLE Board of Governors Meeting Lawyers of Color Support Group Memorial Service Book Club Discussion

December

n1 n5 n5 n6 n8 n 12 n 13 n 15 n 19

Ethics Bowl CLE Law Office Tech Committee Family Law CLE Barristers Holiday Party & Elections KBA Annual Meeting & Elections Professionalism - Hon. Dwight Tarwater Veterans Legal Advice Clinic Bankruptcy CLE ADR Section CLE

SAVE THE DATE: Barristers Holiday Party & Elections December 6 KBA Annual Meeting & Elections December 8

Check the KBA Events Calendar at www.knoxbar.org for scheduling updates. November 2023

PRESIDENT’S MESSAGE By: Loretta G. Cravens

Eldridge & Blakney, P.C.

GRATITUDE If you are still reading the DICTA President’s Message this far into the year, thank you. You have probably learned way too much about how my mind works as I have dutifully authored these messages. Each month, a dozen topics float through my brain to write about for DICTA, but invariably at the moment I must start typing, some less developed random thought becomes obtrusive and often, also becomes my inspiration for the President’s Message. Such is the case today. “Thank you for being a friend. Traveled down a road and back again. Your heart is true, you’re a pal and a confidant.” Yes, the theme song from the Golden Girls is on repeat in my brain for no reason that I can identify. I certainly haven’t seen an episode of the Golden Girls in the last decade or two. I can only take it as a sign that it is my inspiration for this month’s column. You, the reader, my friend, and colleague in the Knoxville Bar Association, are certainly a friend who has travelled along the road with me. You’ve been a friend and a confidant, shared my labors, my sorrows, my challenges, my celebrations, and all those same events as they have come to and through our bar. You have my appreciation and gratitude personally and professionally. While I think we, as a bar, often speak of our collegiality and professionalism, I think we sometimes overlook that the KBA is more than that. It is friendship and gratitude and a commonality that overwhelms our differences and creates the very environment where collegiality and professionalism flourish in an adversarial profession. What a gift we have been given! As this article goes to press a throng of new Tennessee Attorneys will be entering our midst following the November swearing in ceremony. This is our time to shine KBA! We cannot, must not, keep our secrets from our new colleagues. Please join me in welcoming the newest members of our legal community and inviting them into the fellowship of the KBA. Mentor and teach them. Support them. Celebrate them. Welcome them. There was a day where each of us were them…even though for some of us that seems so very long ago. They will face the struggles we have faced, perhaps new ones that we are not even aware of, and whether they succeed in our profession requires more than their education and training. It requires our friendship and our gratitude that they have chosen our community within which to practice. I understand that sometimes, especially in these articles, I can come off as a little too positive, a little too much of a cheerleader, but I assure you I am a realist. I know that we work in a profession that programs us to always look for fault, the potential error, the disaster waiting to happen. Issue spotting and planning for future loss and disaster or mitigation of a loss or disaster that has already occurred is, quite literally, a lawyer’s job. Nonetheless, I make my ask of you to welcome new members to our bar. However, if you find yourself a little less on the bright side of life these days, and find it difficult to accentuate the positive, I will also share an November 2023

exercise that flipped a switch in brain many years ago. Years ago, I noticed a social media trend every November, where people posted one thing that they were grateful for each day. It annoyed me to no end. One year, I decided I would illustrate my annoyance by posting, not 30 days of gratitude, but 365. A full year of sarcastic thankfulness! I posted daily. At first, the sarcasm was strong, and I was entertained by the exercise, but as my little social experiment progressed and I searched each day for some witticism to post, I accidentally started posting real gratitude. Sometimes, it was gratitude for a fresh cup of hot coffee enjoyed on the porch on a crisp Spring morning, a bloom I saw on my way to the Courthouse, or the bliss of a weekend afternoon nap. Sometimes, my gratitude settled on deeper concepts, life, health, loved ones, pet-parenthood, successes, or failures. What became true, however, is that my experiment evolved from an inside joke to an internal revelation. Every single day, I found it easier to identify something that I was truly thankful for in my life. I stayed the course and completed my 365-day self-challenge on social media. (Somewhere, I still have a copy of all 365 of those posts.) The result was not at all what I had anticipated. During my sarcastic experiment, I learned so much about myself and overwrote much of the negativity programming that had dominated my outlook both professionally and personally. My default setting changed to a more positive world view. My life is the better for it. So, if you find yourself in a negative internal feedback loop, I challenge you to take a moment and identify something you are grateful for, even write it down, and see what happens for you. Maybe share this tip with those new lawyers I mentioned earlier when you welcome them to the bar. It’s hard out here, but it’s a lot easier when we recognize, and can be thankful for the fact that we are all in this together.

DICTA

PRACTICE TIPS By: Bill Vines

Butler, Vines & Babb, PLLC

COMMON ISSUES IN MEDIATION: UPDATED THOUGHTS Joint Session/Opening Statements My experience in the last several years is that most attorneys prefer no joint session and prefer there not to be any opening statement in the presence of the opposing party. An obvious advantage of no joint session in the beginning of a mediation is that you probably start the negotiation process sooner and save time. Some mediators will encourage there to be no opening statement. In cases where there has been good sharing of potential evidence and theories, it is acceptable and may be preferred to not have a joint session. Certainly in some cases, such as domestic relations, opening statements are contraindicated. In other cases, I believe openings are beneficial. Mediation is an informal procedure that gives each party a chance to be heard without being questioned. Conversely, mediation gives each party an opportunity to hear a nonargumentative opposing position. So, in those cases where there are sharp issues, such as whether there is causation, questionable damages, or sharp conflict in the issues of liability, I believe it is better to have a polite opening statement. While it is true that temperatures may rise as a result of a statement by counsel, experienced mediators generally know how to keep that temperature rise to a moderate level. Where there are sharp issues, it is my view that it is helpful to the entire process that both sides hear and be heard. “I want my friend” It is not unusual that one party requests that someone whose advice they rely upon, to be present at the mediation. Sometimes the opposite party will suggest that person not be “allowed” due to perception that the process will not be helped. My view is that, in most cases, it is better to have that person present. Of course, that person is going to sign the mediation agreement regarding confidentiality, etc. While it may be true that the non-party individual may create difficulty, the party that relies upon that person would probably be on the phone with that person if they were not in attendance. It is probably better that the mediator talk directly to the person who is advising the party. Let them stay. Do I share my mediation statement? Many lawyers, who regularly and successfully mediate, send the opposing party their mediation statement. The receiving lawyers will send that statement on to their client or to the real party in interest. Like the opening statement, this gives each party a chance to directly communicate with the other party. Communication is the most important aspect of mediation. If there are some facts or issues that the parties do not care to reveal, but want the mediator to be aware, those facts/issues can be separately communicated from the position paper. Generally, I think it is a good process to let the opposing party see your position paper. Should I supply depositions and pleadings? Most experienced mediators, and all successful trial attorneys, can

organize facts and legal issues so that they are simplified and subject to easy communication. In my view, the lawyer who communicates effectively with the mediator pulls out the important statements in a deposition or the important statements of fact or law. Those can be supplied as part of the mediation statement. Asking a mediator to read extensive pleadings and/or depositions increases the cost of the mediation. Most experienced mediators attempt to keep the fees in a reasonable range and appreciate summary communication. Experienced lawyers and mediators can usually reduce apparently complex issues in a manner that allows for effective communication. Most mediators would prefer to receive only the essential facts and/or pleadings. A trial date There are three things that make a successful mediation more likely. They are: (1) a trial date; (2) a trial date; and (3) a trial date. Many of us are sensitive that some courts prefer that all discovery be accomplished before assigning a trial date. There are valid arguments for that procedure, including that it may reduce the requests for continuance as a result of inability to complete discovery. However, if the goal is to have a successful mediation, it is very helpful to have an assigned trial date. If the parties attend the mediation without attempting to get a trial date, both sides (all sides) know that it will probably be at least months, and maybe more than a year, before their claims are put to the test. My view is that it is beneficial to both parties to have a deadline in the form of a trial date. When do I submit a mediation statement to the mediator? I have heard the opinion expressed that lawyers should only forward a mediation statement in close proximity to the mediation. That way it will be “fresh on the mediator’s mind.” Experienced mediators have their own individual procedures, but most will read the statement whenever forwarded, or at least within a reasonable time thereof. It is certainly better to file a last-minute mediation statement as opposed to filing no mediation statement at all. However, you should realize that most experienced mediators will do their best to understand all the issues and begin planning the discussion which will hopefully lead to a successful mediation. Don’t wait until the last minute to supply a mediation statement. Updated medical records Tennessee is blessed with good mediators. There is one issue upon which all will agree. Try not to submit important medical or other evidentiary documents at a time near the date of the mediation. Perish any thought of showing up at the mediation with “updated records”. Insurance companies have procedures. Those procedures usually require an analysis of the evidence, including medical records, and may require several “sign-offs” by supervisors. Submitting records on a lastminute basis will often result in the inability of the carrier to consider those records. If at all possible, supply all your exhibits (especially damage continued on page 13

DICTA

November 2023

JUDICIAL NEWS By: Donald A. Bosch

The Bosch Law Firm, P.C.

This article has been reprinted to correct some factual errors.

MAKING A MARK– JUSTICE DWIGHT TARWATER Making a mark. While not sure of the precise origin of the phrase, I suppose it reaches back to ancient, and sometimes not-so-ancient times, when an individual would place their “mark” on a document signifying a commitment or accomplishment. A few people are fortunate enough to leave a mark in their lifetime that demonstrates achievements like extraordinary service, intellect, awards and family. My friend, Dwight Tarwater, has left countless such marks in many facets of his life, and now sets off for even more as our newest Justice of the Tennessee Supreme Court. I first met Justice Tarwater (I know, it’s going to be a challenge for many of us who know him as just “Dwight”) not as much from the legal community, but from our common roots in the swimming community. In the very early 90s, I had the good fortune of coaching and working with Olympic gold medalist Mel Stewart. Dwight’s oldest son, Davis Tarwater, was a quiet (who knew?), bubbling, little age-group swimmer who had just watched Mel Stewart win an Olympic gold medal in Barcelona, Spain during the 1992 Olympics. One day, Dwight ran into me at the Plaza Tower version of the Lunchbox (where the majority of daytime legal work really took place in the 90s) and asked if I could arrange a meeting between young Davis and Mel. Mel, always gracious with such things, agreed and one evening Mel, Dwight, Davis and I met at the old Student Aquatic Center at UT, as Davis intently engaged Mel and looked with awe at his shiny gold medal from the Olympics, which he had brought along to show Davis. As good fate would have it, some 12 years later, Davis would go on to win the same event that Mel had won at the NCAA Swimming Championships and 20 years later would possess his own shiny Olympic gold medal from the 2012 Olympics in London, England. And off our friendship began. For those of you who may not know much about Justice Tarwater, he was born in Knoxville, Tennessee, right in the middle of the Boomer generation. He graduated from Bearden High School, from the University of Tennessee in 1977 with a Bachelor of Arts and as a UT Torchbearer, and from the University of Tennessee College of Law in 1980. During law school, he clerked for Judge Houston Goddard, of the Tennessee Court of Appeals. A year later he began as an associate and then later became partner with the law firm of Egerton, McAfee, Armistead, and Davis. In 1987, Justice Tarwater, Don Paine, Mike Swiney, and Harold Pinkley formed the law firm of Paine, Tarwater and Swiney, where he remained until 2014. The year 2012 brought the highest of highs and lowest of lows to Dwight and his family. That summer, as mentioned earlier, his oldest son, Davis, won an Olympic gold medal in swimming, providing the capstone

to the family’s journey with Davis. But later that year, tragedy would strike when Dwight’s wife and mother of their three children, Mary Tarwater, passed away suddenly. The next two years were a difficult adjustment for Dwight and his children. I suppose that Dwight sensed a need to find new ways to serve, a new “mountain” to climb, and a change in the routine that he had previously navigated. A call came from his longtime friend, Bill Haslam, then Governor of our state, who asked Dwight to come to Nashville and serve as his General Counsel. In that role, Dwight flourished, shepherding through critical legislation on all fronts and on occasion aiding in stopping other bills from passing that he and the Governor did not believe would serve the best interests of all Tennesseans. Upon Governor Haslam’s conclusion of his last term, Dwight returned to his roots with the firm he founded. But Dwight still felt that he had more to give by way of service to Tennessee. When the Honorable Sharon Lee decided to retire after a long and distinguished career, Dwight decided to seek the Governor’s appointment and legislative confirmation to become a Justice on the Tennessee Supreme Court. After a rigorous process of interviews and legislative review, he was selected by Governor Bill Lee and confirmed by 100% of the members of both chambers of our state legislature, Democrat and Republican, alike. So, as of September 1 of this year, Dwight is now Justice Dwight E. Tarwater, and subject to his retention vote next year, will serve out the remainder of Justice Lee’s term, which expires in 2030. Dwight and Mary raised three children, successful in their own right. Their oldest Davis, mentioned earlier, graduated from the University of Michigan with a Bachelor’s degree and from Oxford University with a Master’s Degree in Latin American Studies. Davis is married to Brittany, who was also an All-American swimmer and is currently a news anchor with WVLT-TV here in Knoxville. Justice Tarwater’s daughter, Katherine, received her degree in Education from the University of Georgia and is married to Dr. Brian Freeman. Both Davis and Katherine, along with their spouses, have a total of five children. Finally, Dwight’s third child, Dwight, “Jr.” (ironically referred to as “Little Dwight” who stands six inches taller and 50 pounds heavier than his father), received his Bachelor’s degree from Cornell University and Masters of Public Health from the University of California at Berkeley, all while playing Division I basketball finishing his collegiate career starting for Cal-Berkeley Head Coach Cuonzo Martin. Dwight and his wife Charity are expecting their first child this December, giving Justice Tarwater at least nine people who can talk back to him with little fear of repercussion. Even with the professional accolades that are listed here, along with continued on page 8

November 2023

DICTA

J U D I C I A L N E W S , continued from page 7 the many accomplishments that come from skillfully representing clients such as Fortune 500 companies, pro-bono cases too countless to name, and the interests of all Tennesseans as Counsel to the Governor, maybe the best way to know Justice Tarwater is to hear it from his children. Davis says, “My dad instilled in us the importance of doing things the right way. Do everything ethically, as a gentleman and with humility. This, as much as anything, is what I think if when I think of my father.” His daughter Katherine says, “He always stressed this intrinsic sense of right and wrong. As long as we tried to do the right thing, even if it ended wrong, he was very accepting of our mistake, so long as we recognized and learned from it.” Katherine went on to tell me of a story receiving a dreaded “red-light camera ticket.” However, the car was registered to her father. She made the mistake of not telling him in advance that he was going to receive a notice. Apparently the violation was so egregious that there was no question in Katherine’s mind after seeing the flash of the camera that she had been nabbed. Upon receiving the notice, Dwight took the opportunity to remind her of the family values that he and her mother, Mary, had instilled in them and made sure that she owned the mistake and promptly had her pay the ticket from her own funds. On a lighter note, Katherine pointed out a little-known skill of Justice Tarwater – the ability to spell and speak backwards any sentence, song or line of literature, as it you were spinning an album backwards on a turn table. Just imagine the fun and distress that the Court might have

should Justice Tarwater chose to practice this party trick on the bench. Finally, “Little Dwight” said that his dad, “Always wanted us to dream big and follow those dreams. He and my mother gave us that chance and never failed to remind us to dream even bigger than we could imagine. We had this theme in our family about climbing mountains, and after you climb a mountain, you have to find the next mountain to climb. I am so proud of him finding yet another mountain to climb by becoming a member of the Tennessee Supreme Court.” “Little Dwight,” being the youngest sibling, could not resist to remind me of a few funny stories about his father. He recalls that not once, but three times Dwight has managed to back his car through a closed garage door. Also, during one holiday season, kindly neighbors brought by a tin of treats which Dwight thought were intended for human consumption. After eating a handful and commenting that they did not taste very good, he later learned that they were meant for the pet dog, not humans. Justice Tarwater’s children illustrate by way of their own accomplishments, memories, and humor that Justice Tarwater is really just one of us. He is kind, funny, smarter than most of us and as one of our other friends said, “just a guy.” I am honored to have him as a friend, and believe that he will serve us well as the next member of the Tennessee Supreme Court. He has, and certainly will continue, to leave his mark.

DICTA

November 2023

PRIVILEGED TO BE A LAWYER By: Hon. Charles A. Cerny, Jr. Knox County General Sessions Court, Division I

THREE LITTLE BIRDS God told me so. Really. It took a while, but I truly believe He spoke to me. Here’s how it happened: I’m about four years old, I’m on my mother’s lap. Now, mom looks a lot like Santa Clause, except she’s, well, my mom. And she’s bear hugging me close to her, nibbling on my ear and telling me “You’re my little bird…” At four years old, I was pushing back on her, struggling to get away. “I’M NOT A BIRD! I’M A BIG BOY NOW! I’M NOT A LITTLE BIRD!” I screamed. She hugs me tighter and says, “You’ll always be my little bird.” Fast forward twenty or twenty-five years. I’m at a fast-food place, eating something bad for me, and bemoaning some recent failure. Nondescript finches/sparrows/chickadees are squabbling over dropped French fries near me. Amid my depressed state, mom’s words came back to me, and it dawned on me what she meant. She saw me as precious, fragile, and vulnerable, even cute like those birds. And she would always see me that way. It was a time that I needed to be reminded of how she felt about me, because at this point being a “big boy” felt intimidating. In that moment, I desperately wanted to be her “little bird” again. I looked down at my food, looked at the birds and said, “Aw, shit, guys. I never should have gotten the chicken nuggets.” And I tossed some more fries to them. Mom was trying to tell me, and I believe that the creator of the universe also says to me, that I am precious, fragile, vulnerable, and even cute. I felt better about my failures, to some extent. But that wasn’t all that God wanted to communicate to me that day. “Everybody is somebody’s little bird, even if the only somebody they have who feels that way is Me.” I didn’t need a burning bush. Think about it: You don’t either. You know this admonition is true, and you know the legitimacy of its source. Even Jesus said: “Look at the birds of the air; they do not sow or reap or store away in barns, and yet your Heavenly Father feeds them. Are you not much more valuable than they?”1 I’m privileged to be a lawyer because, although lawyers aren’t anywhere near perfect, we are called upon to help people. Help people in trouble, help people when they are seeking to do great things, even help people when they are trying to make positive changes. I have been a lawyer in various capacities. I have been in general private practice, helping citizens accused and helping people dissolve marriages. I’ve even helped a California couple adopt an infant when I was in Chattanooga, and that was a wonderful experience. I’ve been a prosecutor, helping witnesses and victims get through the criminal justice process. Now, as a special kind of lawyer (a Sessions Judge) I do my best to help lawyers and litigants. I sincerely hope that, every now and then, something that we do together in Knox County General Sessions Court ends up benefiting those persons we interact with. I sincerely hope that I can be of some help to lawyers, litigants, and other participants in some small way. Because every one of them is precious, fragile, and vulnerable (although not many of them are all that cute!). Which reminds me of something my father said: “You were such a cute little boy! What happened?” We all get older. When we were little, and adults asked us, “What do you want to be when you grow up?”, not one of us said, “I want to be a grumpy, stressed-out, burned-out lawyer.” In fact, not one of us said, “I want to be a drug-addicted felon who is serving time in TDOC.” Not one of us ever said, “I want to grow up to be repeatedly victimized, trafficked and abused and dragged into the criminal justice process against my will.” I believe that I’m privileged to be a lawyer because being a lawyer means that I can do something consistent with my beliefs about human beings. Things that I believe that God believes, too. Human beings have infinite worth. They have the dignity that is associated with simply November 2023

being human beings. They are precious, fragile, and vulnerable, and to somebody, in some way, they are even cute. Like we all used to be when we were young. Every one of us. Like those little birds. I never dreamed I would even be a lawyer, and I certainly never thought I’d become a judge. Every day when I go into court, if there are ten lawyers in court, I admit that I could be the eleventh-smartest lawyer in the room. I have a fantastic job; I am paid enough that I should be able to pay most of my debts sometime before my death (I hope). I have fun at my work every day, and I work with really nice people. I love what I do, so I may as well try hard to do it right. It’s my privilege to do this job because I have a chance to do what I believe I’m truly called upon to do, which is be compassionate to the people I encounter every day, and work hard to help them. I’m sure that there are times when all I can do is preach at people, and I’m sure I sound like a tape recording of my father. I hope that there are times when I communicate to folks what my mother tried to communicate to me. I still have so many failures, issues, and flaws. I’m a big boy now, and I must remind myself often that I am Joan Cerny’s “little bird.” And I try to always remember that, to the Creator of the Universe, “everybody is somebody’s little bird.” Really. God told me so. 1

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The Gospel of Matthew 6:26. See also, “Three Little Birds”, song, Bob Marley 1977.

WHAT I LEARNED ABOUT INCLUSION AND WHY IT MATTERS By: Chantel Matikke LMU Law Library Fellow

DON’T JUDGE A BOOK BY ITS COVER “You are a thief !” Each word pierced my tender heart and resounded more loudly than any of the “preparation for life” lectures my parents frequently gave to my siblings and me. I remembered hearing about how I may be perceived and thus treated. But no lecture could have prepared me for this. My bleak expectations, at least for the suburb in Nashville where I grew up, were very different from those of my closest friends. Their oceancolored eyes saw things from a different perspective. They seemed to believe the best of people, trusting they would be heard, treated fairly, and included. My fourth-grade scholastic experience was eventful. I scored my first goal in an official soccer game, which was quite an achievement considering I played right full-back. I was also forced to grapple with the experience of being unjustly treated as a young child. My teacher, Mr. Smith, was a former attorney whose father served in the upper ranks of the US military. I knew Mr. Smith to be structured and just; I felt loved and respected in his classroom more than in my previous elementary classes. I was certain that I belonged, and I thrived. One early afternoon, an emerald-eyed schoolmate and I were the only students in the library. We approached the library checkout counter simultaneously. The newly employed librarian left her office and immediately began assessing the counter. Seconds later, in a condemning tone, she accused me of stealing a dollar bill from the counter. I was shocked and paralyzed by the implications of her piercing words. Tears sprinted down my face as I assured the librarian that I did not take the dollar, but my words were no match for the power of her beliefs. She was convinced that I had taken the dollar. Without considering the other student as the possible culprit, she banished me from the library, brokenhearted and bookless. I left the library wearing a vaguely familiar grief, which included threads from my experience and the unjust treatment of individuals

weaved throughout humanity. On the way to my classroom, I wiped the tears from my face, questioning whether Mr. Smith was the just person I knew him to be. Would he believe me or the librarian? Did I somehow warrant this accusation by merely being in the library? As Mr. Smith read the librarian’s account of the missing dollar, his face radiated an expression I had never seen before: anger. He darted out of the classroom without asking me a question and left me in charge. This incident fortified my belief in the value of inclusion and my commitment to pursuing justice for all people. In case you are wondering about the outcome of my fourthgrade experience, my schoolmate confessed to taking the dollar bill later that day, and Mrs. B reluctantly apologized to me at Mr. Smith’s behest. Every moment presents new opportunities for each one of us to practice inclusion and act justly. What will you choose today?

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LEGAL UPDATE By: Matthew R. Lyon LMU Duncan School of Law

SCOTUS OPENS THE DOOR TO GENERAL JURISDICTION… EVERYWHERE? The Roberts Court has made significant changes to the constitutional standards for personal jurisdiction over the last two decades. For the most part, the Court’s decisions have narrowed those standards in defendants’ favor. However, a landmark decision this past June, Mallory v. Norfolk Southern Railway Co.,1 has swung the due process standard back toward plaintiffs. The decision increases the likelihood that corporations and other entities doing business outside their home states will have to defend suits brought in state courts elsewhere, even if the suits are unrelated to their business contacts in those states. A brief primer on the concepts may be needed if it’s been a minute since your Civil Procedure class and you don’t deal with these concepts regularly in your practice. Traditionally, defendants could only be sued in states where they had a presence (like their domicile or principal place of business) or had consented to jurisdiction.2 Recognizing the nationalization of our modern economy, the Supreme Court has long allowed personal jurisdiction over out-of-state defendants even without presence or consent, as long as those defendants have “certain minimum contacts with [the forum state such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”3 Language in International Shoe led courts to develop two types of personal jurisdiction: specific jurisdiction and general jurisdiction. Specific jurisdiction over an out-of-state defendant can exist anywhere, but only if the court determines that the plaintiff ’s claims arise out of or relate to the defendant’s contacts with the forum state. The Supreme Court has clarified that “arise out of or relate to” standard in a couple of recent opinions.4 In fact, just last month, our own Tennessee Supreme Court issued an opinion interpreting the most recent of those opinions.5 Specific jurisdiction was not at issue in Mallory. General jurisdiction is much broader than specific jurisdiction, because it allows the defendant to face any cause of action in a particular jurisdiction. However, two opinions written by Justice Ginsburg several years ago narrowed the places in which defendants can be subject to general jurisdiction to those states where they are “at home.”6 For a corporate defendant, barring extraordinary circumstances, that means the state where it is incorporated or has its principal place of business.7 This seemed like settled law until the Mallory decision. Robert Mallory, a former employee of Norfolk Southern, alleged he contracted cancer during his 20-year career working for the railroad.8 Although Mallory worked for the railroad in the states of Ohio and Virginia, he chose to file his lawsuit in state court in Pennsylvania, where Norfolk Southern has 2,000 miles of tracks and 5,000 employees.9 However, Norfolk Southern is incorporated and has its corporate headquarters in Virginia.10 Thus, under the traditional construct set forth above, Norfolk Southern could be subject to general jurisdiction only in Virginia and subject to specific jurisdiction on Mallory’s claims only in Ohio and Virginia, where he worked. However, Mallory had a hook to claim that Pennsylvania had jurisdiction over his former employer. The railroad is registered to do business in Pennsylvania, and that state has a corporate registration statute that is broader than most states. Specifically, the statute says that by registering to do business in Pennsylvania, out-of-state corporations consent to genNovember 2023

eral personal jurisdiction in the Pennsylvania courts to the same extent as corporations that are headquartered in the state.11 Thus, Mallory argued, Pennsylvania courts should exercise personal jurisdiction over Norfolk Southern not based on the due process standard, but under the traditional basis of consent. Mallory had support for his arguments in a U.S. Supreme Court opinion from over 100 years ago, which had upheld the use of corporate registration statutes like this one to confer general jurisdiction over out-of-state businesses.12 However, Norfolk Southern argued, and the Pennsylvania Supreme Court agreed, that Pennsylvania Fire had been implicitly overruled by the U.S. Supreme Court’s due process decisions in International Shoe and subsequent cases. The Pennsylvania Supreme Court struck down the Pennsylvania corporate registration statute as violating the due process clause.13 The U.S. Supreme Court reversed the state supreme court and upheld Pennsylvania’s corporate registration statute. In a slim majority opinion authored by Justice Gorsuch, the Court held that Pennsylvania Fire was still good law and controlled Mallory’s case.14 More specifically, International Shoe and its progeny that are based upon the due process clause only apply when the out-of-state defendant is not present in the forum state or has not consented to jurisdiction in the forum state.15 Here, Norfolk Southern had consented to general jurisdiction in Pennsylvania by the terms of the state’s corporate registration statute, and that ended the inquiry. In a dissent written by Justice Barrett, four justices expressed their view that the Pennsylvania corporate registration statute “clearly, palpably, and plainly” violates the due process clause as interpreted in International Shoe and Daimler.16 It made little sense to them that due process only allows defendants to be subject to general jurisdiction where they are “at home,” but that states can circumvent due process by passing broad corporate registration statutes. In the dissent’s view, the Court’s opinion puts Daimler’s measured approach to general jurisdiction “halfway out the door.”17 If more states follow Pennsylvania’s lead and do as Justice Barrett warns, Mallory will portend a huge shift in personal jurisdiction doctrine. The decision would effectively gut the Court’s previous decisions on general jurisdiction, because states could require a corporate defendant to defend any civil suit, even when that defendant is not “at home” in the forum state. Of course, defendants have the option of not doing business in a state that has such a broad registration statute, but that is not realistic for a railroad like Norfolk Southern or countless other businesses with a national infrastructure and customer base. The ball is now the court of the fifty state legislatures; we can only wait and see what happens next.18 1 2 3 4

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600 U.S. ___, 143 S. Ct. 2028 (2023). Pennoyer v. Neff, 95 U.S. 714 (1878). International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Ford Motor Co. v. Montana Eighth Jud. Dist. Court, 592 U.S. ___, 141 S. Ct. 1017 (2021); Bristol-Myers Squibb Co. v. Superior Court, 582 U.S. 255 (2017). Baskin v. Pierce & Allred Constr., Inc., No. M2021-00144-SC-R11-CV, ___ S.W.3d ___, 2023 WL 6304872 (Sept. 28, 2023). Daimler AG v. Bauman, 571 U.S. 117 (2014); Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915 (2011).

continued on page 28

Photo Ops Trivia Night & Networking Mixer

The Barristers Diversity Committee held a Trivia Night & Networking Mixer on September 28 at Albright Grove. Event partners included the Lawyers of Color Support Group and the Knoxville Area Urban League Young Professionals. Congratulations to the winning team - Res Ipsa - on an impressive victory! Thank you to Bradley, Arant, Boult, Cummings, LLP for making this event possible!

Fall Social of the Family Law Section

On September 22, members gathered to take a well-deserved break and enjoy the camaraderie of those who understand that practicing family law is hard. Thanks to Bernstein, Stair & McAdams, LLP for sponsoring the social.

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November 2023

P R A C T I C E T I P S , continued from page 6 evidence) as soon as possible to the opposing side. Take it or leave it To the lay participant, the lengthy “drip drip” of settlement negotiations is very frustrating. It is not unusual that a lay person suggests a “take it or leave it” offer with the failure of acceptance to result in conclusion of the mediation. Discourage this type of offer, especially early in the mediation process. Explain before the mediation that parties who regularly negotiate sometimes believe it to be helpful to their position to go slow in terms of increasing/decreasing their offers. Even after a long day of negotiations, be careful about using the words, “take it or leave it.” Those words may be perceived as “fighting words.” It’s better to use a phrase such as, “This is our best evaluation . . ., etc.” Further, such communication allows you to make a small adjustment to get the job done, and it may only take a small adjustment to get it done. “I need to leave some room to negotiate” It is common that at some point in mediations, one or more parties will perceive the mediation is not headed toward a successful conclusion. There is an assumption that if the case does settle, it will be on another day. The full authority towards settlement is not fully extended. Therefore, the process ends. If the parties perceive that an impasse is developing, consider “off the record” negotiation. I’ve seen that procedure work time and time again. Here is the way it works: each party agrees that as of that moment,

November 2023

any “public” offers cease at the amount or terms then shown. The parties agree that if negotiations are not thereafter successful that day, neither side will claim anything other than the numbers or terms when “off the record” began. The mediator then begins “what if ” negotiation. I suspect many readers are saying, “How silly.” But . . . it works. It works especially where the mediator can get a sense that the parties are saying, “No,” but not “Hell, no.” Give it a try. “Let me tell you our authority” Some lawyers will attempt to bring the mediator into their confidence and tell their ultimate authority. My view is that the mediator should discourage this procedure. It almost makes the mediator an advocate for that party. Further, if the party’s authority is “x” dollars, “x plus a little” or “x minus a little” might just settle the case. It is probably better for all parties not to reveal to the mediator their ultimate authority. We’re not training trial lawyers From my perspective, it appears that a higher percentage of cases are being settled without a trial, due to the mediation procedure. It is also true that fewer trials results in less experienced trial lawyers. Is that bad? The whole idea of litigation is to resolve issues. The general public likes mediation, and obviously supports it. It really is a good way to resolve difficult issues quickly, inexpensively, and in a reasonable way. It’s not perfect, but it’s a good procedure. It is worth any “training” problem.

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November 2023

AROUND THE COMMUNITY By: Bridgette Fly

KBA Programs & Communications Coordinator

KNOXVILLE BARRISTERS CONSTITUTION DAY RECAP 2023 Constitution Day is observed every year on September 17 to commemorate the signing and adoption of the Constitution of the United States of America by the Founding Fathers in Philadelphia on September 17, 1787. Starting in 2021, the Knoxville Barristers have celebrated Constitution Day with Knox County schools; this year, they visited the classrooms of nearly 300 fourth graders at Dogwood, Maynard, South Knox, and Christenberry Elementary Schools. Attorneys and law students visited on September 15 to give an abbreviated lesson about the Constitution, three branches of government, checks and balances, and what lawyers do. Attorney Viktoria Haynes said the students at Pond Gap “really enjoyed creating a government within themselves. We had them play rock/paper/scissors to declare the president, and the kids got into it!” Keeping the attention of twenty to seventy 10-year-olds for an hour is difficult, but all volunteers commented on how engaged the students were. Their questions about the government, the Constitution, and what it’s like to be a lawyer were endless. Teachers reported that kids were already planning their legal careers after the lessons. The students’ avid interest was apparent a week later when they showcased presentations on what they had learned to our local judges. Students offered speeches, songs, tri-fold displays, and even a quilt representing various checks and balances in our government. At Christenberry, students performed what was sure to be a very heartwarming rendition of “The Preamble” from School House Rock. The judges then spoke on how the Constitution impacted their roles as judges and answered the barrage of students’ excited questions. They wanted to know what it took to become a judge, their power, and their most interesting cases. This continued zealousness keeps attorneys, law students, and judges volunteering to return each year. But this event wouldn’t be anywhere near a success without them. The Knoxville Barristers would like to thank this year’s participants: Hon. Suzanne H. Bauknight, Hon. Lisa Lowe, Hon. Greg McMillan, Hon. Debra Poplin, Hon. John Rosson, Celia Ball, Brian Bibb, Emily Cala, Viktoria Haynes, Carolina Hughes, Michelle Kwon, Christopher Mann, Georgia Seay, Caitlin Torney, and Grant Williamson. Also, we would like to thank our School Outreach Committee co-chair, Richard Graves, for organizing the event and ensuring that it continues to be a commendable celebration.

November 2023

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2016 GATLINBURG WILDFIRE LITIGATION

GOVERNMENT’S BID FOR DISCRETIONARY FUNCTION IMMUNITY REMAINS VIABLE DESPITE SIXTH CIRCUIT SETBACK After four years of litigation and three unsuccessful motions to dismiss, the Eastern District of Tennessee dismissed six lawsuits arising from the catastrophic 2016 Gatlinburg wildfires, concluding that it lacked subject matter jurisdiction because Plaintiffs’ failure-to-warn claims did not comply with the presentment requirement of the Federal Tort Claims Act (“FTCA”). The Sixth Circuit vacated this decision but remanded for a determination of whether Plaintiffs’ claims may nevertheless be barred by the discretionary function (“DF”) exception to the FTCA’s waiver of sovereign immunity. Background1 In November 2016, the Great Smoky Mountains National Park (“Park”) had been experiencing weeks of extreme drought conditions. The afternoon before Thanksgiving, the Park’s Fire Management Officer, Greg Salansky, observed smoke rising from the Chimney Tops’ north peak (“Chimney Tops 2”). Just before dark, Salansky and another National Park Service (“NPS”) firefighter hiked up and discovered a slow-moving wildfire covering less than 1 acre below Chimney Tops 2. But because of the darkness and treacherous terrain, there was little the firefighters could safely do that evening. Salansky, a 25-year veteran of fighting wildfires, was assigned as the incident commander for the Chimney Tops 2 fire, giving him primary responsibility for overseeing the Park’s response. The next day, Salansky and NPS firefighters determined that, although the fire had not spread during the night, the terrain prevented them from building a fire line.2 So, Salansky developed an indirect attack strategy, selecting a 400-acre “box” in which natural terrain features could be utilized to contain the fire. After briefing Park officials, Salansky began to implement the plan, a standard fire suppression strategy in mountainous terrain. By Saturday, the fire had grown to 6-8 acres, and the forecast for the next week predicted sustained wind speeds of 35-50 mph with gusts of up to 60 mph and rain showers. As a result, Salansky requested additional ground and aerial firefighting support. Helicopters arrived on Sunday afternoon and began dropping water onto the fire, but by Sunday

evening, the fire had grown to between 35 and 40 acres. Salansky released all firefighting personnel until the next morning and did not monitor the fire overnight. On Monday, wind speeds increased earlier than predicted. By the time Salansky arrived on the scene that morning, the fire had grown to between 250 and 500 acres, and burning embers had sparked smaller “spot” fires as far as a mile away from the main fire. The fire had escaped the “box” but was still within Park boundaries. Meanwhile, the Gatlinburg Fire Department began receiving emergency calls reporting smoke and falling ash. Although the Park issued three press releases between Thursday evening and Monday morning, the first verbal communication between the Park and the Fire Department apparently did not occur until late Monday morning. Shortly thereafter, a spot fire was reported 1.5 miles from Gatlinburg city limits. Working with the Fire Department and other agencies, Salansky shifted all Park firefighting resources to the area nearest Gatlinburg. The winds increased throughout Monday afternoon, and spot fires were reported at least five miles away from the main fire. Salansky requested aerial fire suppression, but the flights were aborted due to high winds. By 5:00 p.m. on Monday, the fire had doubled in size and covered about 4,000 acres. By 6:00 p.m., fires were reported in Gatlinburg, and the winds gusted to 87 mph, increasing the size of the fire to around 5,000 acres. Around 8:30 p.m., officials ordered a total evacuation of the Gatlinburg area. On Tuesday morning, the rain finally arrived and slowed the fire’s spread. However, the fire was not fully extinguished until December 13, 2016, resulting in the burning of more than 17,000 acres, 14 deaths, numerous injuries, and millions of dollars in damage. District Court Litigation After the fire, hundreds of claims were presented to the Department of the Interior using Standard Form 95 (“SF95”), a step that is a prerequisite to filing suit against the Government.3 The claims generally alleged that “[t]he U.S. government . . . failed to follow mandatory regulations to

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November 2023

COVER STORY By: David D. Ayliffe

Associate General Counsel and Director of Litigation Tennessee Valley Authority, Office of the General Counsel

monitor and extinguish a fire in the Great Smoky Mountains National Park, thereby allowing it to spread beyond the park boundaries [and] . . . destroying [claimants’] property.”4 Between 2018 and 2020, six class action lawsuits were filed based on these claims, alleging that the Park failed to monitor and extinguish the fire and failed to warn Park neighbors about the fire.5 In 2018, the Government moved to dismiss for lack of subject matter jurisdiction based on the FTCA’s DF exception, 28 U.S.C. § 2680(a),6 which immunizes the Government from liability if (1) “the challenged action involves an element of judgment or choice” and (2) “if the judgment involved is of the kind that the discretionary function exception was designed to shield.”7 The district court ruled that Plaintiffs had abandoned all but their failure-to-warn claims and denied the Government’s motion, finding that two sections of the NPS’s Fire Management Plan (“FMP”) contained mandatory directives that precluded the exercise of discretion. Accordingly, the district court did not reach the second prong of the DF test.8 In 2020, the Government was likewise unsuccessful in its attempt to dismiss again under the DF exception,9 but in 2021, it managed to dispense with the litigation when the district court granted its fourth motion to dismiss.10 The district court found that Plaintiffs’ SF95s did not properly present failure-to-warn claims, a jurisdictional requirement under Sixth Circuit precedent.11 The Sixth Circuit Vacates and Remands On appeal, the Court concluded that it was error to grant the fourth motion to dismiss. Initially, the Court observed that the FTCA’s presentment requirement “is not a particularly high bar,” requiring only minimal notice sufficient to allow the agency to investigate the claim and its sum certain value. The Court also noted that the statutory text “does not require that a particular theory of liability be presented to the agency.”12 Thus, the Court disagreed with the district court’s rejection of Plaintiffs’ failure-to-warn-claims, finding that the pleadings detailed a sequence of events involving alleged communication failures that were intertwined with the Park’s alleged failure to monitor and extinguish the fire (based largely on Salansky’s conduct) as presented in the SF95s. As a result, the Court held that the SF95s satisfied the FTCA’s presentment requirement because they were sufficient to allow the Government “to investigate Plaintiffs’ claims of injuries suffered as a result of the failure to warn of the Chimney Tops 2 Fire.”13 But the Government also argued that dismissal should be affirmed on the alternative ground that the DF exception barred Plaintiffs’ claims. Application of the DF test turns on the nature of the conduct at issue, which the district court identified as the failure to warn Park neighbors about the status and danger of the Chimney Tops 2 Fire. The Sixth Circuit disagreed with the district court’s analysis of the FMP’s notification section, concluding that it required the Park to determine first whether fire management activities had the potential to impact “Park neighbors, Park visitors, and local residents.” If so, notification was mandatory. Therefore, the Court ruled that the DF exception would immunize the Government only if the Park “conducted the required antecedent assessment and determined that fire management activities” lacked the impact potential specified in the FMP.14 However, because application of DF presents a jurisdictional question, the Sixth Circuit remanded to allow factual development on November 2023

whether the FMP contained mandatory directives, to readdress the Government’s challenge to subject matter jurisdiction in light of any new facts, and if appropriate, to apply the second prong of the DF test.15 Conclusion The outcome on remand regarding the applicability of the FTCA’s DF exception cannot be predicted. Although Plaintiffs’ failure-to-warn claims remain viable, there is evidence showing that the Park conducted the required antecedent assessment and determined that the Park’s fire management activities did not have the potential to impact Park neighbors and local residents16 and that the Park’s press releases satisfied the FMP requirement to inform Park neighbors of wildland fires. On the other hand, there remain unanswered factual questions about the meaning of “fire management activities;” what Park actions may qualify as the antecedent assessment; and when, if at all, the FMP requires this assessment to be conducted. And depending on how these factual issues are resolved, subject matter jurisdiction may be foreclosed if the exercise of discretion is of the kind that the DF exception was designed to shield. 1

4 5 6 7 8 9 10

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The factual information in this section is derived from Abbott v. United States, 78 F.4th 887, 891–93 (6th Cir. 2023), from the National Park Service, Chimney Tops 2 Fire Review Individual Fire Review Report (Aug. 31, 2017), and from other published NPS sources. A “fire line” or “fire break” is a wildfire containment strategy where firefighters create a gap in the vegetation to deprive the fire of fuel. To be effective, the fire line should be wide enough to prevent smoldering, burning, or spotting by embers blowing or rolling across the fire line. National Park Service, Wildland Fire: Fireline Construction, available at https://www.nps.gov/articles/wildland-fire-firelineconstruction.htm (Feb. 13, 2017). The FTCA prohibits a suit for money damages based upon a claim against the United States for damage, injury, or death caused by the negligence of a Government employee while acting within the scope of his employment unless the claim is first presented to the relevant federal agency and the claim is denied by the agency in writing. 28 U.S.C. § 2675(a). An SF95 is the FTCA claim form. Abbott, 78 F.4th at 893. Id. at 894. At this time, only three of the six Plaintiff classes had filed suit. Id. at 894 & n.4. Id. at 894 (cleaned up). Id. at 895. At this time, five of the six Plaintiff classes had filed suit. Id. at 895 & n.5. The Government’s third motion to dismiss argued that Plaintiffs’ claims were barred by the FTCA’s misrepresentation exception, 28 U.S.C. § 2680(h). The district court denied this motion, finding that Plaintiffs’ claims sounded in negligence not misrepresentation. Abbott, 78 F.4th at 895 & n.6. Reed v. United States, No. 3:18-cv-201, 2022 WL 601924, at *11 (E.D. Tenn. Feb. 28, 2022) (following Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981)). The district court also denied Plaintiffs’ subsequent motion to alter or amend the judgment. Abbott, 78 F.4th at 896. Abbott, 78 F.4th at 896–98. The Court also noted that the Government’s regulations require only “written notice of the incident, accompanied by a claim for money damages,” 28 C.F.R. § 14.2(a). Abbott, 78 F.4th at 897–99. The Court’s conclusion that the SF95s were sufficient to satisfy the FTCA’s presentment requirement enabled it to avoid the jurisdictional question. Id. at 899. Id. at 900–01. As to the other FMP section, the district court ruled that the Government failed to establish that it complied with the mandatory directive to inform Park neighbors of wildland fires. The Government argued that it had discretion about how to inform, but on the record before it, the Court viewed the issue as whether—not how—the Park had provided notice. Id. at 901–02. Id. at 903. The Sixth Circuit agreed with the district court that the FTCA’s misrepresentation exception did not apply and rejected the Government’s invitation to affirm on that alternative basis. Id. That the Park’s assessment may ultimately have proven incorrect is not material because, “[i]f there is room for judgment or choice in the decision made, the complained-of conduct is discretionary.” Mynatt v. United States, 45 F.4th 889, 896 (6th Cir. 2022).

IN LIMINE: PROFILING FUTURE JDS By: Carol Anne Long UT Law Interim Director of the Career Center

BIANCA GUZMAN

UT COLLEGE OF LAW, CLASS OF 2024 Please tell me about yourself! I grew up in Folsom, California, which is a suburb of Sacramento. I decided to go to the University of Nevada, Reno for college because it’s a top-tier research university, and it gave me a chance to experience a new state. I was also part of the Western Undergraduate Exchange program (WUE), where certain west coast schools offer in-state tuition for out-ofstate residents. When I started undergrad, I thought I wanted to go into Genetic Counseling, so I decided to major in Neuroscience. I ended up graduating in three years, which was a year earlier than I had planned, so I was trying to come up with career paths that would help me get into a Master’s program for Genetic Counseling. I ended up being recruited by a school in Massachusetts called The New England Center for Children that worked with students with severe autism. I worked for them for three years while getting my Master’s in education. When I graduated, I went to a Title 1 public school where I taught middle schoolers with moderate to severe disabilities in a “pull-out” classroom. While I loved my students, I didn’t feel like I was doing enough as their teacher and that I should be doing more for them and students. I found that my favorite part of the job was advocating for my students in their IEP meetings and working to get them the services they needed. So how did you make the decision to go to law school, and why did you pick UT Law? Making this decision was a tough one because I already had a Master’s and a career path ahead of me. But at the end of the day, I wasn’t happy being a teacher, and when I thought about what brought me joy, I always thought about how I felt when I was advocating for my students. I decided to step away from teaching and work for a law firm before making the decision to apply to law school. I ended up working for Nixon Peabody in their Massachusetts office as a Local Resource Assistant. My job was to provide clerical support to about fifteen attorneys across practice areas. I helped make trial binders for the Litigation team and compiled the closing binders for the Real Estate team. I really liked the pace of the office, and it was inspiring to see how much you could do with a law degree. When I was applying, I knew I was interested in Education Law and Advocacy, so I narrowed my list down to schools that could provide those opportunities. The University of Tennessee is one of the few law schools that offer both Education Law and Advocacy experiences, so it was always my top choice. Then when I came down for a visit with my mom, I knew that this is where I wanted to be and where I wanted to stay. Tell me about your law school experience so far: what activities and classes have you participated in and enjoyed? By far my favorite experiences have focused on Advocacy. During my 1L year, I was on the Phi Alpha Delta Mock Trial Team, and by the time we got to competition, I was a completely different “lawyer.” I felt so much more confident in what I could do and what I wanted to do. I definitely caught the courtroom bug during that competition. I’ve also really enjoyed my Civil Procedure and Evidence classes. I like the strategy that comes along with knowing and using the Federal Rules of Civil Procedure and Evidence. I think there’s a lot of room to be creative with the rules and to “win” not necessarily through an argument on the merits, but by just understanding how to use the rules to frame your

case in certain ways to get your desired outcome. For example, knowing the standards at the 12(b)(6) v. Summary Judgment stage is incredibly powerful because you can convince the court that your client deserves their day in court or show the court the opposite and that your client should be protected from this litigation. I think because of how much I love advocacy and litigation, I wasn’t expecting to enjoy the Transactions Clinic as much as I did. I had a mentor suggest that I take it because I had talked about an interest in doing non-profit work. Getting to work with members of the community and help them make the community better was one of the best experiences I had during my time in law school. What type of law do you want to practice and where would you like to end up? This is a great question because when I started law school, I thought I would want to practice Education Law. I think if I was to go into Education Law, I’d either want to help school districts really understand what is required under IDEA and how to manage the different Titles and constitutional concerns or work in higher education law. I’ve been working with the University of Tennessee’s Office of the General Counsel, and I like how dynamic it is. I like that one day I can be looking at construction litigation, and the next I’m trying to predict what the Department of Education is going to do with Title 9 regulations. The section 1983 claims are also fun to work with because there’s so much ambiguity in the balancing tests, so there’s a lot of room for advocacy. I’ve also participated in a lot of Mock Trial activities and taken a lot of criminal procedure classes, so I don’t want to close off that option. So outside of law school, what do you enjoy doing? Spending time with my cat Dodger, named after the LA Dodgers. I’ve also done a lot of community theater and ballroom dance. One of my favorite dances is west coast swing, and it’s pushed me to be more reactive and flexible because the steps don’t repeat. I tend to be a very organized person and live and die by my color-coded Google calendar, and I like planning out litigations so I can see the whole picture. But dancing and acting help me develop improvisational and reactive skills that help me think on my feet in a trial situation. I also love to travel. I’ve been to Ireland and Costa Rica, and I’m traveling to Italy this May after graduation. What is your ultimate “why” with respect to being an attorney? To do Justice. I know it sounds trite, but I believe in the law, and I want to use these skills I’ve learned to help others. I’m not sure if “justice” means helping a school district understand how it can better support students, or fighting for victim’s and community rights, setting up a nonprofit, or fighting section 1983 claims. Finally, what is the biggest lesson you’ve learned in law school? They tell us in 1L to get used to the ambiguity, and I believe that’s great advice. But I’d like to add to it. Where there is ambiguity, there is room for advocacy. So while it’s challenging to work with, ambiguity can be a creative lawyer’s best friend. *Hiring Footnote* Did you know that On-Campus Interviews for third-year law students are available throughout the entire school year? If you are looking to hire a new attorney to begin work in the summer or fall of 2024, there is no start or end date for the opportunity to interview these students. Contact Carol Anne at UT Law or Jordan at LMU to set up interviews!

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November 2023

SCHOOLED IN ETHICS By: Judy M. Cornett

University of Tennessee College of Law

TIME TO SAY GOOD-BYE? HERE’S HOW TO DO IT ETHICALLY Most lawyers will make at least one lateral move during their careers. But leaving one law firm for another raises several ethical issues. Tennessee Formal Ethics Opinion 2023-F-169 provides guidance on how a lawyer should ethically depart a law firm. Three principles are fundamental: First, “[l]awyers have the right to change law firms and clients have the same right to change lawyers or law firms.” Second, both the departing lawyer and their firm “have an ethical duty to protect client interests when a lawyer leaves a law firm.” Third, in order to comply with their duties under Tennessee Rule of Professional Conduct 5.1, law firms should have written policies in place regarding the procedures to be followed when a lawyer departs. Upon a lawyer’s decision to leave a firm, Rule 1.4 requires that the lawyer’s clients be given notice of the departure and the opportunity to stay with the firm, leave along with the departing lawyer, or terminate the representation altogether. This notice should ideally be given jointly by the firm and the lawyer and should be provided to “clients for whom the departing lawyer was responsible.” This notice would ordinarily be given during the lawyer’s notice period. Law firms can establish a notice period for departing lawyers, but the opinion cautions that “law firm notification requirements cannot be so rigid that they restrict or interfere with a client’s choice of counsel or serve to unreasonably delay the diligent representation of a client and therefore may violate RPC 5.6 which prohibits restraints on a client’s choice of counsel.” The opinion notes that the firm can offer to continue representing the client only if the firm is competent to do so. And, somewhat illogically, citing Rule 1.16(c), the opinion states, “If a client wants to remain with the firm and the court refuses to allow the departing lawyer to withdraw, the lawyer ‘shall continue representation notwithstanding good cause for terminating the representation.’” It isn’t clear how the client can be represented by the firm and by the departing lawyer at the same time. The opinion does not explicitly address the touchy issues that arise when the departing lawyer solicits firm clients and the clients choose to follow the departing lawyer. But the opinion does discuss the firm’s duties toward the departing lawyer during the notice period. The opinion declares that the firm may not “restrict[] the lawyer’s access to firm resources necessary to represent the clients,” including “client contact information” and computerized “client data.” The firm must continue to give the lawyer access to “email, voicemail, files, and electronic court filing systems.” However, the firm is not required to give the lawyer access to “proprietary or confidential materials not necessary for the departing lawyer to represent clients.” In fact, the opinion cautions that if the firm has a “a substantial question as to a departing lawyer’s fitness as a lawyer as a result of misconduct, fraud, illness, incapacity, substance abuse, dependency or similar circumstances,” the firm should consider restricting the lawyer’s access to client information and should also be mindful of its reporting

duty under Rule 8.3(a). Again, this assertion is somewhat illogical. If a firm has such a substantial question about a departing lawyer’s fitness as a lawyer, it seems unlikely that this question would arise only upon the lawyer’s departure. It seems more likely that the lawyer’s unfitness would have been evident prior to their departure. By including this proviso, the opinion may inadvertently suggest that a firm that has been harboring an unfit lawyer should avoid unleashing the unfit lawyer upon other firms. Tennessee Rule of Professional Conduct 8.3(a) requires a lawyer to report an unfit lawyer no matter when the substantial question about the lawyer’s fitness arises. After the lawyer has departed, the firm continues to have a duty to its former clients. Although the opinion does not cite Rule 1.16(d), that rule imposes upon the firm the “duty to protect the [former] client’s interests,” including “cooperating with any successor counsel.” In practical terms, this means that the firm “should set automatic email responses and voicemail messages for the departed lawyer’s email and telephones, to provide notice of the lawyer’s departure, and offer an alternative contact at the firm for inquiries.” In addition the firm must monitor “emails, voicemails, and paper mail” intended for the departed lawyer and must “promptly forward” those relating to the clients who followed the departed lawyer. If this all sounds familiar, it should. The Tennessee opinion follows closely ABA Formal Opinion 489, issued on December 4, 2019, which in turn closely follows ABA Formal Opinion 99-414, issued on September 8, 1999. Thus, the principles announced in the Tennessee opinion are far from revolutionary. By essentially adopting the ABA opinions, the Board has endorsed an open, transparent process by which clients of departing lawyers are informed of the departure and given the choice whether to continue representation by the firm or follow the departing lawyer.

If you have an idea for Schooled in Ethics column, please contact Cathy Shuck at 541-8835. November 2023

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BARRISTERS SEEKING OFFICER NOMINATIONS The Barristers are seeking nominations for the following officers to serve in 2024: • Vice President • Secretary/Treasurer • (2) Member-At-Large Seats Please notify Bridgette Fly (bfly@knoxbar.org) by November 3, if you would like to nominate someone or are interested in running for a Barristers office. Please note that the person elected Vice-President in December will automatically become the Barristers President for the 2025 bar year. Candidates must be current attorney KBA members. Voting will take place at The Barristers Elections and Holiday Party on Wednesday, December 6, from 5-7 pm at Printshop Beer Co.

BARRISTERS HUNGER AND POVERTY RELIEF COMMITTEE The Knoxville Barristers Hunger and Poverty Relief Committee will host the annual Second Harvest Food Drive Competition from November 6 through 28, 2023. Second Harvest Food Bank is East Tennessee’s largest hunger-relief charity, operating programs in 18 counties. Their programs provide food to more than 134,000 children, adults, and seniors each month. If your firm would like to participate in this year’s drive, please contact Bridgette Fly at bfly@knoxbar.org before November 1. Interested firms will need to provide the total number of full-time employees. Anyone can win this year’s friendly competition! The winner will be determined by the most meals per employee, so that both the weight of the donated food and the monetary donations are included in the calculations for the final standings.

NEW BAR ADMITTEES WELCOME RECEPTION All KBA Members are invited to attend the New Bar Admittees Reception on November 6, from 5 – 6:30 pm at Frothy Monkey (419 S Gay Street). Join the Barristers in welcoming the 2023 Bar Admittees to the legal community in a relaxed, informal environment. Hors d’oeuvres and drink tickets will be provided, and the event is free thanks to our sponsor, First Horizon. This event is a great opportunity for members to celebrate with those who passed the July 2023 Bar exam and encourage them as they begin their legal careers.

WELCOME NEW MEMBERS

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

MONTHLY MEETING Plan now to attend the Barristers monthly meeting on Wednesday, November 8, starting at 5:15 pm at The Firefly, the outdoor patio at the Hilton, located at 501 W. Church Avenue, Knoxville. Social time starts at 5:00 pm.

NEW ATTORNEYS

VETERANS LEGAL ADVICE CLINIC The Veterans’ Legal Advice Clinic is a joint project of the KBA/Barristers Access to Justice Committees, Legal Aid of East Tennessee, the Knox Co. Public Defender’s Community Law Office, the UT College of Law, LMU- Duncan School of Law, and the local Veterans Affairs office. This is a general advice and referral clinic which requires attorney volunteers for its continued operation. The next Veterans Legal Clinic will be held in person at the Knoxville Community Law Office on November 8, 2023. Sign up at https://www.knoxbar.org/?pg=Upcoming-Legal-Clinics. WHAT I WISH I KNEW AS A NEW ASSOCIATE The New Lawyers Section hosted a program on September 26 at Bearden Beer Market to share tips on managing staff, technology, impossible deadlines, and “common-sense” practices that young lawyers face early in their careers. The program featured Bridget Pyman of Arnett| Baker, LLP and Garett Franklyn of Moore Ingram Johnson & Steele. A special thanks to KBA member Jennifer Noell, who is a realtor with Berkshire Hathaway HomeServices Dean-Smith Realty, for sponsoring the event.

Ethan Brown Oneida Indian Nation

Brennan P. Lenihan Ritter & Lenihan

Kimberly Cambron Fresh Start Law P.C.

Gianna Maio Federal Defender Services

Stuart I. Cassell

Robin E. McMillan Ritchie, Davies, Johnson & Stovall, P.C.

Anna East Corcoran Aqua-Chem, Inc. M. Hallie Dyer Garza Law Firm, PLLC Rachel K. Harrison Knox County Law Department

Joseph D. McReynolds Clark & Washington, P.C. Joseph Ronald Oliveri Clare Locke LLP Jeffrey H. Tuck Summit Medical Group

NEW LAW STUDENT MEMBERS Kameron H. Andrews Matthew A. Bailey Aaron Barton Ian Beal Christian A. Beasley Ashlyn Bell Tara K. Bennecker Dillon Biggs Dedra L. Brown Natalie M. Brown Elise M. DeNicola Sierra Ashley Dennis MacKenzie L. Eck Tia Freshour John Fuchs Hanna Grace Garner Donato A. Gonzalez Carter M. Graves Bradley W. Greer

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Micaela D. Gregg Tahji Griffin-Brown Hannah H. Harosky Kylie Head Margaret A. Herberholz Cameron L. Hofstetter Grayson E. Johnston Courtney Keegan-Smith Theaya Kelley Evan J. Kluth Elizabeth Landin Vivian Lee Margaret K. Lemon Katelyn L. Malcolm Kyle D. Mangrum Jacob Manning Adrian Mayagoitia Shahir Nabi Sarah E. Nash

Nathan Ogle Kaitlin O’Neill Brianna M. Pedro-Santiago Britain N. Peele Victor Penaloza Nathaniel E. Pettit Samuel G. Riddle Jaleigh Rogan Aubrian Sanders Seth Sloan Tylor Storey Kacy J. Thomason Kendal A. Walker Parker J. Westhoff Austin A. Westling Cynthia S. White Mary C. Wilkinson Peter C. Wyckoff Grant M. Young

November 2023

SIMPLE THINGS By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

ALWAYS Paul Woyshner was born on November 10, 1894, in the thriving town of Bialystok, the capital of the Podlaskie Voivodeship,1 which is in northeastern Poland.2 His mom and dad were Stanislaw Woyshner and Sophie Makowski, but history did not record much about them.3 There are a lot of things that history does not record. I suppose that is because it is very difficult to realize the long-term significance of any particular day until after the fact – sometimes decades after the fact. Most of the time, we don’t know what makes a day ordinary or extraordinary during the 24-hours that comprise a single day. Tiny Paul had no idea that he was being born on the day that U.S. Marines would commemorate as the birthday of the Marine Corps. just 25 years later. But to be fair, newborn humans don’t seem to have a firm understanding of anything.4 Somehow, Paul’s family managed to emigrate from Bialystok to Pennsylvania around the turn of the century, and in 1916 Paul enlisted in the Marine Corps.5 He was 22 years old. Within a year, the U.S. would enter World War I, and Paul’s attention would refocus back on Europe, this time as a Member of the U.S. Marine Corps.6 Let’s be clear. There is no such thing as an ordinary Marine. The stories are legendary – from Sergeant Major Dan Daly’s fierce battle cry in Belleau Wood7 to the deadly accuracy of Marine sniper Carlos Hathcock throughout the jungles of Vietnam.8 There are just so many stories.9 Paul was also legendary, but his story has survived in the artwork that he created. Paul was an artist, a cartoonist, and an illustrator, and his early artwork captured the perspective of a Private during the buildup to World War I.10 Unsurprisingly, most of those cartoons provided an unflattering perspective of Marine Corps recruiters and their recruiting tactics, but the Corps had a sense of humor and published them anyway in the Recruiters’ Bulletin.11 But, when the U.S. entered World War I, Paul and other cartoonists had a much harder task. Now, their task was to provide to bit of humor and a glimpse of America to U.S. troops who were struggling to survive in the brutality of the trenches scarring the European landscape. They were also tasked with helping the U.S. public understand what their soldiers and sailors were experiencing “over there” across the Atlantic. Army second lieutenant Guy T. Viskniskki, press officer and former member of the Wheeler Newspaper Syndicate, came up with an idea for a newspaper. It would be called the Stars and Stripes, and its target audience would be the U.S. troops deployed abroad.12 The publication soon was full of Paul’s cartoons, bringing hope and a bit of humor on the bleakest day. But, Paul’s mission was two-fold, and the second part involved rallying the U.S. public to support the troops abroad. To achieve that purpose, Paul turned his artistic hand to posters and illustrations. Throughout WWI and then through WWII, Paul’s posters reminded the public not to forget the U.S. Marines who were on duty day and night. Some of his posters have survived, and they can be found in the National Archives, Presidential Libraries,13 museums,14 and the occasional auction house when one becomes available. Paul Woyshner’s artwork is legendary. To this day, it provides a simple perspective of a soldier trying to smile. But that was not Paul’s only contribution to the Corps. He served for forty years, retiring in 1956 as a Master Sergeant.15 Somewhere in those four decades, Paul found himself in a bar, as one does from time to time. He got into a verbal spat with a discharged Marine over the other Marine’s conduct, and across the bar, he yelled, “Once a Marine; Always a Marine.”16 “Once a Marine; Always a Marine” has been a core principle of the Marine Corps ever since. “There November 2023

are no ex-Marines or former-Marines. There are (1) active duty Marines, (2) retired Marines, (3) reserve Marines, and (4) Marine veterans. . . . [O]nce one has earned the title, he remains a Marine for life.”17 We don’t know what makes a day ordinary or extraordinary. We don’t know which tiny human born on an ordinary day, will end up being the person who brings a ray of sunshine or a stern word of admonition to a person who needs to know their value and purpose. It is a simple thing to do what you know how to do. Whether that simple thing is an ordinary act or an extraordinary one only time will tell. 1

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A Voivodeship is the Polish equivalent of a state or province. Merriam-Webster Dictionary, Voivodship, https://www.merriam-webster.com/dictionary/voivodeship, last visited Oct. 7, 2023. Find a Grave, MSGT Paul Woyshner, https://www.findagrave.com/ memorial/120846310/paul-woyshner, last visited Oct. 7, 2023; Travel Poland, https://www.poland.travel/en/cities/bialystok, last visited Oct. 7, 2023. Find a Grave, supra n. 2. Prior to 1921, the Marine Corps celebrated July 11th as its birthday because July 11, 1798, was the date President John Adams reconstituted the Corps after it had disbanded following the Revolution. See Marine Corps University, Marine Corps Birthday Celebration, https://www.usmcu.edu/Research/Marine-Corps-HistoryDivision/Brief-Histories/Marine-Corps-Birthday-Celebration/#:~:text=Formal%20 commemoration%20of%20the%20birthday,been%20celebrated%20on%20 another%20date, last visited Oct. 7, 2023. On Nov. 1, 1921, Major General Commandant John A. Lejeune issued Marine Corps Order No. 47, Series 1921, which reestablished November 10, 1775, which was the date the Second Continental Congress officially commissioned the Corps, as the true birthday of the Marine Corps. Per Major General Lejuene’s Order, Order No. 47 is read on Nov. 10th every year, regardless of where Marines may find themselves. Franklin D. Roosevelt Presidential Library and Museum, Paul Woyshner, https://fdr. artifacts.archives.gov/people/6234/paul-woyshner?ctx= 8b0479ab2c36b1b934e088501504e59282fafce8&idx=950#:~:text=Russian%20 born%20Paul%20Woyshner%20enlisted,the%20rank%20of%20Master%20 Sergeant, last visited Oct. 7, 2023. Id.; see also U.S. Dept. of State, Office of the Historian, U.S. Entry into World War I, 1917, https://history.state.gov/milestones/1914-1920/wwi#:~:text=On%20 April%204%2C%201917%2C%20the,Hungary%20on%20December%20 7%2C%201917, last visited Oct. 7, 2023. “Come on you sons of xxxxx, do you want to live forever?” Marine Corps University, Sergeant Major Daniel “Dan” Joseph Daly, USMC (Deceased), https://www.usmcu. edu/Research/Marine-Corps-History-Division/Information-for-Units/Medal-ofHonor-Recipients-By-Unit/Sergeant-Major-Daniel-J-Daly, last visited Oct. 7, 2023. Military.com, 5 Amazing Stories from Marine Corps. Legend Carlos Hathcock, https://www.military.com/history/5-amazing-stories-marine-corps-legend-carloshathcock.html, last visited Oct. 7, 2023. Please take the time to visit the National Purple Heart Honor Mission. You won’t be disappointed. https://www.purpleheartmission.org/stories-of-valor/us-marinecorps-corporal-john-hurley-jr-vietnam, last visited Oct. 7, 2023. Cord Scott, PhD, The Mud and the Mirth MCUP 17 (2022), available at https://www. usmcu.edu/Portals/218/The%20Mud%20and%20the%20Mirth_web.pdf Id. at pp. 19-20. Id. at pp. 39-40; see also Max Hauptman, These 100 Year Old Marine Corps Cartoons Show that Some Things Never Change (Task & Purpose Nov. 23, 2022), available at, https://taskandpurpose.com/culture/marine-corps-cartoons. National Archives, Paul Woyshner, https://fdr.artifacts.archives.gov/people/6234/ paul-woyshner?ctx=8b0479ab2c36b1b934e088501504e59282fafce8&idx=950, last visited Oct. 7, 2023. The National Museum of the Marine Corps, He Did His Duty—Will You?, https:// www.requestaprint.net/NMMC_Gallery/itemdetail.php?work_id=59&gallery_id=1, last visited Oct. 7, 2023. Russian-Born Marine Ends 40 Year Service, New York Times (Feb. 1, 1965), available at https://www.nytimes.com/1956/02/01/archives/russianborn-marineends-40year-service.html. Marine Corps University, Famous Quotes, https://www.usmcu.edu/Research/ Marine-Corps-History-Division/Frequently-Requested-Topics/Famous-Quotes, last visited Oct. 7, 2023. Heritage Press International, http://www.usmcpress.com/heritage/usmc_slogans. htm, last visited Oct. 7, 2023.

OF LOCAL LORE AND LAWYERS By: Joe Jarret, J.D., Ph.D. Attorney, University of Tennessee

KNOXVILLE’S DAUNTLESS DOUGHBOY STATUE: TRIBUTE TO THE GREAT WAR Introduction: It’s unknown exactly how U.S. service members in World War I (1914-18) came to be dubbed doughboys—the term most typically was used to refer to troops deployed to Europe as part of the American Expeditionary Forces—but there are a variety of theories about the origins of the nickname. One of the more plausible has been offered by historian H.L. Mencken, who claimed that “Soldiers kept the piping on their uniforms white through the application of clay. When the troops got caught in the rain, the clay on their uniforms turned into “doughy blobs,” leading to the doughboy moniker.” Regardless of the origins of the nickname, it is important to note that over 100,000 Tennesseans volunteered during the First World War, six of them winning the Medal of Honor. When I was stationed in Germany, compliments of the U.S. Army, I paid my respects at more than one WWI battlefield, each a sobering experience. A Statue is Born: John Paulding was a Chicago based sculptor who made a specialty of World War I memorials in bronze. He created two distinctive World War I memorial prototypes, which he copyrighted. The most popular is the model created in 1920 called “Over the Top” which captures an American Infantryman charging forward at the run with his right arm raised to signal his companions to follow. In his left hand, he carries his rifle with its bayonet fixed. It is this model that stands vigil in front of what is now known as the Historic Knoxville High School, which operated from 1910 to 1951, enrolling grades 10-12. Enter the Courts: Paulding and sculptor E. M. Viquesney both produced very similar World War I monuments within a few months of each other, resulting in various copyright violation lawsuits. John Paulding beat E. M. Viquesney to the copyright office by five months in 1920 (which might have been the basis for a copyright infringement lawsuit filed against Viquesney in 1922). But by using flamboyant advertising and sales tactics, and cheaper materials and construction methods, Viquesney was soon able to overshadow Paulding, unfortunately leading to the misconception in later years that Paulding was the “copycat.” In fact, they were similar enough in the mind of Jules Berchem, the owner of the American Art Bronze Foundry in Chicago, Illinois (the foundry Paulding used), that he sued Viquesney in 1922 for copyright infringement, claiming Viquesney’s and Paulding’s statues were “so similar as to deceive the general public.” A Doughboy Comes to Knoxville: In 1921, one of Paulding’s Over the Top monuments was erected in front of the Knoxville High School in honor of the men who served in the 117th Infantry Regiment during World War I. The 117th had been part of the 3rd Tennessee Infantry in the pre-war National Guard. Called into service, the unit became the 117th Infantry Regiment, serving during the Great War as part of the 30th Infantry Division. On May 22, 1922 a special dedication ceremony was held. General John “Black Jack” Pershing1 was one of the guest speakers who addressed the crowd of approximately 7,000. The memorial consists of a life-sized bronze World War I infantryman appearing to run across rocky ground, carrying a rifle in his left hand with his upraised right hand beckoning his comrades to follow him into battle. Beneath is a granite base and behind is a tall granite shaft topped by an eagle with outstretched wings. The shaft is adorned with medallions and several plaques honoring the local participants in wars from the Mexican War through World War I. Some list the names of the 453 members of the 117th Infantry who died in World War I. The base of the monument reads: “This monument perpetuates the memory of our beloved comrades who, true to their instincts of their birth, faithful to the teachings of their fathers, constant in their love of country, made the supreme sacrifice in the performance of their duty; who have glorified the great cause of freedom by the simple manhood of their lives, the patient endurance of their suffering, and the heroism of death, and who, in the darkest hours of the world’s conflict, in the hopelessness of the hospital, in the short, sharp agony of the battlefield, found support and consolation in the belief that at home they would not be forgotten.” Over 53,000 Americans died in WWI, lest we forget. 1

General of the Armies John Joseph Pershing (September 13, 1860 – July 15, 1948), nicknamed “Black Jack,” was a senior United States Army officer. He served most famously as the commander of the American Expeditionary Forces (AEF) during World War I from 1917 to 1920. In addition to leading the AEF to victory in World War I, Pershing notably served as a mentor to many in the generation of generals who led the United States Army during World War II, including George C. Marshall, Dwight D. Eisenhower, Omar Bradley, Lesley J. McNair, George S. Patton and Douglas MacArthur.

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November 2023

OUTSIDE MY OFFICE WINDOW By: Robbie Pryor

Pryor, Priest & Harber

THE BARK Sophie was our last dog. She hated dog parks. She didn’t understand them. After we moved downtown, we thought she needed socialization. She didn’t. We took her to the public dog park on Summit Hill Avenue, and she just stared at us. “What are all these dogs doing here?” she asked. We forgot that Sophie thought she was a human. Raised on a farm with our kids, she needed no interaction with other dogs to sustain her. Neither did we. After she passed in January of 21’ we were brokenhearted but quickly realized we needed to start anew. You must always start anew. When life hits you squarely in the face and takes you to your knees, you must begin again. It is the secret to life. Along came Rosie. Rosie rushed in the gate on day one in full puppy mode. We took her to the same dog park - “Public School.” She was 12 weeks old. Wow! Social butterfly doesn’t quite capture it. She is a 5-star player, an all-star in the art of wrestle and chase. We knew quickly that this was going to have to be a daily thing. We also realized that daily baths would be required. Rosie possesses every wrestling move known to dogs, including the tuck and roll maneuver. She was a mess after every visit, especially on rainy days. After several months of the daily exhausting replay, my wife said, “I’ve found another dog park about a mile away.” I gave a look that suggested protest, to which she responded, “they have artificial turf and serve beer.” Rosie had a new dog park. The Bark is just past the Old City, off of Central. If you blink, you’ll miss it. For a small monthly fee, you can bring your dog to play indoors or outdoors. They have daycare, events, and beer for “dog parents” (a term I hate). We call it “Private School.” They have “Bark Rangers” who break up fights and humping and even pick up poop. We were just hoping she connected with the dogs the first day we made our way there. What happened was something different and unexpected. Over a year later, Rosie drags me in the door, past the desk and into the outdoor park every day. If she didn’t pull me, I’d pull her, because both of us have friends waiting. Michael is a computer programmer. His wife is senior editor of a scientific journal. Jacob studies DNA, and his girlfriend, Kayla, is a schoolteacher. Lizzie is a student in architecture. Ethan is an art teacher who played in a band back in the day. Cassandra is a vet tech who fosters dogs and has an endless knowledge of trivia. Macauley is the director of soccer operations at UT and a diehard Philadelphia Eagles fan. Stella is a chocolatier. Alexander is an attorney. David is an oral surgeon. Emily is a law student. John is a pharmacist. And those are just a few of the dog owners who have become our friends. We haven’t even touched on the staff. More about that in a moment. Among the many people in our chosen community there are people November 2023

of color, people who are gay, transgender, and even Republicans. One flew helicopters for the Army. Another, Jakob (different Jakob), is a biologist and world-leading authority on ferns. Yes, ferns! Some are quite sure of who they are and where they are going, while others are just figuring it out. Several are dealing with the broken relationships that often come with proclaiming who you are in this crazy world. We span several generations, but there we all sit, broken and beautiful in our own way, having a beer while our dogs play. We share movie and tv recommendations and, occasionally, hit the town together with intentions of leaving a mark. Oh, there is always some bit of dog park drama Doc, the big dog, is humping too many dogs and must go home - but generally it is a no-drama zone. We all talk and get to know one another, eventually sharing a bit of what makes each of us happy and sad. Group therapy with slobber and wet dog kisses. The staff. They are young and are just as diverse as the clientele. More importantly, they have become our Loryn’s peer group. Loryn, who came to live with us last August as a high-school senior, rooted from the only home she’d ever known and ripped from her comfort zone, found a home with us and with the employees of our dog park. They have become her best friends. Loryn comes home from college to see them, not us. It is a place where we all escape, if only for an hour or two. My friend and fellow trial lawyer, David Eldridge, brings his dog, Gus. He recently tried a case in Kentucky for a month. I tried a medical malpractice case for a week. Between cases we sat and talked about the life and plight of trial lawyers while Rosie and Gus sniffed each other’s butts and then ran to a canoe full of water (Rosie’s favorite spot). Something about the presence of happy animals forces you to reevaluate the level of your supposed importance in the scope of it all. Having to pick up your dog’s poop brings us all to the same level, and it is a beautiful thing. There is no judgment at The Bark. Tennessee football, restaurant reviews, entertainment and dog personalities are the usual subjects. But when you talk to the same people every day inside the fence, you inevitably get to the heart of people and end up sharing a bit of yourself. A tight-knit community is created. When Loryn graduated from Hardin Valley in May, The Bark staff had a party for her. Stella made two cakes and several of our friends came. Last month, I sang You Shook Me All Night Long on Karaoke night, and Rosie was voted Prom Queen. We all giggled as she celebrated by humping Barney, the Prom King, in the canoe as Night Moves by Bob Seger played in the background. You can’t make it up. I hope this is what Heaven is like.

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BARRISTER BITES By: Angelia Morie Nystrom

Vice President for Advancement and Chief Legal Counsel East Tennessee Foundation

PRIZES AND PASTA: WHO COULD ASK FOR ANYTHING MORE? It always makes me happy when people drop me a note, stop me on the street or stop me in the grocery store to tell me that they enjoy Barrister Bites. It makes me even happier when people tell me that they tried one of my recipes and loved it. I got an email this week, though, that sent me over the moon. DHS Administrative Judge Sarah Booher emailed to let me know that she had made my Bloody Mary Chili for a chili cook-off over the weekend… AND SHE WON!! She said she could not believe it; however, I had no doubt. My sister has used that same recipe to win a big chili cook-off in Northern Virginia for five years in a row. It has been her “go-to” for years, and it is fabulous. Judge Booher shared that, while she is still partial to the recipe she has been making for the last 15 years, she is moving Bloody Mary Chili into her rotation, too. While I love people trying, enjoying, and WINNING PRIZES with my recipes, I love it even more when people share their favorite recipes with me. For many years, I have collected cookbooks. I have Southern Living’s Annual Recipes from 1993 forward, Junior League cookbooks from across the country, countless church cookbooks, and a host of others. During the pandemic and the great clean-out at the Nystrom house, Hugh saw just how many I had and told me unequivocally, “No more.” Hugh’s reasoning was that I could find all the recipes that I wanted online and that there was no need for cookbooks anymore. He didn’t quite understand that, even more than the recipes, I love the stories that are told in cookbooks. While internet recipes are often quite good, they often lack the same commentary from the provider about the history of the recipe, why the dish is beloved, and how the food should be served. It is entertaining to me. Recipes from friends fill that same void. Judge Booher told me about a recent recipe from the NYT that she says is her new obsession: Blistered Broccoli Pasta with Walnuts, Pecorino, and Mint. She said that, when she tried it, she instantly thought of me and wanted to share. She said that she has made it many times, and it is always a hit. The Blistered Broccoli Pasta is exceedingly easy and versatile. It is a great addition to our weeknight rotation. To prepare, you will need Kosher salt and black pepper; 12 ounces riccioli, fusilli or other short pasta (my preference is actually bowtie pasta); ½ cup olive oil, plus more for drizzling; ½ cup chopped walnuts (or pecans); ½ tsp red-pepper flakes; 1 bunch broccoli (about 1 ½ pounds untrimmed), florets roughly chopped and stalks peeled and sliced ¼ inch thick; 1 lemon, zested (about 1 tsp) then quartered; ½ cup grated Parmesan, plus more for serving; and 1 cup packed fresh mint leaves or parsley leaves (I prefer parsley). Once the ingredients are assembled, it is really easy to make. Bring a large pot of salted water to a boil. Add the pasta and cook according to package instructions until al dente. Meanwhile, heat the oil in a large skillet over medium-high heat. Add the walnuts (or pecans) and red pepper flakes and cook, stirring, until golden and fragrant, about 1 minute. Using a slotted spoon, transfer walnuts and red pepper flakes to a small bowl. Season walnuts with a little salt and pepper. Add the broccoli to the skillet and toss to coat in the oil. Shake the skillet so broccoli settles in an even layer. Cook, undisturbed, for

2 minutes. Toss and shake to arrange in an even layer again and cook, undisturbed, another 2 to 3 minutes; season with salt and pepper and remove from heat. Drain pasta and add to the skillet along with the lemon zest, cheese, toasted walnuts and half the parsley (or mint); toss to combine. Divide among plates or bowls and top with remaining parsley (or mint), more cheese and a drizzle of olive oil. Serve with lemon wedges, squeezing juice on top, if desired. Because Trace needs lots of protein, I have added grilled chopped chicken. It is fabulous and really complements the flavors in the pasta. It is the perfect combination of proteins and carbohydrates and is loaded with all sorts of vitamins and minerals. It also satisfies the most finicky of eaters. Judge Booher says that her mother turned her nose up at it when she arrived for a visit… and then asked for the leftovers on the way out the door. I had a similar reaction with my mother, who told me that there was no way the combination would be good… but then absolutely loved it when I made it. It might be MY submission to my next cooking contest!

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November 2023

MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Adam G. Russell Fisher | Russell PLLC

THE GOLDEN RULE IN OFFICE MANAGEMENT: BUILDING A POSITIVE WORKPLACE CULTURE For my first contribution to this column, I want to bring a different dialogue to the discussion of management issues in our own practice and office environment. My goal is to (hopefully) help us to remember the “Golden Rule” even during those times we are putting out a fire or dealing with a difficult colleague or coworker. For some of you, what you are about to read may seem too mushy or pollyannish (one of Wayne Kramer’s favorite words) …and that’s ok. In our profession, and especially in the litigation arena, it can be very hard to treat others like we would want to be treated or to be kind to those on the other side of the “v.” Understandably, we want to avoid being perceived by our colleague or opponent as weak. And the truth is, there are those in our profession looking to take advantage of any perceived weakness. Even still, I suggest there is real intrinsic value in remembering the Golden Rule. The Golden Rule – “Treat others how you want to be treated” – is a universal principle that reinforces many ethical and religious belief systems. Applying this rule in our profession is of particular importance because it has the potential to shape our work life and enhance our relationships within our profession. But what does the Golden Rule really look like in our day-to-day work life? To partially answer that question, I will paraphrase some words of wisdom I have adopted from some of my mentors: “Be patient, listen more, and speak less.” “Don’t forget where you came from.” “Be humble in all that you do, but especially when you win.” “Don’t hesitate to admit when you are wrong.” “Wait a day before hitting send on a snarky email response” (a personal favorite I sometimes forget). Most of us would probably agree that these words are good to live by, in theory. But what about in reality? What about in the way we communicate with that demanding partner who wants something yesterday. Or that difficult client who doesn’t seem to listen. While it is admittedly impossible to exercise the Golden Rule in all aspects of our practice and dealings within the office, for the following reason I suggest its worth trying. Improved Communication One way to put the Golden Rule into action is to have empathy when we communicate. Every day we engage with people in all walks of life, each with their own personal and professional interests and demands. Whether we are confronted with a security guard who seems upset, an insurance adjuster who needs an update, a difficult client with another problem, or a co-worker who is overstressed and burnt out, we can engage with empathy and consider whether there is something more going on behind the scenes. Communicating with empathy improves the effectiveness of our communication. It helps us relate to the other person by forcing us to consider how we would feel if we were in their shoes. In doing so,

we can foster and grow and practice and office environment where communications are more open and honest. Avoiding and Resolving Conflicts Being kind is another way to put the Golden Rule into action. Often being kind in how we communicate with others will prevent conflicts or resolve them more quickly. This is particularly true in our law practice. I have found coworkers and employees who are kind to one another are much more willing to work together, share knowledge, and support one another in achieving a common goal. Likewise, being kind to opposing counsel and even opposing parties (e.g., agreeing to extend a deadline, exchanging documents informally, acknowledging the weaknesses on my side of the case, being pleasant and respectful to an opponent party during a deposition, etc.) can prevent conflicts down the road and even lead to a more expedient resolution of the dispute. Increasing Trust During my 15 years of practice, I have been blessed to work for several different firms, from relatively large to relatively small, and in those offices, I have interacted with many assistants, runners, interns, clients, associates, and partners. My personal observation is that a successful firm and successful practice within that firm is built on a foundation of trust between the attorneys and the staff. How do we react if an assistant makes a mistake? Do we consider how we would want our boss or partner to respond if we had made a mistake? Or do we respond the way others have responded to our mistakes, forgetting how it made us feel at the time? In my experience, employees are more likely to admit a mistake if there is a history of trust within that relationship. To be sure, I am not suggesting that we ignore the mistake or not address the person. The point here is we should simply consider how we would feel if it was us sitting on the other side of the table. By practicing the Golden Rule, managers and employees can build trust and create an office environment that is more reliable and dependable, which in turn, will lead to more success for all involved. In summary, effective law firm and practice management extends beyond the daily operational grind and bottom-line. It requires a commitment to both legal excellence and a firm culture guided by the Golden Rule. Adopting these principles into our management style and daily operations will foster more ethical conduct, enhance client relationships, build credibility among your colleagues, and create a supportive work environment where we all can succeed.

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 Sam Henninger at shenninger@wmbac.com. November 2023

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BILL & PHIL’S GADGET OF THE MONTH By: Bill Ramsey Neal & Harwell

By: Phil Hampton

MICROSOFT WINDOWS COPILOT In the past year, generative Artificial Intelligence (AI) had emerged from the lab as an ongoing experiment into actual products that we use on a daily basis. Sometimes it is hard to conceptualize how something like AI might impact your daily work; but when products we use regularly begin to incorporate generative AI into our workflow, we can easily see how transformative this new technology can be. We are at that stage where AI is being introduced in brand new technology products and also being incorporated into some very old technology that we have used for a long time. Case in point: Microsoft Windows. Microsoft first gave us a sneak peek of what it was working on in the AI space with a preview of its new AI-infused version of Bing, Microsoft’s search engine. We have written about that previously. Now, the next Microsoft widespread AI feature update has been made available to Windows 11 users (not Windows 10 users) with automatic updates beginning in September 2023. For those who have the update, you will notice a multicolor icon in your task bar with a label of “Pre” on it. Clicking on this icon will bring up the preview mode of Windows’ newest AI feature called Windows Copilot. “Copilot” is Microsoft’s branding for its AI integration that will be a part of not only Windows 11 but Microsoft 365 products (Word, Excel, Power Point, Outlook, etc.), the Edge browser, and Bing. We are very excited to see Copilot integrations into all these products; but have tempered our excitement with the knowledge that these integrations are going to be rolled out through various updates; and what we have access to now, Windows Copilot, is still in preview mode with limited functionality. Our enthusiasm is also tempered by the news that at least some of the coming Copilot updates will come with a price tag. For now, however, we are happy to experiment with the free Windows Copilot Preview. When you launch Windows Copilot (from the taskbar icon or, alternatively, with [Windows key] + C), a panel appears on the right side of the screen where you can type in your Copilot requests. This Copilot panel stays on the screen and does not overlap with any other open windows. The user is presented with three different modes “More Creative,” “More Balanced,” and “More Precise” which governs how you want the Copilot companion to respond to your requests. Thankfully, Microsoft includes some example queries in each mode to give us an idea of what they are talking about. Then, at the bottom of the panel, is a text box where you can type in your query or command for Copilot. There’s no harm in trying it out. There’s really not anything you can do that will be harmful to your computer. If you ask something Copilot is not yet equipped to do it, it will kindly tell you. No harm. No foul. The only restriction is that you can only make 30 queries in one Copilot session.

We’re not sure if this is just a restriction in the preview mode or if that is a regular feature of the full-blown product. Nonetheless, we never got close to 30 questions in any one session, so we didn’t mind the limitation. So, what you can do with this Windows Copilot? First of all, Microsoft suggests that you can use it to make system setting changes on your computer without having to hunt for the option among the labyrinth of System app menus and options. For example, you simply ask Copilot to “turn on dark mode” and, like magic, it makes that change for you. It doesn’t make you feel dumb for asking, or roll its eyes, or stifle a laugh; it just does it for you. Nice! We would really like it if once we made such a request, Copilot would just complete the task without coming back and asking for “Yes” or “No” confirmation; but maybe that will go away in future updates (we hope). In this preview stage, Copilot can do basic system changes; but it stops short of more advanced tasks, like “do a system backup”. Copilot’s answer to that request was a step by step guide of how to do it myself. Well thanks but no thanks. In addition to making just basic computer system changes, Copilot can do more interesting things. In much the same way you can use the new chatbot version of Bing to query the internet for specific things; you can do likewise with Copilot with the response being a summary of the solutions to your query or question with footnotes to actual websites. So, in this respect, Copilot is just a Bing chatbot added to the Windows interface with the added ability to perform some limited Windows commands. One use of Copilot that we actually found useful was to ask it to summarize a webpage that we had open in the Edge browser. Acting more like an AI-assistant rather than just a robotic shortcut, Copilot will do a pretty good job of creating a bullet point summary of any web page we had open in the active browser tab, including PDF documents open in the browser. Much like a human assistant might read through a document and highlight the salient points for you, Windows Copilot seems to perform this task with ease. While we know this preview version of Copilot is limited in its functionality, we still can get a glimpse of how AI is going to be infiltrating our daily workflow through the systems that we currently use. This evolution is not scary to us (as of yet, we haven’t been able to train Copilot or anyone else to write an article in the “tone of Bill and Phil”). While we welcome more AI technology into our workflow, at the same time we do well to realize its limitations and sometimes its outright errors. Thankfully, humans like us are still around to tame and harness this technology for good.

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November 2023

HOW TO THRIVE IN LAW AND LIFE By: Emily Heird, LPC/MHPS Vantage View Coaching

HOW TO FIND PURPOSE IN YOUR CAREER The average person dedicates about 90,000 hours to their career throughout their lifetime. I would venture to say this number is higher for the average lawyer. You spend more time at work than with your family or doing things you love. It makes sense that you would want to enjoy your career and find a sense of purpose through work. Overall levels of well-being are greatly influenced by your relationship to work. Research shows that employees with a higher sense of purpose have fewer missed days of work, increased focus, and productivity. They are more likely to be promoted into leadership positions. Finding meaning at work is so important that 9 out of 10 employees would be willing to take a pay cut in exchange for a more meaningful job. Deriving purpose is important for the flourishing of the employee and the organization as a whole. Why are we driven to find meaning and purpose? As humans, we are hard-wired to connect on a collective level as a means of survival. Being ostracized from the tribe was a threat to survival. We also have an intrinsic need to connect with something bigger than ourselves. This drives us to look for a sense of purpose or find ways to contribute to the greater good. We can find many avenues to connect with our purpose and for the greater good, but people are increasingly looking to their careers to fulfill these fundamental psychological needs. It can be easy to lose your sense of purpose along your career path. Perhaps the vision of what life as a lawyer would look like doesn’t match the current reality. Maybe you are working in a practice area you never saw yourself working in and you don’t particularly enjoy it. Maybe you’ve started to myopically focus on the tedious aspects of the job you don’t enjoy. The work environment could be too competitive, isolating, or unsupportive. Or, maybe you’ve tied too much of your self-worth to the perceived failures and successes of work. Many people focus on climbing the ladder and earning achievements (financial or titles) and find themselves deeply unhappy because they’ve neglected their intrinsic need to connect with others through purposeful work. I work with clients who are highly stressed, emotionally exhausted, and most are dissatisfied with the current state of their careers. One of the major goals of our work together is to reconnect with the passion for practicing law and build a life and career that provides this sense of meaning and purpose. One of the first activities I have clients complete is to identify their core values. Our values are here to serve as a compass for our life – our North Star if you will. When we can tie our core values to our work, we derive a greater sense of purpose through work. For some, this is related to justice or helping others – both easily fulfilled by practicing law. For others, family is the most important value. The income a lawyer can make allows them to provide for their family. In this case, the purpose November 2023

of work is a means to an end. Remind yourself of your values as you start each day and see your work through this lens. Relating our purpose at work to our beliefs and values increases our intrinsic motivation. You have the drive to do the daily work not just because you are working towards a reward (e.g., paycheck, a win on a case, or title) or avoiding a punishment (e.g., fear of being fired, missing a court deadline), but because you find meaning in the pursuit of the goal. This is an energy boost each day. Relying on intrinsic motivation is a bolster against stress and burnout and increases resilience. You can find more purpose and meaning in your work by shifting your perspective. By tapping into your need to be connected to something greater than yourself, you can remember how you are making a difference in the lives of your clients. Or how all the members of your firm are on the same team working towards the same mission. Or you can remind yourself that practicing law matters. It is interwoven into the fabric of society. Zoom out to the larger picture or focus more on the aspects of the job you love. A change in practice area or firm may be necessary to connect with your purpose. For example, if a core value is helping others, but you represent large corporate entities against the individual, work could feel meaningless. Changing practice areas or finding a new firm can be intimidating and scary, but it is possible. Reach out to mentors or colleagues who have successfully navigated career changes such as these and learn from their process. Building relationships with your colleagues fosters a sense of purpose. These could be colleagues in your firm or the profession in general. Dr. Martin Seligman, the father of Positive Psychology, created the PERMA model for flourishing: Positive Emotions, Engagement, Relationships, Meaning, and Accomplishments. Social connection and genuine relationships are related to multiple components of the PERMA model. Too often, the law fosters a “versus” orientation between professionals, contributing to isolation and loneliness. Facilitating a more collaborative orientation, results in feeling a sese of camaraderie. You are “in this” challenging profession with together, bolstering your sense of purpose. Offering assistance and utilizing your strengths at the office or through volunteer opportunities within the law can increase your sense of purpose. Mentoring others, serving on committees, spearheading initiatives that are important to you, coaching younger lawyers, volunteering, or doing some pro-bono work are all options. Crafting your job that is aligned with your skills, strengths, and passions helps you and your firm or organization. Finding a sense of purpose in your work helps you sustain the energy and drive to pursue excellence over the long marathon of your career.

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BENCH AND BAR IN THE NEWS

Address Changes

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

Please note the following changes in your KBA Attorneys’ Directory and other office records: Catherine W. Anglin BPR #: 028120 Tennessee Department of Environment and Conservation Ph: (865) 804-3741 c34anglin@gmail.com

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

Gregory Brown BPR #: 027944 Lowe Yeager & Brown PLLC 920 Volunteer Landing, Suite 200 Knoxville, TN 37915 Ph: (865) 521-6527 gb@lyblaw.net

OPPORTUNITY TO GROW YOUR PRACTICE Knoxville office of Tennessee firm is seeking a general liability defense attorney with portable business to join its existing general liability practice. Great opportunity to grow together. Please send a letter of interest and resume to: firmresumes.007@gmail.com.

Charles C. Burks, Jr. BPR #: 000956 Burks & Ogle 800 S. Gay St., Suite 1900 Knoxville, TN 37929-9709 Ph: (865) 522-4964 cburks@jnblawfirm.com

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

Terri L. Daugherty BPR #: 032949 Lowe Yeager & Brown PLLC 920 Volunteer Landing, Suite 200 Knoxville, TN 37915 Ph: (865) 521-6527 tld@lyblaw.net

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

Michael S. Deel BPR #: 036784 U.S. Attorney’s Office 800 Market Street, Suite 211 Knoxville, TN 37902-2342 Ph: (865) 545-4167 michael.deel@usdoj.gov Iris McKay DeVault BPR #: 040457 Hodges, Doughty & Carson, PLLC P.O. Box 869 Knoxville, TN 37901-0869 Ph: (865) 292-2307 mdevault@hdclaw.com

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

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

•

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

W. Scott Hickerson BPR #: 026369 Lowe Yeager & Brown PLLC 920 Volunteer Landing, Suite 200 Knoxville, TN 37915 Ph: (865) 521-6527 wsh@lyblaw.net

Ryen M. Lamb BPR #: 037489 EdFinancial Services 298 N Seven Oaks Dr. Knoxville, TN 37922-2369 Ph: (865) 390-0624 rmlamb@edfinancial.com Angelia M. Nystrom BPR #: 016222 East Tennessee Foundation 520 W. Summit Hill Dr. SW Knoxville, TN 37902-2007 Ph: (865) 524-1223 anystrom@etf.org Nathaniel R. Ogle BPR #: 032286 Burks & Ogle 800 S. Gay St., Suite 1900 Knoxville, TN 37929-9709 Ph: (865) 522-4964 nate@knoxlegalteam.com Daniel A. Sanders BPR #: 027514 Lowe Yeager & Brown PLLC 920 Volunteer Landing, Suite 200 Knoxville, TN 37915 Ph: (865) 521-6527 das@lyblaw.net Chelsie L. Spurling BPR #: 038291 Lowe Yeager & Brown PLLC 920 Volunteer Landing, Suite 200 Knoxville, TN 37915 Ph: (865) 521-6527 cls@lyblaw.net Guy E. Tustin III BPR #: 039407 Knox County Public Defender’s Community Law Office 1101 Liberty Street Knoxville, TN 37919-2328 Ph: (865) 594-6120 gtustin@pdknox.org Hugh B. Ward BPR #: 015071 Lowe Yeager & Brown PLLC 920 Volunteer Landing, Suite 200 Knoxville, TN 37915 Ph: (865) 521-6527 hbw@lyblaw.net

L E G A L U P D A T E , continued from page 11 7 8 9 10 11 12

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Daimler, 571 U.S. at 137-38. Mallory, 143 S. Ct. at 2032. Id. at 2033. Id. Id. Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917). Mallory v. Norfolk S. R’y Co., 266 A.3d 542 (Pa. 2021). Mallory, 143 S. Ct. at 2037.

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Id. at 2039-40. Id. at 2056 (Barrett, J., dissenting). Id. at 2065. At the time of this writing, New York is considering such a law. A similar law was vetoed in 2021 by Gov. Kathy Hochul. Tom Stebbins, Op-ed: Governor Should Veto Pro-Lawsuit Bill, Crain’s N.Y. Business (Sept. 21, 2023).

November 2023

WELL READ By: Jamie Ballinger

Baker, Donelson, Bearman, Caldwell & Berkowitz

A SON HONORS THE SERVICE OF HIS FATHER IN POGIEBAIT’S WAR Each year our country celebrates Veterans Day on November 11th. The honoring of veterans and their experiences and sacrifices is an important part of our culture. This remembrance sparks feelings of gratitude and humility. Very often this remembrance also leaves us hero struck as we stand in awe of family members and friends who have served. We ask for stories of their service and all they endured during that service to understand those we love better and gain insight into a conflict we as a country collectively experienced. In his book Pogiebait’s War, A Son’s Quest for His Father’s Wartime Life1 our retired colleague Nick McCall not only honors the service and sacrifice of his father, Jack H. McCall, Sr., and his father’s comrades, but also grapples with understanding how World War II shaped the father he knew. Nick shares:

general, the book provides a picture of the military strategy and key battles through the first-hand experience of Jack McCall, Sr. For those wanting a story about a Tennessean serving his country in incredible circumstances, it provides a funny and also sobering picture of Jack, Sr.’s time in the Pacific. With so many of our World War II Veterans gone, it is an important book. And, because many with parents who served in World War II, Vietnam, Korea, or other conflicts were never able to have conversations with those parents about their experiences, it is a cathartic book. Nick has also edited Pacific Time on Target: Memoirs of a Marine Artillery Officer, 1943-1945 and he co-authored The East Tennessee Veterans Memorial: A Pictorial History of the Names on the Wall- Their Lives, Their Stories, Their Sacrifice. Congratulations to Nick on the publication of Pogiebait’s War and thank you to Jack H. McCall, Sr. for his service. Happy Veterans Day to all who have served. 1

Published by The University of Tennessee Press, www.utpress.org.

By the time I entered high school, this overprotectiveness no longer seemed to be a mere personal quirk; to me, it seemed positively neurotic. Despite my best efforts to be a good son, my father and I fought pitched battles over almost everything: over times I stayed out late (even if it was only for a track or cross-country meet out of town), over driving lessons, over the first time I dented the car, over my first date. Yet, despite his lectures and our verbal grappling and arguments, I did not feel any closer to understanding what made him tick. It was not until after I entered the military myself that I began to get a better inkling, and it was not until very close to the end of his life, after I had completed my military service and become a father myself, that I truly began to “get” the insights I lacked for so long. Sadly, the greatest insights would only come after his death, when it was too late for me to say: Now, at last, I see. I think I finally understand, Dad, what you were about. Though many of us close with Veterans can relate to Nick’s quest and the above sentiments, Pogiebait’s War is not merely a son’s piecing together of the internal mind and wartime experiences of his father. It is also a well-researched work of historical nonfiction from an experienced historian. Nick tracks, though his father, the U.S.’s involvement in the nightmarish Pacific Theater of World War II from Guadalcanal and the Solomon Islands to Guam and the Marianas through the U.S.’s decision to use the atomic bomb to end the war. For those interested in World War II or military history in November 2023

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

PRO BONO SPOTLIGHT By: Clint Wren

LAET Staff Attorney and former Pro Bono Law Clerk

THE TRAGIC NETWORK OF GOOD I have enjoyed the great fortune of seeing the good work attorneys do for Knoxville and its neighbors. With the secrecy required of the field, I am one of a few to be able to do so. That same secrecy prevents me and many others from exposing the well-kept secret of all you attorneys: you are good and caring people. If you are anything like me, you will shrug off the compliment. You may say “oh, he’s referring to the guy that worked 70 hours of pro bono this month.” But no, I am talking to you. Even if you have done nothing more than read this article, you are at least exposing yourself to the idea of pro bono work. Speaking of exposure to pro bono work, I encourage past and future volunteers to reflect on theirs. During my years at Legal Aid of East Tennessee, I have seen thousands of clients get needed help they otherwise would not receive. The flipside is that it seems there are always thousands of clients with new needs each day. While working as the Pro Bono Law Clerk, at times I felt that there was no way to ever make a difference. We place one case with a volunteer, but two more have come in. We find a new volunteer, but three others have retired. The cycle of small victories and defeats is dizzying if you are not grounded in reality. Generally, my generation does not seem to be a fan of reality. To be exact, it seems we, Millennials, often adopt a nihilistic and hopeless stance. Sure, we helped one adoption. How does that help the soonevicted tenant remain off the streets? Yes, we got a name change done. How does that help a mourning family navigate probate? I am one person among 8 billion or so people. What difference can I make? This mindset is wrong and fruitless. I would say each volunteer helps four or five clients each year. Whatever that help is, you help those clients set themselves right. That client is now put on a better path towards success. Not easy or perfect, but better. Each client you put on a better path is a client putting their family on a better path. Parents set up better futures for their kids because they are on a better path. Those kids have kids of their own, and they have a

now-better path. Say you help five clients with pro bono work, and they set themselves and their families more right. Five families, breaking a cycle of tragedy and misfortune, is an entire community. That community, set more right because you used your skills and talents, impacts neighboring communities. The cases volunteers take are not always easy. They are not always successful. They are not always joyful or exciting or rigorous mental exercise. All five of those hypothetical families will not likely be set right, whether it is our fault or not. The work remains worthy of our time and attention. Imagine the neural network of the brain. Neurons connect in intricate and varied ways to form a massive web of potential. What difference can one neuron, connected to a limited set of others, make towards the entire mind? This is the concept I am floundering about trying to convey. Our neighbors, for one reason or another, have a neuron misfire in their lives. Whatever it is, it is stopping them from being all they can be for their families and our community. I am thankful that sometimes my neuron connects to theirs. If I, by matching them with you, can help set them right again, I have expanded my influence. Now all their neighboring neurons suffer the wonderful effects of your work. A client’s friend realizes they could get help as well, and they reach out. A client’s sibling sees that there is a worthy cause in legal pro bono work and volunteers. The responses to your work are as varied as the clients you see, and they matter. All this to say, your work matters in a big way. The hour or two you donate to a neighbor could mean a difference in their family for generations. The hour or two you donate could amount to nothing more than some CLE credit. The whole cycle of small wins and losses amount to something that matters. I have had the honor of making a difference, and so can you. Do the usually hard, often tragic, and always rewarding work of pro bono service.

Upcoming Clinic Opportunities

Legal Advice Clinic for Veterans: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. Phone advice options available. • Wednesday December 13th Noon – 2:00 PM. • To sign up, please use the form on the KBA Website or email ctorney@laet.org. Debt Relief Clinic: In person at the Public Defender’s Community Law Office at 1101 Liberty Street in Knoxville. • Saturday November 4th 9:00 AM – Noon • To sign up, please use the form on the KBA Website or email ctorney@laet.org. Blount County Advice Clinic: In person at Blount County Public Library. • Saturday November 18th 9:00 AM – 11:00 AM • To sign up, please use the form on the LAET Website or email ctorney@laet.org.

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November 2023

TELL ME A STORY By: Taylor P. Monnig

Holland & Knight, LLP

LESSONS LEARNED FROM BURNING THE MIDNIGHT OIL As a Finance Associate for nearly four years now, my day-to-day practice is almost entirely driven by one thing: the closing date. As lender’s counsel, the average loan to finance an acquisition takes our team roughly six weeks from beginning (receipt of the lender’s executed term sheet) to end (the closing). However, in my experience, that well-known timeline is put to the test during the fourth fiscal quarter every year. It’s the same song and dance each time – the borrowers want to close prior to the end of the year for tax purposes – and the legal teams, on each side of the transaction, buckle up for a fast-tracked closing. Over the years, I have grown accustomed to this end of the year madness and truth be told, I expect it now. But, out of all of those December closings over the course of my career thus far, one closing in particular that helped me gained perspective that I still use almost daily. Let me set the scene, it’s December 15, 2020, I am wrapping up my first year as an associate. I (luckily) graduated law school one semester early and missed the Tennessee bar exam related impacts of COVID-19. With what seemed at the time like the one-thousandth surge of COVID-19 cases, I was working almost exclusively at home in my onebedroom apartment, accompanied by my dog. In the middle of an average workday on that day in December, I received an e-mail that I will never forget. Quick summary: “This loan needs to close by December 31st; 27 properties. Can you help?” The semantics of the loan aren’t important, but the size of the loan and the collateral to be acquired were the details that made this transaction have such a long-lasting impact on me. In short, it was a heavy lift on a normal timeline. To put it simply, I was thrown into the trenches on this deal. I was a new associate that was still drinking from the firehose most days. Our small (but mighty) team handling this transaction worked around the clock for two weeks straight. I learned more in those two weeks than I did in the numerous months that preceded the deal. I wasn’t able to appreciate the impact this deal had until much later. But, here’s what I learned: I may be alone in this thought, but to me, who you work with matters almost as much as the work you are doing. If you enjoy the work you are doing on a day-to-day basis, but don’t enjoy working with your fellow colleagues, is it possible to still love your work? My answer would be a quick “no.” As the age-old tale says, “Teamwork makes the dream work.” An atmosphere with fellow associates to strategize, collaborate with and tackle a closing’s outstanding items together paired with supportive partners that are available to answer questions as needed and November 2023

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celebrate victories is a game-changer. The camaraderie and collaborative spirit create a harmonious environment that not only enhances productivity and fuels motivation but also cultivates a sense of fulfillment that resonates long after the closing day. The other associates and I had a nearly constant dialogue. We bounced ideas off one another and triple-checked each other’s work product. After two long weeks, the deal closed, and the partner celebrated us - with enthusiasm. Since that deal, each time I had the opportunity with the colleagues from this deal, I took it. Doing good work with good people never gets old.

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